RAJA MUHAMMAD SABIR, J. -- This Constitutional petition is directed against the order dated 6.6.1994 of Chief Settlement Commissioner-respondent No. 1 for declaring it illegal, without jurisdiction, void and inoperative against rights of the petitioners. It has , also been prayed that transfer order dated 22.4.1992 issued in favour of respondent No. 4 being based on fraud and forgery he cancelled in the light of report submitted by the Director General Incharge Legal Cell dated 4..8.1992 and in the alternative Chief Settlement Commissioner he directed to decide application Of the petitioners under. Section 12 (2) of CPC on merit .
2. Brief facts of the case are that property hearing No. S 38-R-I03, Circular Road, Lahore, commonly known as Saadat Building is located on khasra No. 1499, 1500 and 1501 shows in Aks Musawi for the year 1940, measuring I kanal, 9 marlas and 17 Sq.Ft., copy whereof is attached as Annexure-A. It is stated that it is non-evacuee property which devolved upon Mst. Namwar Khatun, mother of the petitioners and after her demise it has been inherited by the petitioners. Copy of khasra Imarti for the year 1979-80 has been attached as Annexure-B with the petition showing Mst. Namwar Khatun as its owner. Copies of fard jamahandi for the year 1945 46 and 1950-51 are Annexures B-1 and B-2 indicating it Muslim owned property. It is further stated that the disputed property was never treated as an evacuee property before 1.1.1957 and it was never shown in the survey register of the Settlement Department. The mother of the petitioners also got ejected certain tenants from the property through litigation and on of the tenants, Noor Muhammad contested the litigation upto the Supreme Court which was ultimately decided in favour of the petitioners mother. Copy of the judgment of the Supreme Court is attached as Annexure-C.
3. The petitioners at a late stage learnt that respondent No.; 4 secured transfer order No. 0000079 from Settlement Department aforesaid property. On inquiry it came to light that the property was included in auction list as item No. 7 and was purchased by Mst. Nafeesun-Nisa on 22.8.1960 for Rs. 1,22,500/- out of which, according to the report, a sum of Rs. 70,900/- was deposited and P.T.O. No. 351284 was issued in her name on 30.10.1961. Subsequently on 20.11.1963 aforesaid, auction purchaser allegedly entered into an agreement of association with one Mst. Alam Bihi for adjustment of further sum of Rs. 11,400/- out of her compensation hook No, 192203/LHR-VI-1777 leaving a balance of Rs.35,168/-. The auction purchaser also entered into an agreement of association on 19.10.1973 with respondent No. 4 for surrendering full rights in the property in his favour. The agreement of association was approved on 22.10.1970 but respondent No. 4 took no action for about 11 years and only on 29.8,1984 deposited Rs.
35,168/- as balance of the price and Rs. 613/- as settlement fee and applied for issuance of transfer order, The compensation hooks allegedly deposited for payment of price were not available nor any payment was entered in the Register SCS-V. Respondent No. 4 then managed to deposit Rs.
87,332/- on 16.11:1989 and thereafter got the transfer order on account of directions issued by this Court while disposing of W.P. No; 122-R/91 as the department had refused to issue any transfer order as it was not a pending case. Respondent No. 4 had .Asserted that it was a- pending matter as the full price had not been paid, therefore, direction was issued by this Court treating it as a pending case. The petitioners were not a party before the Settlement Authorities or the High Court, neither they were award of such proceedings.
4. ,The case of respondent No. 4, on the other hand,-is that it was an evacuee property which was included in the auction list and his predecessor purchased it and he paid the entire amount, therefore, P.T.O. Issued in his favour on 22.4.1992 is valid. The report of the Director General Incharge Legal Cell dated .4.8.1992 has been procured fraudulently by the petitioners wherein it has been held that the disputed property was non-evacuee and its transfer was illegal. Respondent No. 4 challenged the aforesaid report in W.P. No. 185-R/92 which was subsequently withdrawn on 31.10.1992 on this ground that he had already filed civil suit on the same cause of action. H is civil suit filed on 28.10.1992, i.e. 3 days before the withdrawal of writ petition, was rejected by the learned Civil Judge under order 7 rule 11, CPC on 12.7.199.' f le preferred an appeal which was dismissed on 19.3.1994 by the learned Addl. District Judge.
