PLJ 1987 Judgments

PLJ 1987 AJK 86 PLJ 1987 AJK 86 Present : sardar moh ammad ashraf khan <& abdul ghafoor, JJ GOVERNMENT OF PAKISTAN through MINISTRY OF DEFENCE, Islamabad ,^-Appellant Versus HAMID, AKHTAR—Respondent Civil Appeal>fo. 2 of 1986, dismissed on 8-1-1987 (i) Civil Proccctoe C6de, 1908 (V of 1908) — -—O. XVIII, R,2 read with Land Acquisition Ac!, 1894 {I of 1894)— Ss. 18 & 53—Additional evidence—Production of—-Justification for —Appellant having no notice of application filed by respondant, no opportunity to raise any objection as to admissifaility or relevancy of copy of award or to lead evidence in its rebutrai afforded to him— Held : District Judge, not to be justified to summon tils of said award from concerned quarter and place copy of same after certify­ ing it to be true copy after close of evidence of parties and without notice to appellant. fP. 90JB

(ii) Evidence Act, 1872 (I of 1872)—

-Ss. 1-A & 77—Registered document —Certified copies of~~Admi.ssir^bility of in evidence—Held : Certified copies of sale deeds being admissible in evidence, no exception to be taken to admitting of and taking into consideration such certified copies produced for purposes of determining market value (without examining vendors or vendees of such deeds). IP. 9l]E (iii) Land Acquisition Act, lS l| 4 (I of 1894)—

Ss, 18& 53 read wkh Cmi Procedure Code, 1908 (V of 1908)— O. XVIII, R. 2—Coun. — Reference to—Procedure in — Additional evidence—Production o,- -Cop;, of award placed on record after case was adjoained for announcement of judgment — Held : Case being tried bv District Judge as civil court, procedure adopted by him in placing copy of award on file without any notice to opposite party not to be permissible under law — Held further : Respondent intending to produce in evidence award io proof of his claim to tender it in evidence in accordance with law when he is called upon to lead evidence or to tender it in evidence as additional evidence with pirnj ;$:•_'<i of court. [P, 90]A (it) Land Acquisition Act, 1894 (I of 1894)—

S. 23—Acquired land —Market value of—Ascertainment of—Held: Value of land compulsority acquired under Act to be determined not only according to its present position but its potential value also to be considered in arriving at its market value. [P. 92]D (t) Land Acquisition Act, 1894 (I of 1894) -

-S. 23—Acquired land — Market value of — Determination of— Held : Award given in case of acquired land situated io altogether different village not to be taken into consideration while ascertaining market value of land acquired by Government under award of collecter of relevant village. ;P. 90]C (<ri) ETidence—

Documentary evidence—Admissibility of—Failure to raise objec­ tion—Effect of- Certified copies of sale deeds admitted and exhibited by trial court without any objection from appellant—Appellant him­ self also producing certified copies of sale deeds in rebuttal — Held : Objection as to admissibility of such documents not to be allowed to be taken in appeal. [P. 92]F Raja Muhammad Hanif Khan, Advocate for Appellant. Kh. Shah ad Ahmad, Advocate for Respondent. Date of Institution : 23-1-1986. JUBOMENT This first regular appeal has been brought against the judgment of the District judge K.otH passed on 24-11-1985 in a reference under Section 18 of the Land Acquisition Act (hereinafter referred to as an Act), whereby the amount of compensation awarded by the Collector Land Acquisition, Kotli for the land belonging to the respondent acquired by the Govern­ ment under the Act, was enhanced. 2. The brief facts of the case are that the land comprising survey Nos. 317, 75, 78, 80, 62, 63, 61 and 48 measuring 40 kanals 2 marlas situate in village Kotli Balyah, Tebsil and District Kotli which was aa evacuee property but whose proprietary rights had been granted to^Hamid^ Akhtar, respondent as an allottee of the same, was acquired by the Government for public purpose, namely, defence purpose under the Act through an award made by the Collector on 21-11-1981 at the rate of Rs. 28.720/- per kanal. The respondent did not accept the award on account of insufficiency of the compensation amount awarded to him for the acquired land and consequently moved an application on 2-1-1982 before the Collector Land Acquisition, Kotli under Section 18 of the Act for referring the matter to the Civil Court for determination of the compensation amount on which the matter was referred by the Collector Land Ac­ quisition, Kotli to the District Judge, Kotli for his decision, 3. The respondent in his reference application bad alleged that the amount of compensation awarded by the Collector for the acquired land was quite inadequate and that the market value of the same was not less than Rs. 40.000/- per kanal at the relevant time in view of the fact that it is situated within the municipal limit of Kotli Town The compulsory acquisition charges @ 15% on the compensation amount and compound interest @ 8% on the said amount from the date of publication of the Notification under Section 4 of the Act, till its payment was also claimed by the respondent in his reference application. 4. The appellant resisted the reference application by filing written statement in which the claim of the respondent as to the market value of the acquired land was disputed and the value of the acquired land determined by the Collector Land Acquisition, Kotli in his award was alleged to be fair and actual market vaiue of the same. The entitlement of the respondent to any interest on the amount of compensation was also denied: 5. In the light of the above pleadings of the parties, the learned District Judge, Kotli framed the following issues : — (!) Whether the Market value of the acquired land is Rs. 40,00 /- per kanal, and how ? OPP, (2) Whether the petitioner is entitled to payment of any more amount from the respondent, if so. How much ? OPP. (3) Relief. 6. The respondent in proof of the above issues examined Malik Muhanmad Nawaz and Abdul Qayoom Qadri, Advocates and also appeared as his owe witness Malik Muhammad Nawaz, PW deposed that presently the market value of the land in village Kotli Balyah is Rs 1,00,OOQ/- while the same was Rs, 50.000/- per kanal in the year 1978-79. Mr, Abdul Qayum Qadri, PW stated that the Sand measuring one kanal iO marlas mentioned in Ex. PA was sold for Rs. 7Q,OOi)/- and it was he who had negotiated the bargain between Abdul Qayum vendor and Malik Aashiq Hussain veodee of the said land and that he was the attesting witness of the sale-deed. He has further stated that he had sold the land mentioned in Ex. PC and PD as a special attorney of its vendor. The respondent, Hamid Akhtar in his abatement claimed the value of the land to be Rs. 40.000/" per kanal at the time of publication of the Notifica­ tion under Section 4 of the Act and produced the certified copies of the sale-deeds Ex. PA to PH. 7. The appellant in rebuttal ooiy examined Sardar Khan, Deputy Military Estate Officer who produced certified copies of the sale-deeds and mutations of the sale-transactions exhibited as DA to DG. 8 The learned District Judge, after examining (he evidence adduced by the parties in the case and hearing the arguments of the learned counsel for the parties, assessed the maiket value of the acquired land @ Rs. 40.000/- per kanal and accordingly decided the issue No i in favour of she respondent and in view of his above finding, he decided issue No 2 to the effect chat the petitioner shall be paid a sum of Rs, 5,19,568;'- in addition to the amount of compensation already awarded aad paid to him The claim of the respondent for the payment of intereit on the compensation amount was not allowed, 9 Feeling aggrieved by the above judgment of the District Judge, Kotli dated 24-11-1985, the appellant has lodged the present appeal against the same, 10. We have heard the learned counsel for the parties and have also gone through the record of the case. It has been contended by the learned Counsel for the appellant that the learned District Judge has erred in determining the market value of the acquired land on the basis of the award No, 43/78 dated 30-4-1979 as, in the first place, the same was not tendered in evidence and its photostat copy was placed on the file on application of the petitioner when the evidence in the case had already/ been closed and arguments heard and secondly it related to some other village of Tehsil Kotli and not to that of village Kotli Balyah in which the acquired land is situate, It was further contended by the learned Counsel for tbe appellant that certified copies of the sale-deeds Ex. PA to ,PH, tendered by the respondent in evidence in proof of the market value of the acquired land, were not admissible and could not be read in evidence for determining the value of the acquired land as neither the vendors nor the vendees of the same were examined as witnesses to prove the genuineness of the sale transactions. In support of the ab we contentions, he cited PLD 1960 Lahore 469, It was also contended by the learned Counsel for the appellant that through the sale transactions witnessed by the aforesaid documents, only small pieces of lands

vere sold for which reason they do not reflect the teue market value of the acquired land measuring more than 40 kana/s. 11. On the other hand, it has been argued by the learned Counsel for the respondent that from the material on tbe record, it n undisputed that the acquired land is situate within the municipal limits of the Kotli Town and is adjacent to the commercial as well as residential area on account of which its market value assessed by tbe reference Judge is quite reasonable and fair. It is further contended by the learned Counsel for the respondent that the price of the land assessed by the District Judge Kotli is also fully supported by tbe sals transactions which had taken place in village Kotli Balyah immediately before and after the publication of the Notification under Section 4 of the Act in respect of the acquired lands which are embodied in the copies of sale-deeds and mutations of the sale transactions produced by the parties in support of their respective claims as to the market value of the acquired land at the relevant time. 12. We have given our due consideration to the above conten­ tions of the learned Counsel for tbe parties in the light of the record and relevant law. As regards the contention of the learned Counsel for the appellant that award No. 43/78, dated 30-4-1979, made by the Collector Land Acquisition, KLotii, has wrongly besn considered and relied upon by the District Judge for the purpose of evaluation of the acquired land, has much substance in it. From the perusal of the tile of Reference Judge, it appears that the said award or the copy of the same was not tendered in evidence by the respondent at the stage of producing his evidsnee and that it was only after the close of evidence of the parties and hearing of the arguments in the case that on the application of the respondent, copy of the award was placed on the record by the District Judge after comparing the same with the origiaa! award and certifying is to be its true copy. The District Judge was trying the case as a cK'ti court and as such the above procedure adopted by him in placing the copy of the said award on the file after the case was adjourned for announcement of judgment without notice to the opposite pariy, was not permissible under law. If the respondent intended :o produce in evidence the said award in proof of his claim with regard to the market value of the acquired land, he should have tendered it in evidence in accordance with Saw when he was called upon to lead his evidence or at the most couid tender it in evidence as an additional evidence with the permission of the Court but none of the above procedure was adopted and only an application for summoning the file pertaining to the said award and placing the copy of the same on record was made to the trial Court when the case was already fixed for announcement of judgment. 13. The appellant had ao notice of the above application sad as such had no opportunity to raise any objection as to its admissibiiity or relevancy or to lead evidence in its rebuttal. Thus the District Judge was neither justified nor permitted by law to summon the file of the said iward from the concerned quarter and place the copy of the same on the record after certifying it to be true copy after the close of evidence of the parties aad without notice to ins appellant. Even otherwise, the award under discussion had no material bearing on the question of the narket value of the acquired land as it did not pertain to the village in which the acquired land is situate but altogether to a different village of Tehsil Kotli The above award, in our view, could not be taken into consideration while ascertaining the market value of the land acquired by the Government under the award of the Collector Land Acquisition, Kotli which was a subject of reference before the District Judge. We, therefore, altogether exclude from consideration the said award while assessing the market value of the land in question and would oniy confine ourselves to the examination of oral as weil as other documentary evidence produced by the parties in proof and rebuttal of the issues framed by the trial Court respectively. 14. So for the oral evidence in the case is concerned, the respondent in his statement had claimed the market value of the acquired land to be more than Rs. 40.00U/- per kanal at the relevant time which is supported by the oral evidence of Malik Muhammad Nawaz, Advocate who appeared as a witness on behalf of the respondent. No oral evidence has been led by the appellant to rebut the above evidence of the respondent and only certified copies of the sale-deeds and mutations of sales have been produced to rebut the evidence of the respondent led in support of his claim with regard to the market value of the acquired land. 15. As regards the documentary evidence, the respondent had tendered io evidence the copies of the sale-deeds Ex. PA to PH in proof of the market value of the acquired land out of which, in our view, Ex. PC, PD, PG and PH are not relevant because the Sands whose sale they witnessed are situated in the village different from the one in which the acquired land is situate and thus we, would take into consideration only other documents, namely, Ex, PA, PB, PE and PP. Oat of the aforesaia documents to be taken into consideration, Ex. PA and PB are certified copies of the sale-deeds executed bsfore the publication of the Notification under Section 4 of the Act in respect of the acquired land while otbcr v-'sre exe-.'uu-^ aft-'r the publication of the same, Through the transactioi; witnessed by li" PA, ! kanai 10 marlas land in village Kotii Baiyali x v«i sole' z'« ";>f ^bcU'l Qayura to MaiiK Ashiq Hussain for a coasidri.-.tion o: ?• ^ 70.0GO/- •.-, i '-8-1918 which means that uie pries per kanai in this case v,,js K; -l6,Vui v -. p;?. i.vho'e amount of consideration was paid before the Sub Registrar t rns tims uf registration of the saledeed whose one of the attesting witness was Abdul q..ivulu Qadri, Advocate who appeared as a witness on behalf of the respondent as«d testified the execution of the sale-deed under consideration. The saic deed, copy of which is Ex. PB, 15 mar las of land situate in village Kotii Balyah was sold for Rs, 35,000;'- out of which Rs. 30.000/- were received by the vendor before the Sub Registrar and thus the price worked out per kanai in this case also corses to Rs. 46,TOO/-. Document Ex. PE witnesses :be sak":rj.n$3ctic»s on 23-7-1981 of the land measuring 5 marlas for Rs- 30,000;- which price '.vncu worked out comes to Rs I,20,0u0/- per kanai. Through she sale transaction witnessed by Ex. PF, 9| marlas of land was ti-ansii,"-.-:; foi - a pri:; ,-f R>, -i-B, 'OG/- on 206-IVUO which in other words rneaa that th; >a!c orscs -,a this case was about Rs. 97,000,', per kanai. The above examination of the sale-deeds would show that according to the evidence of the respondent average market value of the land in village Kotli Balyah in which the acquired land is situate, was about Rs.46,700/- per kanai before the publication of the Notification under Section 4 of the Act .-.-•; i 5-, 0 •''•.• 79 ; n re3pee? r>f the acquired land whtis the !ai-d% v>--ire s:h : y Rs 9".GJO/- and Rs 1.20,000'- per kanai about eight months an;1 on: aad niue rn -ntaj respectively a''t;r the publication of the said Notification. !•':•. In rebatta! of the above documentary evidence led by the res­ pondent in proof of tee marker va! : Je of ths acquired land, the appellant has produced certified copies of the sale-deeds Ex. DA to DD and that of mutations of sale transactions Ex. DE to DG. Out of the above documents only Ex DC, DE, DP and DG are relevant for the purpose for which they are tendered inasmuch as only these documents witness the sale transactions of tbe lands in village iCotli Balyah wnereia the acquired land is situate. The Ex. DG embodies the sale of'Shamlat Deh' land alongwith a house built thereon made by its occupancy tenant and thus this document is not very much relevant and helpful for the purpose of determining tbe market value of the acquired land which was owned by the respondent and is, therefore, kept out of consideration while ascertaining the market value of the acquired Sand. By the sale-deed witnessed by Ex. DC, 6 marlas of land alongwith 'Kuchha' construction raised thereon was sold for Rs. 40.COO/- on 7-4-1979 the price per kanai in this case comes to Rs. i,53,QQO/-, According to the entries of the copy of mutation of the sale-deed Ex, DB, 18 marlas of land in village Kotli Balyah was sold for Rs. 11.077/- on 18-9 1978 which price when worked out comes to Rs. 12.200/- per kanai. The entries of Ex. DF go to show that one kanai of land in village Kotli Balyah had fetched for Rs. 20.000/- as its price, The average price thus worked out in the above three sale transactions comes to Rs. 55,000/- per kanai. 17. The above analysis of the various sales effected in the village in which the acquired land is situate would clearly show that even if the proper allowance is mads for the fact that in the said sale transaction! small areas of the lands were sold and that in case of sale witnessed by Ex. DC . a 'kuchha' construction on the land sold also stood raised, A; market value of the land in the said village, both according to the evidence produced by the appellant as well as the respondent before the District Judge, Kotli, was not, in any case, less than Rs 40,000;- per kanul before the publication of the Notification under Section 4 of the Act in respect of the acquired land, !8. It is in evidence that the acquired land is situate within the municipal limits of the Kotli Town and some residential houses and commercial shops stand cons'ructed near it. It also falls on the Kotli- Pallandri road. Thus it possesses the potentiality of its being applied for residential and commercial purposes which fact is required to be taken into account while ascertaining its amount of compensation payable to the D owner on account of its compuliory acquisition. The value of the land compulsorily required under the Act is to be determined not only accord­ ing to its present position but its potential value i.e. "any othtr more oeneficial purpose to which in the course of events, it might within a reasonable period be applied" is an element to be considered in arriving %t its market value. When the market value of the land in the concerned village near about the tare of the acquisition of the acquired land, in the light of the evidence led by the parties in this respect, and examined rnd discussed above, is taken into consideration alongwith the attending circumstances, potentiality of the acquired land as a residential and commercial site, one comes to inescapable conclusion that the amount of compensation determined by the District Judge for the acquired land @ Rs. 40.000/- per kanal is quite fair and reasonable and the above evaluation does not admit of any interference in app:a! by this Court. 19. Before parting with the case, it appears necessary to deal with the contention of the learned Counsel for the appellant, already referred to above, that the contents of the copies of the sale-deeds produced by the respondent in support of the proof of the market value of the Sand in question should not have been taken into consideration by the District Judge while determining the amount of compensation of the acquired land as neither the vendor nor the vsndee of any of such sa!e was examined to prove the genuineness of such sale transaction. 20, The above objection, in our view, is devoid of any force. The certify copy of the sale-deed is admissible in evidence and may be produced in proof of their contents in view of the provisions of Sections 74 and 77 of the Evidence Act. Thus no exception can be taken to the admitting of and taking into consideration the certified copies of the sale-deeds produced by respondent for the purpose of determining the market value of the acquired land and it was not necessary to examine the vendors or vendees of such deeds Even otherwise the certified copies of the sale-deeds were admitted and exhibited by the trial Court in this case without any objection from the appellant and as such the appellant cannot oe allowed to iaSa any objection to their admissibihty at the appellate stage and that too during the arguments. Not only that no objection was taken to their admissibihty by the appellant but he himself had produced the certified copies of the sale-deeds as well as that of the mutations of sale transactions in the trial Court in rebuttai of the evidence of the respon­ dent in respect of the market value of the acquired land; For the above re­ ason the above objection of the learned Counsel for the appellant ii repelled, 20. In view of the above discussion, we find no merits in this appeal which is dismissed wish no order as to costs, (SHR)

Appeal dismissed,

PLJ 1987 Karachi 1 [DB] PLJ 1987 Karachi 1 [DB] [Sakfcur Bench] Present : saeeduzzaman siddiqoi & abdul.razzak A. thabim, JJ Agha SAIFUDDIN-Petitioner versus Dr. MUHAMMAD ASHFAQ PIRACHA and Others—Respondents Coos. Pet.No. D-7 of 1985 (also No. D-190 of 1984), heard on 27-1 1986 (i) Colonization of Government Lands (Punjab) Act, 1912 (Punjab Act V of 1912}- 0S. 10—Land—Allotment of—Statement of conditions regarding — Issuance of—Collector—Powers of — Restriction on — Government issuing statement of conditions under tub-section (2) of S; 10 of Colonization of Government Lands Act—Held: Collector (subject to control of Board of Revenue) to competently allot land to any person in accordance with such statement of conditions — Restric­ tion on powers of Collector to allot land only in accordance with statement of conditions issued by Government, however, not to affect in any manner powers of Government to dispose of State land [under subsections (1) and (2)1 on such terms as it thinks fit. [P. 7JA (ii) Colonization of Government Lands (Punjab) Act, 1912 (Punjab Act V of 1912)-

S. 10 read with Constitution of Pakistan, 1973 — Art. 199 — State land—Allotment of—Challenge to—Locus standi of petitioner —Peti­ tioner neither granted land in question nor ever applying for grant of same—Provincial Government, on other hand, entitled to dispose of plot for residential ox commercial purposes — Held : Petitioner to have no locus standi in matter to challenge allotment of land in favour of respondent. [P. 8]D PLJ 1982 SC 499 ref. (iii) Colonization of Government Lands (Punjab) Act, 1912 (Punjab Act V of 1912)— ——S. 10 read with Constitution of Pakistan, 1973 — Art. 199 — State land—Allotment of—Challenge to—Statement of conditions issued under S. 10 of Colonization Act authorising Government to lease out land on concessional rates or free of charge for hospitals, dis­ pensaries, maternity homes or for religious and charitable purposes— Land in question allotted to respondent for purpose of constructing hospital—Use of such plot to any other purpose also prohibited under terms of allotment—Held : Such allotment not to be held to be in excess of powers of Provincial Government. [P. 8]C (iv) Colonization of Government Lands (Pnnjtb) Act, 1912 (Punjab Act V of 1912)—

S. 10 (2)—State land—Allotment of—Statement of conditions- Issuance of—Provincial Government—Effect on powers of—Held : Issuance of statement of terms and conditions under S. 10 (2) of Act in no manner to feter discretion of Provincial Government to allot State land to such lessees whom it considers fit on terms and condi­ tions [not necessarily in accordance with statement of conditions issued by it under sub-section (2) of S. 10 of Act. [P. 7]B Messrs Ellahi Bux Kehar

Muhammad Hanif Mangi, Advocates for Petitioners. Messrs M. A. Rashid & Muhammad Aslam Bhutto, Advocates for Respondent No. 1. Mr. Zawar Hussain Jafari, AAG for official Respondents. Dates of hearing 13-1 & 27-1-1986. judgment Saiduzzaman Siddiqui, J.—This order will govern the disposal of above noted two Constitution Petitions, namely 19U/84 and 7/1955. In both the petitions the petitioners have challenged the grant made by the Government of Sind of two separate pieces of land out of survey number 626, situated in Pathan Colony, Sukkur, admeasuring 2000 square feet and SUO^ square feet respectively to respondent No. 1 in the above petitions separately. The petitioners in the above petitions jointly contended that the area of plot No. 626 leased out to respondent No. 1 in the above petitions is an amenity plot reserved for children park and as such its disposal by the Government of Sind for residential purposes and for construction of clinic is in contravention of MuO 34, 89 and MLO 60. It is further con­tended by the learned counsel that the disposal of land in favour of res­ pondent No. 1 in the above petitions by Sind Government was in any case violative of statement of conditions for grant of State land issued on 12-5-1975 under section 10(2) of Colonization of Government Land (Punjab) Act 1912 by the Government. The learned counsel for respon­ dent No. 1 on the other hand supported the grant made in favour of their respective clients by the Provincial Government and urged that there is neither any evidence nor any justification to hold that the land granted to their clients was an amenity plot reserved for children park and further contended that Provincial Government bad absolute discretion both under the Act and the statement of conditions issued under the Act in granting leases of State land and selection of lessees and as such the grants made in favour of their respective clients are valid and binding. The learned AAG who appeared for the Provincial Government supported the contention of private respondents in the two petitions and additionally contended jointly with the private respondents that the petitioners have no locus stands to challenge the orders of Provincial Government granting land to respondent No. 1 in the above petitions. The order of grant made in favour of respondent No. 1 in petition No. 190/84 is dated 16-11-1982 while in petition No. 7/85 it is dated 23-9-1984. It is quite clear from the two orders that the land was leased out to the respondents by the Government of Sind (Land Utilisation Department) with the approval of Governor and MLA Zone 'C'. The first objections of petitions regarding disposal of the plots is that plot 626/1 is an amenity plot reserved for children park from time immemorial and as such it could not be disposed of either for residential purposes or for any other purpose by the Government. The learned counsel for the peti­ tioners frankly admitted that they have not produced any lay out plan of the area wherein the disputed plot is shown as the amenity plot reserved for children. They, however, contended that the disputed plot was once disposed in the year 1969 by the then Deputy Commissioner, Sukkur, in favour of one Moina Agba for residential purposes but on the reprjsenta-tion of Agha Fakhruddin petitioner in petition No. 190/84, it was cancelled by the then Commissioner and reserved for children park. (I will herein­ after refer the petition in petition No. 190/84 by his name for the sake of convenience)., It appears that Moina Agba wife of Agha Nasrullab Khan of Sultankot, applied to Dsputy Commissioner, Sukkur, for allotment of 7200 square feet of land out of C. S. No. 626 which was granted by him by order dated 21-10-1969. Agha Fakhruddin made a representation to Deputy Commissioner Sukkur against disposal/grant of the abovs land to said Moina Agha on 29-10-1969 and prayed for stay of further action. The petitioners have mainly relied on the aforesaid representation of Agha Fakhruddin in support of their contention that the plot in dispute is an amenity plot. I may reproduce here the above representation of Agha Fakhruddin addressed to Deputy Commissioner, Sukkur, which is as follows :— "To, The Deputy Commissioner, Sukkur. Sub : Request for granting the stay order in respect of construction over the Revenue plot adjacent to the residence of Medical Superinten­ dent, District Head Quarter Hospital, Sukkur and cancellation of the grant ot the plot to M st, Moina w/o Agha Nasrullah Khan. Sir, I undersigned Agha Fukhruddin Khan son of late K. B. Agha Nizamuddin Khan request the following few lines for 4 your kind considera­ tion and necessary action. (1) That the Revenue plot opposite to my house and adjacent to the residence of Medical Superintendent in Pathan Colony Sukkur has been granted to Mst. Moina Begum wife of Nasrullah on 21-10-1969 by Mr. Viqar Rustam Bakhshi CSP the then Deputy Commissioner Sukkur at the rate of Rs. 1.50 paisa per sq. fit. quite significant that the petitioners all along contended before us that they had agitated against the disposal of plot to Moina Agha as well as its disposal by public auction by the Deputy Commissioner on the ground that it was a children park but neither they produced the copy of memo, of appeal of Agha Fakruddin submitted to Additional Commissioner Khairpur Division against the order of Deputy Commissioner, Sukkur, nor they p'fduced the order of Deputy Commissioner Sukkur dated 7-11-1969 ana 29-12-1969 lo substantiate their contentions. The copies of two orders dated 4-12-1969 and 31-12-li>69 passed by Commissioner, Khairpur Division, on the appeal of Agha Fakhruddin do not show at all that the cancellation of allotment of Moina Agha or the recalling of the order for auction of the plot was based on the reason that the plot is reserved for amenity purpose. It appears that in the year 1970 one Ghulam Mohammad Paracha a resident of Sukkur again applied to the Deputy Commissioner Sukkur for grant of an area of 7200 square feet out of the disputed survey number. It further Appears that the grant was again opposed and the Deputy Commissioner visited the site on IG.-2-1975 in the company of S. P. Sukkur and. Administrator Peoples Municipal Com­ mittee, Sukkur, and taking into consideration the stay order granted by the then Additional Commissioner on the appeal of Agha Fakhruddin observed that the plot in dispute may be used as children park and can not be allotted for private purposes, It will be useful to produce the order of Deputy Commissioner passed on 13-3-1975 on the application of Ghulam Muhammad Piracha which is as follows :— "Read No. RB (c)-2501 Sukkur, dt. 13-3-1975. Application dated 15-5-1970 from HM Ghulam Mohammad Piracba r/o Piracha House, Station Road, -Sukkur requesting for grant of plot measuring 200 sq. ft. from U. S. No. 626/1 Ward 'C' deh Old Sukkur for construction of Charitable Zanana Hospital, Sukkur. Perused relevant papers and the orders/passed for disposal of the plot and $tay order No. S-13-3-292-LG/69/4I2 issued by the Addl. Commissioner, Khairpur on the appeal preferred by Agha Fakhruddin s/o late K. B. Nizamuddin. Order of the Deputy Commissioner Sukkur. I visited the side on 10-2-1975 in company of S. P, Sukkur and Administrator P. M. C. Sukkur. As per stay order already gran­ ted by the then Commissioner the plot may be used as a childrens' park and may not be allotted for private purpose. Sd/- Deputy Commissioner, Sukkur, A reading of the above order will show that it was passed on the basis of stay order granted by the then Additional Commissioner, Khairpur, on the appeal of Agha Fakhruddin on 4-12-1969 which came to an end on 31-12-1969 when Agha Fakhruddin withdrew his appeal before the Addi­ tional Commissioner. This fact was, however, not noticed by the Deputy Commissioner while pasting the above order. Apart from it a reading of the above order will show that it neither amounted to reservation of the plot as children park nor it could create any such effect. It was merely in the nature of a recommendation by the Deputy •Commissioner to use the same as children's park but there is nothing on record before us to show that the above recommendation of the Deputy Commissioner was accepted by the Provincial Government or any other competent authority in this behalf. It may be mentioned here that alongwith the comments in petition No. 190/84-, respondent No. 3 has produced a letter dated 29-7-1975 addressed by the then Administrator, Peoples Municipality to Commis­ sioner, Sukkur Division, in connection with the request of one Nasir Khan regarding the disputed plot in which it is stated that the disputed plot is not an amenity plot and it is not needed by Municipality for park in view of its small size and establishment of another park at Pir Illah'i Bux Tower, Sukkur. Before granting the land to the respondent No. 1 in the above petitions, the Deputy Commissioner, Sukkur, again referred the matter to the Sukkur Municipal Corporation for the purpose of obtaining their no objection with regard to the utilisation of this plot for residential purpose and construction of clinic. The Mayor, Municipal Corporation by letter dated 5-9-1981 informed the Deputy Commissioner that the Corporation had no objection to the allotment of portion of the disputed plot to the respondent No. 1 in petition No. 190/84 which is situated near Dr. Nisar's Eye hospital. Similarly, the Municipal Commissioner, Sukkur Municipal Corporation by letter dated 27-11-1983 informed the Mukhtiarkar and City Survey Officer Sukkur, that they had no objection to the grant of an area of 5000 sq. ft. out of the disputed survey number for construction of general hospital to respondent No. 1 in petition No. 7/85. It was only after no objection was given by the Sukkur Municipal Corporation in the above cases that their cases were forwarded for consideration to the Pro­ vincial Government and thereafter orders were made by the Government of Sind with the approval of Governor/MLA Zone 'C' for allotment of the land to the two respondents. It may also be mentioned here that even in 1975 when the application of Moina Agha was pending consideration the Administrator Peoples Municipal Committee, Sukkur by letter No. LG/63 dated 2-4-1975 intimated to the Private Secretary to the Minister for Housing, Town planning and Local Government Department, Government of Sind Karachi, that the plot in dispute belongs to the Revenue authorities and that Municipality has nothing to do with this plot. It was further stated in that letter that the Municipal Committee had no intention of applying for the plot under any Municipal scheme. In view of the above discussed evidence there is hardly any material before us to show that the plot in dispute was ever reserved or utilised for the purpose of children park. We accordingly repel the contention of the learned counsel for the petitioners that the disputed plots were amenity plots or that they were reserved for children's park. Havidg dealt with the first contention of the learned counsel for the petitioners we will now examine their second argu­ ment that the Provincial Government has acted in violation of statement of terms and conditions dated 12-S-1975 in disposing of the plot to the two respondents in the above petitions. It may be mentioned here that ia> the two allotment orders issued in favour of respondent No. 1 in the above petitions, reference is made to the powers of Goverement under section 10 of the Colonization of Government Lands (Punjab) Act, (912 and the state ment of conditions issued by the Government under the aforesaid section on 12-5-1975. It is contended by the respondents jointly that the land in dispute being State land the Government was competent to dispose of the same in its sole and absolute discretion to such persons as it thought fit both under section 10 of the Act as well at under the statement of conditions issued on 12-5-1975. Section 1.0 of the Colonization of Government Lands under which the Government has exercised the power in granting land to the above two respondents in the petitions reads as follows :— "10. Issue \ of Statements of Conditions of Tenancies.—(I) Board of Revenue| subject to the general approval of the'GoVernment may grant land in a colony to any person on such conditions as it thinks fit. (2) The Provincial Government may iisue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants. (3) Where such statements of conditions have been issued, the Collector may subject to the control of the Board of Revenue allot land to any person, to be held subject to such statement or statements of conditions issued under the subsection (2) of this section, as the Collector may by written order declare to be appli­ cable to the case. (4) No person shall be deemed to be a tenant or to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared appli­ cable thereto." A careful examination of the above provision of law will show that under subsection (3) of section 10 of the Act when the Government has issued statement or statements of conditions under subsection ( ) thi Collector may subject to the control of the Board of Revenue allot land to any person in accordance with such statements of conditions. This restric tion contained in section 10 (3) of Act on the powers of the Collector to allot land only in accordance with the statement of conditions issued by the Government, does not affsct in any manner the power of the Provincial Government to dispose of State land under subsections (1) and (2) of section 10 of the Act on such terms and conditions as it thinks fit. We are, therefore, unable to accept the contention of the learned counsel for the petitioners that the Government having issued statement of conditions for grant of State land by notification dated 12-5-1975, could not allot land to respondents contrary to these terms and conditions. The issuance of statement of terms and conditions by the Government under section 10 (2) of the Act did not in any manner feterjhe discretion of the Provincial Government to allot the State land to such lessees whom it con­ siders fit on the terms and conditions which may not be in accordance with the statement of conditions issued by it under subsection (2) ibid. This n also clear from paragraph 3 of the terms and. conditions issued by the Government under section 10 (2) of the Colonization of Government Lands Act on 12-5-1975 which reserves the right to the Govern meat and gives absolute discretion for granting of leases and selection of lessees. (q addition to it the learned counsel for the respondent in petition No. 7/1985 also invited our attention to paragraph 18 of the terms and conditions issued by the Government on 12-5-1975 which authorized the Government to lease out land to the Federal Government, autonomous bodies and semiautonomous bodies as well as to lease out the land on concessional rates Tree of charge for hospitals, dispensaries, maternity homes, educational institutions, mosques, graveyards or for other religious and charitable pur­ poses. The allotment made in petition No. 7/85 by the Provincial Govern­ ment clearly shows that it was allotted to respondent No. 1 for the purpose of constructing a hospital and the use of this plot to any other purpose was prohibited under the terms of allotment. In these circumstances we do not Snd any substance in the objection of the learned counsel for the petitioner that the allotment of land to tbe two respondents in the above petitions by the Government was in excess of the power of the Provincial Government. In addition to the above the learned counsel for the respondent has also raised a preliminary objection as to the maintainability of these petitions which is also not without force. It is jointly contended by the learned counsel for the respondent No. 1 in both the petitions that tbe petitioners in these two petitions has no locus standi to challenge the transfer in favour of respondent No. 1 as they had neither any personal interest in the pro­ perty nor they were applicants for allotment of this land. It is urged by the learned counsel jointly that the right asserted by the petitioners in the above petitions is in the nature of a right which they enjoyed in common with all the other citizens of Sukkur, and, therefore, they are acting Pro Bono Publico. We have already reached the conclusion that there is no evidence before us to hold that the plot in dispute was an amenity plot reserved for children park. This being so the Provincial Government was entitled to dispose of this plot either for residential purpose or commercial ourpose. It is an admitted position that the two petitioners were neither granted the plot nor they were applicants for allotment of these plots. In these circumssances we agree with the learned counsel for the respondents that the petitioners had no locus standi in the matter to challenge the allot­ment of the land in favour of respondent No. 1. If any authority is needed in support of our above conclusion reference may be made to the case of Anjuman Arain Bhera v. Abdul Rashid and others (PLJ 1982 Supreme Court 499). In the above cited case the petitioners though were found to be in possession yet held to be acting in the capacity of Pro Bono Publico for the reason that they had no personal right in the property. It will be advantageous to refer here to the following observations of the Hon'ble Supreme Court which appears at pages 503-504 of the report of the above case. It reads as follows :— "We find force in the contention of Mr. Brohi. We observe that the orly contention of the appellant to show its interest in the land in dispute is that it was in its possession. But this possession was illegal, unauthorized and had no legal sanction. Faced with this situation, the only argument, which the appellant's counsel could press, was that in transferring the area to Abdur Rashid (respon­ dent No. 1), the law had not been followed. But this grievance was shared by the appellant alongwith numerous others and, therefore, his capacity, while agitating against the orders of transfer, was of a person raising a question pro bono publico. However, this Court has now held in several decision that a party Acting pro bono publico had no locus standi to call in question the transfer of property in favour of third party unless he has a persona! interest in the matter. We may add that a person can be deemed to be "aggrieved" if he has some interest in the corpus of the parly, to which the law attaches some sanctity. It is only if the appellant can demonstrate some interest in the property, to which some legal sanctity was attached, can he be considered as an aggrieved party. However, the interest of a trespasser is not such an interest which has the blessings of any law. Hence he can not maintain a writ petition. This view has consistently been expressed by thi$ Court. In Abdul Ghafoor v. Settlement Commis­ sioner Rawalpindi etc. (1968 SCMR 1286) it was observed that "a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor competent to move the High Court in exercise of its constitu­ tional jurisdiction." Again in Managing Committee, Muhajrin v. Mst Zainab Bibi and others (1974 SCMR 230) it was observed that "the doctrine of "Istehsan" has never been applied in favour of persons in unauthorized possession of property". In Mirza Sardar Muhammad and others v. Pakistan and others (Law Notes 1970 Lahore 736), wherein the petitioners therein had constructed a shop over the property and the notice af ejectment served by the Municipal Committee was challenged through a writ petition, it was observed that the petitioners had no right or title to remain on the property and, therefore, could not be allowed to perpetuate their unlawful possession. Thus a trespasser has never been held to be a person, who is entitled to successfully invoke the writ jurisdiction of the High Court, as he lacks the locus standi to do so." There now only remains to be dealt with one more argument of learned counsel for the petitioners that the disposal of this land by the Provincial Government also offstjded against the provisions of MLO 34, 60 and 89. We have already reached the conclusion that there is no evidence to sup? port the contention of the petitioners that the plots in question were ameni­ty plots or reserved for such purpose therefore, the provisions of MLO 34, 60 or 89 were not attracted in the present cases. In view of the above discussion we find no substance in these petitions which are accordingly dismissed but in the circumstances of the case we will make no order as to costs. (TQM)" Petitions dismissed.

PLJ 1987 Karachi 9 [DB] PLJ 1987 Karachi 9 [DB] [Sokknr Bench] Present: ahmed ally U. qureshi & syed abdur rehman, JJ LAHORIMAL— Petitioner . versus SAIN BUKHSH etc.— Respondents Const. Petition No. D-J05 of 1985, allowed on 1-9-1986 (I) Cirli Procedure Code, 1908 (V of 1908)— —S. 12 (2) read with Limitation Act, 1908 (IX of 1908)—Decree— Validity of— Challenge to on plea of fraud— Limitation for— Period of limitation for making application under S. 12 (2) of Civil Procedure Code (for setting aside ex pane decree in case) not prescribed in such section or any other section of Civil Procedure Code (Amendment) Ordinance, 1980 (X of i980) or in any other law— Held : Art. 164 of Limitation Act (relating to application by defendant for setting aside ex-pane decree passed to apply. [P. .]B (ii) Civil Procedure Code, 1908 (V of 1908)— -- S. 12 <2) read with Limitation Act, 1908 (IX of 1908)— Art. 164— Ex pane decree — Validity of — Challenge to on plea of fraud — Limi­ tation for— Held : Application made by defendant for order to set aside decree (passed ex-parte) under S. 12 (2) of CPC to be governed by Art. 164 of Limitation Act— Held further : Period of ,-0 days (prescribed under Art. 164 of Limitation Act) to run from date of decree or from date of knowledge of decree in case of summons having not been served. [P. 121C (iii) Limitation Act, 1908 (IX of 1908)— -- Art. 164— Ex-parte decree — Setting aside of — Limitation for — Applicant claiming to have obtained knowledge of filing of suit as well as ex parte decree for first time on service of notice of execution application— Held : Application for setting aside ex-parte decree (filed within fifteen days of issuance of notice) not to be considered as time-barred. [P. Mr. Nizamuddin Baluch, Advocate for Applicant. Mr. Khawand Bux Mahar, Advocate (absent) for Respondent No. 1. Date of hearing : 1-9-1986. judgment Syed Abdur Rahman, J.— This constitution petition arises under the following circumstances : — Respondent Sain Bukhsh had filed suit No. 9 of 1984 against the petitioner in the court of Civil Judge, Thari Mirwah on 28-1.1984 for recovery of gold ornaments worth Rs 8,oOO/- alleged to have been entrusted by him to the petitioner in March 1983. Summons were issued against the petitioner ipd were shown by the bailiff falsely to have been served upon him and a bogus thumb impression was affixed. Consequently the learned Civil Judge held tnc service good and then ordered on 23-2-1984 that the suit should proceed ex pane. He then passed an ex pane decree against the petitioner on 31-3-194. The respondent thereafter filed an application for execution of decree against the petitioner. On receiving the notice of this execution application the petitioner came to -ktnrwTbrth'e first time that such a suit had been filed against him and that it was decreed ex parte. Consequently he made an application under $. 12 (2) of CPC for setting aside the said decree. The learned Civil Judge after hearing both the parities set aside the decree and allowed the petitioner to file written statement. The respondent being aggrieved of that order preferred civil revision before the District Judge, Khairpur, who after hearing the parties came to the conclusion that the application for setting aside the decree was time barred and therefore set aside the order of the Civil Judge. Since no appeal or revision can lie against the impugned order which was passed by the District Judge in exercise of revisional jurisdiction, the petitioner had no other alternative but to file this constitution petition. We have heard Mr. Nizamuddin Baloch advocate for the petitioner at some length. Respondent Sain Bukhsh and his advocate Mr. Khawand Bux Mabar have chosen to remain absent. Admittedly the suit had proceeded exparte and neither the defendant nor his counsel or any other authorised agent appeared in the trial court on any date of hearts- All that has been alleged is that the summons sent to the petitioner were shown as served by the bailiff who claimed to bive obtained his thumb impression thereon in token of his having accepted the summons. Tae petitioner's counsel who had filed the application for setting aside the ex parte decree under S. 12 (2) of ,CPC had filed an affidavit of the petitioner alongwith that application wherein be clearly averred in para 3 that no service has ever been effected upon him in the above suit and if any signature or thumb impression appears on the summons that is manipulated, fraudulent and bogus. No counter affidavit was filed by the respondent nor any evidence has been produced to show that the thumb impression or signature on the summons was that of the petitioner. Even the bailiff was not exmined as a witness by the respondent. The learned Civil Judge after referring to the contention of the petitioner, observed that the defendant had no knowledge of the suit, and even the summons of the suit were not served upon the defendant. In view of what has been stated above, it is quite clear that it was proved to the satisfaction of the learned Civil Judge that the petitioner had no knowledge of the suit or of passing of ex parte decree. This finding of fact was neither disbelieved by the District Judge nor could it be disturbed in revisional jurisdiction. In this view of the matter, the finding of the learned District Judge that the application for setting aside the ex parte decree was time barred cannot be upheld. According to .Article 164 of Limitation Act an applica­ tion for an order to set aside a decree passed ex parte has to be filed within 30 days of the date of decree or were the summons were not duly served, when the applicant has knowledge o,f the decree. It would therefore appear that the application of the petitioner to set aside the ex parte decree was within time as he claims to have obtained the knowledge of the filing of the suit as well las the ex parte decree for the first time on the service of notice of execution application. Hence his application cannot be con­ sidered as time-barred. The finding of the learned District Judge that the period of limitation was 90 days from the date of decree and that the peti­ tioner had not filed application for setting aside the ex parte decree within that period of 90 days is on the face of it illsgal and cannot be sustained. Sub-section (2) was added in Section 12 CPC by Section 2 of Ordinance X of 1980. It reads as under : "(2) where a person challenges the validity of judgment, decree or order on the plea of fraud, mil-representation or want of jurisdiction, he shall seek bis remedy by making an application to the court which passed the final judgment, decree or order and not by a seperate suit." No-where in this section or any other section of Ordinance X of 1980, or in any other law period of 90 days from the date of ex pane decree has been prescribed as the period of limitation for making an application under S, 12 (2) of CPC, hence we will have to fall back upon Article 164 of Limitation Act which relates to application by the defendant for an order to set aside a decree passed ex pane. We also could not find any orther provision in the Limitation Act except Article 181, which is a residuary-article, which can only apply to an application if no other article applies. This article on the contrary prescribes a period of 3 years from the date when the right to apply accures, as period of Limitation. It will be observed that Article 164 of Limitation Act makes no reference to the Civil Procedure Code or to any other Act, and the wording of Article appears to make it unnecessary, for the purpose of bringing its provisions into operation to determine whether an application by a defendant for an order to set aside an ex pane decree is made in virtue of 0.9 r. 13 CPC or apart from it. Similar view was taken by G. B. Canstantine J. (as he then was) in PLD P962 (WP) Karachi 8 United Grain & Fodder Agencies case. Hence this application, which was made by the defendant for an order to set-aside the decree passed ex pane under S. 12 (1) of CPC will be governed by Article 164 of the Limitation Act and its period of limitation will be 30 days, which will run from the date of the decree or where the summons has not been served, as is in this case, it will run from the date when the applicant has knowledge of the decree. The true copy of execution application produced by the petitioner, shows that the notice of this application was ordered to be issued on 7-8-1984. It must have been served on a day subsequent to that date. The true copy of the application to set aside 'exparte decree produced by the petitioner, shows that it was presented on 23-8-1984 i.e. within 15 days of the issuance of the said notice. Hence we have no doubt in our mind that the application was within the period of limitation prescribed by the law i e. Art. 164 of Limitation Act. These are the reasons for our short order dated 1-9-1986 by which we allowed the constitution petition filed by the petitioner and set-aside the impugned order and directed that the learned Civil Judge shall proceed with the suit and dispose it of according to law. (TQM) Petition allowed.

