1. DORAB PATEL, J.-The dispute in this petition relates to a building on Nicol Road, Karachi known as Laxmichand Building. As the owner was an evacuee, the building was auctioned on 10-9-1959 by the Settlement Depart--ment as a Big Mansion under Settlement Scheme No. III and the highest bid which was for Ra. 2,90.000 was made by 42 persons (hereinafter referred to as the purchasers) through an Advocate who was their attorney to whom we will refer as the attorney. The Chief Settlement Commissioner initially declined to accept the bid on a miscalculation of the reserved price for the building, therefore, the attorney agitated the matter before the Settlement Department and as the reserve price for the building was Rs. 2,90,160 he made this offer again to the Settlement Department. He was informed by a letter of 15-10-1959 of the Assistant Settlement Commissioner (Auction), Karachi that the Chief Settlement Commissioner bad accepted his offer for Re. 2,90,160. We were informed that all the purchasers were claimants, therefore, the neat step was for the attorney to submit the compensation boots of the 42 purchasers to the Settlement Department. Instead, he submitted the compensation books of only eight out of the 42 purchasers and somehow despite this patent irregularity the Settlement Department had according to learned counsel issued a P. T. O. To these eight purchasers on 23-3-1959, as the amounts contained in their compensation books were sufficient to cover the transfer price of the building. Next in July, 1961 five out of these eight persona submitted an application that the attorney had "played not true to them and they did not want to associate with him any further." Accordingly, they requested for the return of their compensation books and the request was allowed. Later another person withdrew his compensation book with the result that out of the 42 purchasers. The only purchasers left were Mst.
2. Tilawatunnisa and one Ali Jan. Both these persons have been arrayed as petitioners in this petition for leave but the second petitioner has filed an application before us that he bad not authorised any one to file this petition for leave on his behalf, which he was opposing through his counsel and this petitioner has further stated that Mst. Tilawatunnisa was also not supporting this petition for leave. Additionally, we have to observe that according to the judgments under appeal, it was admitted in the High Court that Mst. Tilawatunnisa "had also gone out of this deal as far back as 23-11-1959". We may pause to emphasize here that this means that all the purchasers whose offer had been accepted by the Chief Settlement Commissioner had withdrawn from the agreement for the purchase of Laxmi Chand Building. How then did the Settlement Department not take action?
3. Whilst the purchasers were, one by one, backing out of their offer, between July and October, 1963 the attorney bad introduced himself and five members of his family as the prospective purchasers of Laxmi Chand Building and somehow the Settlement Department was persuaded not to take objection at this complete transforma--tion of the agreement ride the Assistant Settlement Commissioner's letter of 15-10-1959. Emboldened therefore by his apparent success in altering the sale agreement without any objection by the settlement Department, the attorney submitted compensation boos of only Re. 66,000 and filed an application for the payment of the balance of the transfer price in Instalments. This request was rejected by a letter of the Deputy Settlement Commissioner dated 11-2-1963 and the Deputy Settlement Commissioner informed the attorney in this letter that the withdrawal of the compensation books of the 42 purchasers had been allowed "in a very unusual and irregular manner, you are called upon to produce the compensation books, noted in the margin within fifteen days at Lahore failing which the sale will be cancelled:" The attorney challenged this order before the Chief Settlement Commissioner but an Additional Settlement Commissioner acting for him informed the attorney on 10-4-1964 as follows:- "It is observed that the property cited above as subject was not purchased by you in your private capacity. You had, on the other hand, offered the bid in your capacity of attorney of certain claimants. Since all those claimants have withdrawn, the power of attorney given to you is automatically dissolved and the auction also stands cancelled.
4. In view of this the question of allowing instalment to you does not arise. You are therefore, directed to deposit the P. T. O. Immediately Additional Settlement Commissioner (J), Karachi and also render all accounts of rent collected by you from the occupants of the big mansion."
5. The attorney, therefore, filed a writ petition in the Karachi seat of the West Pakistan High Court against this order and although a copy of this writ petition has not been filed, it would appear that the persons who were arrayed as petitioners in this writ petition were the same persons who have been arrayed as petitioners in this petition for leave.
