' By an order dated 30th October, 1983 passed in IInd Appeal No.236/1980 prayer of the learned counsel for the parties was granted by this Court that the Constitutional Petition No.S-30/1977 between the same parties in which the question of the title of the disputed property is involved and the IInd Rent Appeal No.236/1980 in which the ejectment from the said property is disputed be heard together. They were accordingly heard together and are disposed of by this judgment.
2. The facts as stated in the Constitutional Petition No.S-30/1977 are that the petitioner is a non- claimant displaced person from Jodhpur State and came to occupy the house bearing No.B-1877, Ward 'B', Akhtari Lane, Hyderabad in 1956 belonging to evacuee owner Choharmal Vasumal. On the introduction of Settlement Scheme No.1 the petitioner filed an application in form N.C.H. registered at Serial No. HDR-I-115/ N.C.H. on 28-7-1959 which was followed by another application submitted by him under Settlement Scheme No.VIII for the transfer of the said house registered at Serial No.287/NCH dated 6-4-1967. The petitioner having received no response submitted an application on 12th March, 1976 before respondent No.2 (Settlement Commissioner, Karachi) who entrusted the same for inquiry to the Additional Settlement Commissioner. He submitted a report dated 17-9- 1976 to the Settlement Commissioner, verifying the filing of the abovesaid two forms by the petitioner on the basis of entries in the Register but the said application forms were not available in the records. The Settlement Commissioner by his order dated. 2-10-1976 informed the petitioner that no step could be taken by initiating suo motu proceedings. He may, however, approach competent Court of law. The said order reads as under:- "IN THE COURT OF SETTLEMENT COMMISSIONER, SIND, 79-PAK. SECTT. KARACHI. Misc . Application No .12 /76 .
Khuda Baksh ...... Applicant versus Khan Sahib Dad Khan and 6 others ................................... Opponents IN THE MATTER OF APPLICATION IN RESPECT OF TRANSFER OF PROPERTY NO.1866, 1867, 1868 and 1877 TILAK INCLINE, HYDERABAD.
2-10-1976.
' Administrative inquiry was ordered on receipt of the above application on 12-3-1976. The allegations made in this application are that property No.1877 was wrongly transferred to the respondents in part of Nos. 1866, 1867 and 1868 vide order of the Deputy Settlement Commissioner dated 20-8-1969 and N C H Form for No.1877 filed by the applicant was not considered. The Deputy Settlement Commissioner, Hyderabad, was asked to report on these allegations and his report dated 20-4-1976 was received in which he denied that applicant had filed any N.C.H. form.
Thereafter I entrusted this inquiry to Mr. Muhammad Akhlaque Khan, Additional Settlement Commissioner Hyderabad, who after hearing the parties and perusing the record has submitted his report under letter No. ASC/Hyd/Reader/76-1229 dated 17-9-1976. From this report it is clear that the applicant had filed N.C.H. Form No.115 dated 28-2-1959 and another N.C.H. No.287 dated 6-4- 1967, but these applications are not traceable. It is reported that the applicant had admitted in his written statement filed in Rent Case No.167/75 of the respondent that he was put in possession of No.1877 by respondent in 1965 as tenant and that this No. was added in the P. T .D. dated 16-11-1969.
' In view of the above facts and legal limitations, no concrete step can be taken by initiating Suo Motu proceedings to redress the grievance of the applicant. If advised, he may approach Competent Court of Law. The application is filed accordingly.
(Sd)/- (S. WASIM HAMID RIZVI), Settlement Commissioner, Sind.
Central Settlement Cell, at Karachi."
' The petitioner, thereupon, filed this Constitutional Petition on 4-2-1977 against the Deputy Settlement Commissioner, Hyderabad, Settlement Commissioner, Karachi and the transferees of the property in question (Respondents Nos. 3 to 9) praying inter alia, for a direction by this court that the petitioner is entitled to the transfer of the House No.B/1877 and the transfer documents be issued to him. It is pertinent to mention here that the deceased father of respondents Nos. 3 to 9, Ghulam Hussain had been transferred the property bearing No.1866, 1867 and 1868 on 1-9-1959. The disputed property was added by respondent No.1 in his P.T.D. on 20-8-1969 deleting the same from the P.T.D. dated (sic) previously issued to one Wali Muhammad.
