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IBRAHIM--Appellant
versus
THE SETTLEMENT COMMISSIONER, KARACHI and 4 others--Respondents
Letters Patent Appeal No. 158 of 1970, decided on 30th April, 1987.
(a) Civil Procedure Code (V of 1908)--
---O. XXII, Rr. 4(3), (4) & 11--Law Reforms Ordinance (XII of 1972), Sched.--Death of party--Suit/appeal does not stand abated after enforcement of Law Reforsm Ordinance, 1972, on account of non-bringing of legal heirs of a deceased defendant or respondent on record.--[Abatement].
Mehar Din v. Settlement Commissioner P L D 1975 S C 30; Wali, Jahana and Allah Dad v. Manak Ali, Lal and Murad P L D 1965 S C 651; Mat. Said Begum and others v. Nur Ahmad and others P L D 1978 S C 133 and Ismail and another v. Hakim Khan and others P L D 1954 Pesh. 53 not applicable.
(b) Civil Procedure Code (V of 1908)--
---O. XXII, Rr. 4(3), (4) & 11--Law Reforms Ordinance (XII of 1972), Sched.--Evidence Act (I of 1872), S. 115--Estoppel against Law--Validity--Death of one of respondents--Counsel of respondents stating before Division Bench of High Court that he would not seek relief against one of respondents in that appeal and Court on basis of such statement passing order that "it was not necessary to bring legal representatives of such respondent on record and appeal in respect of him abates"--Such statement of counsel being contrary to law, no estoppel, held, could be pleaded against appellant as there cannot be any estoppel against law.--[Abatement].
(c) Constitution of Pakistan (1973)--
---Art. 199--Writ jurisdiction--High Court, in writ jurisdiction, is not competent to interfere with order of Tribunal on purely equitable consideration or on ground that it would have taken a different view in the matter--High Court, however, could interfere with the finding of fact in exercise of constitutional jurisdiction if same was based on no evidence or was contrary to the record.
Muhammad Hussain Munir & others v. Sikandar and others PLD 1974 S C 139 and Begum Wazir Ahmad Industrial Home v. Mst. Niaz Begum (deceased) (represented by Nisar Ahmed and 6 others) and 3 others P L D 1976 S C 214 ref.
(d) Letters Patent (1919)-
---Cl. 10--Constitution of Pakistan (1962), Art. 98--Constitution of Pakistan (1973), Art. 199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 3, 10 & 20 and Sched.-- Transfer of house--Respondents describing tenement in dispute as a small room having no amenities and not as a shop--Admittedly the tenement was a shop and, therefore, it was transferable to appellant under earmarking scheme as a house--Settlement Department all along treating the tenement as a house and including same in the earmarking scheme after due public notice as a house and transferring it to the appellant as such--No material on record on basis of which it could have been held that the tenement in dispute was a shop Additional Settlement Commissioner on basis of site inspection could not have recorded finding of fact that tenement was a shop in presence of the factual position--Alleged user of the tenement as a shop in 1967 would not alter its status if it was a house on relevant dates when it had become evacuee property or acquired by Federal Government under S. 3 of the Act--Concurrent finding of Additional Settlement Commissioner and Settlement Commissioner to the effect that the tenement was shop and therefore, could not have been included in the earmarking scheme, held, being contrary to record could not be sustained--Appeal and constitutional petition allowed and transfer of the tenement in favour of respondents under impugned orders declared to be without lawful authority and of no legal effect.
M. Hussain Adil Khatri for Appellant. Akhtar Mahmud for Respondents.
AJMAL MIAN, J.--This appeal is directed against a judgment dated 12-8-1970 passed by a learned Single Judge of this Court in Constitutional Petition No.165/68.
