' SALEEM AKHTAR, J.---The appellants by the leave of the Court challenge the judgment of the High Court of Sindh, dated 16-5-1989 whereby their application under section 12(2), C.P.C. Was dismissed.
2. The facts giving rise to this appeal have been stated in the order granting leave as follows:--- ' A plot of land bearing Survey No,781-Deh Thano Tapo, Malir, Karachi, according to the petitioners belonged to the Evacuee Trust, Dehdar Bahi Pragji Trust and was not liable to be transferred by the Settlement Authorities.
' The plot was purchased by Abdul Rashid from the Settlement Authorities in an open auction and PTO and PTD were issued. The said Abdul Rashid sold the plot to Kist. Khairun Nisa, who in turn sold the same to Sajjad Hussain, who ultimately sold it to the respondent.
' In April 1983, an application was made to the Chairman, Evacuee Trust Property Board, Lahore, by the Deputy Administrator, Evacuee Trust Property, Karachi under sections 8 and 10(2) of the Evacuee Trust Property (Management and Disposal) Act No,XIII of 1975, praying that the PTO and PTD in favour of Abdul Rashid, the predecessor-in-interest of the petitioner, be cancelled and the, land be resumed.
' The Chairman, Evaucee Trust Property Board declared the property to be evacuee trust property and further declared its transfer to private person as illegal and ordered the eviction of the respondent.
' Against the order, the respondent filed a Constitution Petition in the High Court and succeeded.
' From the judgment of the High Court the petitioner filed a petition for leave to appeal in this Court, being Civil Petition No,150-K of 1985 which was dismissed as being barred by time.
' Thereafter the petitioners filed an application in the High Court under section 12(2) of C.P.C.
Claiming that the High Court had no jurisdiction in the matter as the Chairman, Evacuee Trust Property Board, the petitioner No,2, had passed the order under MLR 57 and the jurisdiction of the High Court was barred under Article 1.5 of the Provisional Constitution Order, 1981.
' Dealing with this ground the High Court in the order impugned in this petition observed that firstly, no such contention was raised by the petitioner before the Bench which heard the case, secondly, it was not open to the respondent to urge this point as this question required investigation into factual aspect of the case and no such order of the Chairman of the Evacuee Trust Property Board which is alleged to have been passed under MLR 57 was produced in the writ petition or filed alongwith the application. Accordingly, the High Court dismissed the application.
3. Leave was granted to consider the question whether the order of the Evacuee Trust Property Board which was available and reference having been made to MLR 57 in it the judgment of the High Court was passed without jurisdiction and, therefore, application under section 12(2), C.P.C.
Was maintainable. It was further to be considered whether the provisions of section 12(2), C.P.C.
Could be pressed into service in respect of an order passed in Constitutional jurisdiction, particularly in view of the fact that the petition against the judgment of the High Court in writ petition was already dismissed by this Court as being barred by time.
4. It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court. Section 12(2), C.P.C. Being a part of it will be applicable. In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. Could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197, such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and therefore the application filed by the appellants there was competent.
5. The learned counsel for the appellants contended that the order on application under section 12(2), C.P.C. Was passed under misconception of facts and without noting the relevant observations in the judgment of the High Court. He has referred to us to several portions of the judgment from which it is clear that the Court was aware that appellant No,2 had passed the order under MLR 57 and the same was quoted in para. 4 of the judgment as well. It is possible that the plea of jurisdiction may not have been raised as observed in the impugned order, but once MLR 57 was noticed the Court ought to have adverted to the question of jurisdiction. In the impugned order it was further observed that no order of appellant No, 2 passed under MLR 57 was produced with the Constitution petition. This fact also does not seem to be correct as in the Constitution petition the respondent had challenged the order of appellant No,2 dated 14-1-1985 which was passed under MLR 57. Therefore, the learned Judges under misconception of fact dismissed the application under section 12(2), C.P.C. Which on merits deserved consideration.
6. In the petition filed in the High Court the respondent had challenged the legality of the order passed by appellant No,2 and the learned Judges of the High Court held that the land transferred to Abdur Rashid was a Sikni land and not an agricultural land and therefore it did not fall within the ambit of MLR 57 which related entirely to agricultural land. The learned Judges have referred to several documents to come to such a conclusion. However, it may be noted that MLR 57 declares properties in the Schedule annexed to it as agricultural land. The disputed property bearing Survey No,781 measuring 0-10 situate in Deh Thano, District Karachi, has been mentioned in the Schedule.
