MAHBOOB AHMAD, J.--This appeal under section 3 of the Law Reforms Ordinance, 1972 is directed against judgment dated 18-4-1974 passed by a learned Single Judge of this Court in Writ Petition No. 406-R/167 whereby he dismissed the said Writ Petition.
2. The brief facts necessary for the purpose of present appeal may be stated as under: Muhammad Ramzan, the deceased appellant, now represented by his legal representatives Mst.
Taj Bibi and 7 others made an application before the Deputy Settlement Commissioner on 9-8- 1965 seeking transfer of Shop No. 53 Block No. 9, Sargodha. He claimed to be in possession of the said shop which was in a dilapidated condition and allegedly after demolishing its roof he reconstructed the same. This application of the appellant was duly considered by the learned Deputy Settlement Commissioner who by his order dated 20-8-1965 held on the basis of a report of the Building Inspector of the said Department that since a P.T.D. Has been issued the question of summoning the parties would not arise and that the aggrieved party can seek remedy in the proper Court of law. It may be observed that in the report it was mentioned that the shop claimed by the aforementioned Muhammad Ramzan had already been auctioned as Shop No. 46 in the name of Abdul Aziz for a consideration of Rs. 28,000 and the P.T.D. Pertaining thereto had been issued to him. The predecessor-in-interest of the appellants thereupon filed an appeal before the Additional Settlement & Rehabilitation Commissioner, Sargodha Division against the aforementioned order dated 20-8-1965. This appeal was dismissed by the learned Additional Settlement and Rehabilitation Commissioner vide his order dated 27-10-1965. Muhammad Ramzan aforesaid thereupon filed a revision petition before the learned Settlement Commissioner, Sargodha who dismissed the same by his order dated 24-2-1967. Muhammad Ramzan the deceased appellant still felt dissatisfied with the orders of the settlement hierarchy and filed Writ Petition No. 4(K/R-1967 in this Court which war dismissed vide the impugned judgment dated 18-4- 1974 passed by a learned Single Judge. The appellant has, therefore, come up in the present Intra- Court appeal.
3. A preliminary objection has been raised on behalf of .The contesting respondents Nos.4 and 5.
Malik Amjad Hussain Advocate, learned counsel for the said respondents contends that the present appeal is not competent in view of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. In support of his above contention he has placed reliance on Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344.
4. The learned counsel for the appellants on the contrary has submitted that the appeal is competent. He has elaborated his contention by saying that since no transfer order was passed on the application of the appellants the matter still remains to be adjudicated upon and the impugned order of the Settlement Department cannot be termed as orders in the original proceedings anxious consideration to the controversy we are of the view
5. Having given that the submission made by the learned counsel for the appellants has no force it being the admitted position that on the application of the deceased appellant which sought the transfer of the property an order was passed by the competent r whereafter the appellant unsuccessfully agitated against the said under in office a cal and revision available under the enactment under which the property was to be dealt with. It is thus obvious that the proceedings out of which the writ to be dealt and consequently the present appeal has arisen were under a law wherein petition remedy of appeal and revision was provided for but in fact it was availed of by the appellants. On the principle laid down in the afore-cited judgment of the appellants. Supreme Court of Pakistan it is clear that the present appeal falls within the mischief of the proviso to subsection (Z) of section 3 of the Law Reforms ordinance, 172 and. Therefore, not competent.
Resultantly the same is dismissed with costs.