5. The petitioners thereafter filed application under Section 12 (2), CPC befort the Chief Settlement Commissioner-respondent No. 1 who vide impugned order dated 6.6.1994 held that the case was not pending It the time of repeal of the settlement laws through Act. XIV of 1975, he has no jurisdiction to determine whether the disputed property is evacuee or non-evacuee, and refer the matter to Civil Court against which the present petition has been instituted.
5. Learned counsel for the petitioners contends that the disputed property is owned by Muslims was -neither treated as evacuee property nor had it ever become a part of Compensation Pool. It was not included in the auction-list of properties auctioned on 22.8.1960. In the settlement record the entries do not show that this property was ever auctioned in 1960. Only in the hid-sheet the same has been fraudulently shown. The hid-sheet is a fabricated document. Not a penny was paid by the so-called auction purchaser towards the auction price. Till repeal of the settlement laws, the transfer order was not issued and amount of Rs. 35.168/- was deposited by respondent No. 4 on 29.8.1984. As regards the adjustment of remaining amount through compensation hooks, the inquiry shows that no compensation hook was ever presented for this purpose and remaining amount of Rs.87.332/- was paid by respondent No. 4 in the year 1989. Till issuance of transfer order, it was a pending matter. Therefore, -respondent No. I was competent to hold an elaborate inquiry to declare whether the property is evacuee or non-evacuee and the fraud played by respondent No. 4 with the department could he gone into by him. Learned counsel has relied upon the report of the Director General Legal Cell dated 4.8.1992 in this context. He further submits that forged and fictitious documents were prepared by the contesting respondent and produced before the Chief Settlement Commissioner and the property of Mst. Namwar Khatun, predecessor-in-interest of the petitioners, has been illegally treated to he an evacuee property and transferred to respondent No.
4. Respondent No. 1 is competent to examine the entire case as the allegation of fraud is attributed to the department itself and he is the best person to hold a detailed inquiry by collecting and going through all relevant material documents to find out the truth. He has relied upon 1997 M LD 2955, PLD 1975 S.C. 331 and 1989 SCM R 819 and submits that the impugned order is not sustainable in the eye of law. May he quashed and direction he given to respondent No. For disposal of the case on merit.
6. Learned counsel for respondent No. 1, on the other hand, while relying upon 1994 SCM R 150 which also finds mention in the impugned order', submits that the matter was not pending at the time of appeal of settlement laws, therefore, jurisdiction of respondent No. I was ousted. He supports the impugned order and submits that the petition is liable to he dismissed.
7. Mr. M.L. Khalil, Advocate appearing on behalf of the settlement department submits that since full price was not paid by respondent No. 4 at the time of the repeal of Act and no transfer order was issued, therefore, it was a pending matter and respondent No. 1 was competent to decide it on merit.
8. Have heard the learned counsel for the parties and perused the record with their assistance.
9. According to respondent No. 4 the disputed property was . Included in the auction list as item No. 7 and purchased by Mst. Nafees-unNisa on 22.8.1960 for Rs. 1,22,500/-. The hid-sheet contains a certificate that in case of withdrawal of the hid I /4th of the hid money would he forfeited . It also shows the thumb impression of Mst. Nafees-un-Nisa about receipt hack of the compensation hook No. 312719/LHR-VI-2094 which was deposited for participating in the auction. Report dated 25.9.1961 reveals that a sum of Rs.70,000/- was adjusted being more than 1/2 of the auction price and PTO was ordered on 27.9.1961 to he issued and then PTO No. 351284 was issued in her name on 30.10.1961.
The auction purchaser on 20.11.1963 entered into an agreement of association with Mst. Alain Bihi for adjustment -of further sum of Rs.11,400/- out of her compensation hook No. 192203/LHR-VI-1777 leaving a balance of Rs. 35,168/-. The record further reveals that auction purchaser further entered into an agreement of association on 19.10.1973 with respondent No. 4 for surrendering full rights in the property in his favour, which was approved on 22.10.1973. Ultimately after II years on 29.8,1984 he deposited Rs. 35,168/- as balance of the price and Rs. 613/- as settlement fee and applied for issuance of T.O. The payment through hook adjustment as referred above was not found in record nor any payment was entered in the register Csc-V, whereupon respondent No. 4 deposited Rs.
