ANWARUL HAQ, C. J.-This appeal under clause 10 of the Letters Patent is directed against an order made by a learned Single Judge of this Court on the 2nd of March 1964, whereby he dismissed in limine a writ petition (bearing No. 1659/R of 1963) instituted by the present appellant Mst.
Shahjahan Begum under Article 98 of the Constitution. She had challenged the correctness and legality of the various orders made by the Settlement Authorities refusing to transfer to her house No. SW-I1-S-5, Amrit Road, Krishan Nagar, Lahore.
2. The facts relevant for the determination of the present appeal may be briefly stated. It is claimed that the appellant and her husband K. M. Younus are in possession of two rooms situated on the ground-floor whereas the respondent No. 1 Mst. Shabbir Fatima and her husband Muhammad Mohsin are in possession of the rest of the house. It is stated that the husbands of the two contending ladies are the allottees. The allotment of K. M. Younus is dated the 2nd of January 1953, whereas that of Muhammad Mohsin is dated the 23rd of February 1950, although the appellant claims that her husband was in prior possession since 1947. This last claim is strenuously dis-- puted or: behalf of respondent No. 1. When the settlement operations started, both the parties applied for the transfer of the house on C. H. Forms. By an order made on the 22nd of January 1960, the learned Deputy Settlement Commissioner transferred the whole of the house to the respondent. Thereupon the appellant Mst. Shabjahan Begum filed an appeal which was, however, dismissed by the learned Additional Settlement Com--missioner, by his order dated the 12th of July 1960. She then filed a review petition which was accepted by this officer on the 1st of December 1960, and the case was remanded to the Deputy Settlement Commissioner for a fresh decision.
3. The Deputy Settlement Commissioner once again directed the transfer of the whole of the house to respondent No. 1 by his order dated the 10th of January 1961. The appellant had to file an appeal once again but this was also dismissed by the Additional Settlement Commissioner by his order dated the 9th of March 1961. The appellant was ousted on the ground of a technicality namely, that her application in Form C. H. For the transfer of the house was not properly instituted as her power of attorney was not attached with the same. The appellant went up in revision but the same was dismissed by the learned Settlement Commissioner on the 21st of November 1961, on account of the appellant's failure to appear. She then made an application for the restoration of her revision petition, con--tending that she had not been served with any notice for the hearing of the revision petition on the 21st November 1961. This restoration application came up before the Settlement Commissioner concerned on the 8th of December 1961, and he directed that a notice should issue to the respondent to show cause why the revision petition of the appellant should not be restored.
From the marginal notes appearing in the file, it transpires that the learned Settlement Commissioner was persuaded to issue this notice on the basis of an office report that it was not clear from the record whether any notice was at all issued to the petitioner before him for the hearing of the revision petition on the 21st of November 1961. On the next date of hearing, i.e. 23rd January 1962, the Presiding Officer was away on tour and his Reader adjourned the matter to the 5th of March 1962. On that date, the application was dismissed by a successor Settlement Commissioner with the observation that notice should not have been issued as the case had already been decided. This order was made in the absence of the appellant. She filed a review petition for the setting aside of this order, but the same .Vas dismissed on the 6th of June 1962, with the observation that there was no reason to review the previous order.
4. When the matter came up before the learned Single Judge in Writ Petition No. 1659/R of 1963, attention was focussed on the merits of the case and it was observed that the house had been held to be indivisible and accordingly respondent No. 1 Mst. Shabbir Fatima, being a claimant- allottee, had a preferential right to the transfer of the house as compared to the appellant's husband K. M. Younus, who was a non-claimant. It was further observed that as the appellant's husband had also applied for the transfer of the house as a non-claimant, the appellant could not simultaneously apply for the same on. The basis of her husband's possession. At the time of the admission of this appeal it was contended before the Division Bench that the learned Single Judge had lost sight of the fact that by a notification Issued on the 7th of March 1960, the Central Government had declared that a wife, living with her husband, shall be deemed to be in possession of the house in her own right, and, therefore, the appellant's case was not governed by the provisions of paragraph I of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. It was further con--tended that the appellant being deemed to be in possession in her own right the submission of her husband's N. C. H. Form had no bearing on her entitlement as compared to the respondent. The appeal was admitted to examine these contentions.
5. During the course of arguments before us Mr. A. S. Salam, the learned counsel for the appellant, submitted that before arguing the case on the merits of the appellant's entitlement to the transfer of the house in preference to the respondent he would like to discuss the question of the validity of the orders made by the two learned Settlement Commissioners in the revision petition as well as in the restoration application submitted by the appellant. After hearing the learned counsel for both sides on these aspects of the case, we have reached the conclusion that this matter has to be remitted to the learned Settlement Commissioner for a proper disposal of the two petitions just mentioned, and, therefore, it is not necessary for us to say anything as regards the respective entitlement of the contesting parties for the transfer of the house.
6. We have already stated that the revision petition of the appellant was dismissed in default on the 21st of November 1961. It was, however, contended on her behalf, in the restoration application, that she did not receive any notice for the hearing scheduled for 21st November 1961. The learned Settlement Commissioner, who had passed that order, was persuaded to issue notice in the restoration application on the basis of the office report already mentioned by us. In these circumstances it was clearly the duty of the Settlement Commissioner concerned, or his successor, to give a finding whether the non-appearance of the appellant, at the time of the hearing of her revision petition on the 21st of November 1961, was with or without sufficient cause. And if there was sufficient cause shown, then the revision petition had to be restored and heard on merits. It is unfortunate that instead of doing so, the successor Settlement Commissioner misconceived the whole position and disposed of the restoration application by saying that the case had already been decided and notice should not have been issued. It seems that he was under the impression that the revision petition of the appellant had been unnecessarily placed before him for disposal although it stood decided by his predecessor's order dated the 21st of November 1961. This obviously was an error apparent on the face of the record, as the immediate matter before him was the question of the restoration of the revision petition and not its disposal on merits. In these circumstances he should have rectified the error when a review petition was presented to him by the appellant, but he failed to do so even at that stage. As a result, the restoration application of the appellant praying for the setting aside of the order of the 21st of November 1961, must be deemed to be pending for want of proper disposal.
