this order will dispose of Writ Petition No. 1636-R of 1965 Muhammad Bashir v. The Chief Settlement Commissioner, Lahore and 2 others), No. 1637-R of 1965 (Sardar Ali v. The Chief Settle--ment Commissioner. Lahore and 2 others) and No. 1638-R of 1965 (Ibrahim v. The Chief Settlement Commissioner and 2 others), because the order impugned in these writ petitions is the same and so is property No. S/19-20, in Mandi Bahauddin, District Gujrat, which is the subject. Matter of dispute.
2. The arguments had concluded in these petitions on the 15th of May, 1973, and the judgments were reserved, when on 24th May, 1973 an application under Order XXII, rule 4 (3) of the Code of Civil Procedure, was filed on behalf of Khawaja Feroze Din, Special Attorney of Jangoo and Chhotto who died on 31st January, 1970 and 9th July, 19`71 respectively. It was stated in the application that as the legal heirs of the deceased respondents had not been brought on record within the time prescribed by law, the writ petition be disposed of as having abated. Notice of this application was given to the learned counsel for the petitioner, who on the 3rd of December, 1973, filed an applica-- tion under Order XXII, rule 9, read with section 151 C. P. C. For setting aside the abatement and also prayed that the legal heirs of the deceased respondents be substituted in their place. A , request was also made for condo nation of delay in filing this application on the ground that the deceased respondents had been working permanently in East Pakistan and Karachi, the petitioner as such had no knowledge of their death. This application was supported by an affidavit as well. Notice of this application was given to the other side. In the reply filed by the respondents it was prayed that the application for setting aside .The abatement be dismissed because no sufficient cause had been shown. Lengthy arguments were addressed from both sides on the question of abatement.
This question, therefore, would have to be dealt with first before going into the merits of the case.
3. Mr. Shahzad Jehangir, learned counsel for the petitioner, contended that the death of the private respondents did not make material difference so long as the authority whose order bad been impugned was on the record, as one of the respondents. In the instant case, the Chief Settlement Commissioner being the respondent, learned counsel submitted that the only point to be examined by this Court in this petition under Article 98 of late Constitution. Of the, Islamic Republic of Pakistan was whether the order. Impugned could be upheld or not being with or without lawful authority and for that purpose it did not matter much if respondents 2 ' and 3 ceased to exist on the record. Accordingly to the learned counsel, their presence on the record was a mere formality as they were simply proper party and not necessary party to the proceedings. In support of this learned counsel relied on Mohammad Amin v. Khamisa and another (PLD 1956 Lah. 242) where it had been observed : - "The necessary party as explained in Thakar Hari Ram v. Central Government through Secretary, Commerce Department, Delhi (AIR 1941 Lab. 120) is one without whose presence no effective decree can be granted. A proper party, on the other hand, is one whose presence is necessary in order to completely and effectively adjudicate upon all questions arising in a suit."
Reference was also made to National Bank of Pakistan v. Syed Muzammal Hussain (PLD 1965 Kar.
663) where distinction between the proper and the necessary party had been made.
4. Relying on the following observation of the Supreme Court of Pakistan in Abdul Ghani v.
Settlement Commissioner and 2 others (1971 SCMR 98) learned counsel for the respondents argued that in the absence of a party who was to be directly affected by the order of this Court, the proceedings could not be continued :- "In our opinion, in the absence of the persons to be adversely affected by-the quashing of an order in a proceeding under Article 98 of the Constitution of 1962, no effective order for quashing can be made for, that would not bind persons who had been benefited by the impugned order and it is well-settled principle that in such circumstances a Court will not make an ineffective order or an order which can be flouted in a proceeding under Article 98 of the Consti--tution. In our view, the persons to be adversely affected are necessary parties."