87,332/- on 16.11.1989 and thereafter T.O. Was issued in his favour on 22.4.1992. The documents relied by the department while issuing T.O. In favour of respondent No. 4, according to the petitioners, are forged and fabricated. The property was neither treated as evacuee before 1.1.1957 nor any evacuee owner had any interest therein.
10. Whether the property in dispute is evacuee or non-evacuee, this is a question to he determined by the competent forum. Deliberately I am not touching this issue at this stage. Unfortunately the litigation is pending between the parties since long. Respondent No. 1 and the Civil Court are in doubt regarding their jurisdiction to decide the issue involved in the case. At present I am only concerned with the question of jurisdiction whether it is respondent No. 1 or the Civil Court competent to decide the nature of the property. Respondent No. 4 tiled W.P. No. 185-R/92 against the assumption of jurisdiction by respondent No. I on the application of the petitioners under Section 12 (2), CPC read with Section 151, CPC instituted on 27.6.1992 claiming that the property transferred to him was non-evacuee. The objection of respondent No. 4 was that after the repeal of the Displaced Persons and Evacuee Property Laws, respondent No. 1 had no jurisdiction whatsoever to examine the character of the property. In that writ petition pre-admission notice was issued to the petitioners for 5.10.1992. The petitioners (respondents therein) argued before the High Court that the property in question was procured by respondent No. 4 -through practicing fraud on the department and by manufacturing bogus - record. They further asserted that the property was never included in the auction .List. So the petitioner therein was directed to place on record the order Of competent authority whereby the property in dispute was ordered to he disposed of through public auction aid also the list of auction showing that the property in dispute was included therein. The case was adjourned to 14.10.1992, when the petitioner therein stated that he had applied for copies of the .Requisite documents/orders but the same had not been supplied to him. Mr. Hamid A.I Mirza, Advocate entered appearance on behalf of the Settlement Department' and stated that he was in possession of the relevant files and learned counsel for the petitioner could inspect the same. The case was subsequently adjourned. The petitioner therein, however, submitted an application for withdrawal of the writ petition on the ground that he had already tiled civil suit in respect of the property in dispute. Consequently, the writ petition was dismissed as withdrawn on 31.10.1992 (Annexure F/3). Later on the suit tiled by respondent No.. 4 - was dismissed by the learned Civil. Judge for lad of jurisdiction. On 12.7.1993, copy of which is attached as Annexure-G. He filed appeal. Against the aforesaid order which was also dismissed by learned Addl. District- Judge on 19.3.1994. After withdrawal of writ petition No. 185R/92. Respondent No. 1 took up the .Matter and while relying upon 1994 SCM R 150 refused to exercise his jurisdiction and observed that the petitioners may move the Civil Court of competent jurisdiction to get the issue decided and the petition was dismissed as incompetent. Respondent.
No. .1 has -failed to go through the , judgments relied upon by learned counsel for the petitioners and cited at page 3 of the impugned . Order. Section 2 sub7section (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 provides as under:- 'Tection 2 (2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which immediately before such repeal, may he pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may he notified by the Provincial Government in the official Gizette and all cases decided by the Supreme ' - Court for a High Court after such repeal which would have been remanded to any such authority in the absence of such .Repeal shall he remanded to the officers notified as - - aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of sub-section (2) shall he disposed of by him in accordance with the Provisions of the Act or Regulation. Hereby repealed to which the proceedings relate."
11. Tt is an undisputed fact that transfer order was issued in favour of respondent No. 4 on 22.4.1992.
The final payment of the auction price, according to his own showing, was made on 16.11.1989 although part of the price had been deposited on 29.8.1984. The matter is deemed to he pending with the Settlement Department unless the entire auction price is paid. Both the parties are making allegations of fraud against each other. The Civil Court has refused to entertain suit of the respondent No. 4 holding that it has no jurisdiction to go into the question of fraud committed in the Settlement Department and fabrication of bogus and fictitious documents. Sultan Hassan's case retied upon by respondent No. I is not attracted to the facts of the present case. In that case- P.T.D. Was issued prior to the repeal of the Act whereas in the instant case T.O. Was issued after repeal of the Act and the matter was pending at the time Act XIV of 1975 was passed. In the case of C'hief' Settlement Commissioner, Lahore Vs. Raja Muhammad Fazil Khan and others (PLD 1975 S.C.
