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Petitioner: MR. MANZUR QADIR VS Respondent: Mst. AMTUL HUSSAIN AND 2 OTHERS
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah, Qadeeruddin Ahmed Title: MR. MANZUR QADIR vs Mst. AMTUL HUSSAIN AND 2 OTHERS Case No.: Letters Patent Appeal No, 1169 of 1966 Date of Judgment:1970-04-28 Reported As: PLD 1971 Lahore 537 Result: Appeal dismissed
JUDGMENT
JUDGMENT NASIM HASAN SHAH, J.--This appeal under clause 10 of the Letters Patent is directed against the judgment dated 7-1-1966 passed by a learned Single Judge of this Court. 2. The background of the case and the questions that fall for consideration in this appeal have been summed up in the order dated 17-10-1966 passed by the Bench which admitted this appeal to regular hearing. The said order may, therefore, be usefully reproduced here in extenso. It is as follows :-- "This L. P. A. on behalf of Mr. Manzur Qadir filed on the 26th of September 1966 is directed against the order of a learned Single Judge, dated the 7th of January 1966, in Writ Petition No, 585 of 1963, by which Mst. Amtul Hussain (respondent No, 1 herein) was declared entitled to the transfer of evacuee property No, S-51/R-52(41, Lawrence Road, Lahore) (hereinafter called the bungalow in dispute) and which also directed the Chief Settlement and Rehabilitation Commissioner (respondent No, 3 herein) to give effect to the above declaration forthwith in accordance with law. 2. The appellant is a local in possession of the Bungalow in dispute as an allottee. He was, however, not made a respondent in the writ petition. The only two respondents to the writ petition were, Pakistan through the Secretary Ministry and Rehabilitation, and the Chief Settlement and Rehabilitation Commissioner, both of whom were proceeded ex pane. 3. Respondent No, 1 (the writ petitioner before the learned Single Judge) is a claimant in possession of property No, S-52/R-91, Nisbet Road, I ahore, which, it appears, was transferred to her under Act XXVIII of 1958. However, this property was subsequently declared to be non-evacuee and the Central Government issued a direction under section 10(2) of the Act for "the transfer of a suitable house from the compensation-pool to Mst. Amtul Husain in lieu of proprety No, S-52/R-91, Nisbet
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Road, Lahore. The Chief Settlement Commissioner was also advised to take action accordingly "in direct consultation with Mst. Amtul Husain". 4. In pursuance of the above directions respondent No, 1,. on being asked, gave her option to anyone of the following: three houses, namely :- (i) bungalow No, 3, Denepur Road, Lahore. (ii) bungalow No, 51/R-52, Lawrence Road, Lahore, and, (iii)property No, S-41/R-2, Club Road, Lahore. The Deputy Settlement Commissioner, Lahore, however,. reported (Annex. 'D' to the writ petition) that only properties Nos, (i) and (ii) were available for transfer. Upon this report, the Additional Settlement and Rehabilitation Commissioner, Lahore made the following order on the 29th of August 1962 :- "Let D. S. C. transfer property No, S-51/R-52, Lawrence-Road, Lahore, after re-checking the case thoroughly and ascertaining from the H 0. if it is still available for transfer to the petitioner Mst. Amtul Husain." In pursuance of this order, the Deputy Settlement Commissioner addressed a memorandum, dated the 10th September,-1962, to the Settlement Commissioner (Policy) (Annex. 'E' to the writ petition), to enquire whether the bungalow in dispute could be transferred to respondent No, 1. It appears that the bungalow in dispute had previously been placed in category 'A' to be disposed of by the Head Office. The Settlement Commissioner (Policy), however, observed that the bungalow in dispute was situated in civil lines for which there had been "persistent demand from certain interested parties", including. Mr. Manzur Qadir, that it should be sold by unrestricted open auction and suggested to the Chief Settlement and Rehabilitation Commissioner that respondent No, 1 be advised to select some "other house in the town as an alternative accommodation". The above suggestion found favour with the latter and, accordingly, the memorandum, dated the 30th of November 1962, was issued to respondent No, 1 advising her to select a house inside the Town of Lahore as the bungalow in dispute had been ordered to be auctioned. The writ petitioner (respondent No, 1 herein) characterized the above memorandum as illegal, ultra vires, malicious void and inoperative and prayed for a mandamus directing the Chief Settle vent and Renabilitation Commissioner to transfer bungalow No, S-51/R.-52, Lawrence Road, Lahore, in accordance with the direction issued by the Central Government. 5. The learned Judge in Chambers, took the view that the Additional Settlement and Rehabilitation Commissioner's order, dated the 29th of August 1962, transferring the bunglow in dispute to respondent No, 1 was subject to only one condition, namely, to ascertain from the Head Office that the bunglow in dispute was still available for transfer to the writ petitioner. The bungalow not having been transferred to any person the above order of transfer had become "final". 