(2) The brief facts leading to the filing of the above appeal are that the present appellant in response to a public notice inviting applications for the transfer of inter alia tenement bearing No.IV-B-142/G-10 equivalent to R.S. 2/16 (hereinafter referred to as the tenement) applied for its transfer on or about 26-3-1960. His above application was accepted and notified alongwith other successful applications through Press in daily Urdu "Anjam' dated 20-4-1960. In 'pursuance thereof, the Deputy Settlement Commissioner issued appendix to the appellant on 18-6-1960. After that a P.T.O. was issued on 10-8-1960 after adjusting the price from a compensation book. This was followed by the issuance of a P . T . D . on 15-4-1963. It is case of the appellant that respondent No.5, who was in possession of the tenement was served with a notice dated 5-1i-1960 under Section of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). Respondent No.2 applied for transfer of the house, bearing tenement, No.G/1 as non-claimant, situated adjacent to the tenement, he was issued P.T.O. on 28-11-1960 in association with his father-in-law, respondent No.3. On 30-8-1961, respondents Nos.2 & 3 moved an application before the Deputy Settlement Commissioner stating therein, that a small room adjacent to their tenement No. G/1 without having any amenity was not transferred to anybody. They requested for the transfer of the above adjacent room through the above application, thereupon a report was obtained from the Assistant Settlement Commissioner, who submitted his report dated 30-9-1961 and recommended the transfer of the same to the respondents Nos.2 & 3. Thereafter, an entry in the P.T.O. issued by the Settlement Department in favour of respondents Nos.2 & 3 in respect of tenement G/1 was made on or about 20-10-1961 adding the aforesaid adjacent room. The appellant after coming to know about the above transfer filed an application before the Deputy Settlement Commissioner for cancellation of the transfer in favour of respondents Nos.2 & 3, The Deputy Settlement Commissioner sent the said application to the Additional Settlement Commissioner, who by his order dated 9-10-1963 allowed the same and set aside the above transfer in favour of respondents Nos.2 & 3. However, respondent No.4 mother-in-law of respondent No.2 filed an appeal against the above order dated 9-10-1963 on the ground that though she had purchased the above tenement, bearing No.G/1 from respondents Nos.2 & 3, she was not heard before ordering of the cancellation of the above transfer. The said appeal was allowed by an order dated 1-12-1966 and the case was remanded to the Additional Settlement Commissioner, who by his order dated 18-3-1967 maintained the transfer in favour of respondents Nos.2 & 3 and gave option to the appellant either to get back the price of the tenement by getting the adjustment of the price in the compensation book cancelled or to select any other house of the same category. The appellant being aggrieved by the above order filed a revision application, which was dismissed by the Settlement Commissioner by an order dated 1-2-1968. The appellant then filed Constitutional Petition No.165/68, which was dismissed by a learned Single Judge of the erstwhile High Court of Sind & Baluchistan at Karachi, on the ground that since the building was demolished and new construction was raised, it would not be possible to execute the writ, if any issued by the Court. The appellant filed above High Court Appeal, which was allowed by a judgment dated 5-11-1979 and the case was remanded to a learned Single Judge with the direction to re-hear the case and to decide the question of respective entitlement of the two parties in respect of disputed premises. The respondents filed a petition for leave to appeal in the Honourable Supreme Court, which was granted. After that when the appeal came up for hearing (Civil Appeal No.139-K of 1980) before the Hon'ble Supreme Court, it was disposed of by a consent order dated 7-1-1987 in the following terms:------
"Both the learned counsels for the parties agree that for the reasons shown in the Leave Granting Order, the appeal may be allowed and the case may be remanded to the Letter Patent Bench (now called High Court Appeal Bench) of the High Court for final disposal of the appeal itself in the light of the observations made in the impugned judgment.
In the circumstances appeal is allowed and the impugned judgment is set aside and the case is remanded for fresh hearing of the Letter Patent Appeal of the respondent, namely, Letter Patent Appeal No.158 of 1970. The parties are left to bear their own cost."
(3) (a) In support of the above appeal, Mr. Hussain Adil Khatri, learned counsel for the appellant has urged as follows:-------
(i) That the learned Single Judge should have allowed the writ petition as the order of the Additional Settlement Commissioner dated 18-3-1967 and of the Settlement Commissioner dated 1-2-1968 were contrary to the record.
(ii) That the respondents Nos.2 a 3 obtained the transfer of the tenement on mis-representation inter alia that the tenement was not transferred to any one factually it was already transferred to the appellant on 10-8-1960.