331) the contention was that as a Tribunal of special or limited jurisdiction possesses only those powers which are conferred on it by the relevant statute, it is not open to such Tribunal or authority to suo motu recall an -order obtained from it by fraud unless statutory provisions exist in this behalf. The only course open to such Tribunal, it was urged, is to tile a civil suit under S. 9. ('PC.
Repelling this contention, the Supreme Court held:- "While there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the prep(Inderance. Of judicial authority is in favour of conceding such a power to every authority, Tribunal or Court on the general principal that fraud vitiates the most solemn proceedings and no party should he allowed to take advantage of his fraud. There can be no rational basis for discriminating, between the powers available in this behalf to a Court of general jtirisdiction and a Court or Tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that ettect must lie on the authority on which fraud is .Practised. Even a Tribunal of limited or special jurisdiction has the power to suo.Motu recall or review an order obtained from it by fraud." Similarly, in case of Shamrooz Khan Vs. Muhabbat Khan and another (1989 SCM R 819), it was observed:- "Custodian of record is the best Judge, in first place, to determine about veracity, correctness and genuineness of its own record. Such Tribunal should have .Been given opportunity to discharge its duty in that respect. Review of adjudication could have taken place in High Court only after adjudication of same by Tribunal/Settlement Authority - - Impugned judgment of High Court was set aside and case was remanded to Settlement Authority to proceed with determination of allegations relating to forgery of its record."
12. It is specifically alleged by the petitioners that settlement record has been fabricated and forged and fraud has been played by respondent No. 4 in procuring transfer order whereas case of respondent No. 4 is that it was an evacuee property and has rightly been transferred to him and claim of the petitioners is based on fraud. All these things can properly be gone into by respondent No. 1 or notified officer. The impugned order is not in consonance with the aforesaid'judgment of the Supreme Court which also finds reference in the latest case Dr. Abdul Waheed and others Vs. Commissioner/Settlement Commissioner, D. /.Khan Division, D.I.Khan and -others (1997 M LD 2955) wherein it has been held that:- "Order of transfer of property having . Been obtained through fraud was voidable order--Court or- Tribunal of limited jurisdiction under inherent'powers could suo motu set aside the same."
13. Relying upon the afore-stated authorities of the Supreme Court, I am of the considered view that respondent No 1/Notified Officer is competent to hold an elaborate enquiry into the allegation of fraud, and examine the entire evidence to find out the nature of the disputed property whether it is evacuee or non-evacuee and whether it was auctioned as alleged by respondent No. 4 and in case it is not declared. As evacuee property before 1.1.1957 what is its effect? All these points shall be. examined and case shall he decided on merit by respondent No. 1 after hearing the parties, as early as feasible.
Resultantly, the impugned order dated 6.6.1994 passed by respondent No. I is set aside. The case is remanded for decision on merit in the light of observations made herein. The application of the petitioners under Section 12 (2) of CPC shall he deemed to he pending in the Court of respondent No. 1 for further proceedings.
2000 C.L.R. 730 iLahore] present: All Nawaz Chowhan, J. HAKEEM B.A. SHAD and others Versus FAKHRA ASHFAQ and another F.A.O. No. 27 of 1998, decided on 1st July, 1999.
Civil Procedure Code, 1908- -0. 39, Rr. 1, 2 and 0. 10--Copy Rights Ordinance, 1962 read with 0. 20, R. 16--Permanent injunction-- Co-authors--cause of action Intellectual property-- of-Counsil for both the parties were in agreement with this Court when it was suggested that in view of their arguments the matter called for remand to the Trial Court for recording the statements of the parties under 0. 10, CPC-- Consequently, the case is remanded to Distt. Judge, was to hear the ease himself or entrust the same to some other A.D.J. For disposal of application under 0. 39, Rr. 1 and 2, CPC after recording statements of the parties under 0. 10, CPC--Impugned order was set aside--Appeal accepted.
(Paras 1,3,5;6)
For the Appellants: Muhammad Ajmal Khan, Advocate.
For the Respondents: Muhammad Jehangir Asif, Advocate.
