Constitutional Petition No Constitutional Petition No. D-1012/1979 decided on 26-9-1979.
PLJ 1980 Karachi 3 PLJ 1980 Karachi 3 fakhrubdin G. ebrabim A B.O.N. kazi, JJ BRITISH AIRWAYS STAFF UNION, Karachi Versus SIND LABOUR APPELLATE TRIBUNAL ft » Other Constitutional Petition No. 97/1975 decided on 13-11-1979. (i) Industrial Relations Ordinance (XXIII of 1969)S. 32 (1- A) and S. 1 (12) Collective Bargaining Agent raising dispute but ceasing to be C.B.A. during pendency of dispute proceedingsNot entitled to represent in proceedings Individual worker whose disputes sponsored by such C.B.A. cannot have any legal cqinplaint. (Paras. 5,6) (ii) Industrial Relations Ordinance (XXIII of 1969)S. 43ObjectIndus trial dispute to be raised in a manner prescribed in I.R.O. by Collective Bargain ing Agent. (Para. 5) A.K..M. Idns for Petitioner. Fazle Ghani Khan for Respondent No. 3. Date of hearing : 13-11-1979. JUDGMENT Fakhruddin G. Ebrahim. J. The petitioner, as Collective Bargaining Agent of respondent 3 employer, raised certain industrial disputes under section 26 of the Industrial Relations Ordinance, 1969, As the disputes were not resolved either by negotiation or arbitration the petitioner gave a strike notice, but instead of going on strike made an application to the Labour Court under section 32 (1-A) for adjudication of the disputes. At a r-frendum held on 12-4-1973, the petitioner Trade Union ceased to be the Collective Bargaining Agent. Tne petitioner then moved the Labour Court on 30-4-1973 dropping all demands except thr« of which they sought adjudication. The three of remaining demands were as follows ; "6 (i)Pakistani R MEs. are deprived of the standard emoluments and benefits granted to the previous foreign R M ec. in spite of the clear directive of the Government of Pakistan. This discrimination based on national feelings is very much prejudicial to the interest of the Pakistan R M Es. Hence, it is demanded that this discriminatory attitude should be given up and the prescribed standard emoluments and bene6ts of the R M Es should be allowed with retrospective effect 6 (c)-Holders of A. M. E. Licence, appionted as Engineers and performing duties as such should be graded in J. E. 4. 11.The services of Mr. Faqir Muhammad Head Cleaner and Mr Taj Muhammad Cleaner/Driver were terminated most arbitrarily and illegally. The Union has already referred to certain correspondence in this respect, but of no avail. Hence, it is hereby demanded that M/s. Paqir Muhammad and Taj Muhammad be reinstated in their former posts with all back benefits without any further delay." 2. The respondent employer gave their no-objection to the withdrawal of the demands and joined the petitioner in seeking adjudication on merits of thj remaining three demands. This application was granted by the Labour Court on 7-5-'973. On 15-12-1973, the respondent employer moved an application for dismissal of the proceedings commenced by the petitioner Union on the ground that the petitioner Union bad ceased to be Collective Bargaining Agent from 12th April. 1973 and, therefore, it cannot continue the oroceedings. No order appears to have been passed on this application but ultimately the Labour Court by its award dated 22nd August 1974. dismissed the Union's application on tbe ground that the petitioner Union baa icsi its staiur as Cc!''rc;r £ Bargaining Agent en 12th April, 1973 and had.also failed to implead the new CollecHvr Bargaining Agent, namely. B. O. A. C. Employees Union, the other Trade Union, in the employer's establishment. 3. The petitioner Union wsn: in appeal and it wculd appear from the impugned order ihat at the appellate stage an application was .moved by the pciinone'r for irbpleadinp the said B. O. A. C Employees Unior, as party to the proceedings. This application was rsjS-'ed on the ground that it was belated and that such an application bad dos ,fe§tn made during the pendency of the proceedings before the Labour Court. On-flterits it would again appear from the impugued order that the petitioner bad- sought to challenge the validity of the election of the other Union as Collective Bargaining Agent on 12th April, 1973 on the ground that this day was a declared holiday which was rejected on the ground that the petitioner Upion had participated in the refrcndum wherein it had secured only 7 votes as against 67 votes secured by the other side. The appeal was, therefore, dismissed. 4. Mr. A. K. M. Idris, the learned counsel for the petitioner Union in support of this petition contended that once it is established that ao industrial dispute had been raised by a legally declared Collective Birgaming Agent, tbat Collective Bargaining Agent had the right to pursue the industrial dispute irrespective of the fact that during the pendency of the adjudication of proceed ings such trade union may cease to be-a Collective Bargaining Agent, particu larly when the industrial disputes ought to have adjudicated upon with;n 30 days as prescrided by subsection (4) of section 32 of the I. R. O The learned counsel also argued that the remaining three disputes were such in which the petitioner Union was vitally interested in as much as these disputes concern the office bearers and the active members of the petitioner Union and the complaint was that they have been deprived of their valuable rights and in fact left without any effective remedy by reason of the two impugned orders, 5. Tbe decisive question in this case is whether or not a Collective Bargaining Agent who had raised the dispute could legally continue to pursue the same notwithstanding the fact that it ceaEid to be & Collective Bargaining Agent during the'pendency of lac adjudication proceedings. ' Mr. A.K..M. Idris argued that there was no specie provision in the I.R.O debarring a tracts Union which was on the date of raising the dispute a Collective Bargaining Agent ceasing to possess the right to continue to prosecute the proceedings by rcasce of the fact that it had ceased to be a Collective Bargaining Agent in the meauwhile. Tbe learned counsel went on to argue that on the other hand there is a contrary indication available in section 43 of the I.R.O. which provides that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by the Collective Bargaining Agent or an employer. In so far as the I.R.O. is concerned it recognizes a trade union which is a Collective Bargaining Agent. Under subsection (12) of section 2 of the I.R.O. it is tne Collective Bargaining Agent which is entitled to undertake collective bargaining with the employer and represent all or any of the workmen in any proceedings. Under section 26 of the Ordinance it is again a Collective Bargaining Agent which is entitled to raise an industrial dispute, enter into bilateral negotiations with the employer, to arrive a: a settlement if any, to refer to arbitration, to give strive notice, to represent the workers in conciliation proceedings and to file an application to the Labour Court for adjudication of dispute under section 32 (1-A) of the Ordinance. It may further be noticed tBat a settlement arrived at between the employer and a Collective Bargaining Agerit oc__an award of an arbitrator or an award or. decision of the Lobour Court under section 39 of ths Ordinance are, where a Collective Bargaining Agent is one of the parties to the dispute, binding on all workmen who are epmloyed in the establishment to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date. If the contention of Mr. A.K.M. Idris were to prevail, it must follow in all cases, that once an industrial dispute 1 raised by a Collective Bargaining Agent but later ceases to be a Collective Baigaining Agent ?.nc strives at a settlement or obtains an award from an arbitrator or the Labour Co-art, notwithstanding its lack of representative character, such a settlement or award would be binding on all workmen. Such an intention cannot be attributed to the Legislature. As to the contrary intent said to be implied in section 43 of the I.R.O. as was sought to be argued by the learned counsel for the.petitioner, in our humble view it is not possible to draw such an inference 'rom this section. All that this section provides for is, when an industrial dispute will be deemed to be existing and by providing that it will be so only when the dispute is raised by a C.B.A. or an employer in a prescribed manner, the intention expressed is that no industrial dispute can be raised otherwise than in the manner provided for in the I.R.O. 6. We are, therefore, of the view that the petitioner Union on ceasing to be a,Collective Bargaining Agent ceased to be entitled to represent the workers in the respondent employer's establishment in the pending proceedings under section 32 (1-A) of the I.R.O. We are not unconscious that the remaining three disputes of which the petitioner Union had sought adjudication which adjudica tion has been denied to them, may prejudice the individuals, whose grievance were the subject matter of these demands but then if a dispute is taken uo by a Collective Bargaining Agent, its adjudication will depend upon whether or not (he concerned Collective Bargaining Agent was entitled to raise and continue to prosecute the proceedings and if the Collective Bargaining Agent ceased to be so entitled, the individual workmen whose disputes had been spon»ored by the Collective Bargaining Agent, cannot have any legal complaint. 7. Lastly, it was argued that in any event the Labour Appellate Court should have allowed the application of the petitioner Union for joining the B.O.A^C. Employees Union, the Collective Bargaining Agent as party to the appeal. This application was rejected on the ground that it was belated which was obviously so and it would, therefore, be not proper for us to interfere with the order made. In fact no purpose would have been served by grant of this application for the learned cou.nsel for the petitioner stated that the successor Collective Bargaining Agent was not prepared to sponsor 1 the three remaining demands the adjudication of which had been sought by the petitioner Union. The result, therefore, is that this petition is dismissed but in the circum stances there will be no order as to costs.
PL J 1980 Karachi 6 PL J 1980 Karachi 6 ajmal mian, J ASSOCIATED DRILLERS Ltd., Karachi. versus M/S. DIRK VERSTOOP bv« laracU. Suit No. 483/1978 and Civil Misc. 2466/78 decided on 28-4-1979. Civil Procedure Cod (V of 196g) O. XXXVH, R. 5 »nd R. I-Attach ment before judgmentProvisions of R. 5 sot attracted unless plaintiff prove intention of defendant to obstrues ot delay execution of decreeRemoval or disposal of property not sufficient to prove intentionDefendant, » foreign coutractccc exporting machinery on completion of workMere allegations to invoke R. 5 would cause hardship to foreign organizations Held : principles under R. 5 are different from those enunciated to grant interlocutory temporary injunction under Rr. 1,2 of O. XXXIX, Civil P. C. (1908)Prayer under R. 5 for -ittachKcnt before judgmentRelief under R. I, that is- arrest before iudgment, cannot be givenApplication under R. 5, dismissed. (Paras, 6, 8, 9, 11) ORDER C. M. A. 2466178. This is an application under Order 38, Rule 5 C. P. C., whereby the plaintiff has prayed thit the movable articles mentioned in ib? schedule be attached before judgment. In support of the above application the plaintiff in paras 3 and 4 of the affidavit has asserted that the defendant it a foreign business organization and is reported to be winding up its business in Pakistan and that the defendant is selling its property and also transferring iti property to Europe and that the one Pontoon on which the machinery of the plaintiff was fixed has. been sold by the defendant to M/s. De Meyer Zelzate. 2. The facts leading to the filing of the above application are that the plaintiff has filed the above suit for the recovery of Rs. 63J75/- against the defendant being the amount of alleged damages suffered by the plaintiff because of the delay in arranging the shifting of the machinery and equipments to the share belonging to the plaintiff brought by the plaintiff in connection with the execution of boring work entrusted by the defendant to the plaintiff in respect of the Port Qasim. as a sub-contractor. In the above suit the plaintiff has claimed damages at the. rate of Rs. 1315/- per day for the period commenc ing from 16-4-1978 to 3 5-1978. 3. Though the above application was filed on 1-6-1978 alongwjth the suit but no attachment order was passed thereon till 9-9-1978 when the above application came up for hearing my learned brother S. A. Nusrat J,, passed a prohibitory order, on the plaintiff's above application. It may be mentioned that the learned counsel for the defendant was not present on 9-9-78 when the above application was taken. However, on 27-9-1978, the defendant filed an application under Order 38 Rules 6 and 9 read with section 151 C. P. C (being Misc. Application No. 3730/78), praying therein that the ex-pane pro hibitory order be recalled and/or be vacated. Tne above application was put up for orders before my learned brother Zaffar Hussain Mirza. J. on 1-10-1978 when his Lordship was pleased to order the recalling of the prohibi tory order subject to furnishing of a Bank Guarantee of Rs. 79.000/-. In campliance with the above order the defendanr had furnished the bank guarantee and the articles mentioned in the schedule to the application were exported to the port of origin in Belgium. -4. The defendant's aforesaid application for setting aside ex parte prohi bitory order dated 9-9-78 (C. M. A. No. 3740/78) came up for hearing before me on 24-3-79, which was allowed with the consent of the learned counsel for the plaintiff by an order dated 24-3-79 as the learned counsel for the defendant had shown sufficient cause for his absence on 9-9-78. As a result thereof C, M. A. 2446/78 application for attachment before judgment was again fixed for hearing. Since the machinery and equipments were exported against a Bank Guarantee. I while setting aside the aforesaid ex parte prohibitory order dated 9-9-78 ordered that the aforesaid Bank Guarantee shall remain intact till the disposal of the aforesaid C. M. A, 2446/78. In other words in case the plaintiff succeeds in making out a case for an attachment before judgment, the aforesaid bank guarantee is to be accepted in lieu of an attach ment order. It may be observed that the defendant bad also filed a counter-affidavit dated 15-6-1978 to the plaintiffs above application, wherein it was asserted that in pursuance to the verbal negotiations the plaintiff had submitted a quotation for 'piles clean out at Port Qasim for 40 piles. It was also asserted that the plaintiff completed the job on 26-3-1978 on 30 piles and abandoned the work on 10 piles. It was also asserted that the defendant had paid a sum of Ki. 26.S23/- on 1-4-1978 to the plaintiff in foil and final settlement of the work. It was further asserted that the plaintiffs themselves did not remove the equipments and ti.achinery though were requested several times after 1-4-1978. It was also averred that as a matter of fact that the plaintiff had caused lost to the defendant as tneir filing rig keei remained idle for IS days resulting in the loss Rs. 15.000/- pet day. It was also asserted in the aforesaid counter affidavit that the plaintiff had net made put any case under the provisions of Order 38 Rule 5 C. P C as the defendant had not taken or likely to take any action in order to defeat the plaintiff's claim. 5. It i>sy be observed that the plaintiff has not given any detail of the actions/steps allegedly taken by the defendant to defeat the decree if any passed in favour of the plaintiff in supporting affidavit of the application. The only reasrfn which has been mentioned in the supporting affidavit already Deferred to hereinabove by me was that the defendant being foreigner is re ported to be winding up its business in Pakistan and is selling its property and also transferring its property to Europe. It has been urged by the learned counsel for the plaintiff that if the application prayed for wili not be granted, the plaintiff will not be able to execute the decree if any passed in their favour in the above suit. It is an admitted position that the defendant is a foreign company and has no assets in Pakistan except the machinery and equipment! iwhich were sought to be attached. The question which requires consideration Jis as to whether merely the fact that the plaintiff will not be able to execute jtheir decree if any passed against the defendant is a sufficient ground to {attract the provisions of Order 38 Rule 5 C. P. C. It may be advantageous to re-produce hereinbelow the provisions of Order 38 Rule 5 C. P. C., which reads as follows : '5 (!) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with instant to obstruct or delay the exe cution of any decree, that may be passed against him. (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of bis property from the local limits of the jurisdiction of the Court, the Cv>urt may direct the defendant, within a time to be fixed by it, either us furnish" security in such sum as may be specified in the order, to pro iuce and place at the disposal of the Court, when required, the sai property or the value of the same, or such portion thereof as ma 'be sufficient to satisfy the decree, or to appear and show cause '">v he should not furnish security. . (2) The plaintiff shall, unless the Court otberwiie directs, specify the pro perty required to be attached and the estimated value therec (3) The Court may also in the order direct the condition 1 attachment of the whole or nny portion of the property so specified." 6. It m»y be noticed that in order to attract the above j ovisions, it is incumbent on a plaintiff to satisfy the Court an affidavit or 01 erwise that the defendant with intent to obstruct or to delay the execution of a decree that may be parsed against him either is about to dispose of the whole or any part of hii property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In other words unless a plaintiff proves an intention on the part of the defendant to obstruct or to delay the execution of any decree that may be passed against him, the pro visions of Rule 5 of Order 38 are not attracted to. Removal or disposal of property without aforesaid intention is not sufficient to invoke the aforesaid) provisions. In the instant case the plaintiff has not been able to satisfy me that the) action of the defendant to export the machinery and equipments was actuated/! prompted with intent to obstruct or to delay the execution of any decree tbatj may be passed against the defendant. It is an admitted position that the de fendant is a foreign company having its office in Belgium. The defendants were exporting the machinery and equipments in the ordinary course of business on completion of their contract work in the Port Qasim. 7. It was urged by the learned counsel for the plaintiff that the provisions of Order 38 Rule^S C. P. C. are not exhaustive and that this Court is competent to order attachment before judgment even in a case, which does not strictly fall within the ambit of the aforesaid provision. In support of his above contention the learned counsel has referred to the case of Mohiuddin Molla v. The Province of East Pakistan and others reported in PLD 1962 Supreme Court 119, wherein it was beTd tbar the Court has inherent jurisdiction to preserve the property of the judgment debtor in order that it may be available for realization of the decretal amount and that tbis principle has bsea recognized in Order 38 Rule 5 of the Civil Procedure Code which empowers ths Court to attach the property of the judgment debtor in order that any decree that is passed in the suit may be satisfied bv the sale of the attatcbed property. It was further held if the Court has power to attach the property of a defen dant ai a time when there is only a oossibility of a decree in favour of the plaintiff, it will be anomalous lo bold that after be has actually secured a decree the Court cannot aci 10 oroteci hii interest just because the execution of the decree has been postponed. It was also held that the jurisdiction of the Court to attach the property of the defendant truly series from the faci that the Court has power to grant relief. It may be noticed that in the Supreme Court case the plaintiff had already obtained a decree against the defendan and, therefore, the facts of the above case are distinguishable from the present case. 8. Even if it is to be concedad that Rule 5 of Order 38 C. P. C. is not exhaustive and the Court is competent to order attachment even in a case which does not strictly fall within the purview of ibe above provision of law, but the question which remains to be considered is as to whether the basic requirement the above provision, namely, that the Court should be satisfied that the defendant with intent to obstruct or to delay the execution of any decree which may be ^assed, has taken or is about to take any of the steps specified in clauses (a) & (b) of the aforesaid rule of the aforesaid crder. id my view simpliciter the fact that the plaintiff will not be aoie to execute 1 their decree if any passed in their favour is not sufficient to invoke the pro visions of Order ?° Rule 5 C. p! C. If the above ground is to be accepted as a sufficient ground to order attachment before judgment, it will cause hard ship to the foreign companies/organisations operating in Pakistan, as it will be open to any person to file a suit against a foreign contractor for an alleged claim on the eve orths winding of affair; ia Pakistan on completion of the work, which was entrusted to him, in Pakistan, also to invoke the provision of the Order 38 Rule 5 C P. C. on the ground that there would be no asset ofj the aforesaid foreign contractor to satisfy the decree if any passed to favour after several years. 9. Mr. Nairn Irarned couns:! for the defendant, has referred to tfcs case of New Bengc! Sn:opi^i Ci-mi/anv v. Eric Lacasier Shipping Company rspc-rnd in P L D 1 U 52 D.ic.a _2, tbr case of Muhammad Youiuf v. Agha ; Muhammad reported in P L D 1976 Karachi, 926, the case of M/j. H. Nixonvd-din & Sons v. M, V. "Oroome and 4 others" reported in P L D 1977 Karachi 722, and the case of Premraj Afundra v. Md. Maneek Ghaii and dthtrs reported in A.I.R. 1975 Calcutta 156. Reverting to the above 1952 Dacca case, it may be observed that Shahabud-dio, C J. (as then his Lordship was) was pleased to bold that the ground that the owner of the vessel has no property in Pakistan and that if the vessel is removed from Chittagong, the appellant would have no means of realising the fruit of the decree which he hopes to obtain in the suit is not a sufficient ground for the purpose of granting and interlocutory injunction prohibiting tho vessel from leaving the limits of the Fort Chittagong. I respectfully agree with the above exposition of law by His Lordship. In, the two Karachi cases it was held that the jurisdiction under Rule 5 of Order 38 is to. be exercised sparingly and strictly in accordance with the procedure prescribed by the Civil Procedure Code and that the Court should be satisfied that the defendant has disposed of whole or part of his property with intent to obstruct or to delay the execution of any any decree which mty be passed against him. In the Calcutta case it was held that the Court while considering an application under Order 28 Rule 5 CPC may examine the merits of the case. In my view the plaintiff having failed to prove the intent on the part of the defendant to obstruct or to delay the execution of the decree if any passed in the above suit are not entitled to invoke the provision of Order 38 Rule 5 C.P.C. 10. Mr. Naqvi has also referred to the case of Mian Mohammad Latif-v. The Province of West Pakistan reported in P L D 1970 Supreme Court 180, in which it was held that in a case where a temporary injunction is claimed the plaintiff has only to make out that he has a good pnma facie case meaning thereby that the serious question is to be tried in the suit. In the above case the question for consideration before their Lordships of the Supreme Court was as to whether the suit was barred under section 1] of the Sind Revenue Jurisdiction Act, and also the question as to whether the impugned order was tin nullity in law. In my view the above ruling cannot be pressed into service las the principles of" granting an interlocutory temporary injunction are (different from the principles enunciated under the provisions of Order 38 (Rule. 5 C.P.C. In any case, it may be observed that the plaintiff's claim relate to an unliquidated amount and not in respect of a liquidated sum. The plaintiff has alleged that the defendant has caused the delay in the removal of the equipments and whereas the defendant has denied the aforesaid allegation. In my view at this stage it cannot be said that the plaintiff are likely to get a decree in respect of their alleged claim.' If the plaintiff would have bten claim ing a liquidated sum like the refund of tbc security deposit, their case would have been on better footing. 11. Mr. Naqvi, the learned counsel for the plaintiff has also contended bat in any case the plaintiff is entitled to the relief prayed for under Order 38 Rule \ U>) C.P.C. aj the defendant is about to leave Pakistan. Fn my view the above contention cannot be considered as the plaintiff has not filed an applica tion foi arrest before the judgment wbich is provided for in Rule 1 of Ordet 3$ C.P.C. but their prayer was for attachment under Rule 5. Even otherwise in order to attract the provision of the above Rule 1 the plaintiff is requited to prove that the defendant with intent to delay the plaintiff or to avoid any process of the Court or to obstruct or to delay the execution of any decree ibat may be passed against him inter alia is about to leave Pakistan. In the instant case the plaintiff has not been able to satisfy me that there was any such intention on '.he part of the defendant. 12. la view of the above discussion ~I do not gad any merit in this application and", therefore, the same is dismissed with ao order as to costs. It is an admitted position that the defendant has already exported the machinery and equipments against the. bank gaurantee. If I will discharge the bank gurantee immediately, the plaintiff will not be able, to avail of the remedy by way of a petition for leave to the Supreme Court. I, therefore, order that the bank gaurantee already furnished by the defendant shall not be discharged for a period of 60 dayt from the date of this order.
P L J 1980 Karachi 11 P L J 1980 Karachi 11 B. G. N. kazi, J NATIONAL BOOK FOUNDATION, Karachi Versus N.B.F. EMPLOYEES UNION, Karachi ft 2 Other Constitutional Petition No. 28/1979 decided on 17-11-1979. Industrial Relations Ordinance (XXIII of 1969)S. 2 (xiv) & S. 32 (1-A) - ',Industry"National Book Foundation created under Act of Parliame I (XIX of 1972)Foundation aiming to publish books for educational purpoj> j and not to earn profitEmployee (peon) of Foundation, held, not a workm;. . to be benefitted by the Ordinance. (Paras. 6, 8, 9, 11; Hassan A. Shaikh for Petitioner. M.L. Shahani for Respondents Nos. 1 and 2. JUDGMENT The petitioner is an organization initially established under the National Book Foundation Ordinance. 1972 (Ordinance XXVI of 1972) which was later replaced by the National Book Foundation Act, 1972 (Act XIX of 1972), respondent No. 1, is union of employees of the petitioner and -respodent No. 2 was a peon and employee of the petitioner. Respondent No. 1, filed an application under section 32(1-A) of the Industrial Relations Ordinance, 1969 (XXIII of 1969) for determination of a dispute regarding the terms and conditions of employment; while respondent No. 2, who had been dismissed on an alleged charge of misconduct filed aa application under section 25-A- of the aforesaid' Ordinance, before the Second Sind Labour Court, respondent No. 3. The petitioner raised a preliminary legal objection contending that respondent No. 3, had no jurisdiction as the National Book Foundation was an educational institution and riot 'industry' and; therefore, the provisions of I.R.O.- 1969 and the West Pakistan (Standing Orders) Ordinance, 1968, were not attracted. Respondent No. 3, overruled the preliminary legal objection ijy his order dated 6-3-1979, which has been challenged in the instant petition. 2. The objection as stated before respondent No. 3 which is also the only ground taken in the instant petition is that considering the functions of the petitioner Foundation, it is an educatioaal institution and not an 'industry'within the meaning of section 2(xiv) of the I.R.O. 1969, or any other labour law and, therefore, respondent No. 1, hai been illegally registered as a union. 3. To appreciate the contention put forward it is fit and proper that the legal provisions with regard to establishment oi the National Book Founda tion should be considered. 4. The preamble of the National Book Foundation Act, 1972, it to the effect that the law was being enacted as it it expedient to provide for the estab lishment of the foundation for making books available at moderate price and for matters ancillary thereto. Section 4 which is about constitution of the Foundation read as under : ' "4. Constitution of the Foundation. (1) The management, overall control and supervision of the affairs of the Foundation shall vest in a Board of Governors consisting of the following members, namely ; (1) The Minister for Education and Provincial Co-ordination, who shall also be the Chairman of the Board ; (2) the Secretary, Ministry of Education and Provincial Coordination : (3) one representative of each of the Provinces ; (4) one representative of the areas not forming part of any Province to be appointed by the Federal Government ; (5) a representative of the University Grants Commission ; (6) the Chairman, Committee of Chairman of Education Board ; (7) (/) five persons to be appointed by the Federal Government froci amongst eminent educationists, scholars, scientists, men of letters and persons connected with education or the production of books 07) five representatives of whom one shall be a female to be elected jby the National Assembly of Pakistan'from amongst themselves. (8) the Managing Director of the Foundation 3 be appointed by Federal Government. (2^ The members of the Board of Governors other than the ex officio members, shall hold office for three years and shall be eligible for reappointment. (3) The Office of the Foundation shall be at Islamabad." 5. The functions of the Foundation are mentioned in section 6 of the Act which is reproduced as under: "6. Functions of the Foundation. The following shall be the function of the Foundation, namely : (a) to receive any mooev or financial grants from the Federal Government, the Provincial Government, Local Bodies and any statutory or nonitatutory corporation ; (b) to collect, accept or otherwise receive from any person, body, associa tion, institution or organization any subscription or donation made to the Foundation : (c) to undertake writing of books and to encourage writers to reduce good books ; (d) to undertake the translation of foreign and locally produced books into the national and regional languages of the country and vies versa ; (e'i to arrange the original publication and reproduction of local books as r ?!i as those published abroad ; (/) to import foreign books and to undertake the distribution of book among the educationa-l institutions and the general public ; (g) to encourage the writers and the book trade in general in the pro duction of books and making them available to the students and tbe general public at moderate prices ; (h) to provide technical know bow and assistance and to iakt other steps aimed at fostering interest in books and in reading ; and (i) to initiate such other activities and programmes as may assist the task of book development, book promotion, advancement of literacy and dissemination of knowledge by means of the printed word." 6 It may be stated here that it is the case of the petitioner that it is not; a profit making organization. Although Respondents )No. 1 and 2, have con troverted the position, the only reason given is that the foundation offers books published by it for sale in the market. The assertion is not sufficient to consider tbe foundation as a profit making organisation and it has been asserted without a challenge from the respondents that since the establishment of the organization there have onl}' been losses and no profits. From the legal provisions with regard to the constitution of the foundation and us func tions, it is quite clear that the same is strictly under the control of the Federal Government although it is a body corporate having perpetual succession and d common seal with the power 10 acquire, hold and dispose of property both movable and immovable. 7. It has been asserted that the foundation is a non profit making organization set up by the Federal Government for dissemination of knowledge and advancement of education in Pakistan, which had been suffering from lack of bocks aod printed material. The object of ssttine up the foundation was for an educational purpose and in the circumstances of the case it could well be considered as an educational institution. The very nomenclature and the use of tbe word foundation also indicates that i is an organization not for the purpose of making profits but for the purpose of advancement of educa tional benefits to students and the general public It is, therefore, necessary to consider whether the-foundation is an 'industry' within tbe meaning of section 2(xiv) of the I.R.O. 1969. Tbe definition of 'Industry given in the aforesaid section reads as under : -"''Industry' means any business, trade, manufacture, calling, service, employment or occupation." Before tbe aforesaid simplified definition of 'Industry' was provided by Ordinance No. XIX of 1970. 'Industry' was defined in Ordinance XXIII of 1969 as under : "2(jov)'industry' means any business, trade, undertaking, manufacture or calling of employers and includes aay calling, service, employment, occupation or avocation of workmen and includes (a) mines, quarries and other works for the extracron of minerals from the earth; (ft) industries in which articles are manufacture altered, cleaned, repaired, ornamented, finished adapted for sale, broken up or demolished or in which materials are transformed, including shipbuilding and tbe generation, transformation, and transmission or electricity or motive power of any kind ; (r) constructions, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway road, tunnel, bridge, sewer, drain, well, telegraphic or telephonic installations, electrical undertakings, gaswork, waterwork or other work of construction as well as the preparation for the laying the foundations of any such work or structure ; (d) transport of passengers or goods by-road, rail, sea or inland waterway including the handling of goods at docks, quays, wharves or ware houses but excluding export by land." The definition of industry originally contained in the Industrial Disputes Act, 1947 was reproduced in identical words (Section 2(h) in the Industrial Disputes Ordinance, 1959) and in Industrial Dispute Ordinance of 1968 as under : "Industry means any business, trade, undertaking, manufacture, or calling, of employers and include any calling, service, employment, handicraft or industrial occupation and avocation of worker." The implications of the amendment in the definition brought about by Ordinance No. XIV of 1970 have been fully dealt with in decision of the . Lahore High Court in the case of KG. Old, Principal, Christian Technical Training Centre v. Presiding Officer, Punjab Labour Court Northern Zone and 6 others reported in PLD 1976 Lahore 1097, in which besides the Pakistani decisions, Indian decisions too have been considered at length. The conclusion arrived at reads as under: "52. The upshot of the entire discussion is that tbe use of the expressions 'Business, Trade, Manufacture, Calling, Service, Employment or Occupation" in the definition of Industrial Relations Ordinance is not in its ordinary dictionary meaning,bH in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organized and is systematic depending sub stantially, if not entirely, on toe cooperation between labour and capita), and having as .its object production, distribution and consumption of. wealth, or the production or provision of Material services. The enterprise as a whole has to be looked at to find out it which is incidental,, ancillary or an adjunct cannot determine the character of the whole." 8. It may be observed that in the- instant case the employees of the foundation who were registered as a union are not concerned with the writing of books, translation of foreign and locally produced books into the national and regional languages arranging, of original publication of bx>ks as well as to moderate or distribute the same among nation and general public etc. but are the persons who do the incidental work in tht press and itherwise. la the case before tbe Lahore High Court too effort was made by employees of University Printing Press, to show that books were printed at the p-;ss and they were sold to the public on prices which are their normal market prices and it was contended that the University had a commercial complexion irrespec tive of the educational purpose and it was held that the impugne 1 orders so far as they treated the petitioner University to be an industry for the purpose of Industrial Relations Oidinaace, were without lawful authouty and no legal effect. With regard to the amendment made by Ordinance £1V of 1970 the following observations were made : "The amendment, which has come up for consideration in these cases, was made by Ordinance XIX of 1970 introduced on 14th October, 1970. Its following characteristics have to be noted for ascertaining the intention of the Legislature.: (i) It retains most of the key words used in the definition viz.. Business, . Trade, Manufacture, calling service, employment or occupation. (il) It omits from the definition a few key works, most important being undertaking. (HI) The extended inclusive definition is given up. (iv) Simultaneous amendment was made in the definition of 'establish ment." It was further observed that "the omission of the word undertaking was, apparently, with the set purpose of giving full effect to the control of the opening words business, trade and manufacture. It had taken the Indian Supreme Court a period of over ten vears, and a number of cases to submit finally the word undertaking to the effective control of the opening expression business, trade and manufacture." Shafi-ur-Rehman, J. (as he then was) who gave the decision remarked as under : "(45) I consider that most positive manifestation of legislative intent has taken place in the simultaneous amendment of the definition of 'estab lishment' in Industrial Relations Ordinance. Immediately before the amendment it was defined to mean : "'Establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service." (46) While amending the definition of industry in terms already reproduced, there was a simultaneous amendment in the definition of establishment which after such amendment stood as follows : "Establishment means any office, firm, industrial unit, undertaking, shop or premises in which work-men are employed for the purpose, of carrying on any industry.'' Const. Pet. No. 151 of 1976 ffol% Family Hospital Society v. Third Sind Labour Court, Karachi and another reported in PLD 1979 Karachi 529 in which it was held that the Holy Family Hospital was a charitable organization and the more fact of recovering charges from patient did nor change the basic chancier of the Hospital as a charitable organization. It was further observed in that case that since the profits were not for distribution between the Directors and Principalt of (he Society, the Holy Family Hospital, could not be declared at commercial ana industrial establishment. The learned counsel also referred to the decision of the Labour Appellate Tribunal in Aisha Bawani Academy v. Madar Bakhsh (1975 P.L.C, 354) in which educational institution was held to be not an industry. This decision was also referred to in PLD 1976 Lahore 1097 but the change in the definition of'Industry'bad not been noted in it. It is true that in the aforesaid decision reliance was placed on the University of Dehli v. Ram Hath and others (A I.E.. 1963 S.C. 1873) ; Assam Rashtra Basha Prachar Samitiv. Their Workmen and others (1966 PLC 28) and Mohammad Afzal v. The Principal, Pakistan Administrative Staff College, Lahore (1971 P.L.C 343) of which the first rwo decisions are of Indian Courts but .for the reasons given here inafter the. fact that the decision have been overruled by the Indian Supreme Court would not make any difference. Reference was also made to the decision of Appellate Tribunal reported as Jamia Karachi v. Registrar Trade Union Sind (PLJ 1974 Karachi 308). In this decision reliance was placed on the Indian Supreme Court decision in the case Banerjt. v. Afukherjee reported in AIR 1953 S.C. 58, State of Bombay v. Hospital Mazdoor Sabha reported in 1967 P.L.C. 23 and a decision of the Supreme Court of India in the case of Unircrsi:y of Dehli v. Ram Nath reported in 1963 S.C. 187? 10 On the point of no motive of profit the decision of the Lahore High Court in Pakistan National Centre v. Punjab Labour Court No. 2 and another reported ;n PLD !976 Lahore 1085 has been cited. In thai case a society regis tered under iht Societies Registration Act, 1962 with the object to project pro grammes and ideas leading to integration of Pakistan having no motive of profit was hv.K J to b: .leahe^ industrial nor commercial establishment and it was lurther held that person employed in such society Was no( a workman for the purposes of guaaDtees and safeguards provided in Ordinance VI of 1968. It was therefore, neld that the Labour Court, could not give any relief. 11 Mr. M.L. Shabam, learned counsel for the respondents No. 1 and 2, has pointed out that the decision of the Indian Supreme Court in University of Dehh : v. Ram Nath reported in AIR 1963 S.C. 1873 and other Indian deci sions relied upon in the rulings cited on behalf of the petitioner have since been overruled so the decision reported in 1978 S.C. (para 2 page 230). The Indian decisions, however, are based on the definition of an 'Industry' as given in section ?(;) of the Industrial Disputes Act, J947, already quoted above. Due to the change in the definition of 'Industry' the Indian decisions which are bafed on the old definition coulo not be considered as affording much guidance speciallv as the concept of legislation in the IRO is far more developed than in the Industrial Disputes Act. 1947, In- 'be decision of C.R. No. 571/73 in the case of A. F. Ferguson and Co. Thz 5th Sind Labour Court, Karachi and another reported in 1974 P.L C. 187. a-Division Bench of this Court did not accept (he plea of the petitioner to curtail the definition of industry rightly on the basis of reasonings in the Indian decisions. It was observed as under : "Now the reasoning had referred not only tc/a different definition but also to a afferent jtatute I have to emphasise this because ths concept of welfa:e lelegislation in be Ordinance, if i ma; _ay so ;; for djou developed than in the Industrial Disputes Act." Mr. Hassan A. Shaikh, learned counsel for the petitioner wanted time to argue about the weight to be given to the decision of the Indian Supreme Court cited by the learned counsel for the respondents No. 1 and 2 and he was permitted to file written arguments on the points but as the point had already been considered and dealt with by the Division Bench of this Court as already stated, it was not considered necessary to bear further arguments. 12. The judgment of Supreme Court of India reported in 1978 'V. II Supreme Court Cases 213 which was given by eight Judges including the Chief Ju-.iice, was not unanimous on the point as to what could be included in the definition of the term 'industry' as contained in section 2(;) of the Industrial Disputes Act and what was not to be so included. In the judgment of Jaswant Singh, J. for himself and Tulzaputkar, J. which was partly dissenting it was observed as under ', "We are of the view that osspje the wsdth of the dericuioa u couid not te the intention of the Legislature that categories 2 and 3 of the charities alluded to b-- our learned brother Krishna lytr in his judgment, hospital: run on ch&.rab!e basis or as a part of the functions of the Government or local bodies like municipalities and educational and research institutions whether run by private entities or by Government and liberal and learned professions 'ike of the doctors, lawyers and teachers, the pursuit of which -is dependent upon an individual's own education, intellectual attainments and special expertise should fall within the pale of the denriuon." Jaswant Singh, J. further remarked as under : "Io view of the difficulty experienced by all of ut ip defining the true deno tation of the terms 'Industry' and divergence of opinion in regard thereto as has been the case with- this Bench also, we think, it it high time that the Legislature steps in with a comprebeniive bill to clear up the fog and remove the donbts and set at rest once for all the controversy which crop up from time to time in relation to the meaning of the aforesaid term ren dering it necessary for larger Bancbes of this Court to be constituted which are driven to the necessity of evolving a working formula to cover parti cular cases."
P L J 1980 Karachi 17 P L J 1980 Karachi 17 I. mabmood, J NAZAR QASIM versus Mtc SHASTA PAKVKEN Civil .Revision No. 100/1979 decided on S-6-197. WT. FtfBily Ovts Act (XXXV of 1964)S. 5 and Schedule item No. 7 aad S. 23Bar contained in S. 23 to question validity of marriage solemnized under S. 5, Muslim Family Laws Ordinance (V!I1 of 1961)Marriage otherwise void cannot stand beyond challenge in Family CourtSuit for jactitation of marriage, exclusively triable by Family CourtMain prayer in suit is for decla ration that "relationship of wife and'husband never existed nor does exist between parties"Prayer for adjudging nikahnama as forged document a addi tional prayer is consequential relief not altering character of suit"Jactitation of marriage" meaas boasting of marriage not taken place and suit for that prays silence on the subject. (Paras. 5,7) Abbas Farooqi for the Applicant. Turab Ahmad for Respondent. Date of hearing : 26-5-1979. JUDGMENT This revision application under sect ioni 115 C. P. C. is directed against judgment dated 12-3-1979 passed by tbfVUh Additional District Judge, Karachi in Civil ApDtal No. 26 of 1979 whereby he allowed the appeal pf the respondent -from toe order of the XVlIth Civil Judge, Karachi in Suit No. 2627/1978 rejecting the plaint. _-g 2;Briefly, the facts are that respondent Mst. Shaista Perveen filed a Civil Suit No. 2527/1978 in <he Court of the XVIIth Civil Judge, Karachi against the applicant, NazarQasim, who is her paternal cousin, fora declaration .that the relationswp of wife and husband never existed between her anc! the applicant and also for adjudging that the Nikahnam dated 17-2-1971 pertaining to her alleged marriage with the applicant was a forged document and void against her. .Prior to the fiilng of the said Civil Suit, the applicant had filed a Suit No. 1438/1973 against the respondent and others for restitution of conjugal rights, alleging therein that respondent was married to him as per Nikahntma dated 17-2-1978 after co-hibiting with her until 15-3-1978, she was taken away and detained by her pcrents and one Nascem Ahmad Siddiqui (who married the respondent as per Nikahnama dated 28-7-1978). 3. In the respondent's Civil Suit the applicant filed an application under Order 7 Rule 11 CPC praying that the plaint be rejected on the ground that a suit for jactitation of marriage was triable exclusively by a Family Court under section S of the Family Courts Apt, 1964 and the civil Court had no jurisdiction. The application was allowed by the learned Civil Judge who agreed with the con tention of applicant that the respondent's suit was for jactitation of marriage specified in item 7 of the Schedule to the said Act, which the Family Court has exclusive jurisdiction to entertain, hear and adjudicate upon under section 5 of the said Act. Accordingly, the plaint was rejected and the respondent was directed to report to the Family Court for seeking her redress. 4. The respondent preferred an appeal to the Vlth Additional District Judge. Karachi against the order rejecting the plaint of her suit. The learned Appellate Court disagreed with the Trial Court holding that the object of the respondent's suit was to obtain cancellation of a document, namely the alleged forged Nikahnama dated 17-2-1978 and as it was a registered Nikahnama, the Family Court not questson its validity in view of the bar contained in section 23 of the Family Courts Act, with the result that only the Civil Court was competent to adjudicate the genuineness and validity of the disputed Nikahnama. Accordingly, by the impugned order dated 12-3-1979, he allowed the respondent's appeal and remanded the suit for trial to the Trial Court foe decision according, to law. The present revision application has been filed to assail the said impugned order. 5. The meaning and scope a suit for. jactitation of marriage is well cnown to common law. The nature of such type of suit was recently dis cussed by the Lahore High Court in Afst. Amina Begum v. Ghulam Nabi and others (P L D (1974) Lahore page 80). The essence and main object of a suit or jactitation of marriage is to perpetually silence a false allegation or claim put forward by the defended, of a marriage having taken place between the defendant and the plaintiff. Rayden on Divorce Vol. I, l2tb edition page 304 says: ' "Jactitation of marriage meaas a persistent boasting of a marriage, falsely alleged to have taken place between the boaster and the petitioner. The suit prays for a decree of perpetual silence of the subject." A perusal of the plaint of the respondent's civil suit shows that respondent' plea is that the applicant falsely alleges that a marriage bad taken place between her and the applicant on 17-2-1978 and further that the Nakahnama produced by the applicant as evidence thereof,.allegedly bearing her signature, was also a. false-, forged'and spurious document,- The main'prayer for the respondent suit ii for a declaration that "relationship of wife 'and husband never exist d' does not exist between her and the applicant." .It is true that her subsequent prayers are for adjudging the Nikahnama dated 17-2-1978. as a forged document ana for its cancellation. Bat these additional prayers are consequential relict's and, in my opinion, will not alter the character of bet unit. which is essentially for perpetually silencing the alleged false claim of marriag put forward by the applicant. In my opinion, the suit continues to retain its character as a suit for jactitation of marriage, which is exclusively within the juriidiction of the Family Court to entertain, hear and adjudicate under section 5 of the Family Courts Act, 1964 and, as such, its trial by Civil Courtis ba/red. 6. It is contended by Mr. Turab AH learned counsel for respondent that under section 23 of the Family Courts Act. a Family Court is not competent to question the validity of the marriags registered in accordance with the provisions of Muslim Family Laws Ordinance 1961 or to admit any evidence in regard thereto. The disputed Nikahnama bsars the seal of the Nikah Register who registered it in accordance with the provision of the said Ordinance. There fore counsel's contention is that as the Family Court is debarred from questioning its validity, the respondent was compelled to resort to the Civil Court-for relief of cancellation of the disputed Nikahnama. This submission prevailed with the Appallate Court. 7. Section 23 01 the Family Courts Act debars the Family Court from questioning the validity of any marriage on the ground that the provisions of the Muslim Family Laws Ordinance 1961 providing for it solemnization and registration in the prescribed manner have not been complied with. It assumes that in all other respects, the marriage it otherwise valid under the Muslim Law. The said section cannot, therefore, prevent a party to the marriage from leading evidence to show that a marriage did not in fact take place or alleged or that fraud bad been perpetuated against party or that his/her signature on the alleged Nikabnama was also forged. Fraud vitiates even the most solemn transac tion. A mnrriage which is otherwise void, for example, because it was solemnized between persons within the prohibited degrees, cannot be beyond challenge fn a Famiily Court, merely because it was registered by Nikah Registrar in accordance with the provisions of section 5 of the Muslim Family Laws Ordinance, 1961. S. Mr. Abbas Farooqui learned counsel /or the applicant relied on a decision of the Lahore High Court in Mat. Fehmida Bibi v. Mukhtar Ahmed and others (P L D 1972 Lahore page 694) ia support of the submission that even conceding a Family Court may not have jurisdiction to entertain a suit for can cellation of the alleged false Nikahnama, it may yet be competent to-enterain a plea based on that defence. It was, therefore, open to the respondent to raise the plea of the falsity of the Nikahnama as a defence tc the suit for restitution of conjugal rights Sled by the applicant against her, however, it is not necessary for me to rule on this submission for this revision is being decided on another ground that the suit of the respondent is a suit for jactitation of marriage which is exclusively triable by the Family Court. 9. In the result, the impugned order is set aside and revision application is allowed. The Appellate Court is directed to return the plaant of suit No. 2527/78 to the respondent for presentation to the Family Court for trial according to law.
