' By this petition filed under Article 199 of the Constitution of 1973, the petitioner seeks to impugn the order, dated 16-4-1976, passed by the respondent No,1/the Additional Settlement Commissioner, Sukkur and the order, dated 20-5-1975 of the respondent No,2/the Deputy Settlement Commissioner on the plea that the same were made without lawful authority and are of no legal effect. A declaration is also sought to the effect that the petitioner may be declared as the original transferee of the property No,II-C-4/A at Moro and no portion of it bears No,II-C-4/A-1 or is available for disposal separately.
' With going into the details of the litigation between the parties suffice it would be to say that the disputes between the parties in respect of transfer of certain property at Moro became subject- matter of Constitution Petition No,48 of 1970, Abdul Qadeer v. Settlement Commissioner and another and Constitution Petition No,280 of 1970, Nizamuddin and another v. Settlement Commissioner and others,, These Petitions were disposed of by judgment delivered on 11th June, 1974 by Mr.Jutice Dorab Patel (as he then was) whereby the Petition No,280 of 1970, filed by Nizamuddin and another, was dismissed and the other Petition bearing No,48 of 1970 was allowed.
As the said judgment settled the rights of the parties in respect of the transfer of property bearing No,II-C-4/A situated at Moro, which was the subject-matter of the said petitions, it would be advantageous to reproduce here in below the relevant portions of the said judgment which finally defined the property which was held to have been transferred in favour of Abdul Qadeer, to whom P.T.O. was also directed to be issued. The learned Court in the aforementioned judgment observed and held as follows:- "DORAB PATEL, J.-- The dispute in both these Constitutional Petitions relates to a property measuring 110 square yards in Moru and bearing number II-C-4/A. I shall refer to this property as the said property and the case of all the learned counsel before me is that it is a building site."
(The underlines are by me).
' Having defined the property as above, which the rival parties claimed the learned Judge in the aforementioned judgment first referred to the fact that the said property on C.H.Form was transferred to Nizamuddin and his brother but subsequently in 1968, the said property was put up for auction, at which Abdul Qadeer made the highest bid, which was accepted. In the litigation, which followed between the two rival parties, the appeal of Nizamuddin and his brother was dismissed by the Additional Settlement Commissioner by order passed on 19--9-1969 and while doing so by the same order, he confirmed the auction in favour of Abdul Qadeer. Against the stud order Nizamuddin and his brother went in Revision to the Settlement Commissioner who dismissed it by order passed on 19-1-1970 but at the same time directed that the said property be auctioned.
In these circumstances Abdul Qadeer filed Constitutional Petition No,48/1970 while the other Petition No,280/1970 was filed by Nizamuddin and another.
' The learned Judge after referring to the facts, dismissed the Constitutional Petition No,280 of 1970 filed by Nizamuddin and his brother and then dealing with the other Petition No,48/1970 filed by Abdul Qadeer, upheld the transfer of the 'said property' in favour of Abdul Qadeer having been validly made, observed as follows:- "...and merely because a higher price might now be obtained world not be a valid reason for setting aside the auction. In arty event, no rule of provision of law have been cited to show that the auction can be set aside on the grounds given by the Settlement Commissioner or any other ground. I, therefore, allow Petition No, 48 of 1970, set aside the Settlement Commissioner's order directing a fresh auction of the said property, and I also direct that the P.T.O. for it shall be issued to the petitioner. The Petition is allowed without costs."
(The underline is by me).
' The above judgment passed by the High Court disposed of the two petitions which related to the transfer of "Property measuring 110 square yards in Moro and bearing No,II-C-4/A" referred in the Petition by the learned Judge "as the said property". The "said property" by the operative part of the judgment, was held to have been validly transferred to Abdul Qadeer/the petitioner, and it was further directed "that the P.T.O. for it shall be issued to the petitioner (Abdul Qadeer)".
