' AJMAL MIAN, J.--This High Court Appeal is directed against the judgment dated 25th March, 1978 passed by a learned Single Judge of this Court in C.P.No.201/76, which was filed by the present appellant for challenging the order of the Settlement Commissioner dated 22-11-1969. The brief facts leading to the filing of the above appeal are that the bungalow in dispute (hereinafter referred to as the bungalow) was transferred in favour of respondents Nos. 2 to 8 by a Deputy Settlement Commissioner by his order, dated 23-10-1959. The appellant filed an application on 5- 10-1961 before the Settlement Commis sioner for declaration that the transfer in favour of the above respondents was in violation of the Settlement Law. He had also prayed that after cancelling the transfer in favour of the above respondents, the bungalow be transferred to him as an informer.
The above application was allowed by the Settlement Commissioner by an order, dated 28-8-1962, which was followed by issuance of a P. T. D. in favour of the appellant. The aforesaid respondents filed C.P.No.608/63, challenging the above order, dated 28-8-1962 and the P. T. D. dated 7-3-1963 inter alia on the ground that they were not heard. The above petition was allowed by consent and the above order and P. T. D. were set aside and the case was remanded back to the Settlement Commissioner for fresh decision. After the above remand order, the Settlement Commissioner by his order, dated 22-11-1969 restored the transfer in favour of the above respondents Nos. 2 to 8. The appellant being aggrieved by the above order had filed aforesaid C.P.No.201/76, which was dismissed by a learned Single Judge by the aforesaid judgment dated 25th March, 1978 on the ground that he had no locus standi. The petitioner being aggrieved by the above judgment has filed the present High Court appeal.
2. It may be observed that in the admission order of the above appeal, it was observed that the question, whether the above appeal was competent would be taken up later on.
Mr.Akhtar Mahmood Khan, learned counsel for respondents Nos.2 to 8 has contended that since there was a right of appeal against the above original order of the Deputy Settlement Commissioner dated 23-10-1959 provided for under the Settlement Law and as the learned Single Judge has passed the judgment in exercise of writ jurisdiction, the above High Court Appeal is not competent in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, (hereinafter referred to as the Ordinance).
' On the other hand Mr. Mushtaq Memon, learned counsel for the appellant has contended that since there was no right of appeal, revision or review against the order of the Settlement Commissioner dated 22-11-1969, the above appeal is competent.
3. Mr.Akhtar Mahmood Khan, in furtherance of his above submission has traced out the history of section 3 of the Ordinance. It may be observed that in the Ordinance above section 3 provided that no appeal would be competent in the cases specified therein. It may be advantageous to reproduce section 3, which reads as follows:- "Section 3. Certain appeals barred.--As from the commencement of this Ordinance--
(a) no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court; and
(b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance: ' Provided that nothing contained in this Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance."
' The above section 3 was amended by Law Reforms (Amendment) Ordinance, 1972 (Ordinance XXXIV of 1972), whereby the right of an appeal was provided against a decree passed or final order made by a Single Judge of the High Court in exercise of its original jurisdiction with the proviso that no appeal shall lie from an order which does not dispose of the whole matter before the Court. It was also provided that no appeal shall lie to a of two or more Judges of the High Court from an order made by a Single Judge of tha High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising out of law relating to rehabilita tion and settlement of displaced persons or from an order so made under sub- paragraph (i) of paragraph (b) of that clause. However, the above section 3 was substituted by Law Reforms (Amendment) Act, 1972 (Act VIII of 1972). The above substituted section 3 reads as follows:- "3. Appeal to High Court in certain cases.--(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
' It may be noticed that under subsection (2) of above-quoted section 3 inter alia the right of an appeal for the first time was provided to a Bench or two or more Judges from an order made by a Single Judge of the High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan (corresponding to Article 199 of the Constitution of 1973) with the proviso that no appeal shall lie if the application brought before the High Court under Article 201 arises out of any proceeding in which the law applicable provided for at least one appeal at any Court, tribunal or authority against the original order.
' It may further be stated that by Law Reforms (Amendment) Act, 1974 (Act VI of 1975) above section 3 was further amended. In subsection (2) of section 3 in place of clause (2) of Article 201 of the Interim Constitution, clause (1) of Article 199 of the Constitution was substituted and so also in the proviso. In the above proviso after the words one appeal the words or one revision or one review were added to. The effect of the above amendment is that no appeal against an order or judgment passed by a learned Single Judge in exercise of Constitutional jurisdiction under clause
(1) of Article 199 arises out of any proceeding in which there was a right of one appeal or one revision or one review against the original order.
4. In the present case the learned Single Judge had passed the judgment dated 25th March, 1978 under appeal in exercise of Constitutional jurisdiction under clause (1) of Article 199 of the Constitution, and, therefore, the appeal against this judgment would not be competent in case there was one right of appeal or one revision or one review provided for against the original order under the relevant law.
' Mr.Akhtar Mahmood Khan has referred to sections 19 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to manifest that a right of appeal and revision was provided under the Act against an order of a Deputy Settlement Commissioner who had passed the original order of transfer dated 23-10-1958 in favour of respondents Nos.2 to 8. Whereas Mr.Mushtaq Memon, has referred to the above two sections to point out that there was no right of appeal or revision or review against an order passed by the Settlement Commis sioner. It has been contended by him that the appellant could not have filed any appeal or revision or review against the above order, dated 22-11-1969 restoring the transfer in favour of the above respondents. In the alternative, his submission was that the original order in favour of the appeal was dated 28-8-1962, whereby the appellant was transferred the bungalow in dispute by the Settlement Commissioner and admittedly there was no right of an appeal or revision or review and hence the above High Court appeal is competent.
