' SYED MUHAMMAD FAROOQ SHAH, J.---The listed application under Section 151, C.P.C., filed by the Advocate for the petitioner with supporting affidavit of Mst. Naheed Fatima (Petitioner No, 1) seeks implementation of judgment pronounced in C.P. No, S-574/1965 by learned Single Judge of High Court of Sindh and Balochistan on 19.04.1976, about 33 years before filing the listed application, confirmed by the Hon'ble Apex Court vide judgment dated 16.01.1978 in Civil Petition for leave to Appeal No, K-321/1976 on the following grounds:-- i) That the property bearing No, C.S.No,F/1262/2-3 Hyderabad was included in the earmarking list and drawn in her favour on 09.12.1959, appendix was issued on 21.01.1960 and PTD was issued in her favour on 06.02.1960, who paid the entire transfer price of Rs, 21,600/-. ii) That representations/appeals filed by the private Respondents were rejected but the revisions were allowed' by the settlement authorities; that during pendency of this petition, PTD's dated 02.10.1967 are illegally issued in respect of two portions on the ground floor and transfer order in respect of first floor is not yet issued. However, in the meantime, the settlement laws were repealed.
While explaining the reasons 9f inordinate delay to apply for implementation of judgment of this Court, it is stated by the petitioner that in spite of her best efforts, she could not locate the concerned officers as record was entrusted to District Officer (Revenue). She then moved an application dated 03.01.2009, DEO (Revenue) Hyderabad, sought report from his office, who had also sought opinion from Secretary (RS&EP), Board of Revenue, Sindh, Karachi and subsequently, the DEO (Revenue) Hyderabad has advised the petitioner to seek remedy from competent Court of law, hence the petitioner has approached this Court, by filing the listed application under Section 151, C . P. C .
2. The Respondent No, 3-C filed counter affidavit for self and on behalf of Respondent Nos. 3(K) to 3(G) and 3(I) to 3(K) ti rough which he has stated that the petitioners did not follow up the judgment given in their favour on 19.04.1976 though petitioner No 1 gave Special Power of Attorney on 30.07.1965 to Petitioner No, 02, which was signed in English as the original petition and amended petitions have been signed by the Petitioner No, 2 on his behalf as well as on behalf of Petitioner No, 1 on the basis of Special Power of Attorney, till the date of judgment dated 17.04.1976. It is stated by the said Respondents that the petitioner No, 1 approached this Court for implementation of decision of this Court after thirty three (33) years as on 03.01.2009, Petitioner No, 1 made an application to the District Officer (Revenue), Hyderabad for implementation of judgment dated 17.04.1976, which application was referred to the Secretary (RS&EP) but she was asked to seek legal remedy from the competent Court of law as on 19.08.2009, office of the settlement authorities have become functus officio as per letter dated 13.01.2009 of the Incharge Evacuee Property Branch, Hyderabad. The maintainability of the instant petition has been challenged on the ground of laches as the implementation of judgment passed in 1976 has been sought after thirty three (33) years. Moreso, the signature of petitioner differs and casts doubts on their authenticity and her survival as well.
3. Objections in shape of counter affidavit on the listed application has also been filed by the Respondent No, 7, wherein beside raising the maintainability of instant petition filed after lapse of 33 years, it has been stated that where the statute has itself remedy, the party is required to avail the same an,' the inherent power of the Court under Section 151, C.P.C. Cannot be resort to as the said provision shall only come into play when no other provision within the purview of C.P.C. Is available; Moreover, the listed application under Section 151, C.P.C. Has been filed on 19.08.2009 to enforce the judgment dated 19.04.1976, without showing sufficient reason or plausible cause of inordinate delay spreading on 33 years with only reason that "In spite of best effort I could not locate the concerned office and to apply for implementation of judgment of this Hon'ble Court". It is stated that an unimaginary reason unbelievable explanation for only to locate the concerned officer has taken 33 years, besides above she has admittedly not approached to this Court to enforce the judgment passed by this Court within time as directed under law of limitation. It has further been averred by the Respondent No, 7 that as per Settlement Commission order dated 29.06.1965, two PTDs' have been issued by the Settlement department in favour of occupants of ground floor namely Shams-ul-Haq and Rafiq Ahmed on 02.10.1967, which are legal and lawful; despite of knowledge as contained in para-3 (ii) of the instant application, she did not disclose to this Court that when and where matter was subjudice as this Court has passed the judgment on 19.04.1976, as such, law of estoppel will operate against her; more particularly, said ownership has been changed in its different hands and lastly in the name of Mst. Hayat Khatoon (25 paisa shares), who also made registered gift deed on 25.03.1997. Consequently, entries were reflected in C.S. Extract i,e, Record of Rights in favour of Respondent No, 7, as such, he being lawful owner followed by physical possession and the remaining share in property in question is in the name of Ghulam Muhammad Mughul, the Respondent No,6, being lawful owner meaning thereby to say Respondents Nos. 6 and 7 are in physical possession since last 40 years. It has further been stated by the Respondent No, 7 that since Settlement and Rehabilitation Law has been repealed by Act of 1975, therefore, jurisdiction is not vested to the District Officer (Revenue)/ADC-I, Hyderabad to cancel PTDs, so issued by Settlement missioner, so also registered documents in their behalf and in this behalf categorical statement has also been filed by the officer of Evacuee Property Board and defunct District Officer (Revenue), Hyderabad before this Court in the instant application, which is self-explanatory, even otherwise District Officer (Revenue) ADC-I is not notified officer as per Repeal Act, 1975. Moreso, since consequent upon wind up of the Evacuee Wing by the orders of Government of Sindh, the Board of Revenue has also stopped the residual work of Evacuee Property; that the original petition was filed by Petitioner No 2 for himself and being special power of attorney of Petitioner No, 1, which shows the signature of lady in English, whereas the instant application depicts the signature of Petitioner No, 1 in Urdu. He has also shown suspicion about survival of petitioner No, 1 in this world.