PLJ 1987 Karachi 13 [DBJ PLJ 1987 Karachi 13 [DBJ [Sukkur Bench] Present: ahmed ally U. qureshi & syeu abdur rehman, JJ ZONAL CHIEF, MUUSL1M COMMERCIAL BANK LIMITED—Petitioner" versus UBEDULLAH and Others—Respondents Const. Petition No. D-2/86, dismissed on 2-9-1986 C'i) Constitution of Pakistan 1973— ——Art. 199—Writ jurisdiction—Exercise of—Held : Writ jurisdiction of High Court being equitable jurisdiction, same to be invokid only . in aid of justice and not to perpetuate injustice. [P. 16]j8 PLJ 1974 SC 215 ref. (ii) Constitution of Pakistan, 1973—

Art. 199—Writ jurisdiction—Exercise of—Impugned order found to be in accord with equities of case—Held: Such order even if some­ what doubtful, High Court not to be bound to quash it. [P. l6jA PLD 1965 SC 404 rel. (Hi) Constitution of Pakistan, 1973—

Art. 199 read with Industrial Relations Ordinance, 1969 (XXIII of 1969)—Ss. 25 A & 37—-Labour Appellate Tribunal—Order of — Challenge to—Writ jurisdiction—Interference in— Respondent un­ fairly deprived of bis service simply because of his having not invested loan obtained from petitioner Bank strictly according to rules -Such Dismissal subsequently found to be illegal by Labour Appellate Tribunal — Order of Tribunal assailed by employer in constitutional petition before High Court — Held : Injustice being perpetuated by grant of relief to petitioner, case not to be fit for issuance of writ. [Pp. 16 & l7]Z> & E (iv) Writ Jurwdictidn— —Exercise of—H«(Id : High Court's writ jurisdiction to be invoked in aid of justice and not to help retention of ill-gotten gains. (P. 16JC Mr. Shabir Ahmed Awan, Advocate for Petitioner. Mr. Abdul Hamid Khan, Advocate for Respondent No. 1. Date of hearing : 2-9-1986. judgment Syed Abdnr Redman, J.—This Constitution Petition is directed against the order of Sind Labour Appellate Tribunal dated 21-8-1986, whereby the order of the Chairman Labour Court was set-aside and the dismissal of the respondent by the petitioner Bank was declared illegal. 2. The facts giving (rise to this Petition are that the appellant was appointed as a messenger in Muslim Commercial Bank Limited on 10-2-1976, He was charge-sheeted on 13-9-1981. The allegations were that the appellant had obtained a house building loan but had not utilized it for purchasing the plot or raising construction thereon and had not executed mortgage deed in favour of the bank. He had thus fraudulently obtained an amount of Rs. 31.000/- from the bank by misrepresentation. The appellant in hi; reply to the charge-sheet admitted that a house building loan was sanctioned to him .to the extent of Rs. 40,000.00. On 8-2-1981. He entered into an agreement with one Mst. Hidayat A froze for purchase of a plot for Rs. 8.000/- and paid Rs. 2.000/- to her from bis own pocket, and obtained the possession of the plot. The balance of Rs. 6.000/- was paid by the Bank to the said vendor directly out of an amount of Rs. 20,000 dO which was released to the appellant by the Bank without request from him. The balance of Rs. 12.000/- was also not paid to the respondent but was credited into his account in the said Bank. Mst. Afroze being a relative picked up a domestic quarrel with the appellant and refused to execute the sale-deed in favonr of the appellant. Hence, a civil suit was filed by him, which has now been compromised and the vendor has executed registered sale-deed in his favour. He admits that outstanding amount of Rs. 30.000/- is to be paid by him but he denies the allegations of mis-repreientation and fraud made against him. He further states that earlier a petition was filed by htm in Labour Court complaining against the non-payment of wages of over-time. .The petition had annoyed the highups of the bank. Hence they became vindictive and launched this inquiry against him without any justification, and dismissed him. Conse­quently, he filed an application before the Labour Court. 3. The reply of the bank was that ths appellant had not raised any protest before the Enquiry Officer and had left tbe enquiry without leading any evidence. Material evidence had b:en brought by the Bank on record and thus the enquiry was rightly decided against the respondent who was dismissed from the services on the above charge. The bank has also raised a legal plea that the Labour Courts had no jurisdiction in this matter as Wage Commission Award regulates the terms and conditions of the service of the employees of the petitioner Bank. 4. The Labour Court framed three Issues which were as under :— (i) Whether the provisions of Standing Orders Ordinance are not applicable in case of the applicant ? (it) Whether the notice of the alleged misconduct has been given by ' the respondent to the applicant within time as required by law ? (Hi) Whether the applicant has been illegally dismissed from service ? 5. The Labour Court came to conclusion that it had jurisdiction to hear the application. On the second point it held that the charge-sheet was within time. On third issue it came to the conclusion that the applicant was not illegally dismissed from service. Consequently the Labour Court dismissed his application. 6. Appeal was filed against this order of Labour Court before Sind Labour Appellate Tribunal. The same was heard and decided by Mr. Justice (Retd ) Ali Nawaz Budhani. The appellate Tribunal agreed with the finding of the Labour Court with regards to its jurisdiction. It how­ ever did not agree with the findings on the next two issues, and came to tbe conclusion that the charge-sheet was time-barred and that the enquiry was not just«nd fair and that the dismissal of the Respondent was illegal. 7. It is against this order of the learned Appellate Tribunal that the petitioner Bank has come to this court in its constitutional jurisdiction. The main contention of the petitioner bank is that it is run by and under the authority of the Federal Government and has its own statutory rules of services and that the Standing Orders Ordinance is not applicable to such a nationalized bank. It was further contended that employees of a nationa-v lized bank can not approach the Labour Court which bad do jurisdiction in respect^f their grievances. Reference in this connection was made to Section 1 of Standing Orders Ordinance as well as to the Banks Nationali­ zation Ordinance 1974. Reference was also made to para. 258 of Wages Commission Award which framed disciplinary rules and it was contended on the authority of these rules that charge was not time-barred. 8. These arguments were also submitted before the Labour Court as well as the Appellate Taibunal. The learned Appellate Tribunal while rejecting this contention stated as under : — "In respect of the first issue that Standing Order Ordinance is not applicable by virtue of its Section 1, sub-section (4). The Sec­ tion 1, sub-section (4) provides that where there are statutory rule ifa conducting an enquiry or taking disciplinary action, the Stand ing Ord<rrs Ordinance would not apply. The pojnt is that the Wages Commission award is only as Award and the Rules framed / under such an Award are not statutory rules. In this respect, an authority exist, namely, 1980 PLC at page 868. The relevant arguments as advanced by Mr. Justice (Rtd.) Z. A. Channa in this Judgment are as follows:— "No doubt, section 38C provides that the decision of the Wage Commission is to be binding on all employees con­ cerned with the decision in relation to their workers and , every such worker is to be entitled to be paid the Wages and governed by the terms and conditions determined by the Wages Commission but there is no provision to the effect that the protection afforded to workers under any law will be eroded or eliminated by reasons of Industrial Relations Ordinance is a benefical price of legislation made in the interest of workers and unless a speci6c provision is made curtailing the right or the remedy available to a worker under the said Ordinance, it would not be correct, in my' opinion to construe the provisions in the Ordinance plating to the Wage Commission as doing away with the rights of and the reliefs available to the workers under other laws under provisions of 1RO even ifV'it were assumed for arguments sake that of a worker to approach the Labour Court under Section 25A, IRO for enforcement of a right guaranteed to him under the award of the Commission itself cannot be denied." Reference may be had to fhe authorities reported in PLC 1983 at page 468 and CLC 1982 at page 683. Thfse authorities categ­ orically establish that the Wage Commission awards and the Rules framed under such Awards are not statutory rules. There­ fore, this issue is rightly answered by the learned. Labour Court, The Standing Orders Ordinance of (968 does apply in this cmc," We do not propose to comment on the legal proposition stated in its judgment by the Appellate Tribunal and therefore we have deliberately desisted from expressing our view one way or other in this behalf. We are of the considered view that for the decision of this case it is not necessary for us to go into this legal aspect. We would only like to point out that writ jurisdiction of this court is an equitable jurisdiction. An impugned order even if it is legally somewhat doubtful, then also the High Court Is not bound to quash it, if it is in accord with the equities of the case. In Muhammad Iqbal'v. Chief Settlement Commissioner reported in PLD 1965 SC 404 it was held as under :— "The reasons given by the learned Member, Board of Revenue, in support of his order in revision, appear to fall fully within this extract from tbe Standing Order. If the arguments raised that the appellants' personal .status, should have been distingui­ shed from that of their father who was acting as their next friend during their minority, be given effect to, it would virtually mean that the Pir Sahib, their father, could get lands in the names of ' his minor sons, whereas he would not have been entitled to do so, in competition with a hari such as the respondent was, in view of his own affluent condition. The impugned order, therefore appears to us to be in accord with the equities of the case and no ground has been made out which would justify interference, by this Court." 9. It must be remembered that the writ jurisdiction of the High Jourt is an equitable jurisdiction. It can be invoked only in aid of justice B jand not to perpetuate injustice. Reference in this connection may be jmade to the case of Walt Muhammad v. Sakhi Muhammad reported in « PLJ 1974 SC 215 where it was held that the grant of relief in writs was entirely discretionary, the High Court would have certainly acted in aid of justice in refusing any relief to the respondents on the facts of the case even if because of any technical reason, the order of the tribunal below was not strictly proved justifiable. It is well settled principle that the High Court's writ jurisdiction can be invoked in aid of justice and not to help j retention of ill-gotten gains. 10. In this connection it may be pointed out that the respondent is a poor messanger in the employment of the petitioner Bank. It would be most un-fair to deprive him of his service simply because he obtained a loan from his master and could not invest it strictly according to the rules. lln this connection it will be useful to reproduce relevant remarks made by tbe Appellate Tribunal which are as follows :— "That the misconduct is with regard to the advance bf house building loan. The house building loan was granted by the bank and further action was taken by the Bank in respect of delivery of amounts. Now, it is to be seen that whether fraud of the appellants involved in seeking for the loan or house building. Tbe appellant states that plot was purchased from one Mst Afroze his relative under an agreement. Due to the domestic dispute Mst. Afroze did not give possession of the plot to the appellant although Rs. 8,000 were given to Mst. Afroze. When Mst. Afrow did not deliver'the possession of the plot he went into civil litigation aad the evidence of civil litigation is produced in the record of the present case. This evidence is sufficient as regards the bonafide of the appellant and they need not be. comptialized as misrepresentation or dishonesty on the part of the appellant. The appellant admits that the loan of Rs. 31,000 was advanced to him and the recovery of this amount could be done by the bank in the normal course of its procedure either by attaching property or filing a case in a Civil court or deducting certain amount from his pay. This was the normal way the bank should have or ought to have taken. There could not be a disciplinary action against its employee in respect of the loan advanced to him. As regards the certain applications given by the Appel­lant which are calculated to be fraud by the Enquiry Officer are answered by him in the explanation that he gave to the charge-sheet. It is stated by the appellant in his explanation that he is semi-literate and certain appli­ cations have been written that the work of construction is going on and on this plea certain amount was taken by him from the Bank. But, he said that he did not know as to what was written in that application. This at most could be a misstatement as a result of his being semi-illiterate. Actually para 11 of his explanation takes the lid-off and it appears that his previous grievance petition for over-time wages was the cause or the motive for the domestice enquiry and his subsequent dismissal. The Circle Officer at Hyderabad has considered his previous grievance petition which was pending before the Labour Court and due to this and due to the grudge the domestic enquiry was initiated against the appellant. The domestic enquiry being badly time-barred resulted in his dismissal I have considered the pros and cons of this enquiry and heve come to the conclusion that the enquiry was badly time barred and it reflects the previous annoyance of the Circle Officer. Getting a loan from the bank is not an offence and the amount is admitted by the appellant which could be recovered by other legal methds which are available to the bank. But this enquiry of fraud initiated against the appellant is not just and is singularly unfair." 11. We are therefore of the view that by granting any relief to the petitioner this court would not be acting in aid of justice, but would on _, the contrary be perpetuating an injustice. Hence this is not a fit case for 1 •fffmmme. of a writ. These are the reasons for which we had dismissed th: Wril Pttftkm by short order dated 2-9-1986. (TQM) Petition dismissed.

PLJJ1987 Karachi 17 PLJJ1987 Karachi 17 [Sukkur Bench] Present : ahmed ally U. qurbshi & syed abdur rehman, JJ AMAR LAL—Petitioner versus BOARD OF INTERMEDIATE & SECONDARY EDUCATION, Sukkur and Others—Respondents Const. Petition No. D-141, of 1985 dismissed on 11 3-1986 (i) Constitution of Pakistan, 1973— ——Art. 199—Administrative body—Findings of fact by—Writ juris­ diction—Interference with ia—Held : Administrative body generally to be sole judge of facts on which decision be taken by it within its competence—High Court while exercising powers pf judicial review over such administrative body to exceptionally interfere with its findings of fact. [P. 22]E Ui) Constitution of Pakistan, 1973—.

Art. 199—Educational institution—Writ against—Unfair means used by petitioner by getting replies of questions written in answer book from outside Examination Hail—Board subsequently debar­ ring petitioner from appearing in examination for three years- Such order challenged by petitioner in High Court even without exhausting all remedies available to him before filding writ petition —Malice or enmity with any one of officers connected with decision of-Board or with invigilators of centre not shown—Full opportunity to show-cause against report also given to petitioner—Held : No case whatsoever having been made out, petitioner not to be entitled to any relief from High Court. [Pp. 21 & 22]B & F (Hi) Educational Institution—

Audi alterant portent— Principle of—Applicability—Unfair means used by petitioner by getting replies of question writteq on answer book from outside Examination Hall—Petitioner given full opportu­ nity to show-cause against •report before impugned order debarring him from appearing in examination for three yean passed by Board —Held : Petitioner not to be said to have been condemned unheard. [P. ]A (Iv) Writ Jurisdiction— ——Facts—Dispute questions of—Finding regarding—Held : High Court generally not to eater into disputed question of facts in exercise of its writ jurisdiction. [P. 22]C (?) Writ Jurisdiction—

Writ petition—Competency of—Held : Party applying for. Writ to (be required to) show clear legal right admitting of no reasonable doubt or controversy. [P. 22] D PLD 1961 Lab. 304 ; PLD 1967 Lah. 329 & PLD 1968 SC 18 ttf. Mr. Muhammad Hanif Mangi, Advocate for Petitioner. Mr. Qadir Bux Memon, Advocate for Respondent. Date of hearing : 24-2-1986. judgment Syed Abdur Rahman, J.—Petitioner Amar Lai has by this constitution petition challenged the orders passed by the Board of Intermediate & Secondary Education Sukkur debarring him from appearing in the examina­tion for three years, then reducing the punishment to two years and again enhancing it to three years on the allegation of using unfair means at'the SSC Annual Examination Part-II. 2 Briefly stated the petitioner's case is that he had appeared in the Annual Examination of 10th Class in the year 1965 at Government High School, Jacobabad Centre from the Board of Intermediate & Secondary Education, Sukkur His seat number was 30220. He appeared & success­ fully completed ail the papers of examination of 10th class without any adverse report of copying or using unfair-means and without any. other complaint whatsoever from the Superintendent or any other officer responsible for the conduct of the examination. He was not even expelled by these officers at any time during the examination. After the completion, of the examination the petitioner received a notice dated 16-5-1985 from the Controller of Examinations of the said Board alleging that it was reported by the Superintendent of that Centre that he had been caught while using unfair means in the Examination Hall in respect of English paper, thereafter he received another notice dated 17-5-1985 making Similar allegation in respect of Chemistry paper. He was called upon to appear before the Disciplinary Action Sub-Committee on 8-6-1983 and 9-6-1985 respectively. The petitioner gave written reply to the said notices when he appeared before the Disciplinary Action Sub-Committee. The Disciplinary Action Sub-Committee %fter hearing the petitioner announced that he was innocent and absolved him of all the charges. Inspite of that on 3-8-1985 a Gazette Notification was published declaring that the petitioner was debarred for a period of three years for using unfair means at the examination. He preferred a mercy petition against the said order on 20-8-1985. It was decided without affording any personal hearing to the petitioner. However in that decision the punishment of three years was reduced to two years. Again on 3-10-1985 the respondents issued a fresh notification enhancing the punishment to three years. Hence the petition. 3. The petition has been contested by the .respondents who have filed parawise comments to the same. It was admitted that the petitioner bad appeared at the Annual Examination of 10th Class in the year 1985 but it was denied that he bad successfully completed all the papers or that there was no complaint of using unfair means at the Examination Hall. It is alleged that Superintendent External/Internal reported that the petitioner has used unfair means at the Examination Hall. The allegation of petitioner that he was afforded no opportunity of hearing was denied and it was aDeged that he was given full opportunity of being heard. It has been riaimrrf that the petitioner had smuggled the answer book outside the Examination Hall from where it was seized -after 1-J hours. Regarding the punishment it is conceded that it was reduced on appeal to two years and that it was not enhanced thereafter. It is admitted that petitioner was not expelled from the hail. The expulsion, it is contended, was not obligatory. 4. We have beard Mr. Muhammad Hanif Mangi advocate for the petitioner and Mr. Qadir Bus Memon advocate for the respondents. 5. The main contention of Mr. Muhammad Hanif Mangi advocate is that he is a victim of enmity and he was punished inspite of the fact that there was no report of using unfair means against him. Besides he was not afforded any opportunity of being heard by the respondents In this connection, > it may be pointed out that the respondents. In this connection, it may be pointed out that the respondents have denied in their praawise comments, the above allegations. They have alleged that there were two reports against the petitioner and he was heard in person and was given full opportunity to meet the alienations levelled against him. The learned counsel for the respondents has produced the photostat copy of the report of Mr, Hakim All Lobar J.S.T,, Government High School, Jacobabad made to the Seperintendents, Internal at the Examination Centre. He has also produced a copy of report made by both the External as well as Internal Superintendents to the Controller of Examination on the basis of statement of Mr. Hakim AH. It may be pointed out that the Committee before whom the petitioner appeared had asked questions from the "petitioner and had also taken down his statement in writing and had obtained his signatures on the same. It would therefore appear that the denial of the Board is also substantiated by strong documentary evidence. Hence the allegation of the petitioner that he was not reported against or was not given an opportunity of being beard is incorrect, un-founded and has b:en proved to be false. 6. Mr. Muhammad Hanif Mangi advocate has cited the case of Miss Toyyaba v. The Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, Sind and 2 others reported in PLD 1976 Karachi 481 where allegation of adopting unfair means by substituting answer books was made against the petitioner. Full opportunity was not afforded to accused candidates to defend themselves Conclusion reached by Disciplinary Action Sub-Committee, resulting in infliction of punishment were found to be erroneous, resting on suspi­ cion and without any legal proof. It was held that punishment was inflicted without lawful authority and that the maxim audi alterant partem was violated. This ruling would not apply to the facts of this case because in the case under the ruling, first statement containing certain accusation was served upon the accused candidates which was substitu­ ted by another accusation which contained marked variation from the earlier. The conclusion, of the Committee was based on the fact that there was a strong similarity in the answer books of both of them, who were brother and sister inter se which led to the conculusion that both of them had re-written it in the answer books and managed to substitute them with the help of Superintendent whereas in the present case it is not so. The petitioner was actually caught in the examination room and it was noted that his answer book was not in his possession. On search the answer book was found in the verandah outside the room after 1-v hours. This was a clear cut case of using unfair means by getting the replies of the questions written on the answer book from out side the Examination Hall. 7. Mr. Muhammad Hanif Mangi has then cited the case of A 'adeem Tahir Bhatti v. Board of Intermediate and Secondary Education, Lahore through its Chairman and 2 others reported ip PLJ 1984 Lahore 127,where there was no allegation available against the petitioner and no posi vie finding recorded by Disciplinary Committee or Committee of Appetals as to whether, offence committed was international or inadvertent. Penalty imposed, was held not sustainable being violative of principles of natural justice. It was further held that the candidate cannot be condem­ ned unheard for intentionally committing an offence for which he was never charged, Penalty can only be imposed in accordance with prescribed procedure on fulfilment of condition precedent laid down in Rules by following norms of natural justice. This case is also distinguishable with the present case. In this case the candidate was found having in bis possession objectionable material while taking examination of Physics. Rule 6.6 of Board of Intermediate & Secondary Education, Lahore Rules provides two different penalties one for the offence if it was committed inadvertently & the other if it was committed intentionally . It was therefore held that notice should have clearly men­ tioned that the offence was committed by him intentionally before im posing a penalty prescribed for an intentional offence. Moreover the case was decided on this legal point and was not remanded to the Committee for reconsideration because the period of punishment was already over. Hence this ruling cannot be of any use to the petitioner. 8. Mr. Muhammad Hanif Mangi advocate has cited the case of Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another reported in PLD 1971 SC 838, where it was held that tribunals like University or Secondary Board of Education albeit free (in domestic inquiry) from fetters and formalities of judicial trial, nevertheless, not entitled to deprive individual of his valuable rights and privileges on mere conjectural grounds. Conjectures and suspicions cannot take place of proof. This ruling is also not applicable to the facts of the resent case. The facts of this ruling are that the student (Samar Pervaiz) actually obtained 533 marks and was'placed in Second Division but in the Gazette he was shown to have secured 543 marks and placed in First Division. The Board presumed that inflation of marks must have been at instance of candidate himself, disqualified him from appearing at 7 examinations. It was held that the Board's decision was illegal. To say the least this ruling also does not apply to the facts of the present case. In the present case there is no such conjectures or suspicions. I have already pointed out that the petitioner was caught while he had parted with the answer book and had smuggled it out of the examination hall. The same answer book was seized after 14- hours from outside the room duly filled in. 9. Finally Mr. Muhammad Hanif Mangi has cited the case of the University of Dacca through its Vice Chancellor and the Registrar, University of Dacca v.Zakir Ahmad, where it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting" the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whefeby the power is vested to take such proceedings. 10. This ruling also does not apply to the facts of the present case. There can be no denying to the Maxim : audi alteram partem but the case before us is not covered by the above maxim : audi alteram partem at ail. In the case under ruling the respondent was expelled from the University for the alleged acts of indiscipline, misconduct aad rowdyism. The finding against the respondent was based on the written reports of the teachers after a fight had taken place during the con­ vocation. No opportunity was given to the respondent to show cause against the said reports. This is not the case with the petitioner in the present writ petition. He was given full opportunity to show cause against the report and therefore it cannot be said that he was condemned with out A being heard. 11. The petitioner has not been able to show any malice or enmityl with any one of the officers connected with the above decisions or with invigilators of the centre. He has also not exhausted all the remedies which were available to . him before filing this writ petition, 12. It is well settled that in a writ .petition the court will not generally enter into disputed questions of facts. Some courts have gone so far as to say that where facts are disputed the Court should not exercise this extraordinary jurisdittion. It is incumbent upon a party applying for a writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy. 13. Reference is in this connection may be to the case "of Haji Feroze Din Raja & others v. Member Board of Rsvenue and others ]PLD 1961 Lahore 304 (DB)| & Haji and others v. Member Board of Revenue & another PLD 1967 Lahore 329. This view has also behn approved by the case reported in Tanvir Ahmad Siddiqi v. Province of East Pakistan Supreme Court in PLD 1968 Supreme Court 185 where it is held that disputed questions of facts requiring investigatinn are not a suitable subject for investigation under the writ jurisdiction. This court has also held in Pir Bux v. Member Board of Revenue W.P. and 2 others [PLD 1962 Karachi 721 (DB)] that the High Court was not in writ jurisdiction to sit as a court of appeal on the findings of fact. 14. Hence we are of the clear view that generally an administrative body is a sole judge of these facts on which it taken a decision within E |its competence. This court while exercising the powers of judicial review 'in 15. We are, therefore, satisfied that the petitioner hai no case what- FJsoever and therefore be is not entitled to any relief from this court. We, therefore, dismiss the writ'petition. (TQM) Petition dismissed.

PLJ 1987 Karachi 22 PLJ 1987 Karachi 22 [Sukkur Bench] Present ; ahmedi ally U. qurhshi, J NAZIMUDDIN—Petitioner Versus GOVERNMENT OF SIND and Others- Respondents Civil Revision No. 174 of 1984, dismissed on 23-4-1986 (i) CM! Procedure Code, 1908 (.V of 1908)—

S. 9—Revenue authorities—Orders of—Challenge to—Certificate produced by appellant not believed by revenue authorities—Held : Such authorities not to be shown to have acted without jurisdiction merely because of their having disbelieved certificate. [P, 23jC PLD I960 Kar. 908 ref. (ii) Civil Procedure Code, 1908 (V of 1908)--

S. 115— High Court—Revisiona! jurisdiction of—Exercise of—No irregularity in appreciatioa of evidence by courts beiow pointed out by petitioner—Impugned judgments also not shown to be based ott non-reading or misreading of evidence—Held : No case f«r interference in revisional jurisdiction of High Court to be made q-.iii in circumstances. [P. 26JZ) PLJ 1984 SC 149 rel. (in) Civil Procedure Code, 1908 (V of 1908) —

O. XIII, R. 1 & S. 115—Documentary evidence—Failure to produce—Effect of—Documentary evidence applicant relying upon not produced fay him before trial court under O.X1II, R. I, CPC— Held : Contention that applicant not given opportunity to produce documents not to be raised at stage of revision. [P. 24]A (iv) Colonization of Government Lands (Punjab) Act. 1912 (Punjab Act, V of 1912)

S. 10(4)—State iand—Tenancy of—No permission or written order of Collector possessed by applicant—Held: Applicant not to be dee­ med to be tenant within meaning of Colonization of Government Lands Act, 1912- [P. 24]B Mr, Mumtat AH Siddiqui Advocate for Petitioner. Mr. Zawar Hussain Jaffari, AAG for Respondent No. 1. Mr. Karam AH Moghal, Advocate for other Respondent. Date of hearing : 20-4-1986. order This revision petition is directed against the judgment and decree of learned First Additional District Judge Jocobabad dated 17-10-1984 in civil appeal No. 11/1984 dismissing the appeal of the petitioner against the judgment and decree dated 17-3-1984 of the Senior Civil Judge, Kbandkot ir- First Class Suit No. 26/1933 dismissing the suit of the plaintiff/ petitioner. The brief facts leading to this petition are that the petitioner claims to be a sitting tenant of the agricultural land bearing survey numbers 259, 262, 272 and 275 situated in deh Mitho Thararo, taluka Thul, District Jacobabad. The petitioner applied for the grant of said land to him as a sitting tenant but instead respondent No 5 in open hatchery granted land to respondent No. 6. He preferred appsa! before respondent No. 3, a revision petition before the respondent No. 7 but the same were dismissed. He, therefore, filed suit in the civil court for the declaration that the order of grant of land to respondent No. 6 was illegal and ultra vires and that the applicant was entitled to grant of land acd for injunction. The suit and appeal were dismissed as pointed above. Pre-admission notice was issued to the other side and counsel of both the parties were heard. The learned counsel for the petitioner has argued that the suit was dismissed mainly on the ground that he had not produced the original document though he had produced the photostat copies of the same and that he was neither asked by the trial court nor was given opportunity to produce the original documents. It may be pointed that respondents remained ex pane before the trial court as well as before the appellate court and as such the burden was entirely, upon the applicant to prove his case and under Order 13 rule 1 CPC it was obligatory upon the applicant to produce all the documentary evidence that he wanted to rely upon. Therefore, he can not at this stage contend that he was not given oppor­ tunity to produce the documents. Even in the memo of revision petition, the applicant has not alleged that he was not given opportunity by the trial court to produce the original documents. The claim of applicant for the grant of land is based on his contention that he was sitting tenant of the land. It is admitted fact that he does not hold any Ijazatnama from the Government for cultivating this land. The land was granted under the conditions issued under sub-section (2) of section 10 of the Colonization of Government Lands (Punjab) Act, 1912 by which the Government of Sind granted State land for agricultural purposes to the Haris, small khatedars and Mohagdars. Section 10(4) of the said Act provides that "no person shall be deemed to be a tenant or to have any right, or title in the land allotted to him uoti! such a written order has been passed and he has taken possession of the land with the permission ;of the Collector." Admittedly the applicant does not posseis any such R permission or written order. Therefore, he can not be deemed to be tenant within the meaning of the said Act. The learned counsel for the respondent has relied upon condition No. 6(1) of the above mentioned conditions of grant of land which provides. "(1) The Deputy Colonization Officer, Assistant, Revenue Officer or any gazetted officer authorised in this behalf by the Coloniza­ tion Officer. Revenue Officer or Deputy Commissioner or the Assistant Commissioner of the Sub-Divisicm shall after inspecting the original revenue record personally and making such enquiries, as he may deem necessary decide the eligibility of the applicant for the grant applied for." The only evidence with regard to tenancy of she suit land produced by the applicant in appeal before the Revenue authorities was the certificate issued by Assistant Commissioner, Kandhkot dated 20-1-1980, who issued requisite certificate to the applicant to the effect that be wss hari of the suit land. The land is admittedly in Tbul Taluks, it is contended by the learned counsel for the respondent, thai this certificate is issued by Assistant Commissioner iiandhkot svhta land is situated in Taluka Thul. However, this certificate was considsred by ths learned Additional Commis­ sioner in his order and the relevant portion ol' the order reads as under :— "I have heard the advocates for both the parties. Perused the record, gone through the papers produced by the parties during the course of arguments. The appellant (the present applicant) has failed to produce extract of Khasragirdari to show that he is hari of the deh. The appellant did not contest in the katchery." The revision petition filed by the applicant was dismissed by the jearned Member, Board of Revenue, respondent No. 2. The relevant portion of the order reads as under : — "The counsel for the petitioner arguing the matter could not produce any positive proof in support of his contentions discussed in the revision petition. I accordingly maintain the order of Addl. Commissioner, Sukkur, which appears to be appropriate. Besides petitioner was not even present in the katchery of the disputed land and as such, revision petition, being without any force is rejected." It is not argued that the Revenue authorities viz. Additional Commis­ sioner or the learned Member, Board of Revenue i as no jurisdiction to pass the impugned order, nor is it argued that their orders are not based on the evidence. The certificate relied upon by the applicant was considered and apparently not believed by the Revenue authorities, The mere fact that they disbelieved the certificate issued by the' Assistant Co jmissioDer Kandhkot produced by the applicant does not in aay way show that they acted without jurisdiction. The learned counsel for the respondent has relied upon PLD 1960 Karachi 908 wherein it is held :— "Civil Courts cannot sit in judgment over the decision of the Revenue Officers if they have acted in exercise of their jurisdiction. There is a sharp, if sometimes fine, distinction between jurisdiction and exercise of jurisdiction, Jurisdiction is the authority to hear and decide a question. It is sometimes exceeded in its exercise, but so long a question is decided within the limits of the jurisdiction, K is immaterial, from jurisdiction point of view, whether the decision is right or wrong. Unless jurisdiction is conferred by a provision of law, the Civil Courts can check the errors of usurpation of powei made by Revenue Courts or Officers, but not the errors of their judgement." The learned C:vj! Judge while-dismissing ths suit of the applicant has held ibit the applicant has failed to prove his contention that he was the Hari of the laaci

.-r ibat the respondent No. 6 does not reside In dfh by producing any documentary evidence irrsapport of his contentions. The iearoed C:vil Judge further held that no illegality was found in the order of respondent No. t and therefore, the declaration sought can not bs granted and that the applicant had also not proved his contention other­ wise. Ir the appeal the learned Additional District Judge while dismissing the appeal has observed : — "The land grant policy itself does not give any right to present appellant for grant of this land and the Revenue authorities were competent under the law to decide, whether she land was to be granted to present appellant or to any other persons? The said policy was just for guidance of the Revenue authorities for this purpose aod it ha? not created any legal right in favour of present appellant. Thus, legally, She civil court can not give such a declaration to the appellant/plaintiff, and the learned Senior Civil Judge, Kandbkot has rightly dismissed his suit." I have heard the learned counsel for the petitioner at length. He has not beea able to show as to how the view taken by learned two lower courts is erroneous or bad in law. In the case of Haji Muhammad Zaman v. Zafar AH Khan and others (PLJ 1984 SC 149), it was observed : — "Revisional powers under section 115 Civil Procedure Code are primarily intended for correcting errors made by subordinate in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisabie, except in cases where the decision is based oo no evidence or inadmissible evidence or is so perverse that grave injustice 'would result there­ from." In the instant case admittedly the petitioner his oo written permission or order for cultivating or faking possession of She land which was admittedly Government land. It is not disputed that the Revenue authorities had power to grant- land to respondent No. 6. No irregu­ larity in appreciation of evidence by the two lower courts has been pointed by the learned counsel for the petitioner. It is also not contended that the _ repugned judgments are based on uon-readiog or misreading of evidence. In the circumstances no case is made oat for interference by this Court in revisional jurisdiction. As such the petition is dismissed in iimine with no orders as to costs. This revision petition wa dismissed by a short order dated 20-4-1986, Above are the reasons in support of said order. (TQM) Petition dismissed,

PLJ 1987 Karachi 26 PLJ 1987 Karachi 26 Present : saiduzzaman SlDDIQUE, J Haji GULLAM and 6 Others-Applicants versus S1ND LAND COMMISSION through SECRETARY at Hyderabad and Another—Respondents Revision No, 198 of 1975, accepted on 2-3-1986 (i) Land Reforms Regulation, 1959 (MLR 64)— -—-Paras, 3, 4 & 27—Land Commission—Orders of—immunity of— Held : Immunity to be extended to orders vaSidly made under aay of provisions of Regulation and rules or ordsrs made thereunder— Such immunity provided fo orders of Conimissioo, however, noi to extend to any matter or dispute shown to be cutsids ambit of Regula­ tion or which raised qussuon as to jurisdiction of Land Commission itself—Held further; Decision of Commission on jurisoictiotsai fact on which jurisdiction of Commission n-.tif depended being not pre­lected under Regulation, same to be {competently) challenged bs'ore civil cowl. [P/32]C (it) Laal Reforms Regulfttioe, ISS9 (MLR H)— ___pai-a. 21—Land—Resumption of—iasd in question vesting in some one else and cot ic Jetgirdar—- Held : Such isna nsitber 'cr be surrendered by Jagirdar nor Land Comrcj'.ssioe to competently re­ sume it under para, 21 of MLR 64, [P. 31]8 (Hi) Land Reforms l€gal»tioa s 1959 (MLR 64j —-Para. 21 read with Civil Procedure Code, 1908 (V of 190$)—S. 9 — Laad —Resumption of—Decision regarding—ChAlieage ia —Land in dispute allegedly resinned by Land Commiss-son on grouad of Jagirdafi ngbis having stood extinguished undc para. 21 of Re|alatkn—Title in land, on ether hand vesting ia petitioner perfected (in their favour) long before coming into force of Regula­tion—HeM : Suit filed by petitioner for declaration with regard to their title no? to be hit by provisions of MLR 64, (P. 32JD (jy) Land Reforms Regulation, 1959 (MLB 64)— —Paras. 2? & 3—.Land Commission Authorities—Orders of—Immunity conferred on—Held : Immuaity conferred on orders of Land Com­ mission Authorities 4 by virtue of para. 27 of MLR 64) from being questioned io any Court to extend oaiy to orders made by Autho­rities in accordance with Regulation—Held further : Order passed in exeesss of authority conferred oa Commission by virtue of various provj;ioBs of Regulation or that not failing under any of provision of Regulation not r.o be protected from being attacked in civil courr [P. 29JA Mr. M. Sharif, Advocate for Petitioner. Makktlootn Hah, Advocate for Respondent, Dales of hearing : !! & 12-2-1985, judgment This Civil Revisjor 1 Application is filed by the •sstitivMrs. ta challenge ;;e two concurrent judgments, of the Courts bHow dss'jjiijjr/jf the s ,i;f of piainiin o>\ ine. ground that civil Court had no jufisdictio^ i the «uk. Before considering the contentions raised >n this following facts may be stated which are aot in uispuCc : — hei Cv rntcii.MOjef r,j,.l .%as ps:us.-j ty h.ai .n vLe . is Thereafter, no further steo was taken by the parties ar. J tl; position which existed before the award. It appears tr.J MLR 64 the Jagirdar filed a declaration before the Commission in which he purportedly surrendered' it>,' '-.i i " p-iS,sb,jn of petitioners and in pursuance thereof the Land Ci n t.s;:»" ; Vut threatened to dispossess Che petitioners from the iaad and demanded lease money for the same oa the ground that it hss been resumed under MIR 64. The petitioners thereupon made a representation to the West Pakistan Land Commission alleging that they hold Zamindari rights in the suit land and therefore, their threaten dispossession from the land and demand of lease money in respect thereof was wholly without jurisdic­ tion. The Commission forwarded the representation of the petit.ioners to the Deputy Land Commissioner Siod for determining the rights of the petitioners. The Deputy Land Commissioner in turn assigned the same to the Assistant Land Commissioner for holding enquiry into the claim of petitioner and submit a report thereon. The Assistant Land Commissioner in compliance with the order of the Deputy Land Consmission held enquiry into the matter and is his report stated that the petitioners did have Zamindari rights in the suit land. The Deputy Land Commissioner however, took the view that as the award given by the Collector, Tharparkar, in the year 1932 is favour of petitioner was set aside by the Judicial Commissioner, Sind ia. appeal, therefore, the matter stood concluded finally and no further action is necessary. This recommendation of the Deputy Land Commissioner was accepted by the Land Commissioner and the matter was accordingly closed, The petitioners thereafter filed writ petition No. 308/65 in the then High Court of West Pakistan but withdrew the same on i 1-11-1963 with per­ mission to file a fresh petition. Thereafter instead of filing constitution petition they instituted Suit No. 66/66 on 6-7-1966 claiming relief of declaration and permanent injunction. The declaration sought by the petitioners in the above suit was to the effect that they may be declared to have 'Zamindari' rights in the salt land and that the acts and orders of the Land Cotnniissioa Authority in respect of the suit laad resuming it and demanding lease money from them is wholly inoperative being void ab-initio. The suit was contested by the Laad Commissioner and cq the basis of controversy between the parties fuSiowiog issues were framed ib the suit :— "(I) Whether the orders of the defendants resuming to suit Sand demanding the lease money from the plaintiffs and taking auv other aeiiosi in respect of land in suit, are el> setitio, void and without jurisdiction ? (2) Whether the plaintiffs have xafnlnduri rights ia the land in suit ? (3) Whether this Court has kg jurisdiction to try this suit in view of the provisions as taetitionc.d is paragraph 27 read with pars-­ graph 3 of the West PakiHaa Laad Reforau Regulation, i959? (4) Wfcat should the decree be 7 O.a israc No, 2 which eclated to the claim -of the piaintiff/petuiQDerg with regard to their alleged Zemindar; rights in the suit land the trial Court gave a categorical finding that on the basis of evidence and material on record the petitioner did succeed in establishing thai they had Zamindari rights in respect of tbe land in suit and that their title to the land was perfected by means of adverse possession Song before eoraing into force of MLR 64 which was promulgated ia the year 1969. Ibis finding of the trial Court on issue Mo. 2 has beea confirmed by the First Appellate Court in appeal. I he suit was, however, dismissed by the jearssd trial judge and the dismissal has been upheld in appeal by the First Appellate Court on the ground that the jurisdiction of tbe Civii Court is barred uad paragraph 27 of MLR 64 read with paragraph 3 of the said Regulation. To support its conclusion the learned trial Judge referred to the cases of Hajiani v. West Pakistan Land Commissioner (PLD 1966 SC 114), Jhamandas v. Chief Land Commissioner (PLD 1966 SC 229) ; and Khair Muhammad Khan v. State (PLD 1966 SC 604) which were also relied by the applicants' counsel. In addition to above noted reported cases the learned counsel for the applicants also relied before the trial Court two unrepaired decisions of Supreme Court in Civil Appeal No. K-43 of 196J and Civil petition for leave to appeal No. K-7 of 1960 but they were distinguished by the learned trial Judge as not applicable to the facts of the present case. The learned First Appellate Court while maintaining the order of dismissal of Civil Suit by the trial Court for want of jurisdiction apart from the cases noticed by the trial Judge also referred to the case of Qaimuddm v. Province of West Pakistan (PLD 1968 Karachi 647), The extent of jurisdiction of civil Court to examine the legality of the orders passed by the Land Commission under the provisions of MLR 64 after enforce­ ment of Constitution of 1962 was examined in the case of Khair Muhammad v. State (PLD 1966 SC 604), and following observations made at page 611 of the report may be reproduced here with ad­ vantage :— "As a result of the above discussion, we are satisfied that the order of Mr. I. U. K.han is not one than can be made withia the powers given by the Regulation. By paragraph 27 of that Regu', ' n, it is provided that no order made thereunder shall be ca' i question in any Court including the High Court aad the Supreme Court. The words are not "any order purporting to be mads", bur s< any order made" and therefore the requirement is that any order in respect of which immunity may be claimed uader paragraph 2? must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th Juae, 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the Land Commission autho­ rities, which merely purported to be made under the Regulation, evea though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under para­ graph 27 was limited thereafter to orders which were in substance and form made ia compliance with the Regulation. Tfaerfore, the High Court had jurisdiction under Article 98 of the Coastitution to declare that the order of Mr. I, U. iChao was made with­out lawful aathority and was therefore of no effect," It is quite clear from the above quoted passage that the immunity conferred 00 the orders of Land Lommission Authorities by virtue of paragraph 2? of MLR 64 from being questioned ia any other Court extended only to those orders which were made by the Authorities in accordance with the Regulation. An order passed by the Authority which did not fall under aoy of the provisions of Regulation or which was in excess of the authority conferred oh the Commission by virtue of various provision of the Regulation was not protected from beiug attacked ia a civil court. It is also clear from the above quoted passage that the immunity provided to the orders of Laod Commission Authority by virtue of MLRs 89 and 93 ceased to exist after 7th of June, 1962 upon enforcement of the Constitu­ tion of 1962. The case of Qaimuddin v Province of Sind referred in the. order of learned First Appellate Court proceeded on the assumption thai the commulative effect of MLRs 78 aod 93 was that there was a total bar on the jurisdiction of the civil court with regard to the matters decided by the Land Commissioner or any other Martial Law Authorities, but as the decision in Khair Muhammad's case which was not only decided earlier but heid the field on the date of decision in Qaimuddin' s case, was not brought to the notice of learned Judge, who decided Qaimuddin s case, the decision in Qaimuddin's case should be read as limited in its application only to cases which were decided by the Law Commission before coming into force of the Constitution of 1962 in view of the pronouncement of Supreme Court in Khair Muhammad's case, in the case of Muhammad Khizar Hay at Khan v. Chief Land Commissioner (PLD 1968 Lahore 1145) a question arose before a Division Bsnoh of the th?n High Com! of 'West Pakistan, Lahore Bsnch, with rsgard to ;he scr.p; of the authonij of the civil court to go into th? question of legality of ;he ord=; passed by the Land Commisson in exercise of the powers ccaifrrsd cu i: -i;y viruses MLR 64, The learned Judges of Division rshir.g on j^v-. decision? -.it' Supreme Court in case of Usi, Blbi Avitka v. C-^ief / i-na Commission (PI,O 1965 SC 84) arsd Msl. Hajiani v.'Wc.v ?i>;s provision of the Regulation, it is not j matter failing for de?f?.rcir$aiioa by the Land Commission and, therefore, despue :be ov.trri^ing nature of the Regulation as contained in para, .i or p«;a. 4 (6) cr the exclusion of powers of the civil Court, the Hi§b. Court aod the Supreme Court, the matter wiii be dscenKiaabie fey U:.e civil Court, which is a Coun of genera! jiinscii'-tion. that a person is a deeie^rsiif and does aak« a c,:- existing owner dofs no: uiipowtr rbe Ln: •: C'.'i'-r.u verdict in respsc; of the titie of ?;•;»; nr^so;;. visualised whsie entrks io the naase of :!;= 's's;.^ land, legaliy belonging to persons other toa;-. 'he cs;;>^r3i iu the rftversue record. In such cass; ':':i ais'-.:- !",:;< ti declarant docs declare ai! those Sands as <>••, and iucn ^ decl is accepted by the Land Commission wul no: cioih ?t a dcc : »ra:jf with title in that property, no! will the accepuuce -.if tnai de­ claration by the Land Commission depuve U]^ rrai o\v"ms of the land to agitate their rights in respect oi that ianri octore she Civil Court. If the interpretaliou. as suggested b; ^earned counsel I'or the petitioner, is placed oh these provisions of saw, it ^i!i raaao negation of the rights of real owners of ibe 'and, who -.vij! be considered to have been condemned unheard hy the Land Com­ mission merely on the declaration Sled by the declarant purport­ ing to be an 'existing owner' of the said land. No doubt, the questions of gift made by donors to defeat the provisions of the Martial Law Regulation were invariably gone into by the Land Commission, the reverse proposition of going into the title of the donor claiming to b« the existing owner was not determined bv the Land Commission and from that angle also the acceptance of the declaration by the Land Commission as entered by the peti­ tioner in Forms L. C. I and L. C. II does not oust the jurisdiction of the Civil Court to determine the legality or validity of the alleged transaction of gift challenged by the minor children of the donor before the Civil Court. Following with icspect the law laid down is Nawab Muhammad Farid Khan v. Muhammad Afzal Khan which case is directly in point, we hold that the decree of the Civil Court is not without jurisdiction and as the petitioner has not assailed the same before any higher forum, he cannot challenge it before this Court in writ jurisdiction." B Th= above quoted paragraph was reproduced in the judgement of the learned trial Court but was distinguished on the ground that the dispute -. r., raised in the suit was not between Jagirdar and a third person but SJtween a third person and Land Commission and therefore, the civil Court had no jurisdiction to excuse the same, With due difference to the learned Courts below the above cited case could not .be distinguished on that account. The two Courts below had categorically reached the conclu­ sion on Issue No, 2 in the suit that the petitioners had Zamindari right in the land in suit. In view of tbs above conclusion of Courts below on Issue No. 2, the question for determination before them was, whether in these circumstances the land could be surrendered by the 'Jagirdar' and resumed by the Land Commission under paragraph 21 or under any other 1 provisions of MLR 64, It cannot be disputed that under MLR 64 only these rights of Jagirdar were affected and would be resumed by the Com­ mission, which the Jagirdar had or enjoyed ia respect of the iaad. If the Jagirdar had no title to the land which vested in some one else, then neither such land could be surrendered by Jagirdar under MLR 64 nor the Commission could resume such lands. la the case of Aist. Haniida Begum v. Murad 8egu>r. (PLJ 1976 SC 44) the folio-ving observations are made with, regard to the scope of authority of a Civil Court to examine the vires of the order passed by Land Commission Authority under MLR 64 :— "The correct position in law thus appears to be that under para­ graphs 3, 4 and 27 of the Regulation, the ordinary Courts are barred from questioning the validity of any provisions of the Regulation as we!! as any rule or order made thereunder, that all disputes arising in connection with the implementation of the provisions of this Regulation are to be finally decided by the Land Commission» and no Court or authority has jurisdiction in respect of any matter which the Commissioner or an Officer acting under the authority of the Commission it empowered to determine. If any matter or dispute falls outside the ambit of the Regulation, or raises a question as to the jurisdiction of the Land Commission itself, then the jurisdiction of the Civil Courts to deal with such matter or dispute is not barred. The Land Commission is not ths final judge of facts and eireuinstances constituting the foundation of its jurisdiction, although it has necessarily to decide such questions for the purpose of administer­ ing the Regulation. Its decision's on such jurisdictional facts are open to challenge in the ordinary Courts, and in any case there does not appear to be any provision in the Regulation empower­ing the Land Commission to give binding decisions on questions ef title and personal «utus like legitimacy and inheritance. Ttmt jurisdiction continues to remain with the Civil Courts in terms of Section 9 of the Code of Civil Procedure read with Section 42 of the Specific Relief Act." A careful reading of the above passage will show that the immunity extended to the orders passed by the Land Commission under MLR 64 is extended under paragraphs 3, 4 and 27 of the Regulation only to those orders which are validly made under any of the provisions of the Regula­ tion and the rules or orders made thereunder. Also protected under these provisions are the determination of disputes in connection with the imple­ mentation of the provisions of the Regulation. However, the above immunity provided to the orders of Commission under the regulation does not extend to any matter or dispute which is shown to be out side the ambit of the Regulation or which raises a question as to the jurisdiction of the Land Commission itself. I am in go doubt after readiog the above passage ?hat in so far the decision of the Commission on the jurisdictionai fact on which the jurisdiction of the Commission itself depended, the same were not protected under the Regulation from being challenged before a Civil Court. Reverting now to the facts of the present case the land in dispute was allegedly resumed by the Land Commission on the ground that the Jagir° dari rights stood extinguished under paragraph 21 of the Regulation. The Courts below however, categorically reached the conclusion 00 issue No. 2 in the suit that the title in the land vested in the ptiitiooer and that this title perfected in their favour long before coming into force of MLR 64. This being the position the suit filed by the petitioners for declaration with regard to their titles was not hit by the provisions of MLR 64. Since the suit was dismissed by the trial Court as weil as by the First Appellate Court solely on the ground that the Civil Court has no jurisdiction in ths matter. I reverse the judgement and decree of the Courts below and grant the declaration prayed for , ia the suit on the basis of concurrent findings of Courts below on Issue No. 2. 1 will make no order as to costs in the circumstances of the case. (TQM) Appeal accepted

PLJ 1987 Karachi 32 PLJ 1987 Karachi 32 [Sukkur Bench] Present : ahmad ally U. QurssHi, J MUHAMMAD ASLAM son of ABDUL SATTAR MANGI—Appellant versus MUHAMMAD ASLAM son of ALi MUHAMMAD ZUBERI—Respondent FRA No. 72 of S985, allowed on 22-9-1986 (i) Si0d Rented Premises Ordinance, 1979 (XVII of 1979)— —S. 15 (2) (vii)—Eviction—Personal use—Ground of—Burden of—­ proof of—Held : Burden of proof regarding landlord requiring demised premises in good faith for use of his sons being uoan such laadlord, mere knowledge of such requirement not tc be sufficient to obtain eviction on said ground -Held further : Interests of tenant having been safeguarded by legislature by incorporating condition, landlord to be required to satisfy Rent Controller that he requires premiies in good faith —Such safeguard to be (even) more accessary in case of tenant having established his business and goodwill (for four years) in particular plea or area. [P. 34]<4 (ii) Sind Rented Premise! Ordinance, 1979 (XVII of 1979)— .

