' SAAD SAOOD JAN, J.-This letters patent appeal calls in question the correctness of the order made by Muhammad Afzal Cheema, J. On 6th December, 1966.
2. The dispute between the parties relates to small house in Okara, bearing No, BJII.
5. S.
27. Its value is stated to be less than Rs, 10,000. One room in this house was in the occupation of Khairati, respondent No, 1 while the rest of the accommodation was in the possession of the appellants. Khairati was a non-claimant while the appellants were locals. On 16th November, 1959 a Deputy Settlement Commissioner transferred the whole house in favour of the appellants on an L.H.
Form. The order of transfer was based upon a note recorded by the Assistant Settlement Commissioner which read as follows :- "This house except one room is in occupation as well as allotment of a local. One room is with a non-claimant refugee who is a poor man and has stated before me that he is unable to get that house. The house may, therefore be transferred in the name of the locals Ghulam Nabi and Muhammad Sadiq."
' Khairati challenged the order of transfer before the Additional Settlement Commissioner in appeal. He denied that he had stated before the Assistant Settlement Commissioner that he was not interested in the transfer of the house. By an order dated 28th April, 1961 the Additional Settlement Commissioner accepted the appeal, set aside the order of the Deputy Settlement Commissioner and instead transferred the whole house to Khairati on an N. C. H. Form. Being aggrieved by the order of the Additional Settlement Commissioner, the appellants preferred a revision before the Settlement Commissioner. By an order, dated 6th July, 1961 the Settlement Commissioner set aside the transfer made in favour of Khairati on the grounds that he had not submitted any N. C. H. Form and that he had also not produced a clearance certificate. He also held the appellants as not entitled to the house for the reason that they were well-to-do businessm en. Accordingly, he directed that the house be placed in evacuee pool and given to the highest bidder.
3. From the order of the Settlement Commissioner both the appellants as well as Khairati preferred second revision petitions before the Chief Settlement Commissioner. In the revision filed by them the appellants did not implead Khairati as a party. On the other hand Khairati made the appellants a party in his petition. However, that may be, the two revision petitions were taken up by Mr. Zia Ullah Khan, exercising the powers of the Chief Settlement Commissioner separately on different dates. By an order, dated 14th March, 1962 Mr. Zia Ullah Khan accepted the revision petition filed by the appellants apparently ignorant of the fact that Khairati too was still interested in the transfer of the house. Accordingly, he transferred the whole house to the appellants. Subsequently, on 23rd May, 1962 when the revision petition filed by Khairati came up before him he dismissed it on the ground that as the record in his case had not been summoned before 13th January, 1962 he had no jurisdiction in the matter. Despite this order Khairati was once again called by another officer, also exercising the power of the Chief Settlement Commissioner and on 15th September, 1962 he too once again dismissed revision petition of Khairati on the ground that the record in his case had not been called before 13th January, 1962.
4. After the dismissal of his second revision petition Khairati filed the present writ petition. It was accepted by the learned Single Judge who then set aside the orders of 23rd May, 1962 and 14th March, 1962 and remanded the case to the Chief Settlement Commissioner for fresh decision according to law. The reasons for the decision of the learned Single Judge are to be found in paragraph 4 of its order which runs as follows :- "It appears to me that had it not been on account of inadvertance or carelessness on the part of the Office of the Chief Settlement Commissioner, the two revisions relating to the same premises should have been beard and disposed of simultaneously in the presence of the parties. Since the record was the same and had been admittedly summoned before the crucial date in respect of revision petition of the respondent, the petitioner's revision was not hit by the technical objection on which it was wrongly dismissed. This position has not been controverted by the learned counsel appearing on behalf of the respondents who concedes that in this view of the matter, the impugned order is not sustainable. Simultaneously with this falls the earlier order obtained by the respondents ex parte without impleading the petitioner who was certainly a necessary party in the case."
' From the order of the learned Single Judge the appellants have preferred this letters patent appeal.
5. Both the appellants are now dead and their legal representatives have been brought on the record.
6. The main contention on behalf of the appellants is that the learned Single Judge erred in setting aside the order, dated 23rd May, 1962 of the Chief Settlement Commissioner which related to the dismissal of the second revision petition of Khairati. It is stated that in his writ petition Khairati had not specifically asked for the setting aside of the said order and it is argued that in exercise of writ jurisdiction the High Court could not suo motu grant a relief which had not been specifically asked for. In support of this contention reference has been made to a decision of the Supreme Court reported as Akhtar Abbas v. Nayyar Hussain (1). In this case Nasim Hassan Shah J, observed :- "It is settled law that in writ proceedings the relief must be confined to the prayer made in the writ petition and the High Court could not issue a writ suo motu."
' So far as the factual aspect of this contention is concerned is correct. In his writ petition although Khairati did refer to the dismissal of his revision petition on technical grounds, but his complaint was solely directed against the acceptance of the revision petition filed by the appellants. His case was that he was a necessary party to the revision petition filed by the appellants and that the order made in favour of the appellants in his absence suffered from violation of principle of natural justice. It was for this reason that he did not ask for the setting aside of the orders, dated 23rd May, 1962 and 15th September, 1962 made by two officers exercising the powers of Chief Settlement Commissioner dismissing the same revision petition. The learned Single Judge did consider the complaint of Khairati and held that the order of 14th March, 1962 'failed' as it had been obtained by the appellants ex parte without impleading the petitioner (that is, Khairati) who was certainly a necessary party in the case'. Thus, it was a case in which the grievance of the complainant was found to have substance. However his complaint could not be redressed without setting aside another order made in the revision petition preferred by himself. It will thus appear that the learned Single Judge set aside this other order merely to grant an effective relief to the complainant. The learned counsel for the appellants did not seriously dispute that the order of dismissal of Khairati's revision petition was based on a technical ground which had no substance whatsoever. However, in order to get over the objection raised by the appellants we would allow Khairati to amend his writ petition in order to include a challenge to the order of 23rd May, 1962 as well.
'7. Before we proceed further we may also take notice of the order of 15th September, 1962 whereby the already dismissed revision petition of Khairati was again dismissed by Sh. Muhammad Rafiq.
After the order of 23rd May, 1962 there was no revision petition., before Sh. Muhammad Rafiq which he could have dismissed on 15th September, 1962. The order of 15th September, 1962 had, therefore, no real existence.
(1) 1982 SCMR :349
8. Lastly the learned counsel for the appellants argued that Khairati was not a necessary party to the revision petition before the Chief Settlement Commissioner as the allotment in his favour already stood cancelled by an order of the Settlement Commissioner. It was, therefore, not necessary for the appellants to have impleaded him as a party to the revision petition. We are unable to accept this contention. Khairati had laid a claim to the transfer of a house and he had been contesting the transfer made in favour of the appellants both before the Additional Settlement Commissioner and the Settlement Commissioner. He too had filed a revision petition before the Chief Settlement Commissioner against the appellants. He was, therefore, a necessary party to the revision petition filed by the appellants before the Chief Settlement Commissioner. The learned Single Judge was, therefore, right in holding that the transfer made in favour of the appellants by the Chief Settlement Commissioned without hearing Khairati was bad on account of violation of the principle of natural justice.
9. For the reasons stated above we find no merit in this Letters Patent Appeal which is hereby dismissed with costs.