2.(i) The transfer of the said property "measuring 110 squares in Moro and bearing No,II-C-4/A" to the petitioner Abdul Qadeer and the rejection of the claim of Nizamuddin and his brother over it, was not challenged by any of the parties, by filing any appeal or petition provided by the law. The said judgment, therefore, attained finality and the claim of the petitioner Abdul Qadeer over plot bearing No,II-C-4/A, measuring 110 square yards situated in Moro, stood finally determined.
(ii) It however appears that subsequent to disposal of the above-mentioned two petitions Nizamuddin filed an application on 30th May, 1974 for transfer of property now in dispute. On the same date the Additional Settlement Commissioner made an endorsement condoning the delay in filing the said application on the condition that the property applied for was available for transfer. The application was registered and a report was called. Site inspection was accordingly made and the following report was submitted:- "The applicant Nizamuddin s/o Mehmood Khan has filed the attached B.S. form application for the transfer of the rest area of the Plot No,II-C-4 as an area of 100 Sq .Yds has already been transferred to the opponent, Abdul Qadeer in open auction as per attached Writ Petitions Nos.48 and 280 of 1970, dated 11-6-1974, for which the necessary P.T.D. stands issued. Now the applicant has filed the attached form in which the total area has been shown as 858 square feet. I have inspected the spot and found that the applicant is in occupation of an area of 861-1 square feet in which 483 is a covered area having one hail and 378-1 is an open space being used as courtyard. This area is separate than the area of 110 Sq. Yds. which has already been transferred to the opponent. Thus, the applicant is entitled to retain the same under Schedule VIII for which the value comes to:- 95.7 Sq. Yds x 5 plus 50% Rs,480.00 Plus Rs,240.00 Rs,720.00 if approved the necessary appendix may be issued to him.
(Sd.) Accoutant 20T5-1975"
' On the receipt of the above report, the Deputy Settlement Commis sioner ordered the transfer of the plot measuring 95-7 square yards to Nizamuddin, the respondent No,3 as he was found entitled to its transfer. This order was passed by the Deputy Settlement Commissioner on 20-5-1975.
3. Against the order of transfer thus made by the Deputy Settlement Commissioner, the petitioner filed revision Petition before the Settlement Commissioner, Sukkur. The Settlement Commissioner in his order passed on 16-4-1976 observed:- "Briefly facts leading to the dispute are that there is a plot No,II-C-4-A at Moro which is claimed to be in possession of both the parties who have been contesting each other for transfer of the same.
The plot in question was transferred consequently vide order, dated 11-6-1974 passed by the Honorable High Court, Karachi whereby the petitioner was found entitled only for 110 Sq.Yds and thus rest of the area was transferred to the respondent on his B.S. form by the D.S.C. Hence this revision Petition."
' Having noted the facts stated above which I find cannot be disputed being in accordance with the observations made in the judgment of the learned Judge of this Court given in Constitutional Petition No,48/1970 and Constitutional Petition No,280/1970, the Settlement Commissioner after recording the contentions of the Advocates for the parties, dismissed the said revision Petition holding as follows:- "Heard the parties at length and perused the record. It is evident from the record that the petitioner was transferred only 110 Sq.Yds and the rest of the area was available for disposal which has rightly been transferred by the Deputy Settlement Commissioner to the respondent on his B.S. form assigning it as D.S.No,II-C-4/A-1. Keeping in view the facts discussed above I find no justification to interfere with the transfer documents already stands issued to the respondent. Petition is accordingly dismissed."
4. Against the above order passed by the Settlement Commissioner the present petition has been filed invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973.