6. Having heard learned counsel for the appellant, we consider that the following two questions require further consideration, namely:-- (1) Whether the bungalow in dispute could be considered to be available for transfer to respondent No, 1, notwith-standing the fact that it was previously placed on list 'A' to be disposed of by unrestricted auction under order of the Chief Settlement and Rehabilitation Commissioner ? (ii) Whether direction by the Central Government under section 10(b) of the Act, to the Chief Settlement and Rehabilitation Commissioner to take action "on direct consultation with Mst. Amatul Husain" gave her absolute -choice, in the matter of selecting alternate residential property ? 7. Two further questions arising in this L. P. A. and requiring determination at this stage are :-- (i)Whether the appellant not being a party to the writ petition is competent to file this appeal ? and (ii)Whether there is sufficient ground for condoning delay of more than 8 months in filing the
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appeal ? 8. As to the first question, it must be conceded at once, that ordinarily, no person, unless he is a party to the proceedings in the Court below, is entitled to appeal. But in exceptional cases, a person who is not a party to the proceedings in the lower Court, may prefer an appeal with the leave of the appellate Court, and such should be granted, if he would be prejudicially affected by the judgment appealed against. See, for instance, The Province of Bombay v. Western India Automobile Association AIR 1949 Born. 141. In the instant case the bunglow in dispute was already placed on list 'A' and Mr. Manzur Qadir being an allottee in possession, was a potential bidder at an unrestricted auction of the bungalow. It also appears, the bungalow in dispute was included in list `A' to be disposed of by unrestricted auction after his attempt to get the house transferred to him by negotiation had failed. Therefore, we have no manner of doubt that he was a proper party to the writ petition and his interests were prejudiced, firstly, because he was not made a party to the writ petition and, secondly, because by the impugned order the chance of his bidding for the bungalow is entirely eliminated. This brings the case within the exception to the general rule, that only a party to proceeding can file appeal and we think it to be a fit case in which to grant leave to the appellant to file this appeal. We order accordingly. 9. Regarding the question of limitation, as pointed out in the beginning, the order of the learned Single Judge in Chambers was made on the 7th of January 1966, and this Letters Patent Appeal was not filed till the 26th of September 1966. Along with the memorandum of appeal, however, an application for the condonation of delay under section 5 of the Limitation Act, 1908, is made on the ground that the appellant had no knowledge of the order of the learned Single Judge until the appellant received letter dated September 21, 1966, from the Chief Settlement and Rehabilitation Commissioner in answer to letter addressed to him by the appellant, and that he lost no time in filing the Letters Patent Appeal. What prompted the appellant to write to the Chief Settlement and Rehabilitation. Commissioner was the recent press note making locals in possession of evacuee properties eligible for the transfer of such properties, if such properties are not already transferred to claimants, we consider that a case has been made out for the condonation of delay." 3. This appeal came up for hearing before another Bench but was adjourned to await the decision of the Supreme Court. In re : H. M. Saya & Co. v. Wazir Ali Industries Ltd. . The learned Judges observed :-- "One of the points involved in this case was as to whether a person who was not a party in writ petition could file an appeal or not. Though this point was raised in the form of a preliminary objection and the debate on it continued for three days, today Mr. Ismail Bhatti produced II. M. Saya & Co. v. Wazir All Industries Ltd. PLD 1965 Kar. 603 in which it has been held that in exceptional circumstances a person who was not a party could also file an appeal. On further probe it transpired that this judgment is subject-matter of appeal before the Supreme Court. The number of that appeal is Civil Appeal No, 16 of 1966 (Karachi). Since the matter which we have to examine is directly the subject-matter of the appeal in the Supreme Court we consider it advisable to adjourn this case till the decision of the Supreme. Court in the aforesaid appeal, which we accordingly do." 4. The Supreme Court has since pronounced its judgment in that appeal. It is reported as H. M. Saya & Co. v. Wazir Ali Industries Ltd. . Their Lordships have upheld the view of the High Court. 5. During the pendency of this appeal further material has been brought on record. Mst. Amtul Husain (respondent No, 1 herein) has submitted two affidavits dated 16-12-66 and 29-3-67 which have a bearing on the question of the appellant's locus standi to institute the appeal as well as on the question of limitation. On the other hand the representative of the Settlement Department has also filed copies of the note recorded by Mr. Bashir Ahmad, Settlement Commissioner (Policy) dated 13-11-62 and submitted to the Chief Settlement and Rehabilitation Commissioner and of the order passed by the latter, approving the note, which is also dated 13-11-1962 We may mention that1 2