S, 15(2)(vii)—-Shop—Eviction from —Application for—Landlord— Bona fide of—Proof of—Tenant carrying on business in shop in question since before its transfer to landlord in 1960 by Settlement Authoritiei—Held : Tenant having established his business for more than 25 years, burden to lie heavily upon landlord to prove his requirement in good faith, [P. 34 ? £ ;iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 (2) (vii) & 21—Personal use— Bona fide of— Proof of— Held : Landlord to (be required to) first prove bona fide of his requirement before any burden of proof in rebuttal be shifted upon tenant—Premises in occupation of two sons of landlord not shown to be insufficient for their needs — Rent Controller, however. apparently relying upon mere word of landlord (regarding bis requiring premises for bona fide need of his sons) and shifting burden of proof in rebuttal upon tenant—Held : Landlord having not discharged burden, (any) weakness in case of tenant not to help him. [P. 35 & 36JC Mr. Kadir Bux, Advocate for Appellant. Mr. Shabbir Ahmad, Advocate for Respondent. Date of hearing : 24-8-1986. judgment This first rent appeal is directed against order of the learned Senior Civil Judge and Rent Controller Sukkur dated 16-5-1985 in Rent Appli­cation No. 138 of 1983 whereby ordered eviction of the appellant. The brief facts leading to this appeal, are that appellant is admittedly tenant of a shop bearing C. S. No. D-2-622/4 Shikarpur Road Sukkur, which was transferred to the respondent by the Settlement Authorities. The respondent filed Rent Application No. 138 of 1983 seeking ejectment of the appellant on the ground that he required premises for the bona fide need of his sons Muhammad Riaz and Muhammad Ilyas, who were jobless. The appellant resisted this application and raised the picas that the premises were not required by the respondent for the bona fide need of hi» sons but he wanted the premisss for ths purpose of letting it on enhanced rent. He contended that this rent application was filed because the previous application of the respondent was dismissed on 31-8-83. He further contended that the shop bearing C. S. No. D-622/2 which is in possession of the respondent, has two portions, in one of the portions Muhammad Saleem s/o respondent is carrying on the business, while in other portion his other son Muhammad Ilyas is carrying on the business of electricity. He has also, denied that the son spf the respondent are jobless, On the pleading of the parties the learned Rent Controller framed the following issues : — Issues (1) Whether the premises the required by applicant for personal bona fide need of sons of applicant namely Muhammad Ilyas and Muhammad Riaz ? (2) What should the order be ? The learned Rent Controller found tht issues in favour of the respon­ dent and passed the impugned order. Hence this appeal. The respondent had examined himself and his two sons Muhammad Ilyas and Muhammad Riaz for whose need he required the premises. All three witnesses have stated, that Muhammad Ilyas and Muhammad Riaz are jobless and the premises are required for their bona fide need. The respondent has denied in the cross-examination that the shop bearing No. 6'2/2 is in two parts, However PW Muhammad Ilyas has admitted in the cross-examination, that the shop No. 622/2 has two doors and there is wooden partition in it. Both these witnesses admit, that PW Muhammad Ilyas is dowing business is electrician, but tbey do not state as to where he is carrying on the said business. Similarly applicant/respondent Muhaaimed Aslam as well as PW Muhammad Kiaz admit that PW Muhammad Riaz is carrying on business as welder in old Sukkur. The respondent seeks ejectment under s«ction 15 (2) (vii) which reads as under :— 15—"(2) The Controller shall, make an order directing the tenant to put the landlord in possessioa of the premises within such period as may be specified in the order, if he is satisfied that :— (vii) the landlord requires the premises in good faith for his own occupation or use or for the occupmtion or use of his spouse or any of his children. The burden of proof that he requires the demised premises in good faith for the use of his sons was upon the respondent. There can be no loubt, that the person concerned would be in the best know of his own requirement but his mere knowledge of such requirement is not sufficient lo obtain eviction on the said ground but he has to satisfy the Rent Contrailer that he requires the premises in good faith. This condition has been incorporated by the legislature to safeguard the interests of the tenant. Such safeguard is more necessary in the case of the tenant who nas four years established his business and goodwill in a particular place or area. It may be pointed, that in the instant case the appellant was in occupation of the shop in question and was carrying on business in the shop since before I960, when the shop was transferred by the Settlement Authorities to the respondent. To evict such person and to uproot bis business which he has established for more then 25 years, the burden lied heavily upon the respondent to prove his requirement in good faith. It may also be pointed that it is admitted fact, that prior to this rent appli­cation, the respoadeot had iled another real application bearing No. 1670 of 1972 which wa» finally dismissed in appeal on 3^-8-1983, The present rent application was filed on 12-10-1983 viz within two months of the dis­missal of the previous application. Keeping this fact and the back ground in view, we have to ice whether the evidence produced by respondent is sufficient to prove that the premis«s are required by him in good faith for the use of two sons. The only ground of his requirement shown in the root applicatioa, xcwell as in the evidence of the t&re witnesses is that the two sons of the applicant/respondent are jobles. However at pointed above, it is admitthat both these sons are carrying on business. Therefore they can not be Con­ sidered to be jobless. If by job the applicant me a of paid job, such purpose can not be served by handiag tfcem over the poteession of the derailed premises. Both of them are admittedly carrying on business. There is'no evidence as to where PW Muba«mad Ilyas is art carrving onhis business. The suggestion, that he is carrying on business ia one portion of the sfeop No. 622/2 is denied. However tfcere is absolutely no'evidence a$ to why the premises in which PW Muhammad Ilyas, and Muhammad Riaz ars carrying on their business presently, are not suitable for their burineis or needs and why they want to ibift to demise premises and how both of them can carry ob business in the dcssisrd premises. In case of M. S. Baroba vt. Manzoor Ahmed (PLJ 1986 Karachi 369) a Division 6ench of this court has obierved, "Iu our opinion out of the aforesaid 3 conditions, two of then are also germane to th» requirement of the premises in good faith for a landlord can not ht said to require a premises for his personal use in good faith if he h&s another building in his occupation or if he rents out the premises after it falls vacant and then appliei for eviction of another tenant on the ground of portent! requiremeat, for the phrase "good faith''means "honestly''' and when a person is in occupation of another premises generally speaking he cannot be said to be acting honestly when he asks for yet another premises unless the premises in his occupation is not sufficient for his need. In PLD 1986 Karachi 84 a Single Judge of this Court has observed. "Mere wish, convenience, whim or fancy of landlord, would lot be enough to show that landlord "requires premise! in good faith". Landlord must prove requirement of premises for reason­ able needs and that he was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realiz­ ing some extraaeout ptrpsse. Order of eviction would require satisfaction of Re/H CSorrtrollcr that region able requirement of landlord would be bm fey occupation f premises, Eviction onfto could not be granted «• vfue allegations in »vjctie apptiettio. Mere ipte dimt of fttiltoni tbt p««is wcr required fr accommodating of Hi wtiar ttafT vmm not flBOttfh. t\ttm f requirement won id hjfa t« be sapport#d by vahi riMSM M »» how such requirement ws genuine." If we judge the evidence produced by the, respoedtat and view the law laid down ia abo« catcs, we find tbt net as tott has been produced to prove flat tke prem««s where two sobs PW Muhammad Ilyas ao4 Mu4NMitt«d Riaz are presently earryinj »a businew is not sufficieat for ttir needs. Tie karaed Mkt appears to have relied upon the mere word of the appellant/responden :hat he required the premises for bonafide need of the sons and has shifted Durden of proof in rebuttal upon the appellant. In my view this is no' he correct position of law. The landlord has first to prove the bonafide of lis requirement, before any burden of proof in rebuttal can be shifted upon he tenant. In the present case, the landlord has not discharged the bur­ den and the weakness if anr in the case of the appellant tenant would not lelp the landlord. I therefore allow the appellant and set aside the impugned order of the learned Rent Controller. The parties are however directed to bear their costs. (TQM) Appeal allowed

PLJ 1987 Karachi 36 PLJ 1987 Karachi 36 [Sukkur Bench] Present : syed abduk rehman, J GHULAM NAB1—Appellant versus MUHAMMAD SACHAL—Respondent FRA No. 104 of 1984, heard on 14-4-1986 (i)Siad Rented Premisss Ordinance, 1979 (XVII of 1979)—

S. 2 (j)—Tenant—Definition of—Held : Heirs (of tenant) actually in possession of premises (and not those not occupying) to be treated as tenants. [P. 37\A (ii) Sind Rented Pr«mises Ordinance, 1979 (XVII of 1979)—

S. 5—Written agreement—Terms of—Change in—Terms of agree­ ment (already) reduced into writing—Held : Such terms to be competenly changed only through subsequent agreement reduced into writing. [P. 38]Z> PLJ 1981 SC 214 ref, (iii) Sind RentedJPremises Ordinance, 1979 (XVII of 1979)—

S. 10—Rent—Payment of—Mode of—Held : Tenant not to (competenly) absolve himself of responsibility of paying rent every month as agreed initially in writing by taking plea of his having been verbally asked by landlord to pay rent in lump sum and after long intervals. [P. 38]C (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S 10—Tenant—Payment of rent by—Responsibility of — Held: Tenant to (be required to) seek landlord\to pay him rent wherever be resides. [P. 37]B (v) Sind Re»ted Premiies Ordinance, 1979 (XVII of 1979)-

S. 15 (2) (ii)-Default—Ground of— Discretion — Exercise of— Tenant failing ^into arrears of so many months—Held : No indul­ gence to be shown in such case of gross negligence. [P. 39]F (vi) Sind Rented Premises Ordinance. 1979 (XVII of 1979)—

S. 15 (2) (ii)—Default - Waiver of— Rent remitted through money order—Acceptance of—Effect of—Held : Acceptance by landlord of rent remitted through money order to amount to waiver of default [P.'38]£ Mr. Kadir Bux Memon Advocate for Appellant, Respondent in person. Date of hearing : 14-4-1986. judgment Appellant ha» challenged the order of Rent Controller, Shikarpur dated 12-11-1984 directing that he should hand over the vacant possession of th» premises to the respondent within 60 days. According to the respondent, the appellant is a tenant of shop in dis­ pute which is owned by the respondent. He has alleged that the appellant is a habitual defaulter. On 31-1-1982 he was in default of" payment of rent for 30 months and therefore he sent money order for Rs. 495 after a notice was served upon him by the respondent to vacate the shop. Since the default was for a very long period, the respondent decided not to waive the same and refused the money orders. The respondent has further taken the plea that he requires the shop for construction of staircase of upper storey of a house. The petition was contested by the appellant, who chal­ lenged its maintainability on the ground that the other heirs of his father Gul Muhammad, who was original tenant, were not joined as a party. He also denied that he was a defaulter. He alleged that he was regularly paying the rent to the respondent till the respondent shifted from Shikarpur to Karachi. After shifting to Karachi the respondent asked the appellant to pay the rent in lumpsum whenever he visited Shikarpur. Hence the rent for a number of months was tendered to the respondent and on his refusal sent to him by money order, which was also refused as shown above. The appellant thereafter sent a number of money orders to the respondent but all of them were refused. He also denied that the shop was required for bonafide personal use and has alleged that this plea has been taken only to get it vacated as he was not agreeable to enchance the rent. On the pleadings of the partiei, the learned Controller took up the issues regarding the maintainability of the petition, requirement of the premises for bonafide personal use and the default in payment of rent. He decided the issues as to the maintainability of petition and the defauit in favour of the respon­ dent and the requirement of the premises for bonafide personal use against the respondent. I have heard Mr. Qadir Bux Mcmon advocate for appellant at langth and also Mr. Muhammad Sachal advocate, the respondent yj person. So far as the maintainability of the petition is concerned, the learncdt Controller has dealt with this point at length and has rightly pointed ouc that only those heirs of the tenant who are actually in possession of thei disputed premises are to be treated as tenants and not tbose heirs who are not occupying the premises. His rinding that only the appellant is in possession & occupation of the shop is supported by the evidence on record as well as the admission of the appellant himself. Hence this issue does not require any interference. On the issue of default, it may be pointed out that it it admitted by the appellani that on 31-l-lv82 he sent a money order of the amount of Rs, 495. He admits that the rent of all these months w»s due to the respondent from him, His explanation for accumulation of arrears of all these periods is that the respondent had requeited him to pay the rent to him in lumpsum, after his shifting to Karachi, whenever he came to Shikarpur. The respondent has denied to have made such request. The appellant has not produced any documentary evidence to show ttut any ,such request was made. It is a settled law that the tenant hai to seek the landlord and to pay him the rent whereever he resides. The tenant cannot absolve himself of the responsibility of- paying the rent every month a agreed initially in writing by taking the plea that he wai verbally asked by the landlord to pay the rent in lumpsum and after long intervals. By aow it is a settled" law that when the terms of an agreement are reduced into the writing the same can be changed only through a subsequent agreement reduced into writing. Reference was made to the decision of Messrs Tar Muhammad Janoo & Co. v. Taker AH and others reported in PLJ 1981 SC 214 wherein it was held as follows : — "It is the duty of the tenant to pay or at least tender the rent to the landlord and he can not be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every mopth, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals can not in arttf way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of th,e tenant to pay the rent unless the landlord' comes and collects it. Nor does it absolve the tenant from paying the rent every month." Reference is also invited to another ruling reported in the case of Bado Mai and 5 others v. Illahi Bakhsh reported in 1984 CLC 640, Munawar Ali Khan, J held as follows : "This shows that the accumulated rent was sometimes accepted on the respondents behalf but it was neither by any arrangement between the parties nor it was the choice of the respondent. It was accepted with obvious reluctance on account of the appellani irregularity in making the payment. Thus, the Rent Controller has come to right conclusion on this point." The date of the first money order in the present case was 31-1-1982. •This would mean that the default in payment of rent was within three years Jprior to the filing of ejectment application. The respondent was within his Iright to refuse this M. O. tendering that rent and come to the court of •Controller with a request for ejectment on the ground of that default. Hif 'acceptance thereof would have amounted to waiver of the default. Reference in this connection may be made to the case ef Muhammad Ahmed v. Mrs. Qamar Anwar Shaikh and another reported in 1980 CLC 6<>4 decided by Zaffar Hussain Mirza, J (as he then was) where it has b«n held as follows : "In the provision under examination the Legislature clearly pro­ vided that in case it is found that the tenant has failed to pay or terjdcr rent "within fifteen days after the expiry of the time fixed in the agreement of tenancy with landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable." he is exposed to the liability of being ejected by the Controller. The forgoing words of the subsection put into inverted commas clear negate the interpretation put forward by the learned counsel. If the intention of the legislature was to confine the ground of non-payment of rent for ejectment only to cases where the tenant continues to remain in arrears, nothing prevented it from employing uch clear language. Reading the subsection in its entire context, therefore, I am of the opinion that once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of the arrears of rent unless he can make out a case of waiver on the part of landlord I. therefore, find no force in the submission of the counsel." I am therefore satisfied that the finding of the Controller that the appellant had defaulted in payment of rent was correct and does not call for any interference. Mr. Qadir Bux Mcmon next contended that the ejectment on the ground of default in payment of rent was discretionary and therefore requested that the discretion should be exercised in favour of tenant. He was unable to show the circumstances on which the discretion could be exercised in his favour. The fact that the tenant had been negligent to such an extent that he fell into arrears of rent of so many months is so gross that no judicial mind would be prepared to show indulgence in such a case. I, therefore, do not find any reason to interfere with the findings of the learned Controller and dismiss the appeal. (TQM) Appeal dismissed.

PLJ 1987 Karachi 39 PLJ 1987 Karachi 39 Present: syed ally madad shah, J MUHAMMAD SIDDIQUE son of ISHAQUE—Appellant versus MUHAMMAD SIDDIQUE son of PEER MUHAMMAD-Repondent Second Rent Appeal No. 135 of I98i s decided on 16-1-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— S. 15 (2) (ii)—Eviction—Default— Ground of—Title—Question of —Agitation of—'Landlord' enjoying title of ownership under PTO and PTD—-Held: Mere agitation of transfer of property before settle­ ment authorities not to absolve tenanes of their liability of paying rent to landlord. [P. 42]A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— -—Ss. 15 (2) (ii) & 21—-Eviction—Default—Ground of—Discretion-Exercise of — Tenant refusing to pay rent to landlord — Held : Discretion (rightly) exercised by Rent Controller in ordering eject­ ment of tenant [P. 42]B Mr. Abdul Majeed Khan, Advocate for Appellant. Mr. Kadir £ux Bhutto, Advocate for" Respondent. Date of hearing : 15-1-1986. judgment Both the Appeals No. 135 of 1981 and 136 of 1981 have arisen from a consolidated judgment dated 18-2-1979, of the learned IVth Additional District Judge, Karachi, in Rent Appeals No. 148/1979 and 149 of 1979. The facts in both the appeals are identical in nature and they are, accor­ dingly, disposed of together. The facts in the back ground of the appeals, briefly stated, are that respondent Mohammad Siddique son of Peer Mohammad was transferred urban property bearing No. LY-7/18, Moosa Lane, Lyari Quarters, Karachi by the Settlement Department under PTO dated 29-8-1960 and PTD dated 23-8-1962. The appellants herein Mohammad Siddique son of Ishaque and Ibrahim son of Khameesa, were in occupation of two residential tenements bearing No. Go and G-3, respectively, out of seven tenements standing on the plot referred to above. The respondent gave them notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter referred to as the Act of 1958) of transfer of the property to them and calling upon them to pay him rent @ Rs. 15 per month, each. Notice to the appellant Mohammad Siddique was issued on 10-11-1966 and that to the appellant Ibrahim on 31-8-1966 The appellants did not respond to the notice and did not pay the rent. The appellant Mohammad Stddique was given another notice on 15-9-1967 and yet he did not pay rent. The respondent filed Rent Case No. 331/1968 against the appellant Mohammad Siddique and separate Rent Case No. 332 of 1968 against the appellant Mohammad Ibrahim on 7-2tl968 for their ejectment on the ground of their failing to pay the rent. The appellants approached to the Settlement Authoriiy for the transfer of the premises to them but they did not succeed at any forum. They filed a Constitutional Petition No. 488 of 1969. They withdrew the petition aad it was dismissed, as sueh, oq 5-9-1969. They filed Civil Suit No. 1962 of 1969 but plaint in the suit tiled by them was rejected. The rent cases were decreed on 9-12-74 on the basis of decision of a preliminary issue whether there existed relation­ ship of landlord and tenant between the parties. The appellants preferred rent appeals No. 10 and i 1 of 1975 which were allowed by the learned 1st Additional District Judge, Karachi by order dated 04-2-1977, whereby the cases were remanded for decision after recording the evidenc on the question of default in payment of rent. The ejectment cases were decreed again on 18-2-1979 on the ground of default in payment of rent. The appellants preferred appeal No. 148 and 149 of 1979 and their appeals were dismissed by the learned IVth Additional District Judge, Karachi, under impugned judgment dated 15-8-1981. It would be worth mentioning that the learned counsel for the appel­ lants has disclosed that the appellant Muhammad Siddique's mother Mst. Hawa Bai and appellant Ibrahim's sons Khameesa and Muhammad had made a joint application dated 28-12-1982 to the Settlement Comrqusioner that PTO and PTD issued to the respondent were obtained by fraudulent means and the Deputy Settlement Commissioner/Notified Officer cancelled the respondent's PTO and PTD by order dated 19-3 1983 aod the respon­ dent challenged that order under Constitutional Petition No. S-55/1983 and his petition was allowed by order dated 2-10-1985 He has further stated that & Petition for Special Leave to prefer appeal in the Supreme Court (being CP K-No. 434/1985} has been filed on 31-1-1985 and the Supreme Court has been pleased to pass stay order dated 6-11-1985. He has filed certified copy of the order which reads as under : — "The possession of the petitioners in respect of the disputed pro­ perty shall not be disturbed till the main petition is decided. However, this protection will not apply to any ejectment under the Rent Laws. The main petition to come up for hearing in Court on a date to be fixed by the office in December, 1985." The learned counsel for the appellant has urged that the responpent's title over the property was under dispute and therefore, there did not arise any question of wilful default in payment of rent and he has placed reliance on the case, cited as 1983 SCMR 1064 ; 1985 CLC 526 aod 2085. He has next contended that the rent demanded by the respondent by way of notices was excessive of the rent fixed by the Custodian and non-payment of such excessive rent did not make the appellants liable of wilful default. He has further contended that the appellants were agitating the question of transfer of the property to the respondent before the Settlement Authorities and the filing of ejectment cases was premature. He has lastly urged that the notices purported to have been given under section 30 of the Act were premature and the question of transfer of the property to the respondent was sub judice before the Settlement Authorities. Advancing his argument, the learned counsel has further contended that there was no wilful default oq the part of the appellants for warranting of order for thiir ejectment and he has made reference to several cases/authorities which are cited as 1983 CLC 346 ; 1982 CLC 290 ; and 1982 CLC 436. The learned counsel has finally argued that the learned Controller should have exercised his dis­ cretion in favour of the applicants and he has relied upon cases reported in PLD 1982 Kar. 188 ; PLD 1979 Karachi 921 ; and PLD 1976 Lah 1052. The learned counsel has also mentioned that where there are questions of law and facts, the Appellate Court has to examine the evidence adduced by jhe parties, even though there are concurrent findings of this courts below and hs has placed reliance on the cases reported in 1973 SCiVlR 606 ; and PLD 1976 Kar, 81 i. On the other hand, the learned counsel for the respondent has urged that the respondent was transferred property under PTO and PTD and he gave requisite notices under section 30 of the Act of 195i to the appellants but the appellants did not atone to his proprietary title over the rented pre­ mises and they did not only fail to pay the rent required by law but they also challenged his title and wilfully failed to pay th: rent to him ani thereby made themselves liable for the procsss of ejjetnrnnt. H: has further contented that the pendency of the proceedings before thi Settlement Authorities did not absolve the appellants of the liability of paying rent to the respondent as required by law. According to him, even if the appellants considered that the rent demanded by the respondent was excessive, they should have offered or tendered the rent which had been fixed by the Custodian. He has placed reliance on a case reported in 1983 CLC 1127. He has contended that the appellants by refusing to pay the rent made themselves liable to ejectment and he has made reference to the cases reported in 1978 SCMR 14 ; and PLD 1974 Lah. 489 He has lastly contended that concurrent findings of the Courts below are not to be dis­ turbed unless they are found to be perverse. In this respect, he has relied upon the cases reported in PLD 1978 Kar. 188 ; PLD !979 Kar. 167 and 1979 SCMR 422, The respondent was transferred the rented premises under PTO and PTD. He gave notices under section 30 of the Act to the appellants of his title over the property and his claim for the payment of rent. Both th® courts below have concurrently held that the notices had been served on the appellants. Admittedly, no rent was paid to the respondent. He Sled rent cases for ejectment of the appellants after expiry of the statutory period and cases have been decreed by the learned Controller and his decision has been upheld by the First Appellate Court. Of-course, the appellants did agitate before the Settlement Authorities that they were entitled to the transfer of the property and challenged transfer thereof to the respondent but they could net succeed. But mere agitating of the transfer of property before the Settlement Authorities did not absolve the appellants of the liability of paying rent to the respondent who enjoyed the title of the owner shop under PTO and PTD. It was, therefore, a clear case of wilful default in payment of rent. In the cases reiied upon by the learned counse! for the appellants viz. 1983 SCMR 1064 and 1985 CLC 526 & 2058. The question of title of the landlord was under clouds and it was observed that, in such a case, the question of title has to be deter­ mined first before seeking ejectment of the tenement. But, m the instant case, the resp< ndeat had derived title under PTO and PTD which stood intact during the course of proceedings and no such question of cloud over title was involved. As regards the cases relied upon in respect of wilful default and discretion of the Controller, they were not the cases of wilful [default like ths instant case. In this case, there was not wilful default but 'it was a case of refusal to pay the rent and the Controller could not exercise 'the discretion jo a manner other than that adopted by him in making order f ejectment of the appellants. Such view stands highlighted by the Supreme Court of Pakistan in a case of AmanuUah Khan v. Chottay Khan (1978 SCMR 14). For the reasons recorded above, there is no merit in these appeals and they are dismissed with costs. The learned counsel for the appellant requests that the appellants may be given reasonable time for vacating the premises. They are granted two mouths time for vacating the premises. (SH8.) Appeals dismissed.

PLJ 1987 Karachi 43 PLJ 1987 Karachi 43 [Snkkur Bench] Present: ahmed ally U. qurbshi, J MUHAMMAD SALEEM-Appellant versus ABDUL HABIB—Respondent FRA No. 39 ofl!985, dismissed on 18-9-1986 Siod Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 16 & 21—Deposit of rent—Order of—Non-compliance ot— Defence—Striking off—Wrong interpretation of order-—PSea of— Conuiel for tenant not misinforming him nor tenant seeking his advice with regard to order of Rent controller directing deposit of arrears and current rent—Held : Plea that tenant misunderstood order of Rent Controller not to be considered as valid ground for non-compliance—Held farther : Wrong interpretation of order by tenant not saving him from consequences of default, impugned order (of striking off defence) to be unexceptionable. [P. 45 & 46]A 1976 SCMR 229 : 1982 CLC 50 and 1980 SCMR 779 ref- 1973 SCMR 112 : PLD 1969 Kar. 176 distinguished, Mr, Nazeer Ahmad Awan, Advocate for Appellant. Mr. Abdul Naeem, Advocate for Respondent. Date of hearing : 17-9-1986. JUDOMBNT This appeal is against the order of learned Senior Civil Judg and Reot Controller Sukkur passed on 27-3-1985 in Rent Application No. 121/84 whereby he struck off defence of the appeliant/tenant under section 16(2) of the Sind Rented Premises Ordinance, 197V and ordered his eviction. I have heard Mr. Nazir Ahmed Awan for the appellant and Mr. Abdul Naeem for the respondent and also perused the record and proceedings of the case. The facts leading to this appeal briefly are that the respondent/landlord filed eviction application against the appellant, one of the grounds being default in payment of rent. The learned Rent Controller on the applica­tion of the respondent under section 16(1) of the Ordinance, passed an order on 22-1-1985 directing the opponent to deposit the arrears oJ rent amounting to Rs 4.2CO/- on or before 21-2-1985 and further directed the appellant to deposit monthly rent on or before 10th of succeeding month. In the order he specifically mentioned that rent of Jaunary, 1985 was not included in the arrears. The arrears amounting to Rs. 4,200;- were admit­ tedly deposited by the appellant on 21-2-1985 but the rent for the month of Jaunary, 198^ was not deposited by him on or oefore 10th of Febuary, 1985 but he also deposited it alongwith arrears on 21-2-1985. The respondent moved an application under section 16'2) of the Ordinance for striking off the defence. The learned Rent Controller after hearing the parties passed the impugned order. In this appeal two grounds are mainly rafted. The first ground is, that the appellant was not given opportunity to file objections as he could not file any counter affidavit because he was out of station. Secondly it is submitted, that the appellant did not deposit rent of January on or before 10th February because of mis-understanding that he had to deposited it alongwith the arrears on 21-2-1985 which he did. It is admitted fact, that no objections or counter affidavit was filed by the appellant against the application under section 16 (2) of the Ordinance. The diary of the case before the trial court shows, that notice of the application under section 16 (2) was supplied to the counsel for appellant on 11-3-1985, The matter was fixed on 17-3-1985 when it was adjourned at the request of the learned counsel for the appellant on the ground that he was busy in Sessions Court. The matter was adjourned to 21-3-1985, when it was again adjourned to 26-3-1985 as the learned Rent Controller was on casual ieave. On 26 3-1985 the learned counsel for the appellant did not move any application for adjournment on the ground, that he has not been able to contact his client, but he argued the applica­ tion and on 27-3-1985 the impugned order was passed. Thus from the diary it is clear, that the matter was adjourned at least for three hearings, but the objections or counter affidavit was not filed by the appellant nor any application was moved by his learned counsel for adjournment on the ground that he has not been able to contact the appellant. Even in this appeal no affidavit has been filed by the learned counsel to the effect, that he could not contact his client or that he requested the Court for adjourn­ment on this ground. Therefore, the ground taken in this appeal that the appellant was not given proper opportunity to contest the application by filing counter affidavit or objfctions has got no force. Before the Rent Controller as well as before this Court it is contended, that the appellant had misunderstood the order of the court. Apart from the fact that the appellant did not file any such counter affidavit before the learned Rent Controller, from the order of the learned Rent Controller it appears, that the order of deposit of rent dated 22-1-1985 was passed in presence of both the parties and their counsel. In this order, a» already pointed it was further specifically clarfiied, that the rent of January, 1985 was not included in the arrears. The impugned order further shows that the order of learned Rent Controller dated 22-1-1985 was noted by the counsel for the appellant. The learned counsel for the appellant has relied on 1973 SCMR 112. The facts of that case are distinguishable from the facts of present case. In the reported case, the tenant's counsel had wrongly interpreted the order and had told his client that arrears as well as current rejjt due were to be deposited by 15-7-3966, when the tenant had deposited the current rent as well as arrears. Their lordships held "Default in depositing current monthly rent by tenant, in circumstances, was due to misinterpretation of order by counsel and, therefore, bonafide and not wilful.". In the reported case the counsel had filed such affidavit suppor­ ting the above plea of the tenant. As already pointed in the instant case neither there is such affidavit by the appellant nor by his counsel. Reliance is also placed on FLD 1969 Karachi 176, but again the facts of the case are absolutely different from the instant case. In the reported case the rent was tendered by the cheque deposited with the Rent Controller aot before the date fixed by the Rent Controller but on the date. It was htld that it was bona fide mistake which can not be made ground to hold tenant to be in default, In the case of Javaid Iqbal v. Rana Muzajfar Khan (1976 SCMR 229) the plea of the tenant that the default in deposit of rent had occurred because he was not duly apprised of the order regarding deposit of future rent by the counsel was not accepted by their lordships who held "Petitioner being negligent in prosecution of his defence by failing to keep himself fully informed, of the order passed against him, default in payment of rent was not unavoidable or beyond his control and hence order strikiag off defence was unexceptional." It was further held, that "before an order under section 13(6) of West Pakistan Urban Rent Restriction Ordinance was passed the opportunity to adduce evidence not necessarily to be always given to the tenant. Requirement was to allow fair opportunity to defaulting tenant to explain default on his part, As already pointed in the instant case the appellant was given opportunity to explain his default and therefore, it can not be held that he was not given sufficient opportunity to file objections or counter affidavit. The facts of the case reported in 1982 CLC 850 are absolutely similar to the facts of instant case. In the reported case the learned Rent Controller ordered the tenant to deposit arrears of rent from March, 1979 till February, 1980 amounting to Rs. 2,100/-by 31-5-1980 vide his order dated 19-3-1980. He further directed future monthly rent to be deposited before 10th of every calendar month till the final disposal of the case. The tenant, however, deposited the arrears as well as current rent for the month of March also on 24-4-1980. It was pleaded by the tenant, that the advocate did not inform him about the deposit of rent of March separately from arreas. A learned Single Judge of this Court held : "It was for him as opponent and as a litigant to bs aware of the orders of the Court and to comply in the best manner possible. The contention that knowledge of the counsel can not be considered to be knowledge of the appellant with regard to the passing of the tentative rent order is also apparently incorrect. If there is any fault of the counsel or- the client,- it is for them to settle the matter between themselves ; but this type of plea cannot be accepted where third parties are concerned. Even, otherwise for the reasons already stated, it is apparent that the default committed for depositing the current monthly rent after a delay of about 24 days was not due to any unavoidable circumstances but was, if at all, due to carelessness on the part of the appellant." In case of Messrs Crescent Publicity Servicex v. S. M. Younus and others (1930 SCMR 779) it was held that single default was snfficieat to bring ths case within the mischief of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. Thus the plea of the appellant that he misundertood the order of the Rent Controller dated 22-1-1985 can not be considered as a valid ground for non-compliance of the order of learned Rent Controller. He does not allege that his counsel bad misinformed him or that he, even had sought ladvice of the learned counsel with regard to the order of Rent Controller [directing the deposit of arrears and current rent. His own wrong interpre­ tation of order would, therefore, not save him from the consequences of [default. The impugned order passed by learned Rent Controller therefore, 'is unexceptionable and calls for no interference. The appeal was dis­ missed by short order dated 17-9-1986 and the appellant was directed to hand over possession after expiry of three months of this order. Above are the reasons in support of the said order. (TQM) Appeal dismissed.

PLJ 1987 Karachi 46 PLJ 1987 Karachi 46 [Snkhur Bench] Present: ahmed ali U. quleshi, J MUHAMMAD AHMED—Appellant versus SHAFIQUE AHMBD-Respondent FRA No. 100 of 1984, dismissed on 22-9-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

-S. 16—Deposit of rent—Order of—Non-compliance of—Effect of --Witnesses of landlord though cross-examined, those of tenant still remaining to be cross-examined—Non-compliance of order of Rent Controller, however, proved at stage—Held : Rent Controller to have no option but to strike off defence, [P. 49]B 1982 SCMR 985'& PLJ 1983 SC 63 ref. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— —~S. 16—Rent—Deposit of—Order of—Non-compliance of—Effect of—Waiver—Plea of—Default committed by tenant not coming to knowledge of landlord for about 11 months because of his having not been previously allowed to withdraw rent—Held : There being no waiver without knowledge of right, snch plea (of waiver on part of landlord) rightly rejected by Rent Controller. [P. 48J/4 1982 CLC 772 ref, PLJ 1984 Kar. 172 distingushed. Mr. Manzar Alam, Advocate for Appellant. Mr. Kadir Bux Memon, Advocate for Respondent. Date of hearing : 25-8-1986. judgment This FRA is directed against the order of learned Senior Civil Judge and Rent Controller Sukkur dated 30-101984 in rent application No. 40/83 whereby he struck off the defence of the appellant and ordered bis eviction. The facts leading to this appeal are that the respondent is the owner of house bearing No. A-1408/9 situated in Kiri Quarters, Old Sukkur which he had purchased from original transferee Gharibullah by a registered sale deed dated 20-4-1972. After the purchase of this property the respondent served notice under section 13A of the Rent Restriction Ordinance, 1959 upon the appellant who was tenant of the said premises. The appellant executed a rent agreement dated 17-4-1975 in favour of the respondent undertaking to pay the rent of tenement in his possession since 20-4-1972 at the rate of Rs. 20/- per month. However, the appellant failed to pay the rent and the respondent filed the rent application under section J5 of the Sind Rented Premises Ordinance, 1979. He moved an application under section 16(1} of the Ordinance, The application was resisted by the appellant on the ground that the premises in question were gifted to him by the respondent and, therefore, he is no more his landlord. This plea was not accepted by the (earned Rent Controffer. The refevant portion of his order is reproduced as under :— "Opponent has filed the objection wherein he has denied the relationship of landlord and tenant on the ground that the pro­perty in application is gifted to him by applicant. This fact is denied by applicant. As an alternate plea it was argued by Mr. Qadir Bux that as a Rent Controller this Court c^n not decide the question whether the property is gifted to opponent or not, and for this purpose the proper forum is the Civil Court and opponent have not filed any suit and has not sought any such declaration. It was argued by Mr. Qadir Bux that the alleged gift is not acted upon and the applicant still continues to be the owner of the property and he is dealing with the property as the owner. Mr Qadir Bux has also produced the photo copy of C S. extract which show that applicant have in 1978 mortaged the property with House Budding Finance Corporation and such entry is also made in the C S. Record. The opponent has executed the rent agreement and in presence of this rent agreement the denial on the part of opponent appears to be vague and uncalled for. It has been held in number of authorities that whenever there is vague denial on the part of tenant the Rent Controller can pass the tentative rent order."' The learned Rent Controller directed the appellant to deposit arrears of rent upto 31 8-1983 amounting to Rs. 840/- on or before 30-9-1983 and further directed the appellant to deposit monthly rent at the rate of Rs. 20/-on or before 10th of succeeding month. On 18-9-1984 the respon­ dent filed an application under section 16 (2) of the Ordinance praying for striking off the defence of the appellant on the ground that he had failed to deposit the rent of September 1983 on or before 10th October, 1983 as directed by the learned Rent Controller. In the objections filed by the appellant, he did not deny the factum of default but only raised the plea that as the default was for the month of September, 1983 and the present application was filed on 18-9-1984 the respondent by his conduct has waived the default. This plea was not accepted by learned Rent Controller who, relying on 1982 CLC 772, held that there was no waiver. He accor­ dingly passed the impugned order. I have heard the learned counsel for the parties and also perused the R & P, of the trial court. It has been argued by the learned counsel for the appellant that aa the appellant had denied the relationship of landlord and tenant between the parties therefore, learned 'Rent Controller should have first decided that issue before passing any order under section 16 (1) of the Ordinance. I have already reproduced relevant portion of order of the learned Rent Controller under section 16 (i). It shows that learned Rent Controller has dealt with this objection raised by the appellant and in view of the admitted facts and circumstances of this case, this view does not appear to be illegal or exceptionable. As a matter of fact this objection has not been specifically raised in this appeal also. There appears to be no force in this objection. Therefore, we proceed to examine the objection raised by the appellant before the trial court as well as before this Court that by filing the application after one year the respondent would be deemed to Lave waived default for the month of September, 1983. It may be pertinent to reproduce the observations made by learned Single Judge of this Court in case reported in 1982 CLC 772 which has been relied upon by the learned Rent Controller :— "Without knowledge of the right there would not be any waiver. When a tenant deposits monthly rent and no notice is issued to the landlord either by him or by the court. No duty is cast under the law on the landlord to inquire every month whether the tenant has duly deposited the rent or not, therefore, whenever the landlord acquires knowledge of default he can during the pendency of the proceedings make necessary application, for no time for making such application under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance 1959 ha» been prescribed. Knowledge of the right or claim or privilege and it is intentional relinquishment or singuanon to establish a plea of waiver." It may be pointed that in support of application under section 16 (2) of the Ordinance the respondent filed an affidavit stating therein that he did not know of the default committed by the appellant before 4-9-1984 because he was not allowed to withdraw the rent. He has stated that he came to know of the default only on 4-2-1984 when he moved this applica­tion on 18-9-1984. No counter affidavit was filed by the appellant to show that the respondent had knowledge of default earlier than the date mentioned by him. As a matter of fact no counter affidavit has been filed in support of objections. In his objections he did not deny the default but only raised the objection that the respondent would be deemed to have waived his right by moving application after 12 months. The learned counsel for the appellant has relied on PLJ 1984 Karachi 172 where a learned Single Judge of this Court has held : "Land lady having slept over default for two years tight to have defence of tenant struck off will be construed to have been waived by her." In the reported case apart from the fact that there was delay for two years and the default even otherwise did not appear to be wilful, there was no evidence to show that the landlady did not have knowledge of the default during the two years before moving the application. Her conduct was therefore, rightly construed to have amounted to waiver. In the instant case the facts are similar to that of the case reported in 1982 CLC 772 and I am in respectful agreement with the view of my learned brother in the said case that without the knowledge of the right there could not be any waiver. I am, therefore, of the view that the learned Rent Controller has rightly rejected the plea of the appellant that there was no waiver of the right on the part of the landlord. It is further urged that the case was ripe and the learned Rent Control­ler instead of striking off the defence should have disposed of the case on merits. From the record it appears that the witnesses of the respondent had been cross-examined but the witnesses of the appellant and the appellant still remain to be cross-examined. However, in view of the fact that default was proved the learned Rent Controller had no option but to strike off the defence. Reliance is placed on the case of M. Nazir v, S. Shaukat Ali ( .1982 SCMR 985) wherein it was held that Rent Controller was not empowered to condone delay in deposit of the rent. In the case of {st. Akhtar Jehan Begum v. Muhammad Azam Khan (PL] 1983 SC 63) it was held "consequence of non-compliance of order under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was summary disposal of case without taking further proceedings ipso facto on ths basis of such non-compliance by striking off the defence and passing order of eviction". In view of the facts of this case as discussed above and the law iaid down in this respect I find no merit in this appeal which is accordingly dismissed- The appellant is, however, given three months tims to vacate ihe premises. (M1Q) Appeal dismissed,

PLJ 1987 Karachi 49 [DB] PLJ 1987 Karachi 49 [DB] [Sukkur Bcnchj Present : saef.duzzaman siddique & abdul razzak A, thahim, JJ RASHBED AHMED and 64 Others-Petitioners versus COMMISSIONER, SUKKUR and Others—Respondents Const. Pet. No. D-112 of 198.V dismissed on 6-2-1986 i) Constitution of Pakistan. 1973 —

Art. 199 —Writ jurisdiction—Exercise of—Facts —Question of— Relevancy of—Held : High Court in exercise of constitutional juris­ diction not to be required to consider case on facts. [P. 52 JC 1986 SCMR 143 & PLD 1986 Kar. 28 ref. (ii) Land Acquisition Act, 1894 (I of 1894) —

S. 4—Acquisition—Public purpose of— Land in question being acquired for for estalishment of Cantonment — Held : Security of country being more important than interests of individuals, acquisi­ tion of land to be in national interest. [P. 52\A (iii) Land Acquisition Act, 1894 (I of 1894)—

S. 4 read with Constitution of Pakistan, 1973 —Art. 199—Acquisi­ tion proceedings-Legality of—Challenge to —No mala fide on part of authorities proved for acquiring land in question. Vested right over land intended to be acquired also not established by petitioners (except two)—Land, on other hand, being acquired for purpose of establishment of Cantonment (of Pano-akil, Sukkur) — Held : There being do legal defect in proceedings, petition challenging same to merit dismissal, [Pp. 53 & 5b}D & 6 (vi« Land Acquisition Act, 1894 (I of 1894)— - — S 17 — Urgency — Special powers in case of — Exercise of — Addi­ tional Commissioner intending to acquire land under emergency as contemplated under S. 17 (1) of Act — Held : Such Commir-^So ier aot to be legally obliged or bound to assign any seasons f«:r suds directions. [P. 5^]F n Petition briefly is ; (/) That land shown in the Notifications was anccsferal prepay of petitioners, and was taken into forest area as Reserve J-'orest ;& trw j'ear 1984/1985 but their rights were kept alsve such as right of grazing, ngrr, oi path, water coarse and they remained ia possession, Saras ot die peti­ tioners have claimed their Kabuli right. (ii) That "Army Welfare Trust Rawalpindi" an organisation of Retired Array Officers was granted land and they were interfering with possession of petitioners Nos. I to 13 to which they filed civil suit and stay was granted therefore with mala fide intention they have arraaged Acquisi­ tion of thcsr Sand. (i:i) Thai petitioner Sled objections before the Deputy Comtnissiomer within time and they were not given any hearing. The Notifications are sought to be declared mala fide illegal and

-::tra \ires of the powers on the following reasons t/) That the Army Welfare Trust Rawalpindi, being an organization of Retired Array Officers, yields considerable influence with the Martial Law Administrator in Pakistan and the Provincial Government of Siod which is headed by a Lt. General of the Army as Governor and Martia! Law Adrainistrator of the Province. Having failed ntheir effort io gel possession of the land from the petitioners mentioned in para I Above and bring the litigation between them and the petitioners to & successful conclusion in their favour, the Army Welfare Trust has f.rud to wreck vengeance an the petitioners by persuading the Respondents to acquire the Sand of petitioners Nos. 1 to 23 which is subject matter of existing litigation between the parties and also to acquire the land of other peti­ tioners who are relations'friends/party members of the Hari Commutes like the petitioners The acquisition of the land ia petition by tbe respon­dents is therefore mala fide on the part of the respondents. (ii) That the land of ths petitioners, which is cultivated by them since a long time, has been a:quired in direct violation of the instructions of Board of Revenue Hyderabad dated 21-11-192 and is consequently illegal and mala fide. (Hi) That establishment of Cantonment at Paoo-gkil is not for public purpose (as contemplated by Section 4 of the Land Acquisition Act) as per impugned notifications of the respondents which are therefore illegal and ultra vires of the powers of the respondents. (/v) That the directions of Commissioner Sukkur Division Sukkur that the provisions of Sections 5 and 5A of the Land Acquisition Act shall not be applicable in the case of the land in petition and that the Land Acquisition Officer Rohri should take action accordingly, are also absolu­ tely illegal and against the mandatory provisions of the Land Acquisition Act. It is significant that the Commissioner has not specified reasons why provisions of Sections 5 and 5A of the said Act shall not be applicable m the case of the land included in the schedule given in the notification. 4. Mr. Shaikh Ayaz, learned counsel for the petitioners contended that objections filed by the petitioners are still pending and have not been finally disposed of therefore second Notification under Section 1? (4; of the Act is not competent. O.i this point hi has referred to a case reported "in 1983 CLC 2079 and submitted that matter cannot proceed further till disposal of objections. It is also contended that Additional Commissioner has not jnecified the reasons as to why provisions of Section 5 and 5A of the Art > -iv- been dispensed with and that there is no urgency for estab­ lish- ;m of Cantonment. His contention is that land of petitioners is being acquired with mala fide. 5. We have aiso heard Mr. Sharafuddin Ada and Mr. Zawar Hussain Jaferi, AAG, appearing on behalf of the Respondents. It is contended by learned counsel that Commissioner is competent to take action under S. 17 (4) of the Act in case of emergency and it is not necessary for him to give reasons on that behalf. It is contended that establishment of Canton­ ment is in National interest and comes within the meaning of public purpose. As regards objections their contention is that objections are time-barred. They have referred the cases reported in PLD 1968 Dacca 36, PLD 1968 (WP) Lahore-250, PLJ 1984 Quetta 24, 1983 CLC 1478 and AIR 1963 Mysore 318. 6. Now we proceed to deal with the contentions raised by the learned counsel. The admitted position is that Deputy Commissioner invited objections as stated in the Notification dated 2nd April, 1985. It has been admitted by the Commissioner in his comments that same of the owners of Kaubli Sand filed objections but in the meanwhile land was declared to be acquired under urgency clause of the Act and such Notification under sec­ tions 6 and 17 of the Act was issued, by the Additional Commissioner in respect of 598-23 Acres of Kaubli land including area 11 villages and it was mentioned in the Notification that provision of Sections 5 and 5A of the Act will not apply, as such objections were not considered and that meeting with Khatedars of Kaubli land and owners of the houses acquired under the Scheme was held on 3-8-1985. On this point Mir Sbafqat AH, Assistant Commissioner and Land Acquisition Officer, has filed counter affidavit and in para 7 he stated that petitioner No. 8 filed objections on on 5-5-1985 which are time-barred and cannot be termed as legal objections therefore petitioner cannot be deemed as legal objection uader Section 5A of the Act and other persons who filed objections are not petitioners. The petitioners have not filed any Rejoinder in Rebuttal. It is now to be con­ sidered if authorities without disposing of objections are debarred from taking action under Section 17 i4) of Act in case of emergency. The reliance has been placed on a case reported in 1983 CLC 2079. The facts of that case are that dispute concerning that property went upto Supreme Court and matter was finally decided by its judgment reported in PLD 1971 SC 376. The land of Mujawars of Dargah was subject matter and they were to be provided with alternate accommodation and it was observed as under :— "We are of the view that it will not be fair on the part of the department to proceed under Section 17 till the objections are finally disposed of." "We are sure that she Controller ccnctrned would take notice of this Section i<nd would act in accordance of with law." The facts of the case in- hand are different. In this case the land in question is being acquired for the national interest for Establishment of Cantonment and it is not disputed that Par.o-akil is adjacent to Indian Border In our view the security of country is more important than than interests of individual. On the other hand except one or two petitioners they are not the owners of the land nor it has been shown that they are enjoying some rights. However if it is proved, they, can claim compensation which Government will definitely consider. As it appears in the circumstances that Government is already considering as meeting of Khatedars and owners of houses was held and process in continuing, In reported case the Honourable Judges have expressed their views looking to the circumstances of that case. We are of the view that in case of emer­ gency the Commissiofter cart pass order under S. 17 (4) of the Act without disposing of objection as there is no such provision in the Act which pre­vents the competent authority from passing such orders. The proceedings under S. 17(1) of the Act are ndependant and not subject to any restrictions or conditions. We are satisfied that the Additional Commissioner in this caie has rightly issued Notification which is not without lawful authority. He has not violated any provision of law. D 7. The next contention of the petitioners is that their land hai been acquired with malafide because this land was originally earmarked for Army Welfare Trust and was to be allotted to Retired Army Officers to which petitioners filed civil suit and got stay. We are not impressed by this argument on the ground that vast area including disputed land is being acquired for the purpoie of Establishment of Cantonment and acquisition is not for any individual. The Advocates appearing for the Respondents have made statement at the bar that this land will, in no case be given to Welfare Trust or any Retired Army Officer, We can hardly believe that due to civil suit or dispute the authorities would take a point of prestige and have choosen land of petitioners for Establishment of Cantonment. The Authorities concerned while considering Cantonment are suppose to con­ sider Project from various angies. On the other hand Commissioner Sukkur Division in his comments has not admitted any right of petitioners over the land in dispute but admitted that petitioner Sajjan and others filed civil suit against Government which was dismissed. The Civil suit of 23 petitioners is still pending but from petitioners side no documentary proof has been furnished to show that iand belongs to them or they are entitled to have benefits as stated in the petition. Affidavit ib Re-joinder was filed by the petitioner after the comments received in which it is stated that civil suit of Sajjan was dismissed by the Civil judge Ghotki but in appeal hit order was set-aside. On perusal of order dated 30-5-1985 of learned Had Additional District Judge, Sukkur, it is clear that case was remanded. The civil suits are pending for adjudication and evidence is to be recorded.. We are of the view that this court in exercise of constitutional jurisdiction! is not required to consider the case on facts and it is almost a settled lawJr We however refer to the latest cases of Mohammad Mehfooz v. Collector Customs (Provincial} Custom House, Karachi & 2 others (PLD 1986 Karachi 28, (relevant 43) and Muhammad Hanif v. Habibullah Khan and others reported in 1986 SCMR !43. Tbe upshot of the above discussion is that no malafide on the part of authorities has been proved for acquiring this land. Moreover the petitioners except two have not been able to establish their vested right over the land which is intended to be acquired. 8. The other contention of the petitioner is that there is no urgency for establishment of Cantonment We hardly accept this kind of argument| H as Cantonments are established on various consideration and it is for the Authorities concerned to 'decide this issue and it has been held from |tim? to time that such decision is act subject to Judicial review of this kourt i~ exercise of Constitutional jurisdiction, ia case of Jan Meek v. Deputy Secresary Government of East Pakistan reported in PLD :965 Dacca 26. it has been observed at page 37-C as under :—• "C" Sofar as the second branch of this argument is concerned, namely, that as the Provincial Government did not specifically stale in the notification that the lands were acquired urgently, tb: notification is bad, we are of the view that the absence of any sue. statement in the notification does aot invalidate it. The very fact that the Provincial Government thought that the provisions of section 5A should not apply to the lands in . question clearly points to the fact that it had formed an opinion that the lands were required urgently We may, ia this coanection, observe that the decision of the Provincial Government in this, regard is not subject to review by this Court. Whether an urgency exists or not is matter solely for the determination of the Government and it is not subject to review by any Court." Incase of Kashappa Shivappa v. Chief Secretary to Govem;nent of Mysore and others reported ia AIR 3963 Mysore 3SS, observation at para 6 and 16 at page 320 are as under :— "(6) The first question therefore would be whether it can be said that the notification issued bv Government on December, 13, i960. contains no indication of the formation of the opinion in the mind of the Government thai the case was one of urgency. When the notification is looked into for that purpose it is found that what notification says is that the Government made a direction under sub-section (4) of Section 17 since the acquisition of the lands as "urgently necessary". The words used in fourth paragraph of the notification are, '-as the acquisition of the said lands are urgent­ ly necessary, the provisions of section 5A of the said Act shall not apply in respect of the said lands. "Although it is stated in this paragraph of the notification by the Government that the acquisi­ tion of the Sands was urgently necessary, can it be contended that statement was made by the Government without the application of their mind to the question whether the case was or not one of urgency. 1 found great difficulty in accepting the argument advanced on behalf of the petitioner that notwithstanding the statement con­ tained in this paragraph of the notification to the effect that the acquisition was urgeatly necessary, we should, nevertheless come to the conclusion that no opinion was formed in the mind of the Government when they issued this notification as to the urgency or otherwise of the case within the meaning of that expression occurring in Section 17 (1) of the Act. If any authority function­ ing under a statute is authorised to exercise power on its being satisfied that the case is one of urgency and that authority in justi­ fication of the exercise of that power says that it exercised that power because something to be done under that statute we urgen­ tly necessary, i fail to understand what more is necessary, to be established in proof of the formation of the opinion in the mind or tbat functionary that • be case was one of urgency, ft is thus cjssr that had not the Government satisfied themselves that rhe case ---as one of urgency, they would not have stated that what had ' be ilooe was urgently necessary." And obsfTVsiiou ia para 16 are ; "(leo So tested, I do not 2nd it possible to say that in this'case we es.u substitute our ow<5 ocnoson for the opinion of th,; Govern. meoi, which they char'fy formed that the case was undoubtedly one of urg;s--y. The challenge mad? to the direction under -S«ctior ' ? •"«!) '.•;;« the ground .that the case was not one of urgency or g;: -Is-J around tliat it was not believed to be one of 'urgency :iiU3t. ;b?i'xfore, be negative." case o; A:--G'd Ghafaor Jnd others v. Province of Baiuciiistm rspor-- ,-d :n PLJ i?^ {'„>»<•, Ha 24, (relevant 39) it has bees held as unde 'The quiry provided under section 40 of she Act i.s ef special nature limited fo a particular object. Section 40 co£>?'.:tu-rs the Guvi/isiKcot as die custodian of public interest, tie)!o Judgss of the iK'o facts meisiooad Hifrcirs rssmely whether laa lasd Js rsquired for 'iiit' vousinictios of some work acd secondly wbetbtt the -3/ork i$ 'JKei 'a -rov,: ojjvii; jo fhe public. The only othsr perio>i con­ cerns h: ihe niarter is roc company wfaich make the appJiemiofi for iands ^"d so long as ih?y are satisfisd i;pots the two inatlers 'vhkh a.''e made condi" ; ons !:-?cedent to their according ilicir cosssnr l:o acquisitiori of ths jand : ao Court •? compeiea? to question the v-a.iidity of thf p?oc:;?d;»g5 under Section 40 of the Act asd if the Government ; .- : ith u shall requirs the company to eawr into .?•; agrecm"Bt "i^ the G-;vernmeot provided to the sailsf'acf iof c'the Gov^r^n^trji for rhe ssvsra? n>a!fers hish are pc? fcrtb .r, ihat section, 1 ' Now we coma to legai plea taken by the petitioners thai Additional . r ni5iioner has not specified reasons for non-appiicabiiity of sections 5 ,-nu "--'i of the Ace in acquisition proceedings The Additional ComiRisilo-jer, Sukkur i>i bis notiScsSion of 6th June !9S5 iu exercise of its powers ueckf 3, I? (4) of the Act directed that provisions of Section 5 and 5A of the Act shzll not he app!icab!e. Sub-section (4) of Section 17 (applicable to the thes West Pakistan) is as follows : — {4) In cases where ia the opinion of the Commissioner, the pro­visions of subsection (1) or subsection (2) are applicable, the Com­ missioner rosy direct that the provisions of sections 5 sad 5A shall not apply, and, if he does so direct, a declaration may ire made under section 6 in respect of the land at any Slrpe after "the p«b!sca~ tion of the notification under sub-seetins (J) of section 4." The Additional Commissioner, Sukkur is not legally obliged or boasdi to assign any reasons for such directions but the reasons ure obvious as hej_ intends to acquire land under Emergency as contemplated under Section) 17 (!) of the Act. On this we refer to a cate of Abdul Rahim and 4 others v. Protince of Sind & 3 others reported ia !9»3 CLC page 147S where it hi bees held that Functionaries in suitable cases can provide for exemptions from compliance with provisions of section 5 and 5A of the Act, Ths relevant observations at page '480 B & C are as follows :—• "The next contention of ?he learned Advowts is by reference to sectioo 5 and f4 of fhe Laaa Ac{tut«Hio.a Act. It that the provisions are of a mandatory nature, and non-compliance has vitiated all action. It seems the learned Advocate has over­looked the provisions of subsection (4) of section 17 of the said Act. It would he useful to reproduce the said sab-section. It reads as follows : — "In the case of any laud to which, in the opinion of the Provincial Government, the provisions of sub-section (1) or subsection (2) are applicable, the Provincial Government may direct that the pro­ visions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, subsection (I)," "It would thus appear that, in suitable cases, the relevant func­ tionaries can provide for exemptions with the provisions of sec­ tion 5 and 5A of the Act. Such a notification has indeed been issued Mr, Muhammad Jamu 1 has, however, attacked such noti­ fication or ground that there was no urgency, and therefore the notification, dispensing with following the requirement of sections 5 and 5A of the Land Acquisition Act, was malafide. He has relied on case of Thintmalalah v. State of My sort and other (1) a case from Indian jurisdiction. In the above case observation have been made to the effect the urgency, requiring exercise of power under section 17 (4) of the Land Acquisition Act, has to be established as any other fact. The learned Judges have not stated that evi­ dence has to be led in order to establish urgency, although this judgment may be construed to be pronouncing an opinion the existence of urgency was a justiciable question. Even if this test is applied to the present case, there can be no doubt whatsoever tfaaf making of a road, leading to a shrine, which is frequented by thousands of persons, does indeed call for urgent action for con­ struction of the road. On the other hand, the notification, invok­ ing the powers under section 17 (4) of the Land Acquisition Act, on the face of it, states that the case was one of emergency. We see no force in this contention." For the foregoing reasons, we find no legal defect in the proceedings „ under which land for the purpose of establishment of Cantonment at Pano-akil has been acquired as such we ismiss the petition with the result stay already granted stand vacated. In the circumslances there will be no order as to costs. (TQM) Petition dismissed.

