1. ' This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan wherein the petitioner has prayed:- "That this Court will be pleased to declare the order dated 20-9-1995 passed by the respondent No,2 as order passed without lawful authority and jurisdiction and without hearing the petitioners and that the same is illegal and void and has no legal sanctity and the same be set aside and the entry if any effected in the City Survey record on the basis of the said order dated 20-9-1995 be deleted."
2. ' This petition has arisen out of the facts that the shops Nos.F/279 and F/280 situated at Lajpat Road, Hyderabad were in possession of one Dr. Jamaluddin and one Syed Aley Ahmed respectively when the said Jamaluddin was also in possession of an underground cell under both the shops.
3. The Assistant Settlement Commissioner allowed the transfer according to possession of the parties. Against said order Syed Aley Ahmed filed an appeal before the Deputy Settlement Commissioner protesting against the transfer of entire underground cell to Jamaluddin which appeal was allowed and against the said order of the Deputy Settlement Commissioner, Dr. Jamaluddin filed revision before the Additional Settlement Commissioner which was also disallowed. Thereafter said Jamaluddin preferred revision before the Settlement and Rehabilitation Commissioner, Karachi, Hyderabad and Khairpur Division which was allowed as per order dated 14- 12-1963 whereby said Dr. Jamaluddin was allowed entire underground cell alongwith the Shop No,F/279. Against the said decision of Settlement Commissioner Aley Ahmed preferred C.P.
4. No,33/1968 which was also summarily dismissed as per order dated 22-1-1969 passed by Mr. A.S. Farooqui, J. (as he then was) with the observation "the question was whether it was liable to be partitioned so as to give one portion each to the two occupants of the two shops. The physical evidence and the situation of the building and the cell" to which reference was made, related to any evidence to show that the cell had been used in two separate parts or the building was so situated that each of the shopkeeper had access to the cell. This was not found to be so and, therefore, the Settlement Commissioner was clearly right in deciding the matter as he did.
5. Summarily dismissed". Thereafter it is stated that Syed Aley Ahmed expired and his L.Rs, gifted the shop No,F/280 and basement cell beneath the said shop to petitioner No,1 by oral gift and thereafter necessary mutation in the City Survey Record was made against which the respondent No,1 who is said to have purchased the underground cell beneath the Shop No,F/280 from Mst.
6. Fatema Hussain Bibi wife of late Dr. Jamaluddin filed appeal before the respondent No,2 who allowed the appeal with the observation:-- "On receiving this report notices were issued to both the parties and the original. Record was called from the City Survey Office. None appeared on behalf of the opponents. While the advocate for the applicant presented his case. On hearing the advocate and after penising the original City Survey Record, this Court has come to the conclusion that forgery has been committed by the opponent in collusion with the City Survey Staff. The entry dated 25-2-1976 has been tampered with by adding the words 'alongwith cell'. The entry dated 29-1-1994 has also been tampered with by adding the words 'alongwith cell'. The entry dated 14-2-1994 is false in its entirety because the signatures of the City Survey Officer are clearly forged.
7. ' It is, therefore, ordered that the entry dated 14-2-1994 on plain card of property F-280 whereby the said property has been transferred in the name of Mst. Naheed Parveen w/o Muhammad Zahoor stands cancelled. Furthermore the words 'alongwith cell' in the entries dated 25-2-1976 and 29-1- 1994 on the plain card of property F/280 shall be deleted."
8. ' We have heard Mr. Rafiq Ahmed, learned counsel for the petitioners and Mr. Hakim Ali Siddiqui learned counsel for respondent No,1 and Mr. Abdul Sattar Kazi, Additional A.-G. For respondent No,2 and perused the petition, impugned order and annexures filed therewith.
9. ' Learned counsel for the petitioner has contended that respondent No,2 has no authority and jurisdiction to pass the order as the appeal could be filed only before Director, Land Records, Survey Settlement and Registration under section 6 of Sindh City Survey Act, 1987 and further that the petitioner was not heard before passing of the impugned order.
