MUHAMMAD ISMAIL QURESHI Versus GULAB DIN

1. SHAFIUR RAHMAN, J .‑‑Leave to appeal was granted to examine, whether in the background of litigation between the parties and the orders passed, the Lahore High Court was justified in dismissing by its judgment, dated 28‑6‑1974, the Constitutional Petition filed by the appellant on the sole ground that it suffered from laches.

2. A bungalow bearing Survey No.1/1299 and property number B.1‑168‑13 Ward No. 1, Paris Road, Sialkot was placed in the earmarking in 1959. It was at that time under the occupation of Rehabilitation Department itself which had an office and a rest house or an official residence in the main bungalow and Annexe. Mist. Kalsoom‑un‑Nisa succeeded in the earmarking on 13‑12‑1959. She associated with her nephew Ismail Qureshi, the predecessor‑in‑interest of the appellants and surrendered all her rights in his favour. He was issued a PTO for the house on 7‑1‑1960. The transferee thereafter served notices on the various occupants of the quarters under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act (hereinafte referred to as the Act) and additionally under section 80 of Code of Civil Procedure, on the Rehabilitation Department itself which was occupying the premises. In the meantime a portion of this property was separately given No.1210/ A and its disposal by auction was proposed by the Rehabilitation and Settlement Department. The transferee instituted a Civil Suit restraining the Rehabilitation Department from disposing through auction any portion of the property transferred to him.

3. In the meantime Gulab Din respondent No.1 complained that he had filed a form KCH for the transfer of this very property as he was in the possession of the portion of it and the same was not disposed of. He sought permission to file a fresh form as the one earlier filed by him was not traceable. The Chief Settlement Commissioner informed him as hereunder:‑‑

4. "This is to inform you that no fresh KCH Form can now be entertained at this stage, as regards the form submitted by you earlier you are advised to contact the Deputy Settlement Commissioner Sialkot in the matter."

5. Ghulab Din filed an appeal before the Additional Settlement Commissioner, Lahore, in which he impleaded as respondent only the State and the subject‑matter of the appeal was in the very title described as hereunder:‑‑

6. "Appeal against the order of Deputy Settlement Commissioner, Sialkot, by which the House No.1/1299 situated in Sialkot was transferred to some deceased widow and after her death the association of the house was made with some other person and the form KCH submitted by the appellant was not considered by the lower Court. For the cancellation of the above withdrawal and the acceptance of the appeal."

7. He claimed that his Claim Form was pending when the house was disposed of through earmarking. His prayer was that the transfer of the house be cancelled, the PTO, if any, issued should be withdrawn and the house be transferred to him.

8. The Additional Settlement Commissioner disposed of the appeal on 18‑2‑1963 with the following orders:‑‑

9. "He has shown me documents. He is allottee. He is a claimant. He is a refugee from J. & K. He has filed KCH Form No.440. He has cleared the arrears of rent from his Schedule No.VI. Therefore he is held entitled and House No.1/1299, Sialkot is transferred to him. I cancel the transfer from the name of the person who drew this house in earmarking. This person be given some alternative house from the houses available for disposal in Sialkot. Documents to issue in the name of Ghulab Din."

10. It was after such a disposal of the appeal that it came to the notice that Form No.440 was not traceable, hence its substitute was ordered to be filed.

11. The Deputy Settlement Commissioner by a letter dated 29th of March, 1963, addressed to Mr. M. Ismail Qureshi, informed him that the property in dispute stood transferred to Gulab Din and the transfer in favour of his predecessor‑in‑interest Mst. Kalsoom‑un‑Nisa stood cancelled. She could, however, select another house in lieu of the property so cancelled. Mr. Qureshi, immediately filed a Revision Petition against the order of the cancellation of the property which was passed without hearing him or any one else interested in the property. This Revision remained pending when on 25‑5‑1964 urgent notices were issued to the parties for hearing of the Revision on 30‑5‑1964. The notice could not be personally served on Mr. Qureshi. The Revision Petition was dismissed in default by the Settlement Commissioner on 30‑5‑1964.

12. A fact to be noted at this stage is that in April, 1964 on a report from the Deputy Settlement Commissioner, the Chief Settlement & Rehabilitation Commissioner had ordered that the case of transfer of Bungalow No.1/1299, Paris Road, Sialkot, should be taken up suo Motu under section 20(3) of the Act and necessary orders passed under intimation to his office. On 10th of July, 1964, the Settlement Commissioner asked for the file of the case informing him that the suo motu Revision had not been decided yet. There was, however, never a disposal of it.

13. Mr. M.Ismail Qureshi, reportedly died in August, 1964 and thereafter his successor‑ in‑interest had been inspecting the record of the case, asking for the copies of the various documents, and ultimately filed a Constitutional Petition on 21‑1‑1967 challenging the order passed in Revision by the Settlement Commissioner. The learned Judge in the High Court after examining the number of times that the files were inspected on behalf of the appellants, came to the conclusion that the delay in the filing of Constitutional Petition was inordinate, that it was barred by extreme laches and the delay was such which could not be condoned. Hence the Constitutional Petition was dismissed without adverting to the merits of the case.