PLJ 1987 Karachi 56 PLJ 1987 Karachi 56 [Sukkur Bench] Present : saiduzzaman siddiqut, J ABDUL KADIR and Others—Petitioners versus ABDUL KARIM and Others-Respondents Civil Revision No. 35 of 1984, heard on 2-10-1985 (i) Civil Procedure Code, 1908 (V of 1908) –

S, 115—High Court — Rcvisional jurisdiction of — Exercise of — Evidence rightly ignored by trial court mainly relied upon by first ap­ pellate court for reversing judgment and decree of Civil Judge—Ad­ ditional District Judge making somewhat sentimental approach to case in deciding appeal on plea not raised in pleadings or at time of fram­ ing of issues—Held : Reversal of judgment of trial court by first appellate court to be wholly without any justification. [Pp. 61 & 62]3&C (ii) Civil Procedure Code, 1908 (V of 1908)— S. 115—High Court—Revisional jurisdiction of—Interference in— Nfither any plea raised by plaintiff in his suit nor any issue struck by trial court (regarding seller being blind, infirm and aged person becoming victim of undue influence of his son)—Held : Conclusion of first appellate court on such plea not to be sustainable. [P. 63]£> (iii) Citil Procedure Code, 1908 (V of 1908)—

O. XLII, R. 1 & O. XLI, Rr. 23 & 25 — Case — Remand of — Effect of—Judgment and decree of first appellate court set aside and case remanded by High Courl to such court for fresh decision on appeal after allowing opportunity to parties to lead evidence on additional issues—Finding on (other) issues, however, not recorded by High Court — Held : Petitioners not to be precluded from agitating against findings (subsequently) given by first appellate court on issues (No. 1, 2, 3, 5 & 6). [P. 60]^ Mr. Abdul Fattah Malik, Advocate for,Petitioner. Respondent No. 1 in person. Dites of hearing : 1 & 2-10-1986. judgment This civil revision application is filed by the applicants/defendants against the judgment and decree dated 30th November, 1983 passed by the learned III Additional District Judge, Sukkur in Civil Appeal No. 26/175. Respondent No. 1 instituted civil suit No. 3/1972 against deceased Abdul Sattar (predecessor-in-interest of the present petitioners and Mst. Habiban (respondent No. 2) In .the above suit respondent No. 1 claimed relief of declaration, cancellation of two registered sale deeds dated 4-1-1966 and 17-4-1965, permanent injunction, possession and mesne profits i n respect of agricultural lands measuring about 13-20 acres situated in deh Bullo, tapo Nandapur, Taluka Panoakil comprising survey numbers 20, 22 (half) 125, 126, 191, 209, 210 and 211 and measuring about 23-7 acres situated in deh Tarir, taluka Panoalil comprising survey numbers 37/1, 43/2-17, 43/2-1. 92/2, 96/29, 95/1-31, 190/1, 220/3, 319/1-31, 235/3-26, 233/1-14, 231/1-2 and 232/1-11 It was alleged in the suit by respondent No. 1, that his father Nek Mohammad Bulio died on 22-1-1966 leaving behind respondent No. 1, the deceased Abdul Sattar and Mst. Habiban (respondent No. 2) as the only legal heirs who inherited all the properties of deceased Nek Mohammad Bullo including the agricultural lands mentioned above. It was alleged that the deceased Abaul Sattar by practising fraud and misrepresentation managed to get two sale deeds dated 4-1.1966 and 17-4-1965 registered in respect of the above lands before the District Registrar Sukkur and Sub-Registrar, Chotki respectively. The particulars of fraud and misrepresentation alleged by respondent No, 1 against deceased Abdul Sattar were mentioned in paragraph 3 (a) to 3 (j) of the plaint which reads as follows :— "(a) That the above property being the ancestral one, could not be sold even by Nek Muhammad father of the parties. The defendant by trick has got the sale deeds registered by producing bogus persons who personated the executant Nek Mohammad to easily defeat the genuine right of the plaintiff. " (b) That the defendant managed to get the bogus executant posting for Nek Mohammad identified before the Registration authorities by one Khawand Bux Sonol Haji Patch Muhammad resident of Kot Sber Muhammad by obliging him (Khawand Bux) with the benefits of our joint ancestral lands in deh Sirai, tapa Nandapur which entire land is at present being enjoyed and benefited by said Khawand Bax and Mohammad Hassan Khan Member and Chairman, respectively union council Bhelar, who are also cousins amongst each other. (c) That abovenamed Muhammad Hassan Khan is Sardar of the community of Bullas and there is an old enmity of the plaintiff with him due to which he also prepared his cousin Khawand Bax and assisted in this fraudulent execution of sale deeds, (d) That the sale deeds are bogus baseless, fictitious without considera­ tion simply to usurp the rights and interests of the plaintiff in the said lands which are joint inherited properties and the plaintiff is also entitled to enjoy his due share in it. (f) That the defendant disclosed about the said sale deeds about one week after the demise of Nek Mohammad father of the parties herein and not before which also reveals that there was fraudulent motives in this transaction and behind the said deeds. (g) That plaintiff's mother Mst. Bhan filed a suit of claim of Haq Mahar in respect of S. Nos. 210 and 211 de Bulo tappa Nandapur. Against late Nek Mohammad during his life time in I960 which is still pending decision in the court. It is not understood how these S. No. could be sold out during the pendency of such a court-case by late Nek Mohammad. ll this shows that the sale deeds are quite bogus and deliberately prepared as such by the defendant in order to cause loss to and deprive the plaintiff from his legal aod be hereditary rights in the said lands. (h) That the property in question is also shared by as inherited Sate Nek Muhammad's Af«. Habiban still alive besides those of the parties in this suit As such late Nek Muhammad could not dispose off the same independently. (i) That the deeds in question being fraudulently registered at the instance of the defendant are not void and are in operative and not binding on the plaintiff, who is co-sharer in the lands in question. (j) That the defendant with a dishonest motive in order to cause wrongful loss to the plaintiff and to make wrongful gain has got the sale deeds executed and registered by trick aad by fraud to deprive the plaintiff from his bona fide rights," The suit was resisted by deceased Abdul S#ttar who claimed that the two sale deeds referred to above were voluntarily executed by his father late Nek Mohammad Bullo in his favour against valid consideration. The trial court on the basis of the controversy between the parties framed the following issues in the suit : (1) Whether the defendant deceitfully secretly and tactfully got the two fictitious and fabricated documents (sale deeds) executed ? (2) whether the fictitious sale deeds were suppressed by the defendant in life time of Nek Muhammad and the same are liable to be cancelled ? (3) Whether Nek Mohammad (father of the parties) was competent to dispose of the ancestral property and whether the defendant got the sale deeds registered by producing a bogus person as Nek Mohammad to defeat the genuine claim and right of the plaintiff? (4) Whether the property in suit is inheritable by the third wife (Mat. Habiban) of late Nek Mohammad ? (5) Whether the sale deeds in question are not binding and inope­ rative on plaintiff ? (6) Whether the plaintiff is entitled to mesne profits and if so to what extent ? (7) What should the decree be ? After recording evidence of the parties and hearing them the trial court decided all the issues against respondent No. 1 and dismissed the suit by judgment dated 31-3-1975. Against the judgment and decree of the trial court respondent No. 1 filed First Civil Appeal No. 26/75 which was allowed by the III Additional District Judge, Sukkur, who reversed the judgment of the trial court and decreed the suit of respondent No. I/ plaintiff. The present petitioner who succeeded deceased Abdul Sattar on his demise challenged the judgment and decree of the first appellate court in Civil II Appeal No. 2 of 1979 before this Court. A learned Single Judge of this Court by judgment dated 3-5-1983 set aside the udgment and decree of 1st appellate court and remanded the case back to the first appeallate court for a fresh decision with direction to allow the parties to lead further evidence on the following two issues framed by the learned Judge:— "(1) Whether deceased Abdul Sattar had the means to pay the sale •consideration amounting to Rs. 17,000 ? (2) Whether the consideration shown in the document was adequate consideration ?" After remand of the case of the learned III Additional District Judge recorded further evidence of parties but maintained the earlier judgment and decree passed by his predecessor. The petitioners have now filed this revision application challenging the judgment and decree passed by the III Additional District Judge, Sukkur, after remand of the case. I have heard Mr. Abdul Fattah Malik the learned counsel for the petitioners and respondent No. 1 who appeared in person and filed his written submissions, Respondent No. 2 remained absent throughout. Mr. Abdul Fattah Malik, the learned ;counsel for the petitioners con­ tended that the reversal of the judgment of trial court by the first appellate court is based on complete misreading of evidence and misconception of law. It is further contended by the learned counsel that the reversal of the judgment of trial court by the first appellate court is based on the plsas which were neither raised by respondent No. 1/plaintiff In his suit nor these were covered by the issues framed by the trial court and there was no evi­ dence on record to support the conclusions of learned first appellate court on these plea. With regard to additional issues framed by the 2nd appellate court the learned counsel contended that the evidence lad by respondent No. I/plaintiff after remand of the case before the 1st appellate court wa» not sufficient to prove the same and as such the findings of first appellate court thereon cannot be suitainsd in law. The respondent No. 1 supported the judgment and decree of first appellate court aad farther stated in his written arguments that as a result of remand order of this Court in II Appeal No. 2/1979 the decision of first appellate court on all the issues framed in the suit attained finality aad therefore, the same can not be agitated now by ths petiiionen in this revision application. On additional issues respondent No. 1 contended that the heirs of deceased Abdul Sattar failed to establish that the deceased Abdul Sattar was possessed of raeanj to pay the sale consideration of the land aad they also failed to prove that the consideration allegedly paid by late Abdul Sattar was adequate. After hearing the learned counsel for the petitioners aad respondent No. 1 in person at length and after going through ths written submission of respon­ dent No. 1 I am of the view that the judgment and decree passed by the first appellate court can not be sustained io law. However, before consider­ ing the revision on merits I would like to dispose of first a legal objection raised by respondent No. 1 in his written submissions. It is contended by respondent No. 1 that on account of the judgment of this court in II Appeal No. 2 of 1979, the findings on issues Nos. 1, 2, 3, 5 and 6 by the first appellate court has attained finality and the same can not be agitated again by the petitioners in this revision. I have carefully examined the order of remand passed by the learned Single Judge in II Appeal No. 2 of 1979 and I am unable to hold that as a result of that order the petitioners are precluded from agitating against the finding given by the first appellate court on issues Nos. 1, 2, 3, 5 and 6. No such implications arise from the said order. No doubt the learned Judge did not record his findings on any of the issues in the judgment while remanding the case with direction to allow opportunity to ths parties to lead evidence on the two additional issues framed by the learned Judge but the rsmand order clearly shows that the judgment aad decree passed by the Srst appellate court was set aside and the case was remanded ;o fira appellate court for a fresh decision on ths appeal after allowing opportunity to parties to lead evidence on the additional issues. The following operative part of the remand order is reproduced here for reference :— "It is the case of respondent Mo. 1 that late Abdul Sattar was dis­ missed from the police service long back aad had no means to pay the alleged pries. I would, therefore, set aside the above judg­ment/decree under appeal aad would remand the case to the learn­ ed first appellate court with she direction to provide opportunity to the parties to lead evidence oa the above two points and there-' after to dispose of the appeal within 6 months from the receipt of he copy of judgment of this court. Having dealt with the legal objections raised by respondent No. 1 in his written submissions T now proceed to consider the revision application on merits 1 have already reproduced earlier the grounds on which the cancella­ tion of t.vo registered sale deeds was sought by respondent No. 1 in his suit. The particulars of fraud and misrepresentation on which the cancel­ lation of the two sale deeds were sought are set forth specifically in para­ graphs 3 (a) to 3 (j) of the plaint and the same need not be reproduced here. The case of respondent No. 1 precisely was that someone else appeared before-the Registrar at the time of registration of sale deeds and impersonated as Nek Muhammad, Bullo and the reasons for this inference by respondent No. 1 were (i) that the property being ancestral could not be disposed of by late Nek Muhammad, (ii) that late Nek Muhammad was a literate person and used to sigh all the papers while the sale deeds allegedly bore his thumb impressions ; (hi) that the deceased Abdul Sattar kept secret these sale deeds and disclosed about them only after about one week of the demise of Nek Muhammad, (iv) that the respondent No, 1's mother Mst, Bhain Ben had filed a suit in the year i960 against Nek Muhammad claim­ ing Haq Mahar against survey number 210 and 21! of deh Ballo and as such these two survey numbers could aot in any event be transferred, The burden of proving the above allegations was entirely on the respondent No. 1 who alleged" these facts. In support of his case respondent No. 1 examined himself (Exh, 65), one Mohbat (Exh 69). Mob Mukho (Exh 71), Muhammad Sharif (Exh. 72), Jiai (Exh. 90) and Gaman (Exh 140). After remand of the case Abdul tCanm again examined himself (Exh. 74) on the additional issues besides exammmg Janib (Exh. 75), Haji Mao (Exh. 77). Deceased Abdul Sattar who was defendant No. 1 in the suit examined him­ self in defence as Exh. 205 besides examining Abdul Wahab (Exh, 207). Muhammad Panah (Exh. 208) and Muhammad Iqba! (Exh 216). After remand of the case the applicants further examined K.adir Bus, (Exh. 78) and Muhammad Hashim (Exh. 79). Respondent No. ! in his evidence before the trial court instead of hading evidence on the issues framed in the suit and the-pleas raised by him in support of the relief of cancellation of two sale deeds, introduced two new pleas, namely, that his father was not in his senses for about 24 years before his death and therefore, the two sale deeds which were executed during this period are void and that after the death of Nek Muhammad deceased Abdu! Sattar had admitted during a condolence meeting of his father before "Beradari" that he would give half share of the disputed property to him. None of these two pleas were raised in the suit by respondent No. 1 nor any such issue was struck by the trial Court. The trial Court after careful analysis of entire documentary as well as oral evidence reached the conclusion that plaintiff failed to establish that the two sale deeds wsre fabricated and where executed by some ficti­ tious person as claimed by the plaintiff and as a result of above conclusion the issues framed in the suit were answered against the plaintiff/respondent No. 1. The learned first appellate court while reversing the judgment of| trial court instead of examining the judgment in the light of issues framed in; the suit made a somewhat sentimental approach to the case. The two attemp­ ted improvements made by respondent No. I/plaintiff in bis evidence at the trial and which ware rightly ignored by the trial court were mainly relied by the first appellate court for reversing the judgment of trial court. I am un­able to understand how the learned first appellate court could take into consideration the statement of plaintiff/respondent No. 1 and his witnesses on the plea that late Nek Mohammad Bullo was not in bis senses for about 2£ years before his death and such the sale deeds were void, in the absence of such a plea in the pleadings and an issue in that behalf. The plaintiff/ respondent No. 1 in his suit had challenged the genuineness of the sale deeds on the ground that someone else had appeared before the Registrar instead of deceased Nek Mohammad for execution but except the bate words of respondent No. I no other witness supported him in this behalf The fact that Nek Mohammad was an old man or was ailing or weak or bad a failing eye sight did not necessarily mean that he did not appear before the Registrar for execution of sale deeds. The petitioners' evidence in support of execution of two sale Jeeds was not only cogent but convinc­ ing and came from independent source and was rightly relied by the trial court. Similarly the statement of respondent No. I/plaintiff at the trial that deceased Abdul Sattar had admitted in a condolence meeting of bis fa'her that he will give him 1/2 share in the suit property was of no avail is neither there was any pleadings in this regard nor any such issue was framed for trial. The reversal of the judgment of trial court by first appellate court on those considerations was, therefore, wholly without any justification. The other consideration for reversal of the judgment of trial court is stated in the judgment of first appellate court as follows : — "Even otherwise it is assumed for the sake of argument that these two sale deeds were executed byNek Mohammad then too this transaction can not be beld.to be valid under law as the seller being a blind, infirm aged about 90 years has certainly became vu-tim of undue irfluence of his son as all the avenues of independent advice in the matter of the deposition of his property were closed in him and the son who is the step brother of the appellant have taken full advantage of this situation and got the sale deed executed in his favour. Therefore, such a transaction can be declared to have been vitiated due to exercise of undue influence. In this connection I may refer to section 16 of the Contract Aet and which reads as under :— (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the fore­ going principle a person is deemed to be in a position to dominate the will of another : - (a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or (I) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this subsection shall affect the provisions of section 111 of the Evidence Act, 1972..." All these facts have not been taken into consideration by the learned Senior Civil Judge, and he has wrongly shifted the burden on the appellant tr prove bis assertions in the plaint. In this case after the evidence of appellant'was over the burden was undoubtedly shifted on the shoulder of respondent Abdui Sattar who in my view has failed to discharge the burden satisfactorily. Under these circumstances it is then obvious that both the transactions in respect of the land cannot be deemed to be valid and according to law as such it is liable to be declared null, void and inoperative and liable to be cancelled." The above conclusions by the first appellate court arc once again not sustainable as neither any such plea was raised by the plaintiff/resppndentL No. 1 in his suit nor any issue was struck by the trial court in this behalf.l The plaintiff/respondent No. 1 or his witnesse in their evidence before thej trial court did not allege that the two disputed sale deeds were executed by late Nek Mohammmad Bullo as a result of undue influence, exercised by deceased Abdul Sattar. It is also incorrect that the evidence on record established that deceased Nek Mohammad was a blind person on the date 01 execution of sale deeds. The preponderance of evidence on this score only showed that at the time of execution of disputed sale deeds the deceased Nek Mohammad had a very weak eye sight and was physically old and infirm but these facts did not necessarily lead to conclusion that the execution of sale deed was involuntary or was the result of any undue influence exercised by late Aodul Sattar. The above conclusions of the first appellate court are pprely conjectural and are based on no evidence at ail, besides being contrary to pleadings of the parties, I will now take up the two additional issues framed by this Court for further evidence while remanding the uase back to first appellate court. From the remand order it is quite clear that burden of these two issues was on plaintiff/respondent No. 1 who had raised these pleas. The evidence after remand led by the plaintiff/respondent No. 1 failed to establish any of these issues. On the contrary there are admissions by the witnesses of plaintiff/respondent No. 1 which showed that the price paid by deceased Abdul Sattar was according to market value. The petitioners examinnd two witnesses who stated on oath that deceased Abdul Sattar had paid the sale consideration after sale of ornaments and out of the amount of pension and gratuity received by him. These witnesses were not cross-examined by respondent No. 1. On the other hand the witnesses produced by respondent No. 1 plaintiff admitted in cross-examination that deceased Abdul Sattar was in police department for about 25-30 years. The above evidence on record did not in aoy manner support the conclu­ sions of first appellate court on the two additional issues. It should also be kept in mind that at the time of remand of case by this Court Abdul Sattar was dead and when he was examined before the trial court at the initial stage he was not cross-examined on these issues. For the above reasons 1 accept this revision application, set aside the judgment and decree of the first appellate court and restore the judgment and decree of trial court. There will be no order as to costs. (TQM) Petition accepted

PLJ 1987 Karachi 64 [DB] PLJ 1987 Karachi 64 [DB] [Sukkur Bench] Present : ahmed ally U. quri-shi & syed abdur rahman, JJ MOULA BUX and Another—Petitioners versus PROVINCE OF SIND and Others—Respondents Const. Petition No, D«53 of 1985, dismissed on 3-3-1986 (i) Grant—

Cancellation of — Ground for — Mistaken inclusion of land in list of pieces of land available for disposal and its consequent illegal grant in favour of petitioner by colonization officer brought to notice of Commissioner — Held : Commissioner to be perfectly justified in cancelling grant of disputed land in favour of petitioners—Such cancellation order admittedly passed after providing petitioners with opportunity of being heard—Held : Order not to be called in question on ground of violation of principles of natural justice. [P. 68/B (ii) Grant — - —Rights created by—Valid grant (of land) in favour of respondent creating valuable rights—Sucti land subsequently by mistake granted to petitioners without notice to respjndents and without giving her opportunity of showing cause aeamst proposed action—Held : Rights of respondent (in land not to ba taken away merely because of such piece of land having been by mistake included in list of pieces of land available for disposal. [P. 68JA (Hi) Tribunal—

Jurisdiction of—Held : Tribunal having jurisdiction to entertain matter not to lose its jurisdiction even if it comes to wrong conclu­ sion or its conclusion on any aspect be entirely without support of evidence. [P. 68]C PLJ 1973 SC 42 rel. Mr. Muhamvad Aslam Bhutto, Advocate' for Petitioners. Mr. Zawar Hussain, AAG and Mr. Abdul Fateh, Advocate for Respondents. Date of hearing :3-3-1986. order Syed Abdur Rahman, J.— By this constitution petition the petitioners have impugned the order dated 11-5-82 passed by Colonization Officer Gidu Barrage and the order dated 9-4-1985 passed by the Commissioner. Sukkur Division upholding the former order whereby the disputed land was granted to respondent No. 5. The facts giving rise to this petition may be briefly surnmed-up as under: The agricultural land bearing un-assessed Survey No. JO of Deh Palajt taluka Ghari Yasin. district Shikarpur comprising of 189-23 acres was Government Nnqabuli land situated within the command of Sukkur Bar­ rage. In 1959-60, 100-00 acres out of this un-assessed number wa granted to Raza Muhammad Bhutto. Thereafter in 1961 the Colonization Officer, Sukkur Barrage issued a Circular inviting oners for permanent sale of » large area of Government land which also included, amongst others, pieces of land from the aforesaid unassessed survey number 50 ; one piece marked A, F,H,K, and L comprising of 73-23 acres and the other piece marked as E comprising of 16 acres. The circular also contained the conditions on which the iand was being offered for sale Mst. Husan Bano wife of Raza Muhammad Bhutto gave offer for the above piece A,F,H,K, and L of 73-23 acres. Sirce there was no counter offer, the offer of Mst, Husan Bano was accepted for the said land and it was transferred to her. 3. So far as the piece marked E comprising of 16 acres of land is concerned, the respondent No. 5 Mst. Kbursbid Bano daughter of Raza Muhammad Bhutto made an offer for it while one Abdullah Bhutto made counter offer for the same. Since the Status of Mst. Kbursbid Bano as well as Abdullah was the same, the Colonization Officer ordered that this piece of land of 16-00 acres marked 'E' be put to a restricted auction between Khurshid and Abdullah. Abdullah Bhutto failed to appear on the date on which the restricted auction was proposed to be held and therefore this piece of 16 acres was granted to Mst. Khurshid Bano respondent No. 5. Abdullah filed an appeal before the Commissioner. Sukkur Division only against Mst Khurisbid contesting the restricted auction of the third piece of land marked 'E' measuring 16-00 acres, but surreptitiously contended that this piece should be termed as pieces L & K. The Commissioner held that Abdullah Bhutto belonged to hari class whereas A/5.'. Khurisbid Bano is a ricb woman of higher status and granted piece marked as L & K. to Abdullah Bhutto. Against this order of tb< Commissioner, respondent No. 5. Khurshid filed a revision application before the Member, West Pakistan Board of Revenue Lahore, who rejected the same on the short ground that since the land that was granted to Abdullah Bhutto was the one which was granted by Colonization Officer to Mst. Husan Bano (who was not a party to this revision) and the land granted by Colonization Officer to Mst. Khursbid, the respondent No. 5 who bad filed that revision petition was not touched by the Commissioper hence she had no \ocus-standi to file the revision petition. Thereupon respondent No. 5 as well as her mother Mst. Husan Bano filed a writ petition before this court (C.P. No. 574 of 1966). The petition was beard by a Division Bench consisting of Mr. Justice Z A. Channa and Mr. Justice Naimuddin (as be then was). The Division Bench observed that since Abdullah Bhutto had not submitted an offer for the pieces of land marked L and K, therefore he was not entitled to the same and that the Commissioner had no jurisdiction or power to grant the same to him and that the grant of these pieces of land to Mst: Husan Bano had also become final as she was the only person wh.o had recorded offer for the same. There was neither an appeal nor revision against the grant of land to her. In any case, it was observed, that the impugned order was violative of the principles of natural justice as it was passed by the Commissioner without making Mst. Husan Bano a party or giving her a notice. It was finally observed that Mm. Husan Bano bad a very clear and substantial right in the land granted to her and she could not be deprived of the same unless she had committed a breach of terms of her grant and had been given an opportunity of showing cause against such deprivation. Her not being given such opportunity could not be considered to be a mere technicality which was a clog on justice. The Division Bench therefore held that the orders of the Commissioner as well as Member, Board of Revenue were without legal authority and therefore of no legal effect and accordingly it quashed the same and allowed the petition. The result of the above judgement of writ petition was that the grant of pieces of land marked L & K in favour of Mst Husan Bano became final and the claim of Abdullah in respect of the same was disallowed. Regarding the third piece of land marked E measuring 16-00 acres its effect was that the order of Colonization Officer directing the disposal of the said piece in a restricted auction between Abdullah Bhutto and respondent No. 5 Mst. Kburshid and its grant to Mst. Khurshid on the failure of Abdullah Bhutto to appear at the restricted auction was upheld and the order of the Commissioner dated 22-9-1965 and that of Member, Board of Revenue dated 30-7-1966 were declared as without authority and of no legal effect. 4. In pursuance of the decision of the High Court in the above writ petition, the piece of land marked 'E' measuring 16 acres was formally again granted by Colonization Officer Giddu Barrage to Mst. Khurshid Bano by an Auction Sheet end order dated 11-5-1982, showing that it was given in an open auction to her on a bid given by her father Raza Muhammad on her behalf of Rs. 500/- per acre. 5. After the decision of the above constitution petition No. 574 of 1966 which was decided oa 19-4-1977 but before the said open auction or order of grant could take place, which took place on 11-5-1982, it so happened that the disputed land was transferred from the command of Sukkur Barrage to the command of Guddu Barrage and was treated as land available for disposal. Petitioners who were unaware of all the previous proceedings as well as of the interest of respondent No. 5 in this piece of land having come to know that the disputed land was available for disposal applied for grant of the same to the Deputy Colonization Officer, Guddu Barrage Jacobabbad, who granted the land to the petitioners in open katchery on 12-9-1979. The allotment order was issued in favour of the petitioners. After they made the initial deposit, the disputed land was transferred and mutated in their favour in Dakhil Kharij Register. The petitioners were then put in physical possession of the land by the Barrage Authorities and they continued to be in possession. They have spent huge amount over the development of the same. When the open auction or the grant as referred above took place on 11-5-1982, the Colonization Officer made a reference to the Commissioner, Sukkur Division, Sukkur that the grant of disputed land to the petitioner be cancelled as the land was treated by mistake as available for disposal while in fact it was not so available. Commissioner, Sukkur Division after hearing the parties accepted the recommendation of Colonization Officer, Guddu Barrage by his order dated 9-4-1983 and cancelled , the grant of the disputed land made in favour of the petitioners. Hence the petitioners have filed this Constitution petition and have prayed as follows :— "A. That it be declared that the order dated 11-5-1982 passed by Colonization Officer Guddu Barrage, Sukkur and the order dated 9-4-1983 passed by Commissioner Sukkur Division are illegal ab initio, void, without jurisdiction and of no legal effect. B. That the permanent injunction may be issued against the respondent restraining them from interfering-with the peaceful possession of the petitioners over the disputed land either personally or through their agent or any other authority. C. That the cost of the petition may also be awarded to the petitioner. D. Any other relief that this Honourable court may deem proper in the circumstances of the case may also be awarded to the petitioner." Mr. Muhammad Aslam Bhutto, who appeared for the petitioner coatendid chat ac the time when they had been granted this land by the D:?_:y Colonization Officer, Guddu Barrage, Jocobabad (on 25-2-1979) uo interest much-less a right or vested right was created ia the disputed land in favour of Mst. Khurshid Bano respondent No. 5, therefore the gr^nt of the land to the petitioners by the Colonization Officer, Guddu Barrage, Jacobabad was legal and valid. We do not agree with this contention of the learned counsel for the petitioner. While we are quite conscious of the distinction between mere interest and right or vested right, we are unable to agree with the learned counsel for the petitioners Mr. Muhammad Aslam Bhutto that respondent No. 5 Mst. Khurshid had a mere interest in the land granted to her and not a vested right. Section 2 of the Government Grants Act 1895 provides ;hat provisions, restrictions and conditions contained in any grant or transfer of land shall be valid and take effect according to their tenor nol- .vitnstanding any rule of law, statute or enactment of the legislature to the contrary. No doubJ the grant of land to Mst. Khurfhid, the respon­ dent No. 5 was subject to appeal and revision but the appellate or revisional authorities could interiors and cancel the grant if it was not made in accordance with the terms and conditions of the said grant as set out in the circular of the Colonization Officer. As already shown by us the grant of piece marked was made by the Colonization Officer to Mst. Khurshid strictly in accordance with the conditions specified in the said circular as no other person as except Mst. Khurshid or Abdullah Bhutto, was entitled to this grant and as already shown above, Abdullah did not turnup-on the date fixed for restricted auction hence C.O had no option but to accept the bid of Mst. Khurshid, With regard to the so-called open auction dated 11-5-1982 it may be pointed out that although annexure 'H shows that the land bearing marked 'E' was disposed of in favour of Mst. Khurshid on 11-5-1982 by means of an open auction but in fact this is not correct. It appears that the Office of the Colonization Officer has drawn-up. The order of grant on the open auction form in the routine manner ia which it has been drawing us the orders of granting lands without taking note of the fact that this was not a case of open auction and that this land was already granted to Mst. Khurshid by Colonization Officer long before the filing of writ petition in a restricted auction between h«r and Abdullah Bhutto in which Abdullah Bhutto did not turn up. The land mention of open auction on i 1-5-1982 is therefore redundant and does not give any right to the peti­ tioner or lor that matter to any body else to treat it a fresh grant in favour of respondent No. 5 Mst. Khurshid. The grant already made in her favour by the Colonization Officer before the filing of writ petition is a valid grant for all purposes at held by the Division Bench of this court in that writ petition. The rights of a grantee of land specially one whose offer is accepted as is in the case of respondent No. 5 are very valuable. In the first place such grantee has the right to cultivate the land. Furthermore on payment of the price of land and fulfilment of any of the condition on which the grant has been made he becomes full owner of the land subject of course to right to minerals, natural gas and any other rights which government may have specifically reserved to itself while making the grant. The rights of Mst. Khursbid in piece marked '£' could not there­ fore be taken away merely because this piece of land was by mistake Deluded in a list of the pieces of land available for disposal and that the same was by mistake granted to the petitioners without notice to Mst. Khurshid and without giving him an opportunity of showing cause .gainst the proposed action. Hence on this mistaken inclusion of land n the list and its consequent illegal grant in favour of the petitioners by he Colonization Officer having been brought to the notice of Commisioner, the learned Commissioner was perfectly justified in cancelling the grant of disputed land in favour of the petitioners. The said cancellation rder as admitted by the petitioners themselves was passed by the Commissioner after providing these petitioners with an opportunity of eeng heard and the same therefore has not been and could not have besn called in question on the ground of violation of principles of natural utice. So tar as tne contention of the petitioners that they were put in poss­ession of the disputed piece of land and that they had spent a huge amount on its improvement and cultivation and that they continued to be in its possession is concerned the respondent No. 5 has denied all these allega­ tions by means of counter affidavit filed by Raza Muhammad Bhutto. It has been stated in the counter affidavit that the piece of land marked 'E' was throughout in the possession of respondent No. 5. Initially it was barren land. It was developed throug bulldozers bv respondent No. 5 after incurring heavy expenditure and is still in possession of respondent No. S. The petitioners intends to take forcibile possession of this land under the garb of status-quo order granted by this court. It is therefore quite clear that even the fact of possession and development of land by :he petitioners has been denied by respondent No. 5. There can be nc denying to the fact that tbe order of the Commissioner which has been assailed and impugned in this constitution petition was an order passed by the Commissioner within his jurisdiction. It is a settled law thai where a Tribunal has jurisdiction to entertain a matter it does not lose its jurisdiction even if it comes to a wrong conclusion or even if its conclusion on any aspect is entirely without the support of evidence. The question whether Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has been to enquire or upon the correctness of its findings on these facts, but upon their nature and is determinable at the commencement and not at the conclusion of enquiry. Reliance in this connection may be placed in a case of Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others reported in PLJ 1973 SC 42. It has been held that as follows :— "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the imoproer exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in a way that the law regards it as a me colourable exercise of jurisdiction or unlawful usurpation of jurisdiction." We are therefore satisfied that the order on the Commissioner dated 9-4-1985 upholding the grant of land in favour of respondent No. 5 passed by the Colonization Officer, Guddu Barrage, Sukkur on 11-5-1982 and cancelling the grant of respondent dated 23-2-1979 is perfectly correct, legal, valid and 'intra-vires. These are the reasons for which we had dis­missed the writ petition in limine by our short order dated 3-3-1986. (TQM) Petition dismissed.

PLJ 1987 Karachi 69 PLJ 1987 Karachi 69 [Siikkur Bench] Present: ahmad ally U. qureshi, J PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION, Larkana—Appellant versus NIZAMUDDIN and Another—Respondents 1st Civil Appeal No. 9 (also 10 to^34) of 1983, dismissed on 20-5-1986 Land Acqaisition Act, 1894 (I>f 4 1894)—

Ss. 18 & 50 (2) Proviso—District Court — Judgment on reference by— Appeal against — Competency of — Held : Private person or company to have no right of appeal against judgment and decree of District Court on reference under S. 18 of Land Acquisition Act, 1894—Corporation for whose benefit land being acquired filing appeal against judgment and decree of Additional District Judge — Held : Interests of Corporation being subservient to those of Government appeal, independent of Government, against judgment and decree of District Court not to be maintainable. [Pp. 73 & 74]A & B PLJ 1974 Pesh. II 8 ; PLD 1968 Kar. 126 ; PLJ 1982 AJK 55 ; 1985 MLD 1496 ; 4 1C 382 ; 47 PR 225 : AIR 1929 Lah. 10 ; AIR 1936 Lah. 564 & PLD 1960 Dae. 461 ref. Mr. Ghulam Sarwar Abbasi, Advocate for Appellant, Mr, Farman All, Advocate for Respondent. Date of hearing : 11-5-1986, judgment All these appeals arise out of a single judgment and decree dated 2 1-1983 passed by the learned Second Additional District Judge, Larkana. As the appellants in all the appeals are same and the points of law and facts are also same I propose to dispose of all of them by this order. The facts leading to this litigation in brief are that at the instance of present appellant the Collector Larkana acquired certain land on 12-8-1971 under the Land Acquisition Act, 1894 (hereinafter called the Act). The land so acquired included the land of the respondents in the present appeals. It was acquired for the appellant to set up sugar factory at Naudero. By award dated 18-4-1973 the Land Acquisition Collector awarded compensation to the land owners at tha flat rate of one anna per square foot (Rs. 2,7^2.50 per acre) besides the compulsory acquisition charges and interest as allowed under the Act. At the instance of the respondents who were not satisfied with award, the Collector made refe­ rences under section 18 of the Act to the District Judge which were sub­ sequently transferred to Second Additional District Judge Larkana who disposed them of by the impugned judgment wherein he raised compensa­ tion to Rs. 4,000 per acre besides compulsory acquisition charges and interest as admissible under the law. As the Government of Sind or the Collector did not file appeal against the judgment and decree passed by Additional District Judge the appel­ lants who had tiled cross objections before the Additional District Judge under section 22A of the Act filed these appeals. I have heard Mr. Ghulam Sarwar Abbasi learned counsel for the appellants and Mr. Farman Ah learned counsel for the respondents in all tne appeals at length. A preliminary objection has been raised by Mr. Farman Ah challeng­ ing locus standi of the appellants to file these appeals. He has argued that a private person or a company is specifically barred under proviso to sub­ section (2) of section 50 of the Act from demanding reference under section 18 of the Act. Therefore, such person or party has no right of appeal specially when no such right has specifically been conferred upon such party or person by the Act which is a special law. In his support Mr Farman All has relied on the case of WAPDA v. Aurangzeb Khan and others (PU 197. Peshawar 118 = PLD 1975 Pesh. 1). In the reported case the company viz. Wapda filed appsal against the judgment and decree passed by the District Court Judge on the reference under section 18 of the Act when no appeal against sucli decree was filed by the Government. It was held by Division Bench of Peshawar High Court as under :— "In proceedings under the Land Acquisition Act, 1894 the pro­ visions of the Code of Civil Procedure, 1908 in so far they have been judicially construed to concede to a person (although not a party to the proceedings) a right of appeal against an order/ decree by which his interest has been adversely affected, would have no application. By virtue of subsection (3) added to section 18 by Ordinance XLIX of 1969, the Provincial Government has been given the right u> refer the matter to Court within a period of six months from the date of announcement of the award, provided it has not accepted the award. But then a company/local authority has not been given any right. It would therefore, follow that if the Government accepts the award or else does not refer the matter to Court under section 18 (3) of the Act, a company/Local authority would have no such right in view of the express bar contained in proviso to subsection (2) of section 50 of the Act, which reads :— " ............................ That no such local authority or company shall be entitled to demand a reference under section 18". To insist, therefore, that a company/local authority shall have the right to appeal against the decree of District Judge would be evidently fallacious, for if it has no right to seek a reference to the Court of District Judge, it can not possibly claim the higher right of appeal." id this case the learned Judges have traced history of the judicial pro­ nouncements on the subject. They have referred to number of cases including Municipal Corporation of Pabna v. Jogendra Narain Baikut (4 1C 382), Faqir Chand v. Municipal Committee, Hazara [(1913) 47 PR 2^5)], Collector and Chairman District Board, Gujranwala v. Him Nand (AIR 1929 Lab 10), Niaz Chand and others v. District Board, Mianwali (AIR 1936 Lahore :64) and Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacha- 'yya and another (PLD i960 Dacca 461). In ail these cases consistent view of the superior courts appears to be, hat a private party, for whose benefit the land is acquired by the Govern­ment under the Land Acquisition Act does not have the right to file appeal igainst the judgment and decree of the District Judge passed on reference under section 18 of the Act. A similar case came, for consideration before a Single Bench of this Court ;n case of Kasimbhai and another \ The Deputy Commissioner Dadu and others (PLD 1Y6S Karachi 126). In that case Wapda, for whose benefit the land was acquired and who had to pay a compensation awarded by the Diftrict Judge, applied for being impleaded as a party. Mr. Justice Qadeeruddin Ahmed, J (as his lordship then was) held : — "-.acquisition having been made by the Government, the authori­ ty for whose benefit it is made can not be said to have privity with the owners of land and can not claim to act as a party to the proceedings held in respect of those transactions." His lordship has also quoted the observations made by J. P. Singhal. While discussing the position of company or Local authority, which may be desirous of acquiring land, under section 50 of the Land Acquisition Act, the Author has summarised the principles on the basis of which the superior courts appear to have based their view that a private party has no right to file appeal. It will be advantageous to reproduce these obser­ vations :— "No local authority or company is compelled to proceed under the Land Acquisition Act. If it can procure any laod which it is desirous to acquire more cheaply by private negotiations, it is entirely at liberty to do so, but if it elects to set in motion the special Dowers given to Government for public objec.s it can expect no higher privileges and powers than those given to Government itself. Thus the interests of the local authority must be subservient to that of Government and it would be dangerous to allow private individuals, local authorities and companies to interfere in a proceeding under Part III of the Act. Under such circumstances if Government declines to prefer an appeal the local authority cannot be permitted to do so except in cases of patent injustice," His lordships in the end further observed :— "What is objectionable is that WAPDA should come forward and criticise the past conduct of the case by the Government in not filing an appeal knowing all the while that its interest is sut servient to that of the Government." Mr. Abbasi learned counsel for the appellants has argued that the position has changed after the amendment in the Land Acquisition Act brought about under Land Acquisition (West Pakistan Amendment) Ordi­ nance No XLI of 1V65. He argues that under section 22A of the Act certain rights have been conferred upon the private party. Section 22A reads as under :— "22A. Cross-objection.—The Provincial Government, or a local authority or a company for which land is being acquired, may lodge a cross-objection to the objection made by any person in­ terested and the Court may reduce the amount awarded by the Collector if it considers it just and proper." Mr. Abbasi has also relied on subsection (5) of section 9 and clause (c) of section 20 which are also reproduced as under :— Section 9. (5) The Collector shall also serve notice of the enquiry to be held under section 11 (such notice not being less than fifteen days prior to the date fixed under subsection (2) for determination of claims and objections) on the Department of Government, local authori­ ty or company, as the case may be, for which land is being acquired, and require it to depute a duly authorized representative to attend the enquiry on its behalf for the purpose of making objections (if any) to the measurement of the land claims to any interest in the land or the amount of any compensation. Such authorised representative shall be party to the proceedings." 20. Service of notice.—The Court, shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appaarance before the Court on that day, to be served on the following persons, namely : — (a) ................................. (b) ................................ (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector and the Depart­ ment of Government, local aiuhority or Company, as the case may be for which land is being acquired." The position after these amendments has also been considered in the Peshawar case and it has been held as under : — "We, on our part, are of the firm view that by adding subsection (5) to section 9 and clause (c) to section 20 of the Act, all that the West Pakistan Ordinance XLIX of 1969 had intended to achieve was to magnify therein the existing legal position contained in subsection (2) of section 50 of the Act, namely :— "In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation : For, it is axiomatic that only a party to the proceedings is entitled to notice and to adduce evidence. And considering that under subsection (2) of section 50 of the Act, this right had been con­ceded to a company/local authority, without mentioning in there, of course, that it would be a party to and entitled to receive notice of the proceedings, the Legislature moved into the matter and by Ordinance XLIX of 1969 added subsection (5) to section 9 and clause (c) to section 20 of the Act as a measure of abundant caution. It is significant, however, that the words of former sub­ section do not occur in clause (c) of section 20 of the Act. And hence it would be impermissible to import into it the said words, particularly when notice is taken of the fact that both these sections were amended by the same Ordinance." '•Section 11, section 22A and subsection (2) of section 31 are in the nature of consequential amendments, introduced in the Act, in view of the addition of subsection (5) to section 9 and clause (c) to section 20 of the Act by Ordinance XLIX of 1969, and thus they would need no discussion." This view that a private person or company has no right of appeal] against the judgment and decree of a District Court on a reference under! section 18 of the Act still holds the field. In this respect two more citations! may be seen. In the case reported in PLJ 1982 AJK 55 a Division Bencbj of the Court has held : — "Local authority or a company concerned for whose benefit the land is acquired may appear and adduce evidence for the purpose of determining the amount of compensation but such local authority or company or any other agency is not competent to initiate reference under section 18, or prefer appeal against judg­ ment or decree made on the reference initiated by any party. Government only in circumstances held to be competent to prefer the appeal against award." In a more recent case of Karachi Development Authority v. Mst. Fatima Bai and another (1985 MLD 1496) a Division Bench of this Court has observed as under :— "Local authority which had no right even to demand reference under section 18 of the Act, 1894, was not competent to file appeal against order of Court passed on such reference." I see no reason or grounds to disagree with or differ from this consis­ tent and unanimous view of the superior courts as to the competency of a private party to file appeal against the judgment/award passed by the District Judge on reference under section 18 of the Act. It, thtrefore, follows that the appellants whose interests arc subsergivient to the interests of Government have no right of appeal independent jof Government against judgment and decree passed by the District Court. As such appeals which are not maintainable under law are dismissed but in the circumstances of the case, the parties are directed to bear their own costs. It was requested by Mr. Farman Ali learned counsel for the respon­dents that this Court may decide as to the rights of the respondents under the Land Acquisition (Sind Amendment) Ordinance, 1984 (Sind Ordinance No. XX11I of 1984). I have already held that these proceedings viz. appeals filed by the appellants are not competent and were not maintain­ able under the law. As such the only order that can be passed in such proceedings is to dismiss the appeals. The parties may pursue their rights, if any. if they so desire, in proper proceedings in the appropriate forum. (TQM) Appeals dismissed.

PLJ 1987 Karachi 74 PLJ 1987 Karachi 74 [Sukkur Bench] Present : ahmad ali U. qureshi, ' BEEJAL MAL—Appellant versus PUNAJI—Respondent FRA No. 34 of 1984 (also No. 35 of 1984), accepted on 31-8-1986 (i) Displaced Persons (Compensation & Rehabilitation) Act, 1958 (XXVIII of !:»)- —•— S. 3J—Occupation—Protection of—Provisions regarding—Appli­ cability of—OvVQcr of property not claiming any rights against appellant under S. 30 of Act—Held : Such rights not to be forcibly conferred upon owner by Rent Controller or by High Court. [P. 77]D (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 5—Landlord and tenant—Relationship between—Held : Rela­ tionship of landlord and tenant to be created between parties either by statute or by (oral or written) contract —Mere fact of respondent being owner of premises, however, not to ipso facto create such relationship between parties. [P. 76JC (in) Sind Renled Premises Ordinance, 1979 (XVII ot 1979) —

S. 15—Eviction—Application for—Ownership—Dispute regarding —Rent Controller—Finding by—Property admittedly transferred in favour of respondent by settlement authorities— Held : Rent Con­ troller not to go beyond transfer order (issued by settlement depart­ ment)—Held further : No fault to be found with finding of Rent Controller regarding respondent being owner (and, therefore, land-lord) of premises—Rights in property also claimed by appellant— Held : Rent Controller being not competent to give any finding, such disputes to be competently decided by civil court. [P. 76]A & B (if) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15—Eviction—Application for—Evidence in—No contradiction or improvements found in evidence of witness—Such witness Advo­ cate admittedly relative of landlord — Held : Evidence of such witness to be taken with great caution. [P. 78]F (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 & 5—Landlord and tenant—Relationship of—Failure to establish —Effect of—Respondent failing to prove existence of rela­ tionship of landlord and tenant between parties—Held : Jurisdic­ tion of Rent Controller to be ousted. [P. 78jG (yj) Sind Rented Premises Ordinance. 1979 (XVII of 1979) —

Ss. 15 & 5 —Landlord and tenant—Relationship of—Proof of— Respondent allegedly inducting appellant! as tenants by oral agerement—Rent receipts on blank paper issued by such owner of which no counter-foil kept by him—Rent also not paid in presence of any body—Held : Burden of proof to lie upon owner to prove existence of relationship of landlord and tenant between parties. [P. 77|E Mr. La! Muhammad. Adovate for Appellant. M r \Iuhammad Asiam Bhu'tu, Advocate for Respondent, Date of hearing : 12-8-1986. judgment 1 propose to dispose of both these rent appeals by this order as not only the respondent/applicant in both the appeals is same but the issuance of facts and law arising out of them are also common. The brief facts leading to these appeals are that the respondent/ appellant admittedly purchased evacuee property bearing D. S. No. 166 Kandhkot in open auction held on 20-10-1984. After full payment the record was changed in his favour on 22-10-1971. This property at the time of the purchase, was a Wara and was admittedly occupied by some Hindus who soon after the auction are said to have handed over the possession to the respondent. He raised some construction there and on 1st November, 1970 he rented out 310 square feet from the area to Beejalmal, appellant in RFA 34/84, at the monthly rent of Rs. 30.'- which was later raised to Rs. 4(j. On the same date, he also allegedly rented out 500 square feet to Thanwartnai. appellant in FRA 35 84, at the rate of Rs. 40 per month which was subsequently raised to Rs, 30. It is averted, that both the appellants tenants paid their rent regularly but stopped the payment of rent from January, 3979, Therefore, the appeiicant/reipondent filed separate rent applications for their ejectment on the ground of nou-payment of rent as well as for raising unauthorized and illegal construction. Both the appellants deny the existence of relationship of landlord and tenant between them and the respondent. They claim to be in occupation of the premises since before the establishment of Pakistan and allege, that with the mutual consent of all the occupants, the respondent purcha­ sed the property in auction for himself and on behalf of the other occupants who contributed towards the purchase price and were thus owners of the respective area in their possession. Appellant Bejalmal claims the right through his brother Tejoomal, who allegedly made payment and whose sons Bachoomal and others are still residing with the appellant. Appellant Thanwarmal claims the right through his wife Shrimati Jamna Bai, who allegedly contributed towards the purchase price. It is further pleaded, that sons Tajoomal, who is now dead, and Shrimati Jamna Bai have 61ed separate civil suits against respondent to have their right in the property determined, which suits are still pending. The learned Rent Controller framed the following common issues in both the proceedings. (1) Whether there exists relationship of landlord and tenant between the parties ? (2) Whether opponent has committed wilful default in payment of rent ? (3) Whether opponent impaired the utility of the disputed pre­ mises ? (4) What should the order be ? The learned Rent Controller held that there existed relationship of landlord and tenant between the appellants and the respondent and as non-payment of rent was denied, he ordered eviction of the appellants vide separate orders both dated : 11-2-1986. He, however, disallowed the request of the respondent for ejectment on the ground of unauthorized construction by the appellants. 1 have heard the learned counsel for the parties and also perused the record and proceedings of the trial court. Admittedly the property in question was transferred in favour of the .respondent by the Settlement authorities. It is settled law that the Rent Controller can not go beyond this transfer order and therefore, no fault can be found with his finding that respondent is the owner of the pre­ mises and, therefore, landlord. As regards the rights in property claimed by the appellants the Rent Controller could not have given any finding. Such disputes can be decided by civil court where the suits are already pending. However, mere fact that the respondent is owner/landlord of the CJdemised premises would not ipso facto create relationship of landlord and jtenant between the parties. Such -rlationship can be created either by Istatute or by contract whether <•-, , in writing. If the appellants were tenants of the premises before its pu.chase by the respondent, then by virtue of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act), they become statutory tenants of the respondent. However, this is not case of the resspondent/applicant. He does not admit their occupa­ tion at the time of transfer nor does be claim any statutory relationship of landlord and tenant between him and the appellants The appellants also do not claim tenancy of the premises before the transfer in their own right. Appellant Beejalmal claims to be in occupation aiongwith his brother Tajoomal and appellant Ihanwarmal claims through his wife Shrimati Jamna Bai. Be that as it may, as the respondent hioiself does not claim] any rights against appellants under section 30 of the Act, such rights canjD not be forcibly conferred upon him by the learned Rent Controller or b)I this Court. Next I proceed to examine whether there existed any contractual or oral relationship of landlord and tenant between the parties. Admittedly there is written agreement of tenancy or no documentary evidence to show payment of rent by the appellants. According to respondent he inducted the appellants as tenants by oral agreement and that he used to issue rent receipts on blank paper of which no counter toil was kept. He also admits, that the appellants did not pay him rent in presence of any body. In such case the burden of proof lies upon the landlord to prove the existence of relationship of landlord and tenant between the parties. It may be mere coincidence, that both the appellants were inducted as tenants on the same date and both refused to pay the rent from the same month. No reason is shown as to why they refused to pay the rent, after having paid regularly for 7 or 8 years as alleged by the respondent. There is, however, material contradiction in the evidence of the respondent as to when he inducted the appellants as tenants, According to pleadings and examination-in-chief, he inducted them on 1st November, 1970. However, in the cross-examination, he states, that he handed over the possession to the appellants after one year of his purchase of the property. The property was admittedly purchased on 20-10-1964 in auction. There­ fore, if his statement in cross-examination is to b: believed, the tenant would have been created in the end of 1965 or beginning of 1 966. If by purchase, the respondent meant the date of transfer, then the transfer took place on 22 10-1971 and one year after that would be end of 1972 or beginning of 1973. In either case, the tenancy could not have commenced from 1st November, 1970. Such a material contradiction in the evidence of the respondent makes the very creation of tenancy doubtful. The respondent has further admitted in the cross-examination, that neither tenancy was created in presence of the witnesses, nor any rent was paid in presence of any witness. He, however, states, that he took his relatives Geniomaland Shernath to the appellants and asked them to pay the rent for one month and to vacate the premises, but the appellants refused to vacate premises, or pay the rent. Both these witnesses have been examined in both the rent proceedings. P.W. Sheroath makes further improvements in the case and states in cross-examination, that in his presence, the premises were rented out to the appellants ; at the rate of Rs. 50 per month to Thanwardas anc at the rate of Rs. 40 per month to appellant Beejalmai, This statement contradicted the statement of the respondent, that the tenancy was not created in presence of any person and that he had rented out the premises to Beejalmal at the rate of Rs. 30 and Thawanrmal at the rate of Rs. 40 per month. No doubt there are no such contradictions or improvements in evidence of PW Gainomal, but admittedly he is relative of the respondent. There­ fore, his evidence will have to be taken with great caution. However, the inconsistencies between the pleadings of the respondent and admission in his cross-examination and the contradictions between his evidence and that PW Shernath render the oral evidence not worthy of credit or reliance. Therefore, in such circumstances we have to also examine the surrounding circumstances of the case. The appellants admittedly stopped payment of rent from January, 1979. He states that he took the witnesses to the appellant and asked them to pay rent for one month, which indicates that he took the witnesses eithe- in January, or February, 1979. These rent applications were filed in March. 1981. The respondent remained silent without taking any action from January, 1979 right upto March 1981 viz. for more than two years. He did not issue even notice to the appellant demanding the payment of rent. Such a conduct does not appear natural or probable on the part of landlord, who as alleged, has been regularly receiving rent for 7 or 8 years. As already pointed the respondent does not show the reason why the appellants refused to pay rent from January, 1979. I have already pointed, that there is no documentary evidence whatsoever suggesting existence of relationship of landlord and tenant between the parties. The case of the appellants is that they are in occupation of the premises since before partition and that the respondent purchased the plot in auction with consent of all the occupants on behalf of the occupants and, there­ fore, there was no contest in the auction. It is admitted fact that prior to the purchase of the property in auction by the respondent it was in occupation of some Hindues,. The respondent claims, that soon after, those Hundus handed over the vacant possession of the premises to him, but there is no evidence in support of this contention. It is contended by appellants that the price of the plot in occupation of Beejalmal was paid by his brother Tajoomal and price of the premises in occupation of Thanwarmal was paid by his wife Shrimati Jamna Bai. It is also admitted fact, that legal heirs of Tajoomal and Sharimati Jamana Bai have filed civil suits against the respondent for the determination of their respective rights in the property, which are still pending. Considering all the facts discussed above and submissions of the learned counsel in my opinion the respondent has failed to prove the existence of relationship of landlord and tenant between him and the appellants. In such case the jurisdiction of the Rent Controller is ousted and the parties can seek redress in the civil Court, I accordingly allow the appeal and set aside the impugned order. Under the circumstances of the case the parties are allowed to bear their own costs. (TQM) Appeal allowed.