4. Mr. Rasheed Mughul, advocate claiming himself to be one of the legal heir of late Ghulam Muhammad Mughul, in his counter affidavit to the instant application filed under Section 151, C.P.C.
Challenged the maintainability of the application in discussion mostly on legal points including that the application is barred by law of limitation/laches; that necessary parties have not been joined and that Respondent No, 06 is in physical possession being lawful owner since last forty four
(44) years and their names have been entered in record of rights; moreso, the petitioner has not shown any cogent or plausible reason or ground to approach this Court for non-implementation of judgment of this Court as after the repealment of Settlement Law, 1975, DEO (Revenue) now ADC-I in Hyderabad was not notified officer to cancel the entries kept in the record of rights by virtue of registered documents, therefore, the application is liable to be dismissed.
5. Arguments heard. Record Perused.
6. Maintainability of instant application has been challenged by the Respondents on number of legal grounds beside factual aspect of the case regarding suspicion on survival of the Petitioner No, 1/applicant, who did not personally contested the instant petition, instituted in the year 1965 and authorized the Petitioner No, 02 to contest the instant petition on her behalf by executing Special Power of Attorney. In initial objection raised by Mr. Jagdesh Molani, advocate appearing for Respondent No,8 and Mr. Abdul Rasheed Mughul, Advocate, one of the legal heir of the Respondent No, 6 have shown serious doubt on survival of the applicant, who sworn her supporting affidavit in Urdu though Special Power of Attorney was signed in English. It appears that supporting affidavit has been signed on 19.08.2009, by the petitioner No, 1, in Urdu does not bear the name of Commissioner for taking affidavit, therefore, in the larger interest of justice, it shall be advantageous that before proceeding further on legal implication in respect of maintainability of the instant application, its supporting affidavit or on its merits, the applicant/Petitioner No, 1 shall appear before Identity Section Management System (ISMS) of this Court for sworing affidavit in support of listed application along with original CNIC within thirty (30). Days on receipt of the order, so that biotpetric attendance be done at Identity Section of this Court through NADRA, beside other legal formalities of the said Section.
' Office to facsimile/dispatch copy of this order to all concerned including Mr. Jhamat Jethanand, who may also convey the directions of this Court to Petitioner No, 1 for making compliance of aforementioned order of this Court. Copy of this order may also be faxed/dispatched to Mr. Jagdesh Molani, advocate and Mr. Rasheed Mughul, advocate i,e, legal heir of Respondent No, 6.
Adjourned to a date to be fixed by the office in the second week after summer vacation as per roster for further proceedings. JUDGE Sd-on 09.06.2016 Post Script/final Order Dated: 14th October, 2016..
7. This is in continuation of aforementioned earlier order dated 09.06.2016. On affording fair opportunity, learned counsel for the parties advanced their submissions mostly on point of maintainability or otherwise of listed application filed under Section 151, C.P.C. (C.M.A.
No,2846/2009), which were earlier reduced in writing. During their worthy arguments, learned Counsel for the Respondents created an impression that perhaps, the applicant/petitioner Mst.
Naheed Fatima is not surviving in this world; consequently, to ascertain the actual facts, later part of the order was kept in abeyance, with direction that she should appear before the Identity Section Management System (ISMS) along with original CNIC. She swore affidavit by showing her biometric attendance on 06.08.2016 through NADRA; affirms her survival in this world.
