GHULAM NABI Versus ABDUL HAMID

1. NASIM HASAN SHAH, J.‑‑ This appeal, by leave of this Court, is directed against the judgment dated 13‑4‑1.972 passed by a learned Single Judge of the Lahore High Court dismissing the writ petition filed by the appellants herein.

2. The dispute in this case concerns a house situated in Gujranwala. The Appellant No. 1 was admittedly in possession of a part of it. Accordingly, on the commencement of the settlement operations he filed an N. C. H, form for its transfer on the 4th of August, 1959. The same, it appears, was rejected on the 29th November, 1960, but without issuing any notice to him. The property was later on included in the list of the available houses for auction and was transferred on the lath September, 1962, by the Additional Settlement Commissioner in favour of Abdul Hameed, respondent No. 1, who had selected it from the auction list. The Appellant No. 1, however, knew nothing about all these happenings. In fact, he had entered into a deed of association with Shadi Khan, Appellant No. 2, on the assumption that the house was being transferred to him and the latter applied to the Settlement authorities seeking transfer of the property on the basis of the aforesaid association but was informed that the property had not been transferred and the question of agreement was premature. This reply also gave the impression that the question of transfer had not yet been decided.

3. It appears, however, that sometimes towards the end of March, 1963, Appellant No. 1 became aware of the rejection of his form and the transfer made in favour of respondent No. 1. He inspected the file on 3‑4‑1963 and applied for a copy of the impugned order on the next day i.e. 4‑4‑1963, which was delivered to him on 14‑4‑1963. He thereupon filed an appeal before the Additional Settlement Commissioner on 26‑4‑1963. The said appeal, however, was dismissed by the learned Additional Settlement Commissioner, Lahore, by his order dated 18‑5‑1963 on the twin grounds that the appeal was "badly time‑barred" and that: the Appellant No. 1 herein, who was a non‑claimant, had not cleared the arrears of the rent, which according to the learned Additional Settlement Commissioner, was necessary before he could file an application for transfer of the property. The revision petition preferred against the said order before the Settlement Commissioner was also dismissed, on the ground that the Appellant No. 1 herein had been negligent in not pursuing his legal remedies. The appellants thereupon challenged the orders of the Settlement authorities by filing a writ petition (W. P. No. 217‑R of 1965) on 26‑1‑1965 before the Lahore High Court.

4. A learned Single Judge in the High Court heard the petition but without adverting to the merits of the case dismissed it on the ground that the same was filed after the last order was passed. in the Settlement Department on 30‑y‑1964 with a delay of over nine months and that his appeal before the Settlement authorities was also barred by time. In short that the appellants' writ petition was hit by the doctrine of laches.

5. Leave was sought from this Court on the grounds that the Settlement authorities, as well as the High Court had failed to give due weight to the fact that the N. C. H. form filed by the Appellant No. I was rejected without affording to him an opportunity of being heard and without any intimation regarding the order of rejection; wherefore no question of limitation could arise against Appellant No. 1. Leave was, accordingly, granted by this Court to consider whether the Appellant No. 1 was not entitled to the transfer of the house, which issue had not been considered on the merits by any authority.

6. We have heard Mr. Ahmad Saeed Kirmani, learned counsel for the appellants and Mr. Shahzad Jahangir, learned counsel for the Settlement Department ,and are of the view that this appeal must be allowed.

7. We are of the opinion that the view of the learned Judge 'that the appeal filed by Appellant No. 1 before the Additional Settlement Commissioner was time‑barred is not correct. According to the learned Judge, in case the explanation of the appellant that he had examined the file on 3‑4‑1963 where after he had applied for a copy on 4‑4‑1963 (which was supplied to him on 14‑4‑1963) and the appeal filed on 26‑4‑1963, was accepted, the appeal would be within time, but in case the other averment, made by him in paragraph 4 of the application for condo nation of delay, wherein he had stated that he had come to know of rejection in the last week of March, 1963, was taken into consideration then the appeal would be time‑barred. The appeal appears to have been held to be time barred by accepting the last mentioned averment. We, however, agree with Mr. Ahmad Saeed Kirmani that even in the said eventuality the appeal was not time‑barred. The words of the appellant to the effect that he had come to know of the rejection of his form in the last week of March, 1963, could even mean that he had come to know of this fact on 31‑3‑1963. If this was so and the time started running from the 1st of April, 1964, the appeal, which was filed on 26‑4‑1963, would still be in time because 11 days were consumed in getting the copy of the order.

8. As for the other factor taken against the appellants, namely, that the last order in the Settlement Department having been passed on 30‑3‑1964 the writ petition filed on 26‑1‑1965 would be barred by laches, is concerned; we regret to say that we cannot agree with the view of the learned Judge.

9. Undoubtedly, some time was taken in securing the copies of the orders which had to accompany the writ petition and, therefore, the delay of about 9 months in filing of the same was not any extraordinary delay, which could destroy the rights of the appellants to have question of their entitlement to the transfer being considered on the merits. In this case, the form of the! Appellant No. 1 was dismissed without hearing him on 29‑1‑1960 and the house was transferred to the respondent No. 1 on 10‑9‑1962. Both these orders were assailed by the appeal filed on 26‑4‑1963, which has been found by us to have been filed within time. Thus, this was not a case where the principles of acquiescence and waiver on amount of laches could be invoked. The transfer to respondent No. 1 had not been ordered after all the Settlement authorities had decided against the appellants and they had delayed to challenge these orders before the High Court for a long period of time and that during this period the property was transferred to respondent No,

1. We are inclined to agree with the observation of the Lahore High Court in the case of Miraj‑ud‑Din v. Senior Superintendent of Police, Lahore (P L D 1970 Lah. 569), wherein the significance of the doctrine of laches was explained to mean such negligence or omission to assert a right, as taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. The Court rightly observed that if a person seeking a remedy has not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, the technical plea of laches, by itself, would not be sufficient to bar the remedy.

10. We would, therefore, allow this appeal, set aside the order of the Deputy Settlement Commissioner dated 29‑1‑1960 rejecting the N. C. H. form of the Appellant No. I and all the subsequent orders passed in the Settlement Depart ment as well as in the High Court, with the result that the N. C. H. form of the appellants shall be considered to be still pending requiring determina tion afresh by the notified Officer, who will decide the question of entitlement of Appellant No. 1 on the merits, after due notice to him. However, in case the appellants are not found entitled to the transfer of the property for any reason, the order of transfer in favour of respondent No. 1 shall remain intact.

11. This appeal is accepted, in the above terms, leaving the parties to bear their own costs.

12. S.Q. Appeal accepted.