3. The facts about the Second Appeal No.236/1980 are that respondents 3 to 9 instituted ejectment proceedings before a Rent Controller, Karachi by application dated 1-7-1975 bearing No.167/75 against the appellant (Petitioner in the C.P. No.S-30/77) on the ground of default in payment of rent since November, 1972. The appellant admitted the tenancy in existence since 1965 but denied the default. The application for ejectment was, however, allowed by an order dated 15-1-1977 passed by the learned Rent Controller. Appellant filed an appeal bearing No.38 of 1977 before the Additional District Judge which was dismissed by his order dated 1-3-1980 whereby the order of ejectment of the appellant passed by the learned Rent Controller was maintained by the learned Additional District Judge. Being aggrieved by that order the appellant has filed the Second Rent Appeal in this Court.
4. Mr. Akhtar Mahmood, learned counsel for the petitioner/appellant has raised a number of contentions in support of the Petition and the Appeal which are stated as under:-
(i) N.C.H. Forms under Settlement Scheme No.1 and Settlement Scheme No. VIII having been filed by the petitioner/appellant and the same having not been disposed of are still pending. The transfer of property in question in favour of Wali Muhammad and subsequently in favour of Ghulam Hussain, the deceased respondent is illegal.
(ii) In any case, the transfer in favour of respondent No.3 is illegal as the premises bearing No.B/1877 and B/1868 belong to two different evacuee owners
(iii) The admission of the petitioner/appellant as tenant of the respondent was obtained by coercion and fraud, and thus illegal and of no effect.
(iv) In any case and without prejudice to the above contentions, the security deposit of Rs.10,000 paid by the petitioner/appellant to respondent is adjustable towards rent and thus there is no default.
5. On the other hand, Mr. Mushtaq Hussain, learned counsel for Respondents 3 to 9 has raised the following contentions:-
(i) The petition suffers from laches and is liable to be dismissed on that ground alone.
(ii) The property in dispute, being a part of the property already transferred to the deceased Ghulam Hussain stood already transferred on 1-9-1959 and it was merely an omission that it was not mentioned in the Permanent Transfer Deed issued to the deceased and so the number B/1877 was added in the P.T.D. on 20-8-1969.
(iii) The plea of fraud is an afterthought and is baseless.
(iv) The appellant did not deposit Rs.10,000 or any other amount with the deceased or the present respondents. He is a wilful defaulter.
6. After hearing the learned counsel for the parties, the first and foremost question that requires consideration is that of laches, because if I feel satisfied with this contention of the learned counsel for the respondents it may not then be found necessary to go into other contentions raised by the learned counsel for the parties in so far as the Constitutional Petition is concerned. 1, therefore, proceed to consider if there is any laches in filing the Constitutional Petition by the petitioner. The learned counsel for the respondents has relied on two cases reported as New Kisan Transport Co., Lyallpur v. Member Board of Revenue and others PLD 1968 Lah. 748 and Ch. Jalaluddin and another v. Settlement Commissioner, Lahore and others 1968 SC MR 995. In the first named case it was observed by a Division Bench of the earstwhile High Court of West Pakistan as under:- "As a general rule, the superior Courts are averse to granting relief, in the exercise of their extraordinary power of judicial review, to parties who are guilty of laches or delay in invoking this jurisdiction, the reason being that by their omission to act promptly such parties may be deemed to have accepted the orders of the administrative authorities, and it would be unfair to disturb, at their instance, rights and obligations which had been settled and finalized long ago under the relevant law."
' In the second cited case the writ petition filed by the appellant on 15-7-1964 against the order of the Settlement Commissioner dated 6-8-1962 was held by Hon'ble Supreme Court as suffered from laches.
7. I may, however, refer to several other cases to illustrate the point at issue. Those are reported as Muhammad Ismail v. Abdul Rashid and others 1983 SCMR 168, Sh. Muhammad Ehsan v. Settlement Commissioner and others 1970 SCMR 295, M/s. Oxford Knitting Mills v. Sukkur Municipality and others 1970 SCMR 537 and Jahan Khan v. Suleman and others 1969 SCMR 942.
