ABDUL GHANI vs SETTLEMENT COMMISSIONER AND 2 Other

1. HAMOODUR RAHMAN, C. J.-The petitioner filed a writ petition in the erstwhile High Court of West Pakistan, being No. 700/R of 1963, to challenge an order of the Settlement Authorities regarding the transfer of an annexe attached to house No. S-XXIV-5-S-8 situated at Rehmanpura, Lahore.

2. This was dismissed on the 25th of April 1966, by a learned Single Judge, The petitioner then filed a Letters Patent Appeal. This was admitted for hearing on the 1st of July 1966. During the pendency of the appeal Sufaid Khan, one of the respondents in the writ petition, who was a joint transferee of the property in dispute along with the other respondent, Munir Khan, died on the 10th of July 1968.

3. On the 17th of January 1969, the petitioner applied for bringing the heirs of the said Sufaid Khan on the record under Order XXII, rule 4 read with section 151 of the Code of Civil Procedure. The substitution was allowed on the 3rd of February 1969. The legal representatives of the deceased- respondent thereafter, on the 14th of November 1969, applied to have the order of substitution set aside and the writ petition declared to have abated.

4. A Division Bench of the High Court of West Pakistan, Lahore Seat, relying upon a decision of this Court in the case of Hussain Bux v. Settlement Commissioner (PLD 1970 SC 1), took the view that the provisions of the Code of Civil Procedure applied to proceedings under Article 98 and Letters Patent Appeals from those proceed--ings as well and, therefore, the application for substitution had to be made within the time prescribed for making of such applica--tions under the Code of Civil Procedure. The order for substitu--tion was, accordingly, set aside and the Letters Patent Appeal was declared to have abated.

5. The petitioner now seeks special leave to appeal, but the only point contended on his behalf is that the High Court was wrong in declaring the Letters Patent Appeal to have abated in toto. According to the learned counsel in a proceeding under Article 98 of the Constitution the only necessary party is the officer or authority which has made the impugned order and not those who are to be adversely affected by the setting aside of that order. They are merely proper or pro forma parties and, as such, on the death of such a party there cannot be any abatement.

6. We are unable to accept this contention. In our opinion, in the absence of the persons to be adversely affected by the quashing of an order in a proceeding under Article 98 of the Constitution of 1962, no effective order for quashment can be made, for, that would not bind the persons who had been benefited by the impugned order, and it is a well-settled principle that in such circumstances a Court will not make an ineffective order or an order which can be flouted in a proceeding under Article 98 of the Constitution. In our view, the persons to be adversely affected are necessary parties. Indeed, under the rules framed by the High Court itself for writ proceedings it is necessary to join all persons who are to be adversely affected in the event of the impugned order bang set aside. This Court has also in the case of Muhammad Siddiq v. Chief Settlement and Rehabilitation Com--missioner (PLD 1965 SC 123) taken the view that an order made by the Settlement Authorities in the absence of persons in whose favour P. T. O. Had been issued, would be an invalid order on the ground that it had been made in contravention of the principles of natural justice.

7. This also seems to indicate that transferees of evacuee properties are necessary parties to proceedings in which the quashment of the transfer orders in their favour are sought.

8. Since this is the only point urged in support of this petition and we find no substance in it, this petition is dismissed.