PLJ 1987 Karachi 79 PLJ 1987 Karachi 79 Present : saiduzzaman siddiqui, J AZADAR HUSSAIN ZAIDI-Applicant versus PAKISTAN INTERNATIONAL AIRLINES CORPORATION, Karachi Airport, Karachi —Respondent Civil Revision No. 26 of 1984, accepted on 29-9-1986 (i) Civil Procedure Code, 1908 (V of 1908)-

S. 115—Failure to examine important aspect of case—Effect of— Important aspect of case not at all examined by two courts below— Held : Case to be remanded back to trial court by accepting revision application. [P. 81]C (ii) Civil Services—

Dismissal from service—Damagea for—Petitioner not found entitled to claim reinstatement in service—Held : Damages by way of salary on account of alleged illegal dismissal from service to be competently claimed by petitioner in case of such dismissal being shown to be against service rules of respondent Corporation. [P. $0]A PLJ 1978 Karachi 501 agreed with. iiiij Civil Services—

Misconduct—Termination of services on ground of—Service rules — Failure to comply —Effect of—Service of employee terminated on ground of misconduct—Held : Such removal from service of employee carrying with it stigma, procedure prescribed in service rules to be followed strictly. ]P. 8116 Petitioner in person. Mr. Muhammad Akhtar, Advocate for Respondent, Date of bearing : 29-9-1986. judgment This revision application under section 115 CPC is filed by the appli­ cant/petitioner against the two concurrent judgments, of the courts below dismissing his suit for declaration and recovery of damages. It is an admitted position that the applicant who was an employee of respondent was dismissed from service on the ground of misconduct after holding enquiry. The petitioner challenged his dismissal from service in suit No. 3026/1978 as illegal, malafide and contrary to law and also claimed a sum of Rs 24.900/- as salary on account of illegal dismissal from service. The reliefs claimed by the petitioner in the above suit are as follows :— "1. Grant permission to sue \n forma pauparis. (a) for declaration that the dismissal of the applicant/plaintiff is illegal, malafide and contrary to law. (b) For the judgment and decree of the applicant/plaintiff for illegal dismissal from 23-2-1971 to 30-10-72 comes to Rs. 24.900/-. (c) The costs of the suit. (d) For any other relief which the Hon'ble Court deercs proper." Both the courts below relying on the cases of Shahid Khalil v. PIA (PLD 1972 Karachi 477). Malik and Haq v. Muhammad Shamsul Islam (PLD 1961 SC 531), Muhammad Afzal v. HB.F.C. (PLD 1976 Karachi 1121) and Khurshid Hassan Siddiqui. N.B P. [(PLC 1980 (Service casses) page 93)] ; reached the conclusion that as the employment of applicant with respon­ dent was governed by the principle of master and servant, the prayer with regard to reinstatement of applicant could not be granted and accordingly dismissed the suit. There can be no cavil with the above conclusion arrived at by the two courts below. However, the learned courts below completely overlooked another very important aspect of the case which related to the claim of petitioner for salary on account of his illegal dismissal from service. In the case of J.J. Miranda v. Fishermen's Cor­ poration Society Ltd. (PLJ 1978 Karachi 501) a learned single Judge of this court after an exhaustive review of case law on the subject recorded the following conclusions in the above case which appear at pages 524-525 of report :— "The ratio decidendi of the above cases particularly of the Supreme Court of Pakistan is that an employee of a society/corporation cannot maintain writ petition for violation of service rules ,which the society/corporation might have adopted through a resoluation and not through an enactment and that the employee of the society/corporation cannot claim same opportunity to defend himself against the charges which a civil servant is entitled to. In the instant case under the terms of the appointment, it was provided that the plaintiff shall be governed by the sevice rules of the society and that these service rules provided a procedure of holding inquiry and dismissal of employees. The question which requires consideration i», as to whether the society can act in violation of these rules. In my view as the above rules have become part of the terms of the employment, any breach of the same will amount to breach of the contract entitling the aggrieved employee to maintain an action tor damages, but he shall not be entitled to claim reinstatement, through any legal action. 1 accordingly hold that in the above case defendant No. 1 by not following the procedure provided for in sub-para (2) of para 3 of Appendix II to the service rules has committed the breach of the terms of the employment and that the plaintiff is entitled to maintain an action for damages for wrongful dis­ missal." 1 am in respectful agreement with the above conclusions and of the view that in the present case also inspite of the findings by the courts below that the petitioner was not entitled to claim reinstatement in service, he was nevertheless entitled to claim damages from the respondent by way of salary on account of alleged illegal dismissal from service if he succeeded fin showing that his dismissal was against the service rules of respondent. The petitioner who personally argued his case invited my attention to rule 15.03.13 contained in the PIA Administrative Mannual and contended that in accordance with the above rules he was entitled to a second show cause notice after he was found guilty by the enquiry officer before he could be dismissed from service. The rule relied by the petitioner reads as follows :— "15.04.13. If as a result of the appraisal of evidence, the enquiry officer in his report finds the a employee concerned guilty of all or any of the charges levelled against him in the Charge Sheet, then the competent authority shall issue to the employee concerned a notice to show cause as to why appropriate punishment as per rules and regulations of the Corporation shall not be inflicted upon him in view of the misconduct on his part. The show cause notice shall be issued to the employee concerned in the manner as per current proforma. Although the show cause notice, the competent authority shall make available to the employee concerned a copy of the appraisal of evidence and report of the enquiry officer. The show cause notice will contain a directive to the employee con­ cerned to submit his explanation within a period of 72 hours of the receipt thereof and also offer him an opportunity of a personal hearing before the competent authority to explain his conduct and cause." It is not disputed before me that no second show cause notice as contem­ plated under the aoove rule was served on the petitioner by respondent No. 2 before dismissing him from service. It is, however, contended by the learned counsel for the respondent that the respondent had unfettered discretion under the service rules to dispense with service of any employee without assigning any cause and in such an event the dismissed employee Aai only ent;tied to 3 months salary which in the present case was paid to retittoner. It may be true that under the service rules the respondent was possessed of power to dispense with the services of an employee without disclosing any cause or reason and in that case it may not be necessary to give notice of show cause or hold inquiry but where the service of an employee was terminated on the ground of misconduct the procedure orescribed in the service rules had to be followed strictly as such removal from s;fvi:i of an employee carried with it a stigma which debarred him from seeking further employment. As this important aspect of the case was not a; all examined by the two courts below I accept this revision application, set aside the judgments and decrees of the courts below and remand the case back to the trial court with the direction to examine the case of the petitioner with regard to his claim of salary for alleged wrongful dismissal from service and for this purpose the court may strike such appropriate issues as may be necessary and also allow opportunity to the parties to lead such evidence as they may dssire in support of their respective stands, In the circumstance of the case there will be no order as to costs. (TQM) Petition accepted.

PLJ 1987 Karachi 81 [DBj PLJ 1987 Karachi 81 [DBj Present : nasir A, zahid & mamoon kazj, JJ FATEHYAB ALI KHAN-Petitioner versus PROVINCE OF SIND through HOME SECRETARY, SIND SECRETARIAT, Karachi and Another—Respondents Const. Petition No. D-670 of 1986, allowed on 3-9-1986 Maintenance of Public Order Ordinance. 1960 (WP Ord. XXXI of 1960) -

S. 3—Detention—Grounds of—Failure to communicate within reasonable time—Effect of—Detaining authority taking nearly 15 days to communicate grounds of detention (for 30 days) to detenu—Even no reasons whatsoever given for not communicating grounds for nearly one week after memo for communication becoming ready and signed on 19-8-1986—Held : Delay of 15 days in communicating grounds of detention to petitioner not to be justified or condoned—Held further : Order of detention passed by District Magistrate under S. 3 (1) of Ordinance being unlawful, High Court to quash same in exercise of its constitutional jurisdic­ tion. [Pp. ?3 & M]A,B&C PLJ 1978 Kar. 342 ; PLD 1976 Kar. 448 & PLD 1973 Kar. 78 ref. Petitioner in person. Mr, Sayeed A. Shaikh, Advocate-General for Respondents. Date of hearing : 3-9-1986. judgment Nasir A. Zsbid, J —This petition filed by the petitioner Fatehyab All Khan calls into question the order dated 12-8-1K86 passed by the District Magistrate Karachi (East) under section 3(1) of the Maintenance of Public Order Ordinance, 1960, ordering detention in judicial custody of the petitioner for a period of 30 days. According to the petitioner, he was served with this order on 13-8-1980 and since then he has been in detention. We have heard Mr. Fatehyab Ali Khan, the petitioner and Mr. Sayeed A. Shaikh, learned Advocate General Smd. 2. When this matter came up before us on 1-9-1986 we asked the learned Advocate-General to produce the material before the Court for its perusal, on the basis of which the aforesaid order of detention had been passed. The case was adjourned to 2-9-1986, on which date the material was produced for our perusal. However, the hearing could not be com­ pleted yesterday and as such the case was adjourned for today for further hearing. We have perused the material, on the basis of which the District Magistrate passed the detention order. An application had been filed uader Articles 6 & 7 of Ibe Qaoooa-f-Sbahadat, 1984 by the learned Advocate-General that the material, which had been produced by the respondents in a sealed cover for perusal by the Court, may not be disclosed to the petitioner, as the respondents were claiming privilege. We have gone through the two documents in the material produced before us, which relate to the petitioner and we find that there is nothing in the said material, on the basis of which privilege could be claimed by the respondents. We may also observe here that the petitioner has challenged the detention order dated 12-8-1986 and unless be peruses or is allowed to go through the material, on the basis of which the order of detention is passed under section 3 of the Maintenance of Public Order Ordinance, I960, he is prejudiced in the prosecution of this petition. In the circum­ stances, we allowed the petitioner to peruse the two reports, which form the material, on the basis of which the impugned order dated 128-1986 had been passed by the District Magistrate for his detention. However, we find it not necessary to give any decision on whether the material, on the basis of which the detention order was passed, was such that an order of detention could or could not have been passed by the detaining authority, as another legal point has been raised by the petitioner and we are of the view that on this point the detention order is liable to be set aside. The point raised by the petitioner is that subsection (6) of section 3 of the Maintenance of Public Order Ordinance, I960, provides that where a detention order has been made the authority making the order shall as soon as may communicate to such person the grounds on which the order has been made informing him that he is at liberty to make a representation to the Government against the order and afford him the earliest opportunity of doing so, but in his case although the detention order was passed on 12-8-1986 and the memo containing the grounds for communication to the petitioner had been prepared and signed by the detaining authority i.e. the District Magistrate Karachi (East) on 19-8-1986, according to respondents, the grounds were communicated to the petitioner in the evening of 27-8-1986. It may be observed here that according to the petitioner, the grounds were not served upon the petitioner even on 27-8-1956. In support of his contention that on account of inordinate delay in the communication of the grounds the detention order becomes illegal and is liable to be set aside, the petitioner has referred to and relied upon the folowing reported decisions :— (i) Liaquat All v. Government of Sind (PLD 1973 Kar. 78). (/;') Hakim Khan v. Government of Sind (PLD 1976 Kar. 448). (;'/;') Miss Benazir Bhutto v. Government of Sind (PLJ 1978 Kar. 342). In all the aforesaid decisions by this Court it has been held in unambiguous terms that grounds, upon which the detention order is passed under the Maintenance of Public Order Ordinance, 1960, must be com­ municated to the detenue as soon as may be and in PLJ 1978 Kar. 342 this Court has gone on to hold that this expression "as soon as may be" cannot be interpreted to mean more than 24 hours. The learned Advocate-Gineral Sind first took up the plea that this point, that has bscn raised, is not specifically taken in the memo of petition and in any case the respondents may be granted' time to file an affidavit explaining the reasons for the delay that has taken place in the communi­ cation of the grounds in this case to the petitioner. In so far as the first submission of the learned Advocate-General is concerned, it may be observed that in para 5 of the memo of petition it has been stated that no grounds have been supplied to the petitioner and this petition was filed on 13-8-1986. We find no merit in the first contention of the learned Advocate-General. In so far as the other submission of the learned Advocate-General is concerned, that he may be granted time to file an affidavit explaining the delay, it may be obierved that normally when such a request is made, the Court grants time to the party making such request but in the instant'case we are of the view that no time can be granted to the respondents. Firstly, we may observe that the detention order is only for 30 days Secondly' we may mention that it has taken the District' Magistrate, the detaining 1 authority nearly 15 days to communicate the grounds to the petitioner to ! inform him as to why he is being detained for a period of 30 days. Even if there may be some explanation for the delay of a few days in communi­ cating the grounds, the record shows that the memo for communication of] the grounds to the petitioner was ready and also signed by the District Magistrate East Karachi on 19-8-1986 but even then it took nearly one (week for the detaining authority to communicate the same to the petitioner. |No explanation whatsoever can condone this delay. It may be observed that the learned Advocate-General had referred to para 9 of the counter-affidavit dated 1-9-86 of the District Magistrate East Karachi, which reads ai follows : — "It is submitted that as apprehended large scale public disorders and disturbances, causing damage to person and property brok out in Karachi District East from 14-8-1936 under my administretive charge and the entire administration including myself becama engaged and pre-occupied in controlling the law and orderc situation, which continues to require my and my administration's constant vigilance till today.'' Even if what the District Magistrate has stated in para 9 of his couoterjaffidavit dated 1-9 1986 is correct, could not possibly justify or condone "'he delay of 15 days that has taken place in the communication of ttbe grounds of detention to the petitioner, who has been detained for a 'period of 30 days oi,ry. Constitutional Petition No. D-670 of 1986 is allowed. The detention .order dated 12-8-1986 passed by the learned District Magistrate Karachi JEast ordering detention of the petitioner Mr. Fatehyab Ali Khan under ^section 3 (I) of Maintenance of Public Order Ordinance, 1960, for a period (of 30 days is declared to be unlawful and it is hereby quashed. The "petitioner should be released forthwith unless he is required in any other case. (TQM) Petition allowed.

PLJ 1987 Karachi 84 PLJ 1987 Karachi 84 Present : ibadat yar khan, J ZUBAIR AHMED—Plaintiff versus PAKISTAN STATE OIL COMPANY LIMITED, Dawood Centre, Tamizuddin Road, Karachi and Another—Defcndents CMA No. 1937/1985 (in Suit No. 391 of 1985), allowed on 7-12-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

O. XXXIX, Rr. 1 & 2—Temporary injunction—Grant of—Balance of convenience—Relevancy of—Plaintiff requesting for grant of in­ junction — Held : Balance of convenience or comparative incon­ venience to each party to be (one of) relevant considerations (for grant or refusal of injunction). [P. 87]D (ii) Contract Act, 1872 (IX of 1872)-

S. 201—Agent — Termination of authority of—Effect of—Held : No agent or attorney to be authorised to continue to represent and deal with third parties for and on behalf of principal after withdrawal of authority by principal or termination of power by grantor. (P. 871B (Hi.) Contract Act, 1872 (IX of 1872)—

S. 202—Agent having interest in subject-matter — Termination of agency of—Licenses and agents allured to commit their capital on as. surances and guarantees of licensors and principal—Held: Such being cases of agency with interest and license coupled with grant licensee or agent not to be chucked of on whims of their counter parts. [P. 87JC (iv) Specific Relief Act, 1877 (I of 1877)- —S. 54—Employee—Terms of employment of—Termination—Injunc­ tion against—Held : No unwilling employer to be forced not to pre­ maturely terminate terms of employment of employee—Employee, in case of unlawful termination, to have his remedy in damages and not in injunction for remaining in service. [P. 87JA Mr. Abbas Zia, Advocate for Plaintiff. Mr. Muhammad Anis, Advocate for Defendant No. 1. Nemo for Defendant No. 2. Date of hearing : 25-11-1986. order This application for interim injunction has been filed by plaintiff in a suit for declaration and injunction. The plaintiff and defendants, by an agreement dated Nil Annexure "B" to the plaint agreed to run a petrol pump on a plot .. .. situated in Saja-Wal. By this agreement the defendants have appointed plaintiff as their agent/dealer to sell petroleum, Oil lubricants produced by the Defendants, on the plot. The plaintiff was also authorised to sell Batteries, tyre and automobile parts on the premises. The plaintiff had also built an auto­ mobile service station and equipped it with machinery and other facilities for servicing motor vehicles. It is claimed in the plaint that with consent and authority of the defendants the plaintiff has, constructed/renovated building and structures, and built an under-ground tank, and has built a pucca drive away. It is further alleged in the plaint that in all this construc­ tion renovation and face lifting of the site the plaintiff has spent sums exceeding Rupees Two lacs. These investments and efforts have been duly acknowledged by the defendants. The volume of business has increased and sale of the defendants products have touched high peaks chat these efforts have earned good will and profits for the defendant company. Details of investments have been given in para 7 and para 10 of the plaint and certificate of appreciation and acknowledgement by the defendants inspector have been filed as Annexures 'C' and 'D' to the plaint. The plaintiff has been running the business of petrol pump since 1982 fullfilling all the obligations and conditions of the agreement. It is complained that, the defendant without any reason or justification decided to abruptly termi­ nate the dealer-ship and asked the plaintiff to vacate and surrender the possession and the running business to the defendants or their nominee. This threatened injury, the learned counsel for the plaintiff calls an irrepar­ able injury. The plaintiff has prayed for several reliefs but the relief germane for purposes of disposal of this application under Order 39 Rule 1, 2 of CPC is as follows :— (17) "That the plaintiff prays for the following reliefs :— (a) fora c'ccree of declaration that the plaintiff has himself an interest in the subject matter of Dealership agency of service/ filling station of Petrol Pump Station at Sujawal, District Thatta and the agreement of Dealership cannot be terminated by the Defts. to the prejudice of such interest." Mr. Abbas Zia, learned counsel for the plaintiff has submitted that it is not a case of license simpliciter which could be terminated leaving the injured party to claim damages and compensation. The learned counsel reads in the situation of this case an agency coupled with interest and a license coupled with grant and vehemently argues that the relationship between the parties was a contract governed by Section 202 of the Contract Act which is as follows :— "202. Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the pre­ judice of such interest." The learned counsel for the Defendant No. 1 Mr. Muhammad Anis disagrees with the contentions raised by the plaintiff counsel. He has read the different clauses of the dealer-ship agreement, particularly clause 12 (a) which provides for termination of the agreement by either side by giving one month's notice to the other. Learned counsel argues that after the termination of license consequences provided in clause 13 would begin to flow and in the language of the agreement in this clause : — "Upon termination of the licence for any cause whatsoever, Licencee shall cease to have any right, or interest whatsoever to enter or remain on the said premises, or to use the said facilities or to interfere in the management of Service/Filling Station. Upon the termination of the licence the Licencee shall forthwith deliver the said premises and facilities to the company or to its duly authorised agent." Mr. Abbas Zia, learned counsel for the plaintiff has argued that clause 13 cannot be torn out of its context. The learned counsel adds that the penal consequences visualised in clause 13 cannot be operative against the plaintiff until the obligations detailed in the proceeding para 12 (a) are violated by the plaintiff and untill the plaintiff commits breach of any of the conditions of the agreement. In the present case the record of the plaintiff has remained satisfactory. There is everything in his favour and nothing against him. The certificates issued by the inspector of the defendants and high mark of sale of defen­ dants products hit during the period of agency/dealership are the best testimony of performance by the plaintiff. In any case the threatened termination is not on account of any such breach. On the face of it is arbitrary and dis-honest inpired by selfish and questionable motives. So the learned counsel contended. Both counsel have quoted earlier decisions and tried to apply them on the facts of the case on hand. Mr. Pishori had relied on (1) PLD 19c5 SC 83 (2) 1985 CLC p. 1522 (3) 1985 CLC p. 2891 (4) 1965 K. p. 202 (5) 1973 Kar. 234. There is no controversy on the preposition that there are certain situa-i tions in which Courts cannot decree performance. For instance no un -L willing employer can be forced not to prematurely terminate the terms oi'» employment of an employee whom he does not want. For unlawful! termination, the employee would have his remedy in damages and not inj an injunction for remaining in service. Similarly a contractor entering on premises to execute works with license or permission of the owner cannot be provided a relief to hold on to th^ permissive possession if the license has been cancelled or permission withdrawn. No agent or attorney can be authorised to continue to represent and deal with third parties for and on; behalf of the principal after tne authority has been withdrawn or power) has been terminated b;. grantor. Had it not been so the results would have been disastrous. But thsrj are cases which are exceptions to this general rule In situations where the stakes of licensees and agents are. higher and tbe> have oeen allured to commit their capital on the assurances. and guarantees of the licensors and principal then such licensee or agent! cannot be chucked of on the whims of their counterparts. These are cases! of agency coupled with interest and license coupled with grant. To appraise such issue in a case is always difficult and surely the crux of the matter. Until this crucial issue is investigated after evidence from both side any decision would be premature and may result in mis-carriage of justice. In the present case the suit itself is for a declaration and injunction. What were the assurances offered to the plaintiff and what promises were held out to him which induced the plaintiff to go to such an extent as to put in his own money in the adventure remains to be seen It is not a case where the plaintiff was installed on the driving wheel of a car to press the button and release the clutch to start of. According to statement in the plaint, he was asked to pick up bits and pieces, join them together manu­ facture the car at his own expenses and then take a ride. An investment of a sum of Rs. 2 lacs with consent and at the request of the defendants is something different from just operating the filling machine installed on a pertrol pump. For purposes of disposal of this application and till the evidence is offered by the parties there is a prim a facie case in favour of the plaintiff to indicate that this was a case of agency coupled with interest. The plaintiff have been running this business and have earned a good will among their customers. If they are thrown out before they have the opportunity to prove their case they would be uprooted from an establish­ed business which would mean a hard-blow on their established business and popularity in the oil business. The defendants on the other hand have been regularly receiving their share and charges from the plaintiff. Balance of convenience or comparative inconvenience to each partyj is also to be considered when the plaintiff requests for an injunction. Thcio defts, have not shown what irreparable injury would be caused to them ifj they are not put in possession for with and the plaintiff is allowed to re­ main on the land subject to his regularly paying all the commissions earned and also paying the Government dues and taxes regularly. Mr. Abbas Zia, learned counsel for the plaintiff has relied on the case of Egypt Air. reported in 1980 SCMR p. 588. The plaintiff was appointed the sole selling agent by the Egypt Air Co. to sell their tickets to passengers and also book the cargo. The Air Company then cancelled the agency and tried to resume and appoint some-one else as their selling agent. There were charges of non-payment and misappropriation also against the agency by Egypt Air. The agent filed suit for declaration and injunction and also prayed for an interim injunction. The learned single Judge dismissed the injunction application and tne agent filed an appeal before the Supreme Court. The learned Judges while granting the plaintiff leave to appeal observ­ed that the case involved substantial questions of law and fact. There seems to be a close resemblance between the two cases. Their Lordship formu­ lated the points that could be raised in that appeal in the following manner :— (Hi) "Whether the plaintiff/petitioner is entitled to continue the agency and or claim damages from the principal on the pleadings as made by him in his plaint and if so to what ultimate relief he will be ,entitled on the facts and in the overall circumstances of the case." (i) Under what circumstances a contract of agency of the kind involv­ ed in this case could be cancelled or revoked by a principal." A close look on the plaint would show that exactly the same question arise in the present case also. The first relief claimed by the plaintiff is :— (17) "That the plaintiff prays for the following reliefs :— (a) for a decree of declaration that the plaintiff has himself an interest in the subject matter of Dealership agency of service/ filling station of Petrol Pump Station at Sujawal, District Thatta and the agreement of Dealership can not be terminated by the Defendants to the prejudice of such interest." Respectfully following the Egypt Air case quoted above I would allow this application and confirm the interim injunction which was granted to the plaintiff in chambers by order dated 1061^85. It may be clarified that no arguments wire addrsssed on behalf of defendant No. 2 and this order is without prejudice to the rights of the deft. No. 2 and to any remedies available to this defendant. (TQM) Application allowed.

PLJ 1987 Karachi 88 [DB] PLJ 1987 Karachi 88 [DB] Present : nasir A. zahid & syed ally madad shah. JJ IMDAD ALI—Petitioner versus FEDERAL LAND COMMISSION, Civil Lines, Rawalpindi and 2 Others—Respondents Const. Petition No. D-21 of 1979, allowed on 9-9-1986 (i) Land Reforms Regulation, 1972 (MLR 115)— ——Paras. 7(1) (b) & 29—Transaction—Validity of—Challenge to — No case pending b:fore Federal Land Commission prior to 30-11-1976—First notice received by petitioner for re-opening case dated 28-9-1978—Held : Case not to be (competently) re-opened after 30-11-1976. [P. 9Q]A ii; Land Riforms Regulation, 1972 (MLR 115)—

Paras, 29 & 7(!)(o)~Federal Land Commission—Revissonai jurisdiction of-—Exercise of—Senior Member Federal Land Com­ mission re-opening matter under sno moiu revisional powers and setting aside order (dated 10-6-1972) passed by Land Commissioner in favour of petitioner—Held : Case having been re-opened after 30-11-1976, impugned order (dated 14-12-1978) to be declared to have been passed without lawful authority and to be of no legal effect. [P. 90]5 Kazi Qadir Bux.. Advocate for Petitioner. Mr. S, Inayat AH, Advocate for Respondent No, J, \ 7 enw lor Respondents 2 & 3 Date of hearing : 9-9-1986, judgment Nasir A. Zahid, d. —The petitioner, a declarant under Land Reforms Regulation 1972 (MLR 115) has filed this constitutional petition challeng­ ing the order dated 14-L2-1978 passed by the Senior Member, Federal Land Commission. As a declarant, the petitioner had filed a declaration required to be filed ; under the provisions of the Land Reforms Regulation 1972 and in the said declaration he had shown an alienation by way of sale made during the specified dates. The matter came up before the Lan d Commissioner, who by order dated 10-6-1972 confirmed the said aliena­ tion, A notice dated 28-9-3978 was received by the petitioner from tne Senior Member, Federal Land Commission for re-opening the case under -U'} motu revisional powers of the Senior Member, Federal Land Commis- ?-on. Pursuant to the notice, the petitioner appeared and the impugned order di:ed l4-:2-19~8 was passed by the Senior Member, Federal Land J:n^.-:.::'. sitting a;;d: the order of Land Commissioner dated 10-6-1972. 3:.ig 3gs::,: • 1 2. :::; p:;-:ent constitutional petition has bean filed by the ?i::t: ;.•;:. We have heard Mr. Kazi Qadir Bux, learned counsel for ;'-s pe::':onir and Mr. S Inayat Ali, learned counsel appearing for respondent No !, Federal Land Commission. None has appeared on behalf of respondents No. 2 & 3. 2. The order passed by the Land Commissioner under Para­ graph l([)(b) of the Land Reforms Regulation 1972 could be re-opened under the suo motu powers available to the Federal Land Commission under Paragraph 29 of the said Regulation. However, the third proviso to paragraph 29 lays down that record of any case or proceedings, in which an authority had passed an order, shall not be called for under this paragraph by the Federal Government or the person authorized by it of its or his own motion after 30th of November, 1976. This date of 30th November, 1976 is the last date, by which act ion for re-opening the case could be taken under Paragraph 29 of Land Reforms Regulation 1972 and this was inserted in the Regulation by the Land Reform (Second Amendment) Act 74 of 1976. Prior to this amendment, there were other dates and such final dates were extended from time to time but according to the learned counsel for the petitioner, 30tb day of November, 1976 is the last date for re-opening the cases under Paragraph 29 and thereafter this date has not been extended. Mr, S. Inayat Ali, learned counsel for the Federal Land Commission, states that he has made search and he has also found i hat 30th day of November, 1976 was the last date, by which a case could be re-opened under Paragraph 29 and this date has not been extended. It is an admitted position that no case was pending before the Federal Land Commission prior to 30th November, 1976, in so far as the petitioner was concerned and the first notice that was received by the petitioner for re-opening the case is dated 28-9-1978. Under the provisions of the Land Reforms Regulation 1972 the case could not be re-opened after 30-11-1976 and in the Land Reforms Act of 1977 also no provision could be pointed by the learned counsel for the Federal Land Commission, under which an order passed by a Land Reforms Authority under Para­ graph 7(1 )(b) of Land Reforms Regulation 1972 could be re-opened after 30-11-1967. The petitioner has also taken this as a specific ground in Ground No. 2 of the memo of petition No counter-affidavit has been filed and as observed earlier, even according to the learned counsel for the Federal Land Commission, the date 30-11-1976 has not been extended by law. 3. As a result, the Senior Member, Federal Land Commission could not re-open the matter under the revisional suo motu powers and set aside the order dated 10-6-1972 passed by the Land Commissioner in favour of the petitioner. As no power vested in the Senior Member, Federal Land Commission, to re-open the matter, the impugned order lated 14-12-1978 of the Senior Member of Federal Land Commission is eclared to have been passed without lawful authority and to be of no legal etfect. This Constitutional Petition No. D-211/79 is accordingly allowed but with no order as to costs. (TQM) Petition accepted

PLJ 1987 Karachi 90 PLJ 1987 Karachi 90 Present , tanzil-ur-rahman. J PRINCE GLASS WORKS LIMITED, State Life Bunding, I. 1. Chundrigar Road, Karachi—Plaintiff versus NATIONAL BEVERAGES LIMITED, Estate Avenue. SITE. Karachi and Another—Defendants CMA No, 4808 of 1986 (in Suit No. 339 of 1986), dismissed on 18-11-1986 (i) Establisment of the Office of Wafaqi Mobtasib (Ombudsmao) Order, 1983 (P. O. 1 of 1983)—

Arts. 3, 9, 11 & \3-Wafaqi MohlasiVs— Establishment of office of—Object of—Held : Wafaqi Mohtasib's Order to be special statute enacted for taking speedy action in order to redress and rectify injustice done to citizens through mal administration. [P. 92] ,4 (ii) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, If83 (P. O. 1 of 1983)— —-Art. 9 —Wafaqi Mohtasib —Jurisdiction of—Held : Mohtasib's jurisdiction to extend to Ministry Division, Department, Commission or offices of Federal Government or statutory Corporation or other institution established or controlled by Federal Government — Such jurisdiction, however, not to extend to Supreme Court, Supreme Judicial Council or High Courts—Held further : Date of receipt of complaint (made by plaintiff) to Wfaqi Mohtasib to be terminal point so as to decide question of jurisdiction of Mohtasib. [P. 92J.S (iii) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P. O. 1 of i983)~~

Art. 9(1) Proviso (a)— Wafaqi Mohtasib — Jurisdiction of—Bar of—Matter sub-judice in court—Interference with—Complaint lodged with Mohtasib prior to filing of suit in High Court—Held : Matter being not aubjuaice in court before its having been taken to Wafaqi Mohtasib. provisions, of proviso (a) to Art. 9(1) ousting jurisdiction of Mohtasib not to be attracted. [P, 92]C Mr. E. A. Noniani, Advocate for Plaintiff, Mr. I, H. Zaic/i, Advocate for Defendant No, 1. Mr. Muhammad Saleem, Advocate lor Defendant No, 2. Date of hearing : 18-11-1986 order This application under Order XXXIX, ruies 1 & 2 CPC for restraining and prohibiting the plaintiff from proceeding and/or pressing their claim, before the Federal Ombudsman, Pakistan, arises out of the suit for recovery of Rs. 22,83,109-69, being un-paid price of goods sold ind delivered, inclusive of intere^t/mark up, as alleged, Mr. Zaidi. whose argument is adopted by Mr, Muhammad Sabero. jq spp-rt of the above application submits that the Wafaqi Mohtasib has no jurisdiction to examine and decide the matter in dispute as it is subjudice before this Court. Reliance is placed on proviso (a) to sub­ section (1) of Section 9 of the Establishment of the Office of Wafaqi Mothasib (Ombudsman) Order, 1983. Relevant portion of section 9 reads as under :— "Sec 9.— Jurisdiction, functions and pwers of the Mohtasib. —(1) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees ; Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which ; (a) are sub judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him ; or On the other hand Mr. Nomani submits that this Court or for thai matter any other authority has no jurisdiction to grant an injunction or stay or make any interim order in relation to any proceedings oefore the Mohtasib, Reiiance is placed by him on Section 29 of the said Order, which reads as follows : — "29. — Bar of jurisdiction. — No Court or other authority shaS! have jurisdiction ; to question the validity of any action taken, or intended to be taken, or cycler made, or anything done or purporting to have been taken, made or done under this Order ; or to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib.'' Wafaqi Mohtasib' s Order is a special Statute enacted for taking speedy action in order to redress and rectify and injustice done to a person through maladministration. The /v/<>//?«>//}'.v jurisdiction extends Co a Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, Supreme Judicial Council or a High Court. To appreciate the submission of Mr Zaidi, the date of the recespt of complaint made by the plaintiff to the Wofaqi Mohtaasib will be a terminal point so as to decide the question of jurisdiction of Wafaqt Moltiasib as provided in Section 9 quoted aoove. Mr. Nomani invite my attention tu paragraph No. 2 of the counteraffidavit filed by him ana submits that the complaint - .vas filed before the Mohtasib as long back as 13—1985, whereas the above suit rus been filed in this Court on 22-4- 19fco. it is now aa admiueu petition between the parties that the compiaiat wa.-> lodged w th the Mohtasib prior to the filing of the above suit in this Court, and so it cannot be said chat the matter w<»s sub-judice in the Court before ii was taken to the As such, the provision;- of proviso (c) to Section 9 of the Order cutting the jurisdiction of the Mchiasib do not seem to be attracted. Fuftheviiiofc, section 29 of tha Order bars the jurisdiction of the Court or othes authority to question '.be validity of any action taken or intended to be akeo., or order made, vr anything done or purporting to have bsea iakto, : iuade or done ^uder sue Order or to grant an injunction or stay or u> make any interim order in relation to any proceedings before the Mohtasib in a matter lal^j? within the jurisdiction of the Moinasib. The application is t5i,,-fi)(c, dismissed, (TQM") Application dismissed

PLJ 1987 Karachi 93 PLJ 1987 Karachi 93 Present : ahmad An U. quksshi, J MUHAMMAD SALAHUDDIN—Petitioner versus Mat. RUKHSANA SAEED and 2 Others—Respondents Const. Petition No. S-l of 1985, dismissed on 30-9-1986 (i) Family Courts Act, 1964 (W. P. Act XXXV of 1964)—

S, 5 read with Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)—S. 2 (viii) & Constitution of Pakistan, 1973 — Art. 199 — Family Judge—Decision of—Challenge to—Writ jurisdiction—Inter­ ference in —Decision of Family Judge not shown to be without lawful authority or without jurisdiction—Held : Mere fact of such decision being erroneous or incorrect not to call for interference by High Court in exercise of its writ jurisdiction. [P. 96]B PLJ 1974 SC 60 & PLJ 1973 SC 42 ret. (ii) Family Courts Act, I9t4 (W. P Act XXXV of 1964)—

Ss. 5 & 3 read with Constitution of Pakistan, 1973 — Art. 199 — Family Court —Decision by — Challenge to — High Court — Writ jurisdiction of-Interference in—Held : Family Court being Special Tribunal working under special law, jurisdiction of High Court to interfere on point of fact to be limited (under Art. 199 of Constitu­ tion). [P. 95]A Mr. Akhlaq Ahmed Siddiqui, Advocate for Petitioner. Nemo for Respondents. Date of hearing : 29-9-1986. JUDGMhNT In this petition the petitioner is aggrieved by the judgment and decree of the learned Family Judge/Family Court No. XXI, Karachi, dated 20-8-1984 and prays for declaration, that the said judgment and decree be declared unlawful, not accordance with law and to have no legal consequence. The brief facts leading to these proceedings are, that the petitioner was married with respondent No. 1 on 16-11-1979, On 24 9-1983 respon­ dent No. 1 filed a suit for dissolution of her marriage on the ground of non-maintenance and cruelty of conduct. The suit was contested by the petitioner, who denied the allegations. The learned Family Judge on the pleadings of the parties framed the following issues : — Whether the defendant ha-3 failed to maintain the plaintiff and children ? Whether the defendant had maltreated the plaintiff and turned out from his house? Whether the husbaad is entitled for restitution of conjugal rights '! Whether the plaintiff is entitled for dissolution of marriage ? Whai should the decree be '.' By the impugned , rder, the learned Judge' dissolved the marriage of the petitioner with th; respondent. As this decision was not appealable the petitioner filed this petition, 3. I have heard the learned counsel for the petitioner and perused the relevant documents filed by the parties. The respondent No. 1 as well as her advocate were called absent. Respondent Nos. 2 and 3 are formal respondents and no relief is claimed against them. 4. In the proceedings before the learned Family Judge the respondent No. 1 examined herself and also her father PW Saidur Rehman, her brother PW Hasibur Rehman and neighbour PW Abid Ali. In rebuttal, the petitioner examined himself, nis father PW Muhammad Allauddin and PW Abdul Jabbar. The learned Family Judge has considered the evidence led by the parties and have decided Issue Nos. 1 and 2 in favour of respondent No. 1, The relevant part of the findings of the Family Judge may be reproduced as under :-» "I have very carefully perused the evidence led by the parties. Father of the defendant has admitted, that he told the plaintiff to resign the service or otherwise no need to return back. The defendant's father has alleged that he was maintaining whole family along with parties in suit This above statement neither deposed by the father nor by DW 3. It is also a point of consideration when defendant's father was convicted in jail, then who provided the maintenance to the plaintiff and children. While DW 3 has deposed that for the last two years pan cabin is closed, according defendant litigation is pending about it. The defendant could not produce any documentary proof regarding the payment of maintenance and dower to the plaintiff. There is many contradiction is found in defendant's state­ ment. At one stage he deposed that tenament No. 33/C/D. H. S. was obtained from Mr. Minhaj at rate Rs. 300/- by him. Again says his father had obtained it at rate Rs. 275/- per month. The defendant stated he used to give maintenance Rs. 500/- to Rs. 700/- to the plaintiff while DW 3 deposed maintenance was given Rs. 700/- to Rs. vOO/- while defendant's father has deposed that there is joint family system in his family. It seems very strange that does not know amount is given by the defendant while according to him defendant used to manage the book and business accounts. The defendant denied, that behaviour of his parents was not cruel with her. This statement of the defendant is proved false and base­ less, if admission of his father that he told her to resign from the service, otherwise no need to return to the house. From this it is clear that his family members behaviour was cruel with the plaintiff and she was turned out by his father that is a admitted position. The defendant could not produce any receipt of pavment of delivery charges that was paid by him. No documentary proof is produced of alleged Rs 600/- which was paid to the difendant by his father. In Ex. 5-E, defendant mentioned his address S-2/463, Saudabad, Malir, Karachi, in fact this is the address of plaintiff's parent. It means in 1982, the defendant was residing with plaintiff's parents. It is clearly mentioned in Ex. 5-D, that defendant will search any job as soon as possible and will obtain a separate house on rent. He has failed to comply the promise which he had done before Chairman. It is also stated by DW 2 that defendant did not obtain house on rent. The behaviour of defendant and his parents with the plaintiff is amounted in mental cruelty which is explained in Section 2 cl, (viii) (a) that husband treats her with cruelty, habitually assaults her on make h-;r life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment. The plaintiff was forced to live away from the husband, and her life was being made miserable by reason of the fact, that a return to her husband's house was out of question as it meant sub­ mission to condition impossible to tolerate for a self-respecting woman. Admittedly, she was forced to cruelty of conduct within the meaning of Section 2 clause (viii) (a) of Dissolution of Muslim Marriages Act, 1939." 5, The learned counsel for the petitioner has submitted that the evidence produced by respondent No. 1 is inconsistent and self contradic­ tory and as such the findings arrived at by the learned Family Judge are not correct. He has relied upon NLR 1986 Civil 345 wherein a learned Single Judge of Lahore High Court, in a Revision Application, has held, •'that the finding which is recorded against evidence and is based on misreading/misconstruction of evidence was open to interference in the revision as such finding would be suffering material irregularity." 6. It may be pointed, that Family Court is a Special Tribunal working under Special Law. This Court, in exercise of its writ jurisdiction, is not sitting as Court of Appeal or Court of Revision, Its jurisdiction to inter­ fere on the point of fact is limited. The petitioner seeks declaration that ths impugned judgement was without lawful authority and of no legal effect. This expression has been dealt with by their Lordships of Supreme Court in case of Muhammad Hussain Munir v. Sikandar & others (PLD 1974 SC 139= PLJ 1974 SC 60). It is is held as under : — "Witbouf lawful authority and of no legal effect" was an expres­ sion of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law—High Court, in exercise of its writ jurisdiction, con­ cerned only with question whether Court or Tribunal below had acted '.vithin its competince to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as "without lawful authority"—High Court, in writ jurisdiction, not competent to interfere with order of Tribunal on purely equitable considerations." In PLJ 1973 SC 42 their Lordships have considered the distinction between an incorrect decision and void decision and the resulting conse­ quences. It has been observed as under :— "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and mere a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction." 7. Keeping in view the law laid down by the Supreme Court in above jdecisions the order of the learned Family Court cannot be considered as Jwithout lawful authority even if it is arroneous and on the basis of jevidesce on record a contrary decision could have been arrived at. The smere fact, that the decision is erroneous or incorrect would not call for interference by this Court in exercise of its writ jurisdiction, as order is neither without lawful authority nor without jurisdiction. I find no merit in this petition which is dismissed with no orders as to costs, The petition was dismissed by a short order on 29-9-1986. The above are the reasons in support of the said order. (TQM) Petition dismissed

PLJ 1987 Karachi 96 PLJ 1987 Karachi 96 Present ; saleem akhtaf, 1 SUNKIST GROWERS INC. CALIFORNIA . USA tire.gb Trade Marks Agent>. Karachi —Aprs'.la:: verses Messrs KARACHI AEROSAL COMPANY LIMITED. Kira::: and Another—Respondents Misc. Appeal No. 49 of 1983, dismissed on 16-11-1986 (i) Trade Marks Act, 1940 (V of 1940)—

S. 10—Trade Mark—Registration of — Confusion — Standard of judging — Held : Standard of judging confusion not to be made by putting it to test to completely ignorant and extremely careless persons—Such persons should be of fairly average intelligence in all circumstances giving allowance to errors, mistakes, foolishness and probabilities — Extreme case of error, mistake or foolishness, however, not to be made yardstick for determining probability of confusion or deception. |P. 98]B PLD 1977 Kar, 858 ; AIR 1940 PC 86 ; 1942 59 RFC 127 & AIR 1953 SC 357 re/. (if) Trade Marks Act, 1940 (V of 1940)— -—S. 10—Trade Mark—Registration of—Confusion and deception— Question of—Held: While judging question of confusion and deceplion likely to be caused, court not to take into consid:ration extraordinary or abnormal person but purchaser of ordinary and average intelligence, understanding and comprehersnion giving due allowance to usual imperfection of memory sight hearing and intellect. fP, 99]C (iii) Trade Marks Act, 1940 (V of 1940)—

S. 10—Trade Mark—Registration of — Refusal of — Similar or identical trade marks — Confusion caused by — Test regarding — Held : Normal surrounding circumstances, possibilities and probabi­ lities and average intelligent persons "with reasonable apprehension and proper eye sight" to be taken into consideration for judging confusion and deception while comparing two trade marks—Error by person who be extremely careless and without proper understanding, on other hand, to be made no yardstick. [P. 98]A (i») Trade Mirks Act, 1940 (V of 1940) —