5. There is no denying of the fact that if the order impugned was to be set aside, the persons directly affected would be respondents Nos. 2 and 3 and in case of their death it would be their legal represen--tatives. In their absence on the record such an order would be a nullity in the eye of law, because not only it would have been passed against dead persons but also that their legal representatives would be condemned unheard. Therefore, following the principle laid down in Abdul Ghani v. Settlement Commissioner, I hold that respondents 2 and 3 were necessary party and unless and until their legal heirs had been substituted in their place, the proceedings could not be continued.
6. The next points urged by the learned counsel for the petitioner was that if it was to be held that respondents 2 and 3 were necessary party, the fact that their legal representatives had not been brought on the record within the, time prescribed by law, would not affect the proceedings, because the penal provisions of Order XXII, rule 4, C. P. C. Were not attracted to the proceedings under Article 98 of the late Constitution. In this connection reliance was placed on Chand and others v. Abdul Ghafar and others (PLD 1965 Lah. 596) and the learned counsel submitted that this decision had never been overruled and the principle laid down in this case still holds the field and as such Order XXII, rule 4, C. P. C. Would not be applicable to the proceedings in the constitutional jurisdic--tion. My attention was invited to Hussain Bakhsh v. Settlement Commis--sioner, Rawalpindi and others (PLD 1970 SC I) and the learned counsel contended that in this case the precise question before the Supreme Court of Pakistan was as to whether a review petition would be competent in proceedings under Article 98 of the late Constitution. This proposition, according to the learned counsel, was totally different than the application of the penal provisions of the diode of Civil Procedure. It was submitted that there was no dispute with the principle laid down by the "Supreme Court of Pakistan in Hussain Bakhsh's case, but as Chand and others v. Abdul Ghafar and others had not been referred to in the judgment of the Supreme Court nor had the same been overruled by a subsequent decision. Therefore, the dictum in Chand and others v. Abdul Ghafar and others would govern the proceedings in the constitutional jurisdiction. It was next argued that with the exception of Chand's case, there is no decision which clearly lays down that the penal provisions of Order XXII, rule 4; are applicable to the Constitutional proceedings.
7. I am unable to accept the argument of the learned counsel for the petitioner because in Abdul Ghani v. Settlement Commissioner, Supreme Court of Pakistan affirmed the view taken by this Court which was that the penal provision of the Code of Civil Procedure applies to the proceedings under Article 98 of the late Constitution. Similarly in Mwkha and others v. Rifat Pasha Sheikh. (1972 SCMR: 514) the aforesaid view was re-affirmed. Then there is case of Sardar Noor Hussain v. Chief Settlement Commissioner (PLD 1973 Lah. 809). Finally in Niaz Muhammad v. Suleman and others (1974 Law Notes Lah. 21), it was held :- A writ petition or a Letters Patent Appeal arising from a writ petition will abate under Order XXII, C. P.
C. If an application for the substitution of the legal representatives is not made within 90 days under Article 177 of the Limitation Act, 1908."
8. After hearing the learned counsel for both sides, I am clear in my mind that after the decision of Hussain Bakhsh's case by the Supreme Court of Pakistan and the subsequent decision referred to above, there is no room for doubt that Order XXII, Rule 4, C. P. C. Is applicable to these proceedings.
9. This now leaves me to examine the last contention of the learned counsel for the petitioner that is, that although an application under Order XXII, ' rule 9, C. P. C. Had not been filed within time nevertheless there were good grounds for condonation of delay and hence the abatement be set aside and the legal heirs of the deceased respondents be substituted in their place and the petition be decided on merits. Numerous authorities were cited by the learned counsel to show as to what constitutes "sufficient cause" for condonation of delay, but I need not refer to all of them with the exception of a few important and relevant ones. 1n this connection reference was made to Punjab Province v. Sultan Khan and others (PLD 1959 Lah. 500) where it had been held :- "We have carefully read these rulings and we are of the opinion that no hard and fast rule can be laid down in this matter and that each case must be decided on its own facts. However, in view of the provisions of law in this regard, it appears to be the duty of a litigant to keep himself informed of the existence of his adversary, but if he can satisfy the Court that in view of the circumstances of the case, he could not have known of the death of this opponent and there was no negligence or want of diligence on his part then it is a sufficient case within the meaning of the provisions of Order XXII. Rule 9, C. P. C. To excuse the delay in filing an application for bringing upon the record the legal representatives of the deceased and for setting aside the abatement."
