This is application under Section 12(2) read with Order 41 Rule 21 of the Code of Civil Procedure, 1908 qua judgment of this Court dated 9.7.2002 whereby W.P. No, 117-R/1998 was accepted.
2. The dispute relates to Property No, IV-9-R-154, Railway Road, Kasur, which was transferred on 5.12.1959 by the Deputy Settlement Commissioner to Chulam Mustafa the predecessor-in-interest of the writ petitioners (hereinafter to be referred to as petitioners). In the judgment dated 9.7.2002, the relevant facts borne out :rom the record were noted. Muhammad Siddique and Muhammad Sardar (Respondents No, 4 and 5 in the writ petition) since were not represented on the date of hearing in the petition, the same was heard ex-parte. This application under Section 12(2) with Order 41 Rule 21 of the Code of Civil Procedure, 1908 for rehearing of the matter has been filed by the legal heirs of the said respondents (hereinafter to be referred to as the respondents).
It may be observed that against the judgment dated 9.7.2002, I.C.A. No, 620/2002 was filed by the Custodian, Enemy Property of Pakistan, etc. which appeal was dismissed by a learned Division Bench of this Court on 15.1.2003 observing that the appellants had no locus standi to maintain the said appeal. The matter ended with that so far as the official parties were concerned as it was not assailed further. The present application was filed by the successors of Muhammad Siddique and Muhammad Sardar on 13.9.2004 pleading that Muhammad Sadiq Bhatti, Advocate, Kasur, who had to represent them, had no notice of the date of hearing of the writ petition. Notice in the application was issued on 21.9.2004. The application was dismissed for non-prosecution on 24.1.2005, which, however, was restored vide order dated 21.9.2005. On 14.11.2005, the application was dismissed observing that since the judgment (9.7.2002) in the writ petition was assailed in I.C.A. No, 620/2002 which was dismissed by the learned Division Bench on 15.1.2003, the application under Section 12 (2) of the Code of Civil Procedure, 1908 did not lie before this Court. That order was assailed by the present applicants (respondents in the writ petition) through I.C.A. No, 42/2006 which was accepted on 5.9.2007 with the observation that C.M. No, 2297/2004 shall be deemed pending and to be decided accordingly. This is how that the matter is being heard now.
3. The case was fixed for 25.11.2008, it was heard partly and was adjourned for today (26.11.2008).
The learned counsel for the applicants contends that as the petitioners had not filed any form for shops, they could not have been transferred the same on C.H. Form; that at one time they had withdrawn the transfer price and thus order of Deputy Settlement Commissioner dated 5.12.1959 against which they had filed appeal in the year 1962 would not clothe the said order of Deputy Settlement Commissioner with finality. According to him, being sitting occupants of the shops, they were entitled to its transfer. The learned counsel for the writ petitioners makes reference to the judgment of the Hon'ble Supreme Court of Pakistan in The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (PLD 1964 Supreme Court 616) and Mst. Hafizan Mohsan Atta and 4 others v. Custodian of Enemy Properties and 3 others (PLD 1983 Lahore 342) as maintained with certain modifications by the Hon'ble Supreme Court of Pakistan in Abdul Rauf and others v.
Mst. Hafizan Mohsan Atta and others (1986 SCMR 1893). According to him, since the whole of the property which was indivisible had been applied for by the predecessor-in-interest of the petitioners, it was rightly transferred and the consequential P.T.O. had never been cancelled.
According to him, while deciding the writ petition the Court had taken correct view of the matter in order dated 9.7.2002 and nothing new has been brought forth even now during the course of hearing of this application.