P LJ 1980 Karachi 20 P LJ 1980 Karachi 20 zappa hdssain mikza, J ABDUL BAMID KHAN vereos OFFICER ON SPECIAL DUTY, FEDERAL LAND COMMISSION Mi 3 Often Constitutional Petitions Nos. D-l 17 and D-123 of 1977 decided on 23-5-1979. (i) Land Reform Regulation, 1972 (MLR No. 115)Para 29 and Para. 4A Powers conferred on Federal Government who may authorise any person to exercise the sameNotification No. 7/18/72 Cord. 1 dated 23-10-1973 anthomes Chairman and Members Land Commission as authorised personCommission campetent to issue any direction to Provincial Land Commission or officers subovdinate to them to ensure proper implementation of Regulation (1972). (Para. 8) (ii) Land Reform Regulation. 1972 (MLR No. 115)Para. 7 (1) (b) Ex planation IIISale transaction by registered deedInadequacy of considera tionNot sole basis for rejecting transaction as not bona fide Transaction not to be rejected if other considerations mentioned in Explanation III denote the same as bona fide Mutation before crucial date and transferee in effective possessionCommission justified in not rejecting transaction. (Para. 8) (iii)La»d Reforms Regulation, 1972 (MLR No. 115)Para. 7(1) (^Gift- Only objection that gift was invalid for want of acceptance on part of donee and genuineness not questioned Transfer of possession by donor (father) to four mfnor donees {sons) not required as requisite conditionAbsence of record of acceptance of gift by major doneeImmaterial where donor willingly effected mutation. (Para. 13) Imam All Kazi for Petitioners. Mr. Hasnain for Respondents. Date of hearing: 13- 5-1279 . JUDGMENT This judgment will dispose of Constitutional Petitions No. D-l 17/77 and No. D-l23/77 as these petitions arise out of a common order passed by respon dent No. 1 in the two petitions, 2. The prtitioners in both petitions are alienees of agricultural land from" respondent Mohammad Hassan Halepota during the relevant period prescribed under the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation). By'the impugned order the p. S D., Federal Land Commi ssion, respondent No. 1 declared all the alienations in favour of the petitioners in the two petitions as void for the purposes of the Regulations'. The peti tioners seek to challenge the order as passed without lawful authority and of no legal effect. 3. In Constitutional Petition No. D-l 17/77 respondent Mohammad Hassan sold agricultural lapd comprising an area of 105-31 acres of agricultural land bearing Survey No. 223/A ; 225-229 ; 231/A; and 235 to 241; situate in Den Banusar. Taluks Koipro, District Sangbar /or a total consideration of Rs. 50.000/-to tbe petitioner by Registered Sale Deed -dated 16-6-71.. The petitioner wai delivered possession of the land m pursuance of ibe transaction and the Revenue Record of Righu was duly mutated in bis favour. 4. la Constitutional Petition No. D-123/77 the petitioner; are the sons of the aforesaid respondent Mohammad Hassan. Through a statement recorded by the Mukbtiarkar, Khipro on 11-3-69 Muhammad Hassan alienated an area of 243-4 acres in Deb Maieek Haiepota, an area of 228-36 acres in Deb Fateh Mohammad Mushahid and an area of 244/21 acres in Deh Allah-Kbabi of Taluka Khipro, District Sanghar in favour of the petitioners, by way of gift under the Muslim Law. Pursuant to the aforesaid statement of gift, the Revenue Record of Rights pertaining to the respective Dehs was mutated on various date between 11-3-69 to 10-8-69. 5. On the promulgation of the Regulation Muoamnoad Hassan disclosed his land-holding as well as the alienations made by him in favour of the peti tioners in the. declarations Sled by him wuh the roevant Authorities. The Land Commissioner, Siod after the necessary scrutin> and enquiry upheld the alienations in favour of the petitioners as bona fide and valid within {he meaning of paragraph 7 (I) (b) of the Regulation. In ."gard to the sale tran saction he found the consideration to be adequate and the transferee to be io effective possession of the land in question as well as that the same is.being managed and enjoyed by the purchaser who was also paying the land revenue himsejf. As to the gifts also -the Land Commissioner reached a finding that the donees were similarly ineffective possession of the property and were managing the sams as well as paying the land revenue. 6. Pursuant to the instructions of the Member, Federal Land Commission, however, the case of alienations by way of gift in favour of petitioners in C. P. No. D-123/77 was re-opened in the Suo Moto Revisions! Jurisdiction on the objection that the alienations were invalid for want of acceptance on the part of the donees on the record. After-holding an enquiry and hearing the decla rant Mohammad Hassan, the Additional Chief Land Commissioner, Sind held that be was satisfied that the statement of the gift was properly recorded and duly attested by the Mukhtiarkar and was followed by mutation in Village Form No. 7 oefore the crucial date. He accordingly expressed the opiaioo that the allegations were genuine and that the donees being minor aons oftbe declarant, no formal acceptance on their part was required in law. By order dateo 24-7-74 the Additional Chief Land Commissioner maintained the order of the Land Commissioner and declined to interfere with it. 7. Inspite of the above Use respondent No. 1, Officer on Special Duty, Tederai Land Commission, in exercise of his powers under paragraph 29 of the Regulation took,up proceedings purported 10 have been initiated on the report made .by' the Head of the Sind Inspection Team, Federal Land Commi ssion, Hyderabad. Before him the objection as to the sale transaction was confined to the alleged inadequancy of the consideration and as to the gifts the same objection was raised, namely, that the gifts were iacomplete for want of acceptance on the pa?t of the donees as well as the transfer of possession. After hearing the concerned parties the learned Officer passed the impugned order declaring the alienations as void and ineffective for the purposes of the Regulation. 8. I shall first take up the case of the petitioner in C. P. No. D-117/77 Mr. Imam AH Kazi, learned counsel appearing for the petitioner, c?on a preliminary objection urged that the respondent No. 1 had no further juris diction to exercise powers under paragraph 29 of the Regulation inasmuch as the said powers stood exhausted in the proceedings taken by tbe Additional the land in the i«me Deh is Rs. 450/- per acre, in support of which he has produced a Certificate issued by the Mukhtiarkar, Khipro dated 31-1-1977. These facts and documents have not been denied by the respondent No. 1. As against that the learned Officer relied upon a report by the Inspection Team for which no basis has been indicated. In any case the estimate of the average price reported by the Inspection Team can at best be a rough approximation and in our opinion the disparity is not so great to be the sole basis for holding that the consideration in the impugned transaction was inadequate, In the every nature of things many factors, like personal reasons, situation of the land, it quality and availability of water influence the consideration for a transaction in a given case. The question of the adequacy or otherwise of consideration ha§ become relevant in determining the bona fides of a transaction under Para graph 7 (I) of the Regulation because of Explanation III attached to it. It will be convenient to set out Explanation III which reads as under : "Explanation III.la determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into coniideration the following factors : (I) Whether adequate consideration has been paid by or on behalf of the person in whole favour the transfer has been made or any right, interest or encumbrance has been created ; (n) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created ; (Hi) who has been paying the land revenue and other charges in respect of such land ; (r>) who has been receiving the rent for or batai share from such land. The plain reading of the explanation makes it clear to us that the question of adequate consideration is only one of the factors to b; taken into consideration among other matters. Therefore, the mere fact that the consideration for a transaction may appear to be inadequate cannot be the sole basis for rejecting a transaction at not bona fide and if upon the other considerations mentioned in Explanation III the commission finds that the transaction is bona fide, it will not be under any obligation to reject the same. In thia case the other factors taken into consideration by the Land Commissioner were that the transaction wat by a Registered Sale Deed, Mutation had been effected before the crucial date and transferee was found to be in effective possession and management of the property and was paying land revenue. The learned Officer did not upset the findings on the other considerations which in our view cumulatively fully justified the order passed by the Land Commissioner. 10. Mr. Hasnain, learned couoiel appearing for the official respondents sought to dispute the fact that the transaction was through a Registered Deed, but this fact cannot be disputed for the tirst time^before us as the La.nd Com missioner has mentioned in his order thar the transaction was through a Registered Deed and the learned respondent No I. did not say anything contrary to that in the impugned order. As already pointed out. so far as this case is concerned, the only objection referred to and'considered by the respondent No. I, was that the sale transaction vas invalid on account of inadequate consi deration. The learned counsel for the respondents was not justified to support the order on a basis entirely extraneous to the impugned Order., 11. For the foregoing reasons, the impafnco o{Ur so far as it relatn to the tale transaction is unsustainable. objection! raised by the Inspection Team in which the only objection urged in respect of the gift transaction was that the gifti were incomplete and invalid for want of acceptance on the part of the donees and transfer of possession. The impugned order makes reference to these objections in the opening part. It, therefore, follows that the genuineness of the gift statement was never brought into question, nevertheless, the learned Officer travelled beyond the scope of these objections to question the validity of the recorded statement. This in our opinion could not be done. The correct position as discussed above was truly recorded in the order of the Additional Chief Land Commis sioner dated 24-7-1974 in which ihe learned Officer made the following revealing observations : "There has been delay in checking and attestation of entries in Village form No. VIII, but from the land revenue receipts and the entries in Village Form No. VlII-/ I am inclined to believe that the possession was trans ferred to the dou-jcs before the crucial date and the alienations as genuine. Besides, consent in the case of minor sons could be implied". It is regretable that the learned respondent No. 1 in' the impugned order did not advert to these findings oT a responsible Officer of the Sind Land Commission. . 13. We are siW of the opinion that the alienations by way of gift are not open to any exce^'-on on the ground that acceptance of the donees was not available on record. The precise question came up for consideration before a D.B. of this Court in All Ahmad v. Government of Sind (P L J 1976 Karachi 163). It was held in this case that a gift under the Muslim Law of lands in occupation of haris may be completed by The donor asking the haris to attorn to the donee, or by delivery of title deeds, or by getting the mutation entries effected in donee's favour in the Record of Rights. It was further held : "No transfer of possession is required in the case of gift by a father to his minor child or by guardian to his ward. All that is, however, necessary is to establish the bona fide intention to make the gift. The requirement of change of posses sion in such a case is not necessary for the father himself is the person to receive possession as the guardian of his son". In the present case it is not disputed that four of the petitioners are minors and. therefore, the transfer of possession by their father was not required as a requisite condition for the validity of the gift as held in the case of All Ahmad referred to above. Similarly, the absence of any record regarding acceptance of the gift by the major donees i immaterial where the donor willingly obtained mutation of entries in favour of the doneci. There was abundant evidence produced before the learned Additional Chief Land Commissioner regarding the possession of the donees after the gift was made. For these reatons, we find that the impugned order as regards the gift alienations is also wholly unsustainable. 14. In the result, we allow thi» petition and set aside the impugned order dated 17-12-1976 passed by respondent No. 1 so far as n relates to the aliena tions in favour of the petitioners in the two petitions. The result will be tbat the earlier order passed by the Land Commissinoer, Sind declaring the said alienations as valid shall stand restoied. There will be no order as to costs.
PLJ 1980 Karachi 26 PLJ 1980 Karachi 26 B. G. N. ram, J NATIONS BANK OF PAKISTAN EMPLOYEES WONT, Kafacfci verius PRESIDING OFFICES. 3W BIND LABOUR COURT, Kanctal aad 3 Otiart m Constitutional Petition No. S-59 of 1979 decided on 24-11-1979. (i) Acts n4 RuleSpecial statuteDealing'with Special subject creating special liabilities and providing procedure to enforce such liabilitiesIn order re bring about consequences contemplated by that statute recourse should be 'iad to that statute and to no other statute. (Para. 10) (ii) Industrial Relations Ordinance (XXIII of 1969)S. 10Jurisdiction of Labour Court restricted to registration of trade union or its cancellation on complaint made by RegistrarPower to issue interim injunction restraining a Collective Bargaining Agent from performing functionsNot envisaged by S. 10 Power to cancel registration does not include power to issue such interim order. (Paras. 11, 12) ,iii) Indwtrijd Relations Ordiuace (XX1JI of 1969)S. 22(3)Referendum- Trade union whose registration is cancelled is not entitled to notice qua holding of referendum. (Para. 11) Malik Af. Said for Petitioner. S. H. Afujtaba for Respoadent No. 2. Mr. Huda for Respondent No. 3. Date of hear ing: 27-10-1979. JUDGMENT This Constitutional Petition by National Bank of Pakistan Employees Front Sind, a registered Trade Union and Collective Bargaining Agent calls in question the legality of the order dated 12-5-J979 of the Third Sind Labour Court passed in the proceedings in respect of Application No. 90 of 1975 under section 10(1) of the I. RO 1969 as a miscellaneous application for interim relief dated 6-5-1979. 2. The facts leading up to the filing of this petition briefly stated are that the National Bank of Pakistan Workers Union, respondent No. 2. was a re gistered Trade Union under' the Industrial Relations Ordinance, 1969. Oa 11-7-1975, Registrar of Trade Unions, respondent No. 3, submitted an ap plication under icction 10 (1) of the I. R. O.. in the Sind Labour Court No. III. reporting ibat the Trade Union had stated illegal strike (I) on 16th and 17th June, 1975 from 9 a.m. ro 10 a.m. (2) on 18to and 19tb June, 1975 from 9 a.m. to 10 a.m. and (3) on 20th and 21st June, 1975 from Itfartn. to 11 a.m. and had Tailed to raise ao industrial dispute as required under section 26 (1) of the J. R. O and had also failed to service notice of strike under lection 26(3) of the I. R. O. 3. The Labour Court cancelled the registration of respondent No. 2. by order dated 4-9-1975. Tbc order mentioned that notice of application was initially sent by bailiff but could not be served for the months and ultimately a notice was published in daily "Mashriq" of 23-8-1975 for appearance of respondent on 28-8-1975. The Labour Court held the service of notice to be good and declared tbe respondent No. 2 as ex parte. Consequently, the Re. gistrar of Trade Union, filed an affidavit in ex parte proof. 4. Respondent No. 2, filed an application for setting aside tbe ex pane order on 24-2-1979, before the Labour Court and notice was ordered to be given to the other side. It was the contention of Respondent No. 2, in the application that respondent Union came to know for tbe first time on 14tb September, 1978 that the registration of their union has been cancelled. They bad preferred appeal under section 11 before the Labour Tribunal which bad been dismissed on 14-1-1979 by the Tribunal, observing that the Labour Court should have first been moved forgetting aside the ex parte order. It was held by tbe Labour Court that there was no explanation for tbe delay of mere than 9 days after the expiry of period of limitation and, therefore, the ap- lication for restoration was dismissed as time barred. 5. Respondent No. 2. then filed review petition stated that the Registrar of Trade Unions (Respondent No. 3) bad malaciousiy furnished wrong address in tbe application for cancellation of their registration as a result of which ex pane order bad been passed by tbe Labour Court, cancelling their registration which fact bad been wilfully supressed by tbe Registrar for more than 3 years and had come to their knowledge when a letter dated 14-9-1978 was received from the Registrar, intimating that tbe registration of their union had been -cancelled in September, 1975. Tbe respondent No. 2, had also filed a miscellaneous application for interim relief alleging that the issuance of C. B. A. certificate by Respondent No. 1 in favour of the petitioners was illegal and praying that pending final disposal of the application for review the peti tioners should be restrained from performing the functions under the C. B. A. certificate. Respondent No. 1, passed an order on the miscellaneous applica tion for interim relief restraining tbe petitioners from performing their functions as C. B. A. The pugned order hat been challenged in the instant petition. 6. Respondent No. 4, namely, tbe National Bank of Pakistan Staff Union, Sind, Karachi, made an application seeking to be made a party in that writ petition as intervenor/respondent. Their request was allowed and Mr. B. B. Hudda, appeared on their behalf. It may be stated here that in the Misc. Application No. S. 359 of 1979, Respondent No. 4, had stated that the petitioners bad wilfully and deliberately by means of suppression of facts ins tituted the instant petition without divulging tbe fact that Civil Suit No. I486 of 1979, had been instituted by respondent No. 4, in tbe Court of Senior Civil Judge, No. 4, at Karachi, in respecl of the same C. B. A. certificate dated 22-3-1979, on the basis of which the relief, in this petition has been sought. 7. Mr. Malik Saeed, learned counsel for the petitioners has contended that since the 1. R. O. 1969 is a special statute dealing with a special subject and special procedure for enforcement of the relevant provisions has been des cribed in it the civil Court has no jurisdiction to issue any declaration or orders in respect of C. B. A. certificate dated 22-3-1979, on the basis of which the instant petition bas been filed. He has further argued that since, there i; no provision with regard to filing appeal against the impugned order, recourse has rightly been taken te the remedy of filing a constitutional petition. 8, With regard to tbe alleged suppression of tbe fact about tbe . of civil suit, in the rejoinder affidavit filed by Khurshid Ahmed, Secr?'.?r\ General of the petitioner Union, it has been denied that the non-msntionisg o' Civil Salt No. 1486/79 was mala fide. It is the case of the petitioner Union that the aforesaid suit had been filed by another union before a forum which had no jurisdiction to adjudicate and it hi? no bearing whatsoever on the impugned order which has been challenged in this writ petition It has been denied that the petitioner union had been made a party in the suit. 9. The learned counsel for the petitioner has relied upon the decision of this Court in revision application entitled Syed ^Mushtuque Hussain Shah v. Rica Mohammad Hazarri and another (Revision Application No. 200/76) reported in P.L.D. 1.978 Karachi 612 in support of bis contention that the civil Court has no jurisdiction with regard to right to registration of a trade union and the liability to cancellation of the registration provided for in IRQ W (Ordinance XXIII of 1969) as the aforesaid Ordinance has provided authority by which and the mode in which registration of trade union could be granted or cancelled. It is, therefore, contended that no other forum such as the civil Court has jurisdiction. 10. In the aforesaid decision of this Court reliance had been placed upon the decision of their Lordships of the Supreme Court in Abu I 'A'la Maudoodi v. Government of West Pakistan reported in P.L.D. 1964 S. C. 673 in which case the question for consideration before their Lordships was whether there was overlapping of provisions between the Political Parties Act, 1962, and the Criminal Law (Amendment) Act, 1908 and if so whether the special statute, namely, the Political Parties Act, 1962, would not override the provision of the Criminal Law (Amendment) Act, 1908. The observations of Hamoodur Rehman, J. (as he tben was) with whose views the majority agreed and which were quoted in the aforesaid decision of this Court were as under : "I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability then in order to bring about the consequences contemplated by that statute for the breaches of its provisions recourse should be had to that statute and to do other statute." Z. A. Channa J (as he then was) who gave th: decision arrived at the conclusion that "the right to registration by trade union having been conferred by the I R O, as also the liability to cancellation of registration under certain circumstances and the statute having provided the authorities by which and the mode in which the registration was to be granted or cancelled, the right or liability caonot be enforced in any other manner or through any other forum." 11. In the instant case the matter relates to the cancellation of registra tion of a trade union and incidentally to grant of C.B.A. certificate to a particular trade union section 10 of the I.R.O. which is on the subject of cancellation of registration reads as under : "It would be observed that the power of registration is given to the Labour Court but the same can only be exercised upon a complaint in writing made by the Registrar of Trade Unioni." The registration of respondent No. 2 was cancelled by the respondent No. 1, on complaint of respondent No. 3, by order dated 4th September, 1975 the aforesaid order is being challenged in the Review Petition after a delay of over 3 years. In any case, at this stage this Court cannot go into facts controverted I and the merits of the caie. Suffice is to say that the jurisdiction of the Labour I Court under section 10 is strictly restricted to the registration of a Trade Union or its cancellation if there is a complaint in writing made by the Registrar of Trade Union but the tame obviously does not include the power to issue] interim injunction restraining a Collective Bargaining Agent from performing! its functions under the Ordinance. The learned counsel for the' petitioner has' pointed out that at the time of grant of the certificate of C.B.A. on 22nJ March 1979, undoubtedly, the respondent No. 2, was not even a registered Trade Union as the registration has been cancelled by order dated 4th September. 1975. He hai referred to the decision of this Court in C.P. No. 44/79, wherein it was held that where all proceedings of referendum have been completed before the Trade Union could be deemed to even a right to registration, no injunction could be grantedj'in its favour by the Labour Court for restraining the referendum. He has further pointed out that under section 22 (3) of the I.R.O. a Trade Union whose registration is cancelled is not even entitled to get notice with regard to holding of the referendum. 12. As already stated the Industrial Relations Ordinance, 1969 doss not contain any provision under which the Labour Court caa remain a Trade Union, in whose favour a certificate of Collective Bargaining Agent ha» been issued, from performing its functions under the Ordinance. The power to cancel registration of a Union under section 10 of thi I.R.O. can under no circumstances be considered to envisage issue of such interim order which is, therefore, pasted without any lawful authority and is of no legal effect. The writ petition is accordingly, allowed and the impugned ord:r set aside. Under the circumstances of the case there will be no order as to costs. P L J J980 Karachi 29 Z. A. channa and sajjab ali shah, JJ S. NIZAMUpDIN QADRI versus DY. SECRETARY. GOVT. OP WEST PAKISTAN, Co-operation Department Lahore and 3 Others Writ Petition No. 233/1970 decided on 7-5-1979. (i) Natural JusticePrinciples not of universal application nor do they require that opportunity of bearing must be given to a party at every stage of proceeding! Audi alteram panem Rule may be relaxed in cases of emergency and hearing may be postponed to a period after taking such action as emergency may want. (Para. 4) (ii) Co-operative Societies Act (VII of 1925)S. 64-AA and S. 54 Petitioner heard before Registrar's nominee and Deputy RegistrarThereafter failure to afford bearing before ordering by Government in reviiioa Held: sufficient compliance of principle of audi alteram panem and no violation of law. ' (Parat. 7, 8) (Hi) NataralJastice "Audi alterum partem"Petitioner not condemned by Government whereof he was not heard bat condemned by a forum where opportunity of hearing was givenNo principle violated. (Para. 9) Syed Hassan Zaffar for Petitioner. Boston Inamullah for A.G, (Sind) for Respondents Nos. 1 and 2.' Azhar All Slddlaut for Respondent No. 3. Mohammad Matheniddiit Slddlqi for Respondent No. 4. Dot of hearing : 7-5-1979. JUDGMENT 7.. A- Channa, J. This constitutional petition seeks to challenge the can cellation by the Managing Committee of the'Bahaduryar Jang Cooperative Housing Society, the third respondent, of the plot allotted to the Society to the petitioner and the orders paised by the Provincial Government in revision, dated 6-12-1968 and 21-5-1969, dismissing the revision petitions filed by the petitioner, and arises in the following circumstances : 2. One Murtaza Ali wai a member of the Babaduryar Jang Cooperative Housing Society, hereinafter referred to as the Society, He, however, sold bis shares in the Society to the petitioner On the basis of this sale, the Adminis trator of the Society (the Managing Committee of the Society having been superseded and its duties assigned to an Administrator by the egistrar of Cooperative Societies) confirmed the allotment of plot No. 209, Block No. 3, in the Society, alongwith 4 shares, in the name of the petitioner, by his order dated 25-1-1958. Is appears that the Managing Committee of the Society was subsequently revived and by its letter, dated 29-1-1963, the Managing Com mittee cancelled the allotment of the plot, in question in favour of the respondent on the ground that the allotment of the Plot to him was both illegal and unjustified. The petitioner made a representation against the said cancellation to the Registrar and the Registrar, acting under section 54 of the West Pakistan Cooperative Societies Act, 1925, referred the issue to bis nominee, Mr. Shirazi. The letter, after hearing the petitioner and the Society, gave an Award on 21-3-1973, holding that the allotment of the plot in favour of the petitioner was valid and lawful and the Society should not disturb the allot ment in any manner. As the fourth respondent to whom the plot in question bad been allotted by the Society, bad not been made a part/to this Award, the Registrar, presumably acting under section 54-A of tbe Act, referred the dis pute back to Mr. Shirazi with the direction to make the' fourth respondent a party and give him an opportunity of hearing, Mr. Shirazi, after joining tbe fourth respondent as parHy, gave fresh Award on 10-12-1966, in which he reiterated Ihe view taken by him in his previous Award. Against the said Award, the fourth respondent preferred an appeal which was beard by the Deputy Registrar, who set aside the Award, by bis order dated 6-12-1968, and held that tke allotment in favour of the petitioner bad been rightly cancelled and tbe Society's allotment in favour of the fourth respondent was upheld. The main ground for parsing this order was that neither possession of the plot bad been given to tbe petitioner nor-tbe plot had been validly allotted to him. The allotment in favour of tbe fourth respondent was upheld on the ground that he was the member allottee of a plot which he had surrendered on tbe ground that be wanted to a bigger plot and his request was considered to be scnuine. Against the decision of the Deputy Registrar, the petitioner filed a itvision petition to the Government which was dismissed, vide order dated 14-2-1969, on the ground that the facts did not justify interference with the decision of tbe Deputy Registrar. The petitioner thereafter filed a second revision petition to Government on 24-2-1969, which came to be dismissed by the Government. vide its order dated 2f-5-1969. 3. We have heard Mr. Hassan Zafar, tbe learned counsel for the petitioner, as well as Mr. Azbar Siddiqui. who represented respondent No.' 3, Mr. MM. Siddiqui, who appeared for respondent No. 4 aod Mr Hassan Inamullau, »ho appeared on behalf of tbe learned Advocate General and respondents Nos. 1 and 2. The contentions raited by Mr. Hassan Zafar were (i) that tbe order of cancellation was passeed by the third respondent, without givipg him an opportunity of bearing : and (it) that limilarly, his two revision petitions were dismissed by the Government without giving him an opportunity of bearing. 4. Mr. Hastaa Zafar admitted that there was no statutory requirement for hearing by the Society or the Government but he relied upon the principle of natural justice enshrined in the maxim : audi alterant par tern, which Iras been made a part of our legal system, except in cases where its application is speci fically excluded. It was observed by the Supreme Court in the case reported as Shaikh Abdul Rahman v. The Collector and Deputy Commissioner,- Bahawalnagar and others (P>L D 1964 S.C. 461) and reiterated in the case of the Province of East Pakistan v. Noor Ahmed (P L D 1964, S.C. 451) that th« principle enshrined in the maxim : audi alteram partem is presumed to bs embodied io /Xfcry $wo}t >s !be abjesct of tsy prpwsi&a J£> tbe cemrsfy. la tti-s tetter case of the University of Dacca v. Zakir Ahmed. (P L D 1965 S.C. 90), the Supreme Court observed as follows : "From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisionsafter ex post facto investigation into facts which would result in coqsequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the pjwir sr> given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case." 5. However, the principles of natural justice are not of universal applica tion nor do they require that opportunity of bearing most be given to a party at every stage of the proceedings. In the case of Abul '-470 Maudoodi v. Government of West Pakistan (PL D 1964 S.C. 673) it was bsld by majority decision that rule of natural justice may be related cases of emergency, and the hearing may be postponed to a period after taking inch action as the emergency may want. In that case, it was held that if the emergency wanted a notification declaring an association could be issued under section 3 of the Criminal Law Amendment Act, 1908, without giving an opportunity of bearing to the association or its office bearers, but after the notification is issued, such an opportunity must be given. 6. The difference in cases where there is statutory requirement for a hearing and in casts where the right of hearing is founded on the principle of natural justice has been succinctly brought out by their Lordships of the Supreme Court in the case of Home Secretary Government of West Pakistan v. Jan Mohammad (P L D 1969 S C. 333). In two earlier unreported cases, their Lordships of the Supreme Court had held that the Commissioner was not bound to give a bearing to a party before referring his case to a Tribunal under section 3 of- the West Pakistan Criminal Law Amendmend Ac:. 1963. as the party has been given a right of hearing before the Government on appeal against the reference by the Commissioner. 'However, in the reported case, their Lordships held that as an order of reference by the Commissioner was ^ a proceeding under the aforesMrf Act, and as" the Act.,itself, r ih' section 25, requires that in ail proceeding unoer the Act before the Tribunal, the District Magistrate, the Commissioned and the Government, the parties would, be entitled to be- represented by y legal practitioner of their choice, a fortiori, a party would be entitled to be o«Wd and represented by a counsel before the, Commitsiotjer could pass an orofer referring a ca.« to th Tribunal. 7. It was contended by Mr. Azbar Siddiqui for the third respondent that the contention of the petitioner that he bad not been given an opportunity of hearing by the Managing Committee of the society before the order of can cellation of his plot was passed is false and that as many as 3 notices were issued to the petitioner requiring him 10 satisfy the Committee that the allot ment in his favour was legal and appropriate. He produced for our inspection from the record of the Society the 3 notices .dated 18-3-1959, 24-3-1959 and 15-12-1959, possibly, these notices were issued but there is.no evidence that these notices were in fact served upon the petitioner. Be that as it may, the petitioner was admittedly beard both by th: Registrar's nominee, when the matter was referred to him under section 54 of the Co-operative Sdcieties Act, and also by the Deputy Registrar in appeal. Section 54 of the Act provides that every dispute between a Society and its member, touching the affairs of the Society shall be referred to the Registrar, who may decide the dispute h'mself or refer it to his nominee for decision. In view of this provision of law, we think that the Registrars' nominee and the Deputy Registrar are appropriate forums where opportunity of hearing is to be provided and since in the instant case the petitioner was heard before both these forums, we con sider that the failure, if any, to give a hearing to the petitioner before the order of cancellation was passed by the Committee does not vitiate the action of the Committee and there has been sufficient compliance with the principle of audi alteram partem. 8. Coming next to the proceedings before the Government, neither a copy -of the first revision petition filed by the petitioner before the Govern ment has been produced before us nor is there anything on the record to indicate on what date it was filed and what were its contents. We have, nowever, been shown a copy of the order, dated 7-2-1969 passed by the Government on this revision application, dismissing the same on the ground that the facjs did not justify interference with the decision of the Deputy Registrar. We have noticed from the order of the Government,,that the revision petition was filed only against the 4th respondent and the third respondent was not made a party. As regards the second revision petition, which was filed on 24-2-1969. It was dismissed by the Government, vide its order dated 21-5-1969, mainly on the ground that a second revision peution did ijot lie. Mr. Hassan Zafar was unable to point out to us any provision of law whereby a second revision petition could be made to the Government under the Co-operative Societies Act. We find on the contrarthat section 64-AA makes orders passed in appeal under section 64 or in ^-.vision Under section 64-A final and conclusive. We are thus of the view that there is no provision in the Act for entertaining by the Government the second revision petition. 9. We are also of the view that right of bearing before the Government n revision is neither a requirement of the law nor is required on the principle af natural justice. The Government has merely declined to interfere in revision and thus passed no adverse order against the petitioner. The Adverse order was passed by the Deputy Registrar, where admittedly the petitioner bad full opportunity or being beard,.'and the Government has merely taken the riew that op interference with that order was called for. The principle of audi alterant 'partem comes into play where a person has been condemned unheard. The petitioner has hot -been condemned by the Government if aH wm condemn'd, ih« was done by the Deputy Registrar, where admittedly ic was beard. As such, we are of the view that the princfple of natural justice tut act been violated by the Government. It was held by the Supreme-' Court in the caM of 4tta Mohammad Qureshi y. Settlement Commissioner (f L D 1971 S. C. 61^ which was a case under the Displaced Persoai (Compensation and JUbabilitatioa) Act, 1958, that a revising authority cannot make any adverse order against a person without giving him an opportunity to show cause against it. In that case the argument that the appellant had an opportu nity of being heard by the Settlement Commissioner, which was a sufficient redress for his grievance, was repelled on the ground that the argument may fee well founded when the grievance is made to rest on the principle natural justice, but when there is an absolute requirement of the Statute that no adverse order can be passed by the revising authority without giving the party concerned an opportunity of hearing and it is defined, the order passed is a nullity. We may refer to the exercise or refusal to exercise by the Chief SfUtle-ment Commissioner of his revisional powers under the Displaced Persons (Com pensation and Rehabilitation) Act, 1958. It was held by the Supreme Cour in the case of Fateh Mbhammad v. Moula Bux (PLD 1963 S.C. 311), that section 20 of. the Act lays no obligation on the Chief Settlement Commissioner to exercise his original powers unless he is directed to do so by the Central Govern ment, and if he, therefore,, decline to exercise his powers of revision in a particular case, he has,a discretion to do so and the order in question could give no cause of action to the appellant to ask for a writ from the High Court \o quash the order. These authorities, in our humble view, support the view that we have taken that there was sufficient compliance with the principle of natural justice when the petitioner was heard by the Deputy Registrar and no illegality requiring our interference was committed by the Government in not offering the petitioner an opportunity of hearing. 10. Mr. Azhar Siddiqui also defended the action of the Society in can celling the allotment of the plot in favour of the petitioner on merits. He submitted that according to Bye-law 7 of the Society, only members wera entitled to allotment of plots. Under the bye-laws, only those persons wera deemed to be members, who had either signed the Memorandum of Association of the Society or who had been accepted as membere of the Society by the Managing Committee, on their making an application in this behalf to the Society and sending to the Society with their applications a membership fee of Rs. 10/-. it was contended by Mr. Azhar Siddiqui that in asmuehas the petitioner had not submitted an application for membership to the Managing Committee nor he had sent to the Society the required membership fee, be was not a member of the Society and therefore not entitled for plot, and as such the order of the Administrator confirming the allotment of plot No. 319 in his favour was invalid. On an reerutiag of the Bye-laws, we find that this objection is not unfounded. 11. We would also like to point out that respondent No. 4 has since raised a substantial construction on the plot in question, which has .been completed. This position is admitted by the petitioner as appears from the order of this Court dated 8-9-1970. The petitioner should, in view of the construction which /as beiag raised by the 4tb respondent, not have allowed almost a year to elapse between the dismissal by the Government of bis second revision petition and the constitutional petition which be had filed in the High Court. The upshot of the above discussion is that we find no merit in this petition, we would accordingly dismiss the same with costs. It is needless to add that the petitioner will be entitled to reund of the deposit made by him to the Society, together with admissiole interest, as ordered by the Deputy Registrar.
PLJ 1980 Karachi 34 PLJ 1980 Karachi 34 I. mahmud and mushtak ali kazi, JJ M/« JABEES Ltd, Karachi Versus GOVT. OF WEST PAKISTAN On. MBR., Lahore and 2 Otters Constnl. Petition No. 66 of 1970 decided on 19-6-1979. (i) W. P. Entertainments Duty Act (X of 1958)Ss. 2 (</), 3 and S (2) Entertainment duty, levy ofScope of word entertainmentAmusement not coveredS. 2 (d) Word, "entertainment" not defined and word, -'includes" does enlarge scope of word defined which, but for interpretation clause, would not be included in things defined however such arguments have no force since word, "entertainment" has not been defined as a class and certain specific types of entertainments have been includedPetitioner installed variety of play machines and mechanical games in amusement hallNo payment charged for admission to hall or from onlookersAnyone could operate machine to amuse himself by putting a coin in slotThe Act (1958) not applied to such hall or operation of machines. (Paras. 2, 6, 8) (ii) Interpretation of StatutesFiscal statute imposing taxSubject cannot be brought to tax under any presumed intendment or equity or spirit of tax law. (Para. 8) Qamarul Islam Abbas for Petitioner. Abdul Sattar Shaikh A. A.G. ( Sind ) for Respondents. Date of hearing: 29-1-1979. JUDGMENT 1. Mahmud, J. This Constitutional petition under Article 98 of the (1962) Constitution is directed against the orders passed by the Commissioner of Karachi and the Director, Excise & Taxation, Karachi, respondents 2 and 3 respectively, levying entertainment duty under the West Pakistan Enter tainments Duty Act, 19S8 in respect of payments charged by the petitioner from the public for the use of Play Machines installed at Jabees Playland at Clifton, Karachi. . ' 2, The petitioner Jabees Ltd. owns a restaurant and an amusement hall called 'Playland' above the K. M. C. Acquarium. The restaurant, with which we are not concerned, is a different business and is in no way connecte4 with the 'Piaylacd'. The petitioner installed in the amusement hall a variety of play machines and mechanical games, such as Safari Shooting Machines, Football Machines;, Bowling Lanes, Space Ships. Kiddie Rides, Flippers etc. Anyone wanting to play with a machine puts a 30-Paisa coin in the slot and thereby operates the machines and provides his amusement or entcrtainmant. But no payment is charged from the public either for admission to the ball or from by-standers or on lookers. The machines are not operated by any member of the management of the petitioner. The Director, Excise & Taxation, Karachi issued a show cause notice to the petitioner as to why penally should not be imposed for holding an entertainment without payment of entertainment duty under the West Pakistan Entertainments Duty Act, 1958, (hereinafter referred to as the Act. The petitioner showed cause and contended that the play machines were not covered by the mischief of the Act This plea was rejected by the impugned order dated 15th December 1967 hold ing that 'playlaod' was subject to levy of entertainment duty under section 3 of the Act, but in the situation, the said duty could be levied only under section 5(2) of the Act by a consolidated weekly payment based on return of payments at the machines. Feeling aggrieved by the said order, the petitioner filed a Revision Petition before the Commissioner of Karachi under section 15 of the Act. The Revision, bowaver, was dismissed by the second impugned order dated 5th April 1969. The petitioner has, therefore, filed this petition chal lenging the s<id orders as without jurisdiction or lawful authority. 3. Before discussing the submissions of Mr. Qamarul Islam, learned counsel for the petitioner, and Mr. Abdul Sattar Shaikh, learned Additional Advocate General for the respondents, it will be convenient to briefly set out the pertinent provisions of the Act. The object of the Act, as stated in its preamble, is the levy of a duty in respect of admission to entertainments in West Pakistan. Section 2(a) defines "admission to an entertainment" as including admission to any place in which the entertainment is held. Section 2(d) defines 'entertainment' to mean "entertainment includes any exhibition, performance, amusement, game or sport, to which persons are admitted on payment". Section 3 is the charging section and subsection (1) reads : 3(1). "There shall be levied and paid to the Government all payments for admission to any entertainment, a duty (hereinafter referred to as the 'entertainment duty') at the rate of 50 percent of such payments excluding the amount of the duty." Two methods of levy of entertainments duty are specified in section 5 of the Act. The first is by means of a ticket which has been pre-stamped with enter tainment duty stamps issued by the Government denoting that proper enter tainment duty has been paid. The second method is by permitting the proprietor of the entertainment to make consolidated payment in accordance with the returns of "payments for admission to the entertainment on suoh conditions as the Government may prescribe under section 5(2) of the Act. The West Pakistan Entertainments Duty Rules, 1957 provide, inter alia, that' every ticket shall show particulars as to description of the place of entertain ment, serial number of ticket. printed by mechanical means and the stamps, seal or other mark denoting that payment due has been made and there shall be separate tickets of different colours for each class of admission bearing consecutive or serial number for all shown including the Matinee Show. 4._ The main question, which relates to the proper interpretation of the provisions of the Act and the Rules, is whether the type of amusement provided in the 'Playland' is an 'entertainment' as defined in section 2 (d) and is liable to levy of entertainments duty under section 3 of the Act. The first submission of Mr. Qamarul Islam is that the types of entertainments mentioned in section 2(</), namely exhibition, performance, amusement, game or sport, to which persons are admitted on payment are ejusdem generis and belong to a class of public entertainments which are provided by the proprietor of the entertainment to persons who are admitted thereto on payment and does not include individual recreation and amusement provided by the individual for hit own entertain ment. In a public entertainment, there are entertainers aad spectators or persons entertained, whereas in the instaat case, there are neither entertainers, nor spectators, but the individual member of the public entertains himself by means of the Play Machines installed m toe hall. Counsel submitted that the scope of the Act and the Rules i& jiiBiied to »n organized entertainment held in a place to which persons are admitted o» payment by purchasing a Iticket bearing a stamp of the requisite amount of duty, as io the case of film shows, theatrical drama, wrestling, hockey and football matches etc. Persons nay be admitted 00 payment without tickets only in exceptional caies and under condition prescribed by the Government under section 5 (2) of the Act. Counsel also emphasised the word 'held' in section 2(a) to show that an entertainment has to bean organized entertainment 'held' in a place. Payment ef a charge for use of a play machine by an individual to provide his own entertainment, cannot be said to be a payment for admission to an entertainment held by the proprietor of the management. Counsel further referred to Attorney Central v. Sottthport Corporation (1934 1 K,B. 226). In that case, the British Court of Appeal while considering the same definition of the word 'entertainment appearing in the Finance (New Duties) Act, 1916, observed that in order to attract entertainment duty, the entertainment has to be an organized entertainment for the purpose of entertaining those who pay to see or hear it. The facts-of that case were that persons could by payment obtain admission to an enclosure by the sea at Southport. which along with other amenities, such as shelters, terraces, cafe and walks, contained pool. Those who paid to enter this enclosure might do so to bath or they might dp so to sit in the sun or out of the wind or to walk or to watch the bathers in the pool. The bathing was not organised and no one arranged their activities for the purpose of diverting spectators or of giving a deliberate 'performance' of any kind. In these circumstances, it was held that the bathing was not an 'entertainments and consequently entertainment duty under the Act could not be charged on the payments made by non-bathers for admissions to the enclosure. 5. On the other hand, Mr. Abdul Sattar, learned Additional Advocate General for the respondents, submitted that the definition of the word 'entertain ment in section 2 (</) of the Act was not exhaustive as the word 'includes' enlarges its meaning to embrace even an amusement by an individual by himself, and referred to the definition of the 'amusement' in corpus juris secvndum, Vol. Ill, page 1069, as anything that amuses is an entertainment. He also referred to Volume 30 of the same corpus Juris secundum, page 716, that the term 'entertainment' has been held to include "recreational activities, such as games, sports, plays and dancing", lie also referred to the definition of "entertainment in various other British enactments mentioned in "Words and Phrases Legally. Defined", II Edition by John Saunders, Volume 2 at page 163. 6. As far as the first submission of learned Additional Advocate General is concerned, it is true that, the word 'includes' in a definition enlarges the meaning of the word defined to include certain things, which, but for the interpretation clause, would not be included in the class of things defined. But this submission has if o force since the word 'entertainment has not been defined as a class at all and only certain specific types of entertainments have been included as entertainment. We are also not impressed with the definition of the words 'amusement and 'entertainment appearing in other foreign enact ments which are relevant only for the purposes of those enactments, 7. Finally, the learned Additional Advocate General referred to William Lawrence Allen v. John Emmerson and others (1944) (AH. B. R. 344). In that case, the respondent was the proprietor of Funfair premises, in which were installed automatic slot machines, pin-bagatelle tables, target machines, ih,coting r^nfei^id^ like. The public could obtain admission to the ^Vf W' n 8 ^y f « > ut i f tbey desired to operate any of the they would aave to pay Jhe appropriate charge. The relevant statute iH> th&ue or other place of public entertainment" could be used B&iBi'iiceBce from the local authority and penalties were provided for ordttcenctment. Ii was held that the Funfair was -'a place of public entertainment." That case is, therefore, distinguishable since the Court was considering the limited question as to whether the Funfair was a 'place' of public entertainment and was therefore required to be licenced. We respectfully agree with that conclusion. Counsel also referred to Attorney General v. Yalentta and others (41 T.L.R. 78), but that case is not relevant as the question there was on what proportion entertainment duty was chargeable on the subscription and entrance fees of members of the club who, in addition to certain clnb privileges, had the right to attend Polo matches and Tennis and other tournaments provided by the club, 8. Mr. Qamarul Islam advanced a further submission, with which we are also included to agree, that a statute imposing a tax must be interpreted literally and according to the words used and clearly expressed. . A subject cannot be brought to tax under any presumed intendment or equity or spirit of the tax law. In this connection, reference may be made to the 'observations of the Supreme Court in Collector of Customs (Appraisement) Karachi and others v. Messrs Abdul Majid Khan and others (\971 S.C-M.R. 371 at 388) and Craiet on Statute Law, 7th Edition (1971) page 112. We would, therefore, accept the submission of Mr. Qamarul Islam that the type of amusement provided in the Playland of the petitioner is not expressly covered by the Act and the benefit of doubt must go to the petitioner. No other argument was advanced. For the foregoing reasons, we would allow this petition and set aside the impugned orders as being without lawful authority. There will be no order as to costs.
