This Constitutional petition is directed against the order dated 18-11-1992 passed by the learned Additional District Judge, Gujranwala, who allowed an appeal filed by Muhammad Yunus respondent No. 3 and rejected the plaint filed by the petitioner, under Order 7, Rule 11 of the C.P.C. In the civil suit, the petitioner had assailed the legality of the orders dated 27-12-1973 and 3-2-1979 passed by the learned Settlement Commissioner (Lands). The said orders have also been impugned in the present writ petition.
2. Briefly stated the facts of the case are that the land measuring 4 Kanals bearing Khasra No. 482/161 situated in village Khokhar-ke Tehsil and District Gujranwala was allotted to the petitioner on 2-3-1954 and was subsequently confirmed in his name on 10-11-19--4. The petitioner got possession of the land and started cultivating the same through his tenants. His name duly appeared in the ownership columns of the Jamabandis. The petitioner has placed on the record Jamabandis for the year 1974-75 (Annex: B/1), 1978-79 (Annex. B/2) and 1983-84 (Annex. B/3).
However, the A.R.C. (Lands) without issuing any notice to the petitioner passed an order on Khata No. 75 of RL-11 cancelling the petitioner's confirmed allotment. on coming to know about the said order, the petitioner preferred an appeal before the Deputy Rehabilitation Commissioner (Lands), Gujranwala which was accepted on 9-8-1966. In the meanwhile, the disputed land was allotted to Muhammad Yunus, J & K refugee on 19-12-1959 by the A.R.C. (L) as evacuee trust agricultural land.
Against the order dated 9-8-1966, respondent No. 3 preferred a revision petition which was accepted by the learned Settlement Commissioner (L), Lahore vide his order dated 27-12-1973 who remanded the case to the Additional Deputy Commissioner (G)./Additional Settlement Commissioner (L), Gujranwala for a fresh decision after impleading all the necessary parties. After remand, the petitioner was proceeded against ex parte and the petitioner's appeal was dismissed by the Settlement Commissioner (Lands) vide his order dated 3-21979. The petitioner filed a civil suit challenging the legality of the orders dated 27-12-1973 and 3-2-1979 as well as allotment made in favour of Muhammad Yunus respondent No. 3. During the pendency of the suit, respondent No. 3 filed an application under Order 7, Rule 11 of the C.P.C. with a prayer for rejecting the plaint which was dismissed by the trial Court vide order dated 29-6-1992. Respondent No. 3 preferred an appeal which was allowed by the learned Additional District Judge vide his order dated 18-11-1992.
Resultantly, the plaint filed by the petitioner was rejected under Order 7, Rule 11 of the C.P.C.
3. The petitioner's, learned counsel contends that the petitioner was condemned unheard before the Settlement Authorities. His name and parentage was incorrectly given in the revision petition filed by respondent No.3 as well as in the citation in the Press. He submits that the petitioner is Karam Hussain son of Aswa r Ali Shah but respondent No. 3 gave his name and parentage as Karam Elahi son of Anwar Ali Shah. Due to this mistake, the petitioner was never served. He further submits that the orders passed by the Settlement Authorities in the absence of the aggrieved party or in violation of law can be challenged in the Civil Court. Alternatively, he submits that the orders of the Settlement Authorities have also been impugned in the present writ petition and can be declared to be without lawful authority. He adds that when the petitioner filed the appeal, he had no knowledge that the disputed land had been quietly allotted in favour of Muhammad Yunus respondent No.3. For that reason, he was not impleaded as a respondent in the appeal.
4.On the other hand, the learned counsel for respondent No. 3 submits that the disputed property was evacuee trust property and could not be allotted to the petitioner. He further submits that the petitioner's appeal before the Additional Settlement Commissioner was time-barred. He adds that respondent No. 3 was not impleaded in the appeal and the order dated 9-8-1966 was passed in the absence of respondent No. 3. He next submits that the Civil Court had no jurisdiction by virtue of the provision of section 25 of the Displaced Persons (Land Settlement) Act, 1958.
