KAUSAR Versus MASHKOOR FATIMA
This matter arises from a petition for leave to appeal filed by Mst. Kausar, daughter of the deceased Mst. Aisha Bibi, against a judgment of the Letters Patent Bench of the Lahore High Court dated 26-10-1981, which had denied the transfer of property claimed on the basis of possession and an order of the Central Government dated 3-8-1960. The current petition is barred by 1270 days. An earlier petition for leave to appeal had been filed improperly in the name of the deceased Mst. Aisha Bibi and was consequently dismissed as incompetent by the Supreme Court on 18-3-1985. The core legal question concerns whether a massive delay in filing a properly constituted petition can be condoned based on the history of previous defective litigation undertaken by the legal representatives. The Supreme Court held that the matter stands concluded by its earlier order dated 18-3-1985, leaving no scope to re-open the grounds or condone the inordinate delay. The principle laid down is that a petitioner cannot circumvent a prior final adjudication regarding a defectively constituted petition to re-litigate limitation and merits.
- Can a delay of over one thousand days be condoned on the basis of time spent prosecuting a previously dismissed defective petition filed in the name of a deceased person?
- Whether a petition for leave to appeal can be entertained when the matter stands already concluded by a prior order of the Supreme Court recalling leave?
- Does the filing of a defective petition by a legal representative in the name of a deceased party save limitation for a subsequently instituted properly constituted petition?
ORDER
1. SHAFIUR RAHMAN, J.‑‑ By this petition for leave to appeal Mst. Kausar one of the daughters of Mst. Aisha Bibi, seeks leave to appeal againt the judgment of the Letters Patent Bench of the Lahore High Court delivered on 26‑10‑1981. This petition is shown to be barred by 1270 days. An effort has been made to explain this delay and to get it condoned by reference to the history of the litigation between the parties upto date.
2. Mst. Aisha Bibi sought the transfer of property on the basis of her possession over it admittedly commencing after the crucial date i.e. 22‑11‑1958. She claimed the transfer on the basis of 'an order of the Central Government, dated 3‑8‑1960. She was denied the benefit in the Settlement hierarchy and then by the learned single Judge exercising the constitutional jurisdiction and finally by the impugned judgment of the Letters Patent Bench.
3. Mst. Aisha Bibi had died while her Letters Patent Appeal was pending in the High Court. Her legal representatives had been brought on record in the High Court. Notwithstanding these facts, a petition for leave to appeal (Civil Petition for Special Leave to Appeal No. 89 of 1982) was filed in her name in which leave to appeal was also granted. It was when the contesting respondents took the objection that Mst. Aisha Bibi being dead the appeal was not at all competent in her name that an adjudication followed in this Court on 18‑3‑1985 whereby the leave granting order was recalled and the petition was dismissed. The operative order earlier passed by this Court was as follows:‑‑
4. "We find that the reason given by Ali Muhammad for instituting such a defective petition and for allowing it to remain so for such a long period is not at all plausible or acceptable. As a matter of fact, the reason given by him gets contradicted from the record itself. In such a situation, we cannot but hold that the petition as filled was not properly constituted and there is no appeal properly,' filed before us. In the circumstances, while allowing the petition filed by the legal representatives of some of the respondent, we recall the order granting leave to appeal and dismiss the petition for leave to appeal as incompetent."
5. It was in this background that another petition has been filed impleading all the heirs, of Mst. Aisha Bibi and also the other contestants to their claim. An effort has been made by the learned counsel for the petitioner to re‑open the grounds which accounted for the earlier defective petition for heave to appeal. On the basis of that explanation condonation for the delay in filing a properly constituted petition for leave to appeal has been sought. As the matter already stands concluded by the order of this Court, dated 18‑3‑1985, there is no scope left for such a petition on grounds which could be taken and would be deemed to have been taken and not allowed. Leave to appeal is refused as the petition is barred both by limitation and in view of the earlier decision of this Court. As the caveator has appeared to contest, such a dismissal is with costs of Rs.500 already deposited under the rules by the petitioner.
6. M.I. Petition dismissed