' This judgment shall dispose of Writ Petitions Nos. 605/R/1971, 664/R/1977 and 1836/R/1974, as these relate to the same property and common questions of law and facts are involved therein.
2. The dispute relates to Property No, S. 69-R-23, Warris Road, Lahore which was in occupation of and applied for under separate C. H. Forms, by four persons, namely, Mst. Walayat Begum, Mst.
Ghulam Sakina, Siraj-ul-Haq and Mst. Nisar Fatima. After submission of his form C. H. Mst. Walayat Begum died on 12th May, 1960. The Deputy Settlement Commissioner by his order, dated 11th October, 1960 divided the property into four portions. He earmarked Portion No, 1 for the heirs of Mst.
Walayat Begum and observed that it would be open to them to claim substitution and transfer of the property. Portions Nos. 2 and 3 were transferred to Siraj-ul-Haq, whereas Mst. Ghulam Sakina was held eligible for transfer of Portion No,
4. Mst. Nisar Fatima was thus excluded. Her appeal was dismissed by the Additional Settlement Commissioner, on 27th July, 1963 and the revision also met the same fate. She is no longer in the field now.
3. Before proceeding further, it may be mentioned here that the transferees are inter se closely related. Mst: Ghulam Sakina is the sister of Mst. Walayat Begum and mother of Siraj-ul-Haq. On 18th October, 1960, the heirs of Mst. Walayat Begum moved the Deputy Settlement Commissioner, to be brought on the record. Accordingly, the Deputy Settlement Commissioner by his order, dated 20th October, 1960 accepted them as successors-in-interest of the deceased. The P. T. O. Was issued to them on 20th February, 1952. The other two transferees, namely, Siraj-ul-Haq and Mst. Ghulam Sakina were issued the P. T. Os. On 13th October, 1960. The record shows that though the Deputy Settlement Commissioner on 20th October, 1964 approved the Settlement Inspector's report, apportioning the assessed rent of the property, between the transferees as under :-
(i) Heirs of Mst. Walayat Begum ... Rs, 65
(ii) Siraj-ul-Haq ... Rs, 115
(iii) Mst. Ghulam Sakina ... Rs, 65 yet the notices of transfer in the Form Appendix X as required by para. 29 of Settlement Scheme No, 1 were not issued to them. On the basis of this apportionment of rent the transfer price to be paid by the three transferees came to Rs, 31,200, Rs, 55,200 and Rs, 31,200 respectively.
4. As the delay in the issue of Compensation Book by the Settlement Department to Siraj-ul-Haq is one of the major issues between the parties, it will be appropriate to refer here briefly to the facts with regard thereto. For the issue of Compensation Books to them, the three claimants submitted separate Form 'A' to the department. The form filed by Walayat Begum bore No, LHR-1-621, whereas the Forms of Mst. Ghulam Sakina and Siraj-ul-Haq were registered under Nos. LHR-1-622 and LHR-1- 623, respectively. It transpires from the report submitted by the department to this Court, in pursuance to the order, dated 23rd December, 1974 passed in Writ Petition No, 1836/R/74, that somehow or other Compensation Book was issued to Walayat Begum against Form 'A' No, 623, which pertained to Siraj-ul-Haq instead of Form No, 621 filed by her. Siraj-ul-Haq made various representations to the department for issue of Compensation Book but he could not succeed during his lifetime. Reference may be made to his letter, dated 14th March, 1964 addressed to the Deputy Settlement Commissioner, which made mention of his three previous applications, dated 21st November, 1962, 21st May, 1963 and 6th March, 1964. It appears that in this respect he also lodged a complaint with the President Secretariat (Annexure 'IT); on which some correspondence was exchanged between the Additional Settlement Commissioner and the Deputy Settlement Commissioner (Annexure '0'). It was after the death of Siraj-ul-Haq, that on 6th August, 1973 in response to a requisition made by the department, his heirs filed a copy of Form 'A' duly signed by them along with an Indemnity Bond; that Compensation Book was delivered to them on 27th March, 1974. As to the cause of this delay, the parties are at variance. A finding on this point shall be returned in the succeeding paragraph of this judgment.
5. It appears that none of the transferees paid the transfer price. To the department. They were, therefore, served with demand notices. As these notices have been made the foundation of further action against them by the Settlement Authorities, it will be appropriate to precisely make here mention thereof. The first notice, dated 19th October, 1962 issued to Siraj-ul-Haq is under para. 35 of the Settlement Scheme No, 1 requiring him to pay the transfer price of Rs, 55,200 within 30 days of receipt of that notice. It was followed by notice, dated 19th February, 1964 under para. 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, and Para. 35 of Scheme No,
1. It was in reply to this notice that Siraj-ul-Haq (deceased) wrote to the Deputy Settlement Commissioner his letter, dated 14th March, 1964 (Annexure `L') referred to hereinbefore, wherein he expressed his grouse, that despite repeated requests Compensation Book was not issued to him and in its absence he could not be sure of the exact amount due from him, after adjustment of the deferred payment available therein, against the transfer price. The third notice is, dated 2nd September, 1966, which was issued under para. 24 of the Schedule and para. 11 Chapter (3) of Settlement Scheme No VIII. By this notice, too, Siraj-ul-Haq was required to pay the outstanding transfer price within 30 days. The last undated notice under the same provisions of law, was served on the wife of Siraj-ul-Haq on 16th October, 1967. In pursuance of this notice the Deputy, Settlement Commissioner, on account of default in the transfer price, by his order, dated 10th October, 1967 cancelled the transfer of the property to Siraj-ulHaq and resumed the same.
6. So far as heirs of Mst. Walayat Begum are concerned, before disposal of the property through auction in favour of Abdul Hadi Khan, who died during pendency of these writ petitions, and is now represented by his legal heirs, neither any demand notice was served on them nor is there any file, in respect of the portions of the bungalow transferred to them. The respondents have placed on the record two demand notices issued to Mst. Ghulam Sakina. The first one was issued in the year '1960 under para. 35 of Settlement Scheme No, 1 whereas the second notice under para. 24 of the Schedule and para. 35 of the Scheme is dated 9th March, 1964. By means of both these notices she was required to pay the transfer price of Rs, 31,200 within 30 days of receipt thereof. The service of the notices is, however, denied by her legal heirs who 'have been impleaded as party on their application, during pendency of the writ petition. No resumption order was passed by the Deputy Settlement Commissioner in respect of portion transferred to Mst. Ghulam Sakina.
7. Siraj-ul-Haq filed an appeal against the resumption, order, dated 20th October, 1967. During the pendency of his appeal, the -property was included in the auction list and described therein as under :- Property No, Location Name of NaMe of Reserve Remarks Evacuee occupant/ Price owner transferee S. 69-R-23 Warris Lakhshmi Siraj-ul-Haq Rs, 45,600 Full Road Devi.