Reliance was also placed on Mst. Khemi and others v. Keshav Ram and others (AIR 1933 Lah. 224).
In Abdur Rehman's v. Custodian: Evacuee Property (P L D1968 Lah. 1106) even ignorance of law was held to be sufficient cause for condonation of delay.
10. Learned counsel for the respondents opposed the request for setting aside the abatement and argued that it was a case of gross negligence and as such the petitioner had failed to show sufficient cause, therefore, there was no ground for setting aside the abatement.
11. I have gone through the application filed on behalf of the; respondents for declaring that the petition had abated and have also examined the application filed by the petitioner for setting aside the abatement as well as the reply filed to that. The cause of delay. According to the petitioner, in bringing the legal heirs of the deceased respondents on the record was on account of the fact that the respondents were working in East Pakistan and Karachi and as such the, petitioner could not know about them because it was their attonery who had been pursuing the case on their behalf. There is nothing on the record to show either any negligence or want of diligence on the part of the petitioner. The fact that the very application filed on behalf of the respondents, was filed after the arguments had concluded and the judgment was reserved, is suggestive of the fact that 'even the attorney of the respondents himself did not know about their death and in my view the circumstances of this case do justify that the abatement be set aside and the legal heirs be substituted in place of the dead respondents. I would. Therefore, set aside the abatement and substitute the legal heirs of the respondents on the record anal would proceed to decide the case on merits.
12. The facts pertaining to these writ petitions are that property No. SJ19-20 in Mandi Bahauddin, District Gujrat which is a huge building consisting of residential portions as well as three shops, which are the subject-matter of dispute in the three writ petitions, was transferred in its entirety by the Deputy Settlement Commissioner by his- order dated the 26th of November. 1959, in favour of respon--dents Nos. 2 and 3, in all the three writ petitions. Against this order, the three petitioners filed an appeal in the Court of the Additional Settlement Commissioner, Sargodha Region, Sargodha. This appeal was decided on the 22nd of December, 1959, by means of which Sardar Ali and Ibrahim were transferred the shops in their respective posses--sion. Muhammad Bashir was refused transfer on the ground that he could not claim through his brother Muhammad Shah. I may mention here that this was a patent mistake on the part of the Additional Settlement Commissioner, because, Muhammad Sharif who had filed the form for the transfer of the shop in possession of Muhammad Bashir was his father and not brother as observed in the order of Additional Settlement Commissioner dated the 22nd of December, 1959. Muhammad Bashir after the above-mentioned order filed a review petition before the Additional Settlement Commissioner requesting for the connection in the order. This review petition was decided on 25th January, 1960, and the Additional Settlement Commissioner duly rectified the mistake holding thereby that Muhammad Sharif as a matter of fact was the father and not brother of Muhammad Bashir. In his order in review it was observed by the Additional Settlement Commissioner that he would have transferred the shop in favour of Muhammad Sharif but as an appeal had been filed against his first order dated 22nd December, 1959, before the Settlement Commissioner he as such was helpless. , 13: Two separate revisions were filed against the order of the Additional Settlement Commissioner.