4. The salient features of the case are that Ch. Ghulam Mustafa the predecessor in interest of the petitioners was transferred Property No, IV-9-R-154 Railway Road, Kasur as a whole considering that the same was indivisible, by the Deputy Settlement Commissioner vide order dated 5.12.1959 for the evaluation price was Rs, 20,320/-. PTO was issued to him, schedule of property described therein was "shops and house No, IV-9-R-154". Being dissatisfied with the assessment of the price he agitated the matter and revised appendix-X was issued to him for Rs, 15,400/- on 14.12.1960. He is stated to have paid the price through Compensation Books and Association Deeds. Since the property belonged to the Punjab Co-operative Bank, dispute as to the status of such properties and power of Settlement Authorities to deal with the same had arisen which eventually reached the Supreme Court of Pakistan. The matter was decided vide judgment dated 29.4.1964 reported as The Punjab Co-operative Bank Ltd Vs. The Republic of Pakistan and 128 others (PLD 1964 S.C. 6161). it was inter alia held that the transfer orders issued for such like properties would not be maintained and must be set aside. Later on notification dated 3.9.1968 was also issued by the Central Government that the properties and assets of the Bank being enemy property shall vest in the Custodian of Enemy Property for Pakistan. It may be observed that Allah Ditta the predecessor in interest of Respondent No, 4 and Muhammad Sardar Respondent No, 5 had also applied for the transfer of shops but were unsuccessful. The transfer of the property as a whole in favour of late Ghulam Mustafa had remained intact. As mentioned above, since the property had vested in the Custodian of Enemy Property, for the disposal thereof a letter dated 21.3.1972 was issued by the Government and then Memo dated 8.3.1979 by the Custodian of Enemy Property. A notice dated 10.10.1983 was issued by the Assistant Custodian intimating that the matter regarding transfer of the portion of the above property was being considered and that you should arrange payment of a sum of Rs, 14,928.66. Similar intimations were statedly issued to the occupants of the shops. Late Ghulam Mustafa challenged the same through W.P. No, 406-R/83. The said petition was disposed of vide judgment dated 10.2.1992 remitting the matter to the Custodian of Enemy Property to decide it in accordance with law by affording opportunity of hearing to the parties. It is in this background that order dated 30.5.1998 was passed by the Additional Custodian of Enemy Property whereby he took the view that the claim of late Ghulam Mustafa qua the residential portion of the property could only be classified under category "B" of the Memo dated 8.3.1979 and the shops in occupation of Muhammad Siddique son of Allah Ditta, legal heirs of Fazal Ellahi and Muhammad Sardar could fall in category "C" of the said Memo. He ordered the transfer of the property in that manner.
5. It may be kept in view that it was the judgment of Hon'ble Supreme Court Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others (PLD 1964 Supreme Court 616) which rendered the transfer of such properties as illegal and memorandum dated 21.3.1972 and of 8.3.1979 were issued. The same came up for consideration by the learned Division Bench in Mg. Hafizan 's case (supra) and the judgment is quite instructive on the subject. The legal position as to the construction, import and legal efficacy of letter dated 21.3.1972 and Memo dated 8.3.1979 is quite clear and plain. Late Ghulam Mustafa had since been transferred the whole of the property and the PTO was also issued to him for the whole of it, that matter became final qua all concerned. In the earlier writ petition i,e, W.P. No, 406-R/83 in which the respondents were also parties, while referring to the transfer order dated 5.12.1959 it was observed that the property was indivisible and was transferred as such to late Ghulam Mustafa which had attained finality. Despite pendency of this writ petition for long, no reply or written statement was filed by any of the respondents to controvert the assertion of the petitioners. It is thus to be taken as correct that transfer order dated 512.1959 passed by the Deputy Settlement Commissioner had become final and divisibility or otherwise of the property having already been determined by the Deputy Settlement Commissioner, the Additional Custodian of Enemy Property could not reopen that aspect of the matter.
It may not be lost sight of that for invoking Section 12(2) of the Code of Civil Procedure, 1908 qua a judgment, decree or order, it is to be shown that the same was result of fraud, misrepresentation or want of jurisdiction. On rehearing of the matter and consideration of the material on record thoroughly, I have not been able to discover that there was any, element of "fraud" or "misrepresentation" in the matter or there was any "want of jurisdiction" of this Court. The provisions of Section 12 (2) of the Code of Civil Procedure, 1908 are thus not attracted nor there is any infirmity in the judgment dated 9.7.2002 on merits of the matter. In the circumstances, the contentions of the learned counsel for the applicants loose their significance".
6. In the context mentioned above, the view taken by this Court in judgment dated 9.7.2002 holds good even now as during the rehearing of the matter again nothing substantial has been brought forth which could impair or erode the factual or legal efficacy of the same.
The application stand dismissed accordingly.