7. It was, however, submitted by Raja Muhammad Anwar, the learned counsel for the contesting respondent, that in the matter of the exercise of the revisional power as conferred on the Settlement Commissioner by subsection (3) of section 20 of the Act, the appellant had no right of being heard, and, therefore, the Settlement Commissioner was acting within his jurisdiction in refusing to re-open the matter at the instance of the appellant. In support of this contention the learned counsel referred us to several decided cases, namely, Abdul Rehman Pasha v. Chief Settlement and Rehabilitation Commissioner (PLD 1961 Lab. 12), Mst. Amir Begum v. Umar Din (PLD 1961 Lab. 360), Fateh Muhammad v. Maula Bakhsh (PLD 1963 SC 311), Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68), Iqbal Hussain Shah v. Abdul Ghani (PLD 1967 Lab. 633) and Rashid Ahmad v. Settle--ment Commissioner (PLD 1969 Lab. 994).
8. A perusal of the judgments relied upon by the learned counsel for the respondent shows that the point in issue before us did not arise in those cases, in all of which the essential facts were that the revisional authority had declined to entertain the revision petition without hearing the petitioner. It was held that the power vesting under section 20 of the Act being in the nature of a discretionary power, there was no right in the petitioner to demand a hearing, and the revisional authority was competent, without affording the petitioner an opportunity of being heard, to dismiss the petition.
The only limitation in this regard was to be found in subsection (5) of section 20 which lays down that- "No order shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard."
9. It will be seen that there is a clear distinction between a case where the revisional, authority declines to entertain a revision petition and dismisses it in limine without hearing the petitioner, and a case where the revision petition is entertained and notice is issued to the opposite-party, but the matter is then finally disposed of without hearing the parties or either of them. While in the first case the petitioner has no right of being heard as the revisional power is in the nature of a discretionary power, but in the second case the right of being heard has been created by the act of the revisional authority itself by entertaining the revision petition and calling upon the opposite- party to show cause why the same should not be accepted. The proceeding A before the Settlement Authorities are essentially of a quasi--judicial nature, involving adjudication of valuable rights conferred by the statute in relation to evacuee property, and, therefore, these authorities cannot be permitted to act in an arbitrary and capricious manner in disregard of established norms of judicial procedure and principles of natural justice. Once a revision petition is entertained and notice issued to the opposite-party, a lis comes into existence between the contending parties, and the statutory functionary cannot then be permitted to dispose of the same without allowing them a reasonable opportunity of being heard ar;d substantiating their respective claims and contentions. To hold otherwise would amount to endorsing and approving arbitrary action by the Settlement authorities.
10. It was next contended by Raja Muhammad Anwar that, in any case, section 23 of the Act, which permits restora--tion of a matter dismissed in default, does not cover revision petitions, but only inquiries and appeals, and therefore the provisions contained in Rule 9 of Order IX, C. P. C. Could not be invoked in this case. This argument was repelled by a learned Single Judge of this Court in Iqbal Hussain Shah v. Abdul Ghani, and we are in respectful agreement with the view taken in that case.
It was observed that- "There are no provisions under the Act for the dismissal of cases in default, but this power can be considered to be inherent in all those Courts or Authorities who exercise quasi--judicial powers as a civil Court to dismiss a case for want of prosecution, and when an order dismissing a case in default is passed, the Court or Authority has inherent jurisdiction to restore it to its file.
As the Act does not specifically empower the Settlement Commissioner to dismiss a revision petition in default, similarly, there is no specific provision for its restoration. In other words, both the orders must be deemed to be in the nature of inherent powers of the statutory functionary concerned while dealing with a quasi-judicial matter.
11. It was next submitted on behalf of the respondent, that even if the appellant was not heard at the time of the dismissal of her restoration applications, she was heard before the dismissal of her review application by the learned Settlement Commis--sioner on the 6th of June 1962. We have already referred to this order, and it does not need any elaborate reasoning to see that this order is not a speaking order, as it does not deal with the contention raised on behalf of the appellant that she never received any notice of the hearing of her revision petition on the 21st of November 1961. In similar circumstances in Altaf Hussain v. Chief Settlement Commissioner, the order of the Chief Settlement Commissioner passed in second revision was held to amount to failure to exercise jurisdiction as he had not adverted to the illegal character of the impugned order and had disregarded the party's plea concerning his vested rights in the property. The review order relied upon by Raja Muhammad Anwar does not deal at all with the appellant's contention.
12. It was finally submitted on behalf of the respondent that as in any case the appellant could not succeed as against the respondent, no useful purpose will be served by our remitting the case to the learned Settlement Commissioner for deciding the question of restoration of the revision petition of the appel--lant. This argument proceeds on the basis that the house is indivisible and the respondent is a claimant in prior possession. The submission obviously over-looks the fact that it is open to the revisional authority to reverse the finding of the Additional Settlement Commissioner on the question of the divisibility of the house. If the house is held to divisible, then the appellant would certainly be entitled to a portion thereof, even if she is not to prior possession.
13. For the foregoing reasons we would accept this appeal, set aside the orders passed by the learned Settlement Commis--sioner in revision as well as in the restoration application of the appellant, and direct that the restoration application should be decided afresh after hearing the parties. If the application is accepted then the learned Settlement Commissioner shall have to decide the appellant's revision petition on merits. In the circumstances we make no order as to costs.