5. I have heard the learned Advocates for the parties. Mr.Maroof Ali Khan, the learned counsel for the petitioner contended that the petitioner Abdul Qadeer is the transferee of plot bearing survey Noll-C-4/A, situated at Moro at the auction sale held pursuant to the auction wherein this property bearing No,II-C-4/A was described as a compound owned by Hawat Rai occupied by Abdul Ghafoor and was shown at item No,VIII of the notice of auction of evacuee properties which was scheduled to be held on 10th September, 1968. According to him, the petitioner Abdul Qadeer had purchased the property bearing Survey No,II-C-4/A irrespective of its area and thus the Settlement authorities had no jurisdiction to transfer any portion thereof by assigning the survey No,I!-C-4/A-1.
According to the learned counsel the portion of the property purportedly transferred to Nizah,taldiri was not available and thus the Settlement authorities acted without jurisdiction in passing the impugned order of transfer in favour of Nizamuddin.
' I, however, find that this argument of Mr.Maroof Ali Khan, the learned counsel for the petitioner cannot succeed.
It would be observed that the identity of the property transferred to the petitioner stood concluded by the judgment given in C.P. No,48 of 1970 (Abdul Qadir v. Settlement Commissioner and others) wherein the same has been described as follows:- "....property mastering 110 spume yards in Moro and bearing No, II-C-4/A ....the said property it is a building site."
' The learned Judge further ordered:- "I, therefore, allow the Petition No,48 of 1970 set aside the Settlement Commissioner order directing a fresh auction of the said property and I also direct that the P.T.O. for it shall be issued to the Petitioner."
(The underlines are by me)
' The above findings as to the property measuring 110 square yards directed to be transferred to the petitioner Abdul Qadir, was allowed to attain finality. Neither any proceedings/remedy was ever taken nor the same was challenged by the petitioner at any time. The petitioner, therefore, cannot be allowed to reopen the same on the principle laid down in the case of Murad 131bi v. Ranizan Bibi 1968 SC M it 1007.
7. In the light of the direction given in the Writ Petition No,48 of 1970, the Settlement authority was justified to hold that the respondent No,3/Nizamuddln, is entitled to transfer of the portion measuring 95-7 square yards (i.e,the portion other than 110 square yards for which P.T.O. was directed to be issued in the above-mentioned Writ Petition). The petitioner has no locus stand! to challenge the transfer of excess area to the respondent No,3 on the findings reached by the Settlement authority that the same was available property and that the said respondent is entitled to its transfer under Scheme No,VIIII. These findings renewed by a competent authority cannot be described as without lawful authority and of no legal effect.
8. The upshot of the above discussion is that this petition has no merits and is accordingly dismissed.
' The parties are left to bear their own costs. Petition dismissed.
1984 M L I) 314 [Lahore] Before Gul Zarin Kiani, J MUHAMMAD DIN and others--Appellants versus MUHAMMAD KHAN and others--Respondents First Appeal Against the Original Order No, 171 of 19ti9, heard on 28th May, 1984.
(a) Civil Procedure Code (V of 1908)-- r.22--Punjab Preemption Act (I of 1913), S.16--Pre-emption suit--Dismis.sal on ground of waiver-- Issue relating to existence of Custom of pre-emption in concerned locality decided in favour of plaintiff--Issues regarding price etc. left undecided--Finding of waiver set aside and to trial Court for decision on other issues--Issue about :,xistenee of custom of pre-emption not discussed by appellate Court although finding of trial Court on same were objected to be vendees-- Cross-objections not filed in appeal--Remand order challenged in appeal on gr6und that since vendees had questioned finding of trial Court on existence of custom it was obligatory for appellate Court to have attended to objection and decided the matter one way or the other before ordering remand--Held:Contention of respondent that vendees, notwithstanding their plea in trial Court, could not, in absence of cross-objections, raise the issue in appeal was riot valid--Provisions of 0.XLI,r. 22 C. P. C. do not operate as a general prohibition to object to a part of judgment without having preferred cross-objections--Respondent may support decree appealed from not only on grounds decided in his favour but also on grounds decided against him and for this purpose it was not necessary for him to file cross-objections. lop. 317, 3191 A, B & C Qutub-ud-Din v.Muh.immad Siddiq and others PLD 1969 Lah. 418; Mhand v. Mst.Arnutal Hafeez PLD 3954 Lah. 278 and Itakoolie Tea Estate v. Its Workman AIR 1960 SC 1349 ref.