PL J 1980 Karachi 40 PL J 1980 Karachi 40 naimuddim, I B> R. HARMAN ft MOHATTA LM. versus GHEE CORPORATION OF PAKISTAN Ltd, Karachi Suit No, 526 of 1979 decided on 10-10-1979. (i) Arbitration Act (IX of 1940) S. 20 & S. 40-Suit for a direction to file arbi tration agreement in Court and refer'dispute to arbitration according to agreenwnj-TCondition precedent in arbitration clause: dispute be first referred to Board of Directors (of defendant) whose decision would be final subject to arbitration as providedContention that arbitration clause prohibits from having recourse to law and hit by S. 28, Contract Act (1872)Contention repelled and held that suit is not maintainable if condition precedent is not fulfilled. (Paras. 5, 7) (U) Contract Act (IX of 1872)-S. 28-Condition restraining recourse to Court of lawContract providing that all disputes would be referred to' certain Brokers whose dcc-sion would be final Or contract providing that all disputes would be referred to arbitration by Chamber of Commerce whose decision shell oc analMeld such contracts do not come within purview of S. 28. Saeeduz Zaman Siddiqui for Plaintiff. Dr. A. Basil for Defendant. Date of hearing ; 10-10-1979. JUDGMENT .!? e » pl
l " t ? liai , filed tni8 8uit uoder section 20 of the Arbitration Act/1940, k ra dl . rect . io ° to tbe defendants to file the Arbitration agreement - PWtl ? ID Co !J rt
nd th ««fter. to refer the dispute between (bob to tion according to the arbitration agreement. - Jell I?'/ option «ken before me and argued by Dr. A. Basil on ,« f I defe ? d
n
« ^at the condition precedent provided in arbitration agreement has not^eo fulfilled and therefore the suit is not maintainable. followstheref0rC ' ° eces
ry to refer to the arbitration agreement which U "18(a) ,Any disagreement, dispnte or claim which may arise from this agreement or m connection with it, in the first instance, may be sorted out £«w y . £ y , P arties - In case, any disagreements, dispute or claim could not be resolved mutually by the parties, the dispute shall be referred ,«j I- S" ° f Dlrec «°« of tbe Purchasers whose decision shall be final no oinding on the party subject to arbitration as provided in this para, i newer under agreement shall if reasonably possible, continue during ««v a£ , ihe dwpnte is before the Board of Directors. Referring of nrJjTJJTf he Board of D«f«ctors of the Purchasers shall be a condition SL?T 8 h.n 0 K any ? thw action at Uw - s « c
» disagreements, disputes or iton Act if iVS" thr0ttgh
B arbit «tion in accordance with the Arbitrathat bbv ^diSLJ^ «« from the above mentioned provisions of the agreement or in con«.?f.r .! at
'
.»P«« -«F claim which arises under the agreement S «,? k tbcre » hB . oo IMIwe to sort out the some mutuaHy by the nas nrst to be referred to the Board of Directors of defendant whose decision is made final and binding on the party subject to. arbitration at provided. It will be further seen that referring the disagreement or dispute or claim to the Board of Directors of the defendants is made a condition precedent to take any action at law. It is also provided that if the party does not accept the decision of the Board of Directors of the defendants then such disagreement, dispute or claim has to be referred to arbitration in accordance with the provisions of section 40 of the Arbitration Act, 1940. 4. In, this case it is admitted by Mr. Saeeduz Zaman Siddiqui learned counsel for the plaintiff that the dispute has not been referred to the decision of the Board of Directors of the defendants. Therefore, the condition precedents has not been fulfilled. However, Mr. Saeeduz Zaman Siddiqui learned counsel for the plaintiff relying on the provisions of section 28 of the Contract ct argued that the condition precedent is void because it is in restrain of usual legal proceedings. -. ' 5. Section 28 of the Contract Act applies to agreements which wholly or partially prohibit absolutely the parties from having recourse to a Court of law. The agreement does not absolutely prohibif'ttny party from having re course to a Court of law. It only markes the re ference of disagreement or dispute or claim to the Board of Directors a condition precedent and if the party is still dissatisfied with the decision of^ne Board of Directors of the defendants he can then resort to arbitration 6r go fo a Court of law under circumstances which need not be stated here. Surely, even if that agreement would have made the decision of the Board of Directors of the defendants as final and binding without any further restrain that would have been perfectly legal and would not have come within the mischief of this section. Here I refer to two decisions from foreign jurisdiction namely, (I) Coriaga OH Co. Ltd. v. oegUr and others (1876) I. L. R. I Cal 466) (2) Ganges Manufacturing Company Limited v. Indra Chand and another (1906) I. L. R. 33 Cal 5169). In the first case the contrect provided that all disputes arising between the parties should be referred to 'two competent London Brokers and that their decision should be final. It was held that the contract does not come within the purview of this section. In the second case the contract provided that all disputes arising between the parties "should be referred to arbitration of the Bengal Chamber of Commerce, whose decision shall be accepted as final and binding on both the parties to the contract". It was held that the contract does not come within .the purview of this section. 6. Mr. Saeeduz Zaman Siddiqu! then referred to exception 1 to section 28 of the Contract Act in support of his contention but reference to this exception doses not advance the argument in any way for this Exception applies only to a -class of contracts,, where the parties have agreed that no action shall be brought until come question of amount has first been decided by a reference, as for instance, the amount of damage which the assured has sustained in a marine or fire policy. Such an agreement does not exclude the jurisdiction of the Courts ; it only stays the plaintiff's band till some particular amount of money has been first ascertained by reference as was held in Coriaga Oil Co. Ltd. v. Koegler and others (Supra) 7. A perusal of the agreement clearly shows that the parties contemplated tbst before going to arbitration the party dissatisfied should first approach the Board of Directors of the defendants for redress of his grievance for it'is possible that it may be redressed by them, thus obviating the necessity of even going to arbitration or to Court. But this course, if followed, would not close the doors of arbitration or of Court, for if the plaintiff is dissatisfied with decision he could still go to arbitration or under certain conditions come to Coutr. Since the condition precedent mentioned ia the arbitration clause has not [been fulfilled, I am therefore, of the view that the suit is premature and not mainjtainable. I, therefore, dismiss it leaving the parties to bear their own costs. Their order will however, not preclude the plaintiff from filing fresh suit after fulfilling the condition precedent.
P L J 1980 Karachi 42
P L J 1980 Karachi 42 sahad
Au shah, J"
HAJI LAL BUX versus
MISTRY
ALLAHDAD
Second Appeal No. 61 of 1974 decided on 6-10-1979
W.P. Urban Rent Restriction Ordinance (VI of 1959)S. 13(3)(«)()Resi dential buildings not situated in same urban areaLandlord living in Q and suit property is situated at 14 mites away at LLandlord not specifically stating if his married son living with him would occupy disputed property or he himselfEvidence deposing that very large family squeezing in small ac commodationExpression
"for his own occupation" in clause (0) to be inter preted liberally to include genuine requirements and not restricted require ments confining to shelterIntention indicated by words "suitable for his needs' occurring in clause
(b)
No .fault in evidence if landlord does not pin point whether he would occupy premises in question or send his sonBoth remedies are allowable and 14 miles distance is igoorable if relevant requirements of
'personal need' are fulfilledOnly requirement: landlord not occupying any residential building suitable for bis needs in same urban area in which such building is situatedEjectment of tenant, ordered in second appeal. (Paras. S, 6)
Maqbool Ahmad Khan for Appellant.
S. Abbas Zia for Respondent.
Date of hearing:
2-9-1979.
JUDGMENT
This Second Appeal is filed against the order dated 11-12-1973 of learned
Hnd
Additional District Judge, Larkana, where order dated 31-5-1972 of Rent
Controller granting ejectment u/s 13 of the West Pakistan Urban Rent Res triction Ordinance, 1959 has been set aside.
2. Brief facts giving rise to this appeal are that Haji Lai Bux appellant/ landlord purchased property bearing Survey No.
2456 and 2457 in Ward'B'
Larkana in the year 1962 from Settlement Department and at that time Mistri
Allahdad respondent/tenant was already in occupation of the premises com posed of residential bouse and tbe shop. The landlord served notice u/s 30 of the
Displaced Persons (Comp. and Rehab) Act 1958, whereby the respon dent became statutory tenant. Two Rent Cases No. 131/62 and 189/64 were 61ed by the landlord against the said tenant, which ended in compromise.
The presentment case, out of which this second appeal has arisen is filed in 1970 as Rent Case No.
66/1970 by the landlord for eviction of tenant on the grounds of requirement of premises for personal use and damage caused to the property. Daring the proceedings preliminary issue was framed whether notice u/s 30 of the Displaced
Persons Act was served or not on which the finding of
Rent Controller was negative against which appeal was filed befors the learned
District Judge, who passed consent order on 25-6-1971 by allowing the appeal and directed the Rent
Controller to decide remaining issues between the parties.
Consequently two issues were framed to the effect whether landlord required premises bonafidely for his personal use and whether tenant had impaired utility of the premises. Evidence was produced by the parties and ultimately the Rent Controller decided issue with regard to the persona) bona fide use of the premises in favour of the landlord ordered eviction. Second issue with regard to imparing the utility of premises, finding of the Rent Controller was that it was not proved. In appeal filed by the tenant, the learned Additional
District Judge reversed the finding of the Rene Controller on the issue of personal bonafide use of the premises and allowed the appeal. The second issue was not piesscd before the 1st Appellate Court. In this second appeal the point for determination is whether evidence produced by the parties has been misread as the findings of the two Courts below are in conflict with each other nn the question whether the premises are required bonafidely for personal use of the landlord.
3.
Appellant/landlord has stated in his application under section 13 of the
Ordinance that he has got a large family and requires premises in good faith and reasonably for his own use and occupation.
Landlord has examined him self and deposed before the Rent Controller that he resided at
Qambar along with his brother
Qadir Bux.
The accommodation for both these families is joint and consists of two houses both of which consist of two large rooms and ' one small room.
One of the large room is divided with common courtyard.
The area of one house is 160 sq. yds and the area of other house is only 60 sq.
yds.
He has further deposed that he and his wife have five sons and four daughters.
He has also a widowed sister living with him alongwith three daughters.
His eldest 'son is married and lives with him alongwith his three children and wife.
His brother Qadir
Bux lives in the same composite accom modation with his wife, two sons and six daughters.
His brother Qadir Bux and his family have separate cooking arrangement but the use of the accommoda tion is common because the houses are joint.
The landlord has further testi fied that he is living with extreme difficuly and in such congested atmosphere that in summer some of the inmates of the house sleep in verandah and others on terrace.
If a guest comes he is made to sleep outside the house. It is further stated by the landlord that due to this congestion the relations between this family and that of his brother have become less congenial.
The children often quarrel among themselves, in the result whereof his wife and that of his brother have ceased to speak with each other.
It is in these circum stances that he requires the premises in question bonafidely for his personal use and for the occupation of his children and other dependents.
He has also stated that he has no other house in
Qambar.
From the above narration taken from the evidence of the appellant it appears clearly that the cases of the landlord is of extreme difficulty.
The landlord is further supported by his witness Illahi
Bux s/o
Yar Muhammad who resides in the same neighbour hood and is the friend of the family.
He has fully supported the landlord about the hardship with which the landlord is confronted so far the residential accommodation is concerned.
The landlord has produced a number of 1 documents in his evidence, which are not relevant for the purpose of present discussion.
He has also produced
Permanent
Transfer
Deed and true copy of the extract of City
Survey record which are Exbts. No. 32, 33 and 34.
4.
As against this the case of the respondent/tenant is dental simpliciter in the written objeetions before the
Rent Controller.
He has further stated therein that the landlord resides in Qambar and attends to his business there does uot have a large family and further the application for ejectment hat been filed by him in order to enhance the suit. He has produced true copy of extract from C. S.
C.-4 Register which is Exb. 40 on the record. This document has been allowed to be produced with the consent of the parties. It shows that Ghulaia
Abbas is transferee of property No. 644/337 in Ward B.
Qambar which he has purchased on 21-5-1960 for a price of Its. 400/-. Ghulam
Abbas is son of appellant. It is asserted by respondent in his evidence before the trial Court that
Gbulam Abbas owns a house. The bouse mentioned above admittedly is not situate in Larkana and according to Exb. 40 is in occu pation of Suleman s/o
Gural. The respondent has not said ia his evidence if this house is in occupation of Gholam Abbas. Cross-examination of appel lant Haji Lai Bux is also very sketchy and does not throw doubt on the asser tion of the appellant that he needs the premises bonafidely for his own occu pation or occupation of his children. Questions have been suggested to the appellant in cross-examination that he has more than one house at Qambar which is denied by him. Appellant has admitted that he owns C.S. No. 1363 at Qambar which is not a bouse but is a cattle-pen where be tethers bis cattle and stores fire-wood. The suggestion made to the appellant that he had filed applications previously also against the tenant for enhancement of rent, has been denied and that the perusal of the documents available on the record shows that previous applications were also filed'for possession on the same ground. The respondent has not examined any other witness in support of his case. It would not be out of place to mention here that there is nothing adverse ia the cross-examination of witness Illahi Bux, who has supported
(the appellant to doubt his veracity. It is on the appraisal of this evidence that the learned Rent
Controller came to the conclusion that the premises in question are required by the landlord bonafidely for his personal use and occupation and that of bis children. The reasons given by the 1st Appellate
Court for setting aside the finding of the Rent Controller on this issue, are not supported by the record and are conjectural in nature.
The 1st Appellate
Court has observed in the judgment as under:
"The statement of respondent Haji Illahi
Bux did not give any indication that he bad any intention to shift from Qambar to Larkana. He made general remarks that the disputed property was bonafidely required for bis personal use and for the occupation of his children, wife and other dependents. He has not explained as to how he would keep his wife and children at Larkana while he himself was settled and doing business at Qambar. Similarly there is no indication that his son Ghulam Abbas had plans to settle down at Larkana. His son Ghulam Abbas is married man and is not dependent upon him, moreover said Ghulam Abbas also owns property in
Qambar Town. Similarly elder brother of respondent
Haji Lai Din is not dependent upon him and he is not bound to keep his brother and bis family with him. The disputed property is comprised of a house and attachad shop. The respondent did not utter a single word that why the shop is required by him." 5-
It is obvious that the 1st Appellate Court has been impressed by other extraneous considerations. The legal position with regard to subsection (3)
(a) of section 13 of the West Pakistan Urban Rent
Restriction Ordinance, 1959. tax is very clear and the law permits landlord to.
apply for ejectment of tenant from the premises in the case of a residential building if be requires the same in good faith for his own occupation or for the occupation of any of bis children provided be is not occupying any other residential building suit able for his needs at tbe time in the same urban area in which such building i» situated. It is very conspicuous that in the instant case both residential buildings are not situated in the same urban area as the
!a..dioid lives in
Qambar and the premises in dispute are situate in Larkana Secondly it is very clear that premises can be required by the landlord for bis own olx-ls ration or for the occupation of any of his children and the law does n
,e ;> Muhammad Amin Bsg v. fir Muhammad Khan (P L D 1966 Lahore page .%?) '! was uko contended on behalf of the appeilan; that there is nothing in 'be evidence to show that the rented premises are better than the premises in occupa tion o! the landlord, P.T.D. Exb 32 on the record shows ;hat house No 2456 a.riJ.2457 situate in Ward-B/Larkana h^d been transferred to >.ht nr?pondent but the area i? not mentioned. The relevant provision if :ht -.<:-.' f'-flinance does net require that the premises sought ( o fee ocxupieo :m^: - i.-^'.e: 'har the premises in occupation. The only requirement is thai the f^n^ -.ti.; is r:ci occu pying any residential building, .suitable for his needs at '.he .ime in :ne same urban area in which such building is situated. There is aranle evidence
n rhe record that not only the residential building in occupation oi '.he iandiord is not in the same urban area but also is utterly unsuitable for rm needs as such the landlord is justifiably entitled in the circumstances oi the case to require the premises in question in good faith for bis own occupation or for the occupation of any of his children. / -' 7. For the facts and reasons mentioned above, I find that there has been misreading of evidence by the 1st Appellate Court as such bis order is set aside and the order passed by the Rent Controller of eviction is restored. Respon dent/tenant is directed to hand over the vacant possession of the premises in question to the appellant/landlord within four months from now and be would also pay the rent for this period to the landlord. Appeal is allowed with costs.
P L J 1980 Karachi 46
P L J 1980 Karachi 46 sajjad
A li shah, J
MOHAMMAD HAMJLDUDDIN versus
FEROZ AHMAD and Another
Second Appeal No. 268 of 1978 decided on 8-12-1979.
(i) W.P. Urban Rent Restriction Ordinance (VI of 1959)S. 13 (2)Eviction proceedingsPayment of rent in lump :um periodicallyContract of such lease contrary to provisions ofS. 13 (2)Evidence cannot be led in variation of terms and conditions of executed agreement of leaseBurden of proving that landlord himself adopted habit of collecting rent periodically by merely pro ducing a few receipts to that effect which could be at best: default condoned by landlord and not variation in terms and conditions of agreement to pay rent monthly.
(Paras.
5,7)
(ii)W.P.
Urban Rent
Restriction Ordinance (VI of 1959)S. 13Eviction proceedings
Basis
:
sublettingHeld that a person holding tenancy rights in his own name cannot assign them to a firm or a private limited company or hifamily members as that would amount to change in status of tenancy r>r sublet!
Atnjad Hussaln 101 Appellant.
Ismail Afunshi for Respondent:
Date of hearing :
2-12-1979.
JUDGMENT
This Second Appeal filed by appellant/tenant is direct? ! agan;,- ment dated 25-4-1978 of learned
Additional Distric' Judge Kara-.^r vh'-'n appeal filed against order of ejectment passed by learned Kei»r r- 4-9-1977 has been dismissed.
2.
Briefly stated facts giving rise to this appeal aie ihnt the <«o> respondents in this appeal who are brothers inter se, are joint ow;.. i ot propen> iituatc on plot
No. 21/GNS, Flyn Street Karachi, a portion of w
.h u rcr.rfw cii!
h appellant/tenant at monthly renr of
Rs.
- 29th
April, 1968 executed by the parties, ihe iitij ^-.tjigfa lights two conditions that monthly reut is payable on or
:j:q.'= lift!- of every calendar month in advance and the tenan 1 shall no; juhiet the
-r.'.ijs^-without written consent of the landlords.
Application
!or eifctra^ii:
audsr section 12
(2) of West
Pakistan
Urban Rent Restriction Ordinance 159 wafiled on 4th August, 1972 by the respondents before the
Rent
Contro.
PLJ 1980 Karachi 52 PLJ 1980 Karachi 52 abdul haybb kureshi, J ZAHOOR MUHAMMAD KURESHI ud 2 ounh versus SADRUDDIN Second Appeal No. 236 of 1978 decided on 18-10-1979. (i)W. P. UrtaRrat Restriction Ordinance (VI of 1959) -S. 13 and S. IS Eviction proceedings on basis of bona fide personal need Landlord sold property in question during pendency of second appeal Successor cannot utilize ground of 60110 fide personal need Parties agreed not to advance argu ments on the point. ( Para . S) (U) Civil Proceim Code (V of 1908) S. 100 Second appeal No. sanc tity attaches to concurrent finding of fact based on misreading or misrepresen tation of evidence. (Para. 12) (ill) W. P. Urbsus Rent Restriction Ordi«Mce (VI of 1959) S. 13 and S. 15 Eviction proceedings on basis 'of misutilization of premises Concurrent finding of Courts below that premises rented out for godown was being utilized for running factory Reid : Courts overlooked all material circum stances showing that premises in question was not rented out for godown Second appeal against orders of ejectment, accepted. (Paras. 11, 14) Nasir A. Zahid for Appellant. Afzal Nabt Kureshi and M. Slddiq Naxamani for Respondent. Date of hearing : 13-10-1979. JUDGMENT The present second appeal under section IS of the West Pakistan Rent Restriction Ordinance (hereinafter referred to as the Ordinance) has been filed by appellants Zahoor Muhammad Kureshi and his sons Abdul Haque and Abdul Latif to challenge concurrent orders of a Civil Judge and Rent Controller, Karachi and an Additional District Judge at Karachi, whereby the appellants have been ordered to be ejected froe premises on a portion of a plot bearing No. L. R, 6/17 in Kaka street off Lawrence Road, Karachi. For the purpose of convenience appellant Zahoor Muhammad Kureshi and his two sons are referred to as the 'tenants' whereas she respondent Burjorji J. Meer and Hotai K. Handerai are referred to as the 'landlords'. The landlords have during the pendency of this second appeal sold their right, interest and title in the plot in question to Sadruddin and a an application informing this Court about the change in the rights of the landlords, Sadruddin has been implcaded as the respondent in the amended memo of appeal presented on £6-9-1979. The said Sadruddin shall also for the purpose of convenience be referred to as the 'successor landlord' in this judgment. 2. I have heard Mr. Nasir Aslam Zihid for the appellants/tenants and Mr. Afzal Nabi Kureshi appearing along with Mr. Muhammad Siddiq Nizamani for the respondent/landlords. On the conclusion of the bearing of this case I had by a short order allowed the appeal with costs. The reasons for the said order are as follows : 3. The bri-f facts of the caie-arc that the landlords filed an application under section 13 of the Ordinance against Zahoor Mohammad Kureshi, one of the tenants for eviction. The grounds in support of application were that only a gpdown premises had been let out to the tenant Zaboor Muhammad who had in violation of the provisions of section 13 (2) (//) (b) of the Ordinance used the godown for running a factory where iron-pipes were fabricated. The other ground was that the landlords required the premises bona fide for their persona] use and occupation in connection with their own factory manufacturing aerated water for commercial consumption. In the written statement, tenant Zahoor Muhammad Kureshi set up a case that he was carrying on the business in the name of 'Lateef ^Industries' in which his two torn vere partners. Such partnership was a registered one and the application under section 13 of the Ordinance in its present form was not maintainable. It was further averred in the written statement that the premises had not been rented out as godown as was stated in the application under -section 13 of the Ordinance. He elaborated bis averment in paras 7 and 8 of the written statement by stating that the previous Hindu landlord bad permitted him to use the premises as a factory and he had spent a sum exceeding a lac of rupees to set up such manufacturing concern. It was further averred that the land lords Burjorji and another had purchased a plot only in 1964, whereas he had been using the premises for running a factory earlier than the purchase by the present landlords. 'In regard to the other ground for eviction, namely, that the premises were required by the landlords bona fide for their personal use and occupation the written statement stated that the landlords had mala fide intention and only wanted to create trouble and haras; the tenants. The following four issues were framed by the Civil Judge and Controller : (1) Whether the applicant requires in good faith the premises in dispute for stocking and storing raw and manufactured material and also for explanation of their Rugby Mineral Water Works ? (2) Whether the opponent is using the premises in dispute fojr purposes other than that for which it was issued out ? (3) Whether the ejectment application is bad for nonjoinder of necessary parties ? (4) Relief. 4. On behalf of the landlords Homi. K. Randerai entered the witness box and on behalf of the tenants evidence was furnished by Zahoor Mohammad, the tenant. The tenants also examined Asghar Ali. Liaquat Ali Shah, Shaikh Ahmad and Mohammad Abdul Qaudus. Several documents were,,produced by the parties to which reference would be made in the latter part of this judgment. 5. At the time of hearing of this second appeal Mr. Nasir Aslam Zahid and Mr. Afzal Nabi, the learned Advocates on either side, made a statement that on account of change in ownership they would nor advance any argu», ments on the issue whether the premises in question were famajfcfc require^ by the landlords. In fact, such argument would have been irrelevant in the changed state of circumstances in relation to eviction on the ground that_thc pr emisei was required by the landlord for his Twna fide use or occupation. ;round for eviction of a tenant by its very nature involves examination of the wna fldt uoderlying the demand of the landlord based onjbis necessity and that he landlord divesting himself of the property in question his successor cannot utilise such ground. Since both the parties had agreed not to advance any irgument on that point I would not be dealing with that point and would ecord a finding on the statement of the parties that to such extent the order
f ejectment of the tenants on such ground was not tenable. In regard to the remaining two issues namely, application of the premises to a use other than the use for which they were let out and non-maintainability of the application for reason of all the tenants not having been joined, arguments have been beard. Since I have arrived at the conclusion that the tenants have not put the premises to a use different from the use for which the premises had been let out. 1 have not thought it fit to consider the other issue arising out of non-joinder of the two other tenants, namely, the sons of Zaboor Muhammad Kumhi. 6. The Controller dealt with the issue of misutilization of the premises and disposed of the same by a bare five line passage which reads as foilows : "In this case there is no tenancy agreement but the rent receipt indicated that the premises in question was godown. The opponent admittedly is running factory in the premises. Thus it is clear that the premises are used in a way for which the premises were not let out." 7. The Additional District Judge did no better than the Controller except to write a little longer on the point. The appellate judgment in that regard reads as follows : "With regard to the second contention of the learned counsel it is admitted by the appellant No. 1 that the premises in question are .used as factory for manufacturing pipes etc. but the only evidence available on record are the rent receipt issued by the respondents/landlord to the appellant No. 1. Eahoor Mohammad from the year 1962 upto the filing of the present Rent Case which clearly show that the premises in question wers rented to the appellant No. 1 of Lafif Industries as godown. It is significant to note that the appellant never objected for years that the receipts were being issued by the respondents/landlord in respect the premises let out as godown and not as factory. Above all the appellant No. 1. clearly stated the . premises are used as factory manufacturing pipes etc. In this view of the matter there is no denying of the fact that the said premises are used as factory and not as godown admittedly for purposers other than for which they rented out to the appellant No. 1, thus rendering him liable to be ejected from the said premises on this ground. There is no other evidence in writing etc. between the parties to indicate to the contrary". B. It would seem that the only point which the Courts below have taken Sato consideration is the counter-foils of the rent receipts of the previous Hindu landlord as also the landlords Burjoji and another. Such rent receipts were produced by the landlords in evidence. The same bear numbers 601 to 613 in one book and No. 1 to (00 in the second book. The first book relates to the year 1962 viz. the time when the premises were owned by the previous Hindu landlord. Out of the 13 receipts 3 relate to the tenants. In one out of those 3 receipts, namely, No. 606 dated 19-9-1962, in the column entitled "house No." tb« word "godown" appears. In the reasoning two receipts in this book such word does not appear. From out of the second book the 14 counterfoils relate to the period preceding 1st June, 1963, viz. when the premises were owned by the previous Hindu '"sndlord, the premises in occupation of the tenant has not been retetred So as "godown". However, after the present landlords purchased the property from the previous Hindu owner the word "godown" appears after the name of 'Latif Industries", the firm owned by the tenant. In each one of the receipts whether issued by the previous Hindu landlord or the present landlords the name of the tenant is shown as Latif Industries, The word 'industry' in com mon parlance would in most cases mean a concern engaged in manufacture of goods out of raw material. Inspite of the word "godown" being used in some of the rent receipts I have no hesitation in stating that almost every industrial con cern needs to have a godown for the storage either of its material or manufactured goods. The mere fact of some out of the many receipts that have been produced showing the premises of the tenants as a godown is not conclusive proof that tba premisee were allowed only for use as a godown or that the premises used as in dustry had been permitted or not permitted. To that extent I am unable to a greeu with the process of reasoning adopted by the Courts below that by mere use of! the word 'godown' in some of the rent receipts it can be conclusively stated thad the tenants were mfsutrlizing the premises. If would also be profitable to examine the evidence from that angle. Tenant Zahoor Muhammad in his evidence has stated that in 1947 viz. 16 years before the purchase of the premises by the present landlords, be along with his uncle Rahimbux had started the business of marble and slate in partnership. This partnership was dissolved in 1950 and since April 1951, he is carrying on manufacture of pipes in the premises. It would seem that even manufacture of marble and slate would involve a process of manufacture and therefore between 1947 and (950, the tenant Zahoor Muhammad was carrying on an industry on the premises. Further in bis evidence Zahoor Muhammad has stated as follows :J , "In April 1951 I took the electric power for factory. We manufacture the pipes. KMC gave licence to me. I produce the KMC notice dated 3-7-1957 and 13-12-1957 (Ex. D-l/3 and D-l/4). I then made payment for licence. I produce the receipt dated 4-2-1958 (Ex. D-I/5). I got the licence. I produce the photo copy of the licence dated ^27-2-59 (Ex. JDI/6) Origina seen and returned. I pay Income Tax. I produce the certificate from Income Tax Office dated 7th August 1959 (Ex. D-l/7). I also produce the assessment order of Income Tax dated 8-4-59 (Ex. D 1/6). The Latif fac tory is run by electric power. I produce KESC receipt dt, 1953 for wiring (Ex. D-l/9). The meters were fixed in April 1951. I produce the Certificate from KESC that meter was installed on 25th April, 1951 (Ex. D-l/10)". 9. All the documents referred to in the above quoted passage from the evidence of Zahoor Muhammad are on the record and reception of such evi dence was not objected to. Each one of these documents indicates that the tenant was carrying on a factory on the premises. Ex. D-l/3 is a nonce from the Karachi Municipal Corporation to tenant Zahoor Mohammad which refers to a factory at plot No. 6/17 in Kaka street which was being run without a valid licence. Similarly, Ex. D-l/4 is also a letter from the said corporation to tenant Zahoor Mohammad in which the same unlicenced iron pipe manufactur ing workshop. Ex. D-l/5 is a receipt from the Karachi Municipal Corporation showing that tenant Zaboor Mohammad had paid licence fee for pipe manufac turing workshop for the years 1957-58. Ex. D-l/9 is a letter dated 13-9-1955 from Karachi Electric Supply Corp. to tenant Zahoor Mohomed asking him to deposit an amount for re-inforcing the. electric service connection. Ex. D-1/11 is a written statement filed by Homi RanderaV io a suit bearing No. 778/1970 of the Court of Vtb Civil Judge, 1st Class Karachi, instituted bp the landlords against him and Sadruddin, the present owner of the premises. -Hi p»ra 5 of this written sutemeot Homi Randerai hu clearly stated that the previous Hindu landlord had admitted tenant Zahoor Muhammad in the premises and "he (tenant Zahoor Mohammad)" started a pipe manufacturing industry under the name and style of Latif Industries as sole proprietor thereof. This admis sion would clearly indicate that such before the purchase of the premises by the landlords tenant Zahoor Mohammad was carrying on pipe manufacturing industry on the premises. Witnesses Aghar AH and Liaquat Shah have also supported tenant Zahoor Mohammad on the point that he had started the industry for manufacture of pipes in 1950 or 1951. On the other hand, Homi Renderai in his evidence has also clearly stated that tenant Zahoor Mohammad was using the premises as a factory for manufacture of pipes. Further, in his evidence, Homi Randerai has stated as follows : "it is not a fact that Zahoor Mohammad came in occupation of this por tion in 1947. He came in 1960. 1 know Latif Industries are using electric but I do not know whether it was sanctioned. It is correct that meter of Latif Industries is along with our meter at the outer gate. There was no ., power in Latif Industries before 1950. Still further in bis evidence Homi Randerai stated that Zahoor Mohomed tenant's area of 34x43 feet was being used for factory since 1945. 10. There is abundant evidence on the record to show that far earlier than 1963 when the landlords purchased the premises tenant Zahoor Mohomed was occupying a portion of the same and he had been carrying on the business of manufacture of pipes. If tenant Zahoor Mohomed had not been engaged in the process of manufacture of pipes there would hardly be an occasion for the Karachi Municipal Corporation giving a notice to him as early as in 1957 asking him to obtain licence for his industry. Apart from this there would hardly be necessity for the tenant to spend a substantial amount for obtaining electric power from the Karachi Electric Supply Corporation as early as in 1953. The landlord Homi Randerai has also stated in his evidence as follows :- "After I became landlord I did aot settle any terms of tenancy with the opponent. I did not know that what were the terms of tenancy between opponent and previous landlord. Till today I did not know what were the terms of tenancy between the opponent and the previous landlord." 11. On & consideration of all the material available on the record the con- elusion is inescapable that much before 1963 when the landlords purchased the premises tenant Zahoor Mohomed was occupying a portion of the same and utilized it for manufacture of pipes. In fact, Homi Randerai has clearly stated in his evidence that he did not even know what were the terms of tenancy (between tenant Zahoor Mohomed and the previous landlord. 11. The learned Advocate for the respondents/landlords has urged before me that while dealing with second appeals the High Court would not set aside or interfere with findings of fact recorded by the Courts below, more so, when such findinds are concurrent. I am afraid the purport of law enuntiated is very broad based. I am conscious that in second appeal under section 100 of the Code of Civil Procedure the High Court would always be slow to interfere with findings of fact but surely it cannot be laid down as a rule that regard less of the Courts below having misread the evidence or not having considered the relevant evidence on the record, the High Court would stand denuded of its powers to grant relief, I am fortified in that view by several judgments of the superior Courts in this country. In the case of Afsl. Bibi Jan v. Habib Khan and another (PLD 1975 S C 295) it was stated that there was ample authority for the purpose that no sanctity attaches even to concurrent finding of fact based oa misreading or misrepresentation of evidence, In the case of Federation of Pakistan v. Alt Ihsan (P-LD 1967 S C. 249), H.moodur Rehman J., (as he then was), considered the scope of interference on questions of fact. He referred to the cases of Bibhabati v. Ramendra Narayan (AIR 1947 PC 19) and Allen v. Chabee Warehouse Company (1887) 12 A. C. 101. Applying the principle in those cases his Lordship stated that the rule as to sanctity of concurrent findings of fact could be legitimately departed from when the finding is on the face of it against the evidence or so patently improb able or perverse that to accept it would amount to perpetuating a grave nais-i carriage of justice. In the case of Muhammad Afaar and seven others v. Allahl Ditto and thirteen others (1970 S C M R US) Hamoodur Rehmau, J., (as hej then was) stated the same principles in the following words : "It is true that in a second appeal a finding of fact cannot be reversed unless that finding is vitiated by a misreading of evidence or non-consi deration of material evidence. In the present case important material evidence had been ignored. The Courts below, the High Court had failed to take into account the entries in the revenue records which consistently showed the respondents as tenants and even mutated the names of the heirs of a tenant upon his death." 13. A learned Single Judge of the erstwhile High Court of Sind and Baluchistan in the case of R. Rashiduddin and 2 others v. Muhammad Habib and 2 others (PLD 1976 Kar. 142) also took the same view that the failure of the Courts below to examine such documents which disclosed material facts would always attract the jurisdiction of the High Court under section 100 of the Code of Civil Procedure. 14. It is not every concurrent finding of the Courts below that can escape scrutiny or interference by the High Court for the more reason that erroneous findings are not liable to correction by the High Courts. On the other hand, if erroneous finding has been recorded by misreading of the relevant evidence or non-consideration of the material facts, circumstances and documents avail able, it is patently the duty of the High Court to consider such impacts and omission and correct the mistakes so that the cause of justice i> advanced and not defeated, No doubt, such findings as could be justified on conside ration of ali the material on record would not be easily liable to interference. In the present case, I find that the Courts below have just picked out a word "gedown" as appeals in some of the receipts and even without applying their mind as to whether a godown may well imply the existence of a factory, a finding has been racordcd that the premises were being misutilized. A vast bulk of evidence, documentary and oral as well as some admission by the opposite party have been completely kept out of consideration by the Courts below. Indeed, on a reading of the judgments I cannot escape a feeling that the Courts below have overlooked all the material circumstances of the case, In a case of this nature the principle of slowness in interference by the High Court would not be attracted as thereby only injustice would result. In the result I allow this appeal with costs.
P L J 1980 Karachi 57 P L J 1980 Karachi 57 naimuddin, J M/c. KARSAZ CONSTRUCTION CO. Vsrsus DIRECTOR OF WORKS CHIEF ENGINEER J.M. No. 35 of 1978 decided on 7-4-1979. (I) Arbitration Act (X of 1940) S. 13 (b) and S. 14 (3)-Reference to Court by arbitrator of certain question of law for advice Question must be imminent in dispute whereof decision would help to make just award Court's opinion to be added to form part of award Question regarding jurisdiction of arbitra tor or existence of arbitration agreement cannot be referred under S. 13 (b) Word, "involved" in S. 13 (b) Interpretation : question of law must not be transcendental to override jurisdiction of Arbitrator AH facts on which ques tion of law depends must be submitted tD Court. (Paras. 3, 4) (ii) Arbitration Act (X of 1940) S. 13 (b) Reference under S. 10 (b). Arbi tration Act (IX of 1899) treated as under S. 13 (b) though reference was not in proper form vide R. 279, Sind Chief Court Rules (O.S.) Facts on which ques tions of law based, not stated by Arbitrator to enable Court to arrive at decision -^Question : if Arbitrator had jurisdiction to hear and decide matters placed before him in case one of parties may not agree Question held not "involved" in dispute Reference not maintainable hence rejected. (Paras. 2, 5) Zia Pervex for the Claimant. Sated A. Shaikh for Respondant. Date of hearing : 7-4-1979. JUDGMENT The petitioner who is the sole arbitrator appointed by the Federation of Pakistan in the dispute between the Federation and M/s Karsaz Construction Company by a letter dated 6-8-78, addressed to the Registrar of this Court seeks opinion of the Court under section 10(6) of Act IX of 1899, on the following questions : "(1) If the official arbitrator has the jurisdiction to decide and hear any matters placed before him concerning the contract even if one the parties may not agree to it. (2) Is the revised 'claim submitted by the plaintiff, time barred or not. Even if it was time barred, could it be admitted for reference before the arbitrator. (3) If the claim cD be admitted in reference for bearing even if one party does not agree to its reference to the official arbitrator. (4) If the contractor can submit a fresh claim and it will be considered valid even after he has submitted a certificate that he has no further claim concern^ thai contract agreement". 2. The Indian Arbitration Act, 1899 was based on the English Arbitration Act, 1899. (52 and 53 Viet., C. 49) and the same was replaced by the Arbitra tion Act, 1940. The learned Arbitrator has made this reference under section 10 (b) of the repealed Arbitration Act which reads as follows : "(10) The arbitrators or umpire acting tinder a submission shall, unless a different intention is expressed therein. (b) have power to state a special case for the opinion of the Court on any question of law involved ; and Clause (b) (ibid) has been re-enacted with some modification and additions ib the form of clause (b) of section 13 of the Arbitration Act, 1940 (hereinafter called the Act). It may be convenient to reproduce section 13(6) of the Act which it tr follows : "The arbitrator! or umpire shall unless a different intention is expressed in the agreement, have power to (6) State a special case for the opinion of the Court on a question of law involved, or state the award wholly of in part, in the form of a special case of such question for the opinion of the Court". Therefore, obviously the arbitrator has intended to make this reference under clause () of section 13 of the Act and 1 therefore, treat it as such. However, this reference is not in proper form. Although under the present Act no form is given in the Schedule to the Act for referring a special case, the High Court is authorised to make rules consistent with the Act as to the forms to be o&w! for the purpose of the Act. Rule 279 of the Original Side Rules of this Court prescribes the following form which it contained in Appendix 'A to the Rules: "Miscellaneous Application No. of 19 In the matter of the Arbitra tion Act, 1940, and an arbitration between A.B. of and C.D. of (2) In an arbitration under (Chapter III of IV) SUIT NO. or 19... A.B ..................................... Plaintiff versus C.D ......................... ..... ....... Defendant. In the matter of arbitration between the following special case is, pursuant to the provisions of section 13 (b) of the Arbitration Act. 1940, stated for the opinion of the Chief Court of Sind : (Here stated the facts concisely in numbered paragraphs). The questions of law for the opinion of the said Court are : First, whether ............ Secondly, whether ............ Dated the 19. (Signed ) Y ARBITRATOR If this was the only objection I would have entertained this reference and answered the questions raised therein but there are certain other objections which I would presently discuss. 3. It is welj settled that under section 13(fr> of the Act only questions of law involved in the dispute before the Arbitrator can be referred to the Court foi opinion. The question of law must be imminent in the dispute in the sense that it decision will help the arbitrator in making a true and just award and not transcendent. The question involved should be such that the arbitrator finds its difficult to decide it for himself and the decision when given in the opinion of the Court will help and assist him in making the award and not such that it would defeat his jurisdiction to make the award. Therefore, the question! whether, the arbitrator has jurisdiction or not cannot be the oc« which could) w said to be involved in dispute between the parties and which can be referred o the Court by the arbitrator for its opinion under section 13(6) of the Act, for section 14 (3) of the Act requires that the Court's opinion shall be added to and brm part of the award and if the opinion of the Court is that there is no arbitraion agreement at all or that the arbitrator has no jurisdiction to decide the dii-jute then thereafter no award can be made by the arbitrator and the arbitrator annot function. I may here refer to a decision by P.B. Mukharji, J in Clive Mills Ltd. Swatal Jain (A I R 1957 Cal. 694) wherein the learned Judge in paragraph 10 of the judgment made the following observations : "Therefore, question of law which go to the very root of the jurisdiction of the arbitrators themselves to sit as Arbitrators, to conduct the arbitration proceedings, and to make the award, cannot, in my opinion, be asked by the Arbitrators by the procedure of a statement of case under S. 13 (b) read with S. 14 (3) of the Arbitration Act, 1940. The true interpretation, then, of the word 'involved' in S. 13 (b) of Use Arbitration Act is that the questions of law must be imminent in the dispute in the sense that their decision will help the Arbitrators in making a true and just award and not transcendent. Transcendental questisns of law which transcend and override the jurisdiction of the Arbitrators to make the award do not in my opinion, come within the true interpretation, of the word 'involved' in S. 13 (b) read wilh S. 14 (3) of the Arbitration Act". 4. I am aware that contrary view has been taken by a Division Bench of Hyderabad High Court in Baldey Jagidishwarayya and others v. Kotagiri Tejalingam and others (AIR 1950 Hyd. p, 63). I may here reproduce the relevant observations : "Really para 11 of Sch. 2, Indian Civil P.C, or S. 550, Hyderabad Civil P.C. applies only when ths jurisdiction of th arbitrator is not in dispute or doubt; when it is in doubt or dispute the arbitrator is fully competent and indeed it is bis duty to refer the matter to the Court. Ratna Mudaliar v. Vijiaranga Mudaliar (A I R (13) 1926 Mad. 762 : (95 I.C. 581), Champsey Bhara and Co. v. Jivraj Balho Spinning and Weaving Co. Ltd. (A I R (10) 1923 P.C. 66 and p. 69 : 47 Bom. 578) and Kanhia Lalv. Narain Singh (31 I.C. 700) (A I R (2). 1915 Lah. 253) will show that when there is a dispute between the parties to arbitration regarding the jurisdiction of the arbitra tor, the ultimate authority to decide the question is the Court and there is nothing wrong in the Court coming to the help of the arbitrator with its advice and direction when he comes to the Court in a difficulty". But, firstly, this decision takes into consideration the provisions of paragraph II of the Second Schedule of the Code of Civil Procedure, 1908 which have been repealed by the Arbitration Act, 1940 and which provide that "upon any referjeDce by an order of the Court, the arbitrator or umpire may, with the leave 'of the Court state the award as to the whole or any part thereof in the form of a special case for the opinion of the Court, and the Court shall deliver its opinion tberton, and shall order, such opinion to be added to and to form part of the award. It is obvious that these provisions are not in par! materia with the provisions of section (b) of the Act, particularly, they do not contain the provisions for referring a question of\aw involved in she case for the opinion of the Court. Seccnciy, it appears to be based on general consideration of the provisions of the Civil Procedure Code relating to arbitration before their repeal as reflected by observations of! the learned Judge that when there is a dispute between parties 1980 KARSAZ CONSTRUCTION CO. V. DIRECTOR OF WORKS Kir. 61 to arbitration regarding the jurisdiction of the arbitrator the ultimate authority! to decide the question is the Court. Lastly the cases relied upon b> the learned! Judge have no bearing or direct bearing on the question under consideration. | In Ratna Afudaliar and another v. C. Viriaranga Mudaliar (Supra), the question under consideration was the status of four brothers and their interest in certain property and further question was the maintainability of the suit brought by two brothers against the remaining one after the death of one of them. No provisions of the Arbitration Act 1940 much less the provisions of section 13 (6) of the Act or even the provisions of paragraph 11 of the second Schedule to the Code of Civil Procedure came under consideration in this judgment. Obviously, reference to this case in the judgment is erroneous. In Shampsey Bhara and Co. v. Jivrai Halloo Spinning and Wearing Co. Ltd. (Supra) it was observed : "The question of whether an arbitrator acts within his jurisdiction is of course, for the Court to decide but whether the arbitrator acts within his jurisdiction or not depends solely upon the Clause of reference". No opinion of the Court wis sought in the above mentioned case by the arbit rator on the question whether he had jurisdiction or not to decide the dispute. A Court has jurisdiction to decide such a question not under S. 13 (b) of the Act but under other provisions of the Act. In Kanhia Lai v. Narain Singh (Supra) the Lahore High Court simply said that "Ground No. 6 (c) would be technically good ground for revision, if it really disclosed an irregularity, for it is concerned with the action of the lower Court, but we can see nothing objectionable in the Court's helping the arbitra tors with advice and orders when they came to it in a difficulty". From the judgment it is not clear as to what was the ground in respect of which the above quoted observation was made. But it is clear that these observations were not made on the relevant provisions of section 13 (b) of the Act. 5. Under section 13 (6) of the Act, the arbitrator has power to star special case for opinion of the Court on any question of law involved in th proceedings before him but in submitting a question of law under clause (6) o section 13 of the Act, the arbitrator must find affirmatively all facts on whicn thi question of law depends. (See North and South Western Junction Railway Company v. Assessment Committee of the Brendford Union (1888) 13 A.C. 592. Larringgav. Societe Franco-American. (1928) 92 L.J.K.B. 45, Fergusonv. Norman (1837) 4 Bing. (N.C.) 52). la the first mentioned case Lord Halsbury observed : "He must find what in his judgment the value is. All he can remit to any Court to assist him is a question of law, and he should state case affirmatively find the facts upon which the question of law depends. I am, there fore, of opinion, my Lords, that your Lordships should avoid establishing a precedent which has never, I believe, hitherto been adopted, namely, of giving directions to the arbitrator how he should arrive at the fact". Examined in the light of the above discussing so far as the first question is concerned it cannot be answered for it is not a question involved in the dispute before the arbitrator because an opinion expressed thereon cannot form part of the award. So far as questions Nos. 2, 3 and 4 are concerned the facts > which these questions are based have not been found and stated bythe learned arbitra tor Co enable the Couit to decide the question of law arising out of those findings of facts. These questions, therefore, cannot be answered. 6. For all these reasons I held that (hit reference is not maintainable. Accordingly it is rejected.
P L J 1980 Karachi 62 P L J 1980 Karachi 62 naimudoin, J MUHAMMAD SULAIMAN MALIK Versus ROYAL TRUST CORPN. OF CANADA and Otixn Suit No. 279 of 1978 decided on 20-12-1978. (I) CiTll Procedure Code (V of 1908)O. VRr. 10-A and 25Summons addressed through registered post at proper addressSummons not returned Presumption : summons have been received by defendant and service deemed to have been duly effectedS. 27, General Clauses Act (X of 1897). (Para. 3) (ii) Mnbammadan Law Sect Pakistani Muslim presumed to be Hanafi/ Sucni in absence of evidence to the contrary. (Para. 4) (iii) Conflict of LawsEstate of deceased domiciled in Karachi at time of deathSuccession, administration and distribution of estate to be governed by Muslim Law operative in Pakistan. (Para. 4) (it) MabsmmadaB Law Will, validity of Will in favour of an heir re quires ccrstnt cf all other heirs to be valid in LawBequest by will in favour of two heirs (daughters) after death of testatorNot ahd without consent of other heirs. / (Para. 4) S. ffasifuddin for Plain tiffs. Shahenshah Hussain for Defendant!. Date of hearing : 13-12-1978.
