' S.ANWARUL HAQ, J.--This appeal under the Letters Patent calls in question an order made by Mr. Justice S.A. Mahmood on the 27th of June 1963 partly accepting a petition filed under Article 98 of the Constitution by the respondent No.1 Kh. Muhammad Afzal in respect of the transfer of a shop comprised in property bearing No.S-64-R/161 situate in New Anarkali, Lahore. It appears that the property consists of two shops and a residential portion on the top. The present appellant's son Muhammad Yunas claimed to be the allottee of the shop now in dispute, and on the basis of that allotment the appellant Muhammad Sadiq submitted a C.S. Form for the transfer of the shop, whereas the respondent No.1 Kh. Muhammad Afzal submitted a C.S. Form for the transfer of the entire property on the basis of his possession of the other shop and the residential portion. The learned Deputy Settlement Commissioner by his order dated the 1st of December, 1959 transferred the entire property to respondent No.l. Thereupon the present appellant's son Muhammad Yunas filed an appeal which was accepted by the learned Additional Settlement Commissioner by his order dated the 4th of June, 1960 and the shop in dispute was transferred to Muhammad Yunas.
Aggrieved by this appellate order the respondent No. 1 went up in revision which was accepted by Mr. Farzand Ali Khan, the learned Settlement and Rehabilitation Commissioner, Lahore Division, by his order dated the 6th of July, 1960. This Officer observed that the shop in dispute was really nothing but a small room in which the stairs were located and, therefore, it could not be treated as a separate unit. He further observed that, in any case, Muhammad Yunas had no locus standi to file the appeal as the applicant was his father Muhammad Sadiq. Now it was the turn of the present appellant to go up in second revision which was initially entrusted for disposal to the late Mr. Nabi Ahmad by an order passed by Mr. A hsan-ud-Din, Chief Settlement Commissioner, on the 4th of September, 1961, but subsequently the case was tossed from one Court to another until it came up for final hearing before Mr. S.M. Rafiq, Settlement Commissioner with the powers of the Chief Settlement Commissioner. In his order dated the 20th of April, 1962 Mr. Rafiq observed that the shop in dispute had been used as a separate unit since before Partition and was carrying a rental of Rs.20 per mensem as against Rs.60 per mensem pertaining to the other shop. On this view of the matter, he considered that the shop in dispute was distinct and should be disposed of as such. He, therefore, transferred it to the present appellant Muhammad Sadiq.
2. Aggrieved by this order passed in second revision the respondent Muhammad Afzal filed Writ Petition No.1336/R of 1962 which was disposed of by a short order by Mr. Justice S. A. Mahmood on the 27th of June 1963. The learned Judge observed that as the records had not been called before the 13th of January, 1962, the revision petition was not competent in view of the provisions contained in Ordinance 2 of 1962. As a result he declared the revisional order to be without lawful authority. He then proceeded to observe that as the shop in dispute had been found to be a separate commercial unit by the learned Settlement Commissioner, with the powers of the Chief Settlement Commissioner, therefore, it could not have been transferred to Muhammad Afzal as it would amount to giving him two shops. As a result, he observed that it was for the Settlement authorities to decide what action, if any, was necessary in this behalf. In the concluding portion of the order under appeal the learned Judge in Chambers took note of a submission made on behalf of the present appellant that the original record of the second revision should be summoned, as that would show that the records had been called by the Chief Settlement Commissioner much before the prescribed date, but the learned Judge in Chambers was not inclined to allow this prayer. However, he observed in the concluding sentence of the order that "if the respondent (i.e. The present appellant) finds that there was an earlier order passed before the 13th of January, 1962 to summon the record in second revision, he may apply for review of this order".
3. In the present appeal the main ground urged on behalf of the appellant is that the learned Judge in Chambers is wrong in holding that the records had not been summoned in the second revision before the prescribed date, namely, the 13th of January 1962, and that he would not have fallen into this error if he had permitted the original record of the Department to be produced before him as had been prayed on behalf of the present appellant. We find that an application was indeed made on behalf of the appellant in this connection, but the learned Judge was not pleased to allow it and instead observed that he would be prepared to review the order if any such material was available. When the application for review was presented to him, it was summarily dismissed on the 30th of March, 1964 observing that there was nothing to show that the record had been summoned before the relevant date.