(b) Civil Procedure Code (V of 1908)-- ---0.XLI, r.24--Power of remand--Practice of unnecessary remands deprecated--Sufficient evidence on record to decide issues framed by trial Court--Appellate Court remanding case without giving decision on material issue--Unnecessary remands by appellate Court, held, tended to defeat cause of justice instead of promoting it thereby causing loss of public time and money of litigant public--Power of remand though existing under law, held, should be very sparingly resorted to.
[p. 3191 D Sher Muhammad and another v. Jamadar Ghulam Ghaus 1983 SCMR 133 rel. Rashid Malik for Appellants.
Muhammad Hussain Khan for Respondents. Date of hearing: 28th May, 1984.
' Suit for possession by pre-emption in respect of a vacant plot of land measuring 11 Marlas described with boundaries in the plaint situated in Kunjah sold by Karam Elahi and Haji Muhammad Ranizan, through sale-deed, dated 29-12-1964 was filed by one Muhammad Khan against All Muhammad, Wall Muhammad and Ghulam Haider sons of Piran Ditta vendees in the Court of Civil Judge, Gujrat. Muhammad Din son of Fazal and Raman sun of Allah Din subsequent vendees were also impleaded in the suit. Right of pre-emption was claimed under section 16 of Punjab Pre-emption Act, 1913 on the ground of contiguity of property sold. Venders resisted the suit.
Pleading's of the parties gave rise to the following issues: -
(1) Whether the plaintiff has a better right of pre-emption? O.P.P.
(2) Whether Rs,3,000 was paid or bona fide fixed? O.P.D.
(3) What is the market value? O.P. Parties.
(4) Whether plaintiff has waived his right of pre-emption? O.P.D.
(5) What is the effect of resale in favour of defendants Nos.4 and 5? O.P.D.
(6) Whether suit is not properly valued for the purposes of court-fee and jurisdiction? O.P.D.
(6-A) Whether there exists a custom of pre-emption in Kunjah town and the ward in question?
O.P.P.
(7) Relief.
' After recording evidence of the parties and hearing them learned Civil Judge vide his judgment and decree, dated 31-3-1969 dismissed the suit. Issue No,1 relating to right of pre-emption was conceded by the defendants. Findings on issues Nos. 2, 3, 5 and 6 were not recorded by learned Civil Judge. Issue No, 4 was decided against the plaintiff while issue No,6-A was decided in favour of the plaintiff holding that custom for pre-emption existed in the town of Kunjah. Aggrieved by the dismissal order plaintiff/pre-emptor filed an appeal in the Court of District Judge, Gujrat. Vide judgment, dated 24-7-1969 learned Additional District Judge, Gujrat accepted appeal, set aside the judgment and decree of the trial Court and remanded suit to trial Judge for recording findings on the remaking issues and for disposal of the suit in accordance with law. Finding recorded on issue No,4 recorded was the trial Court was reversed and it was held that estoppel/waiver as not proved against the plaintiff. However issue No,6-A was neither discussed nor was any finding recorded thereon. Remand order has been assailed by Muhammad Din and Muhammad Ramzan subsequent vendees through this appeal. Appellants died during the pendency of this appeal and their legal representatives have been substituted in their place.
