JAN MUHAMMAD Versus SETTLEMENT COMMISSIONER

ORDER

ZAFFAR HUSSAIN MIRZA, J. ‑‑These two connected appeals were called up in Court for hearing on 13th August, 1987, but as no one was present on behalf of the appellant, they were dismissed for non‑prosecution. Applications for restoration of these appeals have now been submitted and for reasons mentioned therein they are restored and have been heard on merits. The dispute in these appeals relates to the disposal of a building bearing C.S.No.G 2122, situated near Capital Goods Naka, Hyderabad. This building was in occupation of respondents Nos.2 and 3 who are real brothers. Although the said respondents applied as locals for transfer of portions of the said building in their respective occupation, the property was actually transferred to Jan Muhammad appellant in earmarking. The dispute between the parties finally came before a learned Judge of the Sind High Court in a constitutional petition filed by the present appellant, which was accepted and the order of the Settlement Commissioner was set aside. It was directed that the matter be remanded to the said officer for fresh disposal.

2. In these circumstances the two revision applications filed by respondents 2 and 3 were taken up by the learned Settlement Commissioner on remand. Incidentally there were two other revision applications filed by Zubeda Begum and Muhammad Yousaf which were also taken up together and on 20th August, 1968, all the four revision applications were dismissed in default of appearance by the applicants. Restoration Applications by the respective applicants were also dismissed on 11th November, 1968.

3. The similar orders passed by the Settlement Commissioner on 11th November, 1968, refusing to restore the revision applications were challenged by respondents Nos.2 and 3 by separate constitutional petitions in the then Sind and Baluchistan High Court. A learned Single Judge of this Court by a consolidated order dated 28th May, 1974, accepted the petitions on the ground that the Settlement Commissioner had failed to apply his mind to the facts of the restoration applications before him and accordingly remanded the cases to the Settlement Commissioner for fresh decision in regard to the restoration applications on merits.

4. Leave was granted against the aforesaid consolidated order passed by the learned Single Judge of the High Court on the grounds which may be mentioned in the words of the leave granting order as follow s: ‑

"In his order he inter alia observed that the Settlement Commissioner did not apply his mind to the facts of the petitions before him. According to him the Settlement Commissioner had observed in his impugned order dated 11‑11‑1968 that one of the appellants before him was a student who was busy in his examination and the other was a lady who was away to Lahore.

In that connection the High Court observed that in fact none of the two respondents herein who had applied for restoration in these two cases before the Settlement Commissioner was a woman or a student. They had applied for restoration of their revisions on the ground that Mir Wali Muhammad who was also the attorney of Mir Ali Nawaz, had gone away to Lahore for four months.

In order to satisfy ourselves, we have sent for the record of four Settlement revisions, we are from the record satisfied that observations made by the High Court to the effect that one of the applicants for restoration of her revision was a woman and the other a student have reference to Mst.Zubeda and Muhammad Yousaf appellants in revision petitions Nos.619 and 617 of 1960 respectively and the order passed by the Settlement Commissioner had reference to their application made for the restoration of their revision petition which had also been dismissed in default. It appears that in the absence of the records of the four revision petitions before him, the learned Judge of the High Court was misled into thinking that the Settlement Commissioner had passed that order on the application of respondents Nos.2 and 3. Prima facie, therefore, it is difficult to sustain the order passed by the High Court which is based on a misreading of the record."

5. We have heard the learned counsel for the parties at some length. We find that the sole ground on which leave was granted was the contention of the appellant that the decision of the High Court was based on a misreading of the record. But on a closer examination of the documents placed on the record in this case, we have not discovered any misreading of the record on the part of the learned Single Judge of the High Court. The order dated 11th November, 1968, passed by the Settlement Commissioner, which was impugned before the High Court, is on the record of this appeal (pages 61‑62). The application for restoration of revision petitions submitted by respondents Nos.2 and 3 is also on the record of this appeal (page 64). The affidavit of respondent No.2 in support of the application is also on the record (page 65). The perusal of these documents shows that the restoration of the revision applications was sought by these respondents on the ground that respondent No.2 who was looking after both the revision petitions, as the head of the family was out of station at Lahore and, therefore, could not contact his Advocate at Hyderabad. However, this ground was not at all adverted to by the learned Settlement Commissioner in his order dated 11th November, 1968, which only recited the grounds pertaining to the restoration application filed in the connected two revision applications. Therefore, the learned Judge in the High Court was right in holding that the learned Settlement Commissioner did not apply has mind to the case of the two respondents herein. In these circumstances it cannot be said that there is any misreading of the record on the part of the learned Judge of the High Court. Learned counsel for the appellant was unable to controvert this factual position. It may be no doubt true that the reference to the two applicants for restoration was to a woman and a student in the order of the Settlement Commissioner, who were the applicants in the other two connected revision petitions. But in any case there is not the slightest mention in the order of the Settlement Commissioner of the grounds urged by the respondents in support of their prayer for restoration. In this view of the matter the entire basis of the leave granting order disappears and we have no option but to recall the same in both appeals. We order accordingly and since this was the sole ground on which leave was granted we dismiss the two petitions filed by appellant Jan Muhammad out of which these appeals arose with costs.

M . Y . H . /J‑20/S Petition dismissed