Dated 22nd December, 1959 in the Court of Settlement and Rehabilitation Commissioner, one by the petitioner Muhammad Bashir and the other by respondents Nos. 2 and 3. Both were heard by the Settlement Commissioner, who by his order dated 19th March, 1960 dismissed the revision filed by respon--dents Nos, 2 and 3 and allowed the one filed by Muhammad Bashir with the result that the shop in his possession was duly transferred to him. Respondents Nos. 2 and 3 further agitated the matter by invok--ing the. Revisional. Jurisdiction of Syed Hashim Raza, the then Chief Settlement and Rehabilitation Commissioner, who dismissed the same by his order dated 17th April, 1960. Respondents Nos. 2 and 3 then invoked the jurisdiction of this Court by filing Writ Petition No. 326-R of 1960. In this writ petition a report was called for and a written statement was filed in this Court on behalf of the then Chief Settlement and Rehabilitation Commissioner, which was to the effect that some errors and omissions had been noted in the case with regard to the transfer of property in dispute and, therefore, the Chief Settlement and Rehabilitation Commissioner intended to assume jurisdiction under section 21 (1) of the Displaced Persons (Compensation and Rehabilita- -tion) Act, 1958 (hereinafter referred to as the Act) in order to review the order passed by his predecessor on the 17th of April, 1960. Respondents Nos. 2 and 3 (petitioners in Writ Petition No. 326- R-60) were satisfied with this report of the Chief Settlement and Rehabilita--tion Commissioner and accordingly submitted an application under Order III, Rule 1 read with section 151 C. P. C. For withdrawal of the above-referred writ petition. On 21st November, 1960, Mr. Justice Jamil Hussain Rizvi (as he then was) passed the following order :- "Mr. Karam Elahi Chauban, the petitioner prays for the permission to withdraw his writ petition. He is allowed to do so. The peti--tion is dismissed as withdrawn. Information be sent to respondent No. 6 of this order."
14. After the above-referred order, the then Chief Settlement Commissioner, Pir Ahsan-ud- Din, assumed jurisdiction and summoned the parties and by his order dated the 5th of May, 1962, transferred the case to the file of Ch. Sultan Muhammad, Settlement Commissioner as delegate of the Chief Settlement Commissioner with the following observation :- I have' heard the parties and had kept this case with me for spot inspection. In view of my heavy pre-occupations with other impor--tant official work, I could not unfortunately visit the disputed pre--mises. Due to heavy pressure of work 1 feel that it would not be possible for me to deal with this case in the near future. I, there--fore, transfer this case under section 32-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to Ch. Sultan Muhammad, Settlement Commissioner, with delegated powers of Chief Settlement Commissioner for disposal according to law. He may please hear the parties and visit the spot and decide this case within two months."
It so seems that the case was then entrusted to Rana Aftab Ahmad Khan, Settlement Commissioner with the delegated powers of the Chief Settlement Commissioner under sections 2
(2) and 21 (1) of tile Act, who while exercising the powers under Section 21, (1) of the Act reviewed the order passed by Syed Hashim Raza, Chief Settlement Commissioner dated 17th April, 1960 accepted the claim of respondent Nos. 2 and 3, restored the order of the Deputy Settlement Commissioner Mandi Bahauddin, whereby the entire property had been' transferred to them and set aside the orders dated the 19th of March, 1960 and 17th April, 1960 of the Settlement Commissioner and the Chief Settlement Commissioner, respectively.
15. Aggrieved by this order, the three petitioners filed three separate writ petitions in this Court. Mr. Shehzad Jehangir, learned counsel for the petitioners has raised the following contentions-
(1) that the order impugned is without lawful authority, because, Rana Aftab Ahmad Khan was not competent in law to review the order passed by Syed Hashim Raza, being neither the Chief Settle-- ment Commissioner nor was he the successor-in-office of the then Chief Settlement Commissioner, Syed Hashim Raza
(2) that section 21 (1) the Act was deleted by Ordinance II of 1962, and therefore, the order passed by the Chief Settlement Commis--sioner on 17th April, 1960, was final for all intents and purposes and as such could not be reviewed at all and the present case did not fall within the saving clause of Ordinance XIII of 1962 ; and
(3) that even the finding of fact with regard to the entitlement of the petitioners was not legally maintainable, because the petitioners had submitted the requisite forms for the transfer of shops in their respective possession.