5. The material on the record shows that the disputed land was originally allotted to the petitioner and subsequently confirmed in his name on 10-11-1954. It could not be cancelled from his name without issuing any notice to him or giving him a reasonable opportunity of being heard. The cancellation order was passed by the ARC on 16-1-1959 without issuing notice to the petitioner or giving him an opportunity of being heard. Therefore, prima facie, the said order was void and a nullity in the eye of law. On coming to know about the said order, the petitioner preferred an appeal before the DRC (Lands), Gujranwala which was accepted on 9-8-1966. The relevant part of the order is reproduced below:-- "The number Khasra 482/161, in dispute, was confirmed to the appellant on 10-11-1954 by the A.R.C.
(L), and the same was cancelled under review on 16-1-1959 by the same officer. The A.R.C. (L), was not competent to review his own order. Moreover, instructions were received from the Chief Settlement Commissioner vide Memorandum No. 2349-64/2373-R(L), 241, dated 13-5-1964 that the allotments of the evacuee trust as already made should not be disturbed. In view of the above instructions the allotment has been wrongly cancelled. The appeal, therefore, succeeds and number Khasra 482/161 measuring 4 Kanals is restored to the allotment of the appellant."
Thereafter, Muhammad Yunus respondent No. 3 filed a hopelessly time--barred revision petition which was accepted by the Learned Settlement Commissioner (L), Lahore vide his order dated 27- 12-1973. It is significant to mention that the petitioner's name and parentage were incorrectly given in the revision petition and no notice was served on him. The petitioner is Karam Hussain son of Aswa r but in the revision petition, his name was given as Karam Elahi and parentage as Anwar Ali.
Even in the citation which appeared in "the Daily Musawat", his name and parentage were wrongly given. The learned Settlement Commissioner yet aside the order dated 9-8-1966 and remanded the case to the Additional Deputy Commissioner (G)/Additional Settlement Commissioner (L), Gujranwala for a fresh decision in accordance with law after impleading all the necessary parties.
In the post-remand proceedings also, the petitioner was not heard as the notice was not served on him due to the above-stated mistakes qua the petitioner's name and parentage: There is nothing to show that the newspaper was ever forwarded to the petitioner at his correct address. The case was decided in the absence of the petitioner by the learned Settlement Commissioner who dismissed the petitioner's appeal. Thus it is evident that the petitioner was condemned unheard.
The plaint filed by him did disclose a cause of action as well as explanation regarding delay in filing the suit. If the averments of the plaint are accepted to be true, then the suit was clearly within time.
Anyhow, this question can be finally determined after recording the evidence of the parties. In the case of Anwar Hussain v. DSC etc. (1983 CLC 851), it was held that the Civil Court was competent to examine whether the Tribunal acted according to law. It was also held in the case of Abdul Sattar v.
Settlement Commissioner! etc. (PLD 1981 Kar. 413) that finality was attached to orders passed with jurisdiction and within four corners of the Act. The principle of audi alteram partem (no one should be condemned unheard) is a part of every statute and the Civil Court is fully competent to examine whether the Settlement Authorities had passed the orders after complying with the said principle of law. The learned Additional District Judge grossly erred in holding that the (3 Civil Court had no jurisdiction in the matter. The orders passed by the Settlement Authorities in the absence of the petitioner were not sacrosanct and could be legitimately challenged in the Civil Court. The question whether the disputed land is an evacuee trust property and could not be allotted to the petitioner can appropriately be decided by the Civil Court after recording evidence. The other contentions relating to merits of the suit can also be agitated before the Civil Court.
6. For the foregoing discussion, this petition is accepted and the impugned order dated 18-11-1992 passed by the learned Additional District Judge is declared to be without lawful authority and of no legal effect and that of the learned Civil Judge dated 29-6-1992' restored. The case is remitted to the trial Court for decision of the suit -on merits in accordance with law.