' Whether the entire property was put to auction or only the portion resumed from the name of Siraj-u-Haq is another controversial issue, requiring determination. On publication of the auction list, Siraj ul-Haq moved an application, dated 24th February, 1968 before the Settlement Commissioner-(Admn. And Policy) praying that the property be not put to auction and a grace period be allowed to enable him to sort out the , case, as the matter regarding issue of Compensation BOOK was in confusion. In this application throughout the pronoun "We" was used, though it was signed only by Siraj-ul-Haq. The case of the respondents is that he was attorney for the other two transferees, and this application was submitted by him in his personal capacity as well as attorney for his mother and aunt ; the order passed thereon by the Settlement Commissioner 24th_ February, 1968 is binding on all of them. This order is reproduced-below-:- "The property cannot (repeat not) be deleted from the auction list. The auction may, however, not be confirmed for 15 (fifteen) days. If the applicant makes full payment during this period the house may be allowed to stand in his name, otherwise it may be transferred to the highest bidder.
(Sd.)
Bashir Ahmad S. C. Lahore"
' The implication of this order and whether this is binding on the heirs of the two ladies, is another disputed issue.
8. The property was auctioned on 28th February, 1968 for Rs, 1,41,000 in the name of Abdul Hadi Khan. As no payment was made in pursuance of the Settlement Commissioner's order, dated 24th February 1968, the auction was confirmed by the Additional Settlement Commissioner by his order, dated 18th March, 1970. The auction-purchaser deposited the sale price and notwithstanding the pendency of the litigation, the P. T. D. Was issued to him on 30th June, 1970.
9. The appeal filed by Siraj-ul-Haq was dismissed in default by the learned Additional Settlement Commissioner, on 6th March, 1968. He then preferred a revision petition which was dismissed by the Settlement Commissioner by his order, dated 16th October, 1968. He absolved the department from the delay in the issue of Compensation Book to Siraj-ul-Haq and in fact he attributed it to the conduct of the latter. The issue of Compensation Book to Mst. Walayat against Form 'A' No, 623 was termed by him as ingenious device to create confusion, to enable Siraj-ul-Haq to blame the Settlement department, and at the same time to avoid payment of transfer price. He upheld the resumption order, dated 20th October, 1976 which was issued before the expiry of the period allowed by the demand notice served on the wife of Siraj-ul-Haq on 16th October, 1979. In his opinion, Siraj-ul-Haq was a defaulter, who merely wanted to retain the property by prolonging litigation. He referred to the order dated 24th February, 1968 passed by the Settlement Commissioner (Policy) and observed that this having not been challenged attained finality. It is to be noticed that this revision was heard alongwith the one filed by Mst. Nisar Fatima, which was also dismissed by the same order. Siraj-ul-Haq expired on 7th October, 1968 and his heirs, challenged the dismissal of the revision through Writ Petition No, 265/R/1969 in which on 20th February, 1969 status quo was ordered to be maintained subject to the writ, petitioners' depositing of Rs, 31,000 with the Deputy Registrar of the High Court, within one month. This order was not complied with, and the writ petition was dismissed on 9th June, 1969, when the petitioners' counsel submitted to the Court that he had no instructions. In the meantime the heirs of Siraj-ul-Haq were ejected by the Settlement department from the house in question and the auction-purchaser inducted therein.
They filed Writ Petition No, 16/R/1972 against their ejectment, which was accepted on 27th September, 1972. The matter is now stated to be subjudice before the Supreme Court.
10. Claiming that by issuance of Compensation Book, a fresh cause of action has arisen to them, the heirs of Siraj-ul-Haq have filed Writ Petition No, 1836/R/1974 calling in question the validity of the Settlement Commissioner's order dated 16th October, 1968, the orders passed by the Deputy Settlement Commissioner and so also the disposal of the property in favour of Abdul Hadi Khan.
11. As regards the case of Mst. Ghulam Sakina and the heirs of Mst. Walayat Begum after the confirmation of auction, in favour of Abdul Hadi Khan, both the transferees were issued separate demand notices Nos. 3/387 and 3/388, dated 13th January, 1970, requiring them to pay the transfer price of Rs, 31,200 in each case within 30 days of receipt of the notices. Mst. Ghulam Sakina complied with the notice issued to her and paid the transfer price and other Government dues. On 9th June, 1970 the Settlement Commissioner (Urban) addressed a letter to the Deputy Settlement Commissioner requiring him to explain as to why these notices were issued, when the entire property had already been sold to Abdul Hadi Khan. A hint was also thrown that a P. T. D. Be issued to the auction-purchaser. The'Deputy Settlement Commissioner thereupon by his order, dated 29th June, 1970 maintained that Siraj-ul-Haq acted as attorney for his mother and his aunt and mother- in-law Mst.. Walayat Begum in the proceedings before the Settlement Commissioner (Policy) which culminated in order, dated 24th February, 1968, as a result whereof the entire property was resumed and auctioned. He held that the demand notices, dated 13th January, 1970 were issued by mistake and accordingly cancelled the same.
12. Mst. Ghulam Sakina as well as the heirs of Mst. Walayat Begum filed two separate appeals against the Deputy Settlement Commissioner's order, dated 27th June, 1970, in which they took the stand that only the portion of the property transferred to Siraj-ul-Haq was resumed and put to auction, and that no resumption order was passed in respect of the property transferred to them.
That they were neither served nor heard before passing of the impugned order by the Deputy Settlement Commissioner. This appeal was accepted by the Additional Settlement Commissioner on 18th January, 1971, who remanded the case to the Deputy Settlement Commissioner for a fresh decision.
13. The auction-purchaser preferred revision petitions from this order both against the heirs of Mst.
Ghulam Sakina and the heirs of Mst. Walayat Begum, which fell for hearing before the same learned Settlement Commissioner (Respondent No, 2) who passed the order, dated 16th October, 1968 rejecting the revision petition of Siraj-ul-Haq and had also issued letter, dated 9th June, 1970 to the Deputy Settlement Commissioner referred to in para. No, 11 of the judgment. Both the revision petitions were taken up for hearing together by the learned Settlement Commissioner. While the case was pending before him, petitioner No, 1 (in W. P. No, 605/R/71) who was one of the respondents in the revision petition, filed against the heirs of Mst. Walayat Begum, on 29th March, 1971, moved an application before the learned Chief Settlement Commissioner, for transfer of the case. The reasons assigned in the application, were that respondent No, 2 profusely insulted the applidant's .Wife in the open Court; that even on medical ground he did not grant a longer adjournment and postponed the hearing only for four days. Letter, dated 9th June, 1970 sent by respondent. No, 2 to the Deputy Settlement Commissioner was also taken up as a ground for transfer of the case. On 14th May, 1971 which was the date of hearing, respondent. No, 2 adjourned the case to 31st May, 1971, as the order of the Chief Settlement Commissioner on the transfer application was still awaited. It appears that this adjournment was granted in the absence of the auction-purchaser, who on the same date brought it to the notice of respondent No, 2 that the transfer application had already been turned down by the Chief Settlement Commissioner, who also ordered early disposal of the case. Respondent No, 2 accordingly changed the date of hearing from 31st May, 1971 to 19th May, 1971. On the notice sent to the petitioners (in W. P. No, 605/R/71) of intimation of date of hearing, the process server reported : - {{URDU TEXT}} "Sd/- 17th May, 1971.