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a copy of this note was also submitted by list Amtul Hussain, (a respondent herein) as Annexure 'F' to her writ petition but the same was not dated nor was the order of the Chief Settlement and Rehabilitation Commissioner approving it endorsed on it. Another document is a note dated 8-2- 63 submitted to the Minister by Mr. M. H. Sufi, Joint Secretary Ministry of Rehabilitation and Works (as well as the Chief Settlement and Rehabilitation Commissioner) and the order dated 9-2-63 of the Minister, Rana Abdul Hamid made on it whereby he agreed with the decision that the bungalow be auctioned. 6. The two preliminary objections namely :-- (i)whether the appellant not being a party to the writ petition is competent to the this appeal, and (ii)Whether there is sufficient ground for condoning the delay of more than 8 months in filing the appeal were decided in favour of the appellant, by the admitting Bench vide its order dated 17-10- 65, but exception was taken before us to the correctness of that order. We allowed learned counsel for the parties to address us de novo on these questions because the previous order was not passed in the presence of the respondents. 7. In support of his contention that the appellant is competent to file the present appeal, Sheikh Bashir Ahmad, learned counsel for the appellant has relied upon the recent pronouncement of the Supreme Court in H. M. Saya & Co. Karachi v. Wazir All Ind. Ltd., Karachi wherein their Lordships, after noticing the practice of the English Courts that "a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal", went on to lay down the test to be applied for granting leave to appeal in such cases, namely, "that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal". This authority is relevant to the instant case because the orders questioned in the writ petition, namely, the memos dated 13-11-62 (Annex. 'F') and 30-11-1962 (Annex. 'H'), wherein the decision to dispose of the bungalow in dispute through open public auction is incorporated, show that the said decision was made on the "persistent demand from certain interested parties", including Mr. Manzoor Qadir. See the letter of Mr. Bashir Ahmad, Settlement Commissioner (Policy) to the Additional Settlement Commissioner, Annexure `G' written in pursuance of Annex. 'F'. This fact is reiterated in the notings subsequently produced by the representative of the Department. In this note, which was recorded by Mr. M. H. Sufi dated 8-2-63, it is stated that "Mst. Amtul Hussain desires that Bungalow No, 52, Lawrence Road, Lahore, may be given to her in lieu of Bungalow No, 7, which has been declared as non-evacuee property. Bungalow No, 52 has been in physical occupation of Mr. Manzoor Qadir, Chief Justice, West Pakistan, Higb Court. As Mr. Manzoor Qadir is a local he could not apply for the transfer of bungalow. Accordingly it was decided that the bungalow should be put to auction....". His physical possession was discontinued and interrupted but there is little doubt that the order to dispose of the house by auction was made inter alia at his desire and that he was interested in the disposal of this property by auction. The judgment of the learned Single Judge whereby the order to auction the bungalow has been set aside can, therefore, be considered to have affected some interest of the appellant but he cannot be said to be a necessary party to the writ petition because he had acquired no interest in the property. Sh. Aftab Hussain, Advocate, contended on behalf of the respondent Mst. Amtul Hussain, that the position of the appellant is no better than that of an intending auction bidder which does not give him a personal or vested interest in or any right to such property. See PLD 1967 Lah. 184. He further emphasised that even if an auction was to be held it was hypothetical to suppose that the appellant would give the highest bid and that if he did give the highest bid it would be necessarily accepted by the Chief Settlement Commissioner, who has a wide discretion to accept or not the highest bid. We feel that as much as the order of the disposal of this bungalow through public auction was made on the persistent