(iii) That it is not open to the respondents Nos.2 & 3 to urge that the tenement was not a house but a shop as they had in their application for its transfer described the same as a small room without any amenity adjacent to their tenement.
(iv) That the factum that the building has been demolished or some new construction has been raised does not debar this Court from granting the declaration that the transfer in favour of respondents Nos. 2 & 3 and the above orders were illegal.
(3)(b) On the other hand Mr. Akhtar Mahmood, learned counsel for the respondents has urged as follows:-
(i) That in view of the order dated 9-10-1979 passed by a Division Bench in the above appeal, the appeal has abated in toto.
(ii) That there is concurrent finding of fact of the two forums to the effect that the tenement was a shop and, therefore, the same could not have been transferred under the ear-marking scheme, which pertained to the houses and since it is a finding of fact, this Court cannot in exercise of constitutional jurisdiction reverse the above finding.
(iii) That since there does not exist any tenement bearing, the number in question as the building has been demolished and re-constructed, no relief to the appellant can be granted.
(4) It may be pertinent to take up the first contention of Mr. Akhtar Mahmood, learned counsel for the respondents, that in view of the order dated 9-10-1979 passed by a Division Bench of this Court pertaining to the abatement in respect of respondent No.3, the whole appeal has abated, it may be pertinent to re-produce the said order, which reads as follows:------
"Mr. Ismail Munshi has stated that he would not be seeking any relief against respondent No.3 in this appeal. It is, therefore, not necessary to bring L.Rs of respondent No.3 on record and the appeal in respect of this respondent abates.
Mr. Wajihuddin however, seeks an adjournment on the ground that his papers are with his clients and he requests for time to enable him to obtain the papers. Case is adjourned to a date in office."
Before dealing with the effect of the above order, it may be pertinent to state that the above point was not urged before the learned judges of the Division Bench, who had disposed of the above High Court Appeal by the aforesaid judgment dated 5-11-1979 nor it was raised before the Hon'ble Supreme Court, which remanded the appeal by consent of the parties to this Court for re-hearing afresh in terms of the leave granting order, which does not contain any point as to the abatement of the above appeal. However, Mr. Akhtar Mahmood, learned Counsel for the respondents, though admitted the above factual position, has contended that this being a legal point, he is entitled to raise the same even at this stage after the expiry of 7J years from the date of the above order. In view of the above factual position, we are doubtful, whether we can non-suit the appellant on the above ground after the above remand order in the above terms. However, we have examined the merits of the above contention.
(5) Mr. Akhtar Mahmood, learned counsel for the respondents, in support of his above submission has referred to the following cases:------
(i) Mehar Din v. Settlement Commissioner, reported in PLD 1975 SC 30
(ii) (1) Wall, (2) Jahania 3 (3) Allah Dad Vs. (1) Manak Ali, (2) Lal s (3) Murad, reported in PLD 1985 S.C.651.
(iii) Mst. Said Begum a others v. Nur Ahmad a others, reported in PLD 1978 S.C. 133.
(iv) Ismail & another v. Hakim Khan a others, reported in PLD 1954 Pesh. 53.
(v) Abdul Ghani v. Settlement Commissioner, Lahore Division, Lahore t 2 others, reported in PLD 1971 Lah.59.
In the above cases, it has been held that an appeal or a suit in respect of an undivided immovable property abates in toto if one of the respondents/ defendants a co-sharer of having joint interest in such immovable property expires and his legal heirs are not brought on record within the statutory prescribed period and in their absence no effective decree can be passed. There cannot be any cavil with the above proposition of law, but the point for consideration is that, as to whether the above principle can be pressed into service after the passing Law Reforms Ordinance, 1972, (hereinafter referred to as the Ordinance). In the above cited cases a defendant or a respondent had expired prior to the enforcement of the Ordinance. In the present case respondent No.3 has admittedly expired after several years from the date of the enforcement of the Ordinance. Sub-rules (3) & (4) were added to Rule 4 of Order 22 C.P.C. by the Ordinance, which read as follows:------
O. 22 R.4.
(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and affect as if it has been pronounced before the death took place.
(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as it has been pronounced before his death took place."