S. 10—Trade marks—Similarity of— Effect of — Held : Identical trade marks or their similarity not necessarily to lead to conclusion regarding their being likely to cause confusion and deception to purchaser—Nature of goods, reputation acquired by registered trade mark, nature of customers, trade channels and likely confusion among substantial number of purchasers to be relevant considera­tions (for reaching proper conclusion). [P. 99]D PLD 1978 Kar. 161 & PLD 1969 Kar. 376 ref. Mr. S. Shaukat AH, Advocate for Appellant. Mr, Ibrahim Pishori, Advocate for Respondent No. 1. Date of hearing : 4-11-1986, judgment The respondent applied for registration of its trade mark comprising of the word 'SUNKIST' in class 5 in respect of medical and surgical plasters, disinfectants and insecticides'. The appellant filed objections on the ground that it is carrying on for many years past a world-wide reputed business as a well known manufacturer and merchant of foods and ingredients of foods of high quality, under the fanciful and invented trade mark 'SUNKIST'. The word 'SUNKIST' has been used for considerable number of years on a substantial scale all over the world including Pakistan in respect of all kinds of food and ingredients of food. By virtue of enormous publicity by various means of publication the trade mark 'Sunkist' has become very famous all over the world including Pakistan and has acquired a great popularity among the trade and public. The appellant's trade mark 'Sunkist' has been registered in many countries of the world including Pakistan , In Pakistan has been registered at \ T o. 19009 on 29-8-,9^2 in class 29 in respect of all kinds of foods and .ngredisnts of foods, wbich is still in force. In support of the opposition :;ie appellant submitted statutory declaration of its President, Vice President, marketing Service Manager, and one Ikhlas Aqmed an im­ porter. Counter statement was filed by the respondent No. 1, The Registrar after considering the evidence rejected the opposition and granted the application of the respondent No. 1. 2. Mr. Syed Shaukat Ali the learned counsel for the appellant has contened that the respondent No. I is not entitled to registration as the trade mark is likely to cause confusion or deceive the public and it is thus disentitled to the protection of the court of justice. In this regard the learned counsel contended that the food products and food ingredients and the products like surgical plaster and disinfectants of the respondent No. 1 are likely to be sold in the same counter in the same shop which may cause confusion in ths mind of unwary purchaser. In this regard the learned counsel has solely relied on an order of the Assistant Controller in the case of Jardex reported in (1946) 63 RPC 19. In this case the applicant had applied for registration of trade mark Jardex in respect of disinfectants The proprietor of mark of Jardox registered in respect of extract of meat and forming part of opponents name filed opposition that close resemblence disenitles registration and that "since the disinfectants sold by the applicant are of a poisonous nature and might bq confused with the goods sold by the opponents under their trade mark 'Jardox', the use of the mark 'Jardex" would constitute a serious danger to the genera! public". The authority holding that the goods in both the trade mark cannot be regarded- as goods of the same description and noted that on the basis of evidence considerable quantity of meat extracts under the trace mark "Jardox" have been supplied to hospitals as an invalids food but invalids food is registered in class other than in which meat extracts is. registered. It was observed that "meat extract must in my view be registered as one and the same description of goods, whether they are intend?:-] for con­sumption by invalids or by healthy persons". However, registration w^s refused on the ground that possibilities of a seiious accident though remote cannot be ruled out if due to negligence some on; might be given to swallow a quantity of the disinfectant Jardex in mistake for a quantity of the meat extract Jardox. The entire reasoning of trm craer is based on remote possibility of an untoward accident due co extreme negligence and extra ordinary human error in using Jordex disinfectant for Jardox, meat extract. The question arises whether the confusion and deception which may be caused by two similar or identical trade marks :n respect of two different goods can be determined on the basis of remote possibilities, ixceptional circumstances and abnormal conditions, In such cases one has to take into consideration tbc normal surrounding circumstances, oossibilities and probabilities at.d average irteHigent persons • .v;th reason­ able apprehension and proper eye sight" (190:) 22 RPC 601 The probable purchaser should be person of average intelligence who takes .ire to at least observe prima facie facts floating on tile surface and net thoss who do not take care even to !ook at it. He should not be of "pheiivjinci.al ignorance or extraordinary defective intelligence". f(is».)2 19 RPC i?)j. It is correct that to err is human and no body can be excluded from t'h; possibility of committing an error but the Kind of errors to be considered n cases of the present nature are not those which are absolute impossi­ bilities, but there should be reasonable probabilities, The error by a person who is extrsmely careless and without proper understanding can not be made yardstick for judging confusion and deception while compar­ ing two marks. Neville J. in Henry Thome & Co. Lid. v. Engen Sandow (1913) 30 RPC at page 3t>6 observed that "nobody will never make a mistake is more than I am prepared to say, but if there is a mistake, I think it will be made by some person so foolish or so unobservant as m that respect to be without the pale of protection ot law' 1 , in j"s 1902) 19 RPC 505] it was observed that 'Court does not, sit here to protect the imbecile but to protect ordinary persons using ordinary common sense' 5 , la Clark v. Sharp 15 RPC UI it was observed that "it is a question of likelihood o; deceiving average customers of the ciass which buys, neither those too Iclever, nor fools, neither those over carsful, nor those over careless'''. The standard of iudging the confusion cannot bs made by putting it to test to completely ignorant and extremely careless persons. They should be u;.f airly average persons of average intelligence in all circumstances giving jallo-.vance to errors, mistakes foolishness and probabilities. But extreme |case of error, mistake or foolishness cannot be made yard stick for deter­ mining the probability of confusion or deception. !n Glaxo Laboratory Ltd. v. Ais-stant Registrar Trade Marks PLD 1977 Kar 858 where question arosa whether Vistamycine for antibiotics was likely to cause confusion and deception for crystamicine antibiotics, it was observed that it is the ordinar, purchasers, who are likely to be misled by the imperfect recol­ lection of the appellants marks and not the so called expert chemists. In Thames Bear & Sons (India) Ltd, v. Paryag Narain AIR 1940 Privy Council 86 it was observed that the probable purchaser should neither be one who having no sense of discrimination, nor a person who is very careful observer of the things around him In Coca Cola & Co oj Canada v. Pepsi Cola Co. (1942) 39 RFC 127, the Privy Council observed that the purchasee should be a person of "average memory with its usual imprefectioo". In National Sewing Thread Co. . James Chadwick Bros., AIR !953 SC 357 it was observed that the likely purchaser should be an avergc man of ordinary intelligence. Therefore, while judging the question of confusion or deception likely to be caused the Court has not to take into consideration extraordinary or abnormal person but a purchaser of ordinary and average intelligence, understanding and comprehension giving due allowance to usual imperfection of memory, sight, hearing and intellect, 3. In the present case, the respondent has applied for registration of Trade Mark for medical and surgical plaster and disinfectant in class 5 whereas the applicant's trade mark is registered in class 29 in respect of all kinds of foods and ingredients of food. The appellant deals in fresh fruits and other ftuit products, but the admitted position is that it has not done any business in Pakistan The import of goods produced by the appellant are banned in Pakistan, in the statutory declaration it is not shown, that aav sals has been made in Pakistan through proper channel and in the ordinary legal manner, In fact in one of the declarations it is admitted hat goods have not been marketed in Pakistan. The appellant is merely relying on its reputation in foreign countries in respect of fruits and its products. Surgical plasters and disinfectants are neither similar in nature nor even resemble with the appellant's goods. They are completely different in nature and use, ft is possible that the goods may be sold under one roof, but that is not the only critarian because always "care is taken to keep poisonous and toxic material away from edible goods. The reasoning given in Jordex case is based on far and remote possibility and supposition based on conjecture and surmises. Any principle deduced from such circumstances cannot be treated as a sound principle of common or universal application. 4. The identical trade marks or their similarity do not necessarily lead to the conclusion that they are likely to cause confusion and deception; to the purchaser. In this regard one Has to take into consideration the nature of goods, the reputation acquired by the registered trade mark,! to the extent that the purchaser would consider that the goods with trad.- D marks proposed to be registered are the products of the proprietor of the! registered trade mark, the nature of customers, trade, channels and likely confusion among a substantial number of purchasers. In Snncv abushiki Knisha v. Registrar of Trade Marks and another (PLD 1978 Kar. 161) She appellant had filed opposition to the application of the respondent No, 2 for registration of trade mark Sony in class 25 in respect of "ail kinds of sport goods" on the ground that Trade Mark Sony was registered in its name in class 9 io_respect of Radio, Television, taperecorders etc Tbii pposition was rejected and registration of respondent's application was granted. In appeal it was observed :— "The goods of the appellant, being sophisticated electronic goods, are very special in nature, as compared with the ordinary cheap articles manufactured by the respondent No. 2, and with exception of a few thoughtless persons, it is difficult to believe that many average purchasers or the public would think that a tennis requet or cricket bat sold under the Trade Mark SONY was made by the appellant, I am of the opinion that the appellant has not substantiated a case of tangible danger of confusion among a substantial number of persons. In Kaiser Jeep Corpn, v. Saber Saleem Textile Mills Ltd. (PLD 1969 Kar. 376, the respondent applied for registration of trade mark "Jeep Brand" in words and the device of "Jeep" in respect of threads and yarn of all kinds. The appellant filed opposition on the ground that its trade mark "Jeep" with the device of motor cycle is registered in respect of motor cars manufactured by it. The respondent's application was allowed and appellant's opposition was dismissed. While considering the question whether trade mark offered by the respondent for registration is likely to deceive or cause confusion in the course of trade, after referring to a large number of authorities it was observed :— "Thus even though the appellant's and respondent's marks may be identical yet the goods are so totally different that it will be inconceivable that thread and yarn should be attributed as to origin to the appellants, or likewise, motorvehicles bearing the trade mark "Jeep" to the respondents, in my view, there is not the least possibility of any deception or confusion being caused amongst members of the public by the respondents use of the word Trade mark "Jeep" with the device of a motorvehicle for their thread yarn". In the present case surgical goods plasters and disinfectants are comp­ letely different from fresh fruit and fruit products. The goods produced by each one of them are different in nature and use. It is difficult to believe that the surgical goods plasters and disinfectants be attributed as to origin to the appellant's goods. In the circumstances there is no possibility of deception or confusion being caused to the public, 5. From the evidence produced by the parties it is clear that the appellant has not made any export to Pakistan as stated by Anderson, the Vice President of the Fresh Fruit marketing for the appellant. He only relied on possibility in future. On the other hand the respondent has produced evidence to show that it started selling goods in the year 1973 and the sale was for Rs. 5688.88 which progressively rose to Rs, 1.33,250/- in the year 1977 and in the year 1979-80 when the application was filed the same had risen to Rs. 3.49,49!/-. 6, Mr. Pishori the learned counsel for the respondent has relied on Mis, Bengal Friends & Co, v. ,Vf/.y. Govt, Benode Saba & Co. PLD 1969 SC 477 in which the appellant had made application for registration of his trade mark consisting of a device of the ship in respect of Collar in class 19 stating that the said mark is being used by him for a long time. During its pendency the respondent No. 1 filed an application for registra­ tion of similar trade mark consisting of the device of ship in respect of ColUr in class 19 claiming the user since 1936, The Dy, Registrar of Trade Marks refused registration against which an appeal was filed which also dismissed. The Supreme Court allowed the appeal and observed as follows : — "It has been noticed that the supplies made by respondent No. ! to East Pakistan since 1948 were scanty anc' Bopped altogether in 1952. Consequently when the appellant applied for registration of his mark in 1953 the goods of respondent No. 1 were not available in the market. In the circumstances there was no likelihood of "deception' or 'confusion' as contemplated in section 8 (a). But the Courts below upheld the opposition by respondent Mo 1 merely on the basis of his use from an earlier date of the mark with the device of a ship than on the volume of goods sold by him in East Pakistan for a number of years before the appellant approached the Deputy Registrar for registration of his mark. If mere use from an earlier date alone were to satisfy the require­ ments of section 8, then no one need have his mark registered under the Trade Marks Act at all". Reference can also be made to Pakistan General Stores Karachi v. M/.<. Cooper Incorporated Karachi (PLD 1973 Notes 61 at p. 82). In this case the appellant's application for registration of trade mark was opposed by the respondent on the ground that "identical trade mark in respect of same class of goods was registered in his name. It was established that the goods of the respondent were not available in the market for the last 16 years and during the last 10 years the appellant had built up sizeable business in the same class of goods with identical trade mark. This fact was held to be covered by the words other special circumstance" to allow subsequent registration of mark identical with one already on register. Applying the aforestated principles to the present case, I find no force in this appeal which is dismissed with no order as to cost. (TQM) Appeal dismisied,

PLJ 1987 Karachi 101 [DBj PLJ 1987 Karachi 101 [DBj Present: nasir A. zahid & sybdjally madad shah, JJ BAHEEDULLAH—Petitioner versus GOVERNMENT OF SIND through Secretary, Home Department, Tughlaq House, Karachi and Another—Respcndents Const. Petition No. D-546 of 1986, accepted on 9-10-1986 Ci) Constitution of Pakistan, 1973- Art. 10 (7)—Arrest and detention — Safeguard regarding—Entire period from 30-12-1985 upto 16-3-1986 spent in detention by detenue pursuant to order made under MLO 78—Held : MLO 78 being law proving for preventive detention, such period to be inclu­ ded for purposes of computiding period of eight months referred to in Art, 10 (?) of Constitution. [P, 1047A (ii) Maintenance of Public Order Ordinance, i960 (W. P. Ord, XXXI of 1960)- —— S, 3 read with Constitution of Pakistan, 1973 — Art. 10 (7)-—Pre­ ventive detention—Order of—Challenge to—Detenu already com­ pleting more than eight months under detention when last order under S. 3 of Maintenance of Public Order Ordinance, I960, passed—­ Held : Such order being in violation of speciSc provisions of Art, 10(7) of-—Constitution, same to be liable to be set aside. |P. 104]B Mr. Muhammad All Sheikh, Advocate for Petitioner. Mr. Muhammad Ibrahim Memon, Add. AG for Respondent. Dates of hearing : 6 & 9-10-1986. judgment Nasir A. Zahid, J.—-This petition has been filed by Baheeduliah, cousin of detenu Saifullah Khan son of Nobat Kha'n, who is at present in deten­tion under an order passed by the Home Secretary, Government of Sind, under section 3 of the Maintenance of Public Order Ordinance, 19f 0. The detention of the detenu has been challenged in this petition. We have heard at length the arguments of Mr. Muhammad AH Shaikh, learned counsel for the petitioner, and Mr. M. I. Memon, learned Addl. A. G. appearing on behalf of the respondents, 2 According to the learned counsel for the petitioner, the detenu was first detained for 90 days under order dated 18-9-195 passed by DMLA under MLO 78 for a period of 90 days. The second order of detention was passed under MLO 78 on 17-12-85 and this second order also directed detention of the detenu for 90 days. On 30-12-1985 Martial Law was lifted from the country by the Proclamation of withdrawal of Martial Law issued on that date. Constitutional Petition No. D. 130/86 was filed ia this Court against the continued detention of the detenu under order dated 17-12-1985 passed under MLO 78. This petition was iater on withdrawn on 20-3-19^6 as having become int'ructuous, as the period of 90 days, for which detentsoa had been ordered by order dated 17-12-1985, had expired. On 16-3-1986, an order was passed by the Home Secretary under section 3 of the Maintenance of Public Order Ordinance, I960, directing detention of detenu for 90 days. This order dated 16-3-1986 was also challenged by a previous pstition No. CP-D-313 85. which was admit­ ted but later on it was dismissed as infructuous, the period of detention having expired. Thereafter a second order under the Maintenance of Public Order Ordinance, I9'i(), was passed by the Home Secretary on 16-6-1986 providing for detention of the detenu for a further period of 90 days. This second order of detention was passed after referring the matter to the Review Board as required under Article 10 (4) of the Constitution. The Review Board had reported that according to its opinion there was cause for detention of the detenu for further 90 days. The present petition was then filed challenging the detention of the petitioner. During the pendency of the present constitutional petition, a third order of detention was passed by the Home Secretary and it is dated 14-9-1986 aad it provides for detention of the detenu for a further period of 60 days. This third order was also passed after another report by the Review Board. An oral request was made on 30-9-1986 for amendment of this petition to include a challenge to she fresh orders of detention. In the circumstances of this case, this oral request was granted and an amended memo of petition was filed. 2. The only ground, which is pressed in this petition by Mr. Muhammad AH, Shaikh, Seamed counsel for petitioner, is that the detenu has been detained under the detention Jaws for a period exceeding eight months and this is in violation of Article 10 (?) of the Constitufion. Article 10 (7) of the Constitution is as follows :-~ "Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a tota! period of eight months in She case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case : Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in. any such anti-national activity. It is contended by Mr. Muhammad Ali Shaikh, learned counsel for the petitioner, that since the restoration of Constitution, the petitioner has been in custody for over nine months and when the last order dated 14-9-1986 was passed under section 3 of the Maintenance of Public Order Ordinance, 1960, the detenue had already been in continuous detention for over eight months. According to chlearned counsel, the third order of detention could net have been passed being in violation of Article 10 (.7) of Consti­ tution. 4 The petition is opposed by Mr. M. I. Mernon, learned Addl. Advocate-General. According to his contention, for the purposes of cal­ culating the period of eight months under Article 10 (7) of the Constitution, tne period upto 16-3-86 is to be excluded, as that was covered by the order dated I7-12-J985 passed under MLO 78 and for the purposes of attracting Article 10 (7) the period of eight months has to commence from lb-3-J986 when the first order under Maintenance of Public Order Ordinance, 1%0, was passed and such period of eight months has not yet expired and will expire on 15-11-1986. 5. The decision of this petition, therefore, depends on whether the period covered by the order dated 17-12-85 passed under MLO 78 is to be excluded or included in the period of eight months provided in Article 10(7) of the Constitution. It may be observed here that the detenu has been detaining for acting in a manner prejudicial to public order and as such the period of eight months will apply to his case and not the period of twelve months provided in Article 10 (7). On 29-12-1985, MLO !07 was issued by the Chief Martial Law Administrator, which provided for cancellation of all Martial Law Regula­ tions and Orders on the appointed date, except those mentioned in the Schedule to MLO 107, MLO 78 is not a protected order, as it is not specified in the Schedule to MLO 107. Article 4 of MLO 107, however, provided that the can;;llation of the Martial Law Regulations and Martial Law Orders did not affect the previous operations thereof and anything done, action taken, obligation, liability, penalty or punishment incurred, or proceedings commenced would be deemed to have been properly and validly done, taken, incurred or commenced as the case may be. Then Article 270A (3) of the Constitution provides as follows :— "AH orders made, proceedings taken and acts done by an\ authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation President's Orders, Martial Law Regulations, Martial Law Orders, enact­ ments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever." In view of the provisions of Article 4 of MLO 107 and Article 270A (2) of the Constitution, Mr. Muhammad Ali Shaikh submitted that the order dated 17-12-1985 passed under MLO 78 remained in force even tfter the lifting of Martial Law and cancellation of MLO 78. However, it was submitted that the detenu can take advantage of the period from 30-12-1985 till 16-3-N86 during which the detenu remained under detention for the purposes of calculating the period of eight months under Article 10 (7) of the Constitution. In our view, the submission of the learned counsel for the petitioner is correct. The order dated 17-12-1985 was no doubt passed under MLO 78 but Article 10 of the Constitution was revived on 30-12-1985. Article 10 (7) refers to detention in pursuance of an order made under a !aw providing for preventive detention and a perusal of orovisions of MLO 78 shows that MLO 78 was a law providing for preven­ tive detention. The entire period from 30-12-1985 upto 16-3-1986 spent in custody by the detenue, was, therefore spent in detention pursuant to an order made under a law providing for preventive detention. This period •vill, therefore, also be included for the purposes of computing the period of eight months referred to in Article 10 (7) of the Constitution. The learned Add!. Advocate-General could not advance any acceptable reason for his contention that this period should not be counted for the purposes of computing the period of eight months under Article 10 (7), As observed earlier, the contention of the learnsd Add. Advocate-General was that this period was covered by an order passed on 17-12-1985 under MLO 78 and therefore it is to be excluded from such computation. There is no force in this submission The detenu having completed more than eight months ia detention Iwhen the last ord:r dated 14-9-1986 was passed under section 3 of the Maintenance of Public Order Ordinance, 1960, the said order dated 14-9-1986 cannot be sustained and is liable to he set aside being in violation if the specific provisions of Article 10 (?) of the Constitution. 6. CP No. D-S46/86 is allowed to the extent that the order dated 14-9-86 passed under section 3 of the Maintenance of Public Order Ordi­ nance, 1960, by the Government of Sind, is declared to have been passed without lawful authority and to be of no legal effect. The detenue Saifullah Khan son of Nobat Khan is ordered to be released forthwith, if not requir­ed in any other case. (TQM) Petition allowed.

PLJ 1987 Karachi 105 PLJ 1987 Karachi 105 [Hyderabad Circuit Bench] Present : syed haidir At! pirzada, J BOOLCHAND—Petitioner versus Qazi MUHAMMAD BACHAL—Respondent Civil Transfer App. No. 8 of 1986, dismissed on 6-12-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

S. 24—Transfer and withdrawal—General power of—Exercise of — Power of transfer provided only to limited extent under ssif-contained enactment with limited remedies contemplated for aggrieved parties—Held : Parties to be required to work out their rights only within ambit of enactment and (should) be satisfied with whatever be contemplated for them in such situation by legislature. [P, 107]C (ii) Civil Procedure Code, 1908 (V of 1908)—

S, 24—Transfer of case—Ground for —Held : Mere fact of Judge being friend of other party by itelf not to warrant transfer of case. [P. 107]/ PLD 1956 FC 50 ref, (isi) Ciril Procedure Code, 1908 (V of 1908)—

S. 24 read with Sind Rented Premises Ordioance, 1979 (XVII of 1979)—S. 4(3)—Transfer and withdrawal—General power of-Appli­cation for — Competency of—Specific provision provided ander selfcontained enactment enabling relief of transfer — Held : Aggrieved party to necessarily resort only to such remedy as S, 24 of CPC to have no application (in such case), [P. !U7j£ (i?) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— — —Ss. 4, 19 & 20—Rent Controller—Procedure before — Civil Proce­ dure Code, 1908 (V of 1908j—Applicability of—Held: Rent Con­troller functioning not like Civil Court, Code of Civil Procedure not to be invoked in toto in respect of proceedings conducted under Ordinance—Held farther : Necessary trappings of civil court not to be involved in procedings merely because of Controller recording evidence or adopting procedure more or less like civil court. [P, \Q1]A (y) Sind Rented Premises Ordinance, 1979 (XVII of 1979j— S. 4 (3) and Civil Procedure Code, 1908 (V of 1908)—S. 24— Eviction application—Transfer of—Specific provision (for transfer of eviction application) provided under S. 4 (3) of Ordinance - Held : Sind Rented Premises Ordinance, 1979 being self-contained enactment, remedies to be worked out as provided therein — Held further : Notified authorities being only persona designata and not courts, provisions of S. 24 of CPC not to be invoked. [Pp. 107 & 108]£ Mr. P. M. Amer, Advocate for Applicant. Mr. Ismail Humeerani, Advocate for Respondent. D«te of hearing : 11-11-1986. ordbR This is a petition under section 24 (1) the Code of Civil Procedure. The point involved herein is whethe by invoking section 24 (1) of the Code of Civil Procedure, a proceeding pending before the Rent Controller constituted under the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) can be transferred to another Controller. The opposition to this petition is denied on the claim that the Rent Controller constituted under Ordinance XVII of 1979 is "persona designata" and that the Controller will not come within the expression 'otber proceedings'as contemplated under section 24 (1) CPC. It is claim­ ed that the Controller has closed family relations with the family of Kazi Abdul Aziz as well as Kazi Mohammad Bachal, the landlord. It is further claimed that the order of the District Judge is quite illegal and unjust. On the first point as to whether the Rent Controller is a Court or perscna designata, Mr, Ismail Hameerani the learned counsel for the respondent relies upon the decision of the Hon'ble Supreme Court in the case of Khadim Mohyuddin and another v. Ch Rehmat Ali Nagra and another (PLD 1965 SC 459) wherein it was held that the Rent Controller acts in quasi judicial capacity and not as a Court. The word 'Controller is defined under section 2 (b) of the Ordinance. "Controller" means a Controller appointed under section 4 and includes a person working as Controller immediately before coming into force of the Ordinance. Subsection (1) of section 4 empowers the Government to appoint one or more Controllers in any district and if more than one Controller is appointed in the same.district, Government shall define the local limits within which each of such Controller shall exercise jurisdic­ tion. Subsection (3) of section 4 authorises the District Judge or Deputy Commissioner to transfer cases from one Controller to another within the district. By notification No. VIII (3)/SDJ/75 dated 13-4-1980 published in the Sind Government Gazette, Part 1, May 29, 1980 the District Judges in the province are authorised to transfer cases from one Controller to another Controller within their respective districts. By notification No. VIII (3)/SDJ/75 dated 14-10-1980 all Senior Civil Judges in the province and Civil Judge Badin and Joint Civil Judge, Shikarpur with not less than three years service as Civil Judge are to func­ tion or act as Controllers within their jurisdiction. The Ordinance itself has made self-contained Act for transfer of proceedings by constituted authorities. Therefore, to conclude on this point, when the Rent Controller is constituted by a notification and who incidentally happens to be Senior Civil Judge cannot be equated to exercise the powers of a civil court. The Controllers do not function like a civil court. The Code of Civil Proce­ dure is not invoked in toto in respect of the proceedings conducted under the Ordinance. Merely because such Controllers record evidence or adopt a procedure more or less iike a Civil Court it cannot be held that all the necessary trappings of a civil court are involved in such proceedings. This is relevant factor to ascertain the nature of powers exercised and necessa­ rily lead to the conclusion that they are not courts. In the light of what has been held in PLD 1965 SC 459, the Rent Controller under the Ordi­ nance is only persona designate. B Under section 24 (1) CPC only in respect of matters which are pending in any court subordinate to the High Court or District Court, the powers of withdrawal can be exercised. As held above they are not courts, and as to what relief would be available for aggrieved parties for having the matters transferred. Ordinance XVII of 1979 itseif haci provided a specific remedy. Subsection (3) of section 4 of the Ordinance, empowers the District Judge or Deputy Commissioner to transfer proceedings. ,In pursuance of powers conferred by the provisions of subsection (3) of section 4 of ;he Ordinance, the Government by a notification dated 13-4-1980 authorised the District Judges to transfer cases from one to another within the same jurisdiction. When a specific provision is provid ed under a self-contained enactment enabling relief of transfer, the aggricv ed party has to necessarily resort only to such a remedy and section 24 CPC can have no application. Hence, in this case, when the petitioner herein has already moved for relief under section 4 (3), he cannot file this petition under section 24 CPC. Mr. Amer has submitted that there can be no inhibition in invoking the powers under section 24 CPC because the Rent Controllers are only subordinate to the High Court and the powers can be concurrently ixercised. I am of the view that such a concurrent exercise of powers exists but it deals with cases which would come within the scope of section 24 CPC and not a case wherein the subordinate authorities are persona designaia and inspite of orders passed under self-contained enactment refusing transfer, the concurrent powers of the High Court arc invoked. As provided earlier, when the power of transfer is provided only to a! limited extent under a self-contain-d enactment with limited remedies!- contemplated for aggrieved parties, ibey have to work out their rights only! within the ambit of the enactment and be satisfied with whatever is con-j templated for them in such situations by the legislature t the easel fired 0 irhilef Since the petition itself is not maintainable, tatis js tu ,teci to go into the allegations made in the petition, Mr. Amer would not conten t without mentioning that in this case the transfer was asked for because the Rent Controller has close family relations with family of Kaz!» Abdul Aziz as well as the respondent, I do not think that the mere fact "ihst the Judge or Controller is a friend would by itself warrant transfer of a casej and this asoect was considered in the case of Mirza Akbar AH v. Mirz Iftikhv Alt and others (PLD 1956 FC 50) wherein it was held that whi! invoking section 24 CPC, this aspect cannot constitute a valid ground for transfer of the case. In the light of what has been considered above, when specific provision! is made under section 4 (3) of the Ordinance which is self-contained enact IE roent, remedies will have to be worked out as provided therein and when! the notified authorities are only persona desigfiata and not courts, section J24 CPC cannot be invoked. Hence this petition is dismissed. The above are the reasons for a short order dated 11-11-86 passed by me after conclusion of the arguments. (TQM) Application dismissed.

PLJ 1987 Karachi 108 PLJ 1987 Karachi 108 Present: abdul razzak A. thahim, J MUHAMMAD SARWAR—Appellant versus MUMTAZ ALI CHANDANI-Respondent FRA No. 56 of 1986, allowed on 9-12-1986 Bind Rented Premises Ordinance, 1979 (XVII of 1979)-

Ss. !6 & 21—Future rent—Deposit of—Order of—Non-compli­ ance of—Explanation for—Tenant having gone away, his servant 'through mistake depositing Rs. 100/- instead of Rs. ISO/- for one month—Held : Explanation being plausible tenant not to be said to b,a ''G committed wilful default or non-compliance of tentative rent or ;er—Held further : Case for wilful default or contravention of tentative rent order having not been proved, order of striking off Ucfence of tenant to be set aside, [P. IQ9]A & B Mr. Abdul Fahim Khan, Advocate for Appellant. Mr. Umar Hayat Sandhu, Advocate for Respondent. Date of hearing : 9-12-1986. judgment By this appeal order of III Senior Civil Judge & Rent Controller (West) Karachi, dated 22nd December 1985 whereby he has strrck off the defence of the appellant has been challenged. 2. Rent Controller in rent case No. 5029/80 passed tentative rent order on 17-8-82 whereby appellant was directed to deposit full arrears upto July 1982, latest by 2»th October 1982 at the rate of Rs. 100/-, per month. It was further directed that appellant should continue to pay future rent at the rate of Rs. 150/- per month with the Nazir of the court commencing from August 1982 on or before 10th of each succeding month and the respondent shall be entitled to withdraw the amount at'the rate of Rs. 100/- per month til! he provides shutter to the shop in question as per second tenancy agreement and that appellant shall be entitled to get refund of Rs. 50/- as per agreement till the shutter is provided. 3. It is alleged that appellant deposited Rs. 100/- being the rent of September 1982 instead of Rs. ISO/-thus his defence has been struck off, 4. I bave heard Mr. Abdul Fahim Khan for the appellant, He argued that servant of appellant had deposited Rs. 100/- instead of Rs. ISO/-, through mistake because appellant had gone out of Karachi . It is contended by the learned counsel that it is admitted fact that premises were rented out to the appellant on payment of Rs. 5uOO/ as pugree, therefore, the provisions of Sind Rented Premises Ordinance 1979 are not applicable to this case. Reliance has been placed on PLJ 1986 Karachi 148. In the alternate it is contended that the amount of Rs. 50/- couid be adjusted from the pugree. He bas referred to the case reported in PLD 1980 SC 298, PLD 1980 Lahore 302. 5. Mr. Umar Hayat Sandbu, has frankly admitted that an amount of Rs. 5QOO/- as pugree was accepted by the respondent but is not refundable. It is argued that appellant has violated the tentative rent order, therefore, he is liable to be evicted He has referred to the case reported in 1983 CLC 2088 and 1984 CLC 258. 6. The tentative rent order was passed on 17-8-82 and the rent was being deposited by the appellant regularly. His defence has been struck off on the ground that ia rent of September IV82 an amount of Rs. 50/- less was deposited. The Rent Controller in his tentative rent order has clearly stated that appellant is entitled to the refund of Rs. 50/- till shutter are provided. This amount is being accumulated with the Rent Controller and there is nothing on the record that shutters were provided. 7. The rent of September 1982 at the rate of Rs. 100/- was deposited. The explanation of appellant that he had gone away and directed his servant to deposit the rent which through mistake deposited Rs. !00/- instead of Rs. 150/- seems to be plausible. In these circum stances appellant has not committed a wilful default or non-compliance of the tentative rent order. 8. In case of Shahid Hussain v. tqbal and H others reported in 1986 SCMR 1069, it has been held that if default is merely technical could be condoned. Lastly, in case of Muhammad Hanif v. Mumtaz Ahmed reported in PLJ 1986 Karachi 148 it has been held that landlord after having accepted pugree in respect of tent is not legally entitled to seek relief under the Ordinance and any agreement providing for a pugree would be hit by prohibition contained in section 7 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and would fall in the ambit of Section 23 of the Contract Act, 1872. However, I do not like to go in detail on this aspect. It is for the Rent Controller to consider this legal point while deciding the rent case. For the time being, I am of the view that the case for the wilfuli default or contravertion of tentative rent order has not been proved, I „ therefore the order of the Rent Controller is set aside and the case is? remanded back with the directions that Rent Controller should proceed with the case and decide it on merits. Appeal allowed.

PLJ 198 PLJ 198? Karachi 110 Present : K.- A. gbani, J SARDAR ALLY—Applicant versus ABDUL GHANI (deceased) through legal represeotatives and Another—Respondents Rev. Application No. 335 of 1978, dismissed on 8-11-1986 (i) Crfil Procedure Code, 1908 (V of 1908)—

S. 115—Concurrent findings of facts — Interference with — Two courts below giving concurrent findings of facts after appr eciation of evidence—Such courts also not shown to have exercised jurisdiction not vested in them by law or having failed to exercise jurisdiction so vested or having acted in exercise of jurisdiction illegally or with material irregularity—Held : Revision application not to succeed in such case. IP. 112]A 1982SCMR938re/. (ii) CiTil Procedure Code, 1908 (V of 1908)—

S. 115 & O. XXII, Rr. 3 & 4—Revision—New pleas in — Raising of by legal representatives of respondent — Effect of — Held : Legal representative of respondent not to be allowed to set up new case or raise pleas inconsistent with those taken by his predecessor in written statement filed in suit. [P. 112]B AIR 1927 Nag. 162 ; AIR 1930 Mad. 593 ; AIR 1943 Cal. 613 ; AIR 1943 Pat. 433 & PLD 1972 Lab 256 «•/. Rao Shakir Naqshbandi, Advocate for Petitioner. Kuunwar Mukhtar Ahmed, Advocate & Mr, Abdul Majeed Khan, Advocate for Respondents. Dates of hearing : 6 & 31-8-1986. JjJDGMBNT This revision application has been preferred against the judgment and decree passed on 30th October, 1978 whereby the First Additional District Judge, Nawabshah, dismissed Civil Appeal No. 11 of 1975 and thus up­ held the judgment and decree passed on 5-3-1975 by Civil Judge Moro dismissing Suit No. 23 of 1974 for specific performance and injunction filed by the applicant. (i) The facts briefly stated re that the respondent No. 1 sold the portion (hereinafter referred to as the property in suit) measuring 684 sq, feet of the plot bearing No. lltC/3, situated at Moro by a registered deed dated 18-6-1973 for a lump sum consideration of Rs. 1800;- to the respondent No. 2 (owner of the remaining portion of the same plot). The applicant subsequently on 18-3-1975 filed the above referred suit alleging thereto that the respondent No. 1 by an agreement made on 9-3-1971 had agreed to sell the said property to him and that having received the entire sale consideration (Rs. 2000), he was put in its possession. Further pleading that the respondent No. 1 had purchased the said property with the knowledge of the earlier subsisting agreement of sale, the applicant claimed decree for specific performance of the agreement and also prayed for grant of permanant injunction restraining the respondents from inter­ fering with his possession. Both the respondents denied the agreement of sale of which specific performance was sought and pleaded that the alleged agreement set up by the applicant was a forged document. Delivery of possession of the pro­ perty by the respondent No. 1 to the applicant and payment of any consi­ deration were also denied. The respondent No. 2 also pleaded that he had purchased the property in suit bona fide for valuable consideration without any notice of any alleged agreement witn the applicant. (U) On the pleadings of the parties the Court framed the following issues :— (1) Whether the defendant No. 2 contracted to sell the suit property to the plaintiff and if so, what is its effect ? , (2) Whether the defendant No. 1 purchased the suit property from the •defendant No. 2 after having knowledge of the transaction ef the suit property, between defendant No. 2 and the plaintiff? (3) Whether the agreement is a forged one and its effect ?• (4) What should the decree be ? At the trial the applicant/plaintiff besides himself examined one Yousif in support of bis case. In their evidence the respondents supported the pleas raised in their respective written statements. (Hi) Both the Courts below on appreciation of the evidence on record held that the applicant failed to prove that the respondent No. 1 had executed the agreement of which specific performence had been claimed or that any amount towards consideration was paid. It was also held that respondent No. 2 had purchased the property in suit for value in good faith without any notice of the alleged prior agreement of sale. 2. Against the judgments and decrees given by the two courts below, the applicant preferred this revision petition under section 115 Civil Pro cedure Code. The learned counsel for the applicant was unable to show that in giving the concurrent findings of facts as above mentioned, the two courts below exercised jurisdiction not vested in them by law or that they failed to exercise the jurisdiction so vested or to have acted in the exercise A of the jurisdiction illegally or with material irregularity. In the circum­ stances, this revision application in which the same questions of fact on which after appreciation of evidence concurrent findings have been given by the two courts below cannot succeed in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Suleman and others v. Bagh Ali (1982 SCMR 938). 4. The above discussion would have concluded this matter but at the last stage of his arguments the learned counsel for the applicant moved an application Order 12 rule 6 CPC supported by the affidavits of Sardar Ally, (the petitioner) and Muhammad Yasin one of the legal representatives of the respondent No. 1 who expired during the pendency of the case in this Court. Prayer has been made in the application that in view of the state­ ments, made in the affidavits now filed in support of the above referred application by Muhammad Yasin and Muhammad Siddique the suit, may be decreed. No affidavit of the last named person however has been filed. Before considering the arguments advanced by the learned advocate for the applicant it may be observed that on the death the respondent No. I/ Abdul Ghani (the seller) besides his iwo sons Muhammad Yasin and Muhammad Siddique, his widow Mst. Fatima and Mst. Saira (daughter) have also been brought on the record by order passed in this case on 14-5-1980. Mr. Rao M. Shakir Naqashbandi, the learned counsel for the petitioner in support of the above application submitted that Muhammad Yasin, was one of the witnesses who had attested the agreement of which specific per­ formance was claimed in the suit. It was argued that though Muhammad Yasin was not examined in the trial court but now being a party to this revision petition he has admitted that the said agreement was made by his father, late Abdul Ghani/the respondent No. 2 to sell the property in suit to the applicant. According to the learned counsel the statement in the affidavit of Muhammad Yasin amounts to an admission within the meaning of rule 6 of Order 12 CPC and thus a decree for specific performance of the said agreement is liable to be passed in favour of the applicant. 5. At the very out set it would be observed that Muhammad Yatin impleaded in this revision petition as a legal representative cannot in such a capacity be allowed to set up a new ccse or raise pleas which are inconsis­ tent with those taken by his predecessor Abdul Ghani/the respondent No. 1 in the written statement filed in the suit. The view taken by ms as abov; finds support from cases to some of which I may here refer :— (i) In the case reported as (Shrimant Kuar) Laxmanrao Bhonsley v. Narain and another (AIR 1927 Nag. 162) it was held that a legal represen­tative must continue the litigation on the cause of action sued upon and he cannot set up or agitate a new right of suit or his own individual right. (ii) In the case of Muhammad Naina Maracair and others v. Ummanaikani Ammal and others (AIR 1930 Mad. 593) repelling the contention raised that legal representative having been brought on the record would enable him to agitate his own claim even if that involved taking up a posi­ tion and urging contentions contrary to those of his predecessor in the plaint, the learned court held that h- was not entitled to do so as he was in law, from the legal position he h k in that case was strictly confined to the pleadings and the case of his p: .,-cessor whose legal representative he was. It was further observed that any right he had above and beyond those to which he succeeded in that case as legal representative he must agitate elsewhere. (Hi) In the case of Surendra Narain Sarbadhikari v. Bholanath Roy Chowahury (AIR 1943 Cal. 613) it was held that the legal representative of the deceased defendant is bound to adopt the written statement of the letter and that he could not at the appellate stage raise a new case, a case inconsistent with the case of the deceased defendant as made in his written statement. (iv) In the case of Lakshmi Narayan Khatri v. Gopal Lai Pathak and another (AIR 1943 Pat. 433 at page 441) it was observed that since the widow had been impleaded in the appeal as the legal representative of her deceased husband as such she could raise only such objections as could have been taken by her husband himself. The learned Judge further observ­ed that it would of course be open to her to assert her rights, if any, by appropriate proceedings. (i) Reference may also be made to the case of Lai Hussain . Amir Muhammad Khan and another (PLD 1972 Lahore 256) wherein the learned Judge after repelling the argument advanced that in view of the provisions of Order XXII, Rule4(2)CPC the petitioner having been joined as a legal representative of the deceased defendant had a right to file a fresh written statement, held ; — '•!$ Order XXII, Rule 3, the deceased plaintiff's legal repre­ sentatives are to be impieaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub-rule (I) of rule 4 says that the Court shall proceed with the suit. In sub-rule (2), however, it is provided that any person made a party as a legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub-rule (?) gives a right to the legal representatives to file a written statement even though the suit may have been defended by the deceased defendant although it may amount to re-opening of the whole case. I think that such a construction of sub-rule (2) of rule 4 will create numerous complications and anomalies. Sub-rule (2) itself is not couched in such wide language. In my opinion, the com­ parative reading of the two rules 3 and 4 will show that tk principle that the legal representatives of the deceased are bound by what the deceased had done is not dzparted from nor is there any justification for holding (hat in case of d^ath of the defendant, it is open to his legal representatives to nullify all the proceedings already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XX11 which relates to the impleading of legal representatives of a deceased plaintiff provides that once the legal representatives of the deceased plaintiff are made a party, the court shall proceed with the suit which means that it is to proceed from the stage at which the suit was at the time of death of the deceased plaintiff and what­ ever proceedings were taken by the deceased plaintiff would be deemed to be binding upon the legal representatives. Sub-rule (1) of Rule 4 also makes a similar provision that after legal representatives of a deceased defendant have been impieaded, the Court shall proceed with the suit. This provision is also susceptible of unly one inter­ pretation that the proceeding already taken wil! not be disturbed and suit will proceed only from the stage on which it was when the deceased defendant died. Similarity of language used in subrule (f) of rub 3 and sub-rule (1) of rule 4 excludes the possibility of these two rules being interpreted differently. Rule 3 becomet effective after the suit has already been instituted by filing a plaint and the plaint already being on record no further right of filing a pleading was necessary to b« given to the legal representatives of the deceased plaintiff In case of defendant, however, it is possible that the deceased defendant may not have filed a written statement in which case it would certainly be open to the legal representatives to file one. But there may be eases where some defence may not be opf" to the deceased defendant hut it. may be open to the legal representatives independently as an individual as distinguished from his capacity as iegal representative. It is to meet such contin­ gency that provision has been made in sub-rule (2) of rule 4 that any person made a party as legal representative may make any defence provided it is appropriate to bis character as legal representative of the deceased defendant This provision is noi to ?r> i: a legal representative a tight mdfpendfnt of tht right of the , it.ceastitd'/edan: or higher than that of the deceased defendant, On the c-iher aand, is U a provision of limitation confining ate esai rr-t>>esentati'<• e 'o ra-ic defence which could ht raised by the J.eceanea defend-tn',. Sub-rule (I) does not authorise a legal repre­sentative to make any defence he Iskes, but only to make a defence appropriate to hss character as legal representatives, ' (The underlines have been made by me) a, finally it may be observed that even otherwise on the alleged ad­ mission of Muhammad Yastn, no decree can be passed as in the proceedings respondent No 2 Umrao A!?, the purchaser ot the property who is a party . to the pioceedingi has -ibroughaui denied the existence 01 any aiiegsd agree­ ment of sale between A'oduS Ghani the respondent No, 1 (predecessor of Yasin) and Sardar Ah, tne appiicai:;t. The respondent No. 2 nad expreisiy pleads and which pica was accepted by the two Courts by giving concurrent findings of fa: on appreciation of evidence, that no agreement to sell the property ;a suit was made by (late) AbduS Ghani and that the respondent No 2 purchased the said property for vaiue bonafidv and without not'ce of the ; -'rged agreement of sale set up by the Applicant No attempt was made by t" i counsel for the applicant to jqow that the said findings given by the two <• ;urts below were erroneous or sufferreu from any infirmity. The so-casled admission made by Muhammad Yasin is neither binding upon the other kgai representatives of late Abdul Gbani, nor the respondent No 2 the purchaser of the property, sn the circumstances 7 The upshot of the above discussion is that the application mads under Order S2 Ru!e 6 CPC, as well as the revision petition is dismissed as misconceived and without any merit The applicant shall pay costs of these proceedings to the respondent No, 2. The above ate the reasons for the short order passed on 3!.8-l9?6. (TQM) Petition dismissed. "(Here in italics]

PLJ 1987 Karachi 114 PLJ 1987 Karachi 114 Present . nasjr A, zahio, J PHILIP MORRIS INCORPORATED, Park Avenue, New York United State- of America -Appellant Verces L4K.SON TOBACCO COMPANY LIMITED, Sarwar Shaheed Road, Karachi and Another —Respondents Misc. Appeal No. W 01 1986, allowed on 29-5-1986 (i) Trade Marks Act, 1940 (V of 1940) — ...... S '4— -Registration—Application tor--Conditional acceptance of— — Grounds for—Held : Registrar Trade Marks not to be required ? . state in writing grounds of his decision for refusal or conditional acceptance of application ~ Grounds of decision, however, to be given in writing tn case of request being made by concerned party on application made (on Form TM 15; -- Application successfully passing initial stage and accented :.->r farther proceedings undei Ss. 13 & If) of Trade Marks Act —Heid : Provisions of S 14 not to apply in such case. [P. 11SjB & C (ii) Trade Marks Act, 1940 (V of 1940)-

S. 16- Trade Mark — Registration of — Grant or refusal oi — Reasons for—Opposition to registration entered into and application contested before Registrar, Trade Marks — Heid Registrat ic be required to give reasons for grant or refusal ot application foe registration of trade mark—Registrar giving no reason ro: deciding application—Held : Party aggrieved to be prejudiced as wet- as High Court hearing appeal to be in no position t.o appreciate grounds for acceptance or refusal of registrition. [F 1!7]A (iii) Trade Mark Act, 1940 (V of 1940} —

Ss 16 &. 76 read with Trade Marks Rules, 1963—R 84 and Limita­ tion Act, 1908 (IX of 1908)—S. 29 (2) —Registration — Application for—Refusal of—Order of—Appeal against—Registrar Trade Marks while refusing application for registration giving no reasons—Held Registrar to be required to give reason? for his order even without request having been made by any party for reasoned order—Held further : Without centfied copy of order (giving reasons) appellant not to be expected to file proper appeal, [P. 120JD (iv) Trade Marks Act, 1940 (V of 1940 —

S 75 read with Trade Mark Rules. 1963- R b'4 and Limitation Act 1908) (IX of 190)—S 29 (2) -Appeal—Limitation for - Com­ putation of—S. 29 (2) of Limitation Act, 1908 applying to appeals under S 76 of Trade Marks Act, 1940 — Held Time taken by appellant in obtaining certified copy of order to be excluded from period of two months prescribed by R, 84 of (Revised} Trade Marks Rules. 1963 for filing appeal to High Court. [P. 120]'.-: Khawa/a Mansoor, Advocate for Appellant Mr. A. A. Zari, Advocate for Respondents No. 1 Nemo for Respondent No 2. Dates of hearing : 11, 12. 13 & 14-5-J9S(> JtDGMFN ; This appeal has been filed by the appellant cotarxuiv under section 76 of the Trade Marks Act. 194-'. 'By aoohcatton Mo. 5426 daisd /2-8-197U, the appellants applied to the Trade Maries Registry Karscn, :<•,-- registration of'-MARK. Vll" as a trade mark: in clause 34. The -.aid apt/'su.-mon of the appellant was accepted for the purposes of registration ami it was adver­ tised in the Trade Marks Journal of March 19/V Respondent No. 1 company, under Opposition Mo, 33/79 dated 24-10-ivTv opposed the applicanou of the appellant The appellant raised various objections to the opposition of respondent No i Bv letter dated 23-2-i'^i written on behalf of the Registrar of Trade Marks, uk appellants j«s;u • were inform "With reference to the hearing held on 29-1-1981 in the above matter, I am directed to inform you that the Registrar of Trade Marks, Karachi by his order dated 19-2-1981 has allowed the above opposition proceedings No. 33/79 with no order as to costs. Application No. 54126 in clause 34 stands refused." On receipt of the said intimation from the Registrar of Trade Marks, the appellant applied on Form TM-46 on 26-2-1981 for a certified copy of the decision dated 19-2-1981 of the Registrar of Trade Marks. Certified copy was, however, not issued to the appellant and in the circumstances in September 1982 the appellant reminded the Registrar of Trade Marks about the application made in February, 1981 for a certified copy and in reply the following letter dated 9-9-1982 was received by the appellant from the Registrar of Trade Marks :— "With reference to your request on form TM-46 dated 26-2-1981 and its subsequent reminder dated 4-9-1912 in the above matter, I am directed by the Registrar to inform you that as this opposition has some common grounds with another opposition case No. 125/80 which is about to mature, the order will be passed in the above opposition case after hearing the connected case No. 125/80." Thee a letter dated 29-1-1986 was addressed by the Registrar of Trade Marks to the appellant and the same is reproduced here :— "With reference to your request on form TM-46 dated 26-2-1981 in the above matter I am directed by the Registrar of Trade Marks to forward herewith a certified copy of the then Registrar (Mr. Riaz A. Malik's) short order dated 19-2-1981. I am further directed to inform you that detailed order cannot be issued as communicated in this office letter dated 9-9-1982 as the Tribunal who was supposed to write detail decision has been transferred to Ministry of Commerce, Islam­ abad. " Certified copy of the order dated 19-2-1981 of the Registrar of Trade Marks which was sent to the appellant alongwith the letter dated 29-1-1986 of the Registrar is reproduced here : — " Order I have heard the respective agents and have also gone through the pleadings and the evidence. Opposition No. 33/79 succeeds and the application No. 54126 in class 34 stands refused Parties to bear their own costs. Inform." Being aggrved, the appellant has filed the present appeal under icction 76 of the Trade Maiks Act 1940, I have heard at'length the arguments of Mr. K.hawaja Mansoor, learned counsel for the appeliant and Mr. A A, Zari, who has appeared on behalf of the respondent No. 1. Respondent No. 2, Registrar of Trade Marks has remained absent. 2. In my view this is a fit case for setting aside the short order dated 19-2-1981 of the Registrar of Trade Marks and remanding the case to the Registrar for giving fresh decision with reasons after hearing the parties. As observed earlier, after hearing the learned counsel for the parties in January 198], the appellant was informed in February, 1981 that the opposition entered into by respondent No. 1 had succeeded and the application of the appellant was refused but inspite of the application made for certified copy of the decision, it was not made available to the appellant. On the contrary, appellant wai informed that another Opposition case No, 125/80 was about to mature and after hearing that Opposition case No. 125/80, order would be passed in the case of the appellant. What was meant by the Registrar was that he would give reasons for the decision after he had heard the connected Opposition case No. 125/80, but certified copy of the short order was also not supplied to the appellant. Then the Registrar who had heard this case, namely, Mr. Riaz A. Malik, was transferred to the Ministry of Commerce and as such he could not write detailed order giving reasons fer refusal of the appellant's application and instead certified copy of the short order dated 19-2-1981 was supplied to the appellants under cover letter dated 29-1-1986 of the Registrar of Trade Marks. This was an opposition case, An application for registration of a trade mark had been filed by a party and another party was opposing it. In the Opposition entered into by respondent No. 1 various objections were taken. In reply to the said Opposition, a detailed counter-statement in from Tirf-6 was filed by the appellant. Arguments of the agents of the parties were heard by the Registrar. In cases where Opposition is entered and application is contested the Registrar of Trade Marks i> required to give reasons for grant or refusal of the application for registra tion of the trade mark so that the parties are made aware of the grounds on which the application has been accepted or refused and the aggrieved party is then able to challenge such order before the High Court in appeal under Section 76 of the Trade Marks Act, 1940. Unless reasons are given in the decision of the Registrar, High Court, while hearing the appeal, would not know the precise reasons why the application for registration has been accepted or refused. The party aggrieved who files an appeal will also be prejudiced inasmuch as he would not be aware of the reasons for which the case had been decided against him. In such a case, il an appeal is filed, perhaps in-variably the short order would be set aside and the case remanded to the Registrar of Trade Marks with a direction to give reasons for his decision and in case in the meantime the Registrar who had passed the short order is transferred or stands retired, as is the position in the instant case, the matter will be remanded for fresh decision to tbe new Registrar. On account of the Registrar not having passed a reasoned order, not only the parties have been prejudiced but great deal of time and expense has been spent for no purpose inasmuch as the case has to be remanded. Tbe Registrar of Trade Marks was called to this Court pursuant to the order dated 16-4-1986 passed in this appeal. Mr. M. Jalilullab, the present Registrar of Trade Marks, appeared in this Court on 4-5-1986, He was apprised of the complications and difficulties arising out of passing of the short orders and not giving reasons for the short order for years and also of the great prejudice such practice causes to the parties. The Registrar was directed that he should see to it that the Tribunals in the Trade Marks Registry should, in contested cases, pass reasoned orders as far as it is possible and even if short orders are passed, reasons are made available by the Trubuoal within a short period which period should not in any case exceed a mentis or two. 3. Mr. A. A. Zari, learned counsel for respondent No. !, however, raised two preliminary objections. It was fiirst contended by him that in an opposition case it is not necessary under the law for the Tribunal to give reasons for us decision unle»s a request for supply of reasons is mads by the concerned party through an application in from TM-15. Mr, A. A, Zari referred to the provisions of Section 14 of the Triide Marks Act 3940 ; Rules 24 and 25 and specimen of form TM-15 in Second Schedule of the Revised Trade Marks Rules I9o3. According to Mr. A, A Zan. the aforesaid provisions of the Trade Marks Act and the Rules and the specimen of Form TM-15 clearly show that the Registrar of Trade Marks or other Tribunal under the Trade Marks Act is not required to give reasons for his decision while refusing an application for registration of a trade mark and he is only required to give reasons if after he has passed the order refusing the application for registration of trade mark he is required to do so through a request made by the concerned party on Form TM-15 On a perusal of Section 14 of the Trade Marks Act it follows that Section 14 refers to the preliminary stage when the application made by a party for registration of its trade mark is scrutinized in the Trade Marks Registry At that stage, which is prior to advertisement and opposition, the Registrar of Trade Marks may refuse the application or it may accept the application absolutely or subject to condition. This acceptance under Section 14 (I) does not mean that the application for registration of the trade mark is finally allowed and the trade mark is registered What it means is that according to the Trade Marks Registry there does not appear to be any apparent objection to the application and as such it is accepted for further proceeding towards registration. After such acceptance, the application is advertised in the Trade Marks Journal whereafter opposition can be filed by any other party objecting to the registration of the trade mark. Section 15 of the Trad: Marks Act relates to the procedure for opposition to registration and then under Section 16 of the Trade Marks Act a final decision is to be taken by the Registrar in respect of the application made by the party for registration of its trade mark i.e. whether trade mark is to be registered as applied for or subject to any direction, or the application is to be finally rejected. In my view, therefore, in case of refusal or conditional acceptance of an application for registration at the preliminary stage i.e. where the application has not been advertised, the Registrar is not required to state in writing the grounds of his decision for refusal or conditional acceptance of the application and is only obliged to give the grounds of his decision gin writing in such a case if a request is made by the concerned party on an application made on Form TM-15 Section 14 does not apply to a case where an application has successfully passed the initial stage and has been accepted for further processing under Sections 15 and 16 of the Trade Marks Act, Where an application has been accepted for registration under Section 14(1) of the Trade Marks Act 1940, as had happened in the case of the present appellant, and then it is advertised and opposition entered into by any third party, the decision then given by the Registrar is not covered by Section 14 of the Trade Marks Act. In such a case the Registrar of Trade Marks is required to give his reasoned decision even •without any request from any patty An application on For.ni TM-15 for reasons is made only where the application is rejected at the prelimi­ nary stage under Section 14, which is not the case here. Moreover in the instant case the appellant had applied on Form TM- 46 for a copy of the decision and although such application on Form TM- 46 did not specify that copy of reasoned decision was required, as this was a case where opposition was entered into and the application of the appellant was contested, the Registrar was required to give reasons for his decision and the application dated 26-2-1981 on Form TM-46 by the appellant required the Registrar to furnish the appellant with a certified copy of the reasoned decision. As observed earlier this was a contested case where opposition had been entered into by respondent No. 1 after the application of the appellant had been accepted under Section 14 and then advertised in the Trade Marks Journal. The appellant was, there­fore, nor required to make an application for a certified copy of the decision on Form TM-15, which form applies only on those cases which are covered by Section 14(2) i.e. at the preliminary stage and not after the application is advertised and opposition is entered. Mr. A. A. Zari had also referred to Rules 24 and 25 of the Revised Trade Marks Rules 1963. Rule 25 refers to decssion of Registrar under Rule 24 and provides that in case of such decision an application is to be made on Form TM-15 to the Registrar requiring him to state in writing the grounds and the material used by him in arriving at his decision. But a perusal of Rule 24 shows that this Rule refers to decision taken by by the Registrar at the preliminary stage i.e. before the application is advertised and opposition is entered into. 4, The other preliminary objection raised by Mr. A. A. Zari was that the present appeal was barred by time According to the learned counsel, the appellant is not entitied to exclude the time for obtaining certified copy of the impupneJ order. Learned counsel referred to Rule 84 of Trade Marks Rules 1963 which reads as follows : — •-H4. Time for appeal.— An appeal to High Court from any deci­ sion of the R:gistrar under the Act or this rule shall be made within two months from the date of such decision." It was pointed out by the learned counsel that Rule 84, as it exists today, was substituted in 1977 for previous Rule 84 which was as follows :— -'•84 Time for appeal— An appeal to High Court from any decision of the Registrar under the Act or this rule shall be made within four months from the date of such decision, provided that in calculating ths said period of 4 months, the time if any, occupied in granting a copy in writing of the decision appealed against shall be excluded." Mr. A. A. Zari argued that under the provisions of rule 84, as it existed prior to 1977, time occupied in obtaining a copy of the decision appealed against was liable to be excluded but in 1977 the said rule was substituted by the present Rule 84 under which the provisions about exclusion of time for obtaining copy has been deleted and as such time in obtaining copy is now not to be excluded for purposes of limitation. According to the learned counsel tbe uBpagaed ordjr was passed on 19-2-1981 whereas the present appeal has been filed on 25-3-1986 and as such it it hopelessly barred by time. 1 find no substance in the contention of the learned counsel for the respondent No. 1, As observed earlier, this is a case which is not covered by Section 14 of the Trade Marks Act 1940. This is a case where after the application filed by the appellant had been accepted, it had been advertised and then opposition had been entered into by the respondent No. 1. In such a case the Registrar was required to give a reasoned order even without a request made by any party for a reasoned order. Without a certified copy of the order, the appellant could not be expected to file a proper appeal as he did not know the reasons for which his application was finally rejected by the Registrar. Then referencs may be made to Section 29(2) of the Limitation Act, 1908 which reads as follows :— "29(2). Where any special or local law prescribes for any suit, appeal or appication a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law :— (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law ; and (b) the remaining provisions of thisjAct shall not apply." It will be seen that Section 12 of the Limitation Act is included in the sections of the Limitation Act specifically referred to in clause (a) of Section 29(2) of the Limitation Act and under Section 12 the time requisite for obtaining certified copy of the order/judgment appealed against is to be excluded in computing the period of limitation prescribed or an appeal. Section 29(2) of the Limitation Act applies to appeals under Section 76 of the Trade Marks Act 1940 and as such the time taken by the appellant in obtaining certified copy of the impugned order from the Registrar of Trade Marks is to be excluded from the period of 2 months prescribed by Rule 84 of the Revised Trade Marks Rules, 1963 for filing appeal to the High Court. Mr. A. A. Zari had also cited a decision of a Full Bench of the Madras High Court in the case of Abu Backer v. Secretary for State for India (ILR 34 Mad. 505). That decision is clearly distinguishable and the principle laid down in that decision of the Madras High Court does not help the appellant in the argument that section 12 of the Limitation Act is not applicable and the appellant is not entitled to exclusion of the time occupied in obtaining the certified copy of the impugned order. Mr. A. A. Zari very fairly submitted that in case time occupied in obtaining a certified copy of the impugned order Is excluded, the present appeal would bs in time and not barred by limitation. I have already held that the appslUnt w.is entitled tJ etslasiou of ttu tins takea for obtaining a certified copy of the impugned order. After this time is excluded, it has been found that the appeal had been filed in time. The objection of Mr. A. A. Zari, learned counsel for respondent No. 1 is overruled. As a result, M. A. 19 of 1986 is allowed, the order dated 19-8-1981 of the Registrar of Trade Marks, Karachi, is set aside and the matter is remanded to the Registrar of Trade Marks to decide afresh the application No. 54126 filed by the appellant for registration of the mark in the class 34 and Opposition No. 33/79 entered by respondent No. 1 against the said application after hearing the parties. The Registrar will, of course, give reasons for his decision. There will be no order as to costs. (TQM) Appeal allowed.

