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Letters Patent Appeal No.300 of 1969, heard on 1st March 1983.

---Cl. 10--Civil Procedure Code (V of 1908), O. IX, R.13--Constitution of Pakistan (1973), Art. 199--Dismissal of constitutional petition for non-prosecution--Restoration of--Presumption of supply of cause list by Bar Association, held, could be made with regard to weekly or daily lists, but not to supplementary ones--Constitutional petition dismissed by Single Judge of High Court for non-prosecution having been fixed by way of supplementary list and there being no proof that list was supplied to counsel for petitioner, same was restored by High Court by accepting Letters Patent Appeal against order of dismissal and refusal to restore same.

Messrs Zeenat Textile Mills v. Government of the Punjab 1987 SCMR 77.0 and Mirza Munawar Beg v. Mst. Hassan Bibi 1981 .SCMR 160 ref.

---S. 52--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10 & Sched. II--Transfer of evacuee property--Doctrine of lis pendens--Deed of association executed between original transferee of evacuee house and respondent in respect of such house, was duly approved by Settlement Authorities and respective P.T.Os. were issued to parties accordingly--Subsequently dispute regarding partition of house arose between parties and original transferee applied for cancellation of deed of association--During pendency of case before Settlement Authorities original transferee entered into agreement of association with appellants and surrendered entire house to them Matter having finally been decided in favour of respondent, appellants who entered into deed of association when matter was sub judice, held, could not complain if decision had been made against them because it was matter of lis pendens.

---Cl. 10--Constitution of Pakistan (1973), Art. 199--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10, Sched. II--Principle of natural justice, violation of--Proof--Petitioners and original transferee of disputed house entered into subsequent deed of association when appeal of respondent regarding matter in prior deed of association between original transferee and respondent was pending adjudication before Settlement Authorities--High Court presumed that Settlement Authorities must have either heard petitioners or provided them with opportunity to do so--No prejudice shown to have been caused to petitioners even in hearing before High Court, contention of petitioners that they had not been heard, held, was not valid in circumstances of case.

---Sched. II--Transfer of evacuee property--Deed of association, validity of--Deed of association entered into between parties for transfer of evacuee property prior to enforcement of instructions prescribing value of stamp paper for such deed and attestation of same by Oath Commissioner or Magistrate, held, was valid even if same was not bearing requisite stamp duty and was not duly attested by competent Authorities.

---Sched. II--Transfer of evacuee property--Execution of deed of association before transfer--Objection that no deed of association could be executed, before transfer of property, held, was not valid.

Muhammad Sharif 1981 S C M R 886ref.

Muhammad Ismail for Appellants.

Zafar Pasha for Respondents.

Date of Hearing: 28th February and 1st 3rd March, 1983.

- This is an appeal directed against the order, dated 1st July, 1969, of a learned Single Judge of this Court by which the application for restoration of a case dismissed in default was rejected. The appellants also challenged the order, dated 23rd October, 1968, whereby the dismissal took place.

2. Briefly, the facts of this case are that the appellants challenged the order, dated 29th April, 1964, of Settlement Commissioner, Lahore, whereby a deed of association of the respondent No. 1 entered into, with the original transferee respondent No.3, was restored to set at naught his subsequent association in favour of the present appellants. The petitioners, who felt aggrieved against that order, filed Writ Petition No. 862-1t of 1964. It came up for hearing on 23rd October, 1968, when it was dismissed for non-prosecution, with the following short order:

"Nobody for the petitioner has turned up though I have waited till 12-30. Mr. A.S. Zahid appears for respondents 1 and 3. The petition is dismissed for non-prosecution."

3. The appellants, thereafter, filed an application for its restoration but that too did not find favour with the learned Single Judge. He came to the conclusion that a supplementary list having been sent to the Bar Association, the service was complete and it would be a matter between the Bar Association and the counsel to be sorted out. He further held that there being no affidavit of the counsel, that he did not receive the supplementary list, it was not a good case for interference.

4. It is contended by the learned counsel that according to the High Court Rules and Orders, Volume V, Chapter III, Part (A), Rule 5, no case of the present nature could be fixed by way of a supplementary list. He also referred to Messrs Zeenat Textile Mills v. Government of the Punjab 1987 S C M R 770 wherein the dismissal order was set aside on the short ground that there was no proof on record that the supplementary list had been supplied to the learned counsel. The learned counsel also referred to Mirza Munawar Beg v. Mst. Hassan Bibi 1981 S C M R 160 where the dismissal order was set aside just for the reason that the absence of the learned counsel was for sufficient cause, where his full name had not appeared in the cause list.

5. The learned counsel for the respondent has contested this application. It is argued by him that as a supplementary list had in fact been issued, it was the duty of the counsel to have made arrangements for its collection, from the Bar Association and the mere fact that the Bar Association did not supply it to him would not entitle him to the relief.

6. After hearing the learned counsel, we find that the case had in fact been fixed by way of a supplementary list. There is no proof that the list had been supplied to the learned counsel. The presumption of supply of a cause list by the Bar Association can be made, with regard to weekly or daily lists but not the supplementary ones. We, therefore, rely on the case of Messrs Zeenat Textile Mills Ltd. v. The Government of the Punjab through the Secretary, Department of Labour and 3 others 1981 S C M R 770 referred to above and restore this case to its original number, after setting aside the order of dismissal and the refusal to restore it.

