SHAFI-UR-REHMAN, 1: -Leave to appeal was granted in four Civil Appeals to examine a common question of law arising therein, namely, whether the con 4tmed allottees ltndef Rehabilitation Scheme could maintain a review petition before the Custodian of Evacuee Property and in the alternative whether the Custodian could act sun Motu in the matter even if the allotteo had no locus standi.
2. Syed Saifuddin Shah, predecessor-in-interest of the respondents 1 to 4 filed four separate - applications in the year 1954 before -the Custodian, Evacuee Property, all of them being under section 18 of Pakistan (Administra--petition of Evacuee Property) Ordinance, 1949; .Thtoughtheiiih6daimed owner--ship in extensive (2214 kanals, 12 marlas) agricultural land in village Faizullah--pur, District Multan. The land covered by these. Applications were of two types.
There was land of which the applicant was the recorded co-sharer along with the evacuees. The other category comprised land of which the applicant was in possession as, a non-occupancy tenant. With regard to both the categories his claim was the same, vii., continuous hostile and adverse possession against the evacuees for over forty years before 1947. The Deputy Custodian enquired into the matter for about five years and ultimately came to the conclusion that "the petitioner has not been able to furnish solid docu--mentary evidence to establish his right of adverse possession" and rejected the four applications.
3. On appeals being filed the Custodian, set aside the order and called for a report from the .
Additional Custodian ' after recording evidence: The Additional Custodians made detailed report in respect of each application and negatived the claim of the applicant.
4. The Custodian, Evacuee Property after hearing the parties allowed all the four applications holding that the evacuees had no interest as Syed Saifuddin Shah had adversely prescribed title to the property.
5. Review Petitions were, then filed before the Custodian by a number of persons claiming to be allottees of the property in respect of Which such a declaration had been obtained by Syed Saifuddin Shah. The .Specific ground on which the review petitions were based'w6 as follows :-- "That the respondents played fraud upon the Court in suppressing most material facts pertaining to the property in question " and thereafter they proceeded to specify the maxorial documents sup--pressed and their effect on the claim of Sxed Saifuddin Shah.' The same Custodian who had passed the order allowing the claim of Syed Saifuddin Shah admitted all the review petitions ,and ultimately his successor on 1.12- 1962, reviewed the earlier order and setting it aside -restored the order of the Deputy Custodian dated 5-9-1959 whereby the claim of Syed Saifuddin Shah was rejected.
6. It is of some importance to 'note the specific ground on which the review petitions were allowed.
Review Petition No. 110/LO was allowed as the ground that material earlier suppressed and later brought to notice established that.-- "his possession had been broken in the year 1935 and thereafter he tried to get back possession of the land by filing a regular civil suit but did not succeed as is clear from the judgment dated 25-1- 1937."
The other Review Petition (No. 111 of 1960) was allowed on the ground that "if these facts had been brought to the notice of Mr. Justice Masud Ahmad, the then Custodian, he .Wpuld not have accepted the plea of Syed Saifuddin that be had remained in possession of this land for more than 12 years."
The third Review Petition (No. 112 -of 1960) was accepted on the ground that "Syed Saifuddin Shah did not bring any of these matters to the notice of Justice Masud Ahmad when he had accepted the appeal. If these facts bad been brought to his notice I am quite sure that he would not have accepted the plea of Syed Saifuddin Shah of having remained is adverse possession of the land for more than 12 years."
The fourth Review Petition was also accepted on the ground that "if these matters had been brought to the notice of the learned Custodian Mr. Justice Masud Ahmad, he would not have accepted the appeal."
7. Syed Saifuddin Shah invoked the Constitutional jurisdiction of the High Court and filed four Constitutional petitions challenging-the four review orders passed by the Custodian. He did not implead the applicants who had successfully sought and obtained the review of the Custodian's orders. The learned Judge in the High Court accepted the petitions with costs on the sole ground that the allottees had no locus standi as they were "on no better footing than the informant in Muhammad Siddique's case (PLD1965SC123The merits of the case were not touched at all.