On the strength of this report, ex parte proceedings were conducted against the petitioner, Arguments were heard and both the revisions were accepted by the learned Settlement Commissioner by his order, dated 22nd May, 1971. This order as well as the Additional Settlement Commissioner's Order, dated 18th January, 1971 and the Deputy Settlement Commissioner's Order, dated 17th June, 1970, have been impugned by the heirs of Mst. Walayat Beguni through Writ Petition No, 605/R/1971, and by Mst. Ghulam Sakina, now represented by her legal representatives, through Writ Petition No, 664/R/ 1971. For the.Sake of facility both the Writ Petitions are taken up first.
W. P. No, 605/R11971 and W. P. No, 664/R/1971.
14. The first submission of the learned counsel for the petitioners in both the cases was that the property transferred to Mst. Walayat Begum and Mst. Ghulam Sakina was not resumed and transfer' made in their favour cancelled. It was urged that the petitioners' property was not included in the auction list and was thus never put to auction ; the transfer documents issued to the auction purchasers for the whole of the Property No, S. 69-R-23 including the portion transferred to the petitioners were without lawful authority and did not confer any right on the transferee in relation to the petitioners' property.
15. It is not disputed by any of the parties that there is no specific order on the file regarding cancellation of the transfer of the property to the petitioners and resumption thereof. The case of the respondents, however, is that the petitioners or for that matter their predecessor-in-interest, and Siraj-ul-Haq are the members of the same family and they took unanimous decisions ; Siraj- ul-Haq was the attorney for both the ladies and in that capacity he moved the application, dated 24th February, 1968, before the Settlement Commissioner (Admn. And Policy) for exclusion of the property from the auction list, which was disposed of by him by an order of the even date 'whereby it was, directed that the auction would not be confirmed for 15 days and if full payment was made during the period the house would be allowed to stand in the name of the applicant, otherwise its transfer to the highest bidder would hold good. The submission was that the petitioners' predecessor-in-interest could not have been unaware of this order, which was neither complied with nor challenged before the proper forum; the entire property, therefore, stood resumed.
Reliance was placed on the statement of Siraj-ul-Haq, dated 10th October, 1960 in which he assented that he was attorney for the two ladies. A copy of the deed of Power-of-Attorney, from the settlement file, whereby the two ladies had appointed Siraj-ul-Haq as their attorney, was also mentioned to establish that the petitioners' predecessors-in-interest were bound by the omissions and commissions of Siraj-ul-Haq (decesaed). It was further argued that after publication of the auction list, the ejections could be filed before the Deputy Settlement Commissioner against the inclusion in the auction list of the property transferred to the petitioners' predecessors-ininterest. As no objections were preferred, the petitioners were precluded from asserting that their property was not included in the auction list. It may be observed that Mst. Amina, petitioner No, 5 in Writ Petition No, 605/R/71 is the widow of Siraj-ul-Haq, who alongwith other heirs of the deceased, had filed Writ Petition No, 165/R/69 in which it was averred that the entire bungalow was included in the auction list. This averment, was sought to be used as an admission, by the respondents' learned counsel, against all the heirs of Mst. Walayat Begum.
16. The power to cancel and resume the property for default in payment of transfer price is to be found in para. 3 of the Settlement Scheme No, VIII, as it existed before its reconstitution in the year 1973 which empowers the Deputy Settlement Commissioner to cancel the transfer and resume the property, in case, the demand notice issued to the transferee by registered post acknowledgement due goes unheeded. Both under para. 24 of the Schedule and para. 4 of Scheme VIII, it is only after cancellation of the transfer that a property becomes available for disposal, in pursuance of pares.
5, 6 and 7 of the Scheme. The cancellation and resumption of the property is thus a condition precedent for making the property 'available' for disposal. I feel that these provisions are imperative and because of noncompliance thereof, legally, the petitioners' property did not become "available" and, therefore, it could not be auctioned. It is well established that when the enactment provides that a thing should be done in a particular manner it has to be done in the same way or not at all. Reference may be, made in this connection to Ghulam Abbas v. The Additional Commissioner and Election Tribunal, West Pakistan Province v. Jamshed Miran, Mian Abdul Majid and others v. Chief Administrator of Auqaf and Muhammad Yousaf Khan Khattak v.
S.M. Ayub and others.
' Even otherwise the premises relied upon by the respondents do not justify an inference that the petitioners' property was lawfully disposed of in favour of the auction-purchaser.
17. The main argument of the learned counsel for the respondents was that Siraj-ul-Haq was the attorney for the two ladies. To weigh their submission, I have carefully gone through the copy of the deed of Power-ofAttorney from the Settlement File. It was executed by Mst. Walayat Begum and Mst. Ghulam Sakina in favour of Siraj-ul-Haq on 12th March, 1935 authorising the latter to manage their movable and immovable property situate in Bahawalpur State and Batala District Gurdaspur.
The attorney was also authorized to lease out the property, recover the rent and to conduct cases in the Civil Court and High Court in respect of the property aforesaid. By no stretch of imagination, through this deed, which was executed in the year 1935, power can be considered to have been conferred on the attorney to represent the executants before the Settlement authorities.
18. The well-known principle enunciated by their Lordships of the Privy Council in Bryant v. La Branque De Peuple for construction of deed Power of Attorney is that : "Nor was it disputed that powers of attorney are to be construed strictly, that is to say, that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show, that on a fair construction of the whole instrument, the authority in question is to be found within the four corners of the instrument either in express terms or by necessary implication."
' If the power of attorney is construed in the light of this precedent which has been followed in numerous cases in the Indo-Pak Sub-Continent, it is difficult to sustain that the application, dated 24th February, 1968, was made or could have been made under the said instrument of power of attorney, on behalf of the two ladies. It is well-settled rule of construction of power of attorney, that operative part of the deed is controlled by the recitals. The general words used in the later part of the deed are relatable to the main object, namely, the management of the property situate in Bahawalpur State and Batala There is thus, no force in the submission of the learned counsel for the respondents that the application, dated 24th February, 1968 was filed by Siraj-ul-Haq on behalf or the petitioners' predecessor-in-interest as well, and the order passed therein is binding on them.
Though in the application, dated 24th February, 1968 the pronoun "we" has been used by the applicant, namely, Siraj-ul-Haq, but there is no indication that it was filed by him on behalf of the other two transferees. No doubt in his statement, dated 10th October, 1960, Siraj-ul-Haq, posed1 2 3 4 5 himself to be the attorney for Mst. Walayat Begum and Mst. Ghulam Sakina, but his this unilateral statement cannot be considered as an authority to bind the ladies resulting in their deprivation of valuable rights in the property. It is to be noticed that Mst. Walayat Begum died on 12th May, 1960.
With her death even the deed of power of attorney, dated 12th March, 1935 came to an end. 1 am, therefore, inclined to hold that the application dated 24th February, 1968, and the order passed therein by the Settlement Commissioner (Admn. And Policy), was in no manner binding on the petitioner's predecessors-in-interest, and they were not bound to challenge it.