14. Mr. Khalil‑ur‑Rahman, Advocate, the learned counsel for the appellants contended before us that the delay by itself never amounts to laches, that there has to be something more in the conduct of the party, in the nature of acquiescence or waiver whereby a right comes to vest in the other party. On the facts of the case, it has been pointed out by the learned counsel for the appellants, that in spite of numerous applications for inspection of the record, for supply of copies of relevant record, these were not made available within reasonable‑ time. The appellants had been vigilant throughout and promptly filed the Constitutional Petition. The upshot of the dispute and numerous causes pending in various Courts, resulted in the delay. In this respect he has drawn our attention to the pendency of the suo motu Revision never disposed of for which the record was called for by the Settlement Commissioner, the dispute that had arisen in the Civil Court and before the Settlement Authorities between Gulab Din, the transferee and M. Ismail Advocate, the respondent, and the inquiry that took place with regard to the undertaking of Muhammad Ismail Advocate to transfer the property to the DSC dealing with it and all this was apart from the civil suit instituted by the appellants against the proposed disposal by auction of a portion of the property by carving it from the property transferred to Mst. Kalsoom‑a n‑Nisa.

15. Mr. Zakiuddin Paul, Advocate, the learned counsel representing the respondent has mainly emphasised the delay, taken note of and given effect to by the learned judge in the High Court for claiming a valuable right acquired by the respondent for defeating the claim of the appellants.

16. The learned judge in the High Court while arriving at the finding and imposing the bar of laches on the appellants, has taken note of the various applications filed on behalf of the appellants for inspection of the Settlement record. The learned judge has not however taken note of the numerous applications filed for copies of the documents nor of the dates when the copies asked for were made available.

17. In order to file a Constitutional Petition it was not so much the knowledge of the dismissal of the Revision Petition which was necessary as the certified copies of documents. There are numerous applications on the record filed time and again for obtaining the certified copies of the relevant documents and in view of the number of matters arising out of the proceedings with regard to this property and the forums where they were pending namely. the Settlement Commissioner at Lahore, the Civil Court in Sialkot, the Enforcement Directorate of the Settlement Organization and the various Settlement Authorities it is not surprising that relevant copies could not be made available promptly or in time to give a correct picture of the time taken and necessary for presenting a case in the High Court. Besides the nature of the involvement of the parties already noted would also make the task of the appellants not very easy.

18. A description of what amounts to laches is provided in Lindsay Petroleum Company v . Prosper Armstrong Hurd, Abram Farewell, and John Kemp (V Law Reports (Privy Council) p.221 at 239) in the following words: ‑‑

19. "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

20. The same impression was conveyed in Pakistan Post Office v. Settlement Commissioner and others (1987 S C M R 1119 at 1123) where the following observations were made:‑‑

21. "There is considerable case‑law on the question of laches ranging from dismissal of a writ petition on ground of delay of few months to condonation of laches for over a decade. No hard and fast rules have been laid down in this behalf. There is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on ground of limitation."

22. We are satisfied on the facts of the case that the claim of the` appellants was not barred by laches at all and its dismissal was not therefore justified.

23. The order which aggrieved the appellants was that of the Additional Settlement Commissioner dated 18‑2‑1983 It was a nullity by all standards. In spite of mentioning that the property of which Gulab Din was seeking transfer had already been transferred to a widow who had associated with someone else, they were not impleaded at all in that appeal. It was an improperly constituted appeal. The Additional Settlement Commissioner had not taken care, even of reading it as to against whom it was directed, who was required to be impleaded and served, before it could be disposed of. It was also hopelessly barred by time. Without noticing any of these fatal defects, the learned Additional Settlement Commissioner proceeded to decide it by unsettling the established position with regard to the transferee and her associate. Such an order could not be passed or sustained. Such an appeal could not be entertained.

24. As regards the substance of the claim of Gulab Din, we are satisfied that he was in possession of the outhouses in the property and this happened to be finding of the Settlement Authorities themselves.

25. In his duplicate KCH Form Gulab Din claimed the transfer of only that portion of the property which was in his possession indicating that the other refugees from Jammu & Kashmir and his three brothers were also in occupation of the property claimed by him. In the year 1959 the DSC had taken note of the area in the possession of these refugees and noted that it was in a state of disrepair and dilapidated condition and finally the rent of the whole at Rs.102.15 per month was apportioned Rs.15 per month for the portion of Abdul Aziz etc. the refugees, Rs.72.15 for the portion of the office of the D.R.C. and Rs.15 per month for the portion occupied as residence by the A .S. C . (page 14 and 15 of the printed record). The allotment order in favour of Gulab Din also shows the monthly rent of the property as Rs.15 per month. On the basis of such possession of the outhouses or the quarters Gulab Din could not claim the transfer of the main residential portion or the entire property and our decision on the subject in Abdul Hamid Khan v. Settlement & Rehabilitation Commissioner and others (P L D 1966 S C 719) to the following effect holds the field:‑---

26. "The application of the instructions and the Press note were on their face conditioned by the 'house' being in occupation of more than one person. In construing the definition of a 'house' in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act this Court has held that a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation for the reason that the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage. Mst Fazalunnisa Begum v. The Chief Settlement Commissioner (Civil Petition for Special Leave to Appeal No. K‑34 of 1966 decided on the 24th March, 1966). In this view the Settlement Authorities and the High Court had rightly rejected the appellant's claim for transfer of the outhouses and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow."

27. In view of the foregoing discussion the appeal is allowed with costs and the impugned order of the Settlement authorities, namely, the order dated 18‑2‑1963 of the Additional Settlement Commissioner and that of 30th May, 1965 of Settlement Commissioner and the judgment of the High Court impugned in this appeal are set aside. The transfer of the property in favour of the appellants is restored.

28. M. Y.H./M‑395/8 Appeal allowed.