JUDGMENT This suit has been brought by the plaintiffs fcr the administration of the estate of their daughter Dr. Altaf Begum Shapero. The relevant facts may be briefly stated as under : It is the case of the plaintiffs as stated in the plaint that the plaintiff No. 1 is the father and plaintiff No. 2 is the mother and defendants Nos. 2 and 3 are the daughters of Dr. Altar? Begum Shapero who died in Karachi within the jurisdiction of this Court on 11-11-1977 when she was on a training flight on "CESSNA" a small aeroplane of Karachi Aero Club as an undertraining pilot during the night when the said plane fell dowu and crashed near the Karachi Airport. She was buried in PECHS graveyard which is exclusively meant for Muslims. Dr. Altaf Begum Shapero was a specialist Oblsatetrician and gynaecologist and lady surgeon in Liaquat National Ho.tpital, Karachi. She has been living in Karachi since 1973. Dr. Altaf Begum was married to Mr. G. D. Shapero but was divorced oa 2-5-1973. Out of said wedlock two daughters, defendants Nos. 2 and 3 were born. She had executed a will (Exb. P/9) on 18-6-1973 in favour of Royel Trust Corporation of Canada in respect of her movable and immovable pro perties and had also appointed by the same will her brother Muhammad Sultan Malik ad bis wife Ishtiaq Fatima Malik as the joint guard'ans of the persons of defendants Nos. 2 and 3. The will was executed in Swift Current Saakatchewan, Canada. The plaint further states that deceased left debts/securities/shares/insurance Policies and Traveller Cheques in Karachi, in several cities in the Province of Canada, in several cities in the United Kingdom, in Bridgetown, Barbadeon. West Indies, and in Singapore. Particulars of these properties have been given in the Schedule Exh. P/6, and the liabilities are shown in Exh. P/7. The plaintiffs have claimed shares in these assets including debts/ secu rities, shares, insurance policies, etc. in accordance with Sunni Hanafi Muslim ilj y jo dec e«ed was governed and have further claimed that the will dated 18-6-1973 is not valid and is not binding on the plaintiffs and as such the will is inoperative in law u T u e d ' feDdant No - 1 who were appointed as executors of the will (Exh.l f/V) by the deceased have not acknowledged the summons addressed to them! i Sis' £ r( n PC o ddre " throu « n registered post as required under Order The defendant No. I did not enter appearance in Court although they have clearly expressed their knowledge of the pendency of this suit in this Court in their letter (Exh. P/ll) dated 23-8-1978 addressed to Mr. S. Nasiruddin, the plaintiff s Advocate. This letter also gives their correct address on which addresd tne summons have been sent to them through post at several times which the defendant No. 1 have failed to acknowledge. Under section 27 of the General Clauses Act, 1897 summons sent by registered post would be deemed to be] sufficient service, if the envelope containing summons is addressed properly. Postal receipt No 182 dated 14-10-1978 (Exh. P/12) under wh.ch the summon. were sent to the defendant No. 1 has been produced. The summons have nol been returned Therefore, a presumption of law arises that the summons have been received by the defendant No. 1 and service on them is deemed to have Been duly effected and it has rightly been ordered, that the suit must proceed ex parte against the defendant No. 1. A date was fixed to give them a further ?u an j cc r J ! l ng wrilten statement on 25-11-1978 which was not availed of by the defendant No 1 The matter was therefore, fixed in Coart further pro ceedings on 5-12-1978. The defendants Nos. 2 and 3 have not denied the shares which the plaintiffs are entitled under Muslim Law of Inheritance according to Sunni Hanafi fccnool of Jurisprudence. However, they have also pleaded that under Muslim Law the deceased was competent to give away only 1/3 of her entire estate. , J b ? following issues are entitled by the Court on the suggestion with the consent of the learned counsel for the plaintiffs and defendants Nos. 2 and 3 :- (!) Whether Dr. Altaf Begum Shapero was a Sunni Hanafi Muslim and irsp, whether the law of the country of domicile at the time of her death win apply to the.administration of the estate of the deceased will dated 18-6-1973 is valid and binding on the Plain tiffs, if so, what is its effect ? (3) What law should apply to the administration of the estate opto the point of distribution ? (4) What are the total assets and liabilities left by Dr. Altaf Begum Shapero deceased in Pakistan or £x-Pakistan ? (5) What should be the shares of the plaintiffs and defendants Nos. 2 and 3 in the estate left by the deceased ? (6) Whether defendants Nos. 2 and 3 through their joint guardians are in control of Management of the properties left by the deceased ? (7) Are the defendants 1, 2 and 3 liable to render accounts as prayed by the plaintiffs ? (8) What should the decree be ? 4. Now, I proceed to consider the issue. issue No. /.That Dr. Altaf Begum Sbapero is shown as a Muslim in the application for admission to Canada dated 27-11-1976 (Exh. P/2). This applica tion bears her signature and the signatures on (Exb.P/2) and will (Exh. P/9) clearly show that both the signatures are of one and the same person. The comparison of the signatures is permissible under section 73 of the Evidence Act. She. according to the Death Certificate (Exh. P/4), is also shown as a Muslim and she was buried in P. H. C. H. S. Graveyard per (Exh. P/S) which i» exclusively meant for Muslims. It is stated in the plaint that deceased belonged to Hanafi Sect of Muslims. This is not denied by defendants Nos. 2 and 3 in their written statement. In fact, they have stated in the written statement that they are also Hanafi Muslims. Even otherwise, it is settled that in this country, in the absence of any evidence to the contrary, a Muslim is presumed to belong to the majority sect of Muslims which in Pakistan is the Sunni Hanafi Sect. Therefore, there cannot be any doubt in holding that the deceased was a Sunni Hanafi Muslim. Accordingly, I hold that she was domiciled in Karachi, Pakistan, and therfore tbe law of the country of domicile will apply and the estate of deceased will be administered and distributed in accordance with Sunni Hanafi Muslim Law in force in Pakistan. I am fortified in my views by the principles enunciated by Cheshire in hit book entitled "Private International Law, Vlth Edition", page 550" One of the cardinal rules of Private international Law, as we .shall see later, is that the movable property of a deceased person, so far as concerns either testate or intestate succession is regulated by the law of tbe country in which he died domiciled "I I Therefore, the succession to the estate of the deceased will be governed by I the Muslim Law in force and operative in Pakistan. Issue No. 2 The wiil dated 18-6-73 (Exh. P/9) is invalid and not binding on the plaintiffs and inoperative in law inasmuch as it has been made in favour of Sina Yasrnin Sbapero and Muna Rochello Sbapero who are daughters of and heirs to, Dr. Altaf Begum Sbapero deceased who has executed the said will. The Muslim Law is very clear on this point which lays down that no'bequest by will can without the consent of other heirs after the death of the testator be made to an heir. See Article 117, p, 123 of Afulla's Principles of Moham medan Lew by M. Hidayatullah, former Chief Justice of India (7th Edition^ It lays down : "Bequests to heir. "A bequest to an heir is not valid unless the other heirs cement to tbe bequest after the death of testator". The principle bas been upheld by tbe Supreme Court of Pakistan in Ihsan llahiv. Hakam Jan (P L p 1967 SC 200). The Supreme Court of Pakistan, speaking through, Cornelius C. J. has observed at page 211. "A will in favour of an heir requires tbe consent of all the other heirs to be valid in Muslim Law, and here no content is shown." ln the present case also the will dated 18-6-73 (Exh. P/9) has been made in favour of heirs and tbe Plaintiffs, as other heirs, have not given their consent Jio the will (Exh. P/9). after the death of the testator. The will (Exb. P/9) is therefore, invalid, inoperative in law and not binding on the plaintiffs and | therefore it has to be completely ignored from consideration for purposes of | administration of the deceased. 5. Issue No. 3. What law would apply to the administration of the estate of the deceased upto the point of distribution, I would, in this connection, refer to rule 92 from Dicey and Morris on "the Conflict of Laws" fcth Edition which reads as follows : "Rule 92. The administration of deceased person's assets is governed wholly by the law of the country from which the personal representative derives his authority to collect them." The learned authors ia support of the rules have placed reliance on Preston . Melville ( 1841) 8 Cl. & F 11 Re : Loobo [( 1884) 28 Ch. D. 175 ], Lorillard [(1922)2 Ch. 638 (C A)] Charran v. Montreal Trust Co. [(1959) 15 D L R 240 ]. However, the above rule is to be read in conjunction with the provisions of rule 93 mentioned !n the aforesaid book which read as follows : 'Rule 93. A grant of representation or other authority to represent a deceased person under the law of a foreign country has no operation in England . Provided that (1) The foreign personal representative of a person who died domiciled out of the United Kingdom may recover money payable in England in respect of policy of life insurance effected by the deceased ; (2) A person who has a grant of representation or otherwise has authority to represent a deceased person under the law of a foreign country wher the deceased died domiciled may apply to the Court for an order for the transfer to him of the net balance of assets under the English administration but is not entitled as of right to such an order : (3) A foreign personal representative has a good title in England to any movables of the deceased (whether tangible, i. e., goods, or intangible, chosen in action) to which he has in a foreign country acquired a goad title under the lex sites and reduced its possession." Issue No. 4. The plaintiffs have filed a schedule of liabilities which is marked as Exh P/7 and also schedule containing the details of the agents left by the deceased Dr. Altaf Begum Shapero in Pakistan, Canada, United King dom, Singapore and West Indies. This schedule is marked as Exh. P/6 and is reproduced herein below in full. The defendants Nos. 2 and 3 have not challenged \he same. However, it will be open to the administrator to find out what agents the deceased has left and what properties are incumbered as per direction given hereinafter. PAKISTAN S. No. Name of Debtors Amount of debts Description and date of Instru ment if any by which the debt is secured 1. Habib Bank Ltd. 36,813.27 F/DA/C No. 5761-4 Balance as on C. C. B. Branch Saddar, 26-12-77 in the name of Dr. A. B. Karachi. Sbapero. 72 Kar. muhammad sulaiuan malic v. boyal trust corfm. P.L.J. be administered. The plaintiffs and defendants shall be entitled to the net assets in the following shares : Plaintiff No. 1. 1/6 share. Plaintiff No. 2. 1/6 share. Defendant No 2. 1/3 share. Defendant No. 3. 1/3 share. (2) That costs of the suit may be divided among plaintiffs and defendants Nos. 2 and 3 according to their respective shares. (3) It is further .ordered that Mr. Akhtar Hussain Advocate of 108, Chaudhttry Chambers. r. Ziauddin Ahmed Road, Karachi is hereby appointed as Administrator to administer the estate of Dr. Altaf Begum Shapero (either directly or through big duly constituted attorney or attorneys) situated within as well as outside Pakistan. (4) That it is ordered that the following accounts and enquiries be taken and made, that is to say : (/) an account of funeral and testamentary expenses. {//) An account of movable properties of the deceased which have come to the hands of the joint guardian of defendants No. 2 and 3, or to the hands of any other person by her order or for her use. {ill) That the said administrator or duly constituted attorney or attorneys receive and recover all outstanding debts, securities, shares, insurance policies, travellers cheques and all other outstanding movable properties of the deceased and maintain .an account of all the assets and submit statement of assets, income'and liabilities, if any, into the Court after every six months till the two minors attain majority. (j'v) It is further ordered that further enquiry be made and account taken, that is to say : (0) An inquiry what immovable property the deceased vat seized of, or entitled to, at the time of her death. (b) An enquiry what are the incumbrances (if any) effecting the im movable property of the decased or any part, thereof. (c) An account so far as possible of what is due to the several incum- , brancers and to include a statement of properties of such of the incumbrancers as shall consent to the sale hereinafter directed. (5) And that immovable properties of the deceased or so much thereof as shall be necessary to make up the fund in the Court sufficient to carry out the object of the suit be sold with the approval of the Judge free from incumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent. (6) And it is ordered that the said administrator shall have the conduct of the sale of the immovable properties and shall prepare the conditions and contract of sale subject to the approval of the High Court of Sind at Karachi Pakistan and that, in case any doubt or difficulty shall arise, the matters shall be submitted to the Judge to settle. (7) And it is further ordered that for the purposes of the enquiries here inbefore directed the said Administrator will advertise in the newspapers according to'the practice of the Court, or shall make such inquiries in any other way which shall appear to him to give the most useful publicity to uch inquiries. The said administrator shall take all necessary steps to apply for and obtain ancillary administrators of the estate of the deceased in such foreign jurisdictions in which the said estate, or part thereof may be locally situate, and further to take all such steps as may be necessary to take possession of the whole of the deceased's estate. (8) That the administrator shall determine the extent and value of the properties of the estate of the deceased at the time of her death within and outside Pakistan. (9) And the said administrator may appoint the attorney and attorneys delegating such powers as are necessary for the administration and manage ment of the estates left by the deceased in the Provinces in Canada ».nd United Kingdom and/or to apply to the competent authorities or Courts for appointment of Administrator-General or such other officer or authority as the laws of those countries require. (10) That the said administrator shall, unless otherwise directed by the Court, bring within Pakistan all the deceased's foreign assets oe the pro ceeds thereof as may come into their hands and further shall be empowered, subject to the orders of this Cour.t to be given from time to time, to sell, dispose of or transfer, convert or exchange the deceased's movable and im movable properties (if any) of part thereof. (11) That the said administrator shall also be receiver in the suit and receive and get all outstanding debts, outstanding movable properties and .proceeds thereof, of the deceased and pay the same into an account to be v opened in the American Express or First National City Bank of America, I. I. Chundrigar Road, Karachi, and the statements of accounts will be submitted into the Court after every six months. He or his duly constituted attorney or attorneys shall perform all such functions and duties as are performably by the receiver or nominee of this Court under the preliminary decree according to form 17 of Appendix'D" to the First Schedule of Code of Civil Procedure. (12) And it is ordered that the above inquiries and accounts be made and taken and that all other acts ordered to be done and completed, within six months and the said Administrator do certify the result of the inquiries and accounts and that all other acts ordered to be done are completed before the lit day of July 1972 and that the said Administrator do certify the result of the inquiries and the accounts and all other acts ordered are completed and have his certificate in that behalf ready for the inspection of the parties on the first day of July, 1979. And lastly, it is ordered that this suit stands adjourned for making final decree after the 1st day of July, 1979. 7. Mr. Akhtar Hussain Advocate has bsen appointed as Administrator and -the above directions are given with the consent of the learned counsel for the plaintiffs and defendants Mos. 2 and 3.
PL J 1980 Karachi 73 PL J 1980 Karachi 73 muhammad zahoorul haq, J JAMIL SILK INDUSTRIES. Karachi versus SIND LABOUR COURT No. V and 2 Othew Constitutional Petition No. 16 of 1976 decided on 24-12-1978. Industrial Relations Ordinance (XXIH of 1969)-S. 25-A and S. 1Queitioa of factContention of employer that he never employed more than twenty workers during preceding twelve monthsBurden of proof lay upon employer who did not discharge by advancing positive proof except bv mere assertion in replyDecision of Labour Courts having jurisdiction to decide not interfered with under Art. 199, Constitution of Pakistan (1973). (Paras. S, 6) N. I. Mehdl for Petitioner. Skahenshah Hussain for Respondent. Date of tearing : 24-12-1978. JUDGMENT This is a petition filed by Jamil Silk Industries against the order! passed by Junior Labour Court No. 2, Karachi on 27-2-1975. By this order it was held that the termination of the services of the respondent was illegal. 2. The facts leading to this petition are that the services of respondent No. 3 Qurban Hussain were terminated by the petitioner and thereupon, the res pondent No. 3 submitted an application under section 25-A of Industrial Relations Ordinance, 1969 before Junior Labour Court on 24-10-1974. The said application was beard jointly with the application of Manzoor Hussain another employee of the petitioner whose case is not before me now. The case of the applicant in the Junior Labour Court was that they were permanent employees of the petitioner and on their raising different demands from the petitioner, the petitioner stopped them at the gate w.e.f. 7-9-1974. Manzoor Husssin and Qurban Hussain were brothers. The allegation was that this gate stopping was on account of their Trade Union activities. 3. The petitioner denied the allegation of the applicants and alleged that Mauzoor Hussain bad started to slow down production and be bad left the premises voluntarily on 6-9-1974 and did not return. The petitioner also con tended that they were not having more tba'n 20 persons working for them. The affidavits were filed before the Junior Labour Court and the deponents who had filed affidavits were cross-examined by the other side. The Junior Labour Ccurt onsidered the evidence produced before it and after considering the said evidence and also relying upon the non-production of any register by the petitioner, it came to the conclusion that the petitioner was employing more han 20 persons, and aiso came to the conclusion that the applicant before it had been victimised. It therefore ordered the re-iostatement of both Manzoor Hussaic and Qarban Hussain. 4. Tbe petitioner went in appeal before the Labour Court but the order was sustained and the appeal was dismissed. 5. Tbe learned counsel for the petitioner Mr. N.I. Mehdi has attacked the order as being without lawful authority as the case was not covered by the pro visions of I. L R. O. because the petitioner had not 20 or more persons working wit it.. i em however of the view that the question whether 20 or more persons were employed in the factory of the petitioner was a question of fact and could cot be sgitatcd before me unless the said finding was based on no evidence at ail. I however find that both the Courts below have taken into consideration the various factors and circumstances and thereafter have reached a conclusion that the petitioner was having more loan 20 persons, therefore it could not be aid that the finding it vitiated as being baseless. 6. The Junior Labour Court has taken into consideration, the number of looms beingworked by th petitioner and taeir failure to produce the register to show tbt number of worker. It has alto considered the proceeding pending faioit the petitioner under the Factories Act, and the factum that the petitioner did not issue Appointment Letter, Identity Card, Holidays Books, Service Books and Attendance Card to their Workmen. And on the basis of considera tions of these factories the number of workers was established to be 21, The Labour Court has come to the conclusion that the petitioner had taken the plea that they had never employed more than 20 persons during the preceding 12 months but they have not substantiated this contention and had not produced any proof in support of .the same and even a suggestion to that effect was not made in the cross-examination of the respondent. The Appellate Labour Court had rightly held that the burden of proof that petitioner employed less than 20 workers was on the petitioner and they bad failed to discharge that burden. In fact the petitioner should have advanced positive proof of the fact that number of their workers was less than 20 but made no effort in this regard and made a bare assertion in their reply which could not take the place of proof. 7; I am, therefore, of the view, that this is not a case where the finding is vitiated without being based on any evidence at all. The Junior Labour Court was the Court of facts and it has determined the number of workers on the basis of some evidence before it. Since it had the power to decide, It had the power to decide rightly or wrongly and no illegality has been committed by the Junior Labour Court in respect of this finding. Similarly the Appellate Court bad proceeded on the basis of correct principles and therefore, 1 do not find any substance in this petition. It is therefore dismissed with costs.
P L J 1980 Karachi 75 P L J 1980 Karachi 75 muhammad zahoorul haq, J MUHAMMAD IRSHAD versus BIND LABOUR COURT No. IV, KmchI wd AMtSMr Constitutional Petition No. 1169 of 1975 decided on 24-1-1979. Mortrial ReUtioat Ordinance (XXIII of 1969)S. 25-A (1)Grievance notice HeU: valid even if given to employer through AdvocateBipression, "to the notice of his employer in writing either himself or through his shop steward or Collective Bargaining Agent" -Htld: word, "himself" in the expression includes attorney or legal attorney. . (Para. 3) Shahtnshah Hussain for Petitioner. Abdut Samad for Respondents. Date of hearing : 17-1-1979. JUDGMENT In this petition only point involved a whether a grievance notice under section 25-A of Industrial Relations Ordinance of 1969 given by the petitioner to his employer respondent No. 2 through an Advocate of the. petitioner is valid in law. The Junior Labour Court had treated said notice as a valid notice .and bad ordered the re-intratement of the petitioner after considering the merits of the case. The Labour Court however on eppeal took a different view and allowed the appeal of respondent No. 2 on 23-8-1975 on the preliminary point that grievance notice through an Advocate is not a grievance notice under 2. The matter has been argued by the learned counsel Mr< Shanenshah Hussain for the petitioner and Mr. Abdul Samad for the respondent No. 2. The relevant provision of law to be interpreted is section 2S-A (1) which is reproduced hereunder : "25-A. Redress of individual grievances. (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his mpioyer in writing, either himself or through his shop steward or the Collective Bargaining Agent, within three months of the day on. which cause of such grievance arises." Mr. Shahensbah Hussain relied upon P L D 1975 Karachi 312 where Mr. Justice Abdul Hayee Kureshi after considering the provision of section 25-A (1) has come to the conclusion that the notice through an Advocate is valid in law. He also relied upon Halsbury's Laws of England, Secoud Edition, Vol. I, p. 141. where general proposition of law has been stated to be that whatever a person has power to do himself he may do so by means of aa agent. He has also relied upon Broom's Legal Maxims, 10th Edn., p. 558 where the Maxim stated is "He who does an act through another is deemed in law to do it himself". On the other hand Mr. Abdul Samad the learned counsel for the respondent has placed reliance on 197S P L C 546 where Mr. Justice K. B. Marri had taken a different view from Mr. Justice Abdul Hayee Kuresbi and has come to the conclusion that the use of the word "himself" requires that the notice should be given by the workmen himself and not through his Advocate. Mr. Abdul Samad has also relied upon A J R 1956 S. C. 604 (para. 4), where the Indian Supreme Court while interpreting use of word "personally" in rule 6 of the Indian Income-tax Act, 1922 held that it requires the application to be signed by the partner in person and not by another partner. But the words "personally" are much more indicative of the person concerned than the word "himself" Mr. Samad has also relied upon the meaning of the word himself given in Shorter Oxford Dictionary p. 902 which says that the word 'himself shows 'emphatic use and means 'very Him', 'very He', and thai 'very Man', etc. 3. After having gone through these judgments and various dictionaries, I agree with the view of Mr. Justice Abdul Hayee Kureshi in P. L. D. 1975 Kar. 312. My reasoning is however a bit different and I think that the words in section 25-A (1) should be construed as they are found in this subsection without recourse to the impediments found against representation of workman 3y lawyers. The important words in {his subsection are "the worker may sring his grievance to the notice of his employer in writing, either timself or through his shop steward or Collective Bargaining Agent ". I feet that the words "either himself" has not been used in this subsection to luggest in any emphatic manner the very personality of the worker himself, but they have been used for the purpose of comparison with the other words or through bis shop steward" "or Collective Bargaining Agent". The Legis lature in its wisdom allowed the workmen to be represented by a shop steward or an Collective Bargaining Agent although they may not have been specially appointed as attorney by the workmen. But the Legislature did not want that workman should lose the right of sending a petition himself, therefore this word 'himself had been used in order to" emphasise the position that the worker can also move the petition himself. To me it does not seem that the common right of acting through an agent is being denied to a workman by the use of tjie word himself. On the other band I feel that since outsiders like Collective Bargaining Atcnt and shoo steward are beine allowed to reoresent a workman, the Legislature did not intend to deprive a workman of moving a grievance petition through an attorney of his own choice. Therefore the word 'himself, should be construed liberally and in a beneficial manner to allow the representation through an attorney. We should not allow pur minds to be prejudiced by the exclusion of lawyers provided in section 49 in respect of conciliation proceeding as they are completely different proceedings and even in conciliation proceedings a workman can be represented by any attorney if he is not a legal practitioner because the bar provided is only against representation of a workman by a legal practitioner only. Moreover if representation by a lawyer in sending a grievance notice was to be forbidden then the Legislature would have provided that bar specifically and not by implication. Since I have come to the conclusion that the notice by the attorney is not excluded by the use of word 'himself then the logical conclusion would be that if the worker can act in respect of sending a grievance notice througn an ordinary attorney, it does not stand to reason that he should be deprived from acting through a legal attorney. In this view pf the matter I am of the view that the word 'himself' in section 25A (1) of Industrial Relations Ordinance of 1969 does not prohibit the sending of grievance notice by a workman through a lawyer. 4. The result is that the appeal has not been correctly decided by the Labour Court. The order of the Labour Court dated 23-8-1975 ts therefore set aside and the case is remanded back to the Labour Court, for decision of the appeal on merits. Since there was conflict of decisions of this Court, there will be therefore no order as to costs.
P L J 1980 Karachi 84 P L J 1980 Karachi 84 !. M AH MUD AND MURAMUAD ZAHOORUL HAQ, JJ MUHAMMAD ISSA versus BOARD OF REVENUE, West Pakistan and 2 Otkcn L.P.A. No. 101 of 1969 decided on 8-11-1978. Pakistan (Administration of Evaeeee Property) Ordinaace $tV of 1949) S. 16, S. 17 (as amended by Act VI of 1951), Ss. 23-A and 34 (3j-Sale (oral) effected in 1942, held, not affected by any provisions of Evacuee laws passed as Ordinance XVIII of 194S or Ordinance XII of 1957Mutations creating or transferring any right in contravention of Ss. 16/23-A restricted by S. 17 (as amended)Sale effected in 1942, mutation effected in 1947Approval from custodian not required as matter not covered by S. 34 (3)WJut caaaot bi done directly caaoot be allowed to be dose indirectlyProperty in t«M not allowed to be treated evacuee property indirectly. (Para. t»t, W Saetduzzaman Slddiqui for Appellant. Muhammad Usmaa for Respondent No. 3. Date of hearing : 8-11 -1978. JUDGMENT Muhammad Zahoorul Haq, /.This is a Letters Patent Appeal arising from the judgment dated 14-4-1969 passed by Single Judge of the then High Court of West Pakistan (Karachi Bench) in Petition No. 52/1969. 2. The facts in this case are that the appeffent had purchased a plot of land with structures bearing No. 94-A in Jhudo Town Taluka Degree, District Tharparkar, measuring 2,574 Sq. Ft. from one Bishan Singh on 24-2-1942 for » turn of Rs. 1,983 by oral sale. The price of the plot with construction there on being Rs. 1,800 was paid at that time by the appellant to Bishan Singh and Rs. 183 towards the price of iron girders and teairon lying on the plot was paid on 19-9-1947 whee Bishan Siagh appeared before the Mukhtiarkar Degree to make « statement for mutation of the plot in favour of the appellant. The appellant is alleged to have secured the possession of the plot on 24-2-1942. On 14th May, 1953, the appellant was granted by the Revenue Authorities »n extended piece of land contiguous to this plot which was described as "Mohag 94-A". This was granted by the Mukhtiarkar Degree. The appellant alleged that he had let out a shop premises situated on the above Plot No. 94-A to respondent No. 3 on a rent of Rs, 12 per month, but the respondent No. 3 had filed an application before the Deputy Claims Commissionerr, Mirpurkhas aad by showing that the shop in his possession corresponded to Custodian Nos. A/387/1, 2 and A/388 and 389 which Custodian numbers belonged to evacuee Sant Tara Singh, the respondent No. 3 secured the transfer of -this shop. For the above three custodian numbers the relevant revenue number of the plot is described to be 93. On coming to know of this position, the appellant moved the Settlement Authorities for cancellation of the transfer made in favour of the respondent No. 3. However eventually the Additional Settlement Commissioner, Hyderabad Division made the fallowing order : "The property under dispute if situated in Revenue No. 93 as decided by me already which is an evacuee property and transferred to the respondent alongwiih D. S mentioned by the Lower Court, the transfer stands good failing its situation on non-evacuee property which is 94-A, if at all booevacuee as alleged, subject to demarcation made by the Revenue Authorities, the same be cancelled as non-evacuee properties cannot be transferred under any of the Settlement Schemes." With these observations, the appeal of Muhammad Shafiq, the coysio of the present appellant filed against the respondent No. 3 was dismissed. Meanwhile, Muhammad Shafiq, the cousin of the appellant had already moved an application on 6th May, 1966 before the Revenue Authorities for demarcation of Plot No. 94-A. Similar application for demarcation of Plot No. 93 was moved on 5-7-1966 by the respondent No. 3 before same authority viz. Deputy Collector of Mirpurkhas. These two applications were heard together by the said Deputy Collector and relying on old correspondence of 1937 submitted by Mukhtiarkar Degree which contained an old sketch of itK Piot No. 94 A, the said Deputy Collector decided on 6-12-1966. ttet Piol No. 94A was, located on toe western side of Plot No. 94. at the place where ii is claimed by Muhammad Shafiq as shown in ibe map obtained from the recorc of the Tapedar Jiiudo. Respondeat No. 3, filed 8 review application in respect of this order but this was also dismissed on 22-6-1967. 4. The respondent No. 3, filed an application before the Deputy Collector, Mirpurkbas for cancellation of mutation made in favour of the present appell ant on 19-9-1947, in respect of Plot No. 94-A of Jhudo Town. The same was heard separately and was dismissed on 30-11-1967. The Deputy Collector observed that the application was filed about 20 years after mutation. He held that mutation bad been rightly made in 1947 as possession of Muhammad Issa over the land in question had. remained undisputed for such a long time and the governing factor in Record of Rights in possession and not title and it was not feasible io disturb the present arrangement after lapse of 20 years. Respondent No. 3 filed appeals against the said two orders dated 6-12-1966, and 30-11-1967, before the Deputy Commissioner, Tharparkar who heard the parties at length and held on 5-2-1968 that Plot 94-A is situated adjacent to aod in east of Plot No. 94 in Jhudo Town. He further held that the conten tion of Yaqoob AH that Plot No. 93 purchased by him from the Settlement Aotboritjes is situated at place where Plot No, 94-A exists is oot correct at Yaqoob AH had failed to produce any documentary proof in support of his version. He further held that register of plot of Jhudo Town shows that Plots , Nos. 80 to 93 are missing. Ultimately the Deputy Commissioner fouod that Plot No. 94-A has properly been located by Deputy Collector, Mirpurkbas. The Deputy Commissioner, Tharparkar proceeded further and examined the question of correction of Entry No. 54 of T. F. I! ia favour of Muhammad Bssa eon of Muhammad Yaqoob, the present appellant on 19-9-1947 by the Maknfiarkar, Digri. The Deputy Commissioner held that the action taken by Mukhtiarkar is illegal as ao Revenue Officer wag competent to sanction any mutation of names in respect of any evacuee property on or after 3-1-1947 unlesf the parties presenting the documents produced a certificate from the Custodian that the property is sot evacuee property. Ht accordingly set aside the correction mace by Mukhtiarkar in favour of the present appellant. 5. The appellant moved the Additional Commissioner, Hyderabad Division in revision against iast part of order of Deputy Commissioner, Tharparkar dated 5-2-1968. The Additional Commissioner heard the parties and held 01 25-7-1968. that sale in favour of the appellant had taken place in 1942, and statement made by Bishan Singh was good evidence to prove the year of the sale of the plot, and therefore, it was improper and wrong to insist upon a certificate from the Custodian. Consequently, the order of the Deputy Com missioner was set aside to the extent of cancellation of mutation in favour of present appellant. The respondent No. 3, thereafter moved the Member, Board of Revenue, West Pakistan in second revision and he by order dated 9th November, 1968 held that sines the statement of Bishan Singh was made on 19-9-1947. Ordi nance XV1SI of 1947 restricted such transfer after 1-3-1947, and that mutaiion could not be made as the transaction of immovable property worth more than Rs. 100 was necessarily to be registered in this area. In view of this, be held, that the mutation sanctioned by the Mukhtiarkar in favour of the respondent (ttte present appellant) cannot be allowed to stand and is therefore cancelled. Aggrieved against the said order, the appellant moved Petition No. 52 of 1969 before the High Court and the same was dismissed after hearing on 14-4-1969. The respondents fss the petition were not present before the learned Single Judge. The learned Single Judge based his judgment upon subsection (3), of section 34 of C dinance XV of 1949, 6. Aggrieved against the said order, the appellant filed the present Letters Patent Appeal. We have heard Mr. Saeeduzzamao Siddiqui for the appellant and Mr. Muhammad Usman for the respondent No. 3. Other respondents were served but did not defend the appeal. Mr. Saeeduzzaman Siddiqui learned counsel for the appellant contended (i) that the transaction of sale was completed in 1942, and was therefore not covered by any of the provision of the evacuee laws. In any case, he contends (tf) that there was no restriction on mutations till 21-4-1951 and hence mutation made on 19 9-1947 was not affected by the mischief of evacuee laws. He also contended (iff) that since Plot 94-A had never been treated as an evacuee pro perty before 1-1-1957, it could not be treated as such thereafter in view of section 3(1) of Act XII of 1957, which was a complete bar to tuch treatment. He also contended (/v) that the question o'f determination of status of evacuee property was within exclusive domain of the Custodian and no other authority could deal with such question. And that what could not be done directly could not be done indirectly. He also contended (v) that Standing Order No. 17 issued by the Revenue Commissioner of Sind on 6-9-1921 and contained in the volume of Standing Orders published under the authorities to effect mutation of names in revenue records on the basis of oral sales and hence members Board of Revenue took a wrong view. Lastly he contended that (v/) the learned Single Judge did not apply the law correctly when be relied upon subsection (3) of section 34 of Ordinance XV of 1949, in rejecting the petition. Mr. Usman, learned counsel for respondent No. 3, on the other hand has contended 'that (/) cancellation of mutation was justified under the circum stances as mutation effected on 19-9-1947 amounted to, a transfer of evacuee property. He also contended (/|) that transfer of property Act, is applicable to Sind and hence oral sale could not be the basis of mutation. Lastly be contended (<//) that Circular No. 17 issued by Ibe Raveaw Commissioner was not applicable in respect of this case as it p^miAed to Und and not urban property. 7. We find that there is substance ia the contention raised by Mr. Saeeduz Zaman Siddiqui Advocate. The transaction in question was an oral sale which was completed in the year 1942 and the entire consideration for ihe sale was paid to Bishan Singh in the year 1942 and Bishan Singh had also handed over possession of the plot in question with its structure to the appellant in the year 1942. Therefore, the sale was actually completed in the year 1942 and at this stage we are not very much concerned as to whether there was a defect in the sale so effected or not. It seems that oral sales have been allowed in this part of the country in respect of properties which were dealt with by the Revenue Authorities and Mr. Saeeduz Zaman Siddiqui had shown to us Standing Order XVII which contains instructions issued ia 1903 and on 6-9-1921 which is contained in the Volume of Standing Orders published under the Authority of the Government of Sind which reads as under : "G. R. No. 8856 of 1903 and 590 dtted 6-9-1921. (1) The oral transactions of land and rights in the land are admitted for the purposes of entries in the record-of-rights if the parties give written statement of agreement." This clearly show that the mntatloa of oamee in the revenue record could be effected if the transaction of oral tales wa» proved before the Revenue yuthorittes throofh the statements by (be. parties. Tie objection of Mr. Ownae the learned counsel for the respondent that this would not apply to the urban properties is not correct as this notification taiks of mutation in the revenut records and since we are dealing in respect of mutations effected by the Revenue Authorities therefore we do not see any reason to exclude the application of this notification to the mutation on the basis of the oral sale before us. The sale thus having been completed in the year 1942, it was a nutter of mere formality of bringing the record of the Revenue Authorities in conformity with this sale as the mutation was sought to be effected in the year 1947 on the basis of the statement of Bishan Singh. This mutation did not in fact create a transfer in itself but simply recorded in revenue records the factum of the transfer which had been made in the year 1942. Therefore, it was not a case of transfer of property made in the year 1947 but was merely a case of record ing a sale completed in the year 1942. The mutation in the revenue records is really made for the purposes of showing the possession of the property involved and in this case the possession of the property had been transferred to the appellant in the year 1942. It is true that ordinary the mutation should have immediately followed the transaction of sale in the year 1942 and there fore, there could be some doubt in respect of the bonu fides of mutation. But sines the possession had admittedly been with the appellant, therefore, the delay in the mutation is not of any significance. S, Sitace we have come to the conclusion that the sale, was in fact effected in .the >ear 1942, therefore, thereafter it could not be affected by any provision of the Evacuee Laws passed in the years 1948 or 1949 or in 1957. In this respect we will point out that Ordinance XVHI of 194S which was the first legislation io respect of the evacuee property in Pakistan provided under section 12 as under : "Trantftr of evacuee property.~-{l) No transfer of any right in or over or to any evacuee property made by an evacuee, his agent, assignee or attorney, on or after the 1st August, 1947, shall confer any right or remedy on the parties to such transfer or any person claiming under any of them unless such transfer is confirmed by the prescribed Custodian upon appli cation made to him in that behalf within the prescribed period," (The rest of this section is not relevant &s the same pertains to confirmation of transfer by the Custodian). Thus it would be clear that it is only a transfer which is effected on or ifter 1-8-1947 which was barred by section 12 of Ordinance XVHI of 194S. lut if the sale had taken place in 1942 then the same could not be affected by he said Ordinance. Similarly section 16 of the Ordinance XV of 1949 provided for restriction on transfer by an evacuee on or after 1st day of March, 1947. But this restric tion would not again be relevant ia this case before us as the same had been completed in the year 1942. Till 1951 there was no restriction whatsoever on the mutations effected in respect of the agricultural properties. But on 21-4-1931 by Act VI of 1951, Pakistan Administration of Evacuee Property Amendment Act, 1951 was passed which for the first time referred to nutation of names by amending section 77 of Act XV of 1949. The relevant part of ths amended section IT-reads as follows : "17. Registration e>f doeumentg and mutation of name.(I) Where anj document required to be registered under the Registration Act, 190S (XVI of 1908), or any application for mutation of names purports to create or transfer any right or interest in any property in contravention of the provisions of section 16 or section 23-A of this Ordinance, no registeiing officer shall register the saiae, and bo revenue office shall sanction any mutation of names in respect thereof, unless th« party presenting the document or making the application produces a certificate from the Custodian that the property is not evacuee property or that the transaction has been confirmed or that tht property is not property belong ing to aa intending evacuee or that the Custodian has sanctioned the transation." This amended section again shows that only such mutations of names! which purported to create or transfer any right or Interest in any property! in contravention of the provisions of section 16 or section 23-A of Ordinance) XV of 1949 which was restricted. But if the mutation was not in respect of sale or transfer effected after 1-3-1947, and was not in respect of the evacuee property no restriction in respect of the mutation of names would apply. In the present case the mutation made in the year 1947 was ia respect of the sale completed in the year 1942, and was not in respect of any sale or transfer after 1-3-1947 and thus it could not be said to create or transfer any right or interest in any evacuee property. It would be pertinent to note here that the Additional Settlement Commissioner in his order dated 12-4-1967, mentioned by us earlier, bad clearly mentioned that Plot No. 94-A was non-evacuee property and lie had suggested that k if the property which was transferred to Yaooob by the Settlement Authorities was found to be situated on Plot No. 94-A, the same shall be cancelled. Hence it would be correct to say that Pi n No, 94-A had never been treated as an evacuee property either by the Custodian or by the Settlement Authorities and since its sale had been completed in the year 1942 and the mutation of names itself had been completed on 19-9-1947 therefore it could not be affected by any provisions of the Evacuee Law. 9. The most important aspect of the iaw in bis regard is tfaat'aectfon 3(1) of the Pakistan Administration of Evacuee Property Act, 19)7 prohibits any property to be treated as an evacuee property after 1-1-1957 if the said property had no! keen treated as an evacueeproperty before the said date. In case before as there is no allegation whattover that Plot No. 94-A with its structure was ever treated property till 1-1-1957 and, therefore, it could not be treated as aa evacuee property after the said date. The exceptions provided in subsection (2) ,of section 3 of the taid Act did not apply to the present case as no action or proceedings had commenced or was pending before the Custodian in respect of the said plot and here is no allegations that such plot was occupied by or managed by a personl whose authority so to do after 28-2-1957 had not been accepted or approved! by the Custodian. Such being the factual petition, we agree with Mr. Saeeduzl Zaman Siddiqi Advocate that this property being Plot No. 94-A could not be treated as an evacuee property either directly or indirectly because what cannot be done directly cannot be allowed to be done indirectly. Heoce it would be correct to say that if the Custodian itself could not treat this plot as an evacuee property after 1-1-1957 then the Revenue Authorities cannot indirectly treat the same as an evacuee property by cancelling the mutation affected in the year 1947 on the basis that the mutation was made in respect of the evacuee property. Even otherwise it would not be fair to cancel the mutation effected in the year 1947 on the basis of the application made in 1967. Twenty years it farily a long period during which vested rights are created which cannot be allowed to be disturbed in this manner. We are, therefore of the view that the order passed by the Member, Board! of Revenue dated 9- 1 1-1968 was without lawful authority as it had the effect of} indirectly making a declaration that Plot No. 94-A was an evacuee nronertv I The correci ordca bad been passed by the Additional Commissioner. Hyderabad Division, on 25-7-1968 and by the Deputy Collector, Mirpurkhas on 30-11-1967. 10. We however, bower, now to consider that the learned Single Judge had disposed of the objection of the appellant onthe basis of section. 34(3) of Ordi nance XV of 1949 which reads as under : "(3) No decision of any Court or other authority on any question such at is referred to in clause (a) of subsection (1), given between the forteentb day of August, 1947, and the .commencement of this Ordinance shall be binding on the Custodian, or affect any right or interest of any property affected by such decision." We are, however, of the riew that the learned Single Judge was not [justified in relying on subsection (3) of section 34 as the real question in {controversy was whether the sale had taken place in the year 1942 or not. We have held that the sale had been completed in the year 1942{and the factum of recording of mutation of names in September, 1947 was merely in consequence of sale effected in 1942, and that the mutation of names did not itseif create any right of transfer in respect of any evacuee property. Therefore, the mutation effected in the year 1947 could not be said to be an order which wa creeling any right or interest in any property and therefore, it was not necessary to get the sale effected in the year 1942 approved from the Custodian. The learned Single Judge seems to be of the view that the mutation effected in the year 1947 itself created a right or was the transfer of the right in respect of the evacuee property. But with respect we do not agree with this view as the mutation effected in the year 1947 wai merely recording the factum of possession on the besis of sale in year 1942. It did not in itself create the transfer and had been based on the statement made by Bashan Singh. If this statement bad been cisde in 1942 then obviously there could be no objection to the same. Merely because it had been delayed for some years on account of one reason or the other would not have the effect of converting into a fresh sale made in. 1947. If it was a case of sale being effected by a statement before a mutation officer after 1-3-1947, then it could be a different matter. However, that not being the position in this cafe the order of mutation nude on 19-9-1947, could not be said to be covered by tke provisions of subsection (3) of section 34 of the Ordinance XV of 1949. In this view of the matter we set aside the order of the learned Single Judge and direct that the mutation eflected in favour of the appellant io the year 1947 should be allowed to have effected and should be allowed to have effect and sho«!d not be cancelled. Order of the Revenue Authorities in this respect to the contrary are hereby decided to be without lawful authority. The appeal is thuefof, allowed with costs.
P L J 1980 Karachi 94 P L J 1980 Karachi 94 fakbruddin G. ebrahim, J SH. MUHAMMAD HUSSAIN versus Mtt. MUBINA BEGUM and Acotber Second Rent Appeal No. 11/1976 decided on 12-5-1979. W. P. Urban Rent Restriction Ordinance (VI of 1959)S. 13-AProtectian afforded to tenantNo room of agreement outside the Ordinance (1959) bet ween transferee landlord and tenant which may oblige tenant to pay rentService of notice under S. 13-A not merely a formality and tenant shall not be deemed to be in default in absence of notice under registered postDefault would arise only if rent is not paid within thirty days of noticeWhether ejectment appli cation placed on ground other than that of default in payment of reat, not affected by provisions of S. 13-A. (Paras. 7. 8) P L D 1977 Lab. 210 dissented. Muhammad Abdul Aziz Khan for Appellant. Khuda Bux Omrani for Respondents. Date of hearing : 12-5-1979. JUDGMENT The question that arises for my consideration in these two second appeals i» whether the requirement of notice provided in section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 is mandatory. 2. The appellant-landlord sought the eviction of the respondent-tenant's on the sole ground of non-payment of rent. The tenant's defence was that there was no relationship of landlord and tenant between the parties and secondly, want of notice under section 13-A of the Ordinance. The Rent Controller found that relationship of landlord and tenant existed between the parties but on the issue of section 13-A notice found it in negative, which -.finding was affirmed by the first Appellate Court. 2-A. Mr. Muhammad Abdul Aziz, the learned counsel for the appellant contended in support of th:«e second appeals that in the circumstances of the preset notice under section 13-A was not required. The learned counsel pointed oki that aftsr the transfer of the property in favour of the appellant, tne appellant d;d give a notice intimating the respondent that he was the owner «r the property in question under a sale deed from the previous landlord though in thjs notice the respondent-tenant was described as a trespasser and, therefore, it was rightly conceded that the notice could not be construed as one.under section 13-A inasmuch as that notice contemplates a landlord, a transferee landlord and an intimation of transfer to the tenant by the new landlord. The learned counsel, however, went on »o\point out that following the said notice the tenant in each case moved the Rent Controller for depositing the tent as c e and payable to the landlord, which application was granted following which unt was deposited and withdrawn by the landlord. The learned counsel contended that by the deposit of rent by the tenant, in the circumstances mentioned above, tenancy was created between the parties which would enable the landlord to seek eviction in the event of subsequent default in payment of rent by the tenant. Now, in so far as section I3-A is concerned there is no doubt that not withstanding absence of a notice contemplated by this section on devolution of interest relationship of landlord and tenant would come into existence between the transferee landlord and the existing tenant. The question, however, is whether or no, there would be default in payment of rent by the tenant in the absence of a notice under section 13-A by the new landlord. The word used infection 13-A are: "That the tenant shall.not be deemed to have been defaulted in the pay ment of rent if the rent due is not paid within 30 days from the date when the intimation of transfer is given by the new landlord to the tenant." This intimation, it may be noticed, has to be given in a particular manner, namely, ib writing by registered post. r fc '. "^irf- 5. Mr. Muhammad Abdul Aziz the learned counsel for the appellant invited my attention to a decision reported in Nazir Htusain v. 'As/am Shaft (FLO 1977 Lab. 210) in which the learned Judge, for whose ability I have great respect, has taken the view that if the tenant pays rent to the transferee landlord a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer. The learned 1 Judge observed : "As stated above, section 13-A only visualise a presumption which cannot ' be said to be conclusive in any respect. At the most it is a re but table presumption. If in a given case the tenant is proved to know about the death, acknowledges the heir or the transferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of,the person who has received the property by devolution or transfer," The learned Judge also referred to the definition of tenant as may a person whom or whose account rent is payable and landlord as a person for the time being entitled to receive rent, in the Rent Ordinance and went on to conclude that: "Once there it an acknowledgment of the appellant being a tenant under. Aslam Shah by paying rent to him, be cannot turn back and rely upoa section 13-A in case of deliberate default made by him in the payment of rent. If the contrary is held to be true that would result in an anomalous situation. That will be giving more protection to the tenant than was, in fact, envisaged by the Legislature." The learned Judge found no parallel between section 30 of the Displaced Person (Compensation and Rehabilitation) Act, 1958 and section 13-A of the Rent Ordinance, and, therefore, did not deem it necessary to examine the reasoning of the Supreme Court in Evan's ease (PLD 1964 S C 536). With respect to the learned Judge I find parallel in the said two sections for both provide for a notice to be served in a particular manner and give protection, to persons in possession of evacues property and a tenant under Rent Law, respectively, 6. At I read section 13-A of the Rent Ordinance it provides for two things. Firstly, a notice in writing by registered post to toe tenant by the new landlord intimating ths change of ownership which has been held o embrace aft changes whatsoever in the title of the property in possession of the tenant. Secondly, a protection to the tenant that in absence of such notice the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (2) of subsection (2) of section 13. In Evan's case the Supreme Court held that the prescribed manner in which notice under section 30 of Act XXVII of 1958 was to be given, viz. by registered post (acknowledgment due) cannot be ignored, ft was observed chat: "It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliude. In the faoa of the language of the proviso which requires that the notice should be served by registered post (acknowledgment due)', such an interpretation is not possible.. To hold that, notwithstanding such clear not unambiguous words, even implied notice would be sufficient to render the words 'by registered post (acknowledgment due)' in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing it that express notice in writing must be given in the manner prescribed." The other question before the Supreme Court as to whether an account of an evacuee house could contract or opt not of the protection given to him by said section 30 was answered in the negative in these words : "We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for mere allottees did not by the allotment alone acquire any right in th property but were designed as a matter of public policy to give general protection to such occupants not only as to irremoveability for a reason able period but also as to occupation upon payment of a/reasonable rent. Apart from this the rule generally adopted in construing such legislation giving general protection pro bono pubttco is to prefer the construction which will add force to the protection and suppress subtle inventions and evasions. Thus the view which has prevailed in England in construing Rent Acts which created similar statutory tenancies and contained similar protective provision is that : "Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise nor can the doctrine of estoppel exclude the Acts. An agreement by a tenant to pay more than the rent permitted by the Acts, or obliging him (even indirectly) to give up possession where the Acts do not require him to do so is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord" (vide Megarry's Rent AcJs, 9ih Edn., p. 14). Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occupations of his own wish and accord yet this does not mean that an agreement to do so can be law fully enforced by the landlord. Similarly even though there may be nothing in the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for that would be in direct conflict with the provision in the statute which give a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer. The view, therefore, that because there is nothing in the Act which expressly prohibits the landlord or transferee of the premises from charging rent at a higher rate or that because tip Act does not say teat it shall not be lawful for the landlord to accept « higher rent the landlord is not necessarily debarred from doing so caaaot be upheld. The provision in the section that, it shall be lawful for the transferee to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the wellknown principle of expression faeit ceysare taciturn. If a doing of a particular thing is made lawful the doing of some thing which is in conflict with that will be unlawful. We are of the view therefore, that a person protected by section 30 of the Act of 1958 could not lawfully contract out of that protection, for, such a contract would be void being against public policy." Incidentally in the present case we arc concerned with .the protection given to a. tenant by a Rent Act and tbe aforesaid observations will therefore have full application. I am further inclined to think that the language employed ' in section 13-A makes a notice imperative for a tenant "shall not be deemed 10 have defaulted in payment of rent", if the prescribed notice in writing under registered pest is not given to him. In other words, there fs no room for. an agreement outside the statute between the transferee-landlord and the tenant, which may oblige the tenant to pay rent for the law says that the tenant shall not be deemed to e ia default io the absence of a registered post notice under section I3-A. Tbe service of notice under this section is, therefore, not merely a formality for acquaieii&g the tenant of the transfer of the premises not merely in tbe entire of a eoticc of allotment, i Finally, I tasy wftb advantage lso refer to the following observation of the Suprem ^ourt in the case of Sabu Afe/y, kaka Ram alias Heman Das (1973 § C M H gfewhich supports the view that notice under section 13-A, when eviction is Bought on tbe ground of Eon-paynlent of rient, is necessary : ','The language Anployed in section 13-A "of the Ordinance makes it abundantly clear. Is observed by the High Court, that it only deals with one situation, namely, the question of default to the payment of rent. If the prescribed notice is not given by the transferee-landlord than the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (1) of subsection (2) of section 13 of tbe Ordinance, and such default would arise only if the rent is not paid within 30 days from, the date of notice. In our view, the High Court was right in observing than an ejectment application placed on grounds'other-than that of default in payment of rent, is not at all affected by the provisions of section 13-A 9. Tbe r««uit, thereto Ve, is that there is no merit in these appeals and they are dismissed. In the circumstances of the case there will be ao ordw as to eoits.