10. ' Learned counsel for the respondent No,1 has argued that the entry made in favour of petitioner was void ab initio as the cell under the Shop No,F/280 was not transferred to Syed Aley Ahmed therefore his legal representatives could not have given away the said cell by way of gift to Mst.
11. Naheed. He has further contended that Dr. Jamaluddin got the entire cell under the Shops Nos.F/279 and F/280 as per order of the Settlement Commissioner and said Aley Ahmed filed Writ Petition No,33/1968 which too was dismissed summarily, therefore the transfer in respect of cell underneath the both shops became final and conclusive. He has further contended that the petitioners have adequate and alternate remedy open by filing the suit and this Constitutional petition remedy is not available to them for setting aside the impugned order of respondent No,2 which has set right the wrong and injustice done to the respondent No,1. He has placed reliance upon Syed Ali Shah v. Abdul Saghir Khan Sherwani (PLD 1990 SC 504) and Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCM R 859) in support of his contentions. Reliance is also made to Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and another (PLD 1973 SC 236).
12. Admittedly the underground cell beneath the both Shops Nos.F/279 and F/280 Lajpat Road, Hyderabad stood finally transferred to Dr. Jamaluddin in view of the order passed by the Settlement Commissioner and the same was upheld by this Court in Writ Petition No,33/1968. The petitioner has not filed any documents showing that the cell beneath Shop No,F/280 Lajpat Road, Hyderabad was transferred to Syed Aley Ahmed. Underground cell beneath Shop No,F/280 Lajpat Road, Hyderabad was not transferred to Syed Aley Ahmed, therefore the same could not be inherited by his L.Rs,, hence his L.Rs,, could not make gift of the same in favour of the petitioner. In case any wrong entry was made in the City Survey by making false statement before the City Survey Officer the rectification if made by the respondent No,2 would amount to rectifying the illegality or injustice done to the respondent No,1 who has purchased the said cell through registered sale deed from the successor of Dr. Jamaluddin. Supreme Court of Pakistan in PLD 1990 SC 504 observed at page 510:-- "Even if we were to assume that the order of the Settlement Commissioner suffers from some legal infirmity, the facts of the case were such which warranted that the High Court should have declined to press into service its Constitutional discretionary jurisdiction as it is designed and intended to foster the cause of justice and not to perpetuate an injustice. This Court has repeatedly held that it is not every illegal order which is liable to be set aside in exercise of the Constitutional jurisdiction.
13. The paramount consideration should be, whether setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice. In the latter case, the High Court should decline to press in aid its Constitutional jurisdiction. It may be pertinent to refer to the case of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 in which Hamoodur Rahman, C.J. Made following weighty observation:-- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside has occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
14. ' The above principle has been reiterated by this Court repeatedly. Suffice to refer to the case of Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC- 331, the case of Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCM R 231, the case of Muhammad Umar v. Member, Board of Revenue and 9 others 1985 SCM R 1591, the case of Messrs Norwhich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCM R 1071 and the case of Zameer Ahmed and another v. Bashir Ahmed and others 1988 SCM R 516".
15. ' In PLD 1973 SC 236 Supreme Court of Pakistan observed at page 240:-- "An order in the nature of a writ of certiorari or mandamus is a discretionary order.. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
16. In the instant case it would appear that impugned order of respondent No,2 has in fact advanced the cause of justice and rectified the illegality by doing justice to the respondent No, 1 . This Court in exercise of its Constitutional jurisdiction would not allow to perpetuate an injustice but would interfere to foster the cause of justice. In the circumstances interference in the Constitutional jurisdiction of this Court with the impugned order would amount to perpetuate an injustice though it could be said the respondent No,2 was not competent to pass the same and was passed without hearing the petitioners. But we have heard the petitioners' learned counsel in this petition and he has failed to show title in favour of the petitioner in respect of cell beneath Shop No,F/280 Lajpat Road. Accordingly, no interference is called for in the circumstances of the case, hence the petition is dismissed in limine, consequently M.A. 1383/1995 is also dismissed.