It may be pointed out that under Rule 11 of Order 22 C.P.C. word 'plaintiff' includes an appellant, the word 'defendant' covers a respondent, and the word 'suit' includes an appeal. It is therefore, A evident that after the enforcement of the Ordinance a suit/an appeal does not stand abated on account of non-bringing of legal heirs of a deceased defendant or respondent on record.
(6) Further, question arises, as to whether the appellant can, wriggle out from the statement of the then learned counsel of the appellant recorded in the above quoted order dated 9-10-1979. We B are inclined to hold that since the above statement was contrary to law, no estoppel can be pleaded against the appellant. There cannot be any estoppel against law.
(7) This lead us to the question, whether we can interfere with the concurrent finding of the Additional Settlement Commissioner and the. Settlement Commissioner recorded in the aforeasid appellate or revisional orders dated 18-3-1967 and 1-2-1968 respectively to the effect that the tenement was shop and, therefore, could not have been included in the ear-marking scheme, it may be observed that Mr. Akhtar Mahmood, learned counsel for the respondents has referred to the case of Muhammad Hussain Munir & others v. Sikandar others, reported in PLD 1974 S.C. 139 and the case of Begum Wazir Ahmad Industrial Home v. Mst. Niaz Begum (deceased) represented by Nisar Ahmad & 6 others) & 3 others, reported in PLD 1976 S.C. 214. In the first case, it was held that High Court, in writ jurisdiction, was not competent to interefere with the order of Tribunal on purely equitable consideration or on the ground that it would have taken a different view in the matter. It was also held that a Court or H Tribunal having jurisdiction, can decide rightly or wrongly. Whereas D in the second case, the Hon'ble Supreme Court has held that High Court could not interfere with the findings of the Settlement Commissioner even if upon the same facts a different view could be taken as there was no jurisdictional defect. There cannot be any controversy on the above proposition of law enunciated in the above cited judgments. However, we may observe that It is equally a well settled proposition of law that the High Court can interfere with the finding of fact in exercise of constitutional jurisdiction if it is based on no evidence or it is contrary to the record.
(8) In this regard, it may be pertinent to re-produce the aforesaid application of respondents Nos.2 & 3 filed by them on 30-8-1961 and report of the Assistant Commissioner dated 30-9-1961, which read as follows: --
"Before the Deputy Settlement Commissioner disposal, Karachi.
Application
Subject: Application for transfer of tenement No. of Building No.IV-B-142 R.S. 2/16.
Sir,
It is respectfully submitted as under:
1. That the tenement No. G-1 has already been transferred to the applicants, vide P.T.O. No.07573 dated 28-11-1960.
2. That the tenement No. which stands just adjacent to the tenement No.G/1 is very small tenement consisting of only one room having no amenities of life. It has not been transferred to anybody. It is in the occupation of a local and he has not supplied for its transfer.
3. That the above 2 tenements originally constituted one Unit and one formed part of the other. The tenement in possession of the local does not by itself make a unit. The applicants tenement remains incomplete without it and is quite insufficient for the applicants who have got big families of 12 persons to accommodate.
4. That it is therefore prayed that the tenement in occupation of the local may kindly be treated as one Unit along with tenement No.G/1 and may kindly be transferred to applicants."
Applicant.
Karachi 1. Rashid Ahmad.
Dated:-( ) -8-1961. 2. Hakim Mohd Ahmad."
A.S.C's. Report:
"Property No.R.S. 2/16 G/1.
Ref:- Application of Rashid Ahmad and Hakim Mohd Ahmad placed below.
In compliance with the marginal endorsement of the D.S.C. (Disp) dated 6-9-1961 on the application, I have carefully looked into this case. The spot inspection reveals that tenement No.G/1 which is in possession of the applicants have already been transferred vide P.T.O. No. 07573 dated 28-11-1960.
There is a room without amenities adjacent to the tenement No.G/1 at present occupied by one Muhammad Sadiq, a local who has not applied for its transfer. The applicants Abdul Rashid and Mohammad Ahmad want this room on the ground that it forms part of G/l.