8. The learned counsel for the appellant, the Custodian, Evacuee Property has sought to maintain these appeals on three independent grounds. Firstly, it has been contended that the land stood allotted after the claim of Syed Saifuddin Shah was dismissed by the Deputy Custodian and before it was allowed by the Custodian. As allottees of :and treated as evacuee the applicants seeking review of the order of the Custodian had a locus standi, they being covered by them "protective power---of the Custodian and having substantial interest in the proceedings. Secondly, it is contended that the same Custodian having admitted the review petitions which were filled well in time even if the applicants are found to be lacking the Locus standi could he treated as suo motu and the order protected on that ground. Unaffected by the nature of interest possessed by the applicants. Finally, it has been con--tended that all the review petitions were based on allegations of fraud sad misrepresentation which were indeed found established and made the basis for review. The Custodian had the inherent and abiding power a: held in Chief Settlement Commissioner v. Muhammad Fazil Khan (PLD1975SC331to recall that order and substitute it by a more appropriate order, This ground according to the learned counsel, was not available to the appellant earlier to the decision in Muhammad Fazil Khan's case.,
9. The learned counsel for the contesting respondents has on the outer band contended that the applicants seeking review had no locus stands because they had received allotments if at all in violation of the statuts quo order when the property had not gone in the compensation pool on account of litigation before the Custodian and principle of lis pendens fully covered them as the rehabilitation authority was effectively represented in the proceedings. They were, according to the learned counsel, neither a necessary nor a proper party and were for that reason not impleaded as party in the proceedings in the High Court. Their position, it is said, was no better than that of an informer having no right in the property and they were utter strangers to the proceed--ings.
According to the learned counsel the suo motu powers were not available as from 7-6-1962 in view of an amendment introduced by Ordinance XLIII of 1962 as considered and interpreted in Khushiram Atmaram Jaisinghanl and others v. Custodian of Evacuee Property West Pakistan Karachi and others (PLD 1965 SC 453). Finally, it has been contended that though Syed Saifuddin Shah would have been well-advised to refer to the civil litigation in respect of the property but his omission to do so did not affect the decision by the Custodian nor such omission on the part of Syed Saifuddin Shah could be equated as fraud or by itself made a ground for recall of the order.
10. The learned counsel for the contesting respondents is on sound footing in asserting on the basis of decision in Khushiram's case that the power of sun motu revision was not available and even the pending proceedings were not saved after the amendment by Ordinance XLIII of 1962.
11. The power of appeal and review was conferred by section 43 of Pakistan (Administration of Evacuee Property) Act, 1957 and the relevant provision was as follows :- "43.-(I) Any person aggrieved by a final order under section 20, section 22 or section 23 passed by a Deputy or Assistant Custodian may prefer an appeal to the Custodian."
"43.--(6) The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation .Authority, review his own order or an order passed by his predecessor in office on any ground whatsoever as the justice of the case may require Provided that no final order passed on or before the seventeenth day of November, 1956 declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed."
By Ordinance LXIII of 1962 as from 7th June 1962 section 43(6) was substituted as follows :- "(6) Clerical or arithmetical mistakes in any order passed by any Custodian under this Act or errors arising therein from any accidental slip or omission may, at any time be corrected by the Custodian concerned or his successor-in-office.'
The saving clause (section 4) of this amending Ordinance provided as follows "It is hereby declared that the amendment of section 43 of the said Act shall not affect review applications pending immediately before the commencement of this Ordinance on which proceedings have before such commencement started or which relate to such mistakes or errors as are referred to in subsection (6) of that section as substituted by this Ordinance, and applications on which no proceedings have started or which do not relate to such matters shall forthwith abate."
12. The learned counsel for the respondent has relied upon the decisions of this Court in Ataullah Malik v. The Custodian of Evacuee Property (PLD 1964 SC 236) ; Syed Abbas A.I and others v.
Vishan Singh and others (PLD 1967 SC 294) ; Pakasia Paint Mills Ltd. v. Dr. Abdur Rauf and others (1970 SCMR 739) ; Tab Din v. Razia Begum PLD 1971 SC 97) and Ehiram A.I and others v.
Custodian, Evacuee Property (1975 SCMR 431to contend that allottees are mere licensees, having no vested right in the property and are not entitled to be heard in such proceedings before the Custodian. In none of these cases the specific question of the allottees' right to move an application under section 43(6) was in issue. Such a right could subsist consistently with the precedents quoted by the learned counsel for the respondent.
13. In the case of H. M. Saya & Co. v. Wazir A.I Ltd. (PLD 1969 SC 65) this Court laid down the broad principles under the Civil Procedure Code in the follow--ing two passages :- "A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be, understood to amount to prohibition. The Court ought not to act. On the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every pro--cedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders.
These provisions do not in terms say who is entitled to prefer an appeal. The Code, however lays down that it is the decree or the order that .Has to be appealed against. If the decree or order appealed from adversely affects a person he Should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding."
"The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of In re : (B. An Infant) (1958) 1 Q B 12, 17 on which Mr. Dingoomal has relied lends support to the above proposition.
In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure."