7. The learned Judges of this Court while admitting this appeal had directed as under:-

"Notice with information that if the writ petition is restored then it will be heard on merits on the same date unless any good reason was shown to the contrary."

We, therefore, asked the learned counsel to argue the main case on its merit, which they did.

8. Briefly, the facts are that Property No. W-II-5-S-27 Gurunanak Bazar, Shish Mahal Road, Lahore, was transferred to respondent No.3 Muhammad Abdullah against his Form C.H. on 1st February, 1960. Respondent No.3 had entered into an agreement of association with Muhammad Shafi respondent No.1. It was written on Rs.2 non-judicial stamp-paper and was filed before the Deputy Settlement Commissioner. He accepted it and directed that P. T. O. and appendices be issued in their favour.

9. On 20th April, 1960, respondent No.3 made an application to the Deputy Settlement Commissioner in the following words:-

Respondent No.3 made another application also.

10. The two applications were commented upon by the Deputy Settlement Commissioner who recommended, on 15th October, 1966, that the deed of association be cancelled, as it did not bear the requisite stamp duty and had not been duly attested by an Oath Commissioner or a Magistrate. He however, noted that the agreement had been entered before the instructions were prescribed. The matter came up before the Additional Settlement Commissioner who vide his order, dated 16th November, 1960, approved the proposal of the Deputy Settlement Commissioner.

11. Feeling aggrieved, respondent No.1 filed an appeal on 3rd March, 1961. Later, on 30th August, 1961 he withdrew it to file a revision petition as the order having been passed by the Additional Settlement Commissioner, no appeal would be competent. During the pendency of appeal the respondent No.3 entered into an agreement of association with the present appellants surrendering the entire house to them. It was duly approved by the Deputy Settlement Commissioner on 27th July, 1961 and a P.T.O., for the full house also issued. The appellants paid the entire transfer price and were granted a P . T . D. , on 17th May, 1963.

12. Respondent No.1 also filed a revision petition. It is. stated by the appellants in para. 9 of the writ petition that they came to know of it through respondent No.3. The matter came up before the Settlement Commissioner on 29th April, 1964, when he approved the earlier deed of association, declared the later one to be void and restored the original P.T.O. It is against that order that the writ petition had been filed.

13. It is contended by the learned counsel that as the deed of association had been entered, in violation of para. 6 of the instructions, dated 13th February, 1960, inasmuch as that it was neither on a Rs.4 stamp paper nor attested by an Oath Commissioner or a Magistrate, it could not have been approved by the Deputy Settlement Commissioner, on 1st February, 1960. The- contention of the learned counsel for the respondent is that the deed of association had been entered into at a time when the instructions relied upon by the appellant had not yet been enforced. He further stated that as under the ordinary law then prevailing an agreement could be entered into on a Rs. 2 stamp paper, without any attestation, it was validly approved by the Deputy Settlement Commissioner. He also relied on the contents of the application reproduced above to say that the respondent No.3 did voluntarily enter into that association. He further states that the omission with regard to the stamp fee etc. has already been supplied, under the orders of Settlement Commissioner.

14. After hearing the learned counsel for the parties we find that respondent No.3 did never deny the agreement and execution of the deed of association. This is also clear from the contents of the application reproduced above. The basis of fraud or whatever else was there, appears to be that respondent No.1 had taken possession of a portion more than what was due. It was, therefore, something subsequent to the agreement. The agreement and the order of the Deputy Settlement Commissioner, were also acted upon and P.T.Os., issued to the parties. The Settlement Commissioner had further observed that respondent No.1 who was given possession of his portion had spent a sum of Rs.10,000 and added 3 rooms, two baths and 2 latrines. The appellants on the other hand, entered into the deed of association when the matter was sub judice. It was, therefore, a lis pendens and the appellants cannot complain if the decision had been made against them.

15. The contention of the learned counsel that they have not been heard is also not valid. As stated in para. 9 of their writ petition, the respondent No.3 was a party in the revision petition filed by respondent No.1. The Settlement Commissioner was conscious of the second deed of association and he expressly declared it void. In the circumstances, it is presumed that tie must have either heard the petitioners or provided them with an opportunity to do so. It is also presumed that the petitioners would have been informed by the respondent No.3. At any rate, the petitioners and the respondent No.3 entered into the association while the appeal of the respondent No.1 was pending. They, therefore, took a calculated risk knowing that they would be bound by any decision that may be made. Further, no prejudice is shown to have been caused to them, in the hearing before us. The reasons given by the Deputy Settlement Commissioner and the Additional Settlement Commissioner, to cancel the deed of association, were also not valid as no such requirements were there, on 1st February, 1960, when Deputy Settlement Commissioner accepted the said deed. In fact some other instructions were then in the field, as is clear from the memo. dated 23rd October, 1959 (See page 392 of the new official Manual of Settlement) and they did not lay down any procedural requirements. Again, the objection that no deed of association could be executed, before the transfer, is also not valid in view of the case of Muhammad Sharif 1981 SCMR 886.

For the reasons stated above, the Letters Patent. Appeal has no merit. It is, therefore, dismissed with no order as to costs.

H . B. T. /F-11/L Appeal dismissed.

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