Date of hearing: 1st July, 1999.,
ALI NAWAZ CHOWHAN, J. -- This First Appeal from the order arises out of an order passed on 27.11.1997 by Mr. Badar uz Zaman Chathha, the learned Additional District Judge, Lahore in an application under-Order 39 Rule 1 and 2 of the Civil' Procedure Code, whereby, he dismissed be aforesaid application. Teh relevant facts of the case are that Hakeem B.A. Shad and others brought a suit under the Copy Rights Ordinance, 1962 read with Order 20 Rule 16 of the Civil Procedure Code for a declaration with consequential relief in the shape of permanent injunction to restrain the respondents Mst. Fakhera Ashfaq and Minhas Publishers from publishing, printing, reproducing, copying, marketing or selling the hooks which were reflected in the corpus of the plaint as 'A' to
2. According to plaintiff No. 1 he and Dr. Javed Iqbal were the co- publishers of different books alongwith Dr. Capt. Akhtar Raaz. That there was also a mutual understanding between these authors because of concerted efforts these books were published which are their intellactual property. That pursuant to the intellectual relationship, the co-authors were in possession of manuscripts of the hooks afore-mentioned which are with Hakeem B.A. Shad who had the absolute right to publish them. That since he had been publishing these books during the life time of Dr. "Captain Akhtar Raaz, it was absolutely manifest that he had the permission from Capt. Dr. Akhtar Raaz for the aforesaid purpose. That because of the closeness of this intellectual relationship and of the acceptance of his position by Dr. Akhtar Raaz, no written assignment for the publication of these books was needed:
3. The cause of action arose to the present appellant when he learnt that respondent Fakhera Ashfaq who happens to be the daughter of Dr. Akhtar Raaz, and the Minhas Publishers were jointly publishing some of these books in violation of the previous arrangement and understanding. He, therefore, tiled the suit for declaration and also sought that respondents he restrained from publishing these hooks and pocketing the profit. An application was moved under Order 39 Rule 1 and 2 of the Civil Procedure Code with the Trial Court who in the case of Copy Rights Ordinance is the District Judge/Additional District and Sessions Judge. The learned Additional Sessions Judge rejected the application on the main ground that the appellant had not been able to produce any written assignment on behalf of Dr. Akhtar Raaz as required under the Copy Rights Ordinance.
Whereas, according to the appellant it was only necessary in connection with a single book, namely, Aelopathic Practice of Medicine in which the sole author was Dr. Akhtar Raaz while in the case of other books, the situation was different because the plaintiffs were the co-authors and these hooks were not the exclusive intellectual property of late Dr. Akhtar Raaz.
That the learned Judge did not apply his independent judicial mind while rejecting the application of the appellant. That the appellant was willing to hand over the rights of that hook to Fakhera Ashfaq daughter of Dr. Akhtar Raaz provided she entered into a proper compromise with him.
4. On the other hand, the learned counsel for the respondent states that all these hooks were authored by Dr. Akhtar Raaz and not by Hakeem, B.A. Shad or Dr. Javed Iqbal, therefore, written assignment was essential for the publication of these hooks.
5. This is a case of intellectual property and had to he dealt with in a slightly different manner. The objection of the respondent was that the plaintiffs were not the co-authors, whereas, the plaintiffs insisted that they were the co-authors. In this view of the matter, a statement under Section `10, CPC was necessitated- permitting the parties to cross-examine each -other for ascertaining not only the intellectual calibre for authoring these hooks but also abut the special relationship which the plaintiffs were having besides checking the manuscript alongwith the exception of the respondent regarding the custody of the manuscript with the plaintiffs as well as the past relationship between the three authors.
6. The learned counsel for both the parties are in agreement with this Court when it was suggested that in view of their arguments, the matter called fir remand to the Trial Court for recording the statements of the parties under Order 10 of the Civil Procedure Code. Consequently, the case is remanded to this learned District Judge, Lahore who may hear the case himself or entrust the same to some other learned Additional District Judge at Lahore for the disposal of the application under Order 39 Rule 1 and 2, CPC after recording the statements of the parties under Order 10, CPC.
The parties shall appear before the learned District Judge, Lahore on 15.7.1999. The Order impugned is set 'aside with no order as to the costs. In the terms noted above, this FAO is accepted.