2.I have heard learned counsel for the parties and examined the record. Learned counsel appearing for the appellants has contended that finding recorded on issue No,6-A whereby learned trial Court had found existence of custom proved in Kunjah was objected to by the vendees/respondents in appeal before learned appellate Judge. Separate appeal or cross- objections could not have been filed as the plaintiff's suit had been dismissed by the learned trial Judge. Though finding under issue No,6-A was recorded against the defendants, in an appeal preferred against judgment dismissing the plaintiff's suit, they could support the decision on an issue decided against them under Order XL1, rule 22, C.P.C. Learned counsel has contended that since the vendees/respondents had questioned the finding recorded under issue No,6-A it was obligatory for the learned appellate Court to have attended to this objection and decided the matter one way or the other before ordering remand. Order of remand without attending to finding on issue No,6-A, which was seriously objected to by the respondents before learned District Judge could not have been made. Remand order, therefore, it was contended is not sustainable in law under Order XLI, rules 23, 23-A, 24 and 25 of Code of Civil Procedure. Learned counsel appearing for the respondents however, has contended that in the absence of a cross-appeal or cross- objections by the defendants adverse finding recorded on issue No,6-A by the trial Court could not have been validly objected to by the respondent. It was an appeal filed by pre-emptor in which finding on issue No,4 alone was under question and the finding which went in favour of the plaintiff pre-emptor could not be touched unless the aggrieved party namely vendees had challenged it in cross appeal or cross-objections. However, it was admitted by learned counsel for both the parties that evidence on record was sufficient to record a definite and satisfactory finding on issue No,6-A by learned appellate Court.
3. Finding on issue No,6-A was recorded in favour of the plaintiff but the suit was dismissed on account of waiver. In an appeal filed by pre-emptor assailing the finding of waiver alone vendees against whom the suit had been dismissed, under Order XLI, rule 22, C .P.C. could support the decision of the trial Court on any issue decided against them in the absence of separate appeal or cross-objections. Right of appeal was not available to the vendees to assail an adverse finding on one issue when the judgment was substantially in their favour. It has been observed by this Court in the case of Qutub-ud-Din v. Muhammad Siddiq and others PLD 1969 Lah. 418 that:- "Rule 22 of the O.XLI, C.P.C. for the material purpose reads:- "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the ground decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow..."
On a plain reading of the above provision, it becomes abundantly clear that it is wrong to read into this rule a general prohibition against the respondent to object to a part of the judgment of the lower Court, unless he has preferred cross-objection as prescribed in the later part of the above rule. The rule makes two distinct provisions. This becomes clear, if we omit the parenthetical words "not only". Firstly, the rule in its opening part makesit permissible to a respondent to support the decree even on the ground decided against him by the Court below. This part of the rule is in unqualified terms and will, therefore, avail to the respondent in every case in which the decree is wholly in his favour. It is obvious that an appeal can be preferred only by a party to a suit adversely affected by the decree. If the suit was wholly dismissed against a defendant, there hardly remains any occasion for him to prefer appeal even if some of the issues are decided against him. So, also about the plaintiff whose suit has been decreed in its entirety?
' The second part of the rule which provides for the filing of cross-objection begins with the conjunction "but" which because of the parenthesis "not only" in earlier part of the rules, must be read in the sense of "and". This part of the rule contemplates taking of "cross- objection to the decree (which) could have been taken by way of appeal "Thus, taking of cross-objection co- related with the competency of appeal by the respondent. In other words, unless remedy by way of appeal is available to a respondent he need not file cross-objection to agitate against the point decided against him by the lower Court. This will happen in a case, where a suit is wholly dismissed against or decreed in favour of a respondent, as in this case, or wholly decreed in favour of the plaintiff, as the case may be, and therefore, he could not possibly file appeal against any issue decided against him by the lower Court.
' There is abundant authority in support of the view that a respondent may support the decree appealed from, not only on the grounds decided in his favour but also on other grounds decided against him and for this purpose it is not necessary for him to file any cross-objection. See, for instance, Henry Stampley Ramster v. S.M.Fazail & Co. PLD 1964 Kar.