P L J 1980 Karachi 97 P L J 1980 Karachi 97 muhammad 2A800KUI. haq, J GtAW INDUSnitKS IAKHA WELFARE UNION, Co»Vit\itionari«etitioa No. S-aV of l$fedepifcd on 9-5-l97!>. bdostrial Relations Ordinwm (XXUI of 1»W)-S. 10 (3)CanceHation of registration of Trade union (C B A) by Registrar, Trade Unions without issu ance of notice to Union and holding inquiryClosure- by ManagementExistence of two awards regarding unrealised wages of workersExistence of union is dependent upon various functions to be performed and cannot be linked with closure of establishmentOrders of Registrar as well as Labour Court held to be without lawful authority and union allowed to continue with its functions. (Para. 4) yJt JamiMdin for Petitioner. All respondents called absent. Date efhtaring : $-5-1979. JUDGMENT Tbe petitioner is a Trade Union as well as Collective Bargaining Agont of tbe establishment of respondent No. 3 which is a limited company producing glass baogte and block glass at Hyderabad. On 13th Apfii, 1973, the respon dent No. 3 closed down its factory on account of losses but in view of tbe fact it bad not -obtained the permission from the Labour Court which was required under Standing Orders 11-A Standing Orders Ordinance of 1968, the respondent No. 3 moved an application on 5-5-1973 in Labour Court No. VI for permis sion to close the establishment, The said application was allowed by the Labour Court on 39-1-1974 after notice to the petitioner. While allowing tbe said application, tbe Labour Court imposed two conditions that tbe respondent No. 3 should provide surety of Rs. 6,00,000/- for payment of the dues of work ers and tbe closure should be effective from the time the dues were cleared. The respondent No. 3 challenged the conditions imposed by the Labour Court in respect of the closure of the establishment by a petition in the High Court being Petition No 296/74. On 3rd May, 1976, the High Court set aside the conditions imposed with the result that thVooief allowing the closure without any condition become elective from 29-1-1974. Meanwhile on 29-1-1974 an award had been made in favour of the present petitioner as applicant against tbe Directors of respondent No. 3 establishment ib respect of wages of the work ers to the extent of Rs. 19,398.84 and on thf same day another award of 42,278.24 had been, made in respect of wages qf workers in favour of tbe peti tioner. The contention of the petitioner is that those awards have not so far implemented and tbe amount of both the awards are »U)I outstanding and |f0f$ the existence, of tbe petitioner is accessary to get these awards realized. The Registrar of Trade Union/thereafter cancelled registration of the tW as a Trade Union in the light pf the judgfiaeot of tbe High Court dat«0 $»S«19?6. This action by the Registrar was taken under section 10 (3) of tfce Industrial Relations Ordinance without any notice to the petitioner. The Registrar ,bad come to the conclusion that the petitioner union had caused to exist. The Registrar had also taken the note of the notice of teiuHUion alleg ed to have been issued to the members of petitioner union on 5^5-1976. The petitioner union denies that any such notice of termination were received by them. Petitioner filed appeal before Labour Court but it was finally dismissed on 29-10-77. Tbe petitioner thereafter filed this petition in tfce High Court. 4 "k fip^Ation for ine learned counsel for the petitioner Mr. Haji ^|pfeld»a ss tbt «o advene action against the petitiooec umioacoald be take 1> s^dQSk ^{3} of I.R.O., 196> without any Dp^iee to r6petitjonft 1 »t bfih||n an inquiry that the petfMover unjott fuAcrtttd to <iu»l. He contends that no swell iwpriry bad been nude aad hence tfae order is without lawful authority. Mr. fantU aicocotrtends that the order of the High Court dftVfd 3-5-1976 has been misconstrued by the Registrar of Trade Union as Jhere 4i no such observation of the High Court that the petitioner union has either become defunct or it has ceased to exist. I find force in both tfae submissions of the learned counsel. It was incumbent upon the Registrar to held an inquiry under section 1&(J) pf I.R.Q. and issue notices to the petitioner union for the same 4 otherwise it could have not been possible for the Registrar to ascertain whether a petitioner had been ieft with any function or not. 4. Particularly, in view of the circumstances of this case, 1 find that the petitioner union has plenty of justification of its existence as there are tWo exist ing awards in favour of the petitioner in respect of the wages of workers which foave act beeta realised so far. It would be just and proper to.allow the petition-; «r union to function till such time that those awards were finally realized or the matters wete finally concluded. The closure of an establishment cannot auto matically resuit in a union for that establishment ceasing to esist as there may be still many matters which were to be sorted out. Therefore I am of the view that in this matter the Registrar of Trade Union has not made any inquiry be fore it cancelled the registration of the petitioner union. In fact if the Registrai had cared to go through tbc last part of the order of the High Court, he would have realised that there was'still a function to be performed by the petitioner! union as the High Court had observed that there is a separate procedure pro-l vided for the recovery of wages in the event of failure of tne employer to make! payment within time allowed by Standing Order 12 (4). This observation had! been made on the submission of the petitioner union that the conditions bad been rightly imposed by the Labour Court in respect of closure of establishment of respondent No. 3 as the respondent No. 3 had to pay the wages of the work ers. Similarly the order of the Labour Court suffers from the same infirmity as the Labour Court has held that the status of the petitioner union had .ceased as a result of the judgment of the High Court while in my view the judgment of the High Court had not resulted inr that situation and the petitioner unioni can continue to perform the duties which were required of it in realising thtl wages of the workers And particularly the existing awards, Similarly the second! part of toe order of the Labour Court that notice of termination dated 5-5-1976 bid been issued by respondent No. 3 which showed that the service of the worken were no more connected with the said establishment is not correct as those notices were of no significance in.respect of ceasing of activity of the petitioner union. Moreover, those notices have all along been denied by the petitioner union. I am not gtviaf any finding in respect or those notices, but I am of the -view that inspite of those notices, if any, the petitioner could continue to perform iti function as a unioftfor the realization of the dues of workers from the Respondent No. 3. It would be only after all the liabilities of the workers had been cleared that it could be said that the petitioned had more a duty to perform in respect of the establishment of respondent No. 3. In this view of the matter the order of &e Registrar of Trade Union dated 30-6-1976 and the order of the Labour Court Ho. VI. Hyderabad dated 12-9-1977 are both declared to be without Iftwfut authority and have no effect and the petitioner can continue tot function t registered trade ttoion until after » proper notice undet itction 10 (3)«f I,R.O 1969, the Keffotrft of Trade Uaio comes to the costefcsltt ljuil petitioner Jui eeaied to exist sarf iaqoiry is fceJd f(or notice to the p$tit£0er«| The petition fc therefore allowed.
P L J 1980 Karachi 100
P L J 1980 Karachi 100 ajmal mian, J
ISLAND TEXTILE MILLS
IM»
Karachi
Versus
V/O
TECHNOEXPERT and Another
Suit No. 598 of 1978 decided on 15-5-1979.
(1) Arbitration JL- (Xof 1940)
S.
3Interpretation ef arbitration clause
Expression, "differences _. '-
:
«o out of contract to be submitted with exception of recourse of legal Courts to
Arbitration" Interpretation : Court' jurisdiction clearly excluded tod not kept in tact otherwise clause would be rendered nugatory and redundant.
(Para. 3)
(tt) ArfcttfHo) A« (X Of l4u)-S. 4!
(b) Provisions empower Court to make ordcjs in respeet of natters set out in second schedule to the Act No prejudice to be cawed to power vested in arbitrator or umpire Court can grant interim injunction or appoint receiver
Arbitration Tribunal not empowered to deal with ft interim injunction in instant case Court had to deal with application even if wit stayed.
v
.
(Para. 6)
. (ill ) Arbttratfea Act (X of 1$(0) S. 34
"Taken steps ia the proceedings'"
-Ajpepcodan! upon conduct of defendant in each case D«fendantacd,oiesced to suit x
'wjtb intention to contest oo merit thereafter would be barred to invoko
S. 34 Uefefidact clear iy tt»tinf ia earliest opportunity for resort to arbitration; hit contest to.application for fnjuiisnon or appointment of receiveer would not constitute step> ia the proceedings
(Paras. 5,6>
(If) ArbitlaUot Act (S of 1M9)~- S. 34 Fraud or misrepresentation, allegation of Can be gone into by arbitration Tribunal.
(Para. 7>
(v)ArWtratian A
Awsto Arbitratiofl clause of aa agreement cannot be defeated because it would cai»^ inconvenience to a party 9110 e»idencfe and forum of arbitration proceedings. . x
(Paffc.
Id).
(vi) Arbitration
A
Award Two defendants in suit Second ooe impleaded because injunction was sought in respect of guarantee furnished by hiffl--Such second defendant, htU, not concerned with merits of plaintiff's claim, (Para 9) vii) Arbitration & Award Arbitration
Tribunal always ctpected, to act impartially and fairly wbetber in socialistic country or capitalistic country
Plea of bias can be taken ia objection to award.
(plra, 1
AIR
I960 Cat.
47 ; P
I D 1937 Kar, 756 ; A 1 R 1970 S.C 18 : A I 1974 Delhi 223; AIR !970 M|d. 323
Mansoor Ahmad Kkm 4 CSp for Plaintiff
Liaquat Merchant for toeTendantJNo, I.
for
Defindaot No. 2, JUDGEMENT
This is % l^iMtion ttader SfCtfOO i| Of the AtWiratioo Act. for staying; of the above s.uit and for referrfng the n|tter to arbUration Hi terms of Article
XII of the Contract (Annejure 8-1 to the I4|int) filed b|
&t defendant No 1
. 1
The facts leading w filing of the p«is«!it
«ppUc4I0tt w Jhit the defendant
No.
1 entered Into an agreement dated 9flf9$ (AnnejtUfe P/J) to the Plaint with the plaintiff to supply a complete textile plaqt. Before the contracted machinery was supplied the plaintiffs furnished an unconditional bank guaraatee through the defendant No. 2 for ensuring the payment of the price of the machinery in pounds sterling in six monjhly 14 eqiifti instalments as per clause VI of the agreement. It has been averred in the plaint that the plaintiffs started production, in 1972, but the plant supplied failed to give guaranteed production.
Thereupon, the parties entered into long correspondence, which did not bring soy result. The plaintiffs have filed the present suit for the recovery of Rs. 4,07,57,053 (Rupees four crores, seven lacs fifty seven thousand fifty three).
In opposition to the above application the plaintiffs bav« filed a counteraffidavit inter alia averting therein that the application is liable to be dismissed for the reason stated therein.
X Mr. Mansoor Ahmad Khan, the learned counsel for the plaintiffs ha« vr|td the following points in opposition to the above application :
(I) That Article XII of the contract does not exclude the jurisdiction of this Court U> try the above suit.
(i/) That the subject matter of the suit is not covered by tbe Arbitration
Clause.
(ill)
That tbe defendant No. 1 has taken- steps in the proceedings disenti tling them to apply for the stay of the suit.
(rV) That since the plaintiffs have averred that the defendant No, 1 has committed fraud sad made misrepresentation, the questions ire fit to be tried a civil Court and not by an arbitration tribunal.
(») That the parties, witnesses and tbe subject matter of the dispute namely, the machinery supplied by the defendant No. 1 are at Karachi and, therefore, it wiil be convenient to the parties to have the disputes adjudicated upon at Karachi through the above suit instead of Arbitra tion Tribunal in
Moscow.
(>/) That as there are two defendants to the above suit and as the defendant
No. 2 is not a party to arbitration, agreement tbe suit cannot be stayed.
3.
(a)
!n support of the first contention that the arbitration clause does not exclude the jurisdiction of this Court Mr. Mansoor Ahmad Khan hat referred to the Article XII of the Contract. In order to appreciate th above contention, it will be advantageous to reproduce herein below tht aforesaid
Article Xll of the contract, which reads as follows :
"XII, Arbitration:
(«) The parties shall tk» all meeturo to settle amicably alt dispute or differences.which may arise oat of (bis Contract or in connection with it.
In case the parties are unable to arrive at an amicable settlement, all dis-j
putes and differences which may arise out of this Contract are to bej submitted with the exception of recourses of Legal Courts to Arbitration!
by the Arbitration Commission to tbe Rules as follows :
|
(a) If (he suppliers, are a respondent in such a dispute, it is submitted for setttemect to the Foreign Trade
Arbitration Commission for the Chamber of Commercie in Moscow, in . accordance wish tbe
Rules of Procedure of tbe said Commission
(,) If the
BUYERS are a respondent in such a dispute or discontract, , lac dispute is submitted for settlement to the
Federation of
Pakistan, Chamber of Commerce and
Industries, Pakistan-
The Arbitration Award shall be final and binding on both the parties.
(c) If the Buyers and Suppliers both lodge claims against each other with their respective Chamber of Commerce in Pakistan and
Moscow, then both
Chambers of Commerce will be requested by both parties
t
J'0B for time for filing written statement hf been made
«nd, therefore, the present case is distinguishable.
'
(/) As regards i960 Calcutta, page 206, it may be observed that in the above case the plaintiffs a applied for a decree on admission under Order 12
Rule 6 C.P.C. The defendant filed an application for extension of time 10 file affidavit in opposition to the above application. It was held that the applica tion for exteation of time amounted to taking steps in the proceedings so as to disentitle the defendaat from making an application for a stay «»d»r section 34 of tb« rbitration Act. It may be noticed that to oppose an pplication for ecree ob admission, ip fapt smouats to participation in the suit on twits itW,- innsror®, ft wag rightly held that it ampueud to « step in 'the proceeding, feo uca evcBtuaiity bad ri««n in the instant ett, and, therefore, the present case is
ty
,R« Idling te l'v?4
Delhi, it may be, stt^ed thjtt in the afoMMhTcasf ibe
Defendant fifed a reply to the injunction appiicatioa and gave the detail cif^he circumstances under which the agreement came to be written, it- w«s held tbat the conduct on the part of the defendant amounted to taking step in the pro ceedings disentitling him to file an application for stay. It may be noticed that in the anove cited case the defendant intended even to rely upon the written statement which was to be filed by him to contest the aforesaid injunction application, and that the application under section 34 was. filed after more than two. months from the filing of a reply to the injunction application. In view of the aforesaid peculiar facts, it was held that the defendant's application under section 34 of the
Arbitration Act was not competent. The above case cannot be equated with the instant case.
(A) Reverting to 1949 Madras, it may be observed that in the above case the defendant applied for adjournment to file counter-affidavit to the injunction and for modification of the order of the injunction, the defendant's above applica tion wsa panted however, on the adjourned date the defendant did not file the affidavit but stated that be Intended to file an application to refer the dispute to arbitration. It was held that if something was done by the party concerned
. which was in the nature of an application to the Court, it would necessarily come under the category of
& step in the proceedings. As in the present case no snch application has been made, the above cited case is also distinguishable from the iastmnt cale.
(i)
Reverting to 1970 Madras, it may be stated that in the above case the plaintiff filed a suit for the recovery cf Rs.
1,63,282-12 in respect of the use of their vessel sad obtained an injunction for restraining the defendant from removing their tanker from the Madrts Harbour. The defendant applied for vacation of the aforesaid injunction order successfully. After that they filed an application under section 34 of the Arbitration
Act, it was held that filing of an application by the defendant to get the interim injunction vacated it a step in the proceedings disentitling him to ask for stay of the suit under the arbitration agreement.
The above cited case is also distinguishable from the instant case in as much as the defendant No. 1 had filled their present application on 512-78 and a counter-affidavit to injunction application on 31-1-1979 without prejudice to the present application, (/) Reverting to the A.I.R. 1970 S.C., it may be observed that in the above case it was held that an application wider section 34 of the Arbitration Act cannot be treated so application in a reference under section 31(4) of 'the
Arbitration Act. In my view, the point involved in the instant case is not covered by tfee, above cited case of the Indian Supreme
Court and, therefore,, is not
(k)
Referring to I?67 Dacca case, it may be observed that is the above case the facts were that a suit was filed for the dissolution of partnership and for accounts. On the following day of the Sling of the suit, the plaintiff filed an application for appointment of a receiver. Thereupon, the defendant made a prayer for time to file objections to the above application. Go the next date fixed for show-cause to the aforesaid application for the appointment of a receiver the defendant filed a petition under section 34 of the Arbitration Act.
It wts urged by the plaintiff that the defendant had taken steps in the proceed ings by the asking for the time to file objections to the receiver's application.
It was held that the above act of the defendant did not amount to acquiescence in the proceedings and the suit itself, particularly in view of the fact that the plaintiff was not even aware of the contents of the plaint. It was also observed that the primary duty of a Court is to look into the facts of the case fairly and then to decide whether the Conduct of the applicant is as such as would amount to participation in the suit itself or an indication of acquiescence in the proceedittgt as to disentitle him to file aa application under section 34 of the Arbitration Act.
It was further observed that a mere prayer for time to file objections to the application for the appointment of a receiver cannot amount to the acquiescence in the proceedings. This case to some extent supports the defend ant No.
1's present application.
(?) Referring to 1969 Dacca, 719, it may be stated that the plaintiff in the suit filed an application for an interlocutory injunction, the defendant was caiied upon to show cause against the aforesaid prayer for injunction but ceither was served with a copy of the petition for temporary injunction nor a plaint in suit. The defendant in response to the above injunction application filed an application under sec'ion 34 of the Arbitration Act and also filed another application for time to file objections to the prayer for grant of temporary injunction.
It was urged by the plaintiff that the defendant had taken steps in the proceedings by asking for time to file objections to the injunction application but the above contention was repelled inter alia on the ground that the defendant was not even aware of the contents of the plaint and, therefore, he could not have acquiesced to the filing of the suit.
6.
id my view the question as to whether a defendant has taken steps in the proceedings will depend on the facts of each case and it will vary from case o oate.
If from the conduct of the defendant it appears that he has acquiesced
;o the salt and intended to contest the suit on merits before the Court, he cannot hereafter file or press an application under section 34 of the Arbitration Act. fiowever, if a defendant makes his stand clear at the earliest opportunity that le wishes that the disputes/differences be referred to arbitration as per arbitra tion agreement, in such a case the mere fact that the defendant has contested
»n application for injunction or for the appointment of a receiver will not constitute a step in the proceedings.
It may be observed that section 41
(b) of the Arbitration Act provides that the Court shall have for the purpose of and n relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the second
Schedule to the Act as it is 'or the purpose of, and in relation to, in proceeding before the Court.
It also provides that nothing in the aforesaid clause
(b) shall be taken to prejudice any sower which may be vested in an arbitrator or umpire for making order with ressect to any such matters. The Second Schedule to the Arbitration Act inter alia smpowers the Court to grant interim injunction or to appoint a receiver etc.
It is, therefore, clear that the Arbitration
Tribunal in the instant case does not aave the power to deal with the grant of an interim injunction which was prayed for by the plafetiffs in the present suit and, therefore, this Court was to deal with the injunction application even if the suit would have been stayed under section 34 of the Act.
fn the instant case as pointed out hereinabove the defendant No. I filed the application in question on 512-1978,- and whereas filed a counter-affidavit to the injunction application on 31-1-1979, in which in para 9 it has been clearly stated that the suit is also liable to be stayed under section 34 of the
Arbitration Act and that the counter-affidavit is being filed without prejudice to the application under section 34 of the Arbitration Act, 1940.
Since the application for injunction was prior in time, it was listed as application No. I on 7-41979 when I disposed of the same by an order of even dated.
As there were about 100 cases on my cause list on the above date (which was a misceileaeous day) I did not dispose of the present application.
in my view, since the defendant No. I contested the above injunction applica tion without prejudice to their present application, it cannot be urged that the aforesaid, defendant has taken any steps in the, proceeding within the meaning of secti6»34 of the Arbitration Act as to disentitle then to press their present 7; Reverting to tie fourth coateatioi of Mr. Manseor Ahmad Khra tkatt since fraud and misrepresentation have been pleaded, it is a fit case for trial by a civil Court. On the other hand, Mr. Liaquat Merchant, the learned counsel for the defendant No.
1 has contended that the plaintiffs have come out with the allegation of fraud and misrepresentation first time in the above suit and that the plaintiffs have not produced any document written by them prior to the filing of the suit in which any such allegation was made. It was urged that the above plea is frivolous. Since any observation on the above p!e» on merits may prejudice the parties, I have refrained from making any comment upon the same. £ven otherwise the above contention, can be disposed of without examining the merits of same. Mr. Maa&oor Ahmad Khan in support of hu above contention has relwd upon «as« oa Arbitration, Vlfth Edition at page]
T» wjmc-q coataras an dtaeeraVttm xo ttaa
&<fc\ltak\ % -pws&ik t&vs$«i
(d) In my view the above two cases ere distinguishable in as much as ia the present case the defendant No. 1 is a USSR. State's Enterprise, it cannot be urged that the defendant No. 1 reside in Karachi. It was urged by the learned counsel for the defendant No. I that as a matter of fact entire set up of the defendant No. 1 is in Moscow be that as it may, the question, which requires consideration is as to whether the defendant No. 1 which is admittedly a foreign set up can be deprived of their right to enforce arbitration clause on the ground that the subject matter i.e. machinery supplied by the defendant No. 1 Or the plaintiffs evidence is at Karachi. The plaintiffs had entered into the agreement in question containing the above arbitration clause providing three eventaulities namely, firstly if the supplier are the respondent in a diapute the statement of the same shall be through the Foreign Trade Arbitration Commission for the Chamber of Commerce in Moscow in accordance 'With the rules of procedure of the Commission, secondly where the buyers are respondents the settlement of the dispute is to be made through the arbitration of the Federation of Pakistan Chamber of Commerce and Industries of Pakistan, and, thirdly if both the parties are the claimants the aforesaid two organisations have to evolve a joint formula for settling the dispute. It was known to the plaintiffs at the. time of entering into the contract that In case they would file any claim against the defendant No. 1, the arbitration would be through the Foreign Trade Arbitra tion Commission for the Chamber of Commerce in Moscow. It was also known to the plaintiffs that the subject matter of the dispute would be at Karachi and that their evidence would be in Pakistao. In my view, a party having entered into an agreement after having the knowledge of the above facts cannot defeat the arbitration clause on the above ground, (e) I cannot be unmindful of the well established principle that the Court should not lightly release the parties from their bargain, that follows from the sanctity which the Court attaches to contracts. In the instant a foreign state owned enterprise is involved, which entered into the contract in question on the basis that in case any claim would be made against them, the same would be adjudicated upon as per aforesaid arbitration clause but the plaintiffs wish to defeat the above clause with the aid of this Court. If Pakistan desires to acquire a respectable place in the community of nations, not only the Government but, even individuals are expected to honour their commitments to the forcing parties. «v - I may observe that during the arguments Mr. Liaquat Merchant the learned counsel for the defendant No. I made an offer to the plaintiffs that the Arbi tration Tribunal would record the plaintiffs evidence at Karachi. Thereupon, the learned counsel for the defendant No: 1 was asked by me to put in writing 'the aforesaid offer by 10-5-79 after seeking instructions from bis clients, which he has not done, probably bis clients might have not agreed to it. It will sjaffice to observe that the Arbitration Tribunal in question is expected to take .into consideration the question of its own convenience and the convenience of the parties while conducting the arbitration proceedings. 9. Referring to the sixth contention of Mr. Mansoor Ahmed Khan, the learned counsel for the plaintiffs, that there are two defendants to the above suit, and as the defendant No. 2 is not party to arbitration agreement, the suit cannot be stayed. la support of his above contention-he has relied upon the casjof Gulf ipoh Company and another v. Pakistan Refinery Lfmiied, repor ted in > ; L D 197^ Karachi. 1960, where in a learned Single Judge of this Court .was pleased to decline to grant an application under section 34 of the Arbitra tion Act inter alia-on the ground that there were two parties to the suit and one of them was not a party tp the arbitration agreement. A reference to para 16 of the judguicnt of tfie above cited case indicates that Fakhruddin J. dec-- lined to g>ns the application for the st&y of the suit inter alia on the above ' ground fQ: /he reason that there was a posslmKtjr of conflicting decision if the suit was to proceed against the defendant No. 2 in tbe aforesaid suit. In tbe abort case the dispute related to the price of the oil. In my view there is no possi bility of any convicting decision in the instant case. As a matter of face the defendant No. 2 was implsaded to the suit after the filing of the suit for the reason that the injunciou was sought in respect of fhe guarantee furnished by the defendant No, 2. In my view the defendant No. 2 is not concerned with the merits of the plaintiffs' claim and the dispute is between the plaintiff and the defendant No. i, 10. (a) Before parting with the above discussion it may also . be observed that Mr. Monsoor Ahmad Khan, the learned counsel for the plaintiffs has also urged that the Arbitration Tribunal provided for ia the arbitration clause will be biased as the defendant No. 1 is a State owned Enterpise of a Socialist Country where decisions are made according to the wishes of Government and that an Arbitration tribunal does not enjoy as much freedom as required" to act fairly. In support of the above contention the learned counsel for the plaintifft has referred to para 55 at page 30 of the Book by the name "Applic able Law in International Commercial Arbitration" by Julian O.M. Law, 19-78 Edition. It would be advantageous to reproduce hereinbslow the above para wbicb reads as follows : "55. This ultimate control has resulted in allegations that socialist arbi tration tribunals are partial to socialist corporations. This view bora out of the socialist cold-war diatribe promising to "smash the capitalist monopolies" found support in the behaviour of the Soviet FT AC in the .infamous Soviet-fgrae! Oil Arbitration 1958. That dispute arose out" of the refusal by the Soviet GavernsserU to grant an export licence in respect of oil meant for Israel . The refusal was a political act of the Soviet Government, in relation for the Israeli Suez Campaign of 1956. When the Israeli purchaser claimed damages from the Soviet exporting enterprise, the FT AC made a very short and cursory award after an equally cursory hearing. Reports followed the award that the Israeli's had been denied an opportunity to put their case, the decision had been dictated by the Soviet Government and the arbitrators had decided their award before hearng the parties. It was further reported that- Soviet professor who had been instructed by the Israeli's had been allowed to give evidence against Israeli party. This award caused a furore id the West, amongst both lawyers and businessmen, and did more to undermine the reputation of socialist aribitration than any other fact. This award was, widely and roundly condemned in {the West; 2 Musch of the confidence which the FTAC had slowly and pain-stakiogly built up was demolished in one fellswoop. Nevertheless, whatever the true story, this award alone cannot be used to. justify the claim, that all socialist arbitration tribunals are olitically motivated and partial. There have been very few other allega tions about Soviet arbitration ; and even less concerning the other socialist countries. Severel writers" are even of the opinion that despite the undoubted control which the socialist States have over their arbitration tribunals, they do not interfere with the arbitrators and are particulars anxious not only to be impartial but also to be seen to be impartial. Indeed some commentators have argued that if anything, socialist arbitration tribunals are biased in favour of a western party. To prove their impar tiality the socialist-tribunals generally publish their awards albeit a few years after being made-4 small booklets containing 148 selected awards have beep published by the Soviet FT AC a practice which is generally opposed in the West. Today the Soriet-lgraet Oil Arbitration it considered an isolated and uhfoitbnate award I ft can no longer be relied on to (ft) Before dealing with the merit of the above contention, it may be observed that the plaintiffs have not raised any plea of bias in their counteraffidavit to the present application and, therefore, the above plea cannot be urged. Be that as it may, even otherwise, it cannot be presumed that even after 22 years from the date of the award referred to in the above book the arbitration tribunal in question will act in the clleged manner attributad to by the author of the aforesaid book. It is always expected thai an arbitration tribunal will act impartially and fairly, whether it is in a socialistic country or in a capitalist country. At this stage I cannot presume any bias on the part of the Arbitration Tribunal. It is always open to a party to take up the plea of bias in the objections to an award if an arbitration' tribunal acts in the manner from which bias can be inferred. 11. In view of the above discussion the application in question is to, be granted. I, therefore,' stay the suit against the defendant No. 1 and order that the disputes between the plaintiffs and the defendant No. 1 may be referred to arbitration as per Arbitration clause.
P L J 1980 Karachi 110 P L J 1980 Karachi 110 naimuddin, J PAR0OQ Versus M/S EAS-nSSN BAHKINC! CORPORATION Ltd. Karachi Aaottttr Civil Suit No. ISO of 1970 decided on 10-10-1979. (i) Contract Act (IX »f 1872)S. 171Banker in absence of contract to con trary has right to retain as security for a general balance of account goods bailed to himIn instant case plaintiff neither pleading any general balance outstanding against in his account nor goods bailed over which Bank could claim lienS. 171 not applied.
(Para. 5) (ii) NegatiaMe fastnmeats Act (XXVI of 1881)S. 31ChequeAmount of cheque not exceeding but equal to amount available as balanceBank bound to honour chequeClient's credit not to suffer otherwise bank becomes liable to pay damagesBank entitled to refuse payment of cheque if its amount exceeds the amount available as balance in accountCheque not undaly "dishonoured, plaintiff not entitled to any reliefExpression, "refer to drawer" recorded by BankAmounts to statement of Bnk that "go back to drawer and ask him 10 pay" in other words cheque is dishonoured. (Paras. 4, 6, 7) Jan JMuhammad Dawood for Plaintiff. Neseem Farooqi for Defendant No. 1. Dates of f^arimg : 9J19-19-1979. JUDGMENT The plaintiff who is the sole proprietor of Yftsiaeeo Plastic Industries, and had as account with the Eastern Banking Corporation Limited, being Current Account No. 23, has brought this suit against the said Bank which is now taken-over by the National Bank of Pakistan under Ordinance No. 30 of 1973, claiming a som of Rs: I,00.000/- as damages on account of dishonour of cheque drawn by him on his account while his account was is sufficient funds. The plaintiff has however, not pleaded any special damages, Eastern Banking Corporation Limited, defendant in its written statement took the stand that the plaintiff's account bad no sufficient funds and they bad lawful excuse to return the cheque as the plaintiff bad failed/neglected avoid ed to surrender the original guarantee tendered by it on behalf of the plaintiff to the P.I.A. Here I may mention that it appears that the plaintiff had another account with the defendant in the name of Travomars and in that account some guarantee was furnished to PIA on behalf of the plaintiff. On the pleadings of the; parties the following consent issues filed by the learned counsel for the parties were adopted by the Court. (!) Is the suit as framed maintainable ? (2) What were the incidences of the plaintiff's accounts with the defendant ? (3) Was the plaintiff's cheque in question wrongfully returned by the de fendants without effecting payment ? (4) Is the plaintiff estopped from making the suit claim ? (5) Did the return of the plaintiff's cheque constitute dishonour ? (6) Has the plaintiff suffered damages, if so to what extent ? (7) Has any cause of action accrued to the plaintiff? (8) What should the decree be ? , . 2. To day at the Bar Mr. Nasim Faruqi Adovcate for the defendant stated that he does not press issue Nos. 1, 4 and 7. In support of hfs claim the plaintiff examined himself and produced the cheque (Exh. 6/1) which was dishonoured and its memorandum (Exh, 6/2) which stated the reason for return of the cheque as "refer to drawer". He also produced a copy of his account with Eastern Banking Corporation Limited (Exh. 6/12) showing that a sum of Rs. 10.000/-was living to his credit in his account with defendant 1. He additionally produced a letter from the United Bank Limited, dated 3-1-1969 (Exfa, 6/3) where it is stated that on account of dishonour of the cheque in question he was required to clear the overdraft in his account with the United Bank Ltd. This cheque was drawn and de-limed by the plaintiff to United Bink Ltd. for credit of bis account with it after its clearance. The plaintiff also examined KhaHd Mahmood (Exh. 7) who stated that the plaintiff bad aa account with the United Bank Limited, Pakistan Chowk Branch Karachi of which be was the Manager. He produced the letter Exb, 6/3. This witness in his cross examination stated that the Bank bad allowed to the plaintiff overdraft facilities and the facilities were secured by hypothecation of stocks. He further stated that the cheque of Rs. IO.OOO/- which was dis honoured, was deposited by Yaseen Plastic Industries in their current account in order to reduce their liability of Rs. 1,00,000/-. 3, The defendants examined A.S. Qadri (Exb. 9) who was the Manager of defendant. I at the relevant time, posted at Karachi. He stated that the plaintiff had two accounts in two different names, the first with the name of Yasmeen Plastic Industries and other in the name of TRAVOM ARS and that at the request of the pitintiff, the Bank bad furnished a bank guarantee to PIA which was not returned by the plaintiff at any time inspite of several letters written in this regard. He further stated that the Bank used to send to the plaintiff a copy of the monthly statement of accounts and half yearly confirma tion slip showing the balance in the, cotQttat. He produced a copy of the statement of account from 16-IMW toM-1970 (Exb. 9/1) in the natoe of Yasmeen Plastic Industries. He has also produced another statement of account of TRAVQMARS from 23-11-196? to 1-6-1970 (Exb. 9/2). He stated that the plaiHtin did not dispute the correctness of the statement of account sent to his 'firms. He further stated that the cbc'quc was never dishonoured but was re turned with the remarks 'refer to drawer for three reasons, namely, insufficiency of funds, (2) Bank had a lien over the amount of Rs. I.OO.OOO/- for the Bank guarantee furnished on behalf of Yasmeen Printing Industries & TRAMOVARS to the PIA and (3) if the cheque was honoured that would have amounted to closer of the account icd this could be done only when the unused cheques were returned to the Bank. He stated that another cheque drawn in the account of TRAVQMARS was returned with the same remarks for the same reason. Regarding the guarantee the witness has stated that the plaintiff's stands io his letter dated 23-6-1979 (Exh. 6/18) that the guarantee was collected by Mr. M. Naqvi is incorrect as no such person was in the em-, plcymenr of the Bank sod there was ho other person. In the cross-exami nation to Mr. Jan Mohammad Dawood he stated that the statements of account were sent every month by ordinary post and in this case there was a lien on" 1be account of the plaintiff aod they informed him by the letter ad dressed to the firm of the plaintiff namely, TRAVOMARS. The letter was sent by the ordinary post. He admitted that the Bank had not sent separate debit notes of debiting expenses for the same were represented in the monthly statement of account. He explained thst the incidental charges are charged to cover the expenses of cheque books, ledger books and statements etc. He further stated that such charges run between Rs. 5/- to Rs. I0/- per account half yearly and that such charges are normally debited in the account in the last week of June and December. He admitted (be suggestion that no inciden tal charges were debited in the account of Yasmeen Plastic industries for MH968 to 23-I-1969. He also admitted that the Bank guarantee to FIA had already expired when the cheque was present. He, however, explained tbat unless the bank guarantee was returned to the Bank could not know that any claim had arisen within the validity period of the bank guarantee. He farther admitted that the Bank did not receive any claim from PIA. Having generally reviewed the evidence led bsfore me in this case, I now deal with issues Nos. 2, 3, 5, 6 and 7 for, as stated earlier, issues Nos. I, 4 and 7 are not pressed by M» Nasim Faruqui Advocate for the defendants. 4. I would take issues Nos. 2, 3 and 5 together. Issues Nos. 2, $ and 5.The plaintiff is his deposition stated that he drew the cheques on his account with the defendent 1 for there was a balances of Rs. 10.000/- in bis account. In support of the statement be produced a copy of statement of account which bears the date of 6-2-1968 and shows that on 4-1-68 a sum of Rs. J.13,000/-was lying to the credit of the plaintiff is his account with defendant 1. It further shows that on 22-1-1968 a sum of Rs. ld.000/- was lying to this credit in the said account. However, the cheque (Exh. 6/i) which was returned unpaid is dated 30-12-1968 and it was presented to the Bank en 1-1-1969 as would appear from the memorandum (Exh. 6/2X Therefore, this statement of account does sets support the claim of the plaintiff that when the cheque was presented he bad a sum of Rs. 10.000/- is his account. The plaintiff has'also not produced any account book in support of his claim. There is no other evidence except the plaintiffs' word aod statement of the acceont (Exh. 6/1). On the other baud defendants' witness A, S. Qsdri pro duced copies of statemants of accounts of Tasmeea Plastic Industries ts well as TRAVOMARS (Exh- 2/1 and Exb. 9/2). Bxb. 9/1 is relevant to the case under considerations and according to it on 30-12-1968 at sum of Rs, 9,995/~ was lyiag ta the credit of the plaintiff ie this aooount. Therefore it is obvious that th| efceqoe drawo was ia excess of Rs. S/- and there being ao suffieieot fund io toe account of the ptaiotiff it was returned for that reason- The (rend of cross examination of the witness shows that accuracy of this statement of aeooaot was being cballeaged. However, Mr. A. S. Qadri in his deposKioa clearly stated that the Baak used to scad moatbly statemeats of account aod half yearly coofirmatioa slips of plaintiff's balance io the account. This stateoMftt was not questioned ia the cross examination. Significantly, the plaiottff ia his cross exaataatie did oot d«ay the saggestioa that the Bank used to seed him the statemeats of account. He, however, stated ttat he did not remember If the Beak had sac «he statemeats of account. Now, if the plaistiff was rcceivfag the saoatfety statemeots of his aocount aod the statement, of account produced by the defeodants was ificorrect, be should have prodoead hit copy of the stateoMat of seeonsK to show that there was sufficient balaaee ia aft account. f fee bordea of proof being oa the pJaiatiff he has failed to show that there, was ssffioteat balaoee is his ascwottt aad therefore it is aot poasible to bold oo the basis of the evidence available oo record that the plaintiff's cheque wai wrongfully returaed by the defeadaat. No doubt that wbeo a cheque 1i returaed with the remarks 'refer to drawer' It meaos 'dishonour of the cbeqoe for the expresstoa 'refer to drawer asnopats to a stutemeat by the Baak tha "we are oot paying, go back to the drawer aad ask why' of else." go back t« the drawer aod ask him to pay". (See Piunkttt and another v. Barehyt Bant Limited ( (1WSJ 2 K. B. 10? at 1K». ^
f . ' 5. So far as the quettion of guarantee is concerned the plaratiff's ease is that guarantee furnished on behalf of bis iroa was returned to the Bank by PIA as the same was collected by Mr. M. Naqvi as asserted by him io his letter (Exh, 6/18) which eme was subsequently corrected as Mr. A. S. K. Qadri io the totter addressed by the Advocante for tbe plaintiff dated 22-7-1970 (Bxh. 6/16). However, A. S. K. Qadri case in the witness box aad denied that he ever collected tb»t original guarantee. Io any case, the question whether the guaraotee was returned or oot, in my view, is Immaterial for tbe argument of Mr. Nasim Paruqui teamed couasel for the defendant is that the Bank had a lien under section 171 of the Contract on the balaaee in tbe account of the plaintiff. However, ie my opinion the provisions of sectioo 171 of the Coo tract Act are not at all attracted, for jander the provisions of this section I baokei, amoogst others named tbereio, in the absence [of a contract to the contrary, has a right to retain as security for a general balance of account goodi bailed to him. ib tbe present case firstly, the plaintiff has sot pleaded and proves that there was any general balaoee outstanding against the plaintiff so his accoriut, secondly no good, were bailed to them over which the Bank cook claim lien under the said provisions. Therefore, no lien could be claimed oo the credit balance in tbe account of the plaintiff with tbe defeedaot lor non return of tbe original guarantee issued oo behalf of the plaintiff fo PIA even if the allegation is accepted as correct. 6. As regards the third ground tht if the cheque was Boiionred there would oot have been left any balance ia the account and that would have . amounted to closure of the account aod the sape could not have been closed without returoiog unused cheques, it woold so^e to say that is the absenc of« contract to that effect between the parties 'or banking usage or prctk (which has to be pleaded aad proved) the bank bad oo right to refase paymeoij oo that ground. The Bank, ia the absence of a contract to the contrary or aoy ]ue, even when the balance in the account was equal to the amount of cheque. However, if after the payment of the cheque nothing was left in i account it was opea to the Back to close the account after giving notice to j plaintiff. It is the duty of a banker to see that his client's credit should not suffer on such a ground and if it does, he becomes liable to pay him damages. However, in the present case 1 have tound as a fact that the Bank was entitled to refuse the payment of the cheque for the amount of the cheque exceeded the amount available as balance in the account of the plaintiff. I am therefore, of the opinion that there was sufficient reason for not honouring the cheque. Accordingly, 1 decide all these three issues against the plaintiff. Issue No. 6. In view of my findings on issues 2, 3 and S it is not necessary to decide this issue. However, since an important question of law has been raised and there is no reported decision of this Court, I think it proper to decide the same. When a cheque of the customer who has sufficient funds in the hands of a back properly applicable to the payment of such cheque is dishonoured he is entitled to compensation for any loss or damage caused due to such dishonour. This principle is statutorily recognised in section 31 of the Negotiable Instru ments Act, 1881, in the following words :- "31.The drawee of cheque having sufficient funds of the drawer in his hands, properly applicable to the payment of such cheque must pay the cheque when duly required as to do, and, is default of saefe payment, must compensate the drawer for aay loss or damage caused by such default". However, it is submitted by Mr. Nattm Faruqui learned counsel for the defendants that the plaintiff has not pleaded with full particulars and proved any special damages at required by law. He farther submitted that plaintiff's daim for fU. IQO.OOO/- by way of damages cannot be taken consideration in the absence of particulars and proof «nd the suit it liable to be dismissed. On the other hand, Mr. Jan Muhammad Dawood learned counsel for the plaintiff submitted that Court can treat the claim for Rs. iOO,QOO/- as a claim for general damages and award such damaget as it considered just. In reply Mr. Nasim Faruqui argued that under the provision of section 31 of the Negotiable Instruments Aet no general damages can he awarded for compensation hat to be for such loss or damage as is suffered by the drawer due to dishonour of the cheque whkh meens special damages. Law However, on the point in issue 1 may refer to a passage from of Banking, Edn. 4, Vol. 1, page 443, which is quite illuminating. "Where the banker, being bound to honour bis customer's cheque, has failed to do so he will be' liable in damages. If special damage naturally . ensuing from the dishonour is proved, it will be properly taken, into account in assessing the'aniount of the'damage. If the customer be a trader, the jury may properly award substantial damages, in the absence of the proof of special damage. id other cases the c««£oei«r wfll be entitled to stteft damages as will reasonably compensate fete foe Uw iBjtiry which-, from tb nature of tbe case, he bas sustained. A|l loss flowiag naturally fit tfie tikboocur of « cheque may be faked into tecooat to esttsnaliaf " dimajes" Farther, Pa&t In his Law of Banking, 5th Edition at page 173 has stated that sabtfantitti damages any be given against the banker without actual loss to t&e customer. Reference my also be had to the decision of House of Lord to Wilson ?. United CfuHttts Bade Limit! and molftcr (1920) A.C. 102). In this ease it was held that there was right to claim substantial damages in case or dishonouring of a cheque by a bank though in the ease of aon-trader special loss or injury mint be proved before substantial damages could be claimed except where tb«r are special circumstances like a man issuing a cheque to finance being dis honoured wrongfully and the finances breaking of the engagement is eoasequence. . I may also cite here Gf&femt v. W$stmiMtr Beak Limited ((1939) 3 AH. B.R. 577). la thl case a bask wtoogfally dishonoured a cheque of the plain tiff, who was not a trader. The plaintiff did not, ia the statement of claim, plead any matters showing a Ion of credit, but proved that, after the cheque was dishonoured, her Jaudiords had asked her to pay h«r rent in cash, and aotbychaqu«: It was h«)d by Lawereaee, J, that "the authorities whioh have btwa eked to me all lay down that a trader is eatitltd to recover substantial datBaget without pleading- and proving actual damage for the dishonour of his cheque, bat it has never been held that the exception to tfaa measure of damages for breach of contract extends to anyoae who it aot a trader. The cases in whteh this view has beea tak«o, and which have been cited to me, are Marsetn t. fr<HliMu((i«lO), IBaad Ad, 4!5), 8»Hn v?:St8wod {(1854). I4C,B. 595), BankeFSwthWalKs v. Mthvto f(|8S4) 10 V.L.R. 3), Stlm v. Ulitee Beak Ltd. ((12$), I.R. 171). The rale is so expressed in Grass on taekiag, ?th Edn. ( pp. 88, 89 and in Smiths Lading Cases, 13th F.dn,, Vol. 2, p. 574, where it is also stated that the exception to the'general rale is an exceptioa w^idl ought eot to be extended, and referesce there is made to the opinion of Lord Atkiasoa in the House of Lords in Addis v. Gramophone Co. Ltd, ( (1909) A.C. 488, at page 495). In may opinion, I ought to treat this matter as covered by these authorities, sod I most bold that the corollary of the proposition which is laid down by these cases is the law namely, that & person who is not a trader is not entitled to recover substantial damages unless the damages are alleged and proved as special damages. I am therefore of opinion that the plaintiff, whom 1 bold aot to be a trader, is entitled to recover only nonlnal : damages, and she will have judgment for 40s. Judgment for the oiaintiff for 40s". The very same view regarding both traders and non-traders was adopted in Davidson v. Banlttvt & Ltd «1940) AH E,R. 316). However, it is submitted by Mr. Ncsim Faiuqui learned counsel for the Defendant that the rule af Eogliril Lew cannot be allowed in this country for there is no similar provisons in the Eegltsb Bills of Exchange Act ae Is contained in section 31 of oar Negotiable iastruaieat Act. But the iwbmission is not rweil foooded for according to Indian Text Book writers .00 Negotiable Instru ments Act, 1881 same rule has beea fotktwing by Courts in the sue-cofliioeot in retpact of tfae provisioas of tectloe 31 of theNegotiable Instruments Act, 1881, ana to support retianee Is placed by die authors oa Jogen&r&mtth CMmtartl v. Nine Ben$l Bank Ltd. (AIR 1939 Cal. 63). " -- I may also refer to a decision of Madras High Court in Mestrf.
