PALTA Versus ISLAMUDDIN

ORDER

MUHAMMAD AFZAL CHEEMA, J.,‑ This petition for special leave to appeal is directed against the order of a learned Judge of the Lahore High Court, dated 13‑12‑1974, whereby Writ Petition No. 302‑R of 1973 filed by respondent No. 1 was allowed. The revisional order of the Settlement Commis sioner accepting the petitioner's revision petition was set aside, and the order of the Additional Settlement Commissioner, dated 12‑5‑1972 made in favour of respondent No. 1 was restored.

2. The dispute relates to Shop No. 304, ward No. 1, Shujabad, District Multan, which was transferred to the petitioner in the first instance and owing to default in payment of price was cancelled from his name and purchased by the respondent in public auction on 14‑12‑1968. The respon dent initiated ejectment proceedings against the petitioner and obtained an order in his favour dated 28‑5‑1911. The petitioner moved an application under Order IX, rule 13, C. P. C., for setting aside the ex‑pane order on the ground that he had no knowledge of the ejectment proceedings. This order appears to have been recalled. Yet another order of ejectment was passed against him in fresh proceedings. The petitioner then preferred a rather belated appeal against the earlier order of cancellation of transfer in his favour, dated 4‑12‑1968 which was dismissed by the Additional Settlement Commissioner on 12‑5‑1972 on ground of limitation. The petitioner, however, succeeded in revision before the Settlement Commissioner who accepted his plea that the order of cancellation and resumption was made behind his back without notice to him and as such being void ab initio the question of limitation did not arise. Surprisingly enough the Settlement Commissioner while on the one hand gave a positive finding that the resumption of the shop was made without notice to the petitioner, he on the other remanded the case to the Additional Settlement Commissioner for holding inquiry as to whether the petitioner did receive notice or notices which were allegedly served on him as indicated by thumb impressions purported to be those of the petitioner herein. Respondent No. 1 then invoked the writ jurisdiction of the High Court and the learned Judge agreeing with the Additional Settlement Commissioner took the view that surely on 3‑2‑1971, when the petitioner had sought the recall of the ejectment order, dated 25‑1‑1971, the facts of the cancellation of the transfer from his name, the resumption of the property and its purchase by the respondent were within his knowledge, and yet he slept over the matter till 2‑10‑1971 when 1144 challenged in appeal the order of auction in favour of the respondent dated 14‑12‑1968, there being no explanation whatever of the eight months' delay from 3‑2‑1971 to 2‑10‑1971 justifying its condonation. It was, therefore, held that the petitioner's appeal being hopelessly time barred with no explanation of the delay was not maintainable. Reliance was also placed or this Court's judgment in Rafiquddin Ahmad v. Muhammad Ishaque (1974 S C M R 105).

3. When confronted with this indefensible position, learned counsel was unable to offer any explanation of the delay from 3‑2‑1971 to 2‑10‑1971. It had to be conceded by him that the petitioner had applied to Rent Control ler on 3‑2‑1971 for the recall of the ex parte order of ejectment dated 25.1‑1971 and yet he did not move in the matter for a period of eight months of which each day had to be explained by him. In the circumstances therefore, no justification is made out for the interference of this Court in the impugned order, which is unexceptionable. The petition is, therefore, dismissed.

Petition dismissed