6. This writ petition was contested by the Settlement Department and the learned Judge, who heard it, pointed out that as Mst. Tilawatunnisa and Ali Khan "had gone out of this deal". The writ petition had really been filed on behalf of the attorney and his family, and he was of the view that as the petitioners had thus come with unclean hands on this ground alone the writ petition merited dismissal. Nest as to the merits of the case, the learned Judge examined the manner in which the attorney had triad to substitute the 42 purchasers by himself and members of his family and observed in para. 4 of his judgment-- "A report was filed by the Department after the admission of the petition and this consists of 13 pages and in which a large number of facts have been stated and it has been shown how Zai had manipulated throughout and had eventually dug himself in and was treating the whole property as his own. It was also shown how he managed with the office to effect the disassociation and introduction of new transferees and it was stated that this had not been done according to law and the Additional Settlement Commissioner (Judicial) had no power to pass these orders. It was pointed out that the Chief Settlement Commissioner had only delegated his powers in respect of Big Mansions to the Additional Settlement Commissioner (Industries). These points have been stressed before me at some length by Mr. Wasim Hamid Rizvi, who appeared for the Department."
7. The learned Single Judge agreed with the view of the Settlement Department that the attempt of the attorney to substitute himself and members of his family as the purchasers under the agreement sanctioned vide the Assistant Settlement Commissioner's letter of 1s-10-1959 was illegal, therefore, he dismissed the writ petition on this ground also by his judgment dated 30th January, 1969.
8. This judgment was challenged in a Letters Patent Appeal which was dismissed in the events that happened by a Division Bench of the Sind Baluchistan High Court on 18-10-1977. Hence this petition for leave.
9. Mr. Akhtar Mahmood submitted that the highest bid at the auction had been made by the attorney, therefore, when the Chief Settlement Commis--sioner's attention was drawn to this, correcting his error, he had directed that Laxmi Chand Building should be transferred to the purchasers for Rs.
10. 2,90,160. This submission is correct and is supported by the Assistant Settlement Commissioner's letter by which the Assistant Settlement Commis--sioner informed the attorney that his offer of Re.
11. 2,90,160 had been accepted by the Chief Settlement Commissioner. But in view of the submissions advanced we would emphasize here that the attorney's offer was accepted by the Chief Settlement Commissioner and the Assistant Settlement Commissioner was acting as an agent for communicating bb order accepting the attorney's offer. Now Mr. Ahtar Mahmood argued both on the footing that this letter constituted the contract of purchase between the parties, which was binding on the Settlement Department, and be also submitted that a binding contract had been made at the auction, because the attorney's bid was the highest. Nothing turns in this case on when precisely the contract was made. The question is of its terms. With whom was the contract made? Clearly not with the attorney in his personal capacity, but with the 42 purchasers. And that the 42 purchasers had entered into the contract through the attorney did not confer on him or on members of his family any right whatever to the transfer of Laxmi Chand Building. Therefore, the P.
12. T. O. B issued in November, 1959 was illegal because it was issued in the names o only some of the 42 purchasers, and for the same reason the settlement Department would not have been justified In issuing the final transfer documents in favour of the attorney and the petitioners 3 to 9 who are members of his family.
13. Mr. Akhtar Mahmood, however, attempted to press the petition on the basis of the provisions of Settlement Scheme No. 111, but be was not able to refer us to any provision which could even permit the Settlement Depart--ment to transfer a Big Mansion to persons other than those whose bid ha been accepted. And the only bid which had been accepted in the instant case was the bid of the 42 purchasers, but as in the words of the High Court, all the 42 purchasers "had backed out of the deal", the Settlement Department was well within its rights in canceling the transfer of Laxmi Chand Building.
14. Additionally, it is very clear that the writ petition filed in the High Court was a subterfuge for enforcing the claim of the attorney, and son members of his family, who had, through the attorney, attempted to step into the shoes of the 42 purchasers. The High Court examined this aspect of the case in detail and held that Mst. Tilawatannisa and Ali Khan had been wrongly impleaded as petitioners in the writ petition and that the writ petition was being prosecuted at the instance of the other petitioners who belonged to the attorney's family, therefore, the High Court held that these petitioners bad come with unclean hands and that the petition merited dismissal on this ground also. We agree with this view. And we can only express our regret that Mst. Tilawatunnisa and Ali Khan were impleaded as the first two petitioners in this petition for leave. This was not proper and the petition should have been filed only in the names of the other petitioner, who have unfortunately not come with clean hands.