4. We have perused the original file of the Settlement Department and we find that the revision petition was for the first time placed before Mr. A hsan-ud-Din, Chief Settlement Commissioner, on the 4th of September, 1961 when he entrusted it to Ch. Nabi Ahmad, Settlement Commissioner, for disposal. There is then an order made on this A original memorandum by Ch. Nabi Ahmad marking the papers to his Reader, and this is followed by an order made by the Reader to the Ahlmad to summon the file from the Additional Settlement Commissioner. These endorsements are dated the 18th of October, 1961 and appear on page 25 of the file produced before us. Mr. Ahsan-ud-Din's order is on page 28 of the file. Then there is a letter dated the 30th of October, 1961 sent by the Deputy Settlement Commissioner to Ch. Nabi Ahmad, Settlement Commissioner, stating that as desired by him the relevant file containing 121 pages was being submitted. From these endorsements and letters it becomes abundantly clear that the record had indeed been summoned by the competent authority before the 13th of January, 1962. The learned Settlement Commissioner (Legal), who appeared for the Department, and Mr. Bashir Zafar, who appeared for the contesting respondent, were not able to show why reliance should not be placed on these documents which are contained in the file which has been sent to us from proper custody. The contention put forward by the learned counsel for the respondent that if indeed these documents were available in the first instance, then they should have been produced before the learned Judge in Chambers at the relevant time, does not amount to saying that these documents have been fabricated by any party to the present proceedings. In this state of the record we consider that the learned Judge in Chambers has erred in thinking that the second revision was incompetent owing to the records not having been summoned before the prescribed date. As a result, we would hold that the order passed by Mr.S.M. Rafiq, while exercising powers of the Chief Settlement Commissioner in second revision, was with jurisdiction and could not have been set aside on this ground.
5. Certain preliminary objections raised on behalf of the respondent may be noticed before parting with this order. It was first pointed out that the appeal was barred by time as it had been instituted 286 days after the order under appeal was made. The explanation for the delay is contained in an application submitted on behalf of the appellant under section 5 of the Limitation Act, and it is to the effect that the appellant was pursuing in good faith an alternative remedy by way of a review petition, as directed by the learned Single Judge himself. The review petition was instituted on the 17th of July, 1963 and was disposed of on the 30th of March, 1964, thus, consuming 257 days.
Applying the principle embodied in section 14 of the Limitation Act, we would be justified in excluding this period for computing the limitation. This leaves only a period of 29 days to be accounted for, out of which 20 days is the prescribed period of limitation, and the remaining nine days are said to have taken in obtaining a certified copy of the order under appeal. This copy was applied for on the 17th of July 1963 and was ready on the 23rd of July 1963. There is no indication whether any intimation was sent to the appellant to receive the copy which he actually received in November, 1963. The period taken by him in taking delivery of the copy cannot be allowed in its entirety, but a reasonable period would have to be allowed after the copy was ready for delivery, in the absence of any indication on the record that he was directed to receive it on the 23rd of July 1963. Even if, therefore, three days are allowed, the appeal would be found to be within time, i.e. , 20 days period of limitation plus the time taken in obtaining a certified copy of the order under appeal.
6. Another objection taken on behalf of the respondent was that although the present appellant was the, applicant for the transfer of the shop in dispute, yet the appeal before the Additional Settlement Commissioner was filed by his son Muhammad Yunas, with the result that it must be held that the appellant had accepted the original order of transfer of the entire property in favour of the respondent. It is true that the appellant did not come up in appeal to the Additional Settlement Commissioner, but he was the petitioner in the second revision before the learned Chief Settlement Commissioner who admittedly had the power to examine the correctness, legality and propriety of the orders passed by any of his subordinates. In any case, it would be a sheer technicality to disallow the claim of the present appellant on the ground that the appeal was in the name of his son, when it is remembered that the shop was in the possession of the son and it was on the basis of that possession that the appellant had made his transfer application.
7. The last objection raised on behalf of the respondent was that the respondent had associated with his brother who is also named Kh. Muhammad Sadiq and, therefore, the present appeal was not competent without impleading the associate. Suffice it to say that the respondent was the petitioner in the writ petition, out of which the present appeal has arisen, and he himself failed to implead his associate as a co-petitioner. Even in the second revision petition the associate was not a party to the proceedings, although the association had admittedly taken place much before the revisional proceedings and the institution of the respondent's writ petition. In these circumstances, we cannot allow the respondent to turn round and question the competency of the present appeal on account of non-impleading of his brother and associate.
8. For the foregoing reasons, we consider that the present appeal has to be allowed. We order accordingly and set aside the order of the learned Single Judge dated the 27th of June, 1963. As a result, the order passed by Mr. S.M. Rafiq in second revision would stand.
9. We should have stated earlier that even the respondent had filed a Letters Patent Appeal, namely, L.P.A. No.364 of 1963, against the observations made by the learned Single Judge with regard to the respondent's entitlement to retain two shops. That appeal was, however, dismissed by a Division Bench of this Court on the 5th of January 1965 observing that Paragraph 2 of the order under appeal did not amount to any positive finding against the respondent. We have only mentioned this to complete the history of the case, but it has no bearing on the legality of the second revisional order with which we are mainly concerned in these proceedings.
10. In the circumstances of the case, there will be no order as to costs.