19. As regards the argument that the petitioner's predecessor-in-interest should have filed objections against the inclusion of their property in the auction list, it is evident from the particulars of the property given in the auction list, as reproduced in the earlier part of this judgment, that in the column relating to the occupants of the property, only the name of Siraj-ul-Haq was shown.
The reserve price is mentioned as only Rs, 45,600 whereas its actual reserve price is Rs, 17,600. Both the ladies were in occupation of the property as allottees on the basis of their own rights. The copies of the allotment orders were filed by them with their respective C. H. Forms. Normally, if the entire property was intended to be include in the list, the names of all the occupants thereof should have been mentioned in the relevant column of 'the auction list. The omission of the names of the two ladies from the auction list coupled with E the fact that the resumption order was passed by the Deputy Settlement Commissioner only in respect of the portion transferred to Siraj-ul-Haq and that the full reserve price was also not show therein, lends support to the submissions of the petitioners' learned counsel, that only the portion transferred to_Siraj-ul-Haq, was made available for disposal through auction in these circumstances, the failure on the part of the heirs of Mst.
Walayat Begum and Mst. Ghulam Sakina, to file objections in respect of the auction list, can neither operate as an estoppel against them nor can it legitimately lead to the inference that it was accepted by them that the entire property was put to auction. Much emphasis was laid by Mr. Mahmood Ali Qasuri, on the word "full" as shown in the remarks column of the auction list to contend that the entire building was included in the list. On the other hand, the contention of the petitioners' learned counsel was that the word "full" merely signified the full share of SirajuI-Haq comprising portions Nos. 2 and 3 of the building, transferred to him by the Deputy Settlement Commissioner by the order, dated 11th October, 1980. While determining the true implication of the word "full", and to find out whether an impression could be carried from the auction list that the entire building was intended to be put to auction. It is to be seen that when a conclusion is to be reached after appreciation of a number of events then the cumulative effect of all the facts has got to be assess in relation to the entire combination of the circumstances and the soundness of an inference, resting on a single fact in isolation, should not lightly be accepted. On consideration of all the relevant facts, I am of the view that conclusion sought to be adduced, from the entries in the auction list by the respondents' learned counsel, is not warrantable. In the circumstances of the case and in the context of the submissions of the learned counsel for the respondents, the finding of the Settlement Commissioner that the entire building was put to auction, is not material. The point which is being examined is whether the petitioner's or for that matter their predecessors-in interest were under an obligation for filing objections to the auction list. In the face of the aforesaid events, he adverse inference ca be drawn against the petitioners for their failure to file objections to the auction list. Even otherwise a person whose property unauthorisedly is included in the auction list is not bound to file objections.
' The argument that the averment made W. P. No, 165/R/1969 that the whole house was not to auction, operated as an admission against all the heirs of Mst. Walayat Begum is also devoid of force. A litigant may deal with a suit in a particular manner and an admission made by him with an object in view, in the pleadings delivered in that suit, is not binding on him in another suit and certainly not for all times to come. This view finds support from Ramabai Shririwas Nadgir v.
Government of Bombay. Furthermore, only Mst. Amina was party to Writ Petition No, 165/R/69. The other heirs of Mst. Walayat Begum cannot be bound by her admission.
20. It was next argued on behalf of the petitioners (in W. P. No, 605/ R/71) that they were not given an adequate opportunity of being heard and the ex parte proceedings conducted against them cannot be sustained. It was submitted that the change of date of hearing from 31st May, 1971 to 19th May, 1971 by respondent No, 2, at the behest of the auction-purchaser was uncalled for and betrayed his leaning towards the latter. As observed above, a notice was sent to the petitioners intimating them that the case was to be heard on 19th May, 1971. It was on the strength of the process-server's report as to the petitioners' refusal to accept service that the learned Settlement Commissioner proceeded ex parte against them. This report was dubbed as collusive by the petitioners' learned counsel. It was also urged that the learned Settlement Commissioner having already expressed his opinion, on some of the major points involved in the petitioners' revision, through his order, dated 16th October, 1968, while disposing of the revision petition of Siraj-ul-Haq and so also in his letter, dated 9th June, 1970 addressed to the Deputy Settlement Commissioner whereunder the tatters' explanation was called for, for issuing demand notices to the petitioners, could not sit in judgment upon their revision petitions.
21. Controverting these submissions Mr. Mahmood Ali Qasuri contended that the report of the process-server was accepted by the learned Settlement Commissioner and its correctness, therefore, could not be gone into by the High Court. He urged that even if there was some irregularity in effecting service on the petitioners, they were fully aware of the date of hearing, as Mst. Ghulam Sakina attended the Court of the learned Settlement Commissioner on 19th May, 1971, both the parties resided in the same house and the petitioners, therefore, could not be deemed to have been unaware of the date of hearing, and sought support for his submissions from Ghulam Fatima v. Government of the Punjab through Secretary of Communications and 4 others. Haji Noor Muhammad and 2 others v. Syed Muhammad Naqvi and another and Ayub Khan and another v.
Fazal-Haq and others. It was further contended that the Settlement Commissioner was a special tribunal and the proceedings before him, could not be assailed merely on the ground of technicalities, through invocation of constitutional jurisdiction of this Court. For this proposition the learned counsel relied on Khuda Bux and others v. Fida Hussain and others. As regards the objection to the hearing of revision petition by the learned Settlement Commissioner on the ground that he had already expressed his opinion. It was argued that the petitioners moved an application before the Chief Settlement Commissioner for transfer of the case, but could not succeed. The submission was that the propriety of hearing the case by the Settlement Commissioner was fully examined by the learned Chief Settlement Commissioner and the petitioners' contention in this respect was found without any merit.
22. It cannot be denied that the correctness of a report of the process-server, made by him on the summons, is a question fact, truthfulness whereof cannot be scanned in the proceedings under Article 199 of the Constitution, unless there is material on the fill to establish that such a report is manifestly wrong and perverse.
In the instant case, however, the determination of the issue as t whether or not the petitioners really declined to accept service d not present itself for determination. It is the legal efficacy of the report which requires adjudication. Under section 23 of the Displaced Persons (Compensation and Rehabilitation) Act, the Settlement Commissioner while hearing the revision, in the matter of issuing sum-mons to the petitioners, who were respondents in the revision petition, had the same powers as vest in a Civil Court under C. P. C. When trying a suit. In this respect a reference to Order V, rule 17 will provide that when the defendant refuses to accept the summons or after due and reasonable diligence he cannot be found by the serving officer, such officer is required to affix a copy of the summons on the outer door or some other conspicuous part of the defendant's houses. This6 7 8 9 10 provision is mandatory. The learned Settlement Commissioner before proceeding against the petitioners, therefore, was bound to satisfy himself that the requirements of law in the matter of service of summons on the petitioners had been complied with. It is evident from the record that no service by affixation was made on the petitioners as required by Order V, rule .17, C. P. C. The learned Settlement Commissioner before proceeding ex parte against the petitioners, does no appear to have adverted to this aspect of the matter. It is not borne out from the report that all the petitioners who were six in number had refused the notice. Proper service on a defendant is the foundation for conducting ex parte proceedings against him. As the essential requirement of law for effecting service on the petitioners was not fulfilled, it is difficult to sustain the ex parte order passed against them by the learned Settlement Commissioner.