290. That was a suit for the recovery of damages in the sum of Rs,,4,029/6/4 arising out of breach of contract and assessed on the basis of difference between the contract price and the market price prevailing on the date of the breach, of the contract. The suit was tried by a learned Single Judge of the Karachi Bench on the original side who found that the defendant-firm, though in breach of the contract and, therefore, liable to pay damages to the plaintiffs, but nevertheless dismissed the suit on the ground that there was no proof for the damages suffered by the plaintiffs in consequence of the breach of contract by the defendant-firm. On appeal to a Division Bench, after examination of Additional evidence on the question of damages, the judgment of the learned Single Judge was reversed and the plaintiff's suit was decreed. Learned counsel for the defendant- firm in that case addressed the Division Bench upon all the defenses urged before the learned trial Judge besides the question of damages although no cross-objection was filed on behalf of the defendant-firm against any of the issues found by the learned trial Judge against the firm. It was obvious that suit having been dismissed by the learned trial Judge as a whole against the defendant-firm. It could not have possibly filed appeal against the decree in its favour. This authority, in my opinion, clearly covers the instant case. The question also came up for consideration before a Full Bench of the Lahore High Court in Mhand v.Mst.Amutal Hafeez PLD 1954.Lah.278, in which it was held that it is open to a plaintiff who has neither appealed from the decree of the trial Judge nor has taken any cross-objection to a partial decree as against him to urge in opposition to the appeal of the defendant a center in which, if accepted, by the trial Court would have necessitated a total decree in the suit. The main judgment was delivered by Kaikaus, J.
The matter was, however, succinctly stated in the concurring judgment of Rahman, J. (as he then was) in the following words:- " It is obvious that the construction of Order XLI, rule 22, C.P.C. should be such as would cover the case of a full decree as well as of a partial decree. In terms, this rule applies to first appeal but by virtue of Order XLII, rule 1, C.P.C., the same provision would govern second appeals so far as may be. The right of the respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to 'support the decree' i.e, only as a weapon of defence and not to offence, in order to maintain the status quo ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent, is not increased beyond what is imposed by the lower Court decree.
' The same view was taken recently in the Indian Jurisdiction in the Management of Itakhoolie Tea Estate V. Its Workman AIR 1960 SC 1349.
"I, therefore, overrule the preliminary objection raised by Rafiq Ahmed the learned counsel for the appellant and hold that it is permissible to the respondents to support the judgment and decree of the lower appellate Court even on issue No,1, relating to the want of jurisdiction of civil Court even though decided against the respondents".
4. In view of the above, the contentions raised by learned counsel for the respondent, Muhammad Khan loses force as it Was open to the vendees to question the finding recorded against them under issue No,6-A. Learned Additional District Judge, therefore, was bound to attend to the finding recorded under issue N0.6-A when the same wits objected to by the respondent in appeal before him. The case could not have been remanded without decision of issue No,6-A. Both the learned counsel have admitted that evidence on all the issues have been recorded by the trial Court and in view of sufficiency of evidence on the issues framed by the trial Court, learned Additional District Judge should have decided the entire matter instead of remanding it to the trial Judge. This course was permissible under Order XLI, rule 24, C. P. C. Unnecessary remands by the appellate Courts instead promoting cause of justice tend to defeat it, which involve loss of valuable public time 'And .hard-earned money of litigant public. When evidence was there on which appeal could have been finally decided and fiadings recorded even on those issues which were left undetermined by the trial Court, learned Additional District Judge should have decided the entire mutter instead of making a remand order. Power of remand though existing under law should be very sparingly resorted to, Reliance is placed upon the ease of Sher Muhammad and another v. Jarnadar, Chulam Chaos 1983 SCMR 133.
5. In view of the above appeal is accepiod remand order passed by the learned Additional -District Judge is aside and the case is remitted to learned District Judge, appeal for decision afresh un all the issues. Parties are left to bear' their own costs.
6. Since the case is very old it is entitled to preference. Learned District Judge is, therefore, directed to decide the appeal preferably within four months from the receipt of record.
7. Office is directed to send the records to District Judge, Gujrat immediately for further proceedings.