This application under Sections 114, 151 read with Order XLVII, rule 1 C.P.C. And all other enabling provisions in this behalf seeks to review the order dated 12-2-1989 passed in Writ Petition No.902-R- 76.
2. Writ Petition No.902-R-76 was filed by Mr. Khalique Ahmad Ansari, Advocate, on behalf of Abdul Rehman and Ehsan A.I sons of Fazal Din and Dost Muhammad son of Mehr A.I. 1 have seen the power of attorney dated 9-6-1976, marked 'A' executed in favour of Mr. Khalique Ahmad Ansari, Advocate. This has been duly signed by Abdul Rehman and Ehsan A.I petitioners and one Riaz Ahmad, who is not a party to review proceedings. Dost Muhammad has not executed any power of attorney in favour of Mr. Khalique Ahmad Ansari, Advocate. The power of attorney bears the signatures of one Riaz Ahmad. On Court query, Mr. Khalique Ahmad Ansari made a statement at the Bar that Riaz Ahmad is the nephew of Dost Muhammad, and he signed the power of attorney.
There is, however, no such mention in the power of attorney that Riaz Ahmad signed the said power of attorney on behalf of Dost Muhammad petitioner, nor any special power of attorney in favour of Riaz Ahmad has been executed or placed on record to show that he was so authorized to execute a power of attorney on behalf of Dost Muhammad in favour of Mr. Khalique Ahmad Ansari. In the circumstances, the writ petition is deemed to have been filed by Abdul Rehman and Ehsan A.I petitioners. The name of Dost Muhammad petitioner is deleted from the array of the petitioners.
3. During the course of writ proceedings, the parties arrived at a compromise. In consequence, the writ petition was disposed of accordingly, vide order dated 12-2-1989.
4. Ch. Qadir Bakhsh, learned counsel for the applicant Ehsan A.I, submitted that the compromise dated 12-2-1989 was reached between the parties in respect of their respective portions on the basis of the statements made by them in the absence of the petitioners. His submission is that neither his case was considered on merits nor any compromise was arrived at between the parties with respect to one of the rooms in his possession. He also stated that it is specifically recorded in paragraph 2 of the writ petition that "the petitioners are in possession of one room each and the property which had collapsed due to heavy rains and floods in the year 1954-55 and were reconstructed by the petitioners at their own expenses." The brief submission is that the entitlement of the applicant has nether been adjudicated upon nor forms subject-matter of the compromise order and therefore, it be heard and disposed of in accordance with law.
5. None of the respondents to the writ petition claimed the disputed house, admittedly in occupation of Ehsan A.I, except the legal heirs of Jan Muhammad represented by Mr. Saif-ud-Din Chughtai.
6. Learned counsel submitted that the petition is not competent being time-- barred. Even on merits, it is not entertainable as the compromise order does not suffer from any error apparent on record. The writ petition also suffers from laches of two years and the documents appended thereto are not certified copies. On merits, Mr. Saif-ud-Din Chughtai submitted that the house in dispute along with four rooms stood transferred to Jan Muhammad, the original transferee, vide Provisional Transfer Order No.744752, dated 7-7-1960. The applicant having failed to persue his case when the compromise was arrived at between the other parties, is deemed to have abandoned his claim on merits. He submits that the effect of the Provisional Transfer Order, issued to Jan Muhammad, coupled with the compromise order passed by this Court, is that the disputed room also stood finally transferred to the legal heirs of Jan Muhammad and there is no justification for reopening the matter on merits at this belated stage.