23. Before weighing the submission of the respondents' learned counsel that the petitioners were aware of the date of hearing through Mst. Ghulam Sakina, it will be useful to refer to the precedents referred to by him. In Ghulam Fatima's case a learned Single Judge of this Court maintained that a notice, under the provisions of the Land Acquisition Act, addressed to all joint owners of the Khewat but served upon one of them was good service as against other joint owners not personally served.
In Haji Noor Muhammad's case it was observed that failure of the department to intimate the rejection of C. H. From to the petitioner did not detract against the validity of the rejection order.
Obviously, the observations made in both these reports have no applicability to the facts of the instant case. As regards the third precedent of Ayub Khan v. Fazal Haq the facts of this case are that the process-server effected service by affixture on the tenant, without obtaining orders from the Rent Controller, who actpted the service as correct and passed an ex parte order against the respondents. An application was moved by them under Order IX, rule 13, C. P. C., but the Rent Controller on the basis of the statement of the process-server and other evidence upheld the service by affixture. The validity of the service was challenged on the ground that the process- server should have obtained prior permission of the Rent Controller before resorting to service by affixation. The Supreme Court on examination of Order V, rule 15, C. P. C. And its comparison with the language used in Order. V. Rule 20 held that serving officer was himself Tully empowered to effect service by affixation. In the course of this judgment, relying on Khadim Mohy-udDin and another'v. Ch. Rehmat All Nagra and another PLD 1965 SC 459 it was observed that the Rent Controller's discretion in the matter of service of the Court processes on the defendant is unfettered. The ratio of this judgment is the correctness of service by affixture made by the serving officer on a defendant without obtaining orders of the Rent Controller. So far as the instant case is concerned, though the process-server had the power to effect service on the petitioners by affixation, yet he failed to comply with the requirement of Order V, rule 17. The generalized observation made by their Lordships of the Supreme Court in this case that the Rent Controller is not bound by C. P. C. And especially the procedure for effecting service on the defendant is within his exclusive discretion and that he is entitled in exercise of his this discretion to follow the principle of C. P. C. Shall be deemed to have been made with reference to the facts obtaining in that case. It is well-established that a precedent is only an authority for what it acts ill decides : every judgment must be read as applicable to the particular facts proved in the case and generality of the expression which may be I found there in is to be qualified by the particular facts of that case. In this connection reference may be made to Punjab Co-operative Bank v. Commissioner of Income- tax Lahore and King v. Strick Land I do not think that the precedent in Ayub Khan's case, can advance the respondents' cause and lacuna in effecting service on the petitioners can be ignored.
24. Though Mst. Ghulam Sakina and the petitioners (in Writ Petition No, 605-R-71), were residing in the same building, yet the former's knowledge of the date of hearing could not be construed as intimation of the date of hearing to the petitioners. The learned counsel for the respondents also referred to the provisions of Order V, rule 15 of the Civil Procedure Code to justify the ex parte11 12. proceedings against the petitioners. The provision permits only the service of the summons on any adult male member of the family of the defendant who resides with him, and the defendant cannot be found by the process-server and has no agent empowered to accept service. In my view Order V, rule 15 of the Civil Procedure Code is not attracted in this case, in any manner. In Amir Khan v. University of Sind, after reviewing some case law on the subject it was maintained that knowledge of the institution of the suit derived by a defendant aliunde, does not justify dispensation of service of summons in accordance with law. I am there fore, of the view that Ghulam Sakina's knowledge of the date of hearing did not bind the petitioners and the ex parte orders passed against them cannot be upheld. Khuda Bakhsh v. Fida Hussain, was a case under the Karachi Rent Restriction Act, 1953, and it was held therein that with al reference to the exercise of the writ jurisdiction, the validity of the proceedings, before a Special Tribunal should not be adjudged from the point of view of mere techanicalities which are observed by the law Courts. The petitioners had, a right to be heard which could not be denied to them except in accordance with law. For sustenance of the ex parte order Against!, them it must be proved that they were served in accordance with law. The petitioners are six in number who were presumed to have denied to accept service. I feel that the submission of the petitioners' learned counsel regarding illegality of service, is not a mere technicality which can be ignored.
25. The learned counsel for the respondents raised another point that Writ Petition No, 605-R-7I, as well as the power-of-attorney appended therewith signed only by petitioner No, 1, and that, therefore, the other petitioners could not be considered to have agitated against the impugned orders. There is little merit in this submission. Though initially, the power-of-attorney filed with the petition bore the signatures of only petitioner No, 1, yet during hearing of the case the petitioner's learned counsel placed on the file a power-of-attorney signed by all of them. The signing of the petition by all the petitioners is not essential and it can be filed on their behalf by their counsel. The failure of all the petitioner to sign the "Vakalat Nama", is a mere irregularity which stood cured by subsequent submission of a fresh `Vakalat Nama, signed by all of them. Support for theis view can be found from Khodi La! v. Ch. Ahmad Hassan and Haider Butt Model Export Company v. United Trading Co.. Even otherwise in case of acceptance of the petition, the removal of the impugned orders shall enure for the benefit of all the time of Mst. Walayat Begum. The non-signing of the petition and the Vakalat Nama by all the petitioners; is, therefore, of no consequence.
26. The other contention of the petitioners' learned counsel that the learned Settlement Commissioner was disqualified from hearing the revision petition as he has already expressed his opinion is also not without merit. In the letter, dated 9th June, 1970 which was issued under the signatures o the learned Settlement Commissioner, who heard the petitioner's revision, it was clearly maintained that the petitioners' property had been resumed for their default in payment of the transfer price. A direction was also given to the Deputy Settlement Commissioner to issue the Permament Transfer Deed to the auction purchaser. These very points had been agitated by the petitioners in their revision petition. Perusal of the order dated 16th October, 1968 will also demonstrate that the learned Settlement Commissioner, having unequivocally expressed his views in the matter of jointness of the parties and on some other issues, which also fall for consideration in the petitioners' revision could not have taken a decision different from the one already arrived at by him in his previous judgment. It would have thus been in the fitness of things if the petitioners' case was heard and disposed of by some other Settlement Commissioner.
' It may be added that the petitioners' learned counsel also assailed the recall of that Demand Notice, dated 15th February, 1970 by the Deputy Settlement Commissioner. The reply of the other side was that there was no order on the file directing the issue of these notices. It however, could not be denied that these Demand Notices, bore the signatures of the Deputy Settlement13 14 15 Commissioner. In view of my findings that the property transferred to the petitioners could not be auctioned a verdict on this point has got to be recorded in the petitioners' favour.