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requests of the appellant he might properly have been a party in the proceedings of the writ petition because they were directed against the order which was made at his request. 8. It will be proper to note here by way of elucidation that he has no right to prefer this appeal but "may" do so as observed by the Supreme Court "provided he obtains leave from the Court of appeal". The condition of leave is important because there is a difference between the entertainment of a party's prayer ex debito justatiae i,e,, in order to do justice to him and its entertainment in order to see that jurisdiction has been properly exercised or law duly observed. When a prayer is entertained with the latter request the party whose prayer is so entertained comes into the picture by virtue of the exercise of Court's discretion in the interest of fair and correct administration of law. The party remains a stranger but benefits because his interest or assertions fall within the range of the Courts duty to straighten up matters. See (1921) 1 K B 248, (1870) 5 Q B 466. In this view of the matter we respectfully agree with the Bench which admitted this appeal that this is a fit case for granting leave to the appellant to file this appeal. 9. On the question of limitation, it is submitted on behalf of the appellant that the admitting Bench having condoned the delay, this question cannot be re-agitated before the present Bench. In this connection reliance is placed on rule 4 of Ch. 1-A, Vol. V of the High Court Rules and Orders particularly on the following part of it :- "Every appeal to the High Court under clause 10 of the Letters Patent shall be presented within unless the admitting Bench in discretion for good cause shown, grants further time." 10.The above rule is in the nature of a special provision according to which it is the admitting Bench which, in the exercise of its discretion, can admit an appeal to regular hearing beyond the prescribed time. Such an order, according to learned counsel is not liable to be reviewed by the present Bench which is not the admitting Bench and could, if at all, be reviewed, on a proper application, by the same Bench which made that order. It is further submitted that the order condoning the delay is correct on merits also. In this connection attention is drawn to the affidavit of Mr. M. A. Rehman, Advocate, Special Attorney of the appellant, filed along with the application for condonation of delay, in which it is averred that the appellant was deliberately not impleaded as a party, that he came to know of the order of the learned Single Judge dated 7-1-66 on 24-9-66 when he received a copy of the said order in reply to his application addressed to the Chief Settlement Commissioner and that this appeal was filed immediately thereafter on 26-9-1966 without loss of time on the reopening of the High Court after the summer vacation. 11. In reply Sheikh Aftab Hussain, Advocate, has brought to our notice the judgment of a Division Bench of this Court reported as Muhammad v. Rehabilitation Commissioner in which this precise question came up for adjudication. The conclusion of their Lordships has been summed up in Head-Note 'B' of the the report as follows :- 12."In the matter of limitation there could not be ex parte condonation or extension of time and even in cases where ex parte condonation are made, the affected parties can always, on coming to know of such orders, take exception thereto and claim that the matter is barred by time, the extension of time, if any, is illegal and that effect to plea of limitation should be given. Ex parte condonation of delay would be illegal as being opposed to and in violation of the principles of natural Justice as well as against law. Mere admission of appeal, therefore, is no bar to the Court Subsequently hearing the matter to dismiss the same as barred by time." 13.The learned Judges have explained in the above judgment that where an admitting Bench extends time ex parte such an extension would be against the principles of natural justice. If it were binding on the party who had no notice of it, hence it would be bad in law; it cannot be treated as binding on the Bench which hears the appeal after notice to the parties. We respectfully agree with this conclusion and hold that the finding of the admitting Bench that good cause was shown for admitting' the appeal out of time can be reopened by the party against which it was made without3