16. In support of the first contention learned counsel relied on Ahmad Din v. Ch. Sultan Muhammad Khan and others (PLD 1967 Lah. 559). Reliance was also placed on. Dr. Hussain v. Ghulam Samdani Ali and others (PLD 1969 Lah..575) and Muhammad Sardar Khan v. Chief Settlement Commissioner, West Pakistan and another (PLD 1969 Lah. 659). In Ahmad Din v. Ch. Sultan Muhammad Khan and- others it, was observed :- Before a person can act under section 21, he has, therefore, to satisfy himself, that he passed the order either himself or it was passed by any of his processors-in-office. By the aforesaid notification, dated the 26th of April 1962 the Chief Settlement Commissioner delegated to the Settlement Commissioners his power to review the cases against orders passed by him, it is in the exercise of such delegated authority that Ch. Sultan Muhammad passed the. Impugned order reviewing the order of Pir Ahsan-ud-Din dated the 11th November, 1960. 'this order of Ch. Sultan Muhammad does not fall under section 21 of the Act because it is neither a review of his own order nor that of his predecessor-in-- office. If the Chief Settlement Commissioner delegated to him his power of revision under section 20 (2) or of review under section 21 (1) the delegatee by virtue of such an authority did not become the holder of the office of the Chief Settlement Commissioner, He remained the .Settlement Commissioner but only exercised a parti--cular-power which vested in the Chief Settlement Commissioner."
This very principle was affirmed in Dr. Hussain Ali v. S. Ghulam Samaani and another and Muhammad Sardar Khan v. Chief' Settlement Commissioner and another. Learned counsel thus emphasised that in the instant case the impugned order passed by Rana Aftab Ahmad Khan would be without lawful authority.
17. Ch. Muhammad Farooq, learned counsel for the respondents, cited Wali Muhammad and 2 others v. Inam-ul-Hassan Khan and 5 others (PLD 1971 Lah. 332). He also pressed into service section 2 of Settlement Commissioner (validation of Orders) Act, 1972, and argued that in the light of the two above-mentioned references no exception can be taken to the order impugned which is a valid order and passed with lawful authority. So far as the case of Wali Muhammad and 2 others v. Inam-ul-Hassan Khan and 5 others is concerned, I am of the view that this is not of much help to the learned counsel for the respondents for in this case it was observed :- "The other two judgments are by the then learned Chief Justice, namely, Dr. Hussain Ali v. S. Ghulam Samdani (PLD 1969 Lah. 575). Wherein it was held that an order passed by the Chief Settlement Commissioner can only be reviewed by him and not by the Settlement Com--missioner exercising the delegated powers of the Chief Settlement Commissioner and Muhammad Sardar Khan v. Chief Settlement Commissioner where the same principle was reiterated. During the course of the judgment the following significant observation was also made. Had it been a case of review of an order of a delegatee of the Chief Settlement Commissioner who had ceased to hold office I might have taken a different view.' The above obser--vation is similar to the view expressed by their Lordships of the Supreme Court in the case of Sh. Fazal Ahmad v. Raza Ziaullah Khan etc. (PLD 1964 SC 293). The instant case falls in this later category. Sh. Mohammad Rafiq was exercising the delegated powers of review and order reviewed by him is not an order passed by the Chief Settlement Commissioner himself, but an order passed. By an officer exercising some of the powers of the Chief Settlement Commissioner who had ceased to hold office. In consequence there was no bar to Sh. Muhammad Rafiq reviewing his order."
18. In my view the authority referred to above is not applicable to the instant case for the order which Rana Aftab Ahmad Khan reviewed was passed by Shed Hashim Raza in his capacity as Chief Settle--ment and Rehabilitation Commissioner, Pakistan. 1, therefore, hold that Rana Aftab Ahmad Khan was not competent in law to exercise the power of review under section 21 (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. His order, therefore, is without lawful authority and as such of no legal effect. Although this point alone will be sufficient to declare the said order to be without lawful authority nevertheless I would also like to examine the other two contentions raised by the learned counsel for the petitioners and to give my findings on them.