Cttttrfl Hell v. Untied Commtrctol Bank Ltd, (AIR 19S9 Madras 153). It was rated by faecbapakes Ayy»r sitting with Besheer Ahmad SsyeeJ r Jl sare of the opinion tbat the Indian Law on the subject is not at all from the English Law on the point, aad tbat ia case of noa-tradw damages should be awarded where tbere is ao proof of special loss or damage, by the wrongful dishonouring, and in the case of a trader, substantial damages should be awarded even in the absence of proof of special loss or damages". Tb« Madras decision was followed by the High Court of Andhra Paradesh ia S.K.C.C. Bank Ltd., Amalofaram v. Viasapraqada Subrakmanyam (AIR -"3 A.P. 250). i may mention that in this case the English decisions ia Wilson v. United .wife Bank Ltd. (Supra) and Gibbons v. Westminster Bank Ltd. (Supra> /were Followed : Therefore, if the plaintiff had succeeded in proving that his cheque was s|faJiy dishonoured he would have entitled to special damages notwith standing the fact that he did not plead and prove any special damages. As to the quantum of damages I may mention that in the Madras case of Messrs. New Central Hall v. The Untied Commercial Sank Ltd. (Supra) 11 Gfaeqast aggregating lets than Rs. 4.000/- were dishonoured and damages, on the Fact of that case, ia the sum of Rs. 6.000/- were awarded and in Calcutta case ofJogendra Nath Chakravarti v. Ns# Bengal Bank Ltd., three cheques by a sou-trader were dishonoured and damages in the sum of Rs. 400/- were awarded. ib .the 'case reported in AIR 1963 Andhra Paradesh 250, a cheque of Rs. 28/- by % a©a-tfader was dishonoured and an award of nominal damages in the sum of Rf, J7S/- by tae lower Court was up-he Id. ffij» Mo. S. Since in this case the cheque was not unduly dishonoured 1 «is of the view that rae plaintiff is not entitled to any relief. I ( therefore, dismiss the suit leaving the parties to bear their own costs ia She cfrctuastaacM of this case.
P L 3 1980 KJtradsi IU P L 3 1980 KJtradsi IU zappar hussain miza, J TAH1R AU versus Seeoad Appeal No. IS? of 1974 decided on 13-11-1979. (i) Dfsflaeed fws»m (Coapn. and Reba). Act (XXVIII ef 19S8)-S. 30 , validity ofNor mentioning of rate of ren tor even demanding exrent does not invalidate noticesTwo noticesContention that six years period of protection would run from second notice not upheld in view of first .i.BMice held valid, (Paras. 5,6) . r i" (11} W.F, Usfcae Beat Restriction Oriiaaaee (VI ef 1959)-S. 13Eviction :
-pf.oeeediag( T -JBMtf: if laadlord is not entitled to order of ejectment on parti' 'i«al» gjouftd or if ejectment application is incompetent on partkalar ground, proceeding's are not afftected if ejectment can be sustained on other groanda.-- . (Para. 7)> .. :^li S>tepUe4 Pcffcws (Cwapa. «M lUfea.) Am (XXVIU f 195i)-S. 30 (1) $$Vis6,- clauss (2)--Word. «»bicn" refers to "traasfet" aad act to the word, Kara. IV W.P. UrkM R«rt Kftstrfctioa Cte««aace (VI «f 19S9)~S. 15(4) No - f jaisreadtng of evidence made out Reappraisal of evidence to seeond appeal not allowed m preseact of concurrent finding of Court below regard ing pefscEsi requirement. (Para, 10) (?) W.f. UrtM tent Reatrfetiea OrdiM.ce (XXVIII of t»59)-S. 13 (3) (I) (a) Espressjon, "for hit occupation" Merits liberal interpretation to include ~ need of dependents and persons essential for Such occupation as well as "genetae requirement of better healthier accommodation. (Para, 18) And Ahmad for Appellant. All Ahmad Sheikh for Respondent. Date of hearing- 13-1 1-1979. JUDGMENT This is tenant's second appeal seeking to challenge the order of his ejectmeat passed by the Rent Controller on the ground of personal requirement by the landlord. 2. Briefly the facts of the case are that the disputed premises were trans ferred to one Farrukh Sajid under the Settlement Scheme. The appeiiaat being toe occupant of the premises was served with notice under section 30 of the Displaced Persons (Comp, and Rehab) Act, 1968 (hereinafter referred to as the Act), by the transferee on 1-3.62. The appellant replied to this notice and called upon the transferee to supply him with the copy of the transfer docu ments and expressed his willingness to pay the rent at the rate of Rs, 29/- per month which was being paid to the Custodian after he received the poor . of ownership. Farrukh Sajid the transferee Sled ejectment proceedings against the appellant on the ground of default in the payment of rent, but this application was dismissed by the Rent Controller on 10-4-64 on the ground that no willful default was committed by the appellant inasmuch as be had tendered all tte arrears of rent doe opto July 1962 which were refused by the transferee. Tile learned Rent Controller without framing any issue on the point BBi$» passing remark in his order that the notice served by the transferee under section 30 of the Act was defective. 3. The transferee did not challenge the said order by way of sppeal. However, on 20-81-68 the transferee once agaia served a notice upon tee appellant expressly referring to the previous notice' served on him under stettem 30 of the Act and alleging that he had committed default in the payment of rent with effect from 11-9-67. In this second notice the transferee also demanded the premises on the ground of his personal requirement for the occupation of himself and his two children, mother and other members of his family, There after on 11-1-69 transferee Farrukh Sajid filed the second ejectment- ' application from which the present appeal arises, -on the ground of default in th« payment of rent as alleged io the notice as well as the ground of personal requirement. 4. The appellant resisted the proceedings and Urged in his defence legal pleas including the plea that no valid notice Under section 30 of thg Aet had been served on him. On the merits the allegations of the transferee land lord were denied. The learned Rent Controller oq the aforesaid pleadings of the parties framed two preliminary issues including the issue whether valid notice under section 30 of the Act was served on the appellant. Tea parises were allowed to ftddace evidence on the preliminary issue and (rasJty tbe iearasd 'Real ContsbUer by the order 'dated i I -11-69 held 'the notice dated 1-3«61 ssrved ob tfee appellant ms % valid notice' under.' sottien 3CK "ceedings- before the Itenf Controller, ' transferee Parr cinMia house or printing press for a period of thres years from the dtte of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acfcnowledmem due)". The plain reading on th« language of clause (ft) makes it clear that the word "which" refers to the "transfer" and not i&e word "eject". It is wU settled that notice required under this clause is the notice intimating the occup ant the fact of transfer in favour of the transferee. Any other construction of the language of their clause would lead to absurd results. 9. Learned counsel then contended that even if the first notice was valid, the notice served for any future default by the tenant would have the effect .of recommencing the period of protection from the date of such subsequent notice. The argument is wholly misconceived and contrary to the clear pro visions of section 30 of the Act which lays down that the period of protection would commence from the date o? notice once and for all. 10. Mr. Anis Ahmad then urged that the finding of the two Courts below thai the premises were bona fide required for the personal use of the respon dents, is not sustainable on the evidence on record. I am afriad the appellant! is act entitled to seek a reappraisal of evidence in second appeal in case of a] concurrent finding of fact. The two Courts below haVe car:fully assessed the evidence and reached the conclusion that the respondents were living with the brother of the deceased transferee in bis house which was not sufficient for the needs of such a large family. No case of misreading of evidence has been made out to call for interference with this finding of fact, I find no force in the submission of the learned counsel ?hat since neither the wife nor the children of the deceased landlord were put in witness box, no reliance can be placed 01. the evidence adduced by the respondents. The respondents had relied upoa the evidence of tint mother and the brother of the deceased landlord. Toe two Court below have relied upon their testimony and there is no legal require ment that the landlord himself should appear as his own witness in support of his house. Be that as it may, the fact remains that Mst Maqsoodi Begum, the mother 0? the deceased landlord who was examined as a witness in the case was one of the landlord having succeeded as a cosharer to the premises m dispute on account of death of her son alongwith the widow and the children of the deceased. The notice served by the (deceased landlord prior to the institution of the proceedings as well as ^tbe pleadings, had menttoned the fact that the premises Were also required for the use of the mother of the deceased. The case of the respondents was, therefore, consistent with their pleadings. Besides tnc expression "for bis own occupation" as it occurs in section 13 (3) (/) (a) of the Urban Rent Restriction Ordinance, 19S9 has! received a liberal interpretation to include not only the need of the family ofg the landlord, dependents and persons, essential for such occupation, but also! all other genuine requirements of the landlord including better and healthier| accommodation vide Adamali Hasanali v. Rubab Bal (PfcD 1965 Karachi 408) and Adamoll Hesanaliv. Rutl> Bet (PLD 1967 Karachi 437). ' 11. For the foregoing reasons, there is no merit ta this ^appeal which is accordingly dismissed with no order as to costs. However, the appellant is granted a period of four months for handing over the possession of ths pre mises to the respondents subject to the condition that he regularly pay« tits monthly rent
P L J 1980 Karachi 120 P L J 1980 Karachi 120 zaffae hussain mirza, J Mst. LADOO BAI Versus AU JAN Second Appeal No. 184 of 1977 decided on 30-10-1977. W.P Urban Sent Restriction Qrdiaaw (VI of 1»)-S. 13 (6) and S. 15(4) Deposit of tent each month bat after preicribed dateConteatioa that defaatt was not wiifui. not substantiatedCoacarrens finding of two Courts below that tenant wa guilty of defanttFinding qua default not assailable in second appeal Appeal dismissed. (Par. 3) N. A. Dotrash for Appellant. 5. M, Gharibn&waz for Respondent. QRDKK The appellant in this sccoad appeal uadcr S. IS (4) of the West Pakistan Urban Rent Restriction Ordinance, 1§3», (htrainafter referred to aa the Ordi nance), is the tenant of the respondent ia the premise in dispute. The respon dent filed eviction application on 3-7-74 against the appellant on the two grounds, namely, (1) default in the payment of rent, and (2} boH& fide personal requirement. After the written statement was filed by the appellant the learned Controller, on 16-12-74 passed an order for deposit of rent under S. 13 (6£ of the Ordinance. In the events that have happened, the appellant had, prior to the institution of the eviction proceedings, by a Misc. Application deposited rents for the period ending on 31-10-74. Taking into account the rents thus deposited, the learned Controller directed the appellant to deposit rent for the month of November. 1974 by 16-1-75 and deposit regularly the current rent for each bucceedine month by 15th of the c&lendar month. On 4 9-76,.the respon dent landlord moved the learned Controller under S. 13 (6) of the Ordinance for striking of the defence of the appellant on the ground of non-compliance with the interlocutory order for deposit of rents. 2. The learned Controller, after examining the report of the Nazir of the Court came to the conclusion that the appellant deposited rent for each month after the prescribed date for 11 months covered by application under S. 13 (6). Consequently, by nis order dated 30-3-77 the learned Rent Controller struck off the defence of the appellant and directed the appellant to hand over possession of the premises to the respondent. In an appeal taken by the appellant before the learned 4th Addi. District Judge, Karachi the order of the Rent Controller was affirmed and the appeal was accordingly dismissed. Hence thit second appeal. 3. Before me the learned counsel for the appellant concedes that there has been non-compliance with the interlocutory order passed by the learjted Reat Controller under S. 13 (6) in so far as the current rents for, A each mo^th were deposited after toe prescribed date; of 15th of etch succeeding moajh. He, howevee, contended that the provision of S. 13 (6) are not mandatory and the onus is upon the landlord to establish default oa the patt of the teoJta! ia witfolly disobeying the order for deposit of rents. He sought to place reliaoce on teyterai authorities in support of this proposition. There can be no cavil against this nrnrncilinn rtf law citKmttnwl hv thf fruitier) hm F »m afs-sid thft f there being no wilful default la the present ca«e, in view of tbe fact «ircumstaacet ob record, caanot be easvamd, The learned counsel cooae&M taat ia answer to the application for striking of defeace tbe plea of the teaeat was bat deaiai aad no fact were pleaded to show that tbe tenaat wa prevente by superior force or circumstances beyond ber control ia consistently dcDositinj rent after tbe prescribed date for 11 months. -The concurrent finding of toe twol Cottrte below if tbat tbe appellant wa> galjty of default and in my opinion taw finding is bos liable to be assailed ia tba aecood appeal. This ia particularly tot ia view of the fact tbat bo explanation was soboutted invoking toe discretion! of toe Controller to condone the non-compliance of the order oa a plea tbat ift was aot wiifel. 4. In tbe oircamstanaes the concurrent fiadiag of fact arrived at by tbe two Court, eaaaot be disturbed ia tais appeal. ib tibe rs»Bk tbe appeal fail aad is dismissal accordingly. The appaileat afaal! have a period of 4 month to hand over tbe possession to tbe reapondeat. Suit No. 630 of l7t decided on 25- 2- J 979 (Order oa C.M. 264/79). . (1) OrH FHcetfare Cede (V of 1908) O. XXXVII- R. 2 Summary suiu Suit bated upon iaitraeoent No form of plaint prewribed Defendants served with sommoBs in prescribed form Provisions qua leaVe^to defend, mandatory Default Plaintiff entitled to decree for principal amoUot doe on instrument aad for interest as specified therein-^ Basis of claim confined to iostrumeats memidned in R. 2(1) O. XXXVI! aims at speedy disposal leading littfe for Court to do Paly proof required being in respect of instrument relied upon Require meat: whether decree caa be passed vide R. 2 (2) (c) that h for priaeipal anaount aad interest thereon on basis of instrument itsetr and otherwise in accordance with S. 79 or S. 80 of Negotiable Instruments Act (1881) Soch requirement not present in instant case as evidence required for proving service charge., doty, sales tax, godowo rent and bank rate etp. Ordered that salt be reated as ordinary long cause suit and defendant to file written statement to regulate proceedings. i (Paras./, 6) (Ii) Negotiable Inttraaieata Act (XXVI of 1881) S. 44 provisions aid only where there is failure of any consideration originalfy 6r subsequently in part only in which case amount recoverable is liabie to be reduced in p/oportioa to such failure. (Para. 7) Hamza I, Alt for Plaintiff Mohsin SMdiqui and Iqbal jfalder for Dtfeadat. \ - - . Date of hearing'- 17-1-1979. JUDGEMENT .S. A. Nusrot, /.^the' piafatiff haa ' brsagSsttbte ^"sulio/O'.S? C.^C. fwtM recovery, of Rs. 1,97,169/11. The pltfesirress^vis t&tttSs® Mt^aois watt ;gra^fd lo»n.fa«jlity-to the '«zt«otof 'Rs, 2,«^OW/-,-^ / 17-4-1974 Halm pledge of 400 bap of plastic Moaldiag Compouod .imported iaroa^r wm, dcfeadants executed a promissory note dated 17-4-1974 in the sun of Re. 2,00,000/00 to secure the payment of the amount, which may be found due and payable .under the loan facility, with interest at 3% above the State Bank rate with minimum interest a til % per annum. The defendants also executed letters of arrangement, continuity and pledge on the same date in favour of the plaintiff. Farther reliance is placed upon defendant's letter dated 13-10-1976, which is purported to constitute acknowledgment within the meaning of section 19 of the Limitation Act. 1. The defendants were served with summonsjn the form prescribed u/O 37 C.P.C. on 20-9-1978 which required them to obtain leave to defend the suit from the Court within' 10 days. However, bo application for leave to defend was made and instead an application u/O 7, R. 11 C.P.C. was filed on 24-10-J978, which was dismissed as withdrawn on 141-1979. The defendants moved the present application oa 14-1-1979 under Rules 22 and 23 of the Sind Chief Court Rules, read with Order 37 Rules 2 and 3 and section 151 C. P. Code. 3. Mr. Mohsin Siddiqui, learned counsel for the defendants, contended that the suit as framed did not li« under Order 37 C.P.C. aed it was, therefore, not necessary for the defendants to apply for leave to defend and the suit was liable to be tried as an ordinary ioag cause suit. According to aim mere men tion of Order 37 C.P.C. in the plaint did not alter the nature of the suit and it was open to the Court to examine the pleadings in order to satisfy itself as to whether the suit in fact did lie under the said Order, it was contended that the nature of the claim and the kind of decree to be passed on are be both laid down in Order 37 which have restricted scope. According to Order 37 the amount claimed in the suit must be based oa as instrument as mentioned in Ru!« 2 thereof and the decree can be passed only for the .principal sum due on the ins trument and the interest calculated thereon in the prescribed manner. He relied upon the plaint and pointed out that admittedly the promissory note was secured by the plaintiff as a security for the payment of the loan and the amount shown therein was not paid to the defendants on its execution. He further referred to the statement of account filed with the Plaint tq show that the defendants were in. fact paid only Rs. 63.317/-at the time of the execution of the promissory note. He further made reference to various entries in the statement of account which pertain to service charges, duty, sates tax and godown rent and contended last tfaert was no agreement between the parties for the payment of such charges and the plaintiffs had, therefore, to prove the same as also satisfy that the . same were legally recoverable. The learned counsel did not press the application under Order 37 Rules 2 and 3 C.P.C. and confined his arguments on the basis of section 151 C.P.C, and Rules 22 and 23 of the Sind Chief Court Rules. 4. Mr. Hamza AH, lea reed counsel for the plaintiff, opposed the applica tion and contended that since the defendants were duly served with notice prescribed under Order 37 C.P.C. and so leave to defend, as required under Rule 3 bad been obtained, the defendants could not be heard in the matter and the claim of tbe'plaintiff was deemed to bs admitted and the suit decreed accor dingly. According ,'o bim the contention raised by the learned counsel for the defendants, at best, may have justified the grant of leave to defend, which, however., was not asked for. He relied upon a judgment in the case of Bank of Mattowalpur v. Siml Punjab Agenda (P L D 1966 Kar. 249) to support his con tention that ibe suit was competes! under Order 37 Civil Procedure Code. He also relied, upon section 44 of the Negotiable Instruments Act. tion for the determiaation of the contentions ratted by the learned conns}; Order, 37, Rule 2 is as under : "2 (1) All suits upon bills of exchange, hundies or promissory aotes, may in case the plaintiff desires to proceed bereunder, be instituted by presenting a plaint in the form prescribed: but the summons shall be So Form No. 4 in Appendix B or in sach other form at may be from time to time prescribed. (2) in any case in which the plaint and summons are in such forms respectively the defendants shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided to to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree; (a) for 'the principal sum due on the instrument and for interest calculated ia accordance with the provisions of section 79 or section 80, a& the case may be of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit, or for the turn mentioned in the summons which ever is less and for interest up to the date of the decree at the same rate or at such other rate at Court tbinks fit; and (6) for such subsequent interest, if any, as the Court may order under section 34 of this Code ; and No Form of plaint has been prescribed as mentioned in sab-rule (1) of Rule 2. However, the defendants were admittedly served with the summons are ia toe prescribed form. Subrute (2) lays down that ia any ca§« in which the plaint and summons are in the prescribed form, the defendant shall not appear or defend the suit unless he obtained leave and in default the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. According to clause (b) of sub-rule (2) such decree is to be for the principal amount due on the instrument and for interest as specified 'therein. It is thus clear that the basis of the claim in a suit under Order 37 mnst be confined to any of the instruments mentioned in sub-rule (1) of Rule 2 and the power of the Court is also restricted to the grant of a decree for the principal sum due on thg instrument and interest calculated in the prescribed manner. As such the mandatory requirement of Order 37 is that the plaist should disclose ao open and shut case : for the plaintiff to prove, and the defendant to defend, with reference to the instrument relied upon in the plaint and no more. The nature of the pleading under the order, summary as the same are, are aimed at speedy disposal of the suits, leaving title for the Court to do by way of framing of issues and recording of evidence; the only proof required being in respect of the instrument relief upon. 6. The plaintiffs have claimed interest at 13% with monthly rests and interest at the rate is included in the suit amount. Promissory. Note provided for payment of insterest at 3% above the bank rate and, therefore, evidence will be necessay for proving the bank rate at the relevant time and a decree cannot be passed straight away. Besides the plaintiff will also have to prove the amount of service charges duly sale tax and godown rent regarding which there ir, a or could be any agreement in the promissory note. In the circumstances ti allegation in the plaint with regard to the amount claimed cannot be de«M to be admitted within the meaning of sub-ra! (2j of Rale 2 Order 37, It order to bring the-suit within the meaning of Order 37, it is to be JBdgr 1 whether decree can be passed as laid down in clause (0) of sob Rule (2)- of R« 2 of Order 37, that is, for th« prtacipti amount due on the instrument and for fatemt which is to be cateetatod either oa the basis laid down in the tnstrumoat Itself tnd otherwise ia accordaace with the provisions of section 79 or leetien O9, at tbe cite may be, of (be Negotiable Instruments Act, 1811, So«b reqatre- (neat is not pretest in tbe instant suit. -7. The judgment in &t cast of Bmk of Beknolgiir referred to above it distinguishable o» facts aad is not relevant. Section 44 of tbe Negotiable BStronents Act will also have 706 application to tbe facts of this cae. The laid section (imply lays-down that when tbe consideration for which a person. ligned a promissory Note, Bill of Exchange or Cheque consisted of money and, ff« originally absent or ns subsequently failed in part, the sum which a bolder, tending in immediate relationship with such signer is entitled to receive from , is proportionately reduced. This provision can bccalled in aid only where tere was a,y failure of cotttidefatios orsginaily or aubsequently in p«n only, in "which case tbeasaouot recoverable under the instrument it liable to be reduced in pfoportion so sueh/ailare. i. For the foregoing reasons the application must be granted and tbe suit is ordered to be Created as an ordinary ioag cause suit aad the same will be tried accordingly. The defendant should bow file the written atfttement within two weeks and fvrtber proceedings should be regulated by the Additional Registrar as application to ordinary suits.
P L J 1980 Karachi 124 P L J 1980 Karachi 124 zaeaullau lodi, J asswub Tsmui mills . CO? 1ST,. CaastUutionsS Petition No. 74?/i$?S decided oa 2S-$.}97$. DjafsXt Domestic enqniryNotJsg of esqasry to vorkataa issued obi all available addressesDeclsioe of Laboui Court qm t^armvuus^ of proper aotice, set aside la exercise of wff juritdlcddo. (Para. 5)- IqbolKssi for Petitioner. 3 .J Skafaaoka S^asain for Respondent No, 2. Date of hfaring i ' 2S-S-l97f. JUDGEMENT The petitioner's case is tliat 22nd Hecember, 1973 was declared as holiday by the doverament of Siad oa ace chbi of -Sfetfee-Meraj while tSth August, lt?4 was declared as holiday on «ccftam of $hab»e»Baret, 4I& September, '074 was optional holiday and ft was notified as tosh under tag Factories Act. "" ~ »ril 1§74 Government of Siad deleted the entries wttercby Shab-e- I Sfetb-e-Bartt bad bees declared ss holiday. A» a rewH of canceli of these holidays the workers union which was cotteeUve hargateini led a|iaraiiea aa4> d^masded that these feoijfiayi. sboald be at u ' Jvwas. i« 8b«e drcMssstsssees sfeet the pe«rtba>e« alXi Ihe vabargaieios ageat snioa d«eld«d that these two holiday ' awed: tat 'w«rfeets ondeitei le <«rk c» 6«9>lf74 2. Oa 6-9-1974 which was Defence of Pakistan Day tbc mitt was opvaed and all ffee workers attended their duties. The shift was In full operation when the responden No. 2 and one Badar»uz-Zaraan allegedly started instigat ing the workers to stop the work. Tb«y alto stopped some looms forcibly by palling the beadles themselves because the work rs did not want to stop the operation of the machinery. Later on he switched of the electric connect loa of weaviag department doe to which work remained suspended for about 45 minutes. Be at also alleged to have cat off the wires of inter-communication system and tried to came damage to the electric power house. A report was lodged with police and the respondent No. 2 sad Badar-uz-Zaman were inistantly arrested. 3. While is Police custody the petitioner served respondent No. 2 with a charge sheet and ftUowed him four days time to give his explanation. Howewer, no explanation was received from him. Thereafter he was seat a notice of enquiry on the address which he .had given in the contract of em ploy nsetst form. A copy of this notice was also issued to htm on the local address given in his group insurance form. A copy was also sent to his native village. Copies of the notice were also sent to the Collective Bargaining Agent Union. Copies of the notice were pasted on the gate of the mills on the notice board near the workers canteen and outside the weaving depart meet but des pite extensive communications of notices, the respondent No. 2 remained absent on t4tb September,1974. The inquiry was therefore hefd exparte. His dismissal from service was reeorameaded by the inquiry Officer and consequent ly he was dismissed from service on 17tn September, if74. 4. The respondent No, 2 gave a grievance petition to the petitioner and subsequently filed an application u/s 25-A of She Industrial Relations Ordinance, 1969 seeking bis reinstatement io service. This application was dismissed by the Junior Labour Court on IBtti December, 1974. An appeal was Sled against this order which was allowed on 21st April, 1975, oa the ground that! inquiry letter had not bees served upon the tecood respondent end the method adopted for the service of the hqairy !«tt»r wa not m accordance with taw. It is against the order of the labour Court dated 2ist April, 1975 that the present Const! tuUoaal petition fats beea filed. 5. The main contentioc of the learaed counsel for the petitioner is thati he served notice ia question apon the 2nd respondent on all his available! addresses «ad it could aot therefore he said that the method of service wail net correct. | fully agree with the coateation of the teamed/ coaascl forj thepetitioner that letters were seat on a!! the addresses which eoahf poettely be available to fhe petitioner including the iast address of the 2nd respondent wbfee was givea by hns in the froup msurance for but all the tetters were received back aassrved with the report by the postman that the 2ad respondent had left for corns other place or that he was eot available on the given address. Use Labour Ceert has erroneously held that the notice was served upon the 2&trespoadent vtiealte was still in jail, Tfee aoeamesu filed alongwith the petitioa afeow that the 2nd reepoadeat had beea released from custody on 9 th fepteater, IfW wheres tb« inqoir? «§s heW oa ]4 Septeojber. 1974. The iwracd cttonsel for the secwad respondent && argued that the iaijauy wee held ia a haf feaste m tbe sUeged mfe oa&eoiag took pjase «» «th Sepfteaber, 1974, tie ttorice was teat daJOA ^pteafew7«74. toe Inqalry ww acid 4 th cnt«asb«r, |f|4 «w» th« daasfeaal «f4er was pwsed oa 17th Septtmher, l»74. do not tail any iwl^taaw" la «fei:«ajapeat. It « aot aecesaary that leaf period thotM ha?t %«»»^«ae io. «opeh^e the iafoiry. Ote«tli8aB> le«V, 1974 wfcfefIK «B««a4 «te? tle ffcve lh« aetlriaaer with a charge sheet when be was in police custody and therefore h came to know about it ibat an inquiry was iikeiy to be held against him. He did not reply the charge sheet. Therefore notice of inquiry was given to him on 10th September, 1974 and by that time the 2nd respondent bad already been re leased from custody. The service of the aotice of inquiry was so extensively made that it cannot be presumed that the 2nd respondent did not come up enow about it. Several cooies were seat to him on tbe addresses available with ihe petitioner besides tbe pasting of tbe copies of notice! on several notice boards, A copy of the notice was also seat to tbe collective bargain ing agent union. There was nothing more which could be done by tbe petijtioner to inform the 2nd respondent about the iaquiry. la Uiete circums tances it cannot be said that the inquiry was either conducted it hot haste or that the notice of the inquiry was not issued on correct address. In fact the petitioner made best of efforts to affect the service of notice. Tbe fiading of (the Labour Court that the service of the notice bed mot been correctly affected is erroneous and therefore untenable, 6. For the foregoing reasons, ! allow the petition and declared tbe im pugned order as illegal and without jurisdiction. The parties are however, art left to bear their own costs.
P L J1980 Karachi 126 P L J1980 Karachi 126 sawad Au sb ah, J MUHAMMAD Verses M/S AHMAD GBKMlfeAL CO. K«»cM Second Rent Appeal No. 203/1°77 decided on 12-1-1980, (i)W.P. Urban Rest Restriction Ordinance (VI of 1959)S. 13(6) and S. 15(4> Question : default in payment of rentQuestion being one mixed of law and fact, concurrent finding of Courts below can be displaced in second appeal. (Pari. 3) (H) W.P. Urban Rent Restriction Ordinance (VI of 1959)S. 13 (6)Word, "default"Meanings stated and held that default cannot be condoned except for cogent reasons given by defaulting party to justify condonationDefault not to be deliberate but beyond control of partyDirection to condone de fault to be exercised judicially and not arbitrarily. (Para. 4) (H) W.P, Urban Beat Restrictioe Ordinance (V! of 1959)-S. 13(6) and S.) 5(4)Continuous default of eleven months in depositing rent regularly in accordance with tentative order of ControllerTenants' plea that man deputed to persue proceedings in Court, fell illDefault condoned by Con trpller and order of condonation affirmed in first appealSecond appeal to strike off defence of tenant, accepted and ejectment ordered, i (Para. 5) V-i Maqbool Ahmad for Appellant. . Mohammed Ahtan Sheikh for Respondent. Dajgoflif«ri»g; 4-12-1979. - judgment Thii Second Rent Appeal is filed againtt tbe judgment dated 24-9-1977 ofJeamed IVthAdditional District Judge Karachi whereby appeal «g«twt the rejection of application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1958 for strike off defence by the learned Rent Con troller, has been dismissed. 2. Briefly stated facts are that the course of ejectment proceedings filed by appellant/landlord against respondent/tenant, tentative rent order was passed on 16-9-75 after hearing the counsel for parties and perusing the rent accounts and pleading by the Rent Controller. Apart from arears, the tenant was directed to deposit future monthly rent at the rate of Rs. 40/- before 15th of every following calendar month till the disposal of the matter. An application for striking off defence was filed on behalf of landlord on 11-12-76 stating that tenant had failed to deposit rent from January, 1976 upto the date of filing application i e. 11-12-76. Notice of this application was issued to the tenant, who filed objections and after hearing advocates for both parties, the learned Rent Controller held that the default who not deliberate and was due to circumstances which were beyond the control of tenant as the agent of tenant was sick and could not come to Karachi to deposit the rent in the Court, hence the application for striding off defence was rejected, against which appeal was filed before learned Additional District Judge which was also dismissed. 3. I have heard the learned Advocate for bath the parties. Initial objection was raised on bebaif of the respondent that the question whether there is default or not is one of the fact and since both Courts below have given concurrent findings of fact that the default is not deliberate as such interference is not called for in second appeal, This objection is patently untenable for the reason that there is plethora of case-law on the point that finding on the question whether there was default in the payment of rent is one of a mixed question of law and fact, neaee concurrent findings of the Courts below could be displaced by the High Coari ia second appeal. Reference can b: made to the case of Mohd Alam v.ffoor Mobd (1973 S.C.M.R. 606). ^ 4. It was next contended oa behalf of the respondent that the word "default" in section 13 (6) of the said Ordinance does not have the same connotation as non-compliance of the order of Rent Controller to deposit the rent is such mere non-compliance i not sufficient reason but the Court has to see whether there has been default or not, 'Default as defined in Stroud's Judcial Dictionary! embraces every failure by the. defendant to perform his contract unless prevented] by superior force qverwhich he had no controi. For this proposition reliance) was placed oa the case of Mit. Skak Jekan v.. Mat. Mukti (PLD 1963 Karachi 777). On this premises it was farther contended that the Rent Controller nas discretion to conclude whether default is deliberate or not and since both the Courts below have found that the default was not deliberate, such proper exercise of discretion should not be interfered with in second appeal. No doubt both the Courts below have relied upon this ruling noted above. There is also no cavil about the legal position enunciated therein on this particular point stated above. There v are two important factors which are to be kept in consideration. Firstly discretion Is to be exercised judicially aad nol arbitrarily and sound reasons are to be stated for such exercise. Secondly if the default is to be condoned as not deliberate and beyond the control of the party thea also cogent reasons are to be given to justify such conclusion and u ii imperative for the party alleging that default is not deliberate to five sufficient reasons of convincing ' aature to prove that default was beyond, .bis control and unintentional. Tali will depend largely oa the circiimstaBees of ««cb eate. 5. IiMta instant ease the ftraaat has failed te deposit moataiy rent in the Court for a period of about 12 months afttf the tentative rent order was passed on 16-975, Application for strikiag off defenca wa« made on il-U-76, Tbe learned Rent Controller ib bis order dated ! 8-2-77 dnmitsing application of tbe landlord has stated that tenant bad aot deposited real io coispijaace of tee order of tbe Court, which is supported by tbe report of tbe Naagr however, tbe learned Rent Controller was further impressed by she fact that tenaat bad deposited reat on 11-12-76 in lump sum and further deposited two raontbs rent » advance, which reflected bis bona fide intention, Now tbe question is tbat default baa. been committed conti&uousfy for 12 months when rest was aot deposited from lanuary 1976 to December 1976 as against tbe directioa » tbe tentative rent order tbat tbe rent is to be deposited before iStfa of every following calendar raoatfa regularly. This sbows tbat default has been committed on at taaat eleven occasions. Tbe reason given by tbe Reat Controller to coadone the default ia tbat it was argued on bebslf of tbe tenant that one Mr. Zaki who persaed the case in the Court was out of station and eoald aot come to Karachi dee to illaeai. hence deposit could not be made, which was not deliberate aad was d«e to circunaifaoce which were bey ob d the eoatrol of the tenant. Thai raasea ia aot upporte4 by the record aad no evideace a beeo prodooed ia Una eoatut when default of nearly oae year » sought to be condoned. ib tfcc vrHfan objections filed against the applieasioo for striking off defense II ie »ot stated that Mr. Zaki was lick for oae year. On the contrary it ia only tBMtioatd ia tbe objections that Mr, 2ki was oat of Kfarebf aad could not «OM earlier to (deposit thereat. Eve this particalar asacrtioa that Mr. Zaki was oat of Karachi for sach a loaf time ia aot supported by aay evidence proiaoid by the Jteoftnt. It is not the case of the respondent that no opportunity was givea by the Court because application for striking off defence was fifed oa H-12-76 aad notice was issued to the tenant and thereafter four d«te were given by Use OMrt aad objections were filed on the second date i.e. 12-1-76, attll ao evvdeaCe was oduced tbat Mr. Zaki .was away for one ycardr was sick as it is alleged. It is ateresting to note tbat respondent/tenant ia Gaemical Company which is ruriniag ncern and tbe rent could be deposited In the Court by any person oa behalf or c company. Another striking feature of the case is that after' tbe date of lieged default that is January 1976 the case was adjourned oa eight occasions and from them oa three such dates i.«., 26-6-76, 2-8- 75 and 19-10-76 the order sheet of tbe record of the Rent Controller sbows that parties aad their advocates were present. . From this an inference can be drawn that Mr. Zaki. who is stated to be tbe only person who persaed the case was. present, bat still teat eou Id not be deposited for nearly one year. In these circumstances it can not be said tbat tbe icspoodent/tenant has produced any convincing evidence to claim entitlement to the conuodation of default of eleven montbs ia depositing rent -regularly in accordance with the tentative rent order and no justifiable reason's are assigned for dismisiag the application of the appellant for striking off defence. For the fact and reasons mentioned above the impugned judgment of learned Add!. District Judge affirimiog the order of the Rent Controller dismissing (be application u/s 13 (6) of the said Ordinance is set aside and con sequently the defence of the respondent is struck off. Appeal is allowed with :costs. Respondent/tenact is directed to handover vacant possession of the demised premises to tbe appeilaat-laadiord within four months from the date of this judgment and be has to deposit rent regularly for theae four months in 'accordance with the tentative rent order, failing which be would be liable to ej»c|ment if default is committed by him before the expiry of tie« allowed herelabefore.
PL J 1980 Karachi 129 PL J 1980 Karachi 129 zaffar husiain mikza, J MAHBOOB ALI DHALLA Versus ABDUL MALIK AHMAD HABIB Second Appeal No. 44 of 1975 decided on 28-11-1979. . W.P. Urtaa Kent Keattfcttai Ordinance (VI «f 1959)S IS (3) (4) and S. 13 (6)First appealController's oraer striking off defence on application by tenant for depositing arrears in instalmentsAppeal against such orders dis missed in Jlmfae without calling for recordContention that matter needed ao re ference jo record and was relating to interpretation of provisionsContention repelled and held that subsection (3) of S,. 15 was complete procedure, com pliance of which was mandatorySecond appeal of tanaot accepted and cmc remanded to first appellate Court for disposal according to law, (Paras. 5,6) I.H. Zatdi for Hobibur Redman for Appellant. Z.C, Valliani for Respondent. Dele of hearing : 28-11-1979. JUDGMENT This appeal under section 15 (4) of ttte Sind Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) irises out of the or&r dated 13-275 passed by the 1st Additional District lodge, Karachi dismfoaiOf the appeal of the appellant intimiiu. 2. The respondent filed eviction application against the appellant on the sole ground of non-payment of rent. 3. The appellant among ether grounds challenged the relationship of landlord and tenant between the parties on the plea that the respondent had by an oral sale agreed to transfer the premises in dispute to him for consideration which was partly paid and was partly payable in instalments. The Rent Controller first took up the determination of the preliminary issue' as to ef istence of relationship of landlord and tenant between the parties and by hit order dated 18-7-74 have a finding against the appellant thai be continues to be tenant of the; respondent.. Thereafter by order dated 15-8-74 under section 13 (6) of the Ordinance, the Controller directed the appellant to deposit the arrears of rent amounting to Rs. 4,160/- before 31-10-74 and further to pay the current rent before Ac 15th of each calendar month'. In th "events that happened, however, the appellant was unable to deposit the arrears of rent within the prescribed period. Consequently, on 4-11-74 the respondent applied to the Controller for striking off the defence of the appellant, ftefor? this application was decided, however, the appellant submitted an application on 11-11-74 requesting that in view of his acute financial difficulties he- may. .be permitted to deposit the amount of arrears by instalments. The^ C dismissed this application on 15-11-74 on the grouod that already time had been granted to the appellant to deposit the arrears .pus,, t there was. do reason to grant the application. Simnltaoebusiy, ob the , th« Con^roifer also allowed the apciicatiba of the «»poBdent and in ? cba»- qaeoee struck off the defence of tl»e appellant ordering bis eviction. The appellant appealed against the said order and by the impugned order the learned lit Additional District Judge, Karachi acting as the Appellate Authority dis missed bis appeal in limine. 4. The only point urged before me is that the order of the 1st Additional District Judge dismissing the appeal in limine without summoning the record of the case from the Controller, was ex facie illegal and in violation of the mandatory provisions of subsection (3) of section 15 of the Ordinance. Reliance in this behalf was placed on Humayoon Zulfiqar Ismail v. Hamida Saadat Alt (1968 SCMR 828). Learned counsel invoked the dictum laid down by their Lordships to the effect that subsection (3) of section 15 of the Ordi nance Is a complete Code of Procedure in itself for the purpose of an appeal under that subsection and that an appeal cannot be dismissed under that subsection without first calling for the record of the case from the Controller. 5. Learned counsel for the respondent, on the other band, argued that the facts of the cited case are distinguishable inamuch as, in that case some questions of fact and law required decision which were ignored by the Appellate Authority in disposing of the appeal in limine. In other words, the submission was that the ratio of the decision is not that in all cases an order of summary dismissal of an appeal by the Appellate Authority without calling the record of the case from the Controller will necessarily be an illegal order in violation of subsection (3) of section IS. Learned counsel pointed out that the appeal before the Appellate Authority below was being pressed only on the point that the appellant being in strained financial circumstances was entitled to the facility of deposit of the amount of arrears by instalments. This question, according to the learned counsel, could be decided on interpretation of the relevant provisions of the law as was indeec done by the Appellate Authority and no reference to the record of the case was required. The submission of the learned counsel is very luring. However, after going through the cited judgment I feel bound by the decision of this question of law by their Lordships. The rule was laid down in the aforesaid judgment in the following words : "Dismissal, under Order XLI, Rule XI of the Code of Civil Procedure, of a first appeal is, therefore, not the general rule. If the facts are not simple or undisputed, a first appeal is not generally dismissed in limine. But in the present case it appears to us that subsection (3) of the Rent Restriction Ordinance clearly incorporates within it the rule that the Appellate Authority will not dispose of the appeal without first sending for the record of the case from the Controller and bearing the parties and further if necessary, making such further enquiry as it deems fit. The duty to call for the record in the first instance is imperative. It is difficult, therefore, to agree that under this section the Appellate Authority could dismiss an appeal in limine. Since the provisions of the Code of Civil Procedure have not been made applicable to an appeal under subsection (3) as has been done in case of an appea} to the High Court under subsection ^ (4), there appears to be substance in the contention advanced on behalf of the appellants that subsection (2) of section 15 is a complete Code of Civil Procedure in itself for the purpose of ap appeal under that subsection. We cannot, therefore, approve of what the learned District Judge has done in the present case". . The cited passage unfortunately leaves no room for holding that in case here the Appellate Authority considers, in view of the points urged before it, respondent has referred to the concluding portion of the cited judgment where their Lordships had referred to certain questions of law and fact which had remained undecided by the Appellate Authority. However, the mere mention of this aspect of the case in no way, whittles down the absolute rnle laid do wo by their Lordships as to the mandatory nature of the provisions relating tc 'calling for the record of the case by the use of the word "imperative" I ma) here refer to Allahdiya Saleemv. Abdul Qadeer (PLD 1971 Lahore 311) where the aforesaid judgment of the Supreme Court came in for interpretation. ven in this case Musbtaque Hussain, J. (as he then was) after referring to thtt passage reproduced above was of the opinion that the ratio of the rale laid down! by their Lordships was that an appeal cannot be dismissed without first calling for tbe record. 6. For the foregoing, it is clear to me that the order of the learned District Judge was obviously in violation of mandatory provisions of section 15 (3) and, therefore, cannot be sustained. In consequence, this appeal it allowed aad the case is remanded to the learned Additional District Judge to be disposed of according to the law. It has been, pointed out to me that this case has been pending adjudicatiM on this short point for a great length of time. Therefore, it has become aartasary to make a direction for early disposal of the case. The learned Additional Dieting lodge, shall, therefore, disposes of the appeal within a period of three oionths from the date of receipt of the record and proceedings by him. There will, however, be no order as to costs.
