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High Court Appeal No. 76 of 1981, decided on 12th May, 1987.

---S.3, proviso, [as amended by Law Reforms (Amendment) Act (VI of 1975)]--Constitution of Pakistan (1973), Art. 199, High Court Appeal--Maintainability--Judgment under appeal passed by Single Judge in exercise of constitutional jurisdiction in a settlement case--Order impugned in constitutional petition was an appellate order passed by Settlement Commissioner in favour of appellant--No right of appeal existed against an order or judgment passed by a Single Judge in exercise of constitutional jurisdiction under clause (1) of Article 199 of Constitution out of any proceeding in which there was a right of one appeal or one revision or one review against original order- Appellant having no right of intra-Court appeal on date when Single Judge passed order under Appeal--High Court Appeal, held, was not competent in circumstances.

Aziz Khan v. Maiz Muhammad Khan 6 others PLD 1980 Pesh. 227 ref.

1985 C L C 956 rel.

Ismail Kassim for Appellants.

Rashiduddin for Respondents.

Dates of hearing: 11th and 12th May. 1987.

This appeal is directed against tire judgment dated 25-5-1981 passed by a learned Single Judge in Constitutional Petition No. 207 of 1974.

2. The brief facts leading to the filing of the above appeal are that there was a dispute as to the transfer in respect of a plot, bearing No. GRE 28 Custodian No. AE-29 admeasuring 2064 square yards. The above plot was transferred to late Master Habibullah (who is now represented by the appellants and respondents 10 and 11) by the Deputy Settlement Commissioner on 12-7-1960. Respondents 1 to 9 who were in possession of certain portion of the- above plot had applied for the transfer of the portion of the plot in their respective possession but their application was dismissed by the Additional Settlement Commissioner by his order dated 12-6-1968 with the observation that they could file an application for the cancellation of the transfer in favour of Master Habibullah if the transfer was obtained by fraud. After that respondents 1 to 9 filed an application under para 6 of the Permanent Transfer Rules for cancellation of the transfer of the plot in favour of Master Habibullah on the ground of fraud. The Additional Settlement Commissioner by his order dated 1-10-1963 allowed the said application and ordered cancellation of the transfer. It appears that both the parties filed appeals (Appeal No. 100/64 and 164/64). The same were disposed of by an order dated 23-12-1965 passed by the learned Settlement Commissioner, whereby he remanded the case to the Deputy Settlement Commissioner for adjudication upon the question of entitlement. Master Habibullah filed Constitutional Petition No. 238 of 1966 but the same was withdrawn on 5-9-1966 with the permission to file fresh petition. After that Deputy Settlement' Commissioner by his order dated 11-11-1967 allowed the transfer of the plot in favour of Master Habibullah and maintained the P T D which was cancelled by the Additional Settlement Commissioner by his aforesaid order dated 1-10-1963. Respondents 1 to 9 being aggrieved by the above order filed an appeal which was dismissed by an order dated 4-11-1968. Against the above order Respondents 1 to 9 filed revision, which was allowed by an order dated 5-3-1969 and the case was again remanded to the Deputy Settlement Commissioner. It may be mentioned that Respondents 1 to 9 had also filed constitutional petition No. 48/71 against non-allowing of the production of evidence by them by the Settlement Commissioner but the same was dismissed by an order dated 23-3-1971. It appears that after the above remand order dated 5-3-1969, the Deputy Settlement Commissioner by his order dated 10-7-1971 ordered the transfer of the plot to Master Habibullah as well as to Respondents 1 to 9 proportionately according to their occupation. Against the above order present appellants filed Appeal No. 53/71, which was allowed by the Settlement Commissioner by, his order dated 26-9-73, and the transfer of the entire plot in favour of Master Habibullah was maintained. Against the above order respondents 1 to 9 filed Constitutional Petition No. 207/74, which was allowed by the judgment dated 25-5-1981, which is under appeal.

3. A preliminary objection has been raised as to the maintainability of the above High Court Appeal in view of the proviso in Section 3 of the Law Reforms Ordinance, hereinafter referred to as the Ordinance.

Mr. Ismail Kasim learned counsel for the appellants has conceded that the High Court Appeal is not competent but has submitted that this appeal may be treated as a Letters Patent Appeal. According to him Section 3 of the Ordinance is not applicable as the proceedings in the case were initiated when the above section was not in the field. It may be observed that the appellants have filed the present appeal under section 3 of the Ordinance and not under the Letters Patent which is no longer in the field. It is an admitted position that the judgment under appeal has been passed by a learned Single Judge in exercise of constitutional jurisdiction in a settlement case. The order impugned in the writ petition was an appellate order passed by the Settlement Commissioner in favour of the appellant.

4. We have pointed out to Mr. Ismail Kasim that on the day when the appellate order was passed by the Settlement Commissioner on 26-9-1973, section 3 of the Ordinance was very much in the field, his submission was that for the purpose of this appeal the original order was passed by the Settlement Commissioner on 5-3-1969 remanding the case to the Deputy Settlement Commissioner is to be considered as the original order. The above contention is evidently devoid of any force. After the passing of the appellate order dated 26-9-1973 by the Settlement Commissioner in favour of the appellant the aforesaid order dated 5-3-1969 was no longer in the field. The dispute as to the entitlement of the plot started in 1961. The question in issue is whether the appellants had any right of intra-Court appeal on the date when the learned Single Judge passed the judgment under appeal on 25-5-1981. On that day admittedly there was no right of appeal. However, reliance has been placed by Mr. Ismail Kasim on the case of Aziz Khan v. Maiz Muhammad Khan and 6 others reported in P L D 1980 Peshawar 227, in which a learned Single judge while considering the question of right of second appeal under Section 100 of the, C. P. C. held that in spite of section 3 of the Ordinance the appellant, had a right of second appeal in terms of section 100 C.P.C. as suit was instituted when the right of second appeal was available. The above case has no application whatsoever to the present case inas much as letters patent appeal is no longer available on the statute book, whereas section 100 C. P. C. was very much in the Code of Civil Procedure when the above appeal was decided by the Peshawar High Court.

The judgment which is pertinent is of a Division Bench of this Court in the case of M.A. Waheed v. Settlement Commissioner, I Sind at Karachi and 9 others reported in 1985 C L C 956 in which inter alia, following observations were made:

"It may further be stated that by Law Reforms (Amendment) Act, 1974 (Act VI of 1975) above section 3 was further amended. In subsection (2) of Section 3 in place of clause (2) of Article, 201 of the Interim Constitution, clause (1) of Article 199 of the Constitution was substituted and so also in the proviso. In the above proviso after the words one appeal the words or one revision or one review were added to. The effect of the, above amendment is that no appeal against an order or judgment, passed by a learned Single Judge in exercise of constitutional jurisdiction under clause (1) of Article 199 arises out of any proceeding in which there was a right of one appeal or one revision or one review against the original order."

5. We are inclined to hold that the above High Court Appeal is not competent in terms of the above-quoted portion of the judgment and, therefore, it is dismissed as being incompetent but there will be no order as to costs.

M.Y.H./M-329/K High Court Appeal dismissed.

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