7. I have heard the learned counsel for the parties and perused the material available on record.
8. Since Mr. Khalique Ahmad Ansari, Advocate, was counsel for Abdur Rehman as well as Ehsan A.I, it was his duty to point out at the time of recording compromise that he would like to persue the case on merits regarding Ehsan A.I. However, for reasons best known to him, it was not brought to the notice of this Court that Ehsan A.I petitioner was omitted in the compromise proceedings and that he would argue his case on merits. This necessitates the explanation of Mr. Khalique Ahmad Ansari, Advocate, who submitted as under~- ---Ehsan A.I petitioner never approached me right from the date of the institution of the writ petition till its decision on 12-2-1989. Ehsan A.I was also not available at the spot when in connection with the compromise proceedings, all the lawyers present in the Court and the parties inspected the premises.---
9. Mr. Khalique Ahmad Ansari, Advocate, however, misrepresented in the statement made to this Court on 12-2-1989 that he represented the petitioner Abdul Rehman in Writ Petition No.902-R=76.
The correct position is, as stated by the learned counsel in his own statement, that he was a counsel for Abdul Rehman as well as Ehsan A.I. It was, therefore, his duty to persue the case on merits on behalf of Ehsan A.I, unless instructed by his client to the contrary. Mr. Khalique Ahmad Ansari having failed to do so may be guilty of professional misconduct for which appropriate proceedings, may be initiated against him by Ehsan A.I, if so advised, but the legal hers of Jan Muhammad cannot be penalized for the negligence or alleged misconduct of Mr. Khalique Ahmad Ansari. Mr. Ansari represented all the petitioners. There was, therefore, no necessity of issuing any fresh notice or intimation to Ehsan A.I for persuing the writ petition. It was the duty of Ehsan A.I applicant, as well as, his counsel to persue the matter and apprise him of the dates of hearing in the Court. Ehsan A.I and his counsel Mr. Khalique Ahmad, Ansari having failed to diligently persue the matter are themselves to be blamed.
10. Even on merits, the applicant Ehsan A.I has no case. He allegedly filed BS Form for the transfer of the disputed property. A finding of fact has however, been recorded by the Deputy Settlement Commissioner (Plots), Lahore, vide order dated 17-6-1972, that "M/s. Abdul Rehman and others" failed to produce any documentary evidence to establish their case that they raised construction on the building site in their possession which was damaged by floods. It was further held that the property was not a plot but a house which was not transferred for the petitioners against their BS Form. This finding of fact was upheld in appeal by the learned Settlement Commissioner, Lahore, vide order dated 7-3-7974. It is wholly immaterial whether the applicant has filed BS Form or NCH Form for the transfer of the disputed quarter, if otherwise they are found entitled to its transfer. In the instant case, all the five quarters have been transferred to Jan Muhammad deceased respondent. The Settlement Authorities have nowhere held that the property transferred to Jan Muhammad was divisible. Ch. Qadir Bakhsh, however, vehemently argued that the case of both the writ petitioners, namely, Abdul Rehman and Ehsan A.I, being identical, Ehsan A.I was also entitled to the transfer of the disputed room in his possession. Suffice it to say that Abdul Rehman got one room by way of compromise and not through adjudication merits by this Court. The legal heirs of Jan Muhammad are not willing to surrender the disputed room to the applicant Ehsan A.I by way of compromise.
This Court, in the exercise of writ jurisdiction, cannot sit in judgment on the question of divisibility or otherwise determined by the Settlement Authorities. The impugned order in the writ petition so far as it relate to the case of the applicant does not suffer from any legal infirmity. No adjudication is called for qua the other parties who have sealed the dispute through compromise vide order dated 12-2-1989 of this Court which calls for no interference.
11. Be that as it may, Muhammad Shari, one of the legal heirs of Jan Muhammad, identified by Mr. Saif-ud-Din Chughtai, Advocate, has given an undertaking that he will make payment of Rs.10,000 to the applicant Ehsan A.I, purely on compassionate grounds, by 5-5-1989. He is, therefore, directed to make the said payment to applicant Ehsan A.I on or before 5-5-1989, either personally or deposit the same with the cashier of this Court.
12. With these observations, the application is disposed of, but there shall he no order as to costs.
H.B.T./A-715/L