ABDUL QADEER CHAUDHRY, J.--The petitioners seek leave to appeal against the order of the Peshawar High Court dated 9-4-1989.
2. The facts, in brief, are that the evacuee bungalow bearing C.B. No. 165/1, Peshawar Cantt: was transferred by the Settlement Department to the petitioners and respondents 1, 2 and 4. It is claimed that they are real brothers and sisters inter se. Out of the transfer price, payment had been made upto 95.72% of the sale price leaving the balance of . Rs.1,403 only. The N: W.F.P. Government by its notification dated 26-11-1973 added the following proviso to its Settlement Scheme No.VIII-- "Provided that in cases where more than 25% of the transfer price has already been paid no resumption proceedings will be initiated but Transfer Order as provided under paragraph II will be issued."
3. It is the case of the petitioners that respondent No.5 at the application of respondent No.1 cancelled the P.T.O. Pertaining to the 5/7 shares of the petitioners and respondent No. 4 in the bungalow in question and transferred them to respondent No. 1. The petitioners filed a writ petition in the Peshawar High Court. The petition was admitted by the High Court on 25-6-1988 in the following terms:-- "Inter alia contends that the Deputy Settlement Commissioner and the other forums relied on the unamended provisions of Settlement Scheme No.VIII, dated 26-11-1970 which was amended on 21- 12-1973 and under the amended provisions, if more than 25% of the transfer price has been paid no resumption could be ordered and the property stood validly transferred. Contends that in the case in hand admittedly more than 25% of the transfer price had been paid. Relies on 1980 SCMR 798 and 827".
4: This petition was dismissed by the High Court for non-prosecution on 28-1-1989. The application for restoration of the writ petition was also dismissed in limine by the High Court on 4-3-1989. The petitioners preferred an Intra-Court Appeal before a Division Bench of the High Court. This appeal was dismissed on the ground that "no Intra Court Appeal is available against the judgment of a learned Single Judge of this Court made in a Constitutional petition concerning evacuee property".
5. Learned counsel for the petitioners has submitted that the learned High Court has entertained an Intra-Court Appeal in a similar matter but has taken a contrary view with regard to the Appeal filed by the petitioners. He further submitted that the Law Reforms Ordinance XII of 1972 was amended by Act VI of 1975 whereby it was provided that "an appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause
(I) of Article 199 of the Constitution". It is further contended that 28th of January, 1989 was declared as public holiday by the Government of Pakistan, therefore, on account of this fact, the petitioners' counsel did not appear in the Court.
6. Leave to appeal is granted to examine whether hearing by the High Court on 28-1-1989 despite the notification issued by the Federal Government declaring it as public holiday suffered from any legal infirmity and if not, whether non-appearance of the petitioners or the counsel amounted to gross negligence which called for penalty of dismissal of their petition. The petitioners arc permitted on the oral request of the learned counsel for treating this petition against the decision of the learned Single Judge, if ultimately it is held that the Intra Court Appeal was not competent.
The petitioners may file an application under the Limitation Act for condonation of delay.
Security Rs.5,000.
7. The appeal to be made ready on the present record with permission to the parties to file essential documents.