P L J 1989 Karachi 131 P L J 1989 Karachi 131 fakbruooin G. buahim and B.G.N. kazi, JJ COMMISSIONER. INCOME TAX (Gsriral) Karachi versus M/s. PAKISTAN INSURANCE CORPORATION, Karachi Income Tax Case No. 46 of 1971 decided on 21-11-1979 lacooM tm Act (XI 1922)S. 2 (6-A)(rf) and S. 10 (2) "Dividend," scope ofRedemption valn'e k relating to preference shares of limited company received by assessee Held : neither dividend nor taxable in the hands of assessee. ' (Paras. 6, 7) Mansoor Ahmad Khan for Applicant. Alt Athar and Iqbal Nairn Pasha for Respondents. Date of hearing: 14-13.1979. JUDGMENT Fakhruddin G. Ebrahim, V.The facts giving rise to these applications under section 66 (1) of the Income Tax Act. 1922 are that in each cue respon dent held specified number of preference shares in the Colony Textile Mills Ltd., which the company redeemed in terms of its Articles and paid to tbe respondent its face value, which amount wag. sought to be excluded from tbe respondent's taxable income but Was included by the Income Tax Officer on ' the ground that such receipt was "dividend" within the meaning of the expres sion defined (under section 2 (6-A) of the Income Tax Act. In appeal the Assistant Appellate Commissioner reversed this order holding that it was a case of return of the share-holder's investment which could not be termed as income in his hand. 2. The matter went up before the Income Tax Appellate Tribunal, Karachi . The Tribunal dismissed the appeal, in view of -its earlier decision in ITA No. 1923 of 1967-68, holding as follows :''although these receipts were covered by the definition of the word 'dividends' contained in section 2 (6-A) (d) yet the same are not taxable ic the bands of the respondent as the fictional dividends had been retained by the company itself and tbe respondent was in receipt of the return of its original capital." In the case relied upon tbe Tribunal after"coc-;ag to the conclusion that the assessee's case was not covered by the exemption contained in proviso to section 2 (6-A) (d) went to observe as follows :- "The question that now engages our attention is the nature of these receipts so far as the assessee-respondent is concerned. It is clearly a fictional liability and therefore, there is no escape from payment of tax. We are, fortified in this view by a decision reported on (1963) 48 ITR 288. However, we find force in the argument that even if the present distri bution cap be termed as dividend within tbe mean ting of section 2 (6-A) (d) .. it is not taxable in tbe band of the assessee-respondent whom has received nothing bat only his capital invested. The so-called dividends, on distri bution hftve been retained by the Company itself and, therefore, the same should be taxed as tbe dividend income of the distributed company." 3. By tbe present application the Department submits that the following question of law arises cut of the Tribunal's order for the consideration of this Court which this Court which this Court may consider and answer : "Whether on tbe facts and in tbe circumstances of the case the Tribunal was justified in holding that tbe redemption value of Rs. 105,600/- relating to preference shares of M/s. Colony Textile Mills Ltd., received by the asi«ssee, who und& Article 176 of tbe Corporation's Articles of Association was also entitled to participate in the surplus ib the event of winding up though covered by ibe definition of dividend i» section 2 (6-A) (d) of the Income Tax Act, was not taxable in tbe band of the assessee T' 4. Mr. Mtnsoor Ahmed Khan, tbe learned counsel for tbe department argued that tbe Tribunal laving come to tbe conclusion teat tbe receipts by tbe assessee were dividends within tbe meaning of the expression defined in the Income Tax Act ought to have altowed the appeal «m not gone into the extraneous, question'of liability, tf any. of tbe Colony Textile Mills Ltd. 5. Mr. Afi Atbar for respondent in f.T.C Nes. 46/1971, 53 to 54 of 1571 and Mr. Iqbal Nairn Pasha for respondents in I.T.C. No. 52 of 1971 strongly urged that (be view taken by the Tribunal that the said receipts were dividends were wholly erroneous. Section 2 (6-A) (Breads as follows : "Section 2. (6-A)dividend includes .: (d) ! any distribution by a company on the reduction of its capital to tbe extent (p Whicb the Company possesses accumulated profits, whether sii«h accumaiqted profits have been capitalised or not; «nd .' Provided that'dividend'docs nor include a dUtributioB in respect of any shafe issued for full cash consideration which is not ten titled in the event " of Uquidatioo ip pa nicipatem the surplus asset when such" distributloa. is made In accordance which sv^clause. <c) or(<f) 6. The two fold contentions raised on behalf of the assessees is firstly that it was not a case of distribution of profits at all''and, therefore, the receipt was not dividend and in the alternative the assesses"s case was covered by the proviso, for the respondents as preference shareholders were, in the event of liquidation under tbe Articles of the Company, not entitled to participate in its surplus assets. 7. Mr. Aii Athar and Mr. Iqbal Nairn Pasha, the learned counsel for the respondents contended that the preference shares are redeemable under the Articles at the option of the Company and by redeeming the shares in ques tion all that the company has done is to repay to the preference shareholders their respective capital and there is no question of them shareholders having received any profits, while to be dividend in terms of the definition reproduced bereinabove there has to b; distribution by tbe company of its accumulative profits whether or not such profits, may have been capitalised by the company. Tbe learned counsel argued that the aforesaid definition of dividend is in fact consonant with the recognised principle in Income Tax Law that income is texable and that which is not income is outside the purview of taxation. It was argued that nothing has "come in" and, therefore, no incom:, for all that has happened is that an advance made by the preference shareholders to the company on specified conditions has been returned to them. The definition itself envisages return of profits to the shareholders in aoy farm whatsoever which is deemed to be dividend in law and since in the present case the return is no more than what the respondent had invested in the company it does not fall within the definition of dividend, in this view of the matter it is unneces sary to examine the question whether or not the respondents' case fall within the proviso to clause (d) of subsection (2) (6-A) defining dividend. We will, therefore, reframe tbe question as follows and answer it in the negative : "Whether in the facts and circumstances of the case the Tribunal wa? justified in holding that the redemption value relating to the preference of M/s. Colony Textile Mills Ltd., received by tbe assessee was dividend' within the meaning of the expression defined in section 2 (6-A) (d) or that it is taxable in the hands of tbe respondent assessee
P L J 1980 Karachi 133 P L J 1980 Karachi 133 zapfar hussain mibza, J ZAFFAR MAHMOOD
versus MUHAMMAD SALEH Second Appeal No. 22 of 1975 decided on 6-11-1979. W-P. Urban Rent Restriction Ordinance (VI of 1959)S. 13Read with S. 30, Displaced Persons (Compa. and Rabbn.) Act (1958)Effect of notice under S. 30 sot aegated during pendency of appeal or revision before Settlement Authorities unless such Authorities stay operation of order under challengeAs soon as evacuee property is transferred, transferee. becomes entitled to charge rent from occapant of property who will b>. liable to ejectment if fails to pay within three months of notice of demandPendency of ^proceedings may be re!e»f Bt ecs9«ider»ti»n for exercise of discretion in favour of tenant which«»» n<H eerd«ed sb iastaruestc do to absence of evidence to estabiiyh circammncefor such exerciseOrder of eviction though upset in^first appeal but restored in second appeal. (Para. 4) Mosood Hassan Khan for Appellant. Respondent absent. Jait of hear in e : 16-1 M 979. JUDGMENT The appellant is the transferee of house No. C/932, Hyderabad under the Settlement scheme. The house was admittedly in possession of the respondent arfti had earlier been transferred to him on his L.H. Form under Settlement Scheme No. 1, but the transfer was cancelled on account of his default to pay the evaluation price. Thus (he proparty being available was transferred to the appellant under Settlement Scheme No. VUI on 29-11-66. Subsequently, on 2-1-67 a P.T.D. was issued in his favour. Since the respondent was in occu pation of the property the appellant served a notice under section 30 of the Displaced Persons (Corap. and Rehab) Act. 1958 which was received by the respondent on 17-4-67. By his reply dated 17-5-67, however, the respondent demanded (hi copies of the documents of transfer which were supplied to him through letter dated 24-6-67. Notwithstaading the above, the respondent failed to pay rent within the statutory period of three months from the date of receipt of the notice of demand. The appellant, therefore, filed application for his ejectment en 28-11-67. The respondent appeared before the learned Rent Controller and denied the relationship of landlord and tanant between the parties on the ground that proceedings were pending before the Settlement Authorities to determine the entitlement of the respondent for the transfer of the property. On this plea the Rent Controller framed the issue regarding the relationship of landlord and tenant between tbe parties and the maintainability of the application. On 19-9-69 the Rent Controller passed orders"'whereV be decided the issue regarding the relationship of landlord and tenant between the parties, in favour of the appellant and at the same time ordered ejectment of the respondent in view of the fact that no rent was admittedly tendered by him. This order was set aside in appeal and the case was remanded to the Rent Controller so far a the question of default in the payment of rent by (he respondent was concerned. The respondent did not further pursue his contention that no relationship of landlord and tenant existed between the parties. 2. On remand the appellant examined his attorney in evidence and produced certain documents, but the respondent made a statement declining to produce any evidence. By his order dated 12-S-73 the Rent Controller decided tbe issue of default against the respondent and ordered his eviction. The respondent appealed against the aforesaid order which was disposed of by tbe learned III Additional District Judge, Hyderabad. In appeal the teamed Judge was per suaded to hold the view that the notice under section 30 although served on 17-4-63 remained suspended in its operation until 23-10-68, when the pending revision petition filed by the respondent before the Settlement Commissioner was finally dismissed. ib this view of the matter the learned Judge has tajten the view that since the ejectment application was instituted on 28-11-67 during the period the notice under section 30 remained suspended, no opportunity was available to the respondent to comply with the notice by tendering rent within the statutory period and, therefore, he was not a wilful defaulter in the payment of ier(t within the meaning of section.30 of the Displaced Persons Act, As a teiult, tfcc learned Additional District Judge accepted the appeal and set aside the order of ejectment. The appellant has now come up in second appeal against the aforesaid judgment. 3. Before considering the submissions of the learned counsel for tbe appellant, it will be necessary to mention some further facts. It appears from the orders passed by the learned Additional Settlement Commissioner and the Settlement Commissioner that the petitioner had filed a L H Form for the transfer of the premises in 1960 in consequence of which the house was trans ferred to him and the P. T. O. was issued in his name. But he did not pay the price ihspite of a demand notice sent -to him io June 1966. His P.T.O. was accordingly cancelled on 30-9-66. Without paying the dues under the first order of transfer on the basis of his L. H. Form he submitted a fresh «Form under Settlement Scheme No. VIII on 29-10-66 but the house was transferred to the respondent in lieu of a house transferred under the earmarking scheme, The respondent was, however, given time to pay the prioe when he filed appeal before the Additional Settlement Commissioner but he failed to avail the oppor tunity. Consequently, his appeal was dismissed on 7-10-67. He then filed a Revision Petition No. 7 of 1968 before the Settlement Commissioner which was also dismissed on 23-10-68. 4. For the proposition of law that the pendency of litigation before the Settlement Authorities has the effect of suspending the operation of a notice under section 30 of the Displaced Persons Act, the learned Additional District Judge placed reliance on Abdul Sayeed v. Abdul Salam Faroogui (PLD 1979 Karachi 217). In this case Ghulam Rasool K. Shaikh, J. (as hs then was) repelled the contention that where notice was served during the pendency of appeals and revision it ipso facto lost its force so that a fresh notice after the final order was passed by the Settlement Department imperative and made the following observation : "The notice as required by section 30 was given and it held good for all purposes. At the most it remained suspended during the pendency of the appeals and revision and could be taken as « circumstance in favour of the appellants for non-payment of rent till the final order was passed and the default could not be attributed to them but to say its effect was completely washed off or the notice was thereby rendered infructuous or invalid cannot be accepted." The above passage does not in my opinion lay down that the pendency ofl appeal or revision before the Settlement Authorities against an ord:r of transfer! necessarily suspends the effect or operation of a notice served under section 30.) The use of the words "at the most" clearly indicate that the learned Judge was not expressing final opinion on the aforesaid question of law. It is well re cog-1 nized that mere filing of appeal or revision does not operate as a stay of tbej order challenged in such proceedings unless the authority entertaining such] .proceedings by order stays the operation of the order under challenge. Under) section 30 of the Displaced Persons Act as soon as an evacuee house or shop has been transferred, the transferee is entitled to charge rent from the person in occupation of such property who will be liable ty be ejected if he fails to pay or tender the rent after notice of demand within a period of three mouths. The rights conferred by the statute upon a transferee cannot be taken away as long as the transfer subsists in his favour. I am, therefore, of the opinion that unless the order of transfer in favour of the appellant was stayed by higher SettletnenrAuthoriUes the appellant was entitled to demand payment «f rent and the respondent was liable to be evicted for non-paymoat of rent after service of notice under section SO. However, in appropriate ccte the pendency of such proceedings may be a relevant cemideration for exercise of discreti«a in
P L J 1980 Karachi 140 P L J 1980 Karachi 140 zaffar hussain mirza, J NATIONAL BANK OP PAKISTAN , Hyderabad Versus Mjs. HYDERABAD TANDO-FAZUL BUS SERVICE Miscellaneous Appeal No. 33 of 1974 decided on 26-1-1980. (i) CI»il SaltExecution of decree, right to1$ a vetted right in favour.of decree bolder and alteration in period of limitation for eiecutioa caaaot be tesid a matter of procedureRetrospective effect cannot be given to amendment in law of limitation. (Para. 6) (ii) Civil Procedure Code (V of 1908)~S. 48Twelve years limitation for execution of decreeAmendment by Law Reforms Ordinance (XII of 1972) to curtail limitation to six yearsAmendment rot retrospective in effect. (Paras. 4, 6) (Hi) Interpretation of StatutesAmending enactmentLaw of limitation Held : amendment curtailing period of limitation cannot be given retrospective effect so as to wipe out cause of action accruing prior to amendment Excep tion: if there is interval of time between passing of amending enactment and dste of its enforcement then genera] rule of retrospectivity would apply. (Para. 5) Mflnsoorul Arfin for Appellant. Respondents absent. Dart of hearing : 14-1-1980. JUDGMENT The appellant filed against tbe respondents a suit bearing No. 34^of 1965 which was decreed in favour of the appellant for Rs. 4,228.93 on 2-10-1966 with costs and insterest. Execution Application No. Ill of 1973 for execution of the aforesaid decree filed on 23-S2-1972 was dismissed by the impugned order dated 20-11-1973 by the learned District Judge, Hyderabad as time barred. This Miscellaneous Appeal h directed against the aforesaid order. There are no reasons assigned in the impugned order as to how the execution application is barred by limitation, but i; seems that the learned Judge had in mind tbe amendment effected by Law Reforms Ordinance {XII of 1972) whereby section 48 of the Code of Civil Procedure was amended so as to reduce the outer limit of time for execution of a decree upon any fresh application from 12 years to 6 years. The learned counsel for the appellant has pointed out that the lirst application for execution was filed by the appellant on 23-5-1966 and was disposed of by order dated 15-2-1967 for non-prosecutioa. Tbe second execution application was filed on 23-5-1968 which was also dismissed for non-prosecution on 21-1 1-1968. Tbe third execution application was submitted on 27-8-1969 and was disposed of by order dated 10-1-1970. The fourth execution application was filed on 29-5-1970 and was disposed of by dated 27-7-1970. The fifth and the last execution application as order order already stated, was tiled on 23-12-1972 and was dismissed by the impugned order. It is conceded at the bar that tbe six years period from tbe date ofdecree expired on 2-10-197] and if tbe amended law is applied tbe execution applica tion was clearly time barred. However. Mr. Mansooru! Arfin, learned counsel for the appellant contended that the execution application in question will be governed by the unamended provisions of section 48 C. P. Cso far as tbe ques tion of limitation is concerned, in other words, tbe submission was that the Law Reforms Ordinance, 1972 will have no retrospective operation so as to affect, impair or in any way take away the vested right to remedy as to the execution of the decres in question passed prior to the promulgation of the aid Ordinance. Thus the short question for determination in this appeal ii whether tbe outer limit of time prescribed by the amended provision section 48 would genera tht execution application in question or the apptiealioa will continue to be governed h tbe limitation prejft&i Bank of India Ltd v. Afchomed Ashraf (P L D 1965 Karachi 69) it is well established that the period of limitation is ordinarily a matter of procedure only and that when a question of limitation is raised it ought to be decided in accordance with the law of limitation in force at the time of instituion of proceedings and not the one in force at the time of came of action, unless there be any express provision to the contrary in the Act itself. It was also held in the cited case that an enactment dealing with procedure as a general rule is retrospective in its' operation and governs all proceedings from the moment of its enactment even though the cause of action might have accrued before the Act came in existence. However, there is an exception this rule which is that retrospective operation will not be given to such an enactment if its provisions touch or take away any existing or vested right. There is a long line of authorities holding the view that a statute cannot be given retrospective effact, if it interferes with, or impairs or imperils a vested right unless such intention be clearlv manifested by express words or necessary implication. It was urged by Mr. Arfin that there is nothing in the Law Reforms Ordinance which has the effect to its enforcement and, therefore, consistent with the principle enunciated above the right to remedy by execution of the decree existing on the date of promulgation of the Ordinance cannot be taken away by the amendment Reliance wa« placed on Pakistan . Devachand Mulljimal (P. L. D 1968 Karachi 107) where it was held that an amendment in a procedural law is retrospective, but ]fit deals with or affects not only procedure but also vested rights, then it will be construed as pros pective. It was further held that if the limitation is amended so as to interfere with or impair vested rights it would be prospective .and the right to sue is not a procedurl matter. The argument of Mr. Arfin /rs that right to execute a decree is similarly not a mere matter of procedure. / 4. I find considerable force in the submission of the learned counsel. The question in this case is not of a change in a procedural law affecting the adjudication of a cause of action. The appellant bad already invoked the jurisdiction of the Court and obtained adjudication upon the cause of action that accrued to him culminating in a decree in his favour. The abridgement of the outer limit of time abruptly by the aforesaid amendment, therefore, affected a vested right to execute the decree passed in favour of the appellant. Consequently, in absence of contrary intendment, the amending law cannot be given retrospective effect. 5, Counsel also referred to another principle of interpretation as to the retrospectivity of a statute of limitation having the effect of curtailing the existing period of limitation. It was urged that the general principle that all enactments affecting procedural law are retrospective in operation is subject to an exception, that where the amending Act shortens the period of limitation provided by the existing law the Act is to be construed as prospective except where such Act is suspended in its operation for sometime from its being passed as a law.. This principle may be summarized as laying down that where an amending enactment has the effect of curtailing the existing period of limitation for institution of legal proceedings, the fact that such amending law takes effect immediately on its promulgation will be a ground not to give retrospective effect to it so as to wipe out the cause of action accruing prior to its enforcement so that the affected party is left with no remedy at law. But if there is an interval of time between the passing of the Act and the date upon which it comes into'force, then the general jrule will continue to apply and the statute will be construed as retrospective 'operation. This principle of interpretation of statutes has heen considered at great length in Shaikh Reyasat v. Gap Nath Missir (A I R 1939 Patna 122), where the learned Judges observed that this distinction has long been recognized in England and there appears to be no difference between the English Law and the Indian Law upon this point. The reason behind the rule may best be stated in the wordi of Lord Campbell, C. J. Queen v. Leeds Bradeford Ry. Co. (1852) 21 LJ MC 193. "If the (amending) act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the Legislature not to give it retrospective operation ; but when we see that it contains a provision suspending for six weeks, that must be taken as a intimation that the Legislature has provided that as the period of time within which proceed ings respecting antecedent damages or injuries might be taken before the proper tribunal. This view was considered in District School Board v. Muhammad Mulla (AIR 1945 Bombay 377) in which the case law was extensively reviewed and Chagla, J, observed : "Considering these authorities, i: is clear that as a rule statutes of limit ation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has ot to be read with one important qualification, and that is that if the statute of limitation, if given a retrospective effect, estroys a cause of action which was vested in a party or makes it impossibl for that party tor the exercise of his vested right of action then the Courts would not give retrospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Court would hesitate to attribute to the Legislature an intention to do something which was obviously wrong." The statute under examination in the present case, namely, the Law Reforms Ordinance, 1972 was given immediate effect with the result that decrees which were older than six years, but under the existing law could still be executed until the expiry of 12 years from the date of decree, would be suddenly barred by limitation by virtue of amendment effected in section 48 of the Code of Civil Procedure. Consequently, if effect is given to the amendment the right to remedy in respect of such decrees which were passed before the date of the Ordinance will be totally destroyed. Like the right of action by suit' the right to execute a decree is a vested right accrued in favour of the dccreeJ bolder, and, therefore, an alteration in the period of limitation for execution! of such decrees be held to be a mere matter of procedure. As already pointed} out the decree in the present case was passed on 2-10-65 and could, therefore, be executed until 2-10-77 under the existing law. The amending statute cannot, therefore, be given retrospective effect and as such this case will be governed by the provisions of section 4$ C.P.C. as they stood prior to the amendment. The application for execution was, therefore, well within time and ought opt to have been dismissed as barred by limitation! In the result, this appeal is allowed and the order dismissing the execution application is btreby set aside. The case shall be remanded to theexecuting Court for disposal according to law. Since the respondents have, not came up to contest this appeal, there will be no order as to costs.
P L J 1980 Karachi 147 P L J 1980 Karachi 147 B.G.N, kazi, J MOHAMMAD EOREES versus SETTLEMENT COMMISSIONER, Hyderabad sod 2 Otteri ^ Constitutional Petition No. 1162 of 1974 decided on 19-1-1980. Displaced Persons (Conpa. and Rekbn) Act (XXVIII of 1958)-S. 2(12), proviso two aud SendRead with Permanent Transfer (Houses and Shops) Rules (1961) Rr. 6 & 7 (as deleted)Shops transferred but areas not demarcated in PTDNo power available to Settlement Authorities to amend or correct PTD Four rules regarding powers of Settlement Authorities after issuance of PTD narrated and held that order of Deputy Settlement Commissioner with regard to demarcation of area of transferred shops, void ab initio and sub sequent orders resting on the same to be ofno legal effect. (Paras. 9, 10, 11) Ismail Munshi for Petitioner. S.A. Jamil for Respondents. Dates of hearing : 19/24-11-79 and 15-12-79. JUDGMENT The petitioner if a claimant displaced person who was in possession of Shop No. B/7J2/1. a part of City Survey No. B-7$2 in Tando Allahyar, ia respect of which P.T.D. was issued to him on 28-3-1965. Shop No. B-792/2 adjacent to his shop in the same Survey No. was in possession of respondent No. 2. The southern portion of the City Survey No. B-792 was number ed 'B-792/1 and the northern portion on the western side was numbered B-792/2 by the Custodian Department. Respondent No. 2 on 1-4-1960 surrendered his right on the shop in favour of his father Yakoob Ali Khan and P.T.D. was issued in the name Yakoob Ali Khan for B-792/2 on 8-2-65. City Survey No. 792 as per records has an area of 26-0 sa. yds. : or 235^. ft. aa4 consisted of two shops aforementioned. There t it a thaila ot platform which is not claimed to be independent of the City Survey -No.; on wfoicfa exists r a wooden, cabin' claimed \ by respondent;No, 3..,,It it significant to- note that in the PTDr as issued initially the areas of each of the shop was not shown, ft is the case of the petitioner that under advise the mutation, .wasnecessary for rights of ownership, be submitted an'application to the City Surveyor of Tando Allabyar, alongwith a copy of P.T.D. seeking mutation of the Record of Rights and the City Surveyor under a Rubkari dated 17-4- 1971 advised the petitioner that the total area of the shop transferred to him is 88 6 sq. ft. and the P.T.D. required to be corrected accordingly. It is further the case of the petitioner as stated in para 9 of the Memorandum of the petition that the Deputy Settlement Commissioner, by his subsequent order dated 4-2-70 had shown the area as 78 sq. ft. There it however, nothing on record to show whether an order to amend or correct the P.T.D. wu ever issued and it may hereby stated that it is contended on behalf of respondent that the amend ment to the original P.T.D. was carried out surreptitiously without giving them any notice. 2. On the basis of the aforementioned Rubkari it is the case of the peti tioner that the area of Shop No. 792/1 transferred to him includes portion of a thalla appurtenant and attached to his shop and the area of shop No. B-792/2 with the thalla would therefore be 145.16 sq. ft. 3. The petitioner filed an application before the Deputy Settlement Com missioner, who after jiving cotice to respondent No. 3 and considering the matter on the record came to the conclusion that portions of thalla appurte nant and attached to the two shops were parts of those shops and stood trans ferred to the transferees. The aforesaid decision of the Deputy Commissioner is dated 5-2-1972. It would further appear that Yakoob Ali Khan, Sled an appeal claiming the transfer of the thalla in his favour as part of his shop No. B-792/2 and the petitioner asserts that in this regard objection filed by him the Additional Settlement Commissioner under his order dated 16-6-72 treat ed the thalla as an evacuee property and the temporary wooden cabin built therepa as evacuee property, assessed it at the rate of Re. I/- per. month and directed its disposal according to law. Against the aforesaid order of the Additional Settlement Commissioner dated 17-6-72 tee petitioner and 1 also Yakoob Ali filed separated revisions before the Settlement Commissioner which came to be decided by his order dated 19-5-73 by which he set aside the impugned orders f Additional Settlement Commissioner and Deputy Settlement Commissioner with the directive that if the entire thalla is attached to the shop of any of the applicants than the whole Ma//fl will be included in the transfer of that shop and if parts are attached then such parts will constitute a portion of shops of the transferees. 4. Wbea the <<ase went op on remand, the Deputy Settlement Commissioner, after hearing the parties and considering the record; and also after holding site inspection came to the conclusion that the thalla was partly attached to the shop of Yakoob Ali Khan and partly to the shop of petitioner. Against this order respondents No. 1 and 2 as legal heirs of Yakoob Ali Khan, who died during the pendency of proceedings after remand, filed a revision ap plication before the Settlement Commissioner which was heard by respondent No. 1 By his order dated 20-6-74 the Settlement Commissioner accepted the revision application filed jointly by respondents 2 and 3 on the plea raised by the respondents that after -issue of payment transfer deeds the same could not be amended. 5. The petitioner ib this petition has challenged the: aforesaid order of respondent No. I dated 20-6-74 maiaiy oa the ground ; (0 That the initial transfer of shop No. 8-792/2 in favour of respondent No. 2 was result of misrepresentation and fraud end concealment »f material facts. . (»'/) That there bad not been any amendment in the P.T.D. Issued to th« petitioner but only area of the shop transferred has been incorporated with the view of the demarcation and determination of the property. 6. With regard' to ground No. I the assertion that there was any concealment or misrepresentation on the part of respondent No, 3 for getting transfer of the shop in his favour has been denied and it ba^ been stated that as extract from CSC-1V Register of the Deputy Settlement Commissioner, Hyderabad, would show the property in respect of which the P.T.D. No. 256 was issued in favour of respondent No. 2 was described as H-Godown, li-45 and not shop as stated by the petitioner. Column II of the aforesaid copy (which has beeo produced) mentions that application No. NCS-93 which is enough to show that respondent No. 2 has not applied for transfer of the property in question as claimant. He has also produced true copies of page 43 of CSC-IV Register of Deputy Settlement Commissioner, Sbikarpur and Jacobabsd which describes the property No. 1145 to be H-Godown-Il-45 in respect of which P.T.D. No. 256 was issued on 10-7-1963. He has also pro duced true copy of notice dated 2-1-1960 in respect of House No. 11-45 which is shown in the notice to be a house. Mr. S, Jamali, learned counsel for respondent No. 2 has further re ferred to proviso No. 2 clause (12) of section 2 of the Displaced Persons (Comp. ft Rehb). Act, 1958 which defines "shop". Under the aforesaid proviso when building or premises consists of both residence and business units th: Chief Settlement Commissioner has option to specify and part or part thereof to be deemed to be a shop or a house. Copies of documents on record would show that shop No. B-792/2 of Tando Allahyar forming part of City Survey No. B-792 was permanently transferred on 29-9-59 to respondent No. 2 on form CS-193 who surrendered foil rights in favour of his father Yakoob Ali Khan on 1-4-60. Groupd No 2 stated above is of utmost importance inasmuch as it has to be determined whether the P.T.Ds. were amended or even corrected to the extent that such correction is not permitted under the law. According to the petition the Settlement Authority have power of demarcation after issue of P.T.D. As already stated in the original P.T.Ds. issued to Petitioner and respondent No. 2, the area of the shops in question was not mentioned. The dispute over the area transferred under the two P.T.Ds. was aggravated by the fact that respondent No. 3 was' in accupation of thai la. The demarcation and mention of the area in the two P.T.Ds. therefore would amount to coming to a decision which would be adverse to one or the other party and con sequently the demarcation and mention of area in P.T.Ds. could not be done without proper enquiry into their right on the basis of fact to be agitated by the parties. 9. The learned counsel for the respondents has referred to the decision of the Supreme Court in Civii Appeal No. 16/59. An#ar Hussain Sani vs. Sarfraz Ahmad and 2 others reported in P.L.D. 1971 S.C. 669 in which it was inter alia held that there can be no dispute with the general principle that after title has passed on to the person in whose favour a P.T.D. has been issued the Settlement Authorities became functus officio to deal with that pro perty. It was further observed that transfer under the Displaced Persons (Coop »nd Rehab) Act., are however, in the uature of a grant and it is open to the grantor to impose such terms and conditions on the ownership rights as tke law may provide. Tfee relevent provisions of law io respect of transfer ofi properties under the IJi»pJ»ced Persons. (Comp. and Rehab) Act. 1958 arel ia the Permanent Transfer (Home, and Shops) Rales, 1941, fr»asdf 1 Governmeot in exercise of powers conferred on it by section 35 rf ,k , D ' SplaCCd P f Sons (Com P and Renab
Act, 1958. It was further obser ved ^thai two types of cases are envisaged in the rules in which the Settlement Autnoritics may interfere even after issuance of PTDs. Firstly cases which sutler from an error of a tvpe which can be correcied without embarking upon a formal mquiry or holding adverse proceedings. Cases of clerical mistakes or errors of like nature. Second type of cases dealt with under rules 6 and 7 are ttose in which transfer or allotment of an evacuee property was obtained bv means of misrepresentation or fraud. The Settlement Authorities mav under the second part of rule 6 and rule 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard it is found that he is guilty of misrepresentation and fraud roperties in respect of which there were conflicting ciaims oad therefore the same could not be /«m nH ?° r DT« iDg f ° rmal CIiquiry or overtaking adverse proceedings. The amendment of PFD .ssued to the petitioner in the year 1972 incorporating considered to be illegal by the learned Settlement Commissioner in the, mpugned order dated 20-6-1974 specially when rule 6 of notification No. SRO-192 m wr- I%4 and rul " 7 dclcted by notification No. SRO-127/ dated 27th December, 1964. No power therefore, was available to the n T l K A , uthon ! lcs lo make any amendment or even correction of tbe ine learned counsel for respondent No. 2 has referred to the decision s reere e ecson of permanent transfer deed in respect of property it goes out of the compen sation pool and the Settlement Authorities are thereafter funetus officio »nd not to competent to cancel property or resume property or even correct clerical mistake. In that decision the various decisions of the Supreme Court with regard to the controversy about powers of the Settlement Authorities to cancel .transfer or resume a property after issuance of a permanent transfer deed were ^considered and the following observations were made : "In our vkw (be several decisions of the Supreme Court may perhaps be said to lay down these rules : (i) an order for issue of Permanent Transfer Deed may be subject to appel late or revisional jurisdiction of the Settlement Authorities before the Permanent Transfer Deed is issued ; (//) but if such order is not challenged either in appeal or revision under tfte Displaced Persons (Comp. and Rehab) Act, 1958 and a Permanent iranster Deed is issued, then no power is left with the Settlement Authorities to deal with property to which such deed relates as the property goes out of the compensation pool on the issuance of Permanent Tranfer Deed. (Hi) Settlement Authorities retain jurisdiction to deal with a property «ue subject matter of ^Permanent Transfer Deed, if such deed is" issued during) be pendency' of valid Jy and p/operly instituted proceeding for 1 uraPd«erniiftatioB of the rights of the partif s to such -property in whic£ cast ^Permanent ^Transfer ;0eed wilL be subject to the final ordet mad "!P ^S^pfocc^dm^s; this, rufe>f sting Sfc'Jbe^rmciRV' tiat; Pertna. Pent, T-faftsfer? Dted'Would'hbt be" issued if the rights of the parties are under dispute in validly and properly instituted proceedings before the Settlement Authorities and ; (/») after deletion of rules 6 and 7 of the Permanent Transfer Rules, 1961, if Permanent Transfer Deed has been issued, the Settlement Authorities cannot resume a property or cancel transfer even on the grounds of misrepresentation, fraud or contravention of any provisions of (he Dis placed Persons (Corap. Rehab) Act, 1958 nor to correct any clerical mistakes in the Permanent Transfer Deeds." It. The order of Deputy Settlement Commissioner dated 5-2-1972 with regard to demarcation of area for the reasons given above being void ab inilio and a nullity the subsequent orders resting on the same also are of no effect as held by the learned Settlement Commissioner (Headquarters) in the impugned order dated 20-6-1974, 12. Under the circumstances stated there would appear to be no reason for interference with the impugned order of the Settlement Commissioner. The writ petition is dismissed with no order as to costs.
P L J 1980 Karachi 151
P L J 1980
Karachi 151 ajmal mian.
J
NUSRAT JEHAN BEGUM
Versus
KARACHI
MUNICIPAL CORPN. and
Others
Suit No. 22 of 1976 decided on 26-9-1979.
(i) EvidenceBurden of proof
Held :
it is true that burden of proof rests on plaintiff but once evidence has been recorded and it is before the Court then question on whom initial burden was, whittles awayS. 101, Evidence
Act (1872).
(Para. 3b)
(ii) Fatal Accidents
Act (XIII of 1855)S. 1Fatal accident caused by negligent driving of vehicleLiability of owner of vehiclePrinciples enume rated to admit vicarious liability of owner in instant caseNegligent act of driver committed during course of his employment with owner (local body
Corporation)Authorised driver leaving vehicle unattended and defendant
No. 3 allegedly plied vehicle resulting in death of deceasedNegligence of driver established and vicarious liability of owner upheldSuit for damages decreed against employer, authorised driver and negligent driver holding the three jointly and severally liable for payment.
(Paras.
4f
& 6b> 5.
Mushtaq Hussain for Plaintiff. .
A.R. Mirza and
S.M. Muslim Naqvi for Defendants.
Dates of hearing :
4/5/9-9-1979.
JUDGMENT
This is a suit for the recovery of Rs.
1,62,000/- against the three defendants jointly and severally. The facts leading to the filing of the above suit shortly, are thai late Muhammad Umar S/o Hussain Box (here inafter referred to as the deceased) .died as a result of injuries sustained in
road accident which occurred near Jebangir Masjid, Patel Para, Jebaogk
Road Karachi on 16-9-75. The truck involved in tb accident bore registrauoa kit house, that defendant No. 2 has not committed may act of negligence be is not liable for the act of defendant No. 3 and that the age of the deceased
»t the time of his death was about 50 or 55 years.
On the basis of the above averments defendant
No. 2 has denied his liability.
P L J 180 Karachi 162 P L J 180 Karachi 162 FAKKauoDiN G. bbrahim and mushtak Ati kazi, JJ PAKISTAN thro, Stentary, Mtahtry of FMI, P«w«r Etc. Versus M/8, A- R. KHAN SONS wrf 10 Otam Letters Patent Apical No. 123 of 1966 decided on 21-5-1979. CitH Procedwe Code (V »f 1901)O. XLI, R. 4Decree on Common groundPartnership firm dissolved before agreement to render certain services to Government-One partner of dissolved firm receiving cheque from Government in spite of rendering no service whereas respondent rendering service could not receive cheque from government liable for thatContention, that cheque " was assett of dissolved firm, not upheld in view of dissolution deed holding the fieldGovernment entitled to be indemnified from estate of respondent wrongly receiving cheque. (Paras. 12, 13) Sayeed A. Shaikh for Appellant. M. O. Dastgir for Respondents. Dates of hearing: 2/4-5-1979. JUDGMENT Fakhruddin G. Ebrahim, /.The respondent No, 1 plaintiff filed a suit aginst the appellant-Government for recovery of Rs. 25,745 being the amount due for stevedoring services rendered by the respondent No. 1 under agreement between the parties dated 6-8-1959. 2. The defence of the Government was that the bill had been duly paid through a payees' account only cheque in the name of the plaintiff firm sent by post at the firm's address. 3. Admittedly, the said cheque was neither received by nor credited in the account of plaintiff firm for it was received by the respondent No. 2 firm who did not claim to have rendered any service to the Government nor was this firm, the name of which is the same as respondent No. 1 firm, a party to the said agreement dated 6-8-1959. The appellant Government did not produce the copy of the letter forwarding the said cheque or its postal cover or its postal receipt. 4, In these circumstances the Government by an application under rule 168 of the Sind Chief Court Rules got third party notice issued to the respondent No. 2 firm from whom was sought indemnity in the event of a decree being passed against the Government. The respondent No. 2 was then impleaded as defendant No. 2 and its defence was that there was a dispute between the plaintiff and this defendant regarding alleged dissolution of firm and the ignature of the defendant No. 2 was obtained on the deed of dissolution by misrepresentation, under influence and fraud an that this defendant had filed as suit for cancellation of the deed of dissolution. It was further alleged that the defendeant No. 2 had detained the amount of the cheque as agent of plaintiff because the amount of the cheque was partnership property and did not belong to the plaintiff exclusively. 5. No evidence was led by defendant No. 2 at the triai. 6. The learned Single Judge decreed the plaintiff's suit against the Government on the ground that the said cheque was not received by the plaintiff and thit the Government was obliged to send the cheque to the plaintiff's bankers who were authorised to collect the bill and express instruc tion given was that payment will be made to the plaintiff's bankers. No finding was given by the learned Judge on the question of liability of the defendant No. 2 firm to refund ;oe amount of the cheque received by this defendant {on the ground that ibe deed of dissolution was a disputed document and a filed by the defendant No. 2 was still pending, throuth this" defendant was, according to the learned Judge, apparently not authorised to encash the lame. 7. The respondent-defendant No. 2 is unrepresented in the appeal. This defendant was directed to deposit in Court the proceed of the said cheque but it has deposited a sum of Rs. 10,000 only. 8. During the pendency of this appeal the respondent No. 1 by an application dated 11-1-1974 prayed for production of additional evidence on the point that no suit for dissolution of the firm as alleged b> respondent No. 2 in the written statement was pending and that partnership between respondents No». 1 and 2 had been dissolved before 1-4-1959. This application was with consent of the appellant Government and in pretence of "respondent No. 2 Azizur Rebman" granted and the respondent No. 1 filed five documents and sought permission file 2 more additional documents on the next date of hearing. AH these seven documents were exhibited and marked 1 to 7, subject to all just exceptions, These documents are as follows and were referred to at the hearing of the appeal without any objection by the learned counsel for the appellant Government. (1) Deed of Partnership dated 29th September, 1958. (2) Deed of agreement dated 17th November, 19S9. (3) Deed of dissolution of partnership dated 21st February, 1959. (4) Deed of partnership dated 16ih March, 159. (5) Certificate of the Registrar of Firms Karachi, bearing No. 2026. (6) Certified copy of plaint in Suit No. 1276 of 1960 filed in the Court of VI Sub-Judge, First Class, Karachi. (7) Certified copy of the order dated 29-9-1960 made in the aforesaid civil suit. 9. The aforesaid documents disclose that prior 10 28-6-1958, the partners in the firm of Messrs A. R. Khan & Sons were Abdul Rehman Khan father of Azizur Rehman and Hafizur Rehman the respective managing partner in respondents Nos. 2 and 1 firms. This patnership was on the death of the father dissolved and the said two brothers became its partners under deed of partnership dated 29-9-1958. The business of the firm consisted of Stevedores, Ship Chandlers, Steamer Agents, Ligbtragc Owners, Clearing Forwarding and Shipping Agents, under the name and style of A.R. Khan & Sons. By an agreement dated 17-2-1959, the two brothers agreed to dissolve the said firm Hafizur Rehman of respondent No. 1 firm took over all the assets and liabilities of the firm including payments due from the Government. Azizur Rehman of Respondent No. 2 firm took over the clearing and forwarding business and Hafizur Rebman took over stevedoring business. Both the partners agreed to carry on these separate businesses under the same name and style, fix, A. R. Khan & Sous with effect from 1-41959. This agreement was followed by a formal deed of dissolution dated 21-2-1959, which recited that the two partners bad duly settled their accounts and they had no claim against each other. Then came into existence the respondent No. 1 firm in which Hafizur Rehman and his son Shahid were partners with effect from 1-4-1959 with stevedoring as their main business. The respondent No. 1 firm was registered under the Partnership Act on 29-8-1959. During the pendency of this appeal the said Azizur Rehman «s well as Hafizur Rhman died and their heirs have been brought on record as respondents No. 3, 4. 5. 6, 8. 9, 10, 11 and respon dents 7 (i) to 7 (jv) respectively. 10. The two further documents listed at 6 and 7 in dara. above disclose that one Fazlur Rebman bad filed a suit being Suit No. 1276 of i960 in the Court of VI Sub-Judge, First Class, Karachi against Azizur Rehman and Hafizur Rehman for dissolution of the firm of A. R. Khan & Sons, on the allegation that though the plaintiff had retired from the said firm on 8-6-1955, accounts had not been settled and the plaintiff not paid bis share. This suit was on 29-9-1960 unconditionally withdrawn by the plaintiff. 11. Mr. Sayeed A. Shaikh, the learned counsel for the appellant Govern ment raised two-fold contentions io support of the appeal Firstly, it was argued that the Government stood discharged of its liability by delivering the payees' account only cheque in the name of respondent No. I at its given address, which was in fact received by Mr. Azizur Rehman who was, to the knowledge of the Government a partner in the said firm and the Government had no knowledge of the dissolution of the respondent No. 1 firm which dissolution was admittedly not notified. In the alternative it was argued that the cheque was wrongly credited by respondent No. 2 in its account and since the respondent had admittedly not rendered any service to the Government, the Government was entitled to be indemnified by the respondent No. 2. 12. Now as to the first contention it may at once be noticed that it, was not the case of the appellant Government in its written statement that the cheque was received by a partner in respondent No. 1 firm which gave the Government complete discharge. The limited defence of the Government was that a non-negotiable payees' account only cheque payable to respondent No. I was sent at the given address of the respondent No. 1 and since this cheque was encashed by a wrong party, namely, the other firm of A. R. Khan & Sons the plain tiff's remedy was to pursue is claim against that party instead of falsely implicating the Government. Admittedly.it was the respon dent No. I, which as aforesaid came into existence on 1-4-1959, had rendered services to the Government under agreement dated 6-1-1959 and if this respondent failed to receive from the Government its dues, the Government annot, to my mind, escape its liability. The fact that the cheque fell into wrong bands is of no concern to the plaintiff in the absence of any collusion or conspiracy with the third party. The plea in the present appeal that the cheque was received by Azizur Rehrpan, a partner in a dissolved firm, the dissolution of which was not notified is also misconceived for the respondent No. 1 firm came into existence on 1-4-1959 in which Azizur Rehman had ao interest and the contract with the Government which gave rise to the suit liability is dated 6-8-1959. It was the duty of the Government to ascertain, in protection of its interest the names of the partners in the firm with which ii was entering into a contract and if they had taken thai precaution they would have found that its only partners, were Hafizur Rehman and his son Shah id. The cheque in xjuetiion was, therefore, not received by a partner of respondent No. 1 firm nor by partner of a dissolved firm with which the Government bac entered into the contract in question. 13. Coming to the alternate argument of Mr. Shaikh, it .stands established that Azizur Rebman had do right to receive the cheque in question and to credit it in his account for neither he nor his firm, the respondent No. 2, was party to the agreement dated 6-8-1959, nor they t a rendered any services thereunder. The respondent No. 2 stated on the letter datec 2-7-1960 addressed to the Government that the said cheque was inadvertent! collected by them and that they were prepared to refund the same. Later on' however, Azizur Rehman in his written statement took up the position that the amount of the cheque was partnership property which did not exclusively belong to 'the plaintiff- Azizur Rehman, however, admitted that be had executed .a deed of dissolution but alleged that this signature was obtained fraudulently. If. therefore, this deed continued to hold the field, neither Azizur Rehman nor the respondent No. 2 will have claim over the assets of the dissolved firm, which were admittedly taken over by Hafizur Rehman. This deed of dissolution remains unchallenged and, therefore, even if ihe cheque represented asset of the dissolved firm, which in fact is not the case for it is the amount of the firm which subsequently came into existence on 1-4-1959, the respondent No 2 or Azizur Rehman bad not the slightest right to receive much Jess collect the proceeds of the said cheque. The Government is, therefore, entitled to be indemnified by the estate of late Azizur Rehman for having wrongly received it form the Government. There will, therefore, be a decree »n favour of the appellant argainn Azizur Rchmno, recoverable from his estate for the amount which the Government i» called upon to pay the respondent No. 1 plaintiff. That such a decree can be passed in this appeal is clear from the law laid down in the case Messrs S. M Yusuf &. Bros v. Mirza Muhammad Mehdi Pooya and another (P L D 1965 SC 15) and Haji Moom Haji Oomer v. Ahmed Abdul Gkani and another (P L D 1968 Kar. 320). 13 The result, therefore, is that this appeal is dismissed with costs and on payment of the decretal amount by the Government to the respondent No, 1 plaintiff", the Government will be at liberty to withdraw from the Court the sum of Rs. SO.OOO, deposited by respondent No. 2 and for the difference, vte. the deureta! amount paid to the appellant, less Rs. 10,000, will follow a decree in favour of the Government against the respondent No. 2 recoverable from the estate of deceased Azizur Rehman.
