1. NASIM HASAN SHAH, J.-This petition for leave to appeal is directed against the judgment dated 20th December, 1980, whereby the appeal fled by the petitioners before the High Court, Lahore was dismissed by a learned Single Judge thereof.
2. The relevant facts are that the petitioners were allotted the property in dispute in lieu of the property obtained by them in India vide Notification No. 1 (1968) Auqaf/69 dated the 15th January, 1970, issued under section 6 of the West Pakistan Waqf Properties Ordinance, 1961. The Chief Administrator of Auqaf took over and assumed administration, control, management and maintenance of the property in dispute treating it to be a Waqf property. This notification was published on 11-4-1970. The petitioners filed a writ petition on .29-4-1970 before the West Pakistan High Court, Lahore to challenge the above notification and the writ petition was admitted to a regular-hearing on 5-5-1970 and it was, inter alia, observed in the order of admission as under:-- "Learned counsel for the petitioner has submitted that although section 7 of the West Pakistan Waqf Properties Ordinance (XXVII of 1961), confers upon a person claiming any interest in Waqf Property in respect of which a notification has been issued under the Ordinance the right to petition to the District Court within 30 days after publication of the notification, the law does not provide for the hearing of the beneficiaries of a Waqf Property the taking over of which is proposed. Learned counsel has submitted that there is nothing to the contrary in the Ordinance either. He, therefore, infers that since the rule of natural justice that a person shall not be condemned unheard, has not been specifically excluded in the case of properties proposed to be taken over under then aforesaid Ordinance, persons affected have the right to be heard before the property is taken away. This point requires consideration. Admit. Notice."
3. The aforesaid writ petition was heard along with six other writ petitions, namely, Writ Petitions Nos.
4. 1534/69, 551/69, 1617/69, 748/70 and 219/71 by another learned Division Bench of the Lahore High Court. Arguments were heard in Writ Petition No. 1534 of 1969, and the order passed therein was applied to the other writ petitions including that of the petitioners and they were all dismissed on 17-3-1979 (on which date the petitioner's counsel was even not present) on the ground that since another adequate remedy under section 7 of the Ordinance was available before the District Judge, the petitions were liable to be dismissed.
5. The petitioners after coming to know of this order filed a petition before the District Judge, Sheikhupura on 28-5-1979, who dismissed the same in limine on 5-6-1979 on the ground of limitation. The petitioners then filed an appeal in the High Court (F. A. O. No. 311 of 1979) which came up for hearing before a learned Single Judge, who agreed with the order of the District Judge that the petition was liable to be dismissed as being barred by time, observing that no ground existed under section 14 of the Limitation Act for condo nation of delay in filing the petition. Hence this petition for leave to appeal.
6. Mr. Zainul Abidin, learned counsel for the petitioner has inter alia brought to our attention that along with the writ petition filed by the petitioners one Shabrati and others had also filed a writ petition (W. P. No. 219/71) to challenge the notification of acquisition, which in their case wag issued on 28-8-1970 and that this petition was heard along with the writ petition of the petitioners on 17-3- 1979 along with another analogous petitions and dismissed by a Division Bench of the High Court on the said date (17-3-1979) on the ground that a more beneficial remedy was available by way of petition to the District Court. The aforesaid Shabrati and others after the dismissal of the writ petition moved petitions in the Court of the learned District Judge, Sheikhupura, along with application for condo nation of delay on the plea that they had been prosecuting the other proceedings (namely, the writ petition in the High Court) in good faith. The learned District Judge, however, as in the case of the petitioners also rejected their petition on the ground of limitation holding that there was no idea of involving the extraordinary jurisdiction of the High Court when a clear remedy of a petition before the High Court was available. Against the said order, the said Shabrati etc. Filed an appeal (F. A. O. No. 340/79) and therein it was contended that the order of the learned District Judge dismissing the petition on the ground of limitation was not correct. The learned Judge in the High Court was of the view that the learned District Judge had not properly appreciated the action of filing the writ petition and the said action could not be regarded a mala fide i.e. Not done in good faith. Consequently, he accepted the appeal and set aside the order of the District Judge and remanded the case back to him with the direction that he should give the parties an opportunity of proving whether there were sufficient reasons for condonation of delay and pass fresh orders on the question, of limitation after recording the evidence of both the parties it was further observed that it shall open to the District Judge to call upon the respondent to file written statement, frame the necessary issues and treat the question of limitation as a preliminary one. The same view was taken by the same learned Judge in the High Court with respect to another F. A. O. Filed by one Khushi Muhammad and others who had also filed writ petition in similar circumstance (W. P. No. 748/70) which was dismissed along with writ petition of the petitioners on 7-3-1979.
7. Mr. Sher Zaman Khan, learned counsel for the respondents (caveators) has informed us that no appeal has been filed by Auqaf Department against the judgment in the aforesaid two matters.
8. From the foregoing, it is apparent that on the same point, namely, whether the failure to file a petition under section 7 of the Waqf Ordinance and instead the filing of a writ petition to challenge the notification of acquisition can be deemed to be a step taken in good faith or not making the provisions of section 14 of the Limitation Act applicable differing opinions are entertained by the two Benches of the Lahore High Court. Mr. Sher Zaman Khan in these circumstances conceded before us that he would cave no objec--tion if the impugned order of the High Court in the instant case is set aside and the case remanded on the same terms as the other two matters have been remanded by the High Court (in the cases of Shabrati and Khushi Muhammad).
9. We would, therefore, convert this petition into an appeal and allow it in terms that the impugned judgment of the High Court dated 20-12-1980 will be set aside and the case remanded to the District Judge, Sheikhupura, who shall frame an additional issue on the question of limitation as directed in similar cases decided by the High Court referred to above and proceed to dispose of the petitioners' petition as expeditiously as possible. It is further clarified that the observations of the High Court in its order dated 20-12-1980 on the question of limitation are not to influence the learned District Judge, who will decide the matter uninfluenced by them.
10. The appeal is allowed in the above terms with no order as to costs.