1. MUHAMMAD AFZAL ZULLAH, CJ.-- This appeal through leave of the Court is directed against the dismissal by the High Court of appellants' Constitutional (Writ) Petition which had arisen out of a land settlement case. The order for grant of leave to appeal reads as follows:-- "The dispute related to land measuring 16 kanals and 13 marlas situated in Multan Khurd District Chakwal. It was allotted on temporary basis to Sardar Ali respondent No.2 a refugee from Jammu and Kashmir with no claim. He is alleged to have made an application on 31st December, 1968 for its cancellation and the Deputy Settlement Commissioner (Land) by his order dated 31st December, 1964 cancelled the same. Thereafter it was allotted to Muhammad Alam respondent No.3 on 27th February, 1965. He sold the whole of the said land in the following manner. On 3rd June 1965 he sold 8 kanals and 13 marlas out of it vide registered sale-deed to petitioners Nos.1 and 2 and the remaining land was sold on 28th June, 1965 to one Abdur Rashid. In May 1968 this Abdur Rashid on his part sold the portion purchased by him to Muhammad Khan predecessor of petitioners Nos.3 to 11. Thus all the petitioners became purchaser of the entire disputed land. Then after 8 years i.e. In 1971, Sardar Ali respondent No.2 filed an appeal before the Additional Settlement Commissioner (Land) Campbellpur challenging the order of cancellation of his temporary allotment without impleading the petitioners as party. This appeal was allowed on 15th May, 1972.
2. Thereupon the petitioners filed writ petition No.328-R of 1975 which was accepted by a learned Judge of the Lahore High Court Rawalpindi Bench vide judgment dated 14th February, 1983 and the case was remanded. Thereafter the Additional Commissioner (Revenue/Settlement Commissioner) Rawalpindi on remand passed an order dated 22nd May, 1986 upholding the order passed by the Additional Settlement Commissioner (Land) dated 15th May, 1972. It is this order which was challenged by the petitioners by way of a writ petition which had been dismissed by a learned Judge of the Lahore High Court Rawalpindi Bench on 5th July, 1986.
3. "We grant leave in this case, inter alia, to examine the contention of the learned counsel for the petitioners as to whether delay in the filing of the appeal by Sardar Ali respondent No.2 could have been condoned by the Settlement Commissioner (Land) by invoking the provisions of section 18 of the Limitation Act 1908, without there being any application for condonation of the same and without holding any inquiry in respect of it, particularly when after the lapse of 8 years vested rights had been created of the petitioners who were bona fide purchasers without notice.
4. Learned counsel has reiterated the points urged at the time of grant of leave to appeal.
5. Similar was the position before the Additional Commissioner Settlement/Commissioner whose order was impugned before the High Court by the appellants as well as before the High Court itself at the time of the hearing of the Writ Petition which was dismissed. The following observations by the Settlement Commissioner and by the High Court are relevant in the present context:-- "Learned counsel for the appellant (respondent herein) has argued that the cancellation of his temporary allotment and its subsequent allotment to Muhammad Alam was made in his absence and therefore as held in PLD 1973 Notes Page 66, Lahore, the order under appeal is ab initio void and no limitation runs against it. It was based on fraud, for which delay can be liberally condoned under section 18 of Limitations Act, 1908. 1 find it a clear case of fraudulent cancellation and fraudulent allotment of evacuee land and as such, provision of section 18 of Limitation Act is invoked. This section 18 is applicable to special laws under the provision of section 29(2) of the same Limitation Act, 1908. I therefore, proceed to condone the delay in filing appeal by Sardar Ali to Additional Settlement Commissioner (Land), Attock under section 18 of Limitation Act, 1908.
6. "Under the above views, I accept this appeal and set aside the order dated 31-12-1964 of D.S.C.
