' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order, dated 22-9-2000 whereby review application filed on behalf of petitioner was rejected by the learned Single Judge of the Lahore High Court (Multan Bench) in chambers by upholding his order dated 26-8-1999 whereby writ petition preferred on behalf of Mst. Nuzhat Jehan (respondent) was accepted.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect that "the dispute subject-matter of this writ petition started in the year 1962, when the plot in question was put to auction and was in fact auctioned to Mst. Zainab, mother of the petitioner. This auction was challenged in the same year in the Settlement hierarchy and ultimately the auction was found to be valid by the Settlement Authorities. The matter also came up before this Court in Writ Petition No,17-R of 1964, which was dismissed on 4-5-1967 but the auction was kept intact. In the year 1971 respondent No2. Filed a form under the Settlement Scheme No,8 for transfer of the plot and the Deputy Settlement Commissioner obliged him by transferring the same to him on 19-3- 1971. While the application of respondent No,2 was being preceded one Muhammad Sharif also came in the field and filed an application for transfer. His application was dismissed by a Deputy Settlement Commissioner on 20-4-1971. Muhammad Sharif filed an appeal which was allowed by an Additional Settlement Commissioner on 3-5-1972 and the matter was remanded. The Deputy Settlement Commissioner proceeded to transfer the plot to respondent No,2. In these latter proceedings, the said Mst. Zainab was neither a party nor was she issued a notice. She filed an application for cancellation of the said transfer claiming to be the auction-purchaser of the plot.
This application was dismissed by the Deputy Settlement Commissioner on 14-4-1978. Meanwhile, the said Mst. Zainab executed an agreement of association in favor of the present petitioner, her daughter. The petitioner challenged all the said orders by filing Writ Petition No,122-R of 1979, which was decided by this Court on 9-10-1991. The writ petition was allowed and the matter was remanded to the Notified Officer for decision in accordance with the direction contained in the said judgment. Respondent No,2 challenged the said order by seeking leave to appeal in the Supreme Court of Pakistan, which was refused on 2-12-1992. Resultantly the matter was taken up by the Notified Officer, who held the auction in favor of the said Zainab to be valid and consequently cancelled the transfer in favor of respondent No,2 vide order dated 11-1-1993. A new round was started by respondent No,2 by filing a civil suit challenging the said order of the Notified Officer and also the auction made in favor of Mst. Zainab as far back as on 4-4-1962. The petitioner upon being served put in appearance and filed an application under Order VII, rule 11, C.P.C. Insisting that in view of the said judgment of this Court, upheld by the Supreme Court, the present suit cannot proceed. The application was resisted by respondent No,2. The learned trial Court proceeded to dismiss the application on 17-4-1995 and a revision filed by the petitioner was dismissed by a learned Additional District Judge, Multan, on 22-1-1997." Being aggrieved a Writ Petition bearing No,7-R of 1997 assailing the order of learned Additional District Judge, dated 22-1-1997 was filed which has been accepted by means of order, dated 26-8-1999 and application for review assailing the same was dismissed vide order impugned, hence this petition.
3. Heard Mr. Shaukat Ali Mehr, learned Advocate Supreme Court on behalf of petitioner who mainly argued that legal and factual aspects of the controversy have not been examined in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that the errors concerning facts of law floating on the surface of record were ignored without any rhyme or reason and instead of rectification the application for review has been dismissed without any lawful justification. It is also contended that the learned Judge in Chambers has erred while exercising powers under Order VII, rule 11, C.P.C. At premature stage when the controversy was yet to be decided by the learned Civil Judge on merits. It is contended that the order passed by learned High Court in Writ Petition No,122-R of 1979 and judgment of this Court, dated 2-12-1992 were misinterpreted and misconstrued.
4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the order dated 17-4- 1995 passed by learned Civil Judge, order, dated 22-1-1997 passed by learned Additional District Judge, order of High Court in Writ petition No,122-R of 1979 dated 2-10-1991, order of this Court, dated 2-12-1992, order, dated 26-8-1999 passed in Writ Petition No,7-R of 1997 and order impugned.
This case has its own chequered history. The plot in question remained bone of contention between the parties since 1962 when it was put to auction and purchased by Mst. Zainab who floated the highest bid (Rs,17,000) validity whereof was confirmed by the concerned Settlement Authorities. The rival claimants namely Umer Khan and Muhammad Sharif in spite of invoking the jurisdiction of various forums could not succeed when Muhammad Saleem (petitioner) emerged at the scene and succeeded in getting allotment of the plot in question under Settlement Scheme No,VIII vide allotment order, dated 19-3-1971 passed by learned Deputy Settlement Commissioner. It is worth mentioning here that neither the Deputy Settlement Commissioner was informed that plot in question was not auctioned in favor of Mst. Zainab nor she was associated in the proceedings which culminated into the allotment of plot in question in favor of Muhammad Saleem (petitioner).