27. After having dealt with W. Ps. Nos. 605/R/71 and 664/R/74, the third W. P. No, 1836/R/73 may now be taken up.
28. The first attack of the petitioners' learned counsel on the impugned order was that Siraj-ul-Haq deceased hat filed form 'A' in accordance with law for issuance of the Compensation Book. It was the responsibility of the Department to have supplied him the Compensation Book in question, which was his vested right. Despite numerous letters addressed by Siraj-ulHaq to the various settlement authorities, including representation made to the President's Secretariat, Compensation Book was not issued to him during his lifetime. He strongly refuted the view taken by the learned Settlement Commissioner in the impugned order that issue of Compensation Book to Mst. Walayat Begum against form A-623 which was filed by Siraj-ul-Haq (deceased) was a manipulation, to prolong litigation for retaining the property by the deceased without payment of transfer price. His submission was that it was an obligation of the depart'. Ent to issue the Compensation Book to each claimant, against the form 'A' filed by him, for the mistake committed by the departmental authorities, in issuing Compensation Book to Walayat Begum against a wrong form 'A', the decesaed or for that matter Mst. Walayat Begum could not be blamed. He argued that at no stage it was pointed out to the deceased by the department that erroneous utilisation of form A-623 was the cause of delay in supplying the Compensation Book to him. He referred to Haji Abdul Rahim, Haji Abdullah and 2 others v. Commissioner of Income-tax to urge that no one should be prejudiced because of the in-action of the governmental authorities.
' It was also argued that evaluation price. Of the property transferred to Siraj-ul-Haq (deceased) was never determined by the Settlement authorities, in accordance with Para. 23 of Settlement.
Scheme No, 1, before putting it to auction. Relying on Para. 29 of Settlement Scheme No, 1 he further argued that the deceased was entitled to notice of transfer in the form Appendix XI it was, thereafter, that the Deputy Settlement Commissioner was to make the necessary adjustment of the deferred payment in the deceasea's Compensation Book against the transfer price for the balance of the transfer price he was required to fix the amount of instalments and the dates' on which these were to be paid and then hand over to the transferee an instalment order in Form Appendix-XI. He contended, that it was only after fulfilling these requirements of law that the demand notice sent to Siraj-ul-Haq if remained tr.- complied that the property could be resumed and deemed to become available under Para. 3 of the Settlement Scheme No, VIII, as it existed before its reconstitution ; only the property so resumed would be disposed of in accordance with law. The conclusion sought to be drawn by the learned counsel from these arguments was that the provisions of paras. 23 and 29 of the Settlement Scheme No, 1, are mandatory and non-compliance therewith has rendered illegal and void the entire action of the Settlement authorities. It was submitted that the department itself was not clear about the transfer price and as against the demand of Rs 55,200 placed on Siraj-ulHaq, the reserve price shown in the auction list was Rs, 45,600. To substantiate that an order passed in violation of the provisions of Settlement Scheme No, 1 is liable to be struck down in exercise of the extraordinary jurisdiction of this Court, the learned counsel placed reliance on Gulzar Muhammad v. Chief Settlement Commissioner, Pakistan and another, Ch. Sardar Ali v. Ch. All Muhammad and anotherand M. Ahmad Din Butt v. Ehsanul Haq and others.
' An additional ground, advocated by the petitioners' learned counsel, to assail the validity of the resumption order, was that the last demand notice under para. 24 of the Schedule and para. 2 of Scheme VIII, requiring the deceased to pay the transfer price within 30 days of receipt of notice, was served on his wife, on 16th October, 1967. But, the property was illegally resumed before the expiry of the period of notice. The other notices issued to the deceased, which have been referred16 17 18 19 to in the earlier part of this judgment, were also called in question, on the plea that without complying with the requirements of paras. 23 and 29 of the Scheme, it was not open to the department to revoke the provisions of para. 24 of the Schedule or for that matter Para. 35 of Settlement Scheme No, 1 and Para. 2 of Settlement Scheme No, VIII.
' It was also submitted that the learned Settlement Commissioner while determining the petitioners' revision did not deal with the case with open mind and was wrongly influenced by the order, dated 24th February, 1968 passed by the Settlement Commissioner (Policy).
29. The respondent's learned counsel on the other hand, argued that the Compensation Book could not be issued to Siraj-ul-Haq (deceased) due to his own commissions and omissions. Form A-626 filed by him, was utilised by his motherin-law, Mst. Walayat Begum, and compensation obtained by her against this form. He contended that the deceased, who was attorney for her, could not have been unaware of issuance of the Compensation Book to her against his form A. Relying on the letter, dated 14th March, 1964 addressed to the Deputy Settlement Commissioner by the deceased, wherein he requested that the case regarding issue of Compensation Book may be kept pending, as he wanted to file a writ petition against the order of the Additional Claims Commissioners, it was urged that the deceased himself has been requesting the department to keep pending the issuance of Compensation Book. The learned counsel further submitted that the evaluation price of the property transferred to the deceased was Rs, 55,200 and at the most the deferred payment available in his Compensation Book was Rs, 17,370 after adjusting this amount, the deceased was to pay Rs, 37,830 as balance of the transfer price ; opportunity was given to him by the High Court in Writ Petition No, 165-R-69 to deposit this amount with the Deputy Registrar of the Court, but he failed to do so ; even earlier Siraj-ul-Haq (deceased) could have deposited the transfer price in pursuance of the Settlement Commissioner (Policy), dated 24th February, 1968 within time limits of 15 days allowed to him, to avoid confirmation of the auction. Under these circumstances, it was urged, that the deceased was not prejudiced by the delay in issue of Compensation Book to him and he merely wanted to retain the property without payment of transfer price by creating confusion and engaging department through litigation. In this connection reference was made by the learned counsel to the various notices issued to the deceased. As regards the petitioners' objection that resumption order, dated 20th October, 1967 could not be passed during time limit granted by the demand notice, it was related on behalf of the respondents that no prejudice was caused to the deceased, as despite opportunities given to him he did not pay the transfer price. In reply to the other objections of the petitioners, resting on paras. 23 and 29 of Settlement Scheme No, 1, it was stated on behalf of the respondents that the deceased was fully aware of the transfer price through the order, dated 21st October, 1964 whereby the rent was apportioned between the three transferees of the bungalow and so also throuh various notices subsequently served on him, which were ignored. He argued that it was out of mistake that the reserve price of the property was mentioned as Rs, 46,200 in the auction list.
30. The maintainability of the writ petition was also questioned by the learned counsel for the respondents on the ground of res judicata. In this respect it was argued, that plea as to the non- payment of transfer price because of the departmental failure to issue the Compensation Book was not urged in Writ Petition No, 165/R/69 and, therefore, could not be raised in the instant writ petition. Support for this view was sought by the learned counsel from Mirza Muhammad Yaqub v.
The Chief Settlement Commissioner and another and Abdul Ghafoor v. Settlement and Rehabilitation Commissioner, Karachi, and 3 others, in support of the plea of res judicata it was contended that law did not permit filing of successive writ petitions on the same cause of action.
The argument was that the dismissal of W. P. No, 165/R/69 was a bar to the filing of the instant petition. In this connection, the learned counsel heavily relied on Barkat v. Haji Ghulam Muhammad and another, Fazed Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others,20 21 22 23 Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others, Tamizuddin Munshi v. Election Tribunal and Additional Deputy Commissioner, Mymensingh and another and Muhammad Mukhtar Rana v. Special Tribunal, Punjab.