(5) (a) Mr.Akhtar Mahmood Khan has referred to the following cases in support of his submission:-
(i) Yousuf All Khan v. Muhammad Jawaid lqbal Cheema, PSQ PLD 1975 Lah. 1339, in which it was held by a Division Bench that the expression "the original order" in the proviso in subsection (2) of section 3 has been used to distinguish it from appellate or revisional order or an order passed in exercise of review jurisdiction. It was further held that in order to attract the application of the proviso one has to see if law applicable to the proceedings given rise to, provided for at least one appeal or one revision or one review against the original order. It was also held that if the right of one appeal, or one revision or one review against the original order was provided for by the relevant law, the fact that it was not availed of would not make High Court Appeal competent against an order passed by learned Single Judge under Article 199 of the Constitution.
(ii) Mst. Inayat Bibi and another v. The Settlement Commissioner and 2 others PLD 1982 Lah. 98, in which a Division Bench of the Lahore High Court while considering the question of Intra Court Appeal under section of 3 of the Ordinance observed as follows : - "3.--As regards preliminary objection No.1, it is proved on record that a revision petition against the order of O.S.D/C.R.O. dated 18-7-1973 was filed by the present respondents on 5-11-1973 in respect of the proceedings arising out of the verification of claims and allotments made to them in 1952.
Accordingly, the revision petition was accepted by an order dated 19-11-1973 (Annexure (G) to the writ petition). The learned counsel for the appellants has, however, argued that notwithstanding the fact that the revision petition, in question, was allowed by the learned Settlement Commissioner, the present appeal is competent, inasmuch as, he was never a party to the proceedings in revision petition. The contention of the learned counsel has no force, inasmuch as, in terms of the proviso to subsection (2) of section 3 of the Ordinance, an appeal is not competent where at least one appeal or one revision or one review is available before any Court, Tribunal or authority against the original order. The original order, in the instant case is the allotment made in favour of respondents Nos.2 and 3 as back as in 1952 against which revisional jurisdiction has been admittedly exercised and therefore, on this short ground alone, the present appeal is not competent, irrespective of the fact, whether or not the appellant was or was not a party to the revision petition."
(iii) Bata Shoe Company v. Registrar of Trade Union and another 1982 CLC 1884. In the above case the question in issue was, whether a High Court Appeal was competent against the judgment passed by a learned Single Judge of this Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution arising out of an order passed under section 8 of the I.R.O. A Division Bench of this Court to which one of us (Ajmal Mian, J) was a member, while dealing with the contention that the appellant could not have filed an appeal as he was not a party to the original proceedings, observed as follows:- "(b) The above-cited cases clearly lay down that no appeal is competent against an order of Single Judge before a D.B. if the order impugned before the Single Judge was an order passed in a proceeding in which the law provides the right of appeal. However, Mr.Mansoor Ahmad Khan, learned counsel for the appellant, attempted to distinguish the above cases on the ground that admittedly no right of appeal was provided to the appellant under the I.R.O. and, therefore, the learned Labour Court's order was original order for the appellant. We may again observe that this is not relevant. The competency of an appeal is to be judged on the basis, as to whether the law under which the impugned order was passed, and which was impugned before the learned Single Judge provided one appeal or one revision or one review. If the answer of the above question is in the affirmative, no intra-Court appeal will be competent."
4. On the other hand Mr. Mushtaq Memon, has referred to the judgment of Imtiaz Ali Malik v. Mst.Surayya Begum etc. 1979 SCMR 22, in which a petition for leave against an order passed by a learned Single Judge of the Lahore High Court in exercise of constitutional jurisdiction was declined on the ground that an appeal was competent before a Division Bench of the High Court under section 3 of the Law Reforms Ordinance. In the above case the Honourable Supreme Court has not dealt with the question, whether a right of appeal or one revision or one review was provided for under the relevant law. In this view of the matter, the above judgment has no direct bearing to the present case.
(c) We are inclined to hold that in the present case the original order was the order dated 23-10- 1959 passed by the Deputy Settlement Commissioner transferring the bungalow in favour of respondents Nos.
2 to 8 and not the order, dated 22-11-1969 against which aforesaid Constitutional Petition No.201/76 was filed and was dismissed by the judgment under appeal, nor the aforesaid order dated 28-8- 1962 cancelling the transfer in favour of respondents Nos. 2 to 8 and transferring the same in favour of the appellant can be said to be the original order. The factum that the appellant could not have filed an appeal or revision or review against the above original order would not make any difference for the purpose of construing the proviso to subsection (2) of section 3 of the Ordinance as pointed out in the above-quoted passage from the Karachi Judgment reported in 1982 CLC 1884. We are inclined to hold that the ratio decidendi of the cases cited by Mr. Akhtar Mahmood Khan on all fours is applicable to the instant case, and, therefore, the above High Court Appeal is not competent as there was a right of one appeal against the original order under the Settlement Law gave rise to the above Constitutional Petition, in which the order under appeal was passed. The appeal is there ore, dismissed being not maintainable with no order as to costs. #TBS #TBE