P I J 1980 Karachi 166 P I J 1980 Karachi 166 zaffar hussain mirza, I MUHAMMAD JUMAN and Another Versus Mst. AQLAN and 2 Others Civil Revision Application No. 154 of 1979 decided on 21-10-1979. (f) Cffil Procedure Cod (V of 1908)O. XVIII, R. 18Loca! inspection- Inspection of land to determine as to who was in possession thereof Held: inspection will be of no valueEnquiry conducted at site by a Court would be improper unless parties agree to be bound by such procedure- Matter to be decided on basis of evidence on record and inspection is not a substitute for evidence. ( Para . I) (ill Civil Procedure Code (V of 1908)-^S. 115 and O. XXXIXScope of revision and grant of temporary injunctionJurisdiction under S. 115 is limited to correcting errors made by subordinate Courts in exercise of their jurisdiction bul not which are made in their discretionRefusal of temporary injuction, not interfered. (P«a. 9) A. A. Pazeel for Applicants. A, Q- RMfot for Respoodtau No». I A 3. 1980 MUHAMMAD JUMAN V. AQLAN . , K«r. 16? Abdur Rahim Kazi for Respondent No. 2. Dates of hearing : 15/17/21-10-1979. JUDGMENT The dispute in this case relates to agricultural land measuring 162 acres situated in Deh Bebram Ban, Taluka and District Sanghar'. This land belongs to respondent No. 1 Mst. Aqlan. The applicants claim that the aforesaid land was leased out to them by respondent No. 1 by an agreement in wriiing dated 5-6-1976 for a period of five years ccromercicg from 1979 at the rate of Rs. 16,200 per year. According to the allegation of the applicants respondent No. 1 received at the time of the agreement the lease money for the first two years. It is common ground that the land in dispute was on lease with one Niaz Ahmad Wasao upto Rabi 1978-79. Accordingly it was stipulated in the agreement between the parties that the possession of the land will be banded over with effect from Kharif 1979-80. However, according to the allegation of the applicants, possession of the "vacant land" meaning thereby the land which was unoccupied by cultivation of the previous lease, was handed over to the applicants in the last week of December, 1978. In pursuance of the aforesaid the applicants advanced a total sum of Rs. 45,000 as taccavi to the harit who started preparations for cultivation for the Kharif crop. But some-' time thereafter respondent No. 2 came upon the land and declaring that be had taken the lease of the land from respondent No. i through a Registered Lease Deed, demanded the applicants to vacate the possession of the land. The applicants thereupon approached respondent No. 1 for registration of their Lease Deed but she refused to do so. They they learnt that on 2-1-1979 respondent No. 1 had executed and registered a Lease Deed in favour of respon dent No. 2 through her attorney respondent No. 3 in respect of 117-12 acres out of the disputed land at the rate of Rs. 23,400 per year for five years, The applicants thereupon filed Suit No. 27/1979 against the respondents in the Court of Senior C ivil Judge. Sanghar for specific performance, declaration and permanent-injunction. By way of interlocutory relief the applicants sought the relief of temporary injunction to testrain "the defendant No. 2 from inter fering with the possession of ihe plaintiffs over ihe suit land by himself or through his agents in any manner." 2. The respondents appeared and resisted the application for temporary injunction. It was denied that respondent No. 1 bad given any lease to the applicants and that the agreement was a forged document. The allegation of possession on the part of the applicants was also repudiated. It was asserted that respoadent No. 2 is the rightful lessee in respect of 117-12 acres under a Registered Lease Deed dated 2-1-1979 and was already in possession of the vacant portion of the land. As regards the remaining about 45 acres of land the case of the respondents was thai the same is in possession of respondent No. 3 on behalf of respondent No. 1. On 25-3-1979 the applicants filed further affidavits of seven persons said to be harts on the land who deposed that the vacant portion of the suit land was in possession of the applicants since De cember 1978, and that tach one of them has been paid a sum of Rs. 3,000 to prepare the \s nd for cultivation. 3. The learned Senior Civil Judge after hearing the counsel for the parties and con idering the affidavits and documents on record, came to the conclusion that the document relied upon by the applicants being intended to<operateat a present demise of land could sot be looked into as it was insufficiently stamp ed and unregistered. As compared to (hat the document under which res pondent No. 2 claimed rights was a registered one and, therefore, baa to b iven effect to until the applicants proved their case. As to the possession, learned Civil Judge referring to the regiitered document came to the conclusion that the nossession of the vacant portion of the land seemed to be with res pondent No. 2 In this view of the matter the Senior Civil Judge by his order dated 2 4-1979 refused to grant temporary injunction prayed for. The appeal filed by the applicants before the District Judge. Sanghar met with the same fate and was dismissed on 23-5-1979. The learned District Judge appears to have examined '.he case more elaborately in the light of the material on record. He has taken the view that the document relied upon by the applicants being a Lease Deed was required to be registered within the prescribed period of months of its execution and in absence of such registration it was invalid in law. He has also come to the conclusion that the apolicams were not in possession of the land. Before him the applicants had further produced a notice dated 5-5-1979 issueJ by the Mukhtiarkar, Sangbar to applicant Muhammad Juman directing him to give uo his so-called unlawful possession. Similarly the res pondent No. 1 had produced a public notice published in a. newspaper dated 16 11-1978 complaining that her relations were against her and warning the public to be aware of anv false transactions of transfer or lease that may be entered into by them The applicants are aggrieved by the refusal of the relief cf ternoorary injunc ion by the Courts below and have come up in revision in this Court. Mr A 'A. Fazeel, learned counsel appearing for the applicants conten ded <hat the applicants have made out a prima facie caie for grant of interim relief and the Courts below were in error to withhold such relief. He urged that notwithstanding the fact that the document in favour of the applicants was an unregistered one, it could be looked into for collateral purposes by virtue of section 49 of the Registration Act in order to determine the relationship between the parties and the nature of the applicant's possession. He has cited several authorities in support of the submission. On the other hand, Mr A Q. Halepota, learned counsel appearing for respondents 1 and 3 submitted that a distinc tion has to be drawn in this behalf, between the character and nature of the possession and the character and nature of the transaction An unregistered document, according to him, is not admissible to prove the character and nature of the transaction, and, therefore, the applicants were not entitled to rely upon the documents to establish the grant of lease in their favour. In my opinion, for the oresent purposes, it is not necessary to decide this question. Obviously the applicants have brought this suit relying upon their rights under section 27-A of the Specific Relief Act and, therefore, even as against a registered document, an unregistered document through which they claim would take effect as laid down by the second proviso to section 50 of the Registration Act provided thcv have taken possession of the property in part performance of the contract. The question, therefore, thar arises for consideration it whether the applicants vt-ere put in possession of the land as alleged by them in pursuance of the terrc; of the contract. In this behalf learned couasei for the applicants placed great reli;;<ice on the affidavits of the seven haris. He submitted that there is do dispute oet- ween the parties that these persons are really the sitting harts on the land as four of them are said to have executed kabuliats and receipts for money in favour of respondent No. 2. Grievance was made by the counsel that the learned District Judge discarded this important evidence from consideration without cogent reasons. As already pointed out the evidence of these persons contained in their affidavits in identical terms in material part was as under: "That the vacant portion of the suit land is in possession of Muhammad Jumman, ieiiee since last week cf December 1978." The learned counsel for the respondent objected to the consideration of these affidavits on the ground that they were additional affidavits filed by the appli cants without permission of the Court contrary to rule 68 of the Civil Court Rules and were, therefore, rightly excluded from consideration. Be that a It may, the question is whether the affidavits of the harts in any way advance the case of the applicants to establish prima facie case of possession. In this regard my attention was drawn to the Lease Agreement dated 5-6-1968 which does not contain any recital to the effect that possession of any portion of the land was banded over. Obviously the agreement having been executed nearly three years prior to the commencement of the lease could not contain such a recital. Ai already pointed out the agreement stipulated that possession would be handed over to the applicants with effect from Kharif 1979-80. According to the Revenue Standing Order No. It the Rabi Crop Season expires on 31st March and the Kharif Crop Season commences from 1st April every year. Therefore, the document dated 5-6-1916 is of no assistance for the purpose of showing prima facie that possession was handed over to the applicants in December 1978. No other evidence of transfer of possession has been given except the oral statement of the abovesaid haris. id the plaint the plea of the applicants in this behalf is contained in paragraph 4 which says : ''That the possession of the vacant land was handed over to the plaintiffs in the last week of December 1978". Neither in the plaint nor in the affidavits of the harit is there any mention of the person who handed over the possession to the applicants. Admit tedly the applicants are not in possession of the entire suit iand. Their claim is that they are in possession of unspecified portion of the land which was lying vacant during the currency of the previous lease. Even assuming the applicants are in possession taken over by them in any other manner, if prima facie appears to me that until the applicants establish that they were put in possession by respondent No. 1 in pursuance of the agreement of lease, fhsir possession can not enure in terms of section 27-A of the Specific Relief Act. As already pointed out it is not the case of the applicants that they are in possession of the entire land, As regards the notice dated 5-5-1979 from the Mukhtiarkar, Sanghar there is no doubt that the same mentions that applicant Muhammad Jumman was directed to give up his unlawful possession. Once sgain this notice does not mention the particulars and the description of the land said 10 be in posses sion of the said applicant. The allegation of the respondents is that this notice was an inspired document managed in collusion with the Mukhtiarkar. On the other hand, the applicants contend that it was issued in pursuance of an apolication of the same date addressed by respondent No. 3 and respondeot No. 1 to the Deputy Commissioner, Sanghar, but prima facie it was rightly pointed out that the contents of this application have no co-relation with the notice relied upon. Nowhere in this application it has been admitted that the aforesaid applicant is in possession of any portion of the land in dispute. On the cont rary, it refers to the decision of the Cpurt in favour of the respondents appa rently on the injunction application of the applicants and requests the Deputy Commissioner to take action against the men of the applicants who were trying to interfere with the ploughing and irrigation of the land by the harts of the respondents. For the present purposes, therefore, these documents are of no value to the applicants. 6. On the other hand, the registered Lease Deed in favour of respondent No. 2 dated 2-1-1979 clearly recites that possession of the unoccupied land was banded over to respondent No. 2 and the remaining land which was under cultjvfttion of the existing lessee would be banded over to him upon expiry of the ptfiod of the lease. Mr. Fazeel challenged the validity of this document on the ground that it pertained to land situate in District Sanghar whereas it was registered in violation of section 28 of the Registration Act by the Sub-Registrar, Mirpurkhas. Mr. Halepota pointed out that the document contained a refe rence to a plot of land in Village Laung Wasao. Deb 96, Taluka Mirpurkhas and, therefore, in terms of section 28 tbe Sub-Registrar, Mirpurkhas bad juris diction.to receive and register tbe document. Reliance was placed on A I R 1920 Mad. 59$ and A 1 R 1946 Cal. 465. Tbe point cannot, therefore, be pursued further-for the present purposes specially in view of subsection (2) of lection^$8 of tbe Registration Act which seems to save the validity of the regist ration of a document even if the property which is included in the documents for the purpose of giving jurisdiction to a particular Sub-Registrar did not exist or was fictitious or insignificant or was not intended t« be conveyed. 7. Mr. Haiepota assailed tbe genuineness of the Lease Agreement relied upon by tbe applicants upon the circumstances appearing in the documents itself. He pointed out that tbe document purports to have been executed by respondent No. t who is a 'pardanashln' lady living in village Dino Wasan, Taluka Sanghar. The documents appears to be a full-fledged lease deed and its recitals contain an admission on the part of tbe lessor that & sum of Rs. 34,400 being toe lease money for two years was paid in advance. The stamp paper on which tbe document is written is shown to have been purchased by respondent No. 1 through Photo Wasan, applicant No. 2 from Allah Bacbaio Khan, Stamp Vendor, Pernmai. It was argued that despite these circumstances the document was not presented before tbe Sub-Registrar, Sanghar when the lady executant was pre sent in Sangbar. However, at this stage it is not necessary to comment on this submission as it may prejudice one or tbe other party. However, the fact remains that notwithstandingthe denial of the execution of Ibis document no attempt was made to file the ^affidavits of tbe attesting witnesses or of Mr. Mukhtar Abmed Bhatti, Advocate and Notary Public who attested tbe execu tion of the document by respondent No. 1. 8. Mr. Fazeel lastly contended that the impugned orders are bad in law aa he request of tbe applicants for inspection of the land to determine as to who was in possession thereof submitted under Order XVI!!, rule 18, C.P C. was not considered by the trial Court and was rejected for uncogent reasons by the Appellate Court, f find no substance in this contention, ft is well settled that I Court can only decide a matter on the basis of evidence on record and not on its views or impressions of inspection. Inspection is not a substitute for evidence and in the matter of possession of agricultural land such inspection will be of po value. An enquiry conductrd at tbe site by a Court would obviously be improper and cotttrary to law unless the parties agree to be bound by such procedure. . 9.- In tbe ciruuimtances mentioned above it appears 10 me that tbe 'Courts below were justified on the materials placed before them to arrive at the tenta tive findings on the basis of whicb they refused the relief of temporary injunction «ad no interference is called for ia the revisional jurisdiction of this Court. It was heid in Muhammad Umer Beg v. Sultan Mahmood Khan (PLD 1970 SC 139) bat tbe limited jurisdiction in revision undeJ- section 115, C.P.C is meant prima- "ly for correcting errors made by the lubordiosj.e Courts in the exercise of their irfeciiciioQ and not those which are made in their discretion, unless the discretion is food to have been exercised fancifully or arbitrarily. From tbe«foregoing dis- , 1 am of the view that the Subordinate Court have exercised their discresonnd principles of law oa the materials placed before them. 10. The result it that this revision stands dismissed with no order at to eotti.
P L J I960 Karadii 171 P L J I960 Karadii 171 muhammad zarookul hmj, J MUHAMMAD RAM3KAN m 1 O&sn Versus ABDUL GHANI «ai 4 Othsn Constitutional Petitions Nos. 409 and 468 of 1969 decided on 18-4-197t. (I) Civil Procedare Code (V of 1998)O. XXU R. 3Abatemeot of petition PTD issued to O and Z in respect of different shopsDeath of Z would not result in abatement of whole petition as there was no joint ownership in propertySubject matter of dispute : roof over entire composite propertyMere abatement of petition in respect of roof of one shop cannot settle whole issue. (P»r. $ (H) Displaced Persons (Compn. & Renba.) Act (XXVIII of 19SSV-S. 21 ($) Correction of clerical mistakesWrong City Survey numbers in P.T.D.Can be corrected under S. 21 (5). (Para. 6) (iff) Displaced Persoas (Compa. & Rthbn). Aet (XXVIII of 19S8)-Schedttle Transfer of roofIn absence of proof of possession over roof of transferred shop, petitioner cannot be deemed to have been transferred entire roof of shop. (Paras. 8, 10) Malik Muhammad Sated for Petitioner (C.P. 409/1969). K.A. Ghani for Petitioner (C.P. 468/1969 V Ismail Munshi for Respondent. Date of hearing : 7/19-3-1979. JUDGMENT These are two petitions which are directed against the same order passed by the Settlement Commissioner on 23- 5-1969. The dispute relates to a room and open space around the sam room situated 03 the roofs of shop No. B-522, B-523, B-524/2 and B-524(which are City Survery Nos.) situated at Sbahi Bazar, Maadi Road, Mirpurkhas. There are 6 shops which are situated in a composite property, built on the obove given survey numbers bearing Custodian Nos. B-129, B-130, B-437, B-438 and B-439. The one room which is situated on the roof has beea given the Custodian Number of B-436. There are two houses built on the first floor of these Survey Nos. bearing Custodian Nos. B 434 and B 433 but they are contiguous to the said 6 shops and not built over the shops. There it a passage from these two houses to the roof over the said 6 shops. 2, The petitioners in Petition No. 409/1969 claim to be the successors ia interest of one Muhammad Ismail who had in hit turn been transferred the rights of one Nazar Muhammad who was transferee from the Settlement Department of Shops No. B-130 and B-131. The petitioners secured rights in respect of these shops by a registered sale deed dated 30th December 1966. The petitioner! claim that Nazar Muhammad had been the transferee from the Settlezneat Department of the right of property aver the reef of Ike said sheps as witt which were open roofs, and P.T.D in respect of these shops had been issued on 19-2-1962 in favour of Mobomed Ismail 10 whom Nazar Mohomed had surrendered his rights. The petitioners in Petition No. 468/1969 are two brothers who are claiming rights in respect of three shops and their rooft bearing Nos. B-438, B-439 and B-437 and the relevant City Survey Numbers of theie (hops are stated to be 524, 524/2 and 523. It is an admitted position that in 1951 the room bearing Custodian No. B-436 had been surveyed on 1-1-1951 by (he Custodian Department which showed the existence of a single room. There is no mention of any courtyard or varanda etc, and the name of the occupant has been shown as Abdui Ghani son of Natboo Khan and it is mentioned clearly that it is upper itorey and asieisment of the rent is shown to be Rs, 2 per month. Thu premises No. B-436 was transferred in favour of Abdul Ghani on 27-11-1959. The P.T.O. however was issued in favour of Abdul Ghani and Allah Noor on 18-11-1969. While issuing the P.T.O., the corresponding City Survey Numbers were shown to be 522 and 523 on 12-11-1966 However, respondent Abdul Gbani got bis P. T D. amended on 6-5-1968 and instead of C. S. No. 522, the relevant C. S. No. 523 was inserted in his P.T.O. The word upper storey was also included in the P. T. D. Muhammad Ramzan, petitioner, immediately thereafter moved the Deputy Settlement Commissioner to delete the roofs of his shops No. B-130 and B-l 31 corresponding to City Survey Nos. 523 and 524 from P. T. D. of Abdul Ghani and Allah Noor and similar petitions were also moved by petitioners Gbulam Muhammad and Zahooruddin and they were disposed of by the Deputy Settlement Commissioner on 2-10-1968 after inspection and he held that there was only one room in occupation of Abdul Ghani and he was entitled only to that room and not to the rest of the open space which is the roof of the other shops. The respondents Abdul Ghani and Allah Noor took the matter in appeal before the Additional Settlement Commissioner, Hyderabad, who rejected their appeal on 24-2-1969 after inspecting the premises and held that there was only one small room on the roof and wooden staircase just like baithak without any amenity of life. It may be mentioned here that in the contiguous two houses built on the same composite property, there are close relations of Abdul Ghani and Allah Noor. ',f Thereupon, Abdul Ghani and Allah Noor filed revision before the Sttlement Commissioner who accepted their revision and held that there was no justification in excluding unconstruted area from the transfer documents of Abdul Ghani when he was in its actual occupation even though unauthorisedly since before 1951. He furrher observed that tbe mere assertion that his posses sion was disputed and respondent was also using the same as part of their property cannot be accepted in the absence of any proof. He therefore held that . the entire roof was part of the properly No. B-436 which was originally trans ferred to Abdul Ghani. But he also directed thst the transfer price paid by Abdul Gbani on the basis of rent of Rs. 2 per month be suitably enhanced under para 22 (2) Settlement Scheme, I. The two petitions were argued by Malik Muhammad Saccd and Mr. K. A. Ghani, learned counsel for petitioners. Mr. hmail Munshi learned counsel, defended both the petitions. 5. Mr. Ismail Munshi took up the preliminary objection that since Zahooruddin has died in 1972 therefore (be Petition No. 468 should abate «» tbe'LiRs, of Zahooruddin bad not been brought on record. But Mr. K. A. Ghani .contends petitioners Gbulam Mobd and Zahooruddin were transferees of separate shops and the Deputy Settlement Commissioner has noted on page 6 of his order dated 2-10-1968 that shop bearing Nos.438 & 439 were originallyirans ferred to Noor Muhammad brother of petitioner Ohulam Muhammad and on his death they devolved upon Qhulam Muhammad, while shop bearing No. 437 bad been transferred in the name of Zahooruddin and separate P. T. D in respect of these shops had been issued to (him. There is nothing brought on record to controvert this statement of fact noted by the Deputy Settlement Commissioner and therefore I have no option but to take it as a fact separate P. T D. had been issued to petitioners Gbulam Muhammad and Zahooruddin in respect of different shops and hence the death of Zahooruddin could not automatically result in the abatement of the whole petition as there is no joint ownership in the property. In any case since the roof over the entire composite property is the subject of dispute therefore mere abatement of the petition in respect of the roof of Shop No. B-437 of Zahooruddin cannot settle the whole issue therefore the objection of Mr. Ismail Munsbi, the learned counsel for the respondent is rejected as petition does not abate as a whole but abates in respect of Shop No. B-437 only. 6, Mr. Malik Muhammad Saeed and K..A Gbani argued that the P. T. D. of Abdul Ghani could not be modified after it was issued on 12-11-1966. However, one fact admitted by all the parties is that City Survey No. 522 is not at all involved in respect of the roof over the six shops or room No. B-436 and since the City Survey No. 522 had been mentioned in the original P. T. D. of Abdul Ohani and Allah Noor therefore it was an obvious mistake and could be corrected. Moreover, it is an admitted position and has also been held to be so by the Deputy Settlement Commissioner that the room bearing No. B-436 is definitely existing on a portion of City Survey No.'523 and therefore if any City Survey number was to be shown in P. T. D. then at least a portion of City Survey No. 523 had to be shown in the P. T. D. of Abdul Ohani and Allah Noor and the non-mention of this City Survey No. 523 was another mistake in the P. T. D. of Abdul Ghani and the same had also therefore, to be corrected. Therefore, to this extent the modification of the P. T. D. could be made as the same did not involve the question of granting the extra right to P. T. D. holder. Ic is again an admitted position that in every one of the P. T. Ds. which were granted to the petitioner predecessors or respondents, the relevant City Survey Numbers have been shown in all the P. T. D. and the same is also necessary on account of which the fact that the City Survey Numbers in the P.T.D. the survey authority refused lo mak< the relevant mutation. Therefore, tnere was nothing wrong in correcting City Survey Number in the P. T. D. 7. However, the dispute really centres around the question whether the P. T. D. referred to the entire space over all the 6 shops or it was simply in respect of one room which bore No. B-436 The petitioner's counsel contends that P. T. Ds. issued ihTavour of the petitioners and_ their predecessors in interest in respect of the shops also included roof~over the said shops which were also transferred to them as roof is ordinarily a part and parcel of tfrj ground flx>r teaemenx. -Tb« counsel relied upon 1977 S C M R 353 where the Supreme Court observed that transferee of shop is entitled to roof over the shop. He also relied upon PLD 1971 S C 669 . where Supreme Court held that P.T.D. cannot be amended if it was intend'" 1 to modify the P T. D. and provide that roof will belong exclusive tc the respondent. Mr, Ismail Munshi learned counsel of the respondent on the other hand relied upon 1977 S C M R 189 wheie the Supreme Court construed the word 'First Floor' as meaning to include built up portion e» well as the open space. The petitioner's counsel also relied upon PLD 197 S. C. 309 where the Supreme Court observed that without inspection of property finding of indivisibility canoot be given. Mr. Ismail Munshf on the other hand relied upon P L O !976 SC 435 where it was held that even an illegal action of an aubority would not be open to scrutiny by the High Court if the action was within jurisdiction of the authority making the order. 8. In this case I feel that the only question is as to who was in occupation of the roof over the shop. If Abdul Ghani, respondent was in occupation of the entire roof over the shop along with the room, admittedly in his [occupation, then he is obviously entitled to the same. But if the roof was in occupation of the shop keepers then the respondents could not claim any thing beyond the structure of room No. B-436 id this case two . orders made by the Deputy Settlement Commissioner and the Additional Settlement Com missioner allowing the roof of the shop to the petitioners/shop keepers are based on the legal presumptioa that the roof is a part of the shop, but both the learned officers have not cared to give any finding as to who was in actual possession of tne roof over the shop. There is a mention in the order of the Deputy Settlement Commissioner that the shop owners were in the constructive posses sion of the roof of the shops and that constructive possession amounts to possession in the eyes of law. But this was strange finding is as the question of constructive possession was not at all involved in the case. The respondents Abdul Gbani and Allah Noor were claiming to be in possession of room B-436 and obviously they must be reaching (be said room from the stair-case, they must have bad 10 pass from certain open space of. the roof and therefore it was obvious that certain open space must be in the posseision of the petitioner, but there is no consideration of this aspect of the case in the order of the Deputy Settlement Commissioner or Additional Settlement Commissioner. Now the possession of the respondents could not obviously amount to constructive possession of the petitioners and therefore '(be petitioners, if they wanted to base their claim on constructive possession, had to show as to who was the person on their behalf who was in actual possession of the shop and who was not holding the possession on behalf of the respondents and that the respon dents were not in possession. But they have not submitted any proof of that and hence no constructive possession was proved. On the other hahd there is a definite finding of the Deputy Settlement Commissioner that the room No B-436, which existed in 1951 and is in admitted possession of the respon dents was built on C.S. No. 523 which corresponds to shop No. B-438 which is the shop of Ghulam Muhammad. Therefore, even if the roof is deemed to be transferred with the shop, a part of the roof was already having a room and hence entire roof of Shop No. 438 could not be transferred or be deemed to have been transferred to petitioner Ghulam Muhammad. I even fend in the petition of Ghulam Muhammad that he had made an application on 15-12-1957 before the Assistant Custodian of Evacuee Property, Mirpurkhas, Annexure 'C' to this petition, where Ghulam Muhammad stated that he was allottee of shop No. B-438 and that Allah Noor respondent had trespasied on the roof and bad previously raised Kutcha construction thereon and the Assistant Custodian bad already ordered the removal of the encroachment. The said application further alleged that Allah Noor had again trespassed on the roof and erected a Chapper. Now we do not know what was the final fate of that .application but at least this much is obvious from this application that oae of the petitioners had already made tome Katcha construction, in or before 1957 and the roof o' ihop No. B-438. against which Obulam Muhammad petitioner bad protwjd and n respect of ebal p?tM a« rdr bad teen made- ty the Assistant Custodian, and the respondent Allah Noor had further erected Chopper on the roof near October 1957 therefore, the responden; Allan Noor apart from having the possession of one room in 1951 with Abdul Ghani had also in his possession or powers in 1957 so much portion of the root' of the shop upon which be had made .some further Kutcha constructions and also erected & Chopper thereon. According to me it clearly suggests that the respondents were in possession of the roof the said shop otherwise they could not have made the unauthorised construction in 1957, before the Settlement operations started. Hence the respondents, in 1957, were in possession of some portion of the roof over the shop apart from the admitted possession of room No. B-436, I also find thai the Deputy Settlement Commissioner has come to a finding that roof of the shop of Mohammad Ramzan petitioner bearing Nos. B-130 and 131 had been trespassed upon by the respondents. There is no mention as to what was the nature of this trespass by the respon dents over the roof of the shop of petitioner Muhammad Ramzan, when it tool place and what steps petitioner Muhammad Ramzan took to get the said trespass abated. Thus the finding of trespass again suggests that the respondents were in actual possession of the roof of the shop of petitioner Muhammad Ramzan also and the allegation of trespass without specifying the time of trespass was a mere cover to explain and minimise the effect of the possession of the respondents over the roof of the shop of petitioners Muhammad Ramzan and other?. 9. In the light of this background I fail to understand as to on what basis the Deputy Settlement Commissioner came to the conclusion that the shop owners were in possession of the roof of the shop in question. The allegations ware in fact to the contrary. The Additional Settlement Comtrussiouer has hardly exercised his mind to the relevant facts of the case when he made the order on 24-2-1969 as the actual possession of roof over the shop is concerned. The learned Additional Settlement Commissioner inspected the site but did not even indicate as to whom he found in possession of the roof of the shop. In fact, the learned Additional Settlement Commissioner seems to have con sidered that even, room B-436 should not have been transferred to the petitioner, although there was no dispute in respect of that room before him and he had to confine himself to a decision on the question of possession of the area ground that room 10. On the other bead when I look into the impugned order of the Settle meat Commissioner dated 23-51969, I find that be has taken a correct view of the whole situation He found that the open roof surrounds room No. B-438 and formed part of this property and be has come to the conclusion tbat the respondents have been in actual occupation of the roof. As 1 have observed either that there is a reasonable basis for making such observation as the actual occupation of (be respondents even though allegedly unauthorised is clearly established on record. The most important consideration that weighed with the Settlement Commissioner was that the petitioner shop owners had not adduced any proof that they were using roof of the shop as part of their property. This was the basic question and since the petitioners had failed to produce.any positive proof of their possession over th: roof, the Settlement Commissioner had no option but to hold that possession of the roof over the shops was with the respondents who were found to be in ctual occupation Whether occupation was authorised or unauthorised was really of no consequence « the unauthorised Mcupation seems to have dated back from 1937. In this view of the facts and circumstances which I have taken 1 am of the view that the Settlement Commissioner had not committed anyillegallity ia the order that he passed on 235-1969 which was in the nature of clarification atto what was the extent of premises B-436. I therefore find no force in these petiiioni and the same are hereby dismissed.
PLJ19SO Karachi 181 PLJ19SO Karachi 181 Aatxn. haybv kukbski & saiiad als sbab, Jl S¥ED MUBAEAE AJJ versur JNAYAT HUSSAIN and AMtter Latten Patent Appeal No. 33 of 1970 decided on 14-10.1979. W P. Moaay sV«Biari CMsamee (XXIVeflMBi-S. 2 (m) & S. !0-Wbttber defeadaot is money SenderD«fioitioa of word, "loan" narrated and held Mey lender maaat a person carrying oo busiaess of advancing loaa but it ia jaot every transactioa of lending of money that makes lender a moaay leader- Word, "boaiaett" defined as anything which occupies time and attention aod labaw of a maa far purpose of profit; dictionary meaning; habittwl occupatioa. profession, trade, serious work with definite purpose nj person raw carry oa baitaess of money lending by mere fact of having advaaead 11% tit.' money to one person on one or more occasion or conversely to two or pVrsoL on oil occasion each-Whether one t. immi ;!«'> ^JJS fact deduclble from circumstances of each individual f?- 1 " ' n » t . a w n
defendants advancing moaey held not money lenders-Suit not filed by lender bat by borrower. S. 10, not applicable. {.raras. , iv, i-i A. Azis Khan for Appellant. Mohsin Toyabally for Respondents. Doff of hearing : 8-10-1979. JUDGMENT Abdul Haye Kuwhi, /.-This is an appeel under Clause W # \ te Patent Appeal a> applicable to the er« while High Cojj :o .W e.t . agaioit the judgmeot of a learned Single Judge on the .-original » do Suit No. 25/1968. filed by the appellant Syod Mubarak AH r£ 'V dents laayat Wain aod Shaf.kkat Hussain was dw»w«o4, ob the c of the fa earini of the appeal we had by a short order dismissed the . tjme with no order «» to costs! The reason for sucb short order presently follow. 2. The brief facts relating to the .ait filed by appellant Syed JJubjrrt AH (hereinafter referred to as the plaintiff) ataiost the mpoBdnti l W"gZ n and Sntfakkat Humin {hereinafter referred to as the defendants) are as follows. 3. execution ttf the first mortgage deed be obtained a farther loan of Rfc 10 OOO/ from the defendant. a«al«tt secmtiy of the »««»«« ««« d « » od n « J 8 S? J! a of interest. He stam tM by Febpitt? 1967, e defeodanUhsd received a mm of Rs. S6.000/- by w^'of the exorbitant interest and he coflld »««; such usuroas demands ©> tke defendants and in theie «rcum S t«nj^he defen dants converted the initial eqatoble mortgage into an English MectufO ana compelled the plaintiff to have it registered before the « Sob-Regn rar ot Asiurances and oa 13-M967. such document was registered dUcloaiaf wWty of Rs. SO OOO/-. Such document, according to the plaintiff, undue influence and coercion. The plaintiff farther state, tha t Bt h»d ^ been charged interest at the rate of 3% per month after the elocution of «! whse queni mortgage. The further averment of the plamuff is that the Wf wat" bad aH l&S kept him under the impression that.they w ere i »I«J ^"g lenders but in fact they were not so licenced. Accordwi to tha platatW, he requested the defendant, to adjust Ra. 56.000/- paid; by him to the defendants to .the total principal loan of Rt. 70 t OOO/- leaving a balance ofc Rs. lfW>' J' payable. The plaintiff has further stated in the P»«« «ha ^" '»l«Jjl agreement was also entered into between the parties on 3.J2- 1968 whereby the liability was reiterated. It seems that thereafter correspondence «"«'' °» bstween (he partioi aod tbs defendams insisted on. t«k.n 8 action withm the terms of the subsequent mortgage deed. The plaintiff then filed a suit on the original side of this High Court claiming the following reliefs : (a) Judgment and decree for cancellation and delivering up the English Mortgage Deed dated 13-2-1967, for reason of the same being void, inoperative and not binding : (b) Declaration that the plaintiff had fully paid up the loan to the defen dants snd redeemed the mortgage ; (c) Injunction to restrain the defendants from interfering with the posses sion and ownership of the plaintiff in respect of the mortgaged property ; (d) Costs of the suit ; and (e) Bay other relief which may be just and reasonable. 4. In their written statements the defendants denied that they were carrying on business of money lending or had represented to the plaintiff that they bad a licence. They admitted having lent a sum of Rs. 60, GOO/- to the plaintiff for the purposes of his business as also the execution of an equitable mortgage. They admitted that interest at 9% per annum was payable on the amount advanced. The defendants denied that they bad advanced a further sum of Rs. 10,0001" to the plaintiff against the same security and they also denied having received a sum of Rs. 56.000/- as interest. The defendant have further stated that a lum of Rs, 60,000/- and interest was repaid to the defendants by the plaintiff sometimes in February 1967. The case of the defendants is that they ka 1 agreed to advance to the plaintiff a sum of Ri. 50.00Q/- on execution of an Bnglish Mortgage in their favour. They denied that the document was executed under circumstances amounting to undue influence or coersion. The «ase of the defendants is that the plaintiff had failed to repay the amount of the mortgage deed inspite of notice of demand. The plaintiff approached the defaadants requesting for further time to repay and on negotiation the plaintiff agreed to execute an equitable mortgage of some other property at Mamsjabad and he actually executed this subsequent agreement also whereby the amount was made payable by 7-1-1969, Some cheques were also given by the platetif to toe defendants but the same bounced on presentation. In short, the case a? the defendants ii that the mortgage was a valid and subsisting docurocv v bfotbcr Ahmad AH. One Aii Hutsaia, a Clerk io tbe Timber Market Branch of fiabib Bifik Ltd, was esamioed t@ prote encashment of two cheques, each of Ri. 25,000/ » iisoed by tee dtfeadanti Io favour of tbe plaiadfif si the time of execution of the English Memgaje. From among tbe defendants Inayat Huuain entered the witness box « od furnished the evidence. 8. The main eoasent job of Mr. AfoduS Aziz Kraft, appearing for tba appatwa$ tbat tbe traaeaeiioQS between tbe parties were bit by tfee |>fu » @f fbs Watt Pakbtaa Moaey Lenders OrdiaAfiwe, if60, btretBafier refer -to. « a ite OrdiaaEMS. Tbe further eoBteatioa of Mr. Abdal Aziz Kbao Wat tfst at ttee rate of 3! % per aoatatn bad been charged by the defendant fli « piaiatiST and gioce tbey .were not lieeaced money lenders they were not to sarty oa besiness of mosey leading and the heavy intent t charged te adjusted t » the prtoeipal 9. foft inlly, we propose to examine the protissoaa of tbe Ordinance. Thi » «« a promulgated ob 20-7-1960, witb the object of amending and tbt law relating to money leaders, their registration and the _ of tbeir trade. Tbe word "loan" 13 deSaed ia ciaose (!) of sectteo of lie Ordtaance as follows :~ " iseaoc an advance whether secured or oeiecured of money or in at interest and shall include any transaction which tbe Court Sads to b$ in rabitcitce a loan, but shal! not include, CO B advance is kind made by a landlord to hit tenant for the purposes of husbandry ; provided tbe market value of tbe return does not exceed the market value of the advance as estimated at time of advance ; (II) f deposit of money o » other property in a Post Office Saving Bank, or otb@f bask or with a company, or witb cooperative society or witb employer si nc^rity from bis employees ; (/ll| $> tean to, or by « or » deposit with, aay society or associarion registered s^r tbe Societies R@gistratioa Act, ! § 60 f of tinder oy other enaetmeat ralstlag l@ religioui or charitable societies : a ! © %b advanced by or to the CcatrsI or any Froviaciai Oomrnment or by &" to any local authority or other body corporate set up under tbe of tbe Centra! or any Provmcii) &) « J ® ae advanced by a- bank, a cooperative society or e corapany whose 8 « m » Mi « i art snbjgct to audit by a certified auditor under the Cdstpaiet Act, 1913. (if) a tea -isd^eam? by a trader to a trader, in ike regular course of besiwess, la accord aisce with trade usage ; made on the basic of & negotiable Iitstrsraent as defiaed in h$truwnts Act, ISSi. orosr $han a promissory note. Clause (m) of the same section defines "money leader" to mean a parsoni carrying on the business of advancing loans. Section 10 of the Ordinaacej rovides for the consequences in a suit by money lender who is not licenced.! t reads as follows : | "(I) Notwithstanding anytbing contained in any other enactment, a suit by money-leader for recovery of & loan or an application by a money-lender for the execution of a decree relating to a loan shall be dismissed unless at the time of the institution of the suit or at the time of presentation of the application for execution of the decree, as the case may be, the money lender : (a) holds an effective licence granted under section 3 ; or (fc) holds a certificate granted under section 7 specifying tha loan in respect of which the suit is instituted or the decree in respect of which the application for execution is presented." 10. It must be stated at the outset that section 10 only provides for con sequence when a suit is filed by a money-lender for recovery of loan or execution of a decree. The present suitbat not been filed by the lender but by the borrower. In such circumstances, it appears doubtful if this provision was at all attracted. It seems that this point was permitted to be argued by the learned Single Judge at length on equitable considerations. We have also permitted arguments being addressed to us on the point for the same reason. The main question before us was whether a legal liability was created against the plaintiff by reason of the mortgage money carrying interest. Even if it is assumed that section 10 of the Ordinance can be stretched to the present case we have bo hesitation in answering the question in favour of the defendants and against the plaintiff. The main question is whether the defendants were money lenders within the meaning of Clause (m) of section 2 of the Ordinance. It is not every transaction relating to lending of money that makes the lender a money-lender within the meaning of the Ordinance for what is provided is that money-lender is the person who carries on "the business of advancing loans". The question then narrows down within small compass viz, .whether the defendants were carrying on business of money lending. In the case of'Litehfiela v. Dreyfus Limited in (1906) i K.B. 584, Parwall J., examined the definition of the word "money lender" as appeared in the Money-Lenders Act of 1900. The English Act defines a "money-lender" as : "Every person whose business is that of money lending, or who holds himself out in any way a carrying on that business.". In this case, one of the parties was carrying on business as an Art Dealer and in the course of his business it was necessary and incidental thereto give long credit and to take from bis customers hills and payments of the amounts they owed, to him for their purchases and to discount and renew the bills form time to time. The parry earned on business as aa expert Art valuer and advisers and he also had two other art business in which be was largely interested, by discounting for them their customers' bills and,by taking bills for interest from time to time due on the deber^tures he held in one of those business. It was held that the party was principally only helping his clients and he was not a moneylender within the meaning of the term. The learned Judge came to the con clusion that by merely limiting his clientele and choosing to call them as his friends a money-lender cannot be allowed to evade (he consequences of the law but it was always a matter of fact as to whether a person is or.was not a money-lender. 11. In the matter of Bkairo Dutt Bfuptdari (A.I.R. 1940 All 1) the Pull Bench was considering the case of misconduct by a Legal Practitioner for the reason of occasional and disconnected loans being given by him to his relations and friends. The question arose whether the Legal Practitioner on that score could be termed a money-lender or engaging in money-lending business. The Poll Bench observed a« follows : "The question that arises for consideration is whether the advances of loan admitted by the Advocate do or do not amount to engagement in. money-lending business by the Advocate and the answer to the question is beset with considerable .difficulty. Investments of his savings by an Advocate do not necessarily amount to engagement in money-lending business, the more so whan each investments are few and far between and are mostly made to relations and friends. Nevertheless, if investments by way of loan are made as a matter of regular business and for gain there can be no escape from the conclusion that such investments constitute engagement in money tending business. What does or does not constitute money-lending business must depend on the facts and circumstances of each case and is not capable of an exact definition. The question is a mixed question of fact and law and the snswer to the question must depend on the facts found in each particular ease." 12. In another English case reported in (1918) 1 K.B. 205, the concept was examined and Mo Cardie J., made the following observations : "A man does not become a money-lender by reason of occasional loans to relations, friends, or acquaintances, whether interest be charged or not. Charity and kindliness are not the bases of usury. Nor does a man become a money-lender merely because he may npon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending, and the word 'bttiltiess' imports the notion of system, repetition, and con tinuity. ... The' line of demarcation cannot be defined with closeness or indicated by any specific formula. Each case must depend on its own peculiar features. It is ever a question of degree. ..." 1.3- In the case of Sano Kashtnath Cfutwdhury v. Patitto Sabuio (A.I.R. Pat. 384); Harries, C.J. who delivered the judgment on behalf of the Division Bench also considered the same question and came to the conclusion that the element of continuity and habit is essential to constitute the exercise of a profession or business. The learned Chief Justice was of opinion that there must be more than occasional and disconnected loans and the word 'business imports the notion of system, repetition and continuity. He concluded the discourse by stating that when instances of lending are few and spread over a long period of time and further when it is found that there is some particular reason why such loan had been given then the circumstances will strongly nggett that the lender was not carrying on the business of money-lending. 1 14. In Smith v. Anderson (15) Ch. D. 258, Jessel M.R., after citing several v v (dictionaries defined business as "anything which occupies the time and atten- '>' Jtion and labour of a man for the purpose of profit." 15. The Concise Oxford Dictionary defines 'business' as "habitual patioo, prafew&a, trade; serious work with a definite purpose". loccn 16. On a eovslderatioa of the varioas coaootatioss of the word 'basin it would seem that the relevant considerations are the instances of moneylending proved, the period over which those are spread, the variety of person! to whom amounts have been lent, the relationship between the money-leade and the bro&ts accruing to the borrower. No person could be said to carry on business of money-lending, with or without interest, by a mere fact of bavinj advanced money to one person Co one or two occasions or conversely to two o three persons on one occasion each. Indeed it will be perilous to lay role to to contrary for in that case any person advancing any money even with the nobk instinct of helping another would run the risk of being dubbed as a money lender and in the transaction lose not merely the instinctive reward of bavin; helped another man but also his own money. It cannot be said better thai what Parwell, J. said that it is is a question of fact, to which may be added thi words "deduobie from tbe circumstances of each individual case". Applyin< this test to the instant case the record discloses that the defendants advaoce< moneys to the plaintiff on two occasions and ones to the brother of the plaintiff for purchase of motor car, which however, was never purchased so that the amount was returned. There is no evidence on the record that the defendants ever advanced any money to any other person on any occasion. The mere factl of the advances being made as stated in the evidence on record would not bej sufficient to set up a conclusion that the defendants are tinliceaced money-f lenders. Tbe learned Advocate for the appellant plaintiff has invited oat attention to the several transactions between the parties or between Ahmed AU, the brother of the plaintiff and the defendants, as are detailed in para 7 of the judgment of the learned Single Judge. Most of these transactions have been denied by the defendants and have not been satisfactorily proved. What is satisfactorily proved on tbe record is the two transactions between the plaintiff and the defendants and one more between the brother of the plaintiff and tbe defendants. We entirely agree with the process of reasoning adopted by tbe learned Single Judge that most of these transactions are not proved and cannot be used against the defendants in the determination on this point. Moreover, the parties had business dealings also. 17. The next contention on the same isue was in regard to validity of tbe second mortgage. This mortgage was created by a registered document and if independent of the first mortgage. Two cheques of Rs. 25.000/-each were delivered by the two defendants to the plaintiff in tbe presence of the Sub- Registrar. Botb these cheques have been cashed and the plaintiff is shown as payee of these two cheques. On the back of the cheque the signature of the plaintiff appears in token of his having received tbe amount. Placed in these cricumstances, Mr. Abdul Aziz has urged that these two cheques were in fact returned by the plaintiff to the defendauts after signing the same at tbe back io token of having encashed them but in fact these cheques were cashed by the defendants. It is difficult to rely on such explanation and we have oo reason to a different view frpm tbe views of tbe learned Single Judge in such regard. 98. ob the second issue the ioaraad Stogie Judge came to. the conclusion, ibat tbe second mortgage vit, tbe English mortgage was noi a tr»n»«otion in «OBti8uity of the earlier mortgage transaction by equitable mortgage of tbe property, Tbe plaintiff's allegation is th»t he bad initially taken a loaa of Rs, 70.000/- out of which be had returned R». 56.000/-, tbui leaving small balance of Ri. i4,000/>. On the other band, he bat tet up a conflicting ease ibit »? th time of execution of second mortgage be had to repay a turn of Rs. SO.OOO/-, These appear to be conflicting version but or tbe other biB4 receipt of two cheque! of Rs. 25.QOO/. each clearly points to tbe coocImiOB that the transaction of the English Mortgage ia favour of the defendants was ta altogether independent transaction having no bearing on the first mortgager except of course in the sense that the mortgagor and mortgagees were the same. The plaintiff has even alleged that a letter written by him to the defendants (Ex. 5/10) was written in the office of-an Advocate and by force of circumstances amounting to coercion or undue influence. In this letter, the plaintiff has disclosed all the circumstances relating to the transaction and bas admitted his liabilities. He has not examined any witness to prove any such attending circumstances as might cast a doubt in regard to the letter not having bee a written by him of his own volition. We agree with the finding of the learned Single Judge on the second issue. 19. No other point was urged before as and we see no reason for interfering with the judgment of the learned Single Judge. This appeal is as a consequencedismissed but since a question of law was involved and tbe plaintiff is likely tolose bis property also we shall leave the parties to bear their own costs.
PLJ 1980 Karachi 188
PLJ 1980 Karachi 188 ajmaju mian, J
M/» PLASTIC RAFTERS Ltd., Kandii versus
M/g
MANIAR INDUSTRIES LM.
Civil Suit No. 366 of 1979 decided on 27-10-1979.
(i) Patents and Designs Act (II of 1911) S.
29 and S. 51-AS. 29 refers to infringement of design while S. Sl-A relates to cancellation of design, not con templating filing of counter claimSuit becomes liable to be transferred to High
Court where defendant makes counter claim for revocation of patent in a suit filed by patentee.
(P