' It was also argued that after the dismissal of W. P. No, 165/R/69 the deceased acquiesced in the impugned order, his successors-in-interest, who were bound by his conduct were precluded from filing the instant writ petition. Reference was made to Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore, etc. in support of this submission.
' Lastly it was urged that the impugned orders are just and proper and do not call for any interference under the constitutional jurisdiction of this Court particularly when P. T. D. Had already been issued to the respondents' predecessor-in-interest. Dewan Ali and 7 others v. Barkat All and 2 others was cited in support of this view.
31. I have examined the record in the light of the submissions made by the learned counsel for the parties. Section 11 of the Displaced Persons (Commpensation and Rehabilitation) Act empowered the Chief Settlement Commissioner to invite applications from the claimants, for the payment of compensation to them, under the Act. Section 15(1) of the Act, conferred entitlement on a claimant to receive compensation out of the compensation and rent pools, contemplated by sections 4 and 5, the extent of the amount shown in the certificate issued to him under subsection (2) of section 12.
The procedure for submission of applications and issuance of compensation books is governed by the Displaced Persons (Application for Compensation) Rules, 1959, framed under section 35 of the Act. It is evident from the perusal of these provisions of the Act that a person having a verified claim, had a vested right to receive compensation and issuance of the compensation book to him by the department. This view is fully fortified by a Division Bench Judgment of this Court in the case of All Bakhsh v. Additional Settlement Commissioner. It is manifest from rule 4, which in so far as relevant is reproduced below, that a duty is cast on the Deputy Settlement Commissioner to prepare the compensation book and supply it to the claimant concerned :- "On receipt of an application under rule 3, the Deputy Settlement Commissioner, concerned, shall, after such verification of the entries made therein as he may deem necessary, prepare a compensation book (in triplicate) in form 'B.' One copy of the Compensation Book will be supplied to the claimant concerned and one copy to the Settlement Record Section in the Office of the Chief Settlement Commissioner, Lahore, and the third copy retained in the Office of the Deputy Settlement Commissioner, concerned."
32. The argument advanced on behalf of the respondents witness book to Mst. Walayat Begum, does not deserve serious consideration impugned order with the learned Settlement Commissioner, attributing the delay in issue of the compensation book, to the utilization of Form 'A'
No, 623 for supply of compensation book to Mst. Walayat Begum, does not deserve serious consideration. There is also no substance in the contention that it was through maniplation of deceased Siraj-ul-Haq that compensation book was issued to Mst. Walayat Begum against his form 'A'. It was an error on the part of the department in failing to issue a compensatio book to Walayat Begum against her own form 'A'. The record shows that the deceased all along was clamouring for issue of the compensatio book and he made various representations to the concerned quarters in this respect. The real reason for non-issue of the compensations book was never sorted out by the department during his life time it was for the first time under the impugned order dated 16th October, 1968 that the learned Settlement Commissioner took the view that the delay in issuance of the compensation book to Siraj-ul-Haq, deceased, was caused due to utilization of his form 'A' for preparation of compensation book of Walayat Begum. The department was possessed of the record and they could have found out the error, had the case been dealt with vigilantly. It transpires from the file that the.Deceased filed form 'A' on 24th April, 1959. The parawise24 25 26 27 28 29 comments filed by the department indicate that for a number of years the matter remained under correspondence between various settlement offices. It was in the year 1970 that after 11 years, the department, for the first time, addressed letter No, SC (R) G1-CB/Misc./373, dated 26th October, 1973, to the deceased, requiring him to furnish the copy of Form 'A' and copy of the verification order though these documents were already on the file of the department. The casual mention by the deceased in his letter dated 14th March, 1964, sent to the Deputy Settlement Commissioner, that issuance of the compensation book be held in abeyance as he wanted to file a writ petition, cannot legitimately be made use of by the department to cover their neligence, in fact, the department never counted upon this reason to withhold the compensation book, which was ultimately issued to the heirs of the deceased on 27th March, 1973, nearly after 15 years of submission of form 'A' by him.
It is to be noticed\ that when a duty is imposed on a public officer, breach of such duty by the public functionary cannot be permitted to affect injuriously, the interest of citizens, who have the control over those exercising the duty. In Abdur Rehim v. Commissioner of Income-tax, it was laid down that a litigant cannot be made to suffer for the laches and inactions of the. Department. I am, therefore, constrained to hold that depatment's failure to issue the compensation book, is clearly an act of derelication of the duties imposed upon them by law.
33. For ascertaining the effect of non-issuance of the compensation book to the petitioners' predecessor-in-interest, a reference to para. 23 of the Settlement Scheme No, 1, will provide that after determining the entitlement of an applicant, it is necessary for the Deputy Settlement Commissioner to make evaluation of the property. After having done so, the next step to be taken by him is to send a notice of transfer to the claimant transferee in the form specified is Appendix 'X', which is to be found at page 298 of the Old Settlement Manual. Para. No, 3 of this form is reproduced below :- "3. The transfer price may be paid by you in cash in thirty-six equal monthly instalments or it may be got adjusted against the amount of deferred payment shown in your Compensation Book and in the Compensation Book of any other claimant whom you may like to associate with yourself as a share-holder in the property to be transferred. You should, therefore, furnish the following information :
(1) Do you want to make payment in cash or utilize the amount of deferred payment in your Compensation Book ? Please state the amount in each case.
(2) Do you want to associate other claimants with you ? If so, give the particulars required below :
(3) The Compensation Book of each claimant." Sub-para. (4) of para. 29 of the scheme runs as under : "Having fixed the amounts of instalments and the dates on which they are to be paid the Deputy Settlement Commissioner shall hand over to the transferee in possession an instalment order in the form specified in Appendix XI, and Provisional Transfer Order in the form specified in Appendix XII.
' The first instalment shall be payable within one month of the date of issue of the-Instalment Order."
34. Whether or not the provisions of paras. 23 and 29 are mandatory, need not be gone into as even the contravention of directory provisions, causing prejudice to a party, invalidates the proceedings and I find that Siraj-ul-Haq was prejudiced by violation of these provisions of the scheme ; a facility to make payment by instalments, after adjustment of the deferred payment available in his compensation book against the transfer price was provided to him by law which he could not make use of in the absence of the instalment order. Under the High Court's order passed in Writ Petition No, 165-R-69, and the Settlement Commissioner's order dated 24th February, 1968, the deceased was required to pay the amount in lump sum. It cannot, therefore, be said that his failure to comply with these orders was unconstrained. In Alvnad Din v. Ehsanul Haq the case was remanded to the Settlement authorities by the Supreme Court for a fresh, decision, as he had failed to comply with all the requirements of para. 5 (c) of the Settlement Scheme No,
1. In the second precedent referred to by the petitioners' learned counsel, namely Gulzar Muhammad v. Chief Settlement Commissioner, the order of the Settlement authorities passed in violation of para. 22-A of Settlement Scheme No, 1, assessing the market value on the basis of higher of the two assessm ents, was set aside. In Ch. Sardar Ali v. Ch. Muhammad All and another, the petitioners were not heard as required by para. 10 of the Settlement Scheme No, 1 and their forms were not considered by the Deputy Settlement Commissioner by conscious application of mind. Mr. Justice S. Anwarul Haq, (as his Lordship then was) set aside the orders passed by the Settlement Authorities and further observed that the orders of the appellate and revisional authorities who declined to intervene on the ground of delay in filing the appeal by the petitioners, were also erroneous, On the analysis of law, I feel that the department's failure to comply with rule 4 of the Displaced Persons (Application for Compensation) Rules, 1959, and further violation of provisions of paras. 23 and 29 of Settlement Scheme No, 1 vitiates the cancellation of the -transfer of property to the deceased, and its resumption and subsequent disposal through auction in favour of the respondent's predecessor-in-interest. There is also substance in the submission of the petitioners' learned counsel, that the property could not be resumed before the expiry of the period of the demand notice.