14. Another principle relevant to the question under examination finds expression in Muhammad Hussain and others v. Walayat Shah and others (PLD 1958 Lah 526). It was observed that "As pointed out in P. Animal v. State of Madras AIR 1953 Mad. 485 it has been the consistent practice of the English Courts to allow a person not a party to a suit to file an appeal with the leave of the Court if his interests are affected by the decree. The only distinction between the right of appeal of a person affected and that of a party is that in the case of the former the leave of the Court is necessary. To the same effect is the decision in AIR 1949 Bom.
141. I have no doubt that in the case of proceedings under Order I, rule 8, the Court would not refuse leave to the person who is represented by another and who is substantially a party and is bound by the decision."
15. In Ataullah Malik's case such a representation of interest was in fact recognized in the following words :- "Such a right as he possessed as an allottee was derived from, and was held under the title which was vested in the Custodian, and which it was the duty of the Custodian under the law to protect within the meaning of section 20 aforesaid."
16. The strict principles of law governing the situation having been explained, we have now to advert to the special jurisdiction of the Custodian and the specific power of review, conferred on him. In the Pakistan (Administration of Evacuee Property) Ordinance of 1949, the power of review did not envisage an application by any one. It provided that the "Custodian or Additional Custodian marl, within the prescribed period and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order". The amplitude of this power was considered in Sahibrai v. Custodian of Evacuee Property (PLD 1957 SC (Pak.) 63in the following words :- "It will be seen that the substantive law does not require that for the purposes of review, a Custodian or an Additional Custodian should be moved by any party in that behalf. This was not to be expected, since these authorities do not exercise purely judicial powers. It will be evident from the fact that all evacuee property vests in the Custodian by virtue of section 6 of the Ordinance, that the power which he and his substitutes and subordinates exercise is essentially an executive power, for carrying out the purposes of the law, namely, the ascertainment, seizure and administration of evacuee property. Bearing in mind the conditions which resulted from the sudden shifts of population between Pakistan and India which occurred in the period immediately following the Partition and that for the purpose of the exercise of the Custodian's powers, evidence of title to abandoned properties was not always readily available, it must necessarily be assumed that the pro--vision for review in section 36 of the Ordinance was intended to cover review by the Custodian acting sun mote, on the basis of information coming to his notice otherwise than from parties directly interested in the properties in question. It was, therefore, natural that in prescribing limitation for the exercise of the Custodian's powers, provision should be thought necessary for .a case in which the Custodian might have to act on his own initiative."
17. In the law that came to be enacted in 1957 (as reproduced) a pro--vision was made for review "on application made to him in this behalf within the prescribed period" in addition to review "on his own motion at any time". No qualifying words were used for the applicant, as for example a party, an aggrieved person or a party in interest. This was in contradistinc--petition to the expression in the opening subsection of that very section i.e. "Any person aggrieved by a final order" for the purposes of appeal. All the review applications were filed within time. The applicants did not have a vested or a juristic right in the property allotted to them, nonetheless they had '"sufficient interest" in the proceedings and the property and could file applica--tions for review. They satisfied the requirements of the law and their applications had been entertained and dealt with by an authority having jurisdiction.
18. The grounds on which the review applications were allowed make but a case of suppression of material facts and misrepresentation amounting to fraud. This is clear from the narration of the facts, from the documents referred to by the Custodian and from the conclusions drawn by him.
This Court has in the case of Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331recognized in all Courts and Tribunals a power transcending the statutory power of appeal, review and revision to sun motu recall an order obtained from it by fraud. Keeping in view the taint attach--ing to the earlier order of the Custodian, a power could not be denied to him to recall that order irrespective of the, locus standi of the applicant.
19. The case of Muhammad Siddique relied upon by the learned Judge for denying the review petitioners' locus, stand! Is distinguishable on mere , than one ground. In the first place, the jurisdictional fact itself was absent to so far as the transfer sought to be reopened was neither illegal nor ,irregular. Secondly, the informer had not filed any formal proceedings in the nature o1 a revision or review petition. He had laid .Information with the Enforcement Staff and the proceedings had been initiated by the Enforcement Staff. Thirdly, as a fact it was held that "in no case in proceedings purely under section 20 of the Act, a transfer to the alleged informant would be possible". In the appeals before us the allotments already made get protected on successful outcome of prayer of review of the order of the Custodian: Besides. The case was not one where without showing awareness of the grounds'on which review was allowed by the Custodian, a decision could have been given on the supposed absence -of locus standi of the review petitioners.
20. 'In view of the foregoing discussion, we accept all the four appeals with" costs, set aside the impugned order of the High Court resulting in the dismissal of the Constitutional petitions and reaffirmance of the Custodian's order on review petitions.