ORDER JAVED IQBAL, J.-- This petition for leave to appeal is directed against order dated 30.10.2000 whereby CMAs Nos. 1,2, 3, and 4 of 1999 in Writ Petition No. 1575-R of 1977 were dismissed by the learned Single judge of Lahore High Court, Lahore, in chambers.
2. Precisely stated the facts of the case are that the petitioners are owners in Abadi Deh of Village Chaprar and owners of agricultural land in the said village. Ghair Mumkin village Abadi Deh consists of 240 kanals and 18 marlas out of which 22 kanals and 7 marlas of land was allotted to respondents Nos. 3 to 10 with the collusion of consolidation authorities which is being used for public purposes. It, however, was cancelled by the Settlement Officer by means of order dated 6.6.1974. The respondents Nos. 3 to 10 succeeded in getting the said land allotted once again in their favour under Settlement Scheme No. VII dated 13.6.1977.
The land was got mutated by the respondents In their name with the connivance of local Patwari and Revenue staff. The illegal entries in Khasra Gardawari were challenged and the learned EAS/Deputy Collector, Sialkot, declared the entires in the names of respondents as illegal. The respondents filed a civil suit for perpetual injunction restraining the petitioners from interfering in the land in question but the same was dismissed. The possession of land is still with the village Abadi Deh and the land is being used for public purposes. The order dated 13.6.1977 whereby land in question was allotted in favour of petitioners under Settlement Scheme No. VII was assailed by means of Writ Petition No. 1575-R of 1977 which after admission and grant of status resorted by filing the above mentioned CMAs which were also rejected vide order impugned.
3. We have heard Ch. Hafiz Ahmad, learned ASC on behalf of petitioners and Dr. Muhammad Akmal Saleemi, learned ASC for respondents.
4. The order impugned has been perused carefully and record examined with the eminent assistant of learned counsel. There is no denying the fact that CMA (886/1994) was fixed during vacation when general adjournment had been granted to Ch. Hafiz Ahmad, learned ASC. There is nothing on record to show that Ch. Ameer Hussain, Advocate, was engaged by the legal heirs of Ch. Lai Din who were brought on record due to demise of Ch. Lai Din. In such view of the matters notice should have been given to legal heirs of Ch. Lai Din for fixation of case which was never given as record is silent in this regard. Dr. Muhammad Akmal Saleemi, learned ASC on behalf of respondents could not controvert the said position. It is worth mentioning that the writ petition preferred on behalf of petitioners was admitted on 7.1.1978 and fixed for regular hearing on 13.12.1985, after lapse of seven years but adjourned without any material progress, It was again fixed after seven years on 1.11.1992 and dismissed for non-prosecution. The petitioners moved for its restoration by CMA No. 886/1994 alongwith an application (CMA 887/1994) for condonation of delay, notice whereof was given to respondents by maintaining status quo. The CMA No. 886/1994 alongwith application for condonation of delay were fixed after five years on 21.7.1999 but dismissed for non-prosecution without issuance of fresh notices to the legal heirs of the petitioners.
5. In view of what has been stated above it can be inferred safely that proper opportunity of hearing was not afforded to petitioners and they were condemned unheard which amounts to miscarriage of justice. The controversy involved valuable rights of the parties which should be decided on merits instead of technicalities special when the petitioners have been pursuing their case for the last more than two decades. The impugned order has been passed mainly on the ground that petitioners could not punish plausible justification regarding absence of Ch. Ameer Hussain Advocate on 21.7.1999 who was never engaged by the legal heirs were brought on record subsequently. Ch. Hafiz Ahmad learned ASC was granted general adjournment and matter should have not been fixed during vacation without issuance of notice to the legal heirs of the petitioner.
6. In such view of the matter this petition is converted into appeal and accepted. The CMAs Nos. 1, 2, 3, and 4 of 1999 shall be treated as pending before the learned High Court and decided in accordance with law and merits after issuance of fresh notices and proper opportunity of hearing to ail concerned at the earliest as the matter is pending for the last two decades.