PLJ 1987 Karachi 121 PLJ 1987 Karachi 121 Present : saleem akhtar, J MUHAMMAD SHARIF—Plaintiff Versus MUHAMMAD HUSAIN PARACHA'and Another—Defendants Suit No. 500 of 1985, decreed on 2-10-1986 (I) Negotiable Instruments Act, 1881 (XXVI of 1881)— —S. 4~Promissory note-—Consideration for—Promissory note execut­ ed as security for payment of amount due under agreement—Held : Such note to be valid document executed for consideration. [P. 125]E lii) Negotiable losfrumenJs Act, 1881 (XXVI of 188!)—

S. 4—Promissory note — Execution of—Held ; No restricf-3o to be placed under law restricting number of perons executing promis­ sory note jointly or severally. [P. I25JD (iii) Negotiable Instruments Act, 1881 (XXVI of 1881}—

S. 4 readwith Stamp Act, 1899 (If of 1899)—S. 2 (22) & Art. 49™ Promissory note—Execution of by more than one persor — Held : Promissory note executed by one person for himself and o.s behaif of another jointly and severally or by two persons jointly aod severally to biad both of {hem individually and collectively—Heid further : Joint and individual liability arising from one document, such promissory note not to be treated as three separate promissory notes requiring stamp duty for each promissory note separately. [P. 125JB " • (iv) Stamp Act, 1899 (II of 1899}—

S.- 4 and Art. 49 read with Pakistan Stamp Rules, 1925—R, 13— Adhesive stamp—Use of—Fixation of adhesive stamp on promissory note even in cases where amount exceeds Rs. 2,30,000 permitted under Art. 49 of Stamp Act read with rule 13 of Stamp Rules-­ Provisions of S. 11 of Act also merely directory and permissive in nature—Heid : No restriction to be imposed by prohibiting stamping of promissory note of any value with adhesive stamp. [P. 124]A (f) Stamp Act, 5899 (II of 1899)— -- Art. 49— Promissory note— Stamp duty on— Held : Stamp duty to be charged on basis of amount mentioned in promissory note and not on basis of persons executing it. [P. 125]C Mr. Zahid Tairq, Advocate for Plaintiff. Kanwar Mukhtar Ahmed, Advocate for Defendants. Date of hearing : 2-10-1986. judgment The plaintiff has filed this suit for recovery of Rs, 1,50,000;'-. The plaintiff and the defendant entered an agreement on 17-3-1984 whereby the plaintiff who held 50,000 shares of the defendant No 2 of the face value of Rs. 10/- each sold the same to defendant No. 1 for Rs. 500, OOO/- The defendant No. 1 agr:e to pay this amount in instalments of Rs. 50.000/- to be paid on or before 15th of every month. The first instalment was to be paid till 14-4-1984. To secure the payment of R§. 500, OO/. the defendant executed a promissory note dated 17-J -1984 promising to pay ou demand a sum of Rs. 5 lacs to the plaintiff. The de­fendant No. 1 paid Rs. 3.50.000/- but has failed to pay Rs. 1.50,eOO/- the written statement the defendants have admitted the execution of th greement, sale of shares of the defendant No. 2 and also the execution of ? e promissory note for Rs. 5 lacs. The defendants also admitted that R~ 3,50,000 have been paid aid tha oaiancs a TDant of Rs. 1,50,OOJ was not paid as the plaintiff committed breach of the agreement and started a campaign of villifioation and harassment against the defendants by making false reports to the authorities having business dialings with th; defendant. It is also averred that the defendants were put under threat and harassment by the plaintiff who suffered mental aginy, torture and loss of reputation. On the basis of the pleadings the following issues were framed : — (1) Whether the promissory note is properly stamped ? if not its effect ? (2) Whether the promissory note was executed by way of collateral security in terms of agreement dated 1"' 3-1984, if so, is it without consideration '? (3) Whether the plaintiff has committed breach of agreement, if so, is the defendant relieved of the responsibility for making payment ? (4 Relief? There is no dispute about the execution of the promissory note. The learned counsel for the defendant has contended that the promissory note bears adhesive stamp and he has not been written on paper with embossed or engraved stamp therefore, it is not a valid promissory note. The second contention of the learned counsel for the defendant is that this promissory note has been executed by two persons and their liability is joint and several therefore, in law there are three promissory notes and thus it has been insufficiently stamped. As regards the first contention the learned counsel has referred to rule 5 of Pakistan Stamp Rules 1925 which reads as follows ; — "5. Promissory notes and bill of exchange.—A promissory note or bill-of-exchange shall, except as provided by section 11 or by rules 13 and 17, be written on paper on which a stamp of the proper value, with or without the word "bundi" has been engraved or embossed". Reference has also been made to section 11 of the Stamp Act whicn reads of follows :— "11. Use of adhesive stamps. —The following instruments may be stamped with adhesive stamps, namely : (a) instruments chargeable with a duty not exceeding twenty-five paisa except parts of bills of exchange payable otherwise than on demand and drawn in sets ; (b) bills of exchange, and promissory notes drawn or made out of Pakistan ; (c) entry as an advocate, vakil or attorney on the roll of a High Court ; (d) notarial acts, and (e) transfers by endorsement of shares in any incorported com­ pany or other body corporate". Promissory note has been defined by section 2 (22) of the Stamp Act us follows :— (22) "Promissory note" means a promissory note as defined by the Negotiable Instrument Act 1881 : It aiso includes a note promising the payment of any sum of money out of any particular fund which may or may not be avail­ able, or upon any condition or contingency which maj or may not be performed cr happen"; This definition has imported the definition of promissory note piovided by section 4 of the Negotiable Instruments Act. However, for pjrposes of Stamp Act the second paragraph of section 2 (2i) widens the definition of promissory note as defined by section 4 of the Negotiable Instruments Act which reads as follows :— "A promissory note is an instrument in writing (not b>,ing a bank note or a currency note) containing an unconditional undertaking, .signed by the maker, to pay a certain sum of money

nly to, or to the order of a certain person or to the bearer of the instru­ ment". There is no dispute that Exh. 5;2 is covered by the deficition of the promissory note. A promissory note is chargeable with stamp duty under Article 49 of the Stamp Act which after amendment by the :5ind Finance Ordinance, 1982 reads as follows : — "49. Promissory Note as defined by section 2 (22)- (a) When payable on demand— (i) When the amount or value does not exceed two hundred fifty thousand rupees .; Fifteen Rupees. (ii) When the amount exceeds two hundred fifty thousand rupees; Thirty rupees. (6) Wheu payable otherwise than The same duty as on a Bill on demand ; of Exchange (No. 13) for the same amount payable otherwise than on demand. According to Article 49 as amended by the Finance Ordinance 1982 on a promissory note payable on demand for the amount not exceeding Rs. 250,000 the stamp duty is Rs. 15 but where the amount exceeds Rs. 250,000 it is chargeable with stamp duty of Rs. 30. Clause (b) of Article 49 reproduced above is not applicable to the present case. Mr. Tariq the iearned counsel for the plaintiff relying on the following rule 13 (f) of the Pakistan Stamp Rules 1925 contended that the promissory note has been properly stamped :-— 13. "Use of adhesive stamps on certain instruments,— The following in­ struments may be stamped with adhesive stamps namely :•— (f) Instruments chargeable with stamo-duty under Articles If, 36, 37, 49 (a) (ii) and (iii) and 52 of Schedule I. n view of rule 13 (f) instruments which are chargeable with stamp dm under Article 49 (a) (ii) can be stamped with adhesive stamp. A.licle 49 (a) (ii) as reproduced above is applicable to the promissory note, in which the amount exceeds Rs. 2,50.000. Therefore, under rule 13 read with Art. 49 as amended by Sind Finance Ordinance, 1982 a promissory note in. respect of amount exceeding Rs. 2,50.000 can be stamp­ ed witb adhesive stamp. Mr. Kanwar Makhtar Ahmed, She learned counsel for the defendant, has specifically referred to section 11 and contended that according to this provision of Saw promissory note executed or made oat of Pakistan can be stamped with adhesive stamp, but other promissory notes made in Pakistan cannot be stamped with adhesive stamp. The provision of section 11 is directory and permissive as the words used are that the following instru­ ments "may" be stamped with adhesive stamp. It does not prohibit nor impose restriction that promissory notes of any other value cannot be stamped with adhesive stamp. This reasoning finds support from rule 13 read with Article 49 as amended by the Sind Finance Ordinance Vi of 1982 which permit fixation of adhesive stamp on promissory note even in cases where amount exceeds Rs, 2,50,000. The next contention of the learned counsel is that promissory note incorporates the liability of three persons namely the defendant No. 1 and the defendant No. 2 severally and the liability of the defendants jointly. According to the iearned counsel for the defendants this means that there are three documents incorporated in one document nd for the purposes of stamp duty each promissory note should have been stamped with Rs. 30 therefore, the total stamp duty payable on such document was Rs. 90, Thus the pronote has been insufficiently sttraped. The argument of the learned counsel is based with reference to the liability of the executant. The learned counsel has referred to a commentry from Aggarwal on Stamp Act where it;bas heen stated that where two persons jointly and severally execute a pronote there are three liabilities. In the same book in the foot note it is mentioned that this comment is with reference to Order 1 rule 6 CPC. A promissory note executed by one person for himself and on behalf of another jointly and severally or by two persons jointly anc severally binds both of them individually and collectively. The joint and individual liability arises from one document. Such promissoy note can not be treated as three separate promissory notes requiring stamp duty for each promissory note separately. Under the Stamp Acts the stamp duty is charged on the basis of the amount mentioned in the promissiory note and not on the basis of the n'.:.nber of persons executing it. No restriction! has been placed under law restricting the number of persons, who could^ execute the promissory note jointly or servsrally. My finding is in the affirmative Tbe effect of this finding is that the promissory note is a duly and properly stamped document. Issue No. 2. The learned counsel for the defendant contended that the promissory note was executed in pursuance of agreement entered into between the parties under which the defendant was bound to pay Rs, 500,000, to the plaintiff and the promissory note was executed as a collateral security there­ fore it is without consideration. On the admitted facts it is clear that the defendants were liable to pay Rs. 5'JO.OOO and as a security for its payment,; the promissory note was executed, There is a valid consideration for execution of such a promissory note and merely because it was executed as a security for payment of any loan or amount due under agreement it can­not be held to be without consideration. The promissory note is a valid document executed for consideration. Issue No. 3. The defendant has alleged that the plaintiff has committed breach of agreement and therefore, the payment of Rs. 150.000 was withheld. In sup­ port of this allegation the defendant No. 1 has appeared and stated that after the agreement be had paid seven instalments but the plaintiff started a campaign of villification against the defendants and instigated sub-contrac­ tors and workers of the defendants to make false complaints before various Government Authorities. According to the defendants the plaintiff had agreed orally to coopsrate with the defendants, but as he indulged in aforesated activities he committed breach of agreement and payment was stopped. Except the words of the defendant No. 1 there is no evidence to establish this fact. The defendants could have examined such authorities or produced such reports which were ledged against them, but no effort was made in this direction. It may be mentioned that the plaintiff was employ­ ed with the defendant No. 1 who started his career with him and was ultimately made one of the directors of the defendant No. 2. There. seems personal animosity which has led to this unfortunate situation. However, on the basis of record the defendants have failed to prove that any breach of agreement was committed by the plaintiff justifying stoppage of payment to the plaintiff. The defendant No. 1 has frankly admitted that he was liable to pay Rs. 1,50,000 to the plaintiff but due to his subsequent conduct he did not pay the same. This can hardly be a defence parti­ cularly as the defendant has not be enable to establish the misconduct of the plaintiff. In these circumstances my finding rs in the negative. Issue No. 4. In view of the above discussion the suit is decreed for Rs. 1,50,000. (TQM) Suit decreed.

PLJ 1987 Karachi PLJ 1987 Karachi Present : ibadat V«R khan, J. MANIAR INDUSTRIES LTD., Baitul-Hamd, M. A, Jinnah Road, Karachi—Petitioner versus MOBIN PLASTIC INDUSTRIES, Marrict Road Karachi and Another—Respondents. J. Misc. No. 38 & 1981, allowed on 19-8-1986. (i) Patents and Designs Act, 1911 (II of 1911)—

S». 43(1) 51A—Designs—Registration of—Registration of not new or original design allowed by Controller of Designs & Patents —Held : Prayer for registration and consequently registration itself to be against scheme of Act and also to be contrary to provisions of S. 43 !,!) of Act [P. \21\A (ii) Patents and Designs Act, 1911 (II of 1911) ——S. 51A—Design—Registration of—Cancellation of—Existence of design and its publicity proved on record—Controller of Designs Patents, however, allowing registration of such not new or original design—Held: Registration granted by Controller to stand cancelled. [P. 128J5&C Mr. S. A. Sarwana, Advocate for Petitioner. Mr Ashraf Ayoob, Advocate for Respondents, Date of hearing : 19 8-1986. judgment Mobin Plastic Industries are manufacturers of combs having a parti­ cular design of their combs which is known, as -Diamond Design. By an application dated 25-9-1980 they applied for the registration of this design to the respondent No. 2 i.e. 'The Controller of Patents and Designs, Karachi. By an order dated 7-5-1981 the Controller of Patents and Designs allowed this registration and the corabs of the respondent No. 1 are now being sold and marketed with 'Diamond Design' as registered design. 2. The petitioners, who are competitors of respondent No. 1 and are also manufacturing corabs with more or less the same design, have filed this petition under section 51A of the Patents and Designs Act, 1911 for the cancellation of the registration of the design granted to respondent No, I. It would be proper t^ quote tim section in order to highlight the basis of the grievance raised by the petitioner in this ease. Relevant part of the section runs as under : — "51A. (1) Any person interested may present a petition for the cancellation of the registration of design... (a) at any time after the registration of the design, to the High Court on any of the following grounds, namely : — (i) That the design has been previously registered in (Pakistan); or (ii) that it has been publishedjin ( Pakistan ) prior to the date of registration ; or (iii) that the design is not a new or original design ; or (b) within one year from the date of the registration, to the Controller on either of the grounds specified in sub-cl»u»e (1) and (\i) of clause (a). (2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred." 3. Mr. S. A. Sarwana learned counsel for the petitioner has argued that the registration of the design granted to the respondent No. 1 by the respondent No. 2 is neither new nor original. Further the learned counsel contends that the same design has been published in Pakistan Market for a pretty long time prior to the design now registered in favour of respondent No. 1. As a matter of fact the learned counsel has taken pains to contend that quite a few other manufacturers of combs were pro­ ducing combs with identical design. He has led evidence on this point and it would be pertinent to refer to the evidence of PW 4 Sha67-68. The petitioner, himself has appeared in the witness-box as Ex, 16 and he has categorically stated that he is manufacturing an identical design of combs bearing the 'Diamand Design' Ex. 8/1 since 1953. Hewstates that the identical design were also produced by M/s. Jadced Plastic Industries and marketed by them since 1958. 4, The above evidence clearly indicates that the 'Diamand Designs' combs were in the market in 1980 when the application of the respondent No. I came to be filed praying for registration of the 'Diamand Design' of the combs. As such the prayer for registration and consequently the registration itself would be against the scheme of the Act. and contrary to the provisions of section 43(1) of the Act which limits the powers of the Control er to register only such designs as are "new or original designs not previously published." Against this positive evidence produced in this Court by the petitioner there is no evidence worth the name to rebut the petitioner's case. Even cross-examination on the petitioners witnesses does not shake the credibility of the witnesses asserting that the design has been in use and, bceo published prior to the date of application of reipondent No. 1. I may add that the respondent No. 1 has not examined any evidence whatsoever on this crucial part of the case. He has produced only one witness namely Muhammad Aslam son of Khuda Bux, who is the dealing Assistant in the Designs Section of the Controller's Office, This witness was summoned to produce some documents to show that the petitioner himself had applied for the registration of the design in his favour and in his affidavit he had stated that he is applying for she design because the design was never published before and bore originality. 5. Mr. Ashraf Ayoob learned counsel for the respondent No. 1 heavily relied on para 4 of the affidavit filed by the petitioner before the Controller, which runs as under :— "4. That the design is not a copy of any one else design and that nay Company, to the best of knowledge, information and be­lief, will not be infringing any one else's design by registration of this design.' Surely this is a statement of fact made by the petitioner before the Controller and perhaps it was not found to be correct by the Controller and that may be the reason why the registration to the petitioner has been refused by the Controlier, Whatever may be the sequence of events before the Controlier and whatever may be the weight of this evidence for the purpose of registration applied for by the petitioner himself, I cannot credit this statement made in the affidavit filed before the Controller against the evidence on oath produced in this case. The existence of the design and its publicity is supported by the three witnesses mentioned above and B ihis evidence for the purposes of this case is the most important evidence to dispose of the contention raised on the strength of Section 51A (i)(a) (,ii) of the Patents and Designs Act. No other argument was advocated. I This petition is, therefore, allowed. Taa registration granted by the iController to the respondent No. 1 vide order 7-5-1981 stands cancelled. (TQM) Petition allowed.

PLJ 1987 Karachi 128 PLJ 1987 Karachi 128 Present : tanzilur rahman, J R. K. MALIK and 2 Others—Plaintiffs versus LAHORE DIOCESAN TRUST ASSOCIATION, Mission Road , Lahore and 40 Others—Defendants CM A No. 2905/85, allowed on 4-10-1986 Civil Procedure Code, 1908 (V of 1908)— ——.O. XXXIX, Rr. 1 & 2—Interim injunction — Grant of — Held : Interim injunction being equitable and discretionary relief, each case to ssands on its own footing — Defendants (5 to 40) in case allegedly bona fid? purchasing property in question with considera­ tion and without notice—Such defendants being in possession for over decade or so, plea of limitation raised by them also not without substance—Held : More inconvenience to be caused to defendants (5 to 40) then to plaintiffs in case of rights of such defendants to use and enjoy property be disturbed at stage. [P. 131]A PLJ 1983 SC 563 ref. Mr. ti. H. Abbasi, Advocate for Plaintiff. Mr. Shafaat Hussain, Advocate for Defendants 1 & 2. Mr. Andlib Alvi, Advocate for Defendants 3 & 4. Raja Haq Nawaz, Advocate for Defendants 6 to 21. Mr, H. A. Rahmani, Advocate for Defendants 22 to 29, 31, 34, 36, 37, 39 & 40. Mr, Ibrahim Peshan. Advocate for Defendants 38 (a) to 38 (g). Date of hearing ; 1-10-1986, order These are two applications, CMA No. 2S05/85 and 434/86. Through CMA No. 2905/85 the plaintiffs seek maintenance of the status quo and/or to restrain the defendants from further disposal, construction, interference, repairs, changes or dealing with it in any other way adverse to the interest of the trust pending the disposal of the above suit, whereas through the other application CMA No. 434/86, direction has been sought by defendant Nos, 3 and 4 to restrain the plaintiffs to direct the maintenance of status quo and/or restrain th; plaintiffs from selling, constructing, repairing, changing or deal in any way adverse to the interest of defendants No. 3 and 4 on the plot of land in question. 2. At the outset I may state that no argument was advanced by the learned counsel for defendants 3 and 4 in support of CMA No. 434/86. J, therefore, take it to have abandoned by the counsel and as such it is dismissed. 3. As regards CMA 2905 85 the dispute relates to a plot of land bear­ ing No. LR 3 1, Lawraoce Road ( Nishiar Road ), Karachi comprising of 39.763 sq yds. It is claimed that the said property is a trust property and the plaintiffs are its beneficiaries. On the other hand, it is alleged that defendant No. 1, in whom the said property vested, approved the sale of 26,000 sq. yds. to defendant Nos. 3 and 4 through its Bishop (defendant No. 2), as attorney of defendant No. !. who had been managing and deal ing with the said property on its behalf. The said attorney entered into an agreement of sale on 1-6-1962 with defendant Nos. 3 and 4. On 9-4-1963 a resolution was passed by defendant No. I approving the proposed sale. Accordingly on 14-1-1965 a sale deed was executed and registered by defen­ dant No. 2 in favour of defendants Nos. 3 and 4. 4. The case has a chequered history. A suit bearing No. 154/62 was filed in the Court of District Judge by plaintiff Nos. 1 and 2, which was, however, dismissed on 1.7-1963. An appeal was filed against the said judgment and decree, which was also dismissed on 16-10-1968 by the High Court of West Pakistan, Karachi Bench, mainly on the ground that no sanction for filing the suit was obtained by the said plaintiffs as required under Section 92 of the CPC. Another suit No. 129/65 was filed by the said plaintiffs for injunction to restrain the defendant Nos. 3 and 4 from getting the land mutated in their favour but it too brought no fruit to the said plaintiffs. On 26-3-1969 the said plaintiffs instituted another suit bearing No. 169/69 against defendant Nos. 1 to 4 in the District Court which was also dismissed on 22-5-1970. The 1st Appeal bearing No. 82/71 filed by the said plaintiffs against the said judgment/decree was also dis­ missed by me on 24-3-1985, mainly on the ground that the learned District Court had no pecuniary jurisdiction to entertain the suit. A Petition for Leave to Appeal against the said judgment was filed in the Supreme Court, which was refused Now the said plaintiffs Nos. land 2 alongwith plain­ tiff No. 3 have filed the above suit for declaration and injunction and cancellation of the sale deeds executed by defendant No. 2 in favour of defendant Nos. 3 and 4 and the subsequent sale-deeds having transferred the said land by defendants Nos. 3 and 4 in favour of defendant Nos. 5 to 40 on various dates. 5. Mr. G. H. Abbasi, learned counsel for the plaintiff submits that the property being trust property was not open to sale and the actions of defendant Nos. 2 and ) in transferring the land to defendant Nos. 3 and 4 and all subsequent transfers by defendant Nos. 3 and 4 to defendant Nos. 5 to 40 are void and he is entitled to an injunction as prayed. Reliance is placed by him on several documents filed by the parties which, prima facie, give support to the submission of the learned counsel to the extent that the property was, perhaps, originally, religious trust property. 6. On the other hand, it is submitted on behalf of the defendants that even if it is admitted for the sake of arguments that the property in question was originally a trust property, it"was validly conveyed to defen­ dant Nos. 3 and 4 who subsequently transferred the same to defendants Nos. 5 to 40. It is also submitted that the plaintiffs are not the benefi­ ciaries and have no locus standi to file the suit. It is also alleged that the suit is time-barred, as the sale deed in favour of defendant nos, 3 and 4 was executed as long back as 196S. and defendant Nos. 5 to 40 claim to be the bona fide purchasers with consideration, of the property without notice since about 1970 onward. 7. On the basis of the documents placed on record. 1 feel that there is at least a semblance of trust as to the character and status of trie pro­ perty in question. The plaintiffs have, tnersfrtrc, a prima facie case in their favour as to the alleged status of the property, 8. Regarding the questions of irreparable injury and the balance of convenience for granting interim injunction during pendency of the suit. 1 feel it should be granted to the extent of restraining defendants 5 to 40 from further disposal of the land which they have purchased from defen­ dant Nos. 3 and 4. The defendant Nos. 5 to 4u thus, will not transfer or alienate the property in question to any one else during the pendency of the suit. It is necessary so as to avoid multiplicity of suits and creating further complication in the matter. 9. As regards interim injunction restraining the said defendants from raising further construction and/or carrying out repairs, reliance has been placed on Qamar AH Shah v, Waryam and 3 others (1976 SCMR 393) by Mr. Abbasi. On the other hand, defendants 5 to 40 have placed their reliance on the case of Bantva Memon Co-operative Housing Society Lid. and others i. An AH Khan and others (PLJ 1979 SC 338), which read as under ; "We have heard the learned counsel for the petitioners as well as the contesting respondent No. 1 in this petition. Before us the learned counsel for the petitioners has laid stress to contend that the petitioners as the bona fide purchasers of the land for valuable consideration from its auction-purchasers are in lawful possession thereof since 1972-73. They have already carved out about 500 residential plots in accordance with a development scheme and have allotted them to the members of the society who are in continuous possession thereof Many of them have already com­ pleted the construction of their houses and the construction by several others is in land. The petitioner-Society has also con­ structed a multi storeyed building having 98 flats and several shops by incurring an expenditure of more than Rs. 40 lakhs and the building was almost 70% complete before the 1st of October 1978 when the impugned order was passed by the High Court. The contesting respondent No. 1 was not in possession of the land in dispute. According to the learned counsel the respondent has no prima facie case in the appeal. At any rate the balance of convenience does not lie in favour of the issuance of the impugn­ ed order and the petitioners are liable to suffer irreparable loss and injury by virtue of the impugned order. Even otherwise the conduct of respondent disentitles him to any such equitable relief." 10. The defendants Nos. 5 to 40 are alleged to have purchased bona fide the property in question with consideration and without notice and being in their possession for over a decade or so. Plea of limitation, as raised by the defendants, is also not without substance. Reference has been made to Mirza Muhammad Saeed v. Shahab-ud Din aid 8 others (PLJ 1983 SC 563). An interim injunction is an equitable and discretionary relief. Each case stands on its own footing. If the rights of defendant Nos. 5 to 40 to use and enjoy the property are disturbed, at this stage it will cause more inconvenience to these defeudnnts than to the plaintiffs. In view of the facts and circumstances of the case and particularly the conduct of the plaintiff. I do not think it equitable to grant injunction to the plaintiff restraining them from carrying out repairs or further construc­ tion. Mr. Shafaat Hussain has stated that defendant Nos. 1 and 2 have no subsisting interest whereas Mr. Andlib stated that defendants Nos. 3 and 4 have already sold their interest to defendants Nos. 5 to 40 There­ fore, the question of passing any order against defendant Nos. 1 to 4 does not arise as they are not shown to be in possession of the land sold. How­ ever, it may be stated that this order should not be interpreted as a license to defendants Nos. 5 to 40 for construction, which is always subject to the observance of rules and regulations as in force for construction. If either of the defendants chooses to carry on any construction it will be at their own risk to bi decided at the time of ultimate decision of the suit, 11. These are the reasons for my short order dated 1-10-1986 passed by me just after conclusion of the arguments granting injunction against defendant Nos. 5 to 40 for not transferring or alienating the land in, question during the pendency of the suit. Order accordingly

PLJ 1987 Karachi 132 PLJ 1987 Karachi 132 Present ; salbem akhtar, J SANJEDA BANO—Appellant versus MUHAMMAD SAEED JEHANGIR—Respondent Misc. Appeal No. 76 of 1979, dismissed on 22-11-1986 (i) Trade Marks Act, 1940 (V of 1940)—

Scheme of—Held : Self contained machinery and procedure for registration of trade marks and comprehensive remedies to be pro­ vided under Act itself. [P. 135]D (ii) Trade Marks Act, 1940 (V of 1940)—

S. 8—Trade mark—Registration of—Prohibition of—Registration of trade mark identical or nearly resembling to one owned by an­ other proprietor prohibited by S. 8 of Act—Held : Authority no! to restrict itself to similarity with registered trade mark but aiso to take into account registered trade mark in respect of same goods or description of goods as well as unregistered trade marks already becoming distinctive by user in respect of same or similar description of goods or refused trade marks. [P. 134JA (Hi) Trade Marks Act, 1940 (V of 1940)—

S. 10 (3)—Court—Determination of rights by—Held : Proper civil court being court of civil jurisdiction, appellate court (under S. 76) not to be civil court competent to decide dispute as contemplated by S. 10 (3) of Act—Appellate court though having authority to record evidence and call for witnesses, such court possibly not to overload itself with duty to record cumbersome evidence — Held : Cases involving complicated questions relating to substantive rights (of parties) should be tried be civil court competent to try such matters. [P. 136JG & H (iv) Trade Marks Act, 1940 (V of 1940)—

S. 10(3)—Identical or similar trade marks—Registration of— Refusal of—Rights — Determination of by civil court — Separate applications made by diffeient persons in respect of trade marks closely resembling each other in respect of same goods or descrip­ tion of goods—Held : Registrar to be authorised to refuse to register any of such trade marks by leaving parties to get their rights deter­ mined by civil court—Dispute, however, should be between different persons in respect of identical or similar trade marks and should relate to same goods or description of goods. [P. 135]C (v) Trade Marks Act, 1940 (V of 1940)-

S. 10 (3)—Trade mark—Dispute regarding— Civil court — Deter­ mination of rights by—Held : Parties to be left for determination of their rights by civil court in cases where substantial right of parties be involved and on preponderance of evidence produced by them it be not possible to deternrne their rights within scope of jurisdiction conferred on Registrar. [Pp. 135 & 136JE (ri) Trade Marks Act, 1940 (V of 1940)- S. 10 (3)—Trade mark —Registration of-^Dispute regarding –De termination of—Held : Disputes between and rights of parties which fall within exclusive domain Registrar must be decided by him— S. 10 (3) of Act, however, to be competently invoked in case of parties raising disputes, claims and rights requring proper evidence and investigation for their determination — Held farther : Questions relating to similarity of marks, confusion, deception, honest and concurrent user arising in normal course during registration pro­ ceedings, determination of such disputes by civi! court to defeat very object of Act. [P. 136.F (vii) Trade Marks Act, 1940 (V of 1940)—

Ss. 10 (3) & 76—Civil Court—Reference of dispute to—Decision regarding—Appeal against—No serious question regarding determina­ tion of civil rights requiring determination by civil courts arising in case—Held : Order of Assistant Registrar regarding reference of matter to civi] court to be set aside in circumstances. fP. I36JJ (?iii) Trade Marks Act, 1940 (V of 1940)— —S. 47 (1) (c)—Trade mark—Entry regarding — Cancellation of— Effect of—Trade marks already removed from register for non­ payment of renewal fee—Held : Such marks not to be treated as trade marks in eye of law. [P. 134JB Mr. Ashraf Ayub, Advocate for Appellant. Mr. Akhtar Hussain, Advocate for Respondent. Date of hearing : 20-10-1986. judgment The applicant filed an application for registration of trade mark con­sisting of the words "Qadri Bahar Tel" with monogram inside letter Q in respect of hair oil in class 3 which was registered at serial No. 60052 dated 3-1-1974. On scrutiny a show cause notice under section 8 (a) of the Trade Marks Act was issued on 4-10-1974 and pending application bearing No. 60500 was cited as conflicting with the appellant's trade mark. Again on 11-1-1975 another show cause notice was issued under section 10 (1) of the Trade Marks Act and the appellant's trade mark identical to two registered trade marks No. 44056 and 44057 of Qadri Sehat Chemical Works, Rangpur, (East Pakistan) were cited. The appellant filed her reply to the show cause notice stating that the two registered trade marks No. 44056 and .44057 have been removed from the register for non-renewal and the pending mark of the respondent has been filed after the adoption and user of the appellant's trade mark under application No. 60052 which is in use since 1973. During the pendency of the appellant's application for registration, the respondent application No, 60050 was treated as abondoned by the Registrar of the Trade Marks and the appellant was called upon to file evidence of the user. In compliance with the order the appellant filed affidavits cash memo book, hand bill and newspaper. The appellant's trade mark was advertised in Trade Marks Journal dated 1-12-1977. The respondent filed opposition to the appellant's trads mark No. 60052 alleging that trade mark No. 44057 and 44057 which are similar and identical to the trade mark of the ?npei!ant in respect of the same goods were owned by the aunty of the respondent who was carrying on business in East Pakistan and after her death he has inherited the said trade mark but the same have been removed for non-payment of renewai fee. It was also alleged that the respondent is the manufacturer of Hair Oil and adopted two trade marks consisting of words QADERI ROGHAN letters 'MS' in concentric circle on label under No. 6u5l)0 which has been treated abandoned for noncompliance of office requirements. However, the respondent has filed an other application No. 66496 on 29-4-78 for the same trade mark and an­ other mark and words QADERI AMLA BAHAR ROGHAN. The respon­dent started business with the appellant as a partner but the appellant dis­ continued it and started using trade mark resembling trade mark No. 44056 and 44057. The respondent has continuously been using the marks from 1973 and by such user trade marks Qadri Roghan and Qadri Amala Bahar Roghan have acquired reputation in the market. The respondent filed affidavit of evidence and the appellant filed counter statement. It was alleged by the appellant that the respondent is not the prior user of the mark Qad'ri in Pakistan and further that the trade marks registered in East Pakistan were not transferred to Pakistan after the creation of Bengladesh and that the respondent had no right to inherit the same. Allegations regarding partnership were also denied. By the impugned order dated 5-7-1979 the learned Assistant Registrar of Tarde Marks to whom the matter had been assigned for determination considering the evidence of the parties brought on record held that the respondent has failed to establish his right and further that the user by the appellant as alleged was not established However, it was observed that the appropriate order for registration or non-registration can oe passed only after the rights of the parties have been determined by the competent court under section 10 (3) of the Trade Marks Act. There is no dispute between the parties that the trade marks claimed by both the parties are in respect of the same goodj. It is also not dispu­ ted that the trade marks sought to be registered by both the parties if not idential are similar to each other and are likely to cause confusion. The facts as stated above attracts section 8 of the Trade Marks Act which prohibits registration of trade mark which is identical or nearly resembles to another trade mark owned by another proprietor and which by reason of such similarity is likely to deceive or cause confusion. While A considering a case under section 8 (f) the Authority has not to restrict itself to similarity with a registered trade mark, but it can take into account, registered trade mark in respect of the same goods, or description >f goods, unregistered trade marks which have become distinctive by user m respect of same or similar description of goods, or refused trade marks. In the present case the objection of the respondent based on register­ed marks No. 44056 and 44057 belonging to Jehan Ara Begum alleged to be the aunty of the respondent, could not be entertained under section 10 for the simple reason that these marks were removed from the register for non-payment of renewal fee. These trade marks can not be treated regis- ^ tercd trade marks in the eyes of law, nor the marks which are made ba»is tor objection are on register. The respondent has also failed to establish that be has inherited the said marks and is their proprietor. The respon­ dent, therefore, cannot oppose registration under section 10 (I) of the Trade Marks Act. So far the objection based en section 8 or'the Trade Mark is concerned it is pertinent to note that none of the parties have argued that the marks are not similar and are not likely to cause confusion and deception. The learned Assistant Registrar on assessment of evidence came to the conclusion that the respondent has failed to establish thai his mark is so well known that if the appellant's mark is registered deception and confusion would be inevitable. It was held that the respondent claims user since 1973 but application No. 496 was filed on 6-12- !9'?7 and the opponent has failed to establish substantial user since 1973. The evidence produced by the respondent was weak, stereotype and did not inspire confi­ dence. The evidence of the appellant was also weak and substantial uses-was not established. The learned Assistant Registrar then held that as controversy requires evidence and cross-examination of witnesses the regis­ tration of the marks of the appellant and respondent is refused until their rights have been determined under section 10 (3) by a competent Civil Court. Section 10 (3) reads as follows : — "10 Prohibition of registration of identical or similar trade mark. — (1) Save as provided in sub section (2), no trade mark sbail be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and either already on the register or already registered in any Acceding State or a non-Acceding State to which section 82A for the time bemg applies in respect of the same goods or description of goods or #hich so nearly resembles such trade mark as to be likely to deceive or cause confusion. (2) (3) Wh;re separate application made by different persons are identical or nearly resemble each other, in respect of the same goods or description of goods, the Registrar ma« refuse to register any of them until their rights have been determined by a compe­ tent Court''. Under section 10 (3) if separate applications have been made by diffe­ rent persons in respect of the trade marks which are identical and closely resemble to each other in respect of the same goods or description of goods the Registrar is authorised to refuse to register any of them and c leave the parties to get their rights determined by a civil Court. Therefore, the dispute should be between different persons in respect of the trad" marks which are identical or similar and should relates to the same goods or description of goods. The question arises when the Registrar should leave the parties for determination of their rights by the Civil Court, Thei Trade Marks Act provides a self contained machinery and procedure for' registration of trade marks and comprehensive remedies have been provid-i ed under the Act itself. Even in cases where the parties are different and dispute relates to registration of trade marks which are similar or closely resemble each other in respect of the same or similar description of goods, the Registrar can grant or refuse to register the trade mark j Section 10 (3) should be invoked only in cases of special circumstances! and exception nature. The parties should be left for determination of their rights by the Civil Court in cases where substantial right of the parties are involved and on the proponderence of evidence produced by both the parties it is not possible to determine the same within the scope of juris­ diction conferred on the Registrar, The disputes and rights between the parties which fall within the exclusive domain of the Registrar must be deci­ ded by him. However, if parties raise disputes, claims and rights which can not be decided without proper evidence and investigation section 10 (3) may be invoked. The questions relating to similarity of marks, confusion, decep­ tion, honest and concurrent user to arise in the normal course dur­ ing the registration proceedings and they should be decided by the Regis­ trar. If such disputes are left to be determined by the Civil Court it will defeat the very object of the Trade Marks Act. The proper civil Court in such cases would be the court of civil jurisdiction. It would not be proper to hold that the appellate Court will be the civil court competent to decide the dispute as contemplated by section 10 (3), for the reason that the appellate Court would look into the matter on the basis of evidence which has been produced before the Registrar which are usually in form of affidavit and may be insufficient. Where complicated questions regarding substantive rights are raised, it is proper that the parties may produce evidence and allow the witnesses to be cross-examined by the adversery. If the appellate Court embarks upon inquiry merely on the evidence in affidavit produced before the Registrar the parties will not have any opportunity to cross-examine the witnesses. It may be argued that the appellate Court has the authority to record evidence and call the witnesses, but in the present state and circumstances, it is not possible for the appellate Court to over load itself with the duty to record cumbersome evidence. Such cases involving complicated question relating to substantive rights should be tried by the Civil Court competent to try such matters, In the present case no such dispute seems to arise because the appellant has not been able to establish on the basis of evidence produced by her that she has been using the trade mark for a very long period and by virtue of user the mark has become distinctive. The plea of the respondent is also not sub­stantial as the evidence is scrappy and vague The respondent is not the proprietor of any rigistered trade mark. The two registered trade marks which were registered sn the name of Jehan Ara Begum alleged to be the aunty of the respondent are no more on the register. The respondent has not applied for the transfer of those trade marks in bis name in Pakistan , Nor has he produced any evidence to establish how he has inherited the non-existent trade marks. Mere allegation is not sufficient. In these circumstances no serious question regarding determination of civil right .arise» which requires determination by the Civil Courts. In these circum­ stances the order of the learned Assistant Registrar to refer the matter to ithe Civil Court for determination of rights of the parties is set aside. Considering the facts, circumstances and evidence on record, the applica­ tion for registration filed by the appellant and the opposition filed by the respondent are dismissed. For these reasons the appeal is dismissed. (TQM) Appeal dismissed.

PLJ 1987 Kiracbi 137 PLJ 1987 Kiracbi 137 Present : saiduzzaman siddiquj, J NAHEED NOOR LIMITED, Ismai! Ibrahim Chundrigar Road, Karachi—Appellant versus REGISTRAR TRADE MARKS, Trade Marks Office Musiimabad, Karachi and Another—Respondents Misc. Appeal No. 29 of 19il, dismissed on 29 9-1986 (!) Trade Marks iules. 1963—

R. 36 read with Trade Marks Act, 1940 (V of 1940)—S, 76 — Additional evidence—Production of—Power to allow—Exercise of— Respondent not producing evidence despite grant of six extensions of time by Registrar—Subsequently, prayer of respondent to lead additional evidence in case allowed by such Registrar — Held : Registrar of Trade Marks having been satisfied as to genuineness of "cause, no exception to be taken to exercise of power by him under rule ?,fi of Trade Marks Roles, 1963. [P. 139]D (ii) Trad® Marks Rules, 1963 — •- — Rr. 36 & 76—Tribunal—Powers of — Exercise of — Held : Power available to Tribunal under rule 36 to be exercised in exceptional cases to do complete justice between parties — Reservation of such powers for tribunal to be necessary to meet endsof justice—Htld further : Power vested in tribunal by virtue of rub 36 not to be circumscribed or controlled nor to have any nexus with jurisdic­ tion exercised by tribunal under rule 76. [P. 139JA&C iiiij Trsde Marks Rules, 1963—

R. 76—Time—Extension of—Registrar— Powers of — Time preicribed under rules or granted by Tribunal for performance of (parti­ cular act — Held : Registrar to have power generally to grant extension of time to perform such act. [P. 139]B Mr. S. Shaukat Ali, Advocate for Appellant. Mr. Jamiluddin, Advocate for Respondent No. 2. Date of hearing : 29-9-1986. judgment This order will govern the disposal of above noted 7 Misc, appeals filed under section 76 of the Trade Marks Act, 1940 in which a common question of law has been agitated. The appellant in al! the above cases opposed registration of trade marks "Playboy" with a device of rabit head in respect of different articles produced by respondent No. 2 under different classes by filing opposition proceedings under section 15(2) of the Trade Marks Act, 1940. Aiongwith the opposition the appellant produced all the evidence relied on by him in accordance with rule 31 of the Trade Marks Rules, 1963. Simil­ arly in reply to the opposition notice respondent No. 2 submitted counter statement duly supported by documents. Thereafter, the Registrar directed the parties to file TM-7 for final hearing of the case on 18-3-1981. Both the parties submitted form TM-7 showing their intention to attend the hearing on the aforesaid date personally. On 18-3-1981 the case was however, adjourned to 10-2-1982 and on the adjoured date of bearing instead of proceeding with the case the respondent No. 2 submitted additional evidence and prayed before respondent No. 1 that he may be allowed to rely on the affidavit dated 28-! 1-1981, with annexures in support of the application for registration of trade mark and the counter statement. This prayer was opposed by the appellant who contended that the respondent having availed sufficient opportunity for submitting evidence in support of the application and the counter statement in accordance with rule 16, was no more entitled to any further opportunity to lead evidence in the case. Respondent No. 1 however, did not agree with the appellant and took the view that be had enough power under rule 36 of the Trade Marks Rules 1963 to allow any party to lead further evidence in a fit case and for reasons stated in the impugned order allowed the prayer of Respondent No. 2 to bring addi­ tional evidence on record in support of application and the counter state­ ment. Mr. Syed Shaukat AH, the learned counsel for the appellant did not challenge the grant of prayer by the Registrar to allow Respon­ dent No. 2 to lead additional evidence in the case on merits but questioned the impugned order only on legal grounds. It is contended by the learned counsel that after deletion of rules 33 to 35 and amendments in rules 31 and 32 which now provide that all the supporting evidence is to be produced at the time of filing of opposition and the counter statement respectively the power left with the tribunal under rule 36 to allow addi­ tional evidence is to be treated subject to the provision of rule 76 which provided that the tribunal cannot allow extension of time for doing an act by a party exceeding six months. It is accordingly contended that as in the present case the respondent No. 2 had already availed six months time by obtaining six extensions of time under rule 76 ibid for producing evidence in support of their application as well as counter statement, the tribunal was left with no power under rule 36 to allow them any further time for leading additional evidence in the case. Under old rules 30 and 31 of Trade Marks Rules, 1963 a party wish­ ing to oppose registration of trade mark advertised by an applicant for registration had to file notice of opposition stating only the grounds of opposition within two months of the advertise­ ment. Similarly the applicant in reply to opposition notice was required to submit a counter-statement in accordance with old rule 32 within on month, either admitting or denying the facts mentioned in the opposition notice. No evidence was required to be filed either with the opposition notice or with the counter statement, which was regulated under rules 33 to 35 of the Trade Marks Rules. By an amendment introduced in the Trade Marks Rules, 1963, in the year 1977 the period provided under rule 30 was enhanced to 4 months from 2 months and the party wishing to oppose registration of a trade mark is now required under amended rule 31 to submit all the evidence relied by him in support of of the opposition with the notice of opposition. Similarly the applicant when filing the counter statement in reply to opposition notice is also required to submit all the supporting evidence in accordance with amended rule 32 along with the counter statement. Rules 32 to 35 which provided for leading of evidence in support of opposition and counter statement and the rebuttal evidence by the party riling opposition notice stand omitted by the amendment of 1977, Learned counsel for the appellant contends that as a result of the above change in the procedure brought about by the amendment of 1977, the parties are now required to file all their evidence at the time of Sling of opposition and the counter statement and thereafter, no further oppor­ tunity could be given to them for leading evidence. With regard to power of registrar reserved in rule 34 of the Trade Marks Rules, to allow the parties to lead further evidence, learned counsel contended that in view of omission of rule 35 which allowed opportunity to the party filing opposition notice to lead evidence in rebuttal, the power of Registrar to allow additional evidence should be treated as limited to only those cases where power of Registrar under rule 76 was not exhausted. I have carefully examined the above contentions of the learned counsel and after going through the relevant rules I am of the view that rule 36 of the Trade Marks kules is independent of rule 76 ibid and the power vested in A the tribunal by virtue of this rule is neither circumscribed nor controlled by the said rule. Rule 76 in my view deals with the power of registrar generally to grant extension of time to perform an act by a party for which time is either prescribed under the rules or for performance of which time is granted by the tribunal, The powers of tribunal under rule 76 of the Trade Marks Rules is in many respect com parable with the powfr of a civil court under section 148 of the Code of Civil Procedure. However, the power conferred on the tribunal under rule 36 of the Trade Marks Rules, 1963, is of a special nature and is neither comparable nor has any nexus with the jurisdiction exercised by the tribunal under rule 76 ibid. The power available to the tribunal under rule 36 ibid is to be exercised in exceptional cases to do complete justice between the parties and reservation of such powers for the tribunal is necessary to meet the ends of justice. Mr. Shaukat Ali, the learned counsel for the appellant contended that as a result of omission of rule 35 a party filing the opposition now has no opportunity to lead evidence in rebuttal which was available to him under the omitted rule 35. It is true that the omitted rule 35 specificallyallowed tbe party filing opposition proceedings an opportunity to file evidence in rebuttal after filing of the evidence by the appellant under omitted rule 34 ibid but inspite of omis­sion of rule 35, there is still ample power available with the tribunal by virtue of rule 36 to allow the party filing opposition, if necessary, opport­ unity to lead evidence in rebuttal in appropriate cases. After hearing the learned counsel for the parties I am in doubt that the tribunal in appropriate cases has ample power under rule 36 of the Trade Marks Rules to allow leading of additional evidence by a party who may not have produced the evideuce under rules 31 and 32 ibid. As the prayer of respondent No. 2 for allowing him to lead additional evidence in the case was allowed by respondent No. I after the latter was satisfied as to the genuineness of the cause, no exception could be taken to the exercise of D power by respondent No. 1 under rule 36 ibid inspite of the fact that respondent No. 2 had not produced this evidence although six extensions of time were granted to them by the Registrar under rule 76 ibid. The question of payment of Rs. 30 for every extension of time granted by the Registrar under rule 76 was also not relevant in the case as the power was exercised by the respondent No. 1 under rule 36 which made no such qualification for exercise of power. No other point was raised. No case for interference is made out. The appeals are accordingly dismissed but there will be no order as to costs. (TQM) —•

Apptai diimisnd.