5. A careful scrutiny of the entire record would reveal that the controversy was set at naught by the High Court by means of order dated 2-10-1991, relevant portion whereof is reproduced hereinbelow for ready reference:-- "The submissions have no force. Mst. Zainab Bibi, auction-purchaser, was not associated or heard in the proceedings commenced on the application of respondent No,1 under Settlement Scheme No,VIII. Merely because the Additional Settlement Commissioner erroneously assumed that the plot was resumed as the auction-purchaser perhaps defaulted in payment of the auction money is no substitute of express order to be passed by the competent authority for the confirmation or refusal to confirm the auction. The aforesaid observation made by the Additional Settlement Commissioner in his order, dated 3-5-1972 was based on misreading of the record, as there is nothing on the record that the property was ever resumed after refusal to confirm the auction. In the same manner, the act of putting the property again to auction in the year 1968 was also wholly erroneous having been taken arbitrarily, without adverting to the fact that the confirmation of the auction in favor of the petitioners was never refused and the case was never put up before the competent authority for confirmation or otherwise of the said auction. No act of the Settlement authority so taken could prejudice the right of the auction-purchaser in the property. The argument that an auction-purchaser, in whose favor auction has not been confirmed has no right to maintain a writ petition, is not tenable and the rule laid down in the reported judgment relied upon by the learned counsel for respondent No,1 is not applicable in the facts and circumstances of the case. The auction-purchaser has, at least a right to maintain that a decision should be taken by the competent authority regarding confirmation or otherwise of the auction held in his favor. It has been held by the Supreme Court in Sher Muhammad v. Settlement and Rehabilitation Commissioner 1974 SCM R 506 that the property cannot be treated to be available till such time the confirmation of the auction is refused, therefore, the Deputy Settlement Commissioner and the Settlement Authorities were vested with no jurisdiction to transfer the property under Settlement Scheme No,III under which only those properties could be transferred which were available. The argument that the auction-purchaser failed to .Deposit 1/4th of the amount offered in the highest bid is not relevant at this stage because none of the officers of the Settlement Department has given finding on this aspect of the case.
' For the foregoing reasons, the orders impugned in this writ petition are not sustainable. This writ petition is accepted. The order dated 14-7-1972 passed by the Deputy Settlement Commissioner for the transfer of the plot in dispute in favor of respondent No,1 and the P.T.D. Issued in his favor on the basis of the said order, as also the order, dated 15-4-1978 passed by the Deputy Settlement Commissioner dismissing the application of the petitioners are hereby declared to have been passed without lawful authority and are of no legal effect and accordingly quashed."
6. Being aggrieved the petitioner preferred Civil Petition bearing No,38-L of 1992 before this Court assailing the said judgment but leave to appeal was refused and petition rejected vide order, dated 2-12-1992, relevant portion whereof runs as follows:-- "(4) We have examined the record and are of the view that, in the circumstances of the case, non- confirmation of the auction is not a valid ground to deprive the auction-purchaser of the rights in the property. As already observed, soon after the auction she was dragged into a protracted litigation culminating in the High Court's order, dated 4-5-1967; she was never associated with the proceedings as to the transfer of the plot to the petitioner -under Settlement Scheme No,VIII, or the subsequent litigation between him and Muhammad Sharif. It is on the record that the auction file was not placed before the competent authority for perusal and confirmation of the auction. No notice was served on the auction-purchaser and she was condemned unheard. As held by the High Court the act of putting the property to auction in 1968 was wholly illegal and cannot be treated as notice to the auction-purchaser. The property was not available for auction and its subsequent disposal under Settlement Scheme No,VIII in favor of the petitioner was wholly illegal.
The transfer of the plot in his favor is not sustainable in law and has rightly been interfered with by the High Court.
' There is no merit in this petition. It is dismissed and the leave refused."
7. A bare perusal of the relevant portion of judgment passed by learned High Court on 2-10-1991 in Writ Petition No,122-R of 1979 and order of this Court, dated 2-12-1992 would reveal that following points were dilated upon, considered and decided in a crystal clear manner:-
(a) Non-confirmation of the auction cannot be considered as a valid ground to deprive the auction-purchaser of the rights in the property.
(b) Mst. Zainab was never associated with the proceedings initiated under Settlement Scheme No,VIII, which culminated into the allotment of the plot in question in favor of Muhammad Saleem (petitioner).
(c) The relevant record concerning auction of the plot in question in favor of Mst. Nuzhat Jehan was not produced before the learned Deputy Settlement Commissioner who was kept in dark and remained unaware about the fact that plot in question was already auctioned in favor of Mst.
Zainab.
(d) The plot in question was not available for disposal under Settlement Scheme No, VIII as it already stood auctioned in favor of Mst. Zainab.
(e) The approval of plot in favor of Muhammad Saleem (petitioner) was not sustainable being unlawful.
(f) The plot in question could not have been treated to be available till such time the confirmation of the auction was refused by the competent authority.
8. In view of what has been stated above the suit filed subsequently by Muhammad Saleem (petitioner) was not maintainable and has rightly been dismissed under Order VII, rule 11, C.P.C. By the learned High Court. As mentioned hereinabove the controversy has already been set at naught by this Court and the order impugned being well-based and in accordance with the dictum as laid down by this Court in Civil Petition No,38-L of 1992 does not warrant any interference.
' The petition being meritless is dismissed.