I have consulted E.P.R. and Gus-2 Registers. Unfortunately the room in occupation of Mohammad Sadiq does not find any place therein. It appears that this room has been assigned no number by the Custodian Authorities at the time of the original survey and they appear to have treated this room as a part and parcel of G/1. The KMC extract for the year 1946-47 which has been prodpced by the, applicant also leads to the same conclusion.
In my opinion, therefore, it will not be out of place if the room in occupation of Mohammad Sadiq be treated as part and parcel of tenement No.G/1 and be transferred to the applicant at the same price as has been charged for tenement G/1.
(Sd.) M.L. Sharif.
Asstt. Settlement Commissioner.
30-9-1961.
No objection but he should be charged the assessment fixed as per E.P.R.
(Sd.) H.I.M. Kehar.
7-10-1961."
A perusal of the above quoted application indicates that respondents Nos.2 & 3 have themselves described the tenement as a small room having no amenities and not as a shop. It is also evident that the factum that the tenement was already transferred to the appellant in the ear-marking scheme on 10-8-1960 was not mentioned nor the tenement number was mentioned. The above quoted report of the Assistant Settlement Commissioner in fact re-produced most of the contents of the above quoted application. It may be observed that it was no body's case that the tenement was a shop and, therefore, it was not transferable to the appellant under the ear-marking scheme as a house. The respondents Nos. 2 & 3 in their above quoted application and the Assistant Settlement Commissioner in his above quoted report treated the tenement as a house, which indicates that at the relevant time the tenement was treated as a house by all the parties concerned. Aforesaid respondents Nos.2 & 3 got the adjacent tenement bearing No.G/1 transferred in their favour as a house and not as a shop. They got the tenement in question transferred and added in their P.T.O. as a house and not as a shop. The Settlement Department all along treated the tenement as a house in as much as it was included in the ear-marking scheme after due public notice as a house and transferred to the appellant as such. In view of the above admitted position, there was no material on record on the basis of which, it could have been held that it was a shop. The Additional Settlement Commissioner on the basis of the site inspection made by him in or about 1967 could not have recorded finding of fact that the tenement was a shop in presence of the aforesaid factual position, and, secondly the alleged user of the tenement as a shop in 1967 would not alter the status of the tenement if it was a house on the relevant dates, when it had become evacuee or acquired by the Federal Government under section 3 of the Act. Mr..Akhtar. Mahmood is unable to point out any document on the basis of which, it could be urged that the tenement was a shop and not a house. It is, therefore, evident that the alleged concurrent finding is contrary to the record and even contrary to the case pleaded by respondents Nos. 2 & 3 and, therefore, cannot be sustained.
(9) As regards Mr. Akhtar Mahmood's contention that since the building has been demolished and re-constructed after it was purchased by respondent No.4 from respondents Nos.2 3 3, it may be observed that the above respondents Nos.2, 3 & 4 are interse closely related. Any sale transaction between respondents Nos. 2 & 3 on the one hand and respondent No.4, who is wife of respondent No.3 and mother-in-law of respondent No.2, cannot affect the right of a third person nor the demolition of the old building or raising of new construction will deprive a third person from the ownership of the tenement, which was legally transferred to him. It is true that the restoration of the tenement in its original condition may be impossible, but we are not concerned with the above aspect for the time being as relief for possession has not been claimed in the aforesaid writ petition. We are only concerned with the legality of the transfer of the tenement by the Settlement Department to respondents Nos.2 & 3 without any notice to the appellant, who was already a transferee of the tenement. The appellant may, have to file some other legal proceeding in respect of the tenement after we allow this appeal, but this fact does not dis-entitle the appellant to a relief which can be granted in this appeal.
(10). We, therefore, allow the above appeal and set aside the judgment of the learned Single Judge. We also allow the appellant's constitutional petition and declare the transfer of the tenement in G favour of respondents Nos.2 & 3 and the aforesaid impugned orders dated 18-3-1967 and 1-2-1968 of the Additional Settlement Commissioner and Settlement Commissioner respectively as being without lawful Authority and of no legal effect.
(11) However, there will be no order as to costs.
S.Q./I-17/K Appeal allowed.
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