8. In the first case 1983 SCMR 168 the petitioner was in possession of an evacuee shop which was, however, transferred to respondent on 18-11-1959. The petitioner filed a suit for declaration that the transfer in favour of the respondent was void which was dismissed on 27-2-1968. The respondent filed an ejectment case against the petitioner on 17-9-1966 which was allowed on 10-5-1968. Faced with ejectment, the petitioner filed an appeal before the Additional Settlement Commissioner on 21-8-1968 challenging the transfer of shop, who allowed it by condoning the delay and directing disposal of the shop according to law. The respondent filed a Revision against the said order of Additional Settlement Commis sioner which was allowed reversing the order of Additional Settlement Commissioner. Then the petitioner filed a Constitutional petition which was dismissed by the Lahore High Court. The petition for special leave to appeal was also dismissed by the Honourable Supreme Court holding that- "Even if the transfer order be void, the assumption that a court must always strike it down regardless of consequences of such decision is, as held in Sharif Ahmed Hashmi v. Chairman Screening Committee Lahore, a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provisions of a statute of limitation or if he was estopped by his conduct from challenging the order or if he has been guilty of laches."
9. In the second case 1970 SC MR 295 the petitioner and respondents were in possession of a bungalow which was transferred to the respondents. The petitioner preferred an appeal against the said order which was rejected by the Additional Settlement Commissioner. He then filed a Revision which Was also dismissed on 7-6-1962. The petitioner then filed a Constitutional Petition on 2-2-1967 (i.e. after four years ancl eight months) which was dismissed by the erstwhile High Court of West Pakistan, Lahore on the ground of laches which order was upheld by the Honourable Supreme Court and leave to appeal was, therefore, refused.
10. In the third case 1970 SCMR 537 a Constitutional petition was filed in the High Court of West Pakistan, Karachi Bench against the order of Controlling Authority regarding increase of rate of lease after one year and ten months of the passing of the said order. It was dismissed on the ground of laches, which order was upheld by the 'Honourable Supreme Court holding that "There is no explanation by the petitioner why they remained idle from January 1967 till October 1968. We are satisfied that the Writ Petition filed by the petitioner suffered from inordinate delay and laches and the High Court was perfectly justified in dismissing it on that ground".
11. In the fourth case 1969 SC MR 942 it was observed that "the petitioner was, however, clearly negligent in not seeking this remedy earlier. He has no explanation, therefore, for the inordinate delay that took place in moving the High Court under Article 98. His petition, was, therefore, rightly dismissed on the ground of laches and on this short ground alone this petition must also fail. It is accordingly dismissed".
12. It will be of advantage to refer the observations made by the Privy Council in John Ohobo Agbeyegbe v. Festus makene Ikomi and another PLD 1953 P C 19 which read as under:- "The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of its or where, by his conduct and negligence, has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay, of course, not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party or cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
' The same principle was stated in Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others PLD 1960 Kar. 826; Sabir Ahmed Choudhry v. Province of East West Pakistan and another PLD 1960 Dacca 1025; Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others PLD 1962 Dacca 310; Mir Abdullah Khan v. The Government of West Pakistan and others PLD 1960 Pesh. 63; Mukhtar Hussain v. The District Manager, Provincial Transport Service, Lyallpur PLD 1966 Lah. 258 and Muhammad Afzal and others v. Mian Miraj Din and others PLD 1967 Lah.
689.
13. Applying the principles enunciated in the cases referred to above, it is evident from the facts of the present case that the petitioner filed his N.C.H. Form under Settlement Scheme No.I on 28-7- 1959 claiming the transfer of the house in question to him. This house was, however, transferred to one Wali Muhammad on 18-11-1962. The petitioner took no action against the said transfer in favour of Wali Muhammad. He also does not appear to have taken any step even after the filing of Form in 1959 till he filed another Form under Scheme No. VIII on 6-4-1967 for the transfer of the said house to him. On that date the said house was not available under Scheme No. VIII as it already stood transferred to Wali Muhammad as stated above against which transfer he had not taken any step.
However the said house was subsequently transferred to the ancestor of the present petitioner on 20-8-1969. He appears to have taken no action at all against the said transfer too. Mr. Akhtar Mahmood, however, invited my attention to several applications/reminders sent by the petitioner to the Settlement Department. These applications reminders are dated 11-4-1970, 31-5-1970 and 15- 6-1973 but there is no proof of the fact whether these letters were ever sent and received by the Settlement Department. The possibility of putting them on record of this file to fill up the gap cannot entirely be ruled out. There is also no proof of the filing of the alleged form except a copy of the entry from the Register maintained by the Settlement Department for the purpose. The petitioner has also not produced any copy of the alleged form filed by him. The petitioner has filed this petition on 22-11-1976 on receiving an order dated 2-10-1976 from the Settlement Commissioner Sind in response to his application dated 12-3-1975 which has not been placed on record to disclose its contents. As would appear from the narration of the above facts, the petitioner has failed to establish that he took any step after the filing of the first form as on and from 28-7-1959 till 12-3-1976 when he makes an application to Settlement Commissioner for invoking his revisional power suo motu.