MLR 57 provides that if in the opinion of the Martial Law Administrator, Zone 'C', any part of agricultural land specified in the Schedule and belonging to the defunct-Evacuee Trust and now vesting in the Evacuee Trust Property Board has been acquired, entered upon or taken possession of by any persoq illegally or by fraud, misrepresentation or otherwise, he may by order cancel such acquisition, allotment or transfer and may further eject such occupant and restore to the Evacuee Trust Property Board free from all encumbrances. This Regulation applies to the agricultural land specified in the Schedule provided it belonged to the defunct Evacuee Trust so specified in the Schedule and now vesting in the Evacuee Trust Property Board. It further requires that such land if acquired or taken possession of by any person illegally or by fraud, misrepresentation or otherwise, action under the Martial Law Regulation can be taken against the property so specified Mad the persons so occupying the land. The acquisition should have been illegal or by fraud, misrepresentation or otherwise. The word 'otherwise' following these specific words means such allotment, possession or acquisition should not have been in a regular and legal manner. The cases in which transfer has been obtained by using official position, political influence, or in violation of or illegal relaxation of any law, rule, regulation, condition or policy, will be covered by this Regulation.
7. It is true that the jurisdiction of the High Court was barred under the Provisional Constitution Order, 1981 to look into the validity of the order passed under the Martial Law Regulation, but in view of the law laid down in Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, if any order passed by any authority under the Martial Law Regulation is void, without jurisdiction, mala fide or coram non judice, the superior Courts have the jurisdiction to entertain Constitution petition. As pointed out earlier the application of MLR 57 depends upon certain considerations, conditions' and investigations. Unless all the conditions specified in para. 1 of MLR 57 have been complied with or correctly been determined the provisions of MLR 57 cannot be invoked. The moot point challenged by respondent is that the property is a Sikni land and not an agricultural land. Secondly, the property was validly transferred to Abdur Rashid by the Settlement Authorities and since then it has changed hands which was purchased by bona fide purchasers for valuable consideration without any notice or knowledge of any illegality or fraud in the transfer of the property by the Settlement Department. The land in dispute has been included in the Schedule and by legal dispensation it has been treated to be agricultural land. While considering the validity of the transfer in favour of Abdur Rashid, all the facts urged and the conditions for applicability of MLR 57 have to be taken into consideration particularly so, as under section 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), bona fide utilization of the properties under any Act up to the cut off dates provided under it were to be treated as validly transferred to the Settlement Department and the sale proceeds thereof were to be reimbursed to the Evacuee Trust Property Board. The object seems to be not to interfere with the transfers of such trust properties which have been made by the Settlement Authorities bona fide and also believing them bona fide to be evacuee properties.
This observation is supported by the fact that the Statute validates such transfers and the consideration paid for such property is to be reimbursed to the Board. The Board is thus more interested in obtaining the money rather than the land. There is wisdom behind such provisions as they do not intend to interfere with trust properties legally transferred by the Settlement Department to the bona fide purchasers. MLR 57 requires the properties restored to the Board to be disposed of through open public auction as provided by paragraph 6. The object of MLR 57 is to restore to the Board properties, which were transferred illegally, under misrepresentation, fraud or otherwise and then to dispose them of through open auction so that the Board may be able to fetch better price.
8. Keeping these broad principles in view, the cases in which evacuee trust properties have been restored to the Board under MLR 57 and have been challenged in the High Court have to be decided. Considering the facts and circumstances as discussed above, we set aside the impugned order of the learned Judges of the Division Bench and remand the case to the High Court for decision on merits. We are conscious of the fact that the question of jurisdiction may arise and if the High Court comes to the conclusion that for any reason order under MLR 57 has to be maintained, it will ultimately result in disposal of the property again.
' At this stage the learned counsel for the appellants stated that if the respondent is prepared to pay the present market price of the land the same may be transferred to him. It is a fair and bold concession made by the learned counsel for the appellants which we expect to be followed by all the learned Advocates while discharging their duties in Court. Such attitude would help in determining the case in a realistic manner in the shortest possible time. Reference can be made to M/s. Punjab Engineering Co. v. Muhammad yaqoob PLD 1991 SC 799. We therefore allow the appeal and remand the case to the High Court to decide it on merits. If the transfer is found to be hit by MLR 57, then the transferees in occupation may be allowed to retain lease-hold rights and possession, provided they pay the present market price of the land as determined by the High Court.
' Appeal allowed. . No costs.