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notice to it. 10. On this aspect of the matter Sh. Aftab Hussain, Advocate, submits that no good ground has been shown for condoning the delay in filing this appeal. He has drawn our attention to para. (b) of the affidavit of Mst. Amtul Hussain dated 16-12-1966 and paras. 2 and 3 of her subsequent affidavit dated 29-3-1967, both of which stand unrebutted, wherein it is stated that under the orders of the Department the auction of the bungalow was to be held on 7-3-63 and that on this date Mrs. Manzoor Qadir was herself present at pandal which was erected at the Faridkot House to hold the auction, but the property could not be auctioned because Mst. Amtul Hussain produced the stay order which was issued by the High Court in her favour on 5-3-1963. By this order the auction proceedings were stayed. According to the averments made in the affidavit this fact was publicly announced. It is also alleged in the affidavit that "Mrs. Manzoor Qadir was also present at the time of announcement of the cancellation of auction due to the said stay order." Counsel contended, on the basis of these averments, that Mrs. Manzoor Qadir came to know that a writ petition was filed to challenge the order of disposal of the bungalow by auction and that a stay order was issued by the High Court in the said writ petition. Since the position of the appellant, according to counsel, was not better than that of an intending auction bidder, his right to give a bid was shared by him in common with the general public. He was thus not afiected more than the general public by the proceedings of the writ petition and as such was not a necessary party to the writ petition. He could of course on his own application become a party to them but he did not choose this course. His conduct proved that he was interested in the property if it was disposed of by auction but was not interested in contesting the writ petition. It is further submitted that in the affidavit of Mr. M. A. Rehman, Advocate, produced along with the application for condonation of delay, it is said that knowledge of the impugned order was obtained by the appellant on 24-9-1966. This assertion is challenged and it is asserted that this averment is against the record. Attention is drawn to an application made on behalf of the appellant, for the inspection of the record of the writ proceedings on 13-9-66 i,e, 11 days before the date mentioned in Mr. M. A. Rehman's affidavit. The submission is that the relevant amendment, in Settlement Scheme No, VIII permitting transfer of evacuee houses and shops to locals, was made on 12-9-66 and on the very next day the application for inspection of the record was made apparently with the object of filing an appeal to get rid of the order of this Court whereby Mst. Amtul Hussain was found entitled to the transfer of the property, so that the property might become available for transfer under Scheme VIII. These facts, according to counsel, show that the appellant had knowledge of the fact that a writ petition had been filed and that even the date of the order of the High Court was known to him. It is added that the appellant became interested in the property only after the enforcement of Scheme No, VIII and was not interested in the writ proceedings before that date; therefore in spite of his knowledge of the said proceedings he did not prefer this appeal. 11.We do not think that Mr. M. A. Rehman, Advocate, has intentionally sworn an incorrect affidavit because the application for the inspection of the record was not made by him but by Mr. Mahmood A. Qureshi, Advocate. We may also mention that after 9th September 1966, Mr. Manzoor Qadir himself was out of the country. However, we find force in the other submission of Mr. Aftab Hussain that Mr. Manzoor Qadir was aware of the pendency of the writ petition. In view of the ordinary course of human conduct, we can safely hold that since the auction which was to be held on 7-3-63 was cancelled in the presence of Mrs. Manzoor Qadir and that this fact was publicly announced, Mr. Manzoor Qadir should be presumed to be aware of this fact. If Mr. Manzoor Qadir was interested in the writ proceedings or was not negligent, he would have applied for being impleaded as a party to them or at least taken steps to find out the fate of the said writ petition. We, therefore, accept the submission of Mr. Aftab Hussain that no good cause has been shown for condoning the delay in filing this appeal.
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12.It is not necessary to discuss the merits of this case but as we have heard counsel for the parties on merits, we propose to state our views on the contentions which were raised before us, on merits, the appeal was argued by Sh. Bashir Ahmad, Advocate, though not on the questions formulated by the admitting Bench in para. 6 of their order, but on the following bases, namely:-- (a) That the order dated 20-4-62 passed by the Central Government under section 10 (2) of the Act directing the transfer of a suitable house to the respondent is ultra vires of the provisions of the Act if it is construed to be an order of transfer; (b) that the order of the Additional Settlement Commissioner dated 29-8-62 is not an order of transfer of the bungalow in dispute but only in the nature of office noting, and in any case, it is not a final order because it was legally subject to the orders of higher officers; (c)that the order of the learned Single Judge dated 5-3-63 staying the auction proceedings, while admitting the…
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