8. Succinct background of filing listed application as stated in earlier part of the order is that C.P.
No, S-574/1965 was allowed by this Court vide judgment dated 19.04.1976, thereby the orders passed by concerned departments including Deputy Settlement Commissioner were set-aside with directions that the order transferring the premises in dispute through ear-marking would stand and such directions of this court were conveyed to the Settlement Department by Superintendent Writ Branch of this Court, on dated 26.04.1978. The judgment of this Court was assailed before the Apex Court in Appeal No, K-231/1976, which was dismissed on 16.06.1978, consequently, the judgment of this Court had attained finality. A perusal of record reflects that during the pendency of Constitution Petition, the Respondents Nos. 4 and 5 obtained PTDs in respect of portion in their occupation on 02.10.1967 and that no PTD is issued in respect of the upper portion. In the meanwhile, Act XIV of 1975 Evacuee Property Displaced Persons Laws (Repeal) Act, 1975, repealed the law relating to Evacuee Property and the Rehabilitation of Displaced Person with effect from 01.07.1974 and residue work stood transferred for final disposal to such officer as may be notified by the Provincial Government. In the year 2009, the residue was assigned to District Officer (Revenue) Hyderabad, when petitioner moved application dated 03.01.2009, a report was sought beside information from Secretary (RS&EP) Board of Revenue, Sindh. Documents, annexed with the listed application show that the District Officer (Revenue) advised the petitioner to seek the remedy from competent Court of law. Resultantly, the petitioner filed the listed application. It is an admitted position that PTO dated 06.02.1990 is issued after full payment in view of the judgment of this Court dated 19.04.1976, holding the transfer in favour of the petitioner as valid, which attained finality and petitioner became transferee of the property.
9. As per Rule 3 of Permanent Transfer Rules, 1961, it was the duty of the Settlement Department to keep the entry of permanent transfer in their record and issuance of PTD in favour of the petitioner is, not necessary as held in the case of Pakistan Post Office v. Settlement Commissioner and others reported as 1987 SCMR 1119; more particularly, no PTD is issued in respect of upper portion of property, hence the property stands finally transferred to the petitioner. The PTDs in favour of Respondents Nos. 4 and 5 issued during the pendency of petition are hit by Rule of lis pendens and are subject to judgment of this Court dated 19.04.1976. Moreso, since the property is transferred to the petitioner, who has made full payment and the said transfer was not set-aside by any valid. Or legal order and ultimately the same has attained finality upto the level of Apex Court, hence the PTDs in favour of Respondents Nos. 4 and 5 and subsequent transfer in favour of Respondents Nos.
6 and 7 are also void as held in PLD 1958 SC 104 and PLD 2008 SC 663. The report and comments by District Officer (Revenue) annexed with the listed application support the contention of the petitioner. Insofar as laches is concerned, it cannot be equated with limitation and the right of the petitioner in the property, which is acquired for valid consideration is to be protected. Reliance is being placed on 1987 SCMR 1119 and PLD 2014 Sindh 224.
10. In the case of Pakistan Post Office v. Settlement Commissioner and others (1987 SCMR 119), it is held that "statutory bar of limitation" and "laches" cannot be equated as the department delay whenever put forward as a ground for condonation of delay requires consideration on its merits and rejected or accepted accordingly, as the case may be. Placitum-C is reproduced hereinbelow:-- "It needs to be emphasised that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf nothing is left to the discretion of the Court---it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the barof laches does not deny the grant of right or slice the remedy unless the grant of relief in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under Section 5 of Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis- a-vis statutory limitation, there is no such strict requirement in cases of laches."
' It has been iterated on behalf of the Respondent that the petition is not maintainable being barred by time. In the case of Javed Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), full bench of Hon'ble Supreme Court has held that:-- "Laches per-se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case and it is further held "that no party should be made to suffer an account of the act of the public functionaries or of a Court."
11. It is not out of context to mention here that extraordinary constitutional jurisdiction of this Court may not be restricted by time factor, hence issue of limitation is not attracted in the issue involved in writ jurisdiction, however the question of laches may be examined but the same does not deny the right of the petitioner, which has to be examined on equitable principles.
' This being the legal position, for the reasons detailed above; the listed application bearing C.M.A.
No, 2846/2009 is allowed with direction to the concerned authorities to implement the judgment dated 16.01.1976 passed in Civil Petition for leave to appeal No, K-321 of 1976 by cancelling the transfer documents of Respondents and issue the transfer documents in favour of Petitioner No, 1 within a period of 30 days from receipt of this order. There shall be no order as to costs.