' KHALILUR REHMAN KHAN, J.-This review application has been laid before this Division Bench as the learned Judge who passed the order in the Constitutional petition (W. P. 1392-R/1974) is not available on account of retirement. The order under review was passed on 22nd May, 1975, but review application was filed on 14th September, 1980, with an application for condonation of delay on the plea that the applicants did not receive any intimation of the date of hearing as required by rule 8 of Chapter 3-A, High Court Rules, and Orders, Vol. V. It is asserted that the applicants came to know of the impugned judgment on 30th August, 1980. When one of applicants who is an Advocate practising at Sargodha came to Lahore and ascertained from the office of this Court if the writ petition had been disposed of as meanwhile the writ petitioners had started making efforts at the spot to cause interference in the possession of the applicants relating to the staircase in dispute. It may be noted here that necessary certificate required to be filed under Rule 10, Chapter 1-A, High Court Rules and Orders, Vol. V, was not appended with the review application initially. However, the necessary certificate was later brought an record by moving C. M. No, 2/81 on 2nd of March, 1981.
2. In support of the application learned counsel submitted that the appellants who were respondents Nos. 3 to 7 in the writ petition were not served with any notice of the pucca date, i,e,, 22nd May, 1975, fixed in the writ petition though they were earlier served with a notice for "Farzi Peshi" whereafter they did not choose to be represented by a counsel. It is admitted that an intimation by registered A. D. Post was sent to the applicants for final hearing of the writ petition for 8th May, 1975,'but on that date the writ petition did not appear in the cause list and instead the writ petition was shown in the cause list of 15th May, 1975, of his Lordship Mr. Justice Abdul Jabbar Khan.
On this date the case was not heard and then on 22nd May, 1975, the petition was heard and decided ex parte. It was argued that ex parte order, having been passed on a date for which there was no notice, was not valid in law and merits to be set aside on this ground alone. It was next contended that the order dated 6th October, 1961, of the Deputy Settlement Commissioner could not be held to be void as the said order was passed after ascertaining the correct factual position on the spot and that the findings of fact could not be reversed in exercise of constitutional jurisdiction especially when there was nothing on record to come to a contrary finding.
3. Learned counsel for the respondents (writ petitioners) in reply argued that the review application is liable to be dismissed on the ground of limitation as the same is barred by time by about five years and as sufficient cause for condoning the delay has not been established. He pointed out that in the application for condonation of delay it was admitted that as the respondents had started interference in their possession, one of the applicants who is an advocate came to enquire about the fate of the writ petition. Learned counsel submitted that applicants have not taken the Courts into confidence by omitting to inform the Court as to when the interference commenced, so as to cover their negligence and due diligence. He further submitted that learned counsel for the applicants was not correct in maintaining that the writ petition did not appear in the cause list of 8th May, 1975, the date for which the applicants were admittedly served. According to him the case was listed at No, 1 of the cause list for the said date. It was stated that according to rule 8, Chapter 3-A, High Court Rules and Orders, Vol. V. The applicants are required to attend the Court on the day or days for which their cases are set down and on the subsequent days until their cases are disposed of, so the applicants were not required to be served for the subsequent date on which the petition was accepted ex parte.
' The learned counsel next argued that the review application originally filed was incompetent as the necessary certificate was not appended therewith, and by the time that the certificate was filed, the review petition had become barred by time even if the period of limitation is to be counted from the alleged date of knowledge of the impugned order. The other objection as to the incompetence of the review application as filed was that according to Rule 2, Chapter I.E. Vol. V of the High Court Rules and Orders, review application is to accompany a detailed affidavit in support of the assertions of fact made therein. It was argued that as the affidavit filed was violative of the afore-noted provisions the assertions of fact made in the review application cannot be noticed. On merits, it was urged that the order passed in the writ petition was the most just and equitable order as the order dated 6th October, 1961, passed by the D. S. C. Was a void order having been passed admittedly at the back of the respondents and without hearing them.
4. We have considered the respective submissions of the parties. This review application is liable to be dismissed on the sole ground of limitation. The order was passed on 22nd May, 1975, after serving the petitioners with notice for actual date, i,e,, 8th May, 1975, We have examined the cause list after calling the same from the office record. The case appeared in the list and as such the plea taken that the case did not appear on the said date in the cause list is incorrect. In any case we are not satisfied with the explanation given for seeking condo nation of delay as the Court was not informed as to how and as to when the respondent/ writ petitioners started making efforts at the spot to cause interference in the possession of the applicants relating to the aforesaid staircase. In view of above finding it is not necessary to go into the question of interpretation of Rule 8, Chapter 3-A of the High Court Rules and Orders (Vol. V).
' On merits, too, no case has been made out for review of the order passed in the writ petition. The order dated 6th October, 1961, wa passed admittedly at the back of and without notice to Shadi Khan, predecessor-in-interest. The plea of the applicants that the writ petitioners had no right to share the staircase in dispute as the same falls within the area of shop No, 22 transferred to the predecessor-in-interest of applicants is without merit. Even if the staircase is taken to be part and parcel of shop No, 22, still the applicants cannot claim exclusive right and title to use the staircase because claim of Shadi Khan, predecessor-in-interest of the writ petitioners was not based only on the transfer of shop No,
21. It is accepted position that shop No, 22 was transferred originally to Mst.
Hajran, predecessor-in-interest of the applicants and to one Muhammad Sharif who later on surrendered his rights in favour of Shadi Khan, who thus became owner of half of the shop No, 21 as well. Th right of Muhammad Sharif, predecessor-in-interest of Shadi Khan to share the staircase in dispute cannot be denied successfully since he even prior to the commencement of the settlement operation was held entitled to share the use of the staircase. Reference in this connection may be made to the order dated 10th May, 1952, Annexure R-1 with the writ petition), of the Deputy Rehabilitation Commissioner, whereby it was directed that as the shop is capable of partition it would, therefore, be divided half and half including the "Khan" between the parties. In this order it was further observed that there is a site plan on the rehabilitation file which amply discloses that the portion of the shop on the side of the staircase was allotted to the appellant (Mst. Hajran) and the other to the respondent (Muhammad Sharif).
' In view of the above it is idle to suggest that Mst. Hajran the predecessor-in-interest of the applicants was entitled to use the staircase to the exclusion of Muhammad Sharif. This further shows that the order passed in the writ petition was just and equitable order.
5. For reasons given above the review application is without any merit and the same is dismissed with costs.
Application. Dismissed.