35. The objection that the ground regarding the effect of non-issuance of compensation book to the deceased was not taken up by the petitioners in Writ Petition No, 165-R-1969, is not well founded. In para. No, 1 of the grounds of the petition, it has been stated that : "It is admitted by the Settlement authorities that the late Syed Sirajul Haq was a displaced person and a claimant who had applied on a C.H. Form. It is also admitted that he made repeated requests for the issuance of his compensation book, which was not issued because of the inadequacy of the Department.
' In these circumstances, a Demand Notice could not be issued: neither could an instalment order be passed. Hence, the order of respondent No, 1 is of no legal effect. "
' It is, thus, obvious that the petitioners did urge this point precisely.
36. There is no quarrel with the proposition that the principles of resjudicata are applicable to the writ petitions and once a point has been conclusively decided in a previous judgment, the same matter cannot be reagitated through another writ petition. The ratio decidendi of all the precedents cited by respondent's learned counsel is also to the same effect. It is, however, to be noticed that for applicability of the principle of res judicata, a previous judgment conclusively determining the matter in issue should hold the field. In Haji. Ashraf Ahmad Khan v. Custodian of Evacuee Property, Karachi Bench of the erstwhile West Pakistan High Court. Following the judgment of the Supreme Court of India in the case of Daryaa v. State of U.P. held that :- ...If a writ petition was dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order considers the questions raised in the petition it would be an order on merits. On the other hand, if the order does not consider all the aspects of the case and disposes of the matter on some technical ground, it cannot be said to be an order on merits, so to attract the principle of res judicata--"
Undeniably, Writ Petition No, 165-R-69, was not decided on merits and there is, thus, no previous determination through a judgment of the issues raised in the present writ petition. It, therefore, cannot be thrown out o the ground of res judicata.30
37. The dismissal in default of the previous writ petition, was also pleaded as a bar under Order IX, rule 9 of the Civil Procedure Code, for institution of fresh writ petition. For the other side, it was, however, argued that the previous petition was dismissed under Order IX, rule 3, and therefore, the bar created by Order IX, rule 9 was not applicable. I have, examined the original file of Writ Petition No, 165-R-1969. From the'R mutilated order, dated 9th September, 1969 whereby the writ petition, was dismissed for non-prosecution. It is discernible that nobody appeared on behalf of the respondents ; only the petitioners' counsel put in appearance in the Court and submitted that he had no instructions in the matter. When a counsel reports to the Court that he has no instructions, he cannot be deemed to have appeared. It was held so in Annuachella Goundan v. Katha Geundan and others, Manikam Pillai v. Mahudum Bathummal and others and Basalingappa v.
Shidramappa. The writ petition, therefore, shall be treated to have been dismissed under Order IX, rule 3. A fresh writ was, therefore, maintainable on the principle embodied in Order IX, rule 4. See Mahboobur Rehman v. Government of West Pakistan.
38. With regard to the acquiescence of the petitioners' predecessor-in-interest, or for that matter, that of the petitioners, it is to be seen that at no stage they abandoned their rights in the property in dispute or otherwise accepted the correctness of the impugned order. Throughout this period they have been fighting for their rights in one way or the other. There is, thus, no question of acquiescence on their part. Reliance on Zanib Tiwana's case is, therefore, of no avail to the respondents.
39. When the order passed by the Tribunal below is mainfestly illegal, or it is shown to have acted in excess of jurisdiction, writ can be claimed ex debito justitiae, and the technicalities of law cannot place fetters on a constitutional jurisdiction of the Court.
' In Rahim Shah v. Chief Election Commissioner, the Supreme Court approved the view taken by Denning, L.I. In the case of Northumberland Compensation Appeal Tribunal and it was observed : "Certiorari provides a supervisory control that extends not only to see that the inferior Tribunals keep within their jurisdiction, but also to see that they observe law."
' In the Administrative Law by Professor H. W. R. Wade (2nd Edn. Oxford 1967, p. 85) as quoted by M.A.
Fazal in "Judicial Control of Administrative Action in India and Pakistan" (1969 Edn., p. 48) it has been laid down that : " .If an inferior tribunal makes an order which on the face of it displays an illegality, this is (so to speak) an affront to the law which cannot be everlooked and the order stands self-condemned even though it may be within jurisdiction. The power to make mistakes does not extend to self- evident mistakes of law. In such a case 'the urge to intervene is more than judicial flesh and blood can resist."
' This enunciation of law clearly calls for interference in these cases.
40. For the foregoing reasons the three writ petitions are accepted and the impugned orders declared to have been passed without lawful authority. The property in dispute shall stand transferred to the petitioners in accordance with the Deputy Settlement Commissioner's order, dated 21st November, 1960. They shall be issued fresh demand notices by theU department and in case of non-compliance there with the Settlement authorities shall be at liberty to proceed against them in accordance with law.
' The parties are left to bear their own costs. PLD 1965 Kar. 625 PLD 1965 Lah. 729 PLD 1972 Lab. 66 PLD 1972 Pesh. 151 1893 A. C. 17031 32 33 34 35 1 2 3 4 5 AIR 1941 Boni. 144 PLD 1978 Lah. 998 1975 SCMR 52 PLD 1976 SC 422 PLD 1963 Kar. 446 AIR 1940 P C 230 (1921) 2 I R 317 PLD 1968 Kar. 899 AIR 1945 Oudh 200 AIR 1958 Andh Pra. 852 PLD 1967 Kar. 681 PLD 1963 Lah.488. PLD 1970 Lah. 647 1968 SCMR 705 PLD 1965 SC 254 1971 SCMR 602 PLD 1970 Quetta 10 PLD 1971 SC 779 PLD 1971 Lab. 395 PLD 1967 Dacca 303 PLD 1977 Lab. 524 PLD 1967 Lah. 977 PLD 1976 Lah. 147 PLD 1968 Lah. 1227 AIR 1961 SC 1457 AIR 1924 Mad. 842 AIR 1925 Mad. 21 AIR 1934 Born. 321 PLD 1968 Lah. 1086 PLD 1973 SC 24