14. It is also very much pertinent to note that according to the petitioner's own admission in the written statement filed by him in the ejectment proceedings before the learned Rent Controller as well as in the memo. of appeal filed before the Additional District Judge and that the deposition made before the learned Rent Controller he accepted himself to be the tenant of the respondent in respect of the said house since 1965 and paying rent of the premises in question continuously to the predecessor-in-interest of the property as well as the present petitioners.
15. 1 am, therefore, clear in my mind that the petition suffers from lathes and inordinate delay which has not been sufficiently explained. Even otherwise the circumstances are such as to justify the High Court to refuse to exercise its constitutional jurisdiction in favour of the petitioner, because the petitioner has by his conduct done that which might fairly be regarded as waiver so as not to disturb the right of Respondents 3 to 9 which is being enjoyed by them since 1969. The balance of' justice in the facts and circumstances of the case is in favour of the Respondents 3 to 9. The petition is, therefore, dismissed on that ground alone. I need not go into other contentions raised by the learned counsel for the parties.
16. As regards the IInd Appeal No.236/1980 of which a reference has been made by me in the facts stated above, the appellant's plea before the learned Rent Controller as well as the Additional District Judge has been that as has been regularly paying rent to the respondent and that there was no default in payment of rent whereas it was alleged by the respondent that the appellant has failed to pay the rent at the rate of Rs.125 per month since November 1972. The only plea taken by the appellant before the learned Rent Controller as well as the Additional District Judge was that the respondents have failed to issue any receipt for the rent received by them. This plea was belied by the production of four Receipt Books containing hundreds of counter foils of the rent receipts issued to various tenants including the appellant. For example Exhs.101, 121, 142, 149, 165, 179, 197, 237, 239, 259, 275, 293, 309, 317, 333, 349, 363, 377, 395, 409, 421, 433, 445, 457, 469, 481, 491, 501, 519, 529, 539, 549, 559, 569, 579, 593, 603, 613, 623, 633, 645, are the counter-foils of the receipts issued by the respondents to the appellant. The plea having failed, both the Courts below allowed ejectment of the appellant. In the Ilnd Appeal filed on 6-4-1980 for the first time the plea of fraud was taken by the appellant in this Court. I specifically enquired from Mr. Akhtar Mahmood, learned counsel for the appellant that the plea of fraud having not been taken in the written statement filed by the appellant before the Rent Controller or in the appeal before the Additional District Judge, how could it be taken in this Ilnd Appeal. Mr.Akhtar Mahmood candidly stated that there is no evidence on record to prove fraud except that the house having been transferred to the respondent's Predecessor-in interest in 1969 the tenancy could not have been started in 1965. But this submission loses its significance, as the ejectment proceedings were filed on 2-7-1975. It is also noticed that there is no reference in the written statement, affidavits, memo. of appeal or the depositions before the lower Courts that the appellant has filed any form for the transfer of said house in the Settlement Department or that the matter is pending at any stage before the Settlement Authorities.
17. Mr.Akhtar Mahmood as a last resort submitted that the appellant had paid to the respondents a sum of Rs.10,000 as security deposit. In this respect he referred to me the following observation of the learned Additional District Judge made by him in his judgment that-- "It is admitted position that some amount (Rs.10,000) has been lying with the respondent as deposit money."
' It is true that the appellant had alleged in the written statement that he paid Rs.10,000 to the respondent as security deposit but this allegation was specifically denied by the respondent in his deposition before the learned Rent Controller. The appellant then did not state anything about the said alleged amount of Rs.10,000 in his deposition before the court. There is nowhere any admission made by or on behalf of the respondent in the Appellate Court regarding the said amount of deposit. In my view, therefore, there is a clear misreading of evidence on the part of learned Additional District Judge while observing that-- "It is an admitted position that some amount (Rs.10,000) has been lying with the respondent as deposit money". There is, therefore, no force in this contention of security deposit of Rs.10,000 lying with the respondent.
18. In the result, both the Constitutional Petition and IInd Rent Appeal are dismissed, but there will be no order as to costs.
19. Before parting with these cases, I would like to observe that the Petition as well as the appeal had been dismissed by me on 25-11-1984, by a short order, for reasons to be recorded later on, which have now been recorded by me, as above.
Petition and .