Section 21 of the Act was omitted by Ordinance II of 1962. Sub--sequently by Ordinance XIII of 1962 section 7 was inserted in Ordinance II of 1962 and it was mentioned that the insertion of section 7 would be deemed always to have been so inserted. Section 7 which deals with the savings is to the following effect :- "7. Savings.-For the removal of doubts it is hereby declared that omission by this Ordinance of subsections (2) and (4) of section 20 and subsections (1), (1-A) and (2) of section, 21 of the said Act shall not affect, any case or proceeding the record of which was called for under subsection (2) of section 20 of the said Act, or any review proceeding tinder subsection (1) of section 21 thereof, which was pending immediately before the commencement of this Ordinance Provided that no revision or review under any of the provisions omitted by this Ordinance shall lie against any order made in any such case or proceeding."
The relevant words in relation to the present case are "any review proceeding tinder subsection (1) of section 21 thereof, which was pending immediately before the commencement of this Ordinance. (The underlining is by me).
19. Section 2 of Settlement Commissioners (Validation of Orders) Act, 1972, is to the following effect :- -12. Validation.---Notwithstanding anything contained in the Dis--placed Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), or in any decree or order of any Court or other authority, any order purporting to be in exercise of the power con--ferred by subsection (i) of section 21 of the said Act made by a Settlement Commissioner to whom the powers of the Chief Settlement Commissioner under subsection (2) of section 20 of the said Act had been delegated shall be deemed to have been validly made and shall have, and shall be deemed always to have had, effect accordingly." `the above provision of law is not helpful to the respondents because in the instant case Rana Aftab Ahmed Khan was reviewing the order which had been passed by the Chief Settlement Commissioner himself and not by one of his delegatee to whom the requisite powers had been properly delegated.
20. Finally, so far as the merits of the case, are concerned I find that the Additional Settlement Commissioner rejected the claim of Muhammad Bashir petitioner on a consideration which was totally incorrect which mistake was set right by the order of the Additional Settlement Commis-- sioner dated 25th January, 1963 in review. In this order the Additional Settlement Commissioner virtually accepted the entitlement of Muhammad Bashir but as the matter had been taken up before a higher forum he expressed his inability to grant any relief to Muhammad Bashir. With regard to the two other applicants, namely, Sardar Ali and Ibrahim, the learned Additional Settlement Commissioner in his order dated 22nd December, 1959, after thoroughly examining the merits of the case observed that the area where the property is situated was commercial. None of the shops had any door at the back and they were therefore separate from the residential house and that Sardar Ali and Ibrahim were in possession of their respective shops. The Additional Settlement Com--missioner therefore transferred these shops to them. So far as the impug--ned order is concerned I find that the reasons given by the learned Settlement Commissioner while exercising his review power are not warranted by law, because the three petitioners in the three writ petitions, bad duly complied with the essential legal formalities for the transfer of the shops in their possession and the mere fact that some of the forms were not filed within time would not debar the applicants from the transfer of the pro--perty in dispute. With regard to Muhammad Bashir, learned counsel submitted that he had no locus standi to come to this Court, because the form had been filed by his father. This objection is without substance because, it was Muhammad Bashir, who had been claiming the transfer of the shop in his own right as he was in actual physical possession. He having been denied the transfer was, therefore, well within his right to come to this Court by invoking the jurisdiction under Article 98 (2) of the late Constitution of the Islamic Republic of Pakistan 1962.
21. For the foregoing reasons the order impugned is declared to be without lawful authority and as such of no legal effect. All the three writ petitions are accordingly accepted with costs. Regarding Muhammad Bashir I would direct respondent No. 1 to do what is required by law to do, that is, to direct the officer concerned to trans--fer the shop in possession of Muhammad Bashir to him in accordance with law.