7. (Land), Talagang whereby he had cancelled the temporary allotment of Sardar Ali. At the same time, the allotment of the disputed land in the name of Muhammad Alain respondent at Khata RL-11 No.27, Multan Khurd made by the D.S.C. (Land), Talagang is also cancelled.-----"
8. II. High Court order dated 5-7-1986.
9. "The case of the petitioners (appellants) is that the appeal of Sardar Ali was barred by limitation and there was no justification for the Settlement Commissioner for condoning it. I find no merit in this contention. A fraud had taken place and the land in the name of Sardar Ali was cancelled in a fraudulent manner. Sardar Ali discovered this fraud only in 1971. The appeal brought by him on 17-1- 1972 was, therefore, within limitation and no condonation of delay was called for. On merits the learned counsel has argued that temporary allottees have no right to compete with genuine claimants, but this stage could arrive only if there was a competition between the temporary allottees and the so-called genuine claimant. In the present case Sardar Ali's land was cancelled o.; 31-12-1964 fraudulently on the basis of an alleged application made by Sardar Ali himself seeking cancellation of the land. Sardar Ali will, therefore, have to be restored to the position which he enjoyed 'on 31-12--1964. The question whether he can compete with anybody else did not arise on that date. The argument of the learned counsel, that the temporary allottees could not compete with a genuine claimant is, therefore, without any force.
10. In view of the above considerations the orders of the Addl. Commissioner restoring Sardar Ali to the position which he enjoyed on 31-12-1964 is entirely justified."
11. Learned counsel vehemently rather with extraordinary zeal pleaded the case of the appellants mainly on the ground that in the circumstances of this case the respondent Sardar Ali should have been penalised for fraud committed with him and the Writ Petition should have been allowed by the High Court because, according to him, the appellants who were the innocent beneficiaries but through the fraud committed by their predecessor-in-interest could be protected by the force of some precedent law. He also wanted to cite judgments to support his point of view.
12. Once it is granted that the respondent had been defrauded and that the appellants would not have gained what is with them without such fraud, no Court in Pakistan if it has any discretion in the matter, could permit a party to obtain benefit on account of a fraud committed on an innocent person as against the latter.
13. In this case the first question is of application of section 18 of the Limitation Act. Learned counsel urged that in terms it was not attracted to the present case and therefore the respondents' appeal which was barred by time even if due to fraud committed to him, not only could but should have been dismissed.
14. We do not agree with him. He has not denied that the Settlement Commissioner had also the power to condone the delay and he did exercise that power also. Therefore, the question of any technicality in favour of the appellants does not arise. The learned counsel could not even urge that while condoning the delay, the so-called bar which he tried to visualise in section 18, could be a hurdle in so far as the exercise of discretion by the Settlement Commissioner is concerned. This Court has in a number of cases when finding that time could not be excluded on account of some element of section 14 of the Limitation Act missing, condoned the delay under section 5 of the Limitation Act.
15. But the matter does not end here. The learned counsel is wrong when assuming that the High Court in exercise of its Writ jurisdiction is compelled by any law or principle to bless a fraudulent act, by depriving the person who is the victim of the fraud and by preserving the benefit obtained on account of fraud. If and when the High Court exercises the Writ jurisdiction in the above stated manner this Court interferes and rightly so.
16. Here the High Court has itself declined to exercise of discretion in favour of the appellants and that too on very sound principles. Learned counsel in the alternative argued that out of two parties who are the victims of fraud the appellants' interest should have been protected by the High Court. We do not agree with him on this point either. The victim of the fraud is the respondent while the appellants are the beneficiaries on account of the fraud. The question: whether they themselves committed the fraud or not is not much relevant in the present context nor we would go into the question of deciding whether or not they were only innocent purchasers. The fact remains that the appellants could not have gained any benefit without the fraud committed on the respondent. Had the fraud not been committed the appellants would not have been in picture at all.
17. Be that as it may, the question of exercise of discretion having been answered against the appellants this appeal is liable to be dismissed. However, in the light of the facts and circumstances narrated above and the case being one of fraud we consider it further fit for withdrawal of the leave grant order. Order accordingly. Thus the appeal as well as the petition for leave to appeal stand dismissed.