MUBARIK HUSSAIN Versus MUHAMMAD KHAN

ORDER

1. MUHAMMAD AFZAL CHEEMA, J.‑‑‑ Mirza Mubarik Hussain petitioner herein feels aggrieved by the order of a learned Single; Judge of the Lahore High Court, dated 14‑11‑1975, whereby writ petition :filed by respondent No. 1 was allowed and the order of the Settlement Commissioner, dated 25‑6‑1974 was set aside remanding the case to him for fresh hearing.

2. The dispute relates to Shop No. U/80, Raja Bazar. Rawalpindi which was purchased by Muhammad Rafiq predecessor‑in‑interest of the respon dents mentioned at Serial No. 2, in an open auction held on 26‑4‑1960 for the; highest bid of Rs. 38,300, which was approve3 and the sale was con firmed. P. T. O. was issued to Muhammad Rafiq on 28‑5‑1960 followed by the delayed issuance of a P. T. D. on 30‑3‑1972. On 5‑12‑1972 Muhammad Rafiq aforesaid sold the disputed shop, to the petitioner by means of a registered sale deed. Proceedings for the ejectment of one Nisar Ahmad Paracha who was in possession of the shop were initiated by the petitioner on ground of default in payment of went During the pendescy of these proceedings on 11‑2‑1973. an appeal was filed by one Muhammad Khan respondent No. I challenging the validity of the auction proceedings dated 26‑4‑1960 on the ground that in respect of the same property an auction had earlier taken place on 6‑4‑1964 inn which the shop was transferred to him as a highest bidder. The appeal tea which the present petitioner was not a partly was allowed by the Additional Settlement Commissioner on 5-4‑1973. He upheld the so‑called earlier auction allegedly held on 6‑4‑1960 and quashed the P. T. O. and P. T. D. of Muhammad Rafiq. Feeling aggrieved, the petitioner filed a revision petition before the Settlement Commissioner, which was accepted by him; vide order dated 25‑6‑1974. This order was successfully challenged by respondent No. 1 in the High Court and a learned Judge allowed his writ petition vide order dated 14‑11‑1975 principally on the ground that the Settlement Commis sioner had based his revisional order on certain documents which were received by him subsequent to the conclusion of arguments and the closing of the case by the parties. This according to the learned Judge was in contravention of section 20 (5) of the Displaced Persons Compensation and Rehabilitation Act, 1958.

3. In support of the petition, learned counsel for the petitioner contended before us: Firstly, that the learned Judge in the High Court had erred in hold ing that there had been a violation of section 20(5) of the Displaced Persons Compensation and Rehabilitation Act, 1958. Secondly, that even otherwise, Muhammad Khan respondent No. 1 was a fictitious person who did not exist and the Courts below had erred in ignoring the relevant evidence on this crucial point and Lastly, that appeal against the auction dated 26‑4‑1960 had been filed by Muhammad Khan after an inordinate delay of 13 years which was condoned by the Additional Settlement Commissioner without good reasons and proper application of mind.

4. Learned counsel had to concede before us that in point of fact, the; Settlement Commissioner had relied on certain documents which did no form a part of the record at the time of arguments. Inevitably it follows from this that respondent No. 1 did not have an opportunity to meet the additional piece of evidence. It was this consideration which weighed with the learned Judge in the High Court in setting aside the order of the Settle ment Commissioner and remanding the case for a fresh decision. No exception can, therefore, be taken to the view taken or course adopted by the learned Judge who could not himself proceed to examine the disputed question of fact that Muhammad Khan respondent No. 1 was a fictitious person. In the remand order a specific direction has been issued by the learned Judge that the Settlement Commissioner should thoroughly thrash out this aspect of the matter as well. As regards the condonation of 13 years delay by the Additional Settlement Commissioner. It cannot be justifiably held that he or for that matter the Settlement Commissioner and the learned Judge in the High Court did not apply their mind.

5. In view of the above position, we have not been able to discover an illegality justifying the interference of this Court. The petition is, therefore dismissed.

6. Petition dismissed.