PLJ 1987 Karachi 140 PLJ 1987 Karachi 140 Present : ibadat yar khan, J BOARD OF TRUSTEES OF PORT OF KARACHI, KARACHI PORT TRUST, Karachi—Plaintiff versus PUNJAB INDUSTRIAL DEVELOPMENT BOARD, KARACHI through Its Chairman—Defendant CMAi No. 3841,3852 & 3853 of 1986 (in Suit No. 493 of 1979), decided on 28-9-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

O. IX, R. 13—Ex-parte decree—Setting aside of—Counsel- Incidental slip on part of—Effect of—Defendant's counsel not reading case in cause-list on account of human error as well as because of his illness—Held : Defendant not to be made to suffer 'for incidental slip or omission' on part of his counsel. [P. \42]B PLJ 1978 SC 189 & PLJ 19E6 Pesb. 1 ref . (ii) Civil Procedure Code, 1908 (V of 1908)—

O. IX, R. 6—Defendant—Non-appearance of on date of hearing- Charges for use and occupation of laud claimed by plaintiff contested by defendant on ground of their being highly exaggerated and fancifu!—Subsequently, defendant remaining absent on particular day of bearing—Held : Court to exercise its discretion by deciding case after recording evidence on damages rather by passing ex-parte Decree without recording evidence. [P. 143jC PLJ 1978 SC 189 re/. (iii) Limitation Act, 1908 (IX of 1908)— ——S. 5—Delay—Condonation of—Sufficient cause for—Application under S. 5 of Limitation Act accompanied by affidavit of counsel himself—Held : Application to be allowed in circumstances [P. 1413-4 Ch. Abdul Majeed & Mr, Qamar Abbas, Advocates for Plaintiff. Mr, Abdul Nasir Khan, Advocate for Defendant. Date of hearing : 28-9-1986. order The plaintiffs have filed this suit for the recovery of a substantial sum of Rs. 54,544.50 which is made up of a claim of Rs. 46,463.00 for use and occupation charges of the land belonging to the plaintiffs and used by the defendant for period 17-10-1976 to 31-3-1978; expenses on publication of notices incurred by the plaintiffs in the sum of Rs. 1,276 00 and interest on the principal amount amounting to Rs. 7,201.00. According to the allegations in the plaint, the defendants have used the land for the purpose of storing their Machinery and goods on the plot belonging to the plaintiff. After exchange of notices between the parties his suit was filed. A written-statement was filed by the defendants and on pleadings of parties the following issues were framed : — "(1) Whether or not the charges claimed by the plaintiffs are reason­ able ? (2) What should the decree be and conssquences of costs ?" The case was fixed for regular hearing on 16-5-1984 when the plaintiff's counsel was present, but the defendants remained absent and an ex-parte o'ecree was passed against the Defendants. I have read this order of the learned Judge and it appears that the defendants were willing to pay the normal rents of the land to the plaintiff, but were resisting the claim of the plaintiff only on the ground that it was highly inflated and exaggerated. The learned Judge, without recording any evidence on this crucial issue, proceeded to pass decree. This application has been filed under Order IX Rule 13 read with Sec­ tion 151 CPC praying for setting aside this ex-parte decree. Another appli­ cation (C.M.A. No. 3852/1986) has beeu filed under Section 5 of the Limi­ tation Act. Both these applications are supported by an Affidavit. The affidavits have been filed by the Defendants as well as by the Advocate of the Defendants in support of both these applications. So far as C.M.A. No. 3852/1986 is concerned, the Affidavit of the defendants is to the effect that the defendants has no knowledge or infor­ mation about the date of hearing. They expected that the suit would be fixed in due course and they would be informed by their Advocate. The defendants came to know of the fate of the suit i.e. ex-parte decree only on 21-8-1986, when they were served with the notice of execution of the ex-parte decree. This application has been filed on 28-8-1986 and if time is to be computed from the date of knowledge, this application would be within time, In the circumstances of the case and particularly in view of the affidavitl of the learned counsel himself, I would allow this application movedJA under Sec, 5 of the Limitation Act and hold that the application for setting! aside the ex-parte decree is within time. C.M.A. No. 3841/1986.— This application under Order IX Rule 13 ead with Sec, 151 CPC is also supported by an Affidavit of the Defendant as well as the Advocate of the Defendant. As a natter of fact the burden to explain the circumstances under which this ex-parte decree came to be passed is on the defendant'! Advocate and not on the defendants themselves, because this case was being conducted by the Advocate. This position is frankly admitted by the learned counsel for the defendants as is evident from his personal affidavit. The learned counsel has filed a detailed affidavit of the circumstances under which the suit was ex'parte decreed and of the date of knowledge of this ex-pane decree. Reference may be made to Paras 6, 7 and 8 of the affidavit of the learned counsel. ! would do well to reproduce these paras in extenso : — '•(6) That 1 made necessary enquiries and I found that I being a chronic patient of high blood pressure was doing light work during third week of August, 1984. 1 checked up the cause list of 16-5-1984 and I found that unfortunately I had omitted to note from the cause list that the suit was fixed on 16-5-1984 and since I had omitted to note the date I could not inform of the date to the defendant and I and the defendant came to know of the tx-pane judgment dated 16-5-1984 on 21-8-86. (7) That I say that the e-parte judgment dated 16-5-1984 is bad in law, I say that there was no wilful or deliberate default on my part or on the part of the defendant. (8) That I say that the defendant should not be made to suffer for the accidental slip or omission on my part." It may be mentioned that no Counter-Affidavit was filed till 25-9-1986 and even a copy of the same was not supplied to the counsel of the Defendants. This matter was called several times since morning and I have heard the learned counsel for the Defendants Mr. Abdul Nasir Khan now at 12.45 P.M. In the circumstances I would not consider the Counter Affidavit because no copy of the Counter Affidavit was supplied to the learned counsel for the Defendants till today. From the perusal of the Affidavit of the Advocate of the Defendants it appears that the mis-fortune occurred on account of the illness of the Advocate for the Defendants. It is on account of human error that the Defendant's counsel could not read the case which was published in the cause-list and as rightly urged by the learned counsel in para ?, the Defendants should not be made to suffer "for the incidental slip or omission on my part". During the arguments the learned counsel for the Defendants hai relied on a very recent case decided by Mr. Usman Ali Shah J., Collector Mardan & Others v. Faiz Muhammad" ( PLJ 1986 Peshawar 1). His Lordship has closely examined the provisions of Order IX Rule 6 CPC. In this judgment a case decided by the Supreme Court, reported in PLJ 1978 SC page 189, has also been referred to. Their Lordships of the Supreme Court while examining the impact of the amended Order IX Rule 6 CPC. have held that the words "pass decree without recording evidence" inserted in the Rule by Law Reforms Ordinance, 1972, do not completely absolve the court from the duty to record evidence and pass a decree, as a matter of course on account of the absence of the Defendant on the date of hearing, Their Lordships have considered the situation in which patently time barred suit or patently dis-honest, absurd or exaggerated claims may have been filed and if such claims are mechanically or as as a matter of course decreed on account of absence of the Defendants, it would work grave injustice and cause great prejudice to the class of Defendants who may have genuine defence, but for good cause were prevented from attending the Courts on the dates of hearing. In the present case the defendants were struggling to establish that the claim of the plaintiff was highly exaggerated and instead of charging normal rents for the land the plaintiffs were demanding arbitrary and fanciful charges for the use and occupation of the land. Indeed this was the only inue involved in the case. Learned counsel for the Defendant has argued that it was incumbent on the plaintiffs and obligatory on the Court to record evidence on this issue. Being in the nature of damages and being a highly disputed claim, the burden was on the plaintiffs to establish the genuineness and reason­ ableness of charges they were claiming. Obviously the plaintiffs have failed to do that. There -remains a highly controversial and debatable issue between the parties, whether the charges claimed by the plaintiffs arc fair, equitable or they are highly exaggerated or fanciful as urged by the c learned counsel for the Defendants. In the circumstances it was a fit case in which the Court should have exercised the discretion by deciding the case after recording the evidence on damages rather by passing an "ex-pane decree without recording evidence." This would be in conformity with the decisions relied upon by the learned counsel for the Defendant. Particularly the dictum laid down by the learned Judges of Supreme Court in the case reported in PLJ 1978 SC page 189. I would, therefore, set aside the ex-pane decree, allow this application (C.M.A. No. 3841/86) and restore the suit to its original number to be disposed of in due course The application stands disposed of. C.M.A. No. 385211986.— This application under Order XXI Rule 26 CPC becomes infructuous in view of setting aside the ex-parte decree. The application stands disposed of as having become infructuous. The learned course! for the plaintiff states that as the decree was passed on account of a fault attributable to the Advocate of the Defendants he would not claim any costs. (MIQ) Order accordingly.

PLJ 1987 Karachi 143 PLJ 1987 Karachi 143 Present : abdul razzak A. thahim, J COMMERCE BANK LIMITED, (now merged into UNITED BANK LTD.) through MANAGER, UNITED. BANK LIMITED, Idgab Branch, Bank Road, Karachi—Appellant versus Mst. SUGHRA BAI and 3 Others—Respondents Second Rent Appeal No. 15 of 1984, allowed on 4-12-1986 (f) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)— Ss. 13(2)(0—Eviction—Default—Ground of—Security—Adjustment of—Amount of Rs, 2,50,000 lying with landlord liable to be refunded in full to tenant on termination of lease—Held : Such amount lying with landlord for no specific purpose, adjustment of rent to be allowed from it (in case after demise of original landlord). [P. 146]B (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)—

Ss. I3(2)(/) & 8—Tax paid by tenant—Adjustment of—Liabilities and taxes paid by tenant on behalf of legal heirs of landlord on re­ ceiving notice from competent authorities—Held : Such taxes (in terms of agreement) being required to be paid by landlord, tenant to rightly adjust such claim from respondents, [P. 146]A Mr. Inamul Haq t Advocate for Appellant. Mr. Badrudduja Khan, Advocate for Respondents. Date of hearing : 10-11-1986. JUDGMENT This second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance) has been filed against the order dated 17-9-1984 of III Additional District Judge, Karachi, who allowed the appeal of the respondent and set aside the order of Rent Controller whereby rent case was dismissed. He allowed four months time to appellant to vacate the premises. 2. The facts are that on 3-4-74 respondent fi!ed rent case under section 13 of the Ordinance on the ground of default in payraent of rent from 1-6-71 to March 74 and or. the ground of damage to the property, Appellants io their statement denied the allegations and stated that on the death of tenant Mr Hamani appellant tried his best to find out ihe names of legal heirs of the deceased and on getting the same they sent registered letters to the heirs but same were returned unserved therefore they bad to wait for notice under section 13A of the Ordinance, However, appellant had statedj the rent from 1-6-71 in name of deceased is kept in sundry account every month, regularly therefore no default has been committed. It is also stated that the amount of Rs 2,50,OOU/- as security deposit was lying with Sate Nlr. Hamani and he agreed to execute registered rent de=d io favour of the bank which he failed to do so as the present respondents till today therefore appellants are entitled to claim adjustment of all the arrears of future rent from the security deposit, and that from i-1-71 upto 31-1-74 rent due would be Rs.H4!5/- out of which appellant paid Rs. U.625/- on account of arreare of property taxes in accordance with the law on behalf of the legal heirs and balance of Rs. 279Q/- to the income tax authority on receiving notice under section 46(5A) of the Income Tax Act 1922 in December, 1973 therefore appellant paid rent due upto 30-4-74. 3. 1 have heard Mr. Inamul Haq for the appellant. It is contended that bank has not committed any wilful default in payment of rent as the taxes and other liabilities were paid by the bank on receiving the notice from the relevant authorities. It is argued that an amount of Rs. 2,50,000/- is lying with the respondent and the rent can be adjusted from the amount, He has also argued that additions and alterations were not made by the bank. The notice under section I3A of the Ordinance was not served therefore bank was not in position to tender rent to the heirs but the amount was kept in sundry amount. He has relied upon a case reported in 1982 CLC 1C07. 4. Mr. Badrudduja Khan for the respondent submitted that plea of adjustment was not taken by the appellant therefore he is not entitled to claim the adjustment. He has referred to the cases reported in 1980 SCMR834, 1985 CLC 1392, It is argued that appellant had the knoweldge about the death of Mr. M A. Hamani therefore notice under section 13A of the Ordinance was not necessary. He has referred to the cases reported in 1981 SCMR 179, NLR 1985 Unreported Cases 45], 1985 SCMR 24 and 1986 SCMR 751. It is also argued that according to terms of the agreement the rent is not adjustable towards the deposit. 5. The relationship and the rate of rent is not disputed. Muhammad Ali Hamani-iandlord died on 5-6-71 and the rent case has been filed on 3-4-74 after lapse of about 3 years. The appellants have not denied this fact but has taken the plea that on coming to know about the death of Mr, Hamani the appellant tried to find the names of legal heirs of deceased and on getting some names they sent a registered Setter dated 8-1-7! but those letters returned unserved therefore they had no other way but to wait for notice under section 13A and in the meanwhile started crediting rent from 1-6-7, in the name of deceased in sundry account every month regularly. It is also stated that by the agreement dated 13-1-68 appellants paid Rs. 2 50,000/- as security deposit to late Hamani. It is the case of the appellant that they paid Rs. 11625/- on account of arrears of property taxei in accordance with law on behalf of legal heirs and late Hamani and also Rs. 2,79Q/- income Tax Authority on receiving the notice under section 46(5A) of the Income Tax Act 1922 in December 1970 therefore according to them they have paid rent to 30-4-74. In support Sber Muhammad, Manager of the Bank, has produced agreement Ex. 8/1 darted 13-1-68, certificate in respect of Rs. 2,50,000/- Ex. ts/2 and cetificate B/3 showing the amount of Rs. 19,99s/- has been debited in sundry. The notice of the Income Tax and receipt with regards to the payment of taxes and Income Tax also produced by the witness which have not been controverted. The appellant in notice dated 8th November, 1971, Ex. B/16 Mrs. Tahira, widow of Mr, Tarazan Ali, requested to return the draft of the lease deed which is handed over to Mr. Hamani personally for approval and also in that letter the list of legal heirs were called for. In another letter dated 16th December 1973, Ex. !7. It was informed to Mrs. Tahira that no notice under section ISA of the Ordinance has been received by the appellant as required under the Ordinance nor any authority for payment of rent from June 1971. in the same letter it is stated that accumulated rent is being deposited in the sundry account pending receipt of notice under section 13A. In the end of the letter it is stated as under :— "We hereby, therefore reque»t you to please give us the name of any one owner or the name of all the owners in whose name, we can forward arrears of rent in accordance with agreement". On the other hand, Mst. Sughra Bai in his evidence produced copy of the letter dated 19-10-72, Ex, A/1, informing the appellant about the legal heirs. This letter has been denied to have been received by the appellant. This letter was sent after one year of the death of Mr, Hamani. In case of Haji Khuda Bux v. Muhammad Anwar reported in 1982 CLC 1006 it has been held that tenant paying house tax due on premises to assessing authority in pursuant of the notice held fully justified to do so and he cannot be deemed to be wilful defaulter. With regards to the notice that in the year 1971 immediately appellant required the list of the tenant and there is nothing on the record to show that the list of all the heir» who could claim the rent was furnished to appellant. Not only this but in the year 1973 the appellant requested to furnish the list of legal heirs and they were prepared to pay the rent. The conduct of the appellant is clear. It is proved beyond shadow of doubt that liabilities and taxes were paid by the appellant on behalf of legal heirs on receiving notice from the competent authorities. These taxes in terms of the agreement were to be paid by the landlord/respondent therefore appellant can rightly adjust this claim from the respondents. Furthermore, an amount of Rs, 2,M),COO/- is lying with the late M.A Hamani. In terms of the agreement this Bjtmount was not for specific purposes and is liable to be refunded in full to the appellant on termination of the lease in question Adjustment can be allowed from the amount of Rs. 2,50,COO/- lying with respondent. Appellant has not committed wilful default in payment of rent. With regards to the allegations of additions and alterations in the premises the findings of the learnt Rent Controller & learned III Additional District Judge are concurrent. No evidence has come on record to show that appellants have made such acts which have impaired the material value of utility of the premises. I therefore allow the appeal and set aside the judgment dated 17-9-84 of ill Additional District Judge, Karachi, consequently the order of the Rent Controller by which the rent applica­ tion was dismissed is maintained. (MIQ) Appeal allowed,

PLJ 1987 Karachi 146 [DB] PLJ 1987 Karachi 146 [DB] Present: abdul qaoeer choudhry & syed abdur rahman, JJ MUHAMMAD ALl—Petitioner versus GOVERNMENT OF SIND through its CHIEF SECRETARY, Sind Secretariat, Karachi and I Others—Respondents Const. Petition No. D-567 of 1985, dismissed on 22-1-1986 (i) Foreigners Act, 1946 (XXXI of 1946)—

S. 3 (2) (g) & 9—Foreigner—Detention of—Held : Onus of show­ ing that detenu to be no foreigner to be upon such person (and not upon detaining authority or other respondents). IP. l5l]A (ii) Foreigners Act, 1946 (XXXI of 1946)—

Ss. 3 (2) (g) & 9 read with Constitution of Pakistan, 1973—Art. 199 —Foreigner— Detention of — Challenge to — Question of detenu being foreigner or Pakistan national being question of fact, same requiring detailed examination (by court)—Held : Proceeding under writ jurisdiction not to be appropriate for decision of such question. [P. 151]B (iii) Writ Jurisdiction—

Exercise of-Held : Clear legal right admitting of no reasonable doubt or controversy to be shown by party applying for writ. [P. 151JD (iv) Writ Jurisdiction—

Fact—Disputed question of—Inquiry into — Held : High Court generally not to enter into disputed question of fact in exercise of its writ jurisdiction. [P. 151]C PLD 1961 Lah. 304 ; PLD 1967 Lab. 329 ; PLD 1960 Dae. 660 ; PLD 1968 SC 185 & PLD 1962 Kar 712 ref. Mr. K. M Nadeem, Advocate for Petitioner. Mr. Muhammad Ibrahim Memon, AAG for Respondents. Date of hearing : 13-1-1986. judgment Syed Abdur Rahman, J.—This Constitution Petition has been filed to challenge a detention order passed under Foreigners Act, 2. Briefly stated the Petitioner's case is that be is a Pakistan national. His father Rasool Ali, the detenu had migrated to Karachi, after 1947 from the former East Pakistan and is presently settled at Karachi, for the last about 36 years. The detenu was rounded-up by the Police in a general raid on or about 1-2-1980 on the allegation that he is a foreign national putting up id Pakistan in violation of Foreigners Act. Subsequently the detenu was confined in Central Prison Karachi, under the orders of Respondent No 2, the Secretary of Home Department, Govern­ ment of Sind for a period of 60 days. The detention order was served upon the detenue while he was in custody but it did not show any grounds for such detention nor such grounds were delivered in the form of memorandom or communicated to the detenu subsequently. This detention order was extended for an additional period of 60 days. Thereafter from time to time the detenu was informed by the Superintendent, Central Prison that his detention was being extended by the Secretary to the Government of Sind, Home Department after the expiry of each duration of 60 days but no such order was served upon the detenu, inspite of his repeated requests/except a copy of the order extending his detention from 27-7-1984 to 22-9-1984. It has been complained by the detenu that he is continuously confined in Central Prison Karachi and has not been pro duced before any Court or Tribunal to show cause against his such con­ finement. He has contended that the detenu is citizen of Pakistan but having been born in former East Pakistan, he was being illegally detained/ punished for being a Bangladeshi, inspite of the fact that he has already migrated to this part of Pakistan after partition and permanently domiciled herein and continuously residing at Karachi even after the cessation of former Bast Pakistan from the area which is new called Pakistan. He made a desperate appreoch to the Embassy of Bangladesh for securing his release through authorities concerned. The Embassy of Bangladesh refused to intervene in the matter as they could not render assistance in securing the relief for a Pakistani to remain in Pakistan. He has further prayed that the detention of the detenu be declared null and void and without anv legal effect and such order be issued to the respon­ dents to set the detenu at liberty. 3. A counter-affidavit has been filed by S.M, Nazir, Section Officer (Passports), Home Department, Government of Sind wherein it has been stated that the averments made by the petitioner that the detenu abovenamed is a Pakistani national are not correct and are not supported by any material whatsoever. It is claimed that the detenu has been detained under provisions of Section 3(2)(g) of the Foreigners Act, 1946 as he was found purchasing and selling Bangladeshi girls in Pakistan. He was implicated by same of the abductee girls, who had been secured by police. The detenu has been sent up in criminal cases under the provisions of Zina Hudood Ordinance, 1979 in the Court of Sessions, Nawabshah and also Military Court, Nawabshah. He was arrested in these cases by Sakrand Police, District Nawabsbah. It has been alleged that enough material is available to show that the detenu is a Bangladeshi national and has been dealing in smuggling and selling of Bangladeshi girls into Pakistan and as such his activities are likely to prejudice the relations between the two countries and therefore he has been detained under the Foreigners Act for the purpose of repatriation to Bangladeshi. It has been reiterated in the affidavis that the detenu is a Bangladeshi national and has not furnished any material evidence to show that he is a Pakistani citizen. It is therefore, prayed that the petition may be dismissed. 4. We have heard Mr. K. M. Nadeem, Advocate for the petitioner and Mr. M. I. Memon, AAG for the State at length. 5. It was contended by Mr. K. M. Nadeem that by virtue of a notification issued on 14-3-1959 the Commissioner of Karachi, wai the competent authority to issue the detention order under the Foreigners Act and not the Provincial Government through the Home Secretary. 6. In reply Mr. M. I. Memon, learned AAG rightly referred ui to Section 2(a) of the Foreigners Act (XXXI of 1946) which defines, "foreigner" to mean, a person who is not a Citizen of Pakistan. Sub­ section (1) of Section 3 of Foreigners Act (XXXI of 1946) gives power to the Central Government by order to provide for prohibiting, regulating of restricting the entry of foreigners into Pakistan, or their departure thereform or their presence or continued presence therein. Section 3(2)(c) gives express powers to the Central Government to pass order directing that a foreigner shall not remain in Pakistan, or in any prescribed area therein. Clause (g) thereof gives powers to the Central Government to pass order directing that a foreigner shall be arrested and, in the interest of the defence or the external affairs or security of Pakistan detained or confined. This power, he submitted was delegated by the Central Government to the Sind Government. In this Connection AAG relied upon the case of Essa v. Government of Sind through the Home Secretary. Government of Sind, Karachi and another reported in PLD 1984 Kar. 392 where our learned brother Ajmal Mian, J, after tracing the history of larger qua powers of Chief Commissioner, Commissioner, and Provincial Government for Karachi area, came to the conclusion that Provincial Government of Sind, after the dissolution of West Pakistan bad become competent to exercise powers under the Foreigners Act even in respect of Karachi, Division. In the above ruling Ajmal Mian, J, had taken into consideration Akhtar Khan, v. Commissioner of Karachi, [PLD 1972 Kar. 132 (DB)j and Muhammad Azhar v. Commis­ sioner of Karachi (PLD 1966 SC 253) and distinguished both the authorities which had heid that Commissiotser of Karachi, was the competent autho­ rity to exercsse the powers under the Foreigners Act notwithstanding the merger of Karachi, with the West Pakistan by virtue of President's order No. 9 of 1961 by pointing out, as we have understood, that Articles 19 and 2 of Province of West Pakistan {Dissolution} Order 1990 (President's Ordtr No. 1, 1970) by virtue of which the Provincial Government of Sind which already had such powers in respect of other areas of Sind automatically became competent to exercise the same for Karachi Division, were not taken into consideration by the Division Bench in the above Karachi case while the above SC decision was given before the dissolution of one unit, and therefore both these rulings were distinguishable. We find ourselves in full agreement with the views expressed by our brother Ajmal Mian J. in the ruling referred to above and come to the conclusion that this power of the Central Government has been subsequently delegated to the Provincial Government and is new within its competence. © 7. The main contention of Mr. K.M. Nadeem was that ifwas the duty of the respondents to prove that the Petitioner was a foreigner and not a Pakistan national, as claimed by them. He was of the view that there must be prima facie material on the basis of which the authorities can proceed to pass an order under the above provisions In the absence of such evidence detenu could not have been detained under the provisions of the Foreigners Act referred to above. He further contended that if the petitioner was a Foreigner, then the proper course was to repatriate him to Bangladesh rather than to keep him in confinement indefinitely as a detenue. 8. We are afraid that we cannot agree with the contention of the petitioner's counsel that there must be evidence or prima facie material on the basis of which the authority should be able to form its conclusion that the detenue was a foreign natianal before it could proceed to pass an order under section 3(2)(g) of the Foreigners Act, 1946. 9. We do not find any substance in the above contention. First of all we will refer to section 9 of the Foreigners Act which reads a under:— "Burden of proof.—If, in any case not falling under section 8, any question arises wiih reference to this Act or any order made or direction given thereunder, whether any Person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not foreigner of such particular class or description, as the case may be, shall notwith­ standing anything contained in the Evidence Act, 1872, lie upon such person." The plain reading of Section 9 would show that onus of showing that he is not a foreigner was upon the detenue. The Petitioner's counie! entirely over-looked the provisions of this section when he contended that it was the duty of the respondents to prove that the detenue was a foreigner. He does not seem to have realised that the burden of proving that the dftenue was not a foreigner was upon the petitioner himself and he had incorrectly claimed that the burden was on the respondent. This was therefore, a clearly wrong approach to the question. 10. Mr. K. M. Nadeem cited the case of Advocate-General of East Pakistan, Dacca v. Beney Bhusan Majumdar & 3 others reported in PLD 1971 SC 179 where it was held that the burden under section 9 of the Foreigners Act to prove that the detenue is not foreigner shifts on prosecu­ tion to prove that accused lost his Pakistan Citizenship. 11. Tke ruling PLD 1971 SC 179 cited by Mr. Nadeem do« act apply to the prestnt caie. The facts of the ruling were that during communal disturbances in the country, respondents, Beney Bhusan Majumdar and others who were Pakistanis, emered India for a month or two. On the return of normal condition, they entered Pakistan and resured their normal occupation. Subsequently they were prosecuted and convicted under section 14 of the Foreigners Act, 1946 that having gone to India on the strength of a migration certificate they had lost Pakistan citizenship and could not have entered Pakistan without valid travel documents nor could they stay in the country without acquiring Pakistan citizenship over again. The Supreme Court held»that it was true that section 9 of the Foreigner Act, 1946 throws the burden of proof on the respondents to prove that they are not foreigners but section 9 was held to the inapplicable in the case. It was pointed that admittedly the respondents were the citizens of Pakistan on the 13th April, 1951. They were thus the citizens of Pakistan till the time of their entry into the Indian territory on the 9th November, 1964 on the strength of the Migration Certificate. This Pakistan Citizenship being admitted, it is for the prosecution to prove that they lost the Pakistan citizenship after entry into the Indian territory on the said date. In the case under ruling the Pakistan citizenship of Beney Bhusan Majumdar and others was admitted while it was not so in the present case. It has not been admitted by ths respondents that the detenue was a Pakistan national at anytime. Hence he cannot take advantage of the above Supreme Court ruling. We may point out that the above laws having been enacted before Independence arc common to India and Pakistan and stilt continue to have parallel provisions. Reference was, therefore made before us to a ruling of the Indian Supreme Court in case of The Union of India and others v. Ghous Muhammad reported in AIR I9ol SC 1526 where an order under Section 3(2)(c) of the Indian Citizenship Act asking the respondent to leave India was challenged The question that came before it for determination was whether the respondent is a foreigner or an Indian citizen. The Indian Supreme Court held that section 9 of the Foreigners Act applies to tb ,ase and the onus of showing that he is not a foreigner is upon the person and not on the Union of India. It was also held that Section 8 of the Act had no application to the case. The Indian Supreme Court further clarified that the question whether the respondent is a foreigner is a question of fact and where there is a great deal of dispute on the question which would require a detailed examination of evidence a proceeding under Article 226 of the Indian Constitution would not be appropriate for a decision of the question. The question is best decided by a suit. 12. In the pressent case also there is no dispute that if the detenu was a foreigner then the order could not have been challenged. The material question that has arison before us is whether the detenu was a foreigner or not? Section 8 of Foreigners Act, 1946 (XXXI of 1946) deals with the case of a foreigner who is recognised as a national by the law of more than one foreign countries or where for any reason it is un­ certain what nationality, if any, is to be ascribed to him. In such a ca»e this section gives certain power to the Government to decide the nation­ ality of the foreigner. Subsection (2) of this section provides that a decision as to nationality given under subsection (1) shall be final and shall not be called in question in any Court. We entirely agree with the learned AAG that this section has no application to this case for it would not apply when the question before the Court is whether the person is foreigner or a Pakistani citizen which is the question before us and not as to what is the nationality of one who is not a Pakistani citizen. Section 9 of the Fore­ igners Act is relevant to determine such a case. We have already reprodued Section 9. We have also made it quite clear that on plain reading of Section 9 of the Foreigners Act it would appear that the onus of showing. that the detenu was not a foreigner is upon the petitioner and not upon the! respondent. 14 We are also of the clear view that since the question whether the detenu is a foreigner or a Pakistan national is question of fact and there u great deal of dispute on this question which would require a detailed ex­ amination, a proceeding under writ jurisdictions would not b; appropriate for a decision of such question, 15. It is well settled that in a writ Petition the Court will not generally enter into disputed questions of facts. Some Courts have gone so far as to say that where facts are disputed the Court should not exercise this extraordinary jurisdiction. It is incumbent upon a party appiy-j ing for writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy. 16. Reference in this connection may be made to Feroze Din v, Government of Pakistan [PLD 1961 Lah, 304 (DB),], Raja and others v. Member Board of Revenue (PLD 1967 Lah. 329) and Messrs, Parbatipur Industries v. The Chief Secretary, Government of Pakistan (PLD i960 Dacca 660), This view has also been approved by the Supreme Court in Tonbir Ahmed Siddiqui v. Province of East Pakistan (PLD 1968 SC 185). where it is held that disputed questions of facts requiring investigation are not a suitable subject for investigation under writ jurisdiction This Court has also held in Pir Bux v. Member Biard of Revenve West Pakistan and others [PLD 1962 (West Pakistan) Kar. 712 (DB)] that the High Court was not in writ jurisdiction to sit as a Court of Appeal on the finding of fact. 17. We are therefore of the clear view that there is no merit in the Petition and the same requires to be dismissed witn nJ order as to costs. The above are the reasons fir which we had dismissed the above petition by a short order dated 13-1-1986. (TQM) Petition dismissed.

PLJ 1987 Karachi 151 PLJ 1987 Karachi 151 [Sukkur Bench] Present : syed abdur rehman, J DUR MUHAMMAD and Others—Appellants versus MUHAMMAD QASIM-Respondent FRA No. 7 of 1985, dismissed on 211-1986 (i) Sind Rioted Premises Ordinance, 1979 (XVII of 1979)—

S, 2 (h)—'Hotel'and 'Cafe'—Meaning of ~ Held : Hotel t« be place being used for purpose of providing accommodation to travel­lers whereas 'cafe' to be place where meals and drinks be served to public generally— Disputed shop in case being used for serving refreshment such as tea — Held : Such place to be called cafe and not hotel in strict sense of word. [P. 154]A PLJ 1983 Kar, 420 ref. (ii) Sind Rented Premises Ordinance, 1979 (XVI! of 1979)— --- Ss. 15 (2) (ii)& 2 1— Eviction— Order of-Default-Ground of— Oral assertion about payment of rent made by tenant controverted by landlord— No receipt or other documentary evidence to prove such payment, however produced by tenant— Held : Burden heavily placed upon tenant (having not been discharged), order of eviction on point of default not to be interfered with (in appeal). [P. 154]5 (ill) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— -- Ss. 15(2) (vii) & 21 — Eviction— Personal use— Ground of— Need of landlord not controverted by tenant— Held : Finding on point of requirement of shop for bonafide persona! use to call for no inter­ ference in'appeal. [P. 154]C Mr. Muhammad Hanif Mangi, Advocate for Appellant. Mr. Maihar All M, Siddiqui, Advocate for Respondent Date of hearing : 2-11-1986. judgment This appeal is directed against the order of Rent Controller, Shikarpur dated 16-12-1984 whereby he directed the appellant >o put the respondent in vacant possession of the disputed shop. The respondent filed this ejectment application against the appellant wherein he claimed that he had purchased the disputed shop bearing C. S. No. 60/2, situated opposite Plaza Cinema, Shikarpur by a registered sale deed in April 1980 from Puttan Khan. The appellant No. 1 was the tenant of Puttan Khan. He therefore became the tenant of the respondent. It is alleged that appellant No. 1 did not pay or tender any rent for 1 7 months from April 1980 to August 1981. It is further alleged that the opponent No. 1 sub-let the said premises to opponents No. 2 and 3 with­ out conient of the respondent. The appellant No. 3 filed written statement wherein he stated that he alone was the tenant of the shop in dispute. The other appellant! had no concern whatsoever with the same. He has taken preliminary objection to competency of the Controller on the ground that the premises in dispute was a hotel and therefore the Sind Rented Premises Ordinance is not applicable to it. He further stated that he had paid the entire dues from April 1981 to August 1981 at the rate of Rs. 50/- per month to the respon­ dent at which rate be was paying the rent to Puttan Khan. He however did not obtain any receipt from the respondent because he was his uncle and therefore he had confidence in him. Besides this plea of requirement of the premises of bona fide personal use and causing damage to the same were also taken by the respondent, which were denied by the appellant. On the pleadings of the parties the following issues were framed by the learned Rent Controller :- (1) Whether opponent have committed wilful default in payment of the rent ? (2) Whether the applicant requires the shop in dispute for his personal bonafide use. (3) Whether opponent have caused damage to the disputed property. (4) Whether opponent No. ! has sublet the disputed shop to tht opponent No. 3. (5) What should the order be. The learned Controller after taking jnto consideration the evidence that was led before him decided all the issues in favour of the respondents except issue No. 3. Consequently he ordered the ejectment of the appel­ lants as shown above. I have heard Mr. Muhammad Hanif Mangi Adv. for the appellants and Mr. Mazhar AH M. Siddiqui advocate for the respondent. It was contended by Mr, Muhammad Hanif Mangi advocate that according to the definition of word "premises" under clause (h) of section 2 of the Sind Rented PremisesOrdinance, it was not extended to a hotel. He referred me to the written statement of appellant No. 3 wherein h« bad clearly stated that the disputed premises was a hotel. This plea was not controverted by the respondent nor any such issue was framed by the Controller nor finding was given that the premises was not a hotel. He relied upon the case of Mohan Lai v. Haji Ali Mohammad reported in 1982 CLC 2437, wherein it was held by B. G. N. Kazi, J. that the Rent Controller bad no jurisdiction to deal with tbs matter which related to a hotel, in view of Section 2 (h) read with section 27 (3) of the Sind Rented Premises Ordinance 1979. As against this Mr. Mazhar Ali M. Siddiqui advocate, who appeared for the respondent submitted that in para. 2 of his affidavit appellant No. 3 Badaruddin had admitted that he was running a tea hotel in the disputed premises. This fact was further clarified by Badaruddin in hit cross-examination wherein he has made it clear at two places that he was running a Tea shop in the disputed premises. Besides doing the work of goldsmith in that shop. Reliance was placed by the respondent's counsel in the case of K. P. Moidoo and another v. Mst, floor Jehan Begum reported in PLJ 1983 Karachi 420 where Fakhruddin H. Shaikh, J held as follows : "The question, therefore, arises whether a "Cafe' can be equated with a ''hotel". Learned Rent Controller has referred to dictio­ nary meaning of Cafe and Hotel and concluded that a cafe can­ not be equated with hotel. According to dictionary meaning "Cafe 1 ' is a place there meals and drinks are served to public generally. It is also popularly used to mean a restaurant or a house for refreshment So far as the word "hotel" is concerned according to dictionary meaning, thu means a house for accom­ modation for traveller etc. No exception can be taken to the find­ ing of the learned Rent Controller that Cafe ean not be equated with hotel and thus is not excluded from definition of premises under section 2 (h) of the said Ordinance. The ejectment applica­ tion, therefore, cannot be said to be not maintainable as argued by the learned counsel for the appellant," On hearing the advocates of both the parties and taking into considejration the evidence led by the parties, I am of the clear view that the disputed shop is being used as a place for serving refreshment such as tea. It can be called a Cafe and not a hotei in the strict sense of the word. The word hotel has not been defined anywhere in Sind Rented Premises Ordinance 1979. The ordinary dictionary meaning of the word hotel would denote that place was besng used for the purpose of providing accommodation to the travellers whereas Cafe is a place where meals and drinks are served to public generally. I, therefore hold that the learned Controller has jurisdiction to enter­ tain the application. So far as the decision of the Controller on the point of default is concerned, I do not find any scope for interfering with the same. Apppellant No 3 had made an oral assertion about the payment of rent which was denied by the respondent. He did not produce any receipt or any other documentary evidence to prove the payment, although the burden was heavily upon him. Hence I uphold the finding on issue No. 1. Similarly the rinding on the point of requirement of shop for bona fide personal use also does not call for interference as the need of the respon­dent has not been controverted by the appellants. In this view of the matter I uphold the order of the learned Rent Controller and dismiss the appeal, The appellants are directed to handover the vacant possession of the shop to the respondent within four months from today, (TQM) Appeal dismissed.

PLJ 1987 Karachi 154 PLJ 1987 Karachi 154 Present : K. A. GHANI, J NATIONAL INSURANCE CORPORATION, New Habib Bank Avenue, Hasrat Mohani Road, Karachi—Applicant versus JUMMA KHAN (since dead and Another—Rcspond«nts Revision Application No. i81 of 1984, dismissed on 27-5-1986 (i) CiffI Procedure Code, 1908 (V of 1908)— ——S. 115—Revision—Interference in—Judgments given by Courts below not found to be suffering from any infirmity within meaning of provisions of S. 115, CPC-Held : Revision petition to be without any merit. [P. i58}8 (IS) Civil Procedure Code, 1908 (V of 1908}— ——O, i, R. 10—Party—Additioa of—Effect of—Party sought to be added by moving application to court—Held ; Joinder as party to be deemed to have taken effect from date of filing of application Seven if order he made after expiry of period prescribed for filing suit)—Held further : Rights of plaintiff not to be defeated merely due to omission or act of court or manoeuvring of opposite party or by mistaken decision of court. [P, !56]A AIR 1927 Mad. 468 ; AIR 1940 Sind 259 & PLD 1952 Sind 64 ref, PLD 1958 Kar. 510 distinguished. Mr. A. Rauf, Advocate for Applicant, Mr. Muhummad Khalil, Advocate for Respondents. Date of hearing : 12-2-1986. judgment Being aggrieved by judgment and decree dated 5-1-1984 of the learned III Additional District Judge Karachi dismissing Civil Appeal No. 335 of 1982 filed by the applicant against the judgment and decree passed against it and Karachi Electric Supply Corporation Limited, awarding Rs, SO.OQiJ/- as compensation to Juma Khan (since deceased) and his wife Haseen Begum, this revision application has been preferred under Section !I5 CPC, The Karachi Electric Supply Corporation Limited, neither Gled any appeal nor revision against the aforementioned decrees. 2. The facts briefly stated are that on 12-8 1975 the electric wires which the Karachi Electric Supply Corporation were under an obligation to maintain with due care keeping in view the danger involved, fell down as the same were not properly looked after by the said KESC as a result of which Rashid Ahmed (son of the plaintiff/ Jutno and Haseena) aged about 20 years, a student of Xth Class, was killed consequent to an electric shock received by him. One Hassan Dad a neighbour who tried to save Rashid Ahmed also received electric shock and died. Kaniz Bfgum the sister of Rashid Ahmed had also received electric shock but her life was saved, FIR was lodged but no action was taken. Consequently suit No, 234 of 1976 was filed on 29-1-1976 in the Court of III Senior Civi! Judge Karachi by the parents, the abovenamed Juma Khan and Mst. Haseena for grant of decree for Rs, 50,000/- as compensation with costs. The applicant abovenamed was joined as a defendant on an application filed under Order i, R. 10. CPC on 1-8-1976 which was granted on 9-8-1977. 3. The defendant No. I/KESC did not contest the suit. Defendant No, 2/Pakistan Insurance Corporation denied its liability by raising legal plea» which are not relevant for purposes of this petition as no decree against it was passed. The defendant No, 3/the applicant denied its liability and inter alia pleaded that the eventuality which resulted in the death of the boy was not covered under the policy. It is not necessary to refer to other pleas taken in defence, suffice would it be to observe that the parties went to the trial on the issues framed by the court which are reproduced herein below : "(1) Whether the death of plaintiff's son {Rashid Ahmed) occurred due to negligence or illegal acts on the part of the defendant No. 1 ? (2) Whether the defendants are liable for payment of compensation as prayed by the plaintiffs ? (3) Whether the plaintiffs are entitled for the reliefs as prayed by them? (4) What should the decree be ?" All the issues were answered in favour of the plaintiffs and the iearned trial Court after coming to the conclusion that the boy Rashid Ahmed was an earnicg member of the family contributing and rendering economic benefits to his parents/the plaintiffs No. 1 and 2, and after taking into consideration expectancy of life in Pakistan to be 65 years and the age of the father (then aged 60 years) decreed the suit against the defendants Nos, 1 and 3 jointly and severally for Rs. 50 S 000/- with costs, 4. Against the judgment and decree passed as above-mentioned by the learned trial court the applicant above-named preferred appeal. K.E.S.C. Ltd. against whom the suit had also been decreed however, did not prefer any appeal. During the pendency of the said appea! Jama Khan died on ! 4-4-1983. The appeal was dismissed by judgment and decree passed on 5-1-1984, igainst which this revision application has been preferred. 5. The main argument advanced by the learned advocate for tne applicant in support of the petition was based on the plea raised for the first time in this Court to the effect that the boy Rashid Ahmed had met the accident and died on S2-8-1975, the suit against applicant would be deemed to have been instituted on 9-8-1977, the day oo which It was ordered to be joined as a party in the suit. It was accordingly argued that the iuit against the applicant ought to have been dismissed as barred by lime. I, however, find that the argument-, advanced as above cannot be accepted as in my opinion when a party is sought to be added by moving an application in the Court, its joinder as a party muU be deemed to have taken effect from thj date of th; filing of the application even if the order is made after the expiry of the period prescribed for filing of the suit, The reason which pursuaded me to take the view as above i$ that where ao application for joinder of a defendant is made in time within which the party sought to be joined could have b^n sued, the rights of the plaintiff could not in the circumstances be defeated merely because due to omission or acts of the court or the manoeuvring of the opposite party or by a mistaken decision of the Court which had to bt put right on appeal or revision, the order to which party applying was entitled might not be made until the suit bad become time barred. In coming to the conclusion as above I am benefitted by principles laid down in the case of South India Industrials Ltd. v. Mothey Narasimha Rao (AIR 1927 Mad, 468) wherein a learned Division Bench observed as follows : "It is contrary to one of the clear principles of the law of limita­ tion that a diligent party who has come to Court with his suit or hit application within the period prescribed should be defeated because the Court for some reason can not or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counter balanced by the assurance of safety when within time." The view taken as above also finds support from the case reported as Hmsanandv. Nandiram and others (AIR 1930 Sind 259). 1. The upshot of the above discussion is that the judgments given jby the Courts below do not suffer from any infirmity within the meaning Bjof the provisions of Section 115 CPC. This revision application therefore Jbeing without any merits is dismissed with costs. (MIQ) Revision dismissed.

PLJ 1987 laraetii 158 PLJ 1987 laraetii 158 Present saeeduzzaman siddiqui, J TELEPHONE EMPLOYEES CO-OPERATIVE HOUSE BUILDING SOCIETY LIMITED, Yousuf Plaza, F. B, Area, Karachi—Applicant versus AISH MUHAMMAD -Respondent Revision Application No. 162 of 1986, accepted on 28-10-1986 (i) Civil Procedure Code, 1908 (V of 1908)-

Ss. 47, 48 & 115—Execution-—Limit of time for — Ojection re­ garding -Disposal of~—Right to apply for execution of (remaining) decree (in case) made dependant on redemption of mortgage by applicant—Held : Decree-holder to first establish date of redemp­ tion of property by applicant so as to determine his right to apply for execution of remaining decree as well as question of limitation applicable to case—Trial court issuing execution without first dis­ posing of objection of applicant regarding non-maintainability of execution as ground of limitation—Held : Case to be remanded to executing court with direction to first determine question of limita­ tion. [P. 161JC (ii) Civil Procedure Code, 1SG8 (V of 1908)—

~S. 48—Execution—Limit of time for — Right of respondent to obtain satisfaction of (remaining) decree (in case) made dependant on redemption of property from mortgage by applicant — Held : Question of limitation involved in case to be resolved only with reference to date when right to apply for satisfaction of remaining decree becomes available to decree-holder. [P. 161]A (iii) Civil Procedure Code, 1908 (V of 1908)-

O. XX5II, R. 3 — Compromise during execution proceedings — Effect of—-Parties entering into compromise in appeal against rejec­ tion of execution application — Such compromise not bringing into existence any new decree but only amounting to partial satis­ faction of original decree—Right to obtain satisfaction of remaining decree also made dependant on happening of certain event—Held : Decree on basis of compromise need not to be drawn (in circum­ stances). [P. 161]B Mr. Masood Hussain Khan, Advocate for Applicant. Mr, A. Majeed Khan, Advocate for Respondent. Date of hearing : 2-10-1986. judgment This Civil Revision Application is filed by the judgment debtor/ applicant against the order of II Additional District Judge, Karachi, dated 29th July, 1985 in Appeal No. 84 of 1984 which arose out of execution proceeding No. F.C.D. 1 of 1968, filed by the respondent/Decree-Holder to enforce a compromise arrived at between the parties on 7-3-1969 in Civil Misc. Appeal No. 256 of 1968. The only contention raised by the learned counsel for the Judgment-Debtor/Applicant is that the execution is barred by limitation, as the decree in the case was dated 8-3-1966 while the execution was filed in October, 1982. The learned counsel for the respondent/Decrce-Holder on the other hand supported the orders of Courts below and claimed that tbe execution application filed by the respondent/ dscree-holder was within time as it was filed t.i enforcs the compromise decree dated 7-3-1969 passed in CMA No. 256 of 1968. In order to appreciate the contentions of the learned counsel for the parties it is necessirjr to state here the following facti : — The respondent who is member of the applicant (a Co-operative Housing Society) was allotted a residential plot which was subsequently cancelled by the applicant. The matter was then agitated by the respon­ dent before the Registrar Co-operative Society and ultimately by an award of Registrar's nominees dated 8-3-1965 the applicant was directed to provide an alternate plot of the same size to respondent in the Society. Armed with this award the respondent filed execution (F.C.D. I of 1968) before VII Civil Judge 1st Class, Karachi, who by his order dated 31-8-i968 dismissed the execution on the ground that the respondent had called to point out the plot against which execution was sought. Aggrieved with the above order of Civil Judge the respondent filed Civil Judge Misc. Appeal No. 256 of 1968 which ended in a compromise between the parties which was recorded by tbe Court on 7-3-1969. It appears that tbe applicant subsequently challenged the legality of the compromise by filing Suit No. 669 of 1972 but the plaint in the suit was rejected on 30-4-1977. Thereafter, appeal against rejection of the plaint was also dismissed on 31-5-l9al and it is stated at the bar that Civil Revision No. 81 of 1982 filed by the applicant against rejection of plaint in Suit No. 669 of 1972 is now pending in this Court. Be that as it may, the respondent filed execution No. 12 of 1982 on Hth October, 1982 to enforce some of the terms and conditions of the compromise recorded by the Court on 7-3-1969 during pendency of the Civil Misc. Appeal No. 256 of 1968. It will be advantageous to reproduce have the compromise arrived at between the parties during tbe pendency of the appeal against the order of rejection of execution application on 7-3-1969, It is as follows :—- "Application under Order 23, R. 3 CPC The parties in the above appeal have compromised on the following termi :— (1) That the respondent in its capacity as the Lessee of the plot No. 841-14, measuring 120 Sq. Yds (KDA Scheme No. 16) with constru-tion thereon has surrendered the said Lease in favour of the Telephone Employees Cooperative Housing Society Ltd. who are the original alSouet of the land from the KDA. (2) That the encumberance m the nature of the mortgage of the said plot and construction with the Government shall now be the responsibility of respondent (T.E.C.H.S. Ltd. Karachi), (3) That the respondent hereby restores the original allotment No. T.E C.H S. 98 dated 19-3-1960 in favour of the appellant in compli­ ance of the award of the Registrar nominee dated 24-3-1966, The original allotment has been restored as the said plot with construction thereon ii now available on vacation by the Telephone Exchange, (4) That the allotment has been restored by the respondent in favour of the appellant for a consideration of Rs, 4,500 being the full occupancy value and the cost of construction standing over the said plot. (5) That the respondent has received a cheque No P.C.B.D. 948525 dated 6-3-1969 for a sum of Rs. 2,50o from the appellant^ and the possession of the said plot with construction thereon has been handed over by the respondent to the appellant. (6) That the balance consideration of Rs. 2,000 shall be paid by the appellant to the respondent at Rs. 100 per month, payable by the 10th of each calander month commencing from April, 1969. (7) That the respondent as the original allottee of the land from the KDA and also as the lessee of the plot with construction thereon which has been surrendered in favour of the respondent shall be exclusively responsible for the payment of the mortgaged amount to the Government, and also for any/all other encumbrances or dues of any nature including the dues if any payable by any person in occupation of the said point for the said plot prior to 6-3-1969. (8) That the appellant shall be entitled to raise any additional constitrction over the plot. (9) That the respondent covenants that the interest of ths appellant shall be full safe guarded and the final transfer and lease in favour of the appellant shall be effected on the release of the mortgage. (10) That the resoon Jsnt shall redeem the mortgage by June, 1972 and the amount payable to the Government shall be paid by other assets of the respondent. The appeal be disposed of in terms of the above compromise." It will be seen that the original decree in the case, namely the award of Registrar's nominee dated 8-3-1966, directed the applicant to provide an alternate plot of the same size to respondent. The effect of the above compromise between the parties was the partial satisfaction of the said decree as the applicant restored the allotment of respondent on payment of full occupancy value of Rs. 4,500 out of which the respondent paid Rs. 2,500 through cheque to applicant and respondent was also put in physical possession of the plot with construction thereon. The applicant had undertaken under para 10 of the compromise to get the plot redeemed by June, 1972 by paying the amount due to Government out of its other assets. The learned counsel for the applicant no doubt is right in con­ tending thai no new decree came into existance as a result of the compro­ mise in CMA No. 256 of 1968 which could be independently executed, but as pointed out earlier the effect of compromise dated 7-3-1969 was the partial satisfaction of the decree dated 8-3-1966. Since the compromise provided that the satisfaction of the remaining decree could be obtained only upon release of the disputad plot from mortgage, the right to enforce the unsatisfied part of the decree was made dependent on that contigency. It is quite clear from the other terms of the compromise that the right of respondent to obtain satisfaction of the remaining decree was made dependent on redemption of the property from mortgage by the applicant. In these circumstances, the question of limitation involved in the case could only be resolved with reference to the date when the right to apply for satisfaction of the remaining decree became available to respondent, Unfortunately neither the courts below considered the case from this angle nor the decree holder pressed the execution application on this basis. The learned counsel for applicant relied on the case of Ch Karam Rabbani and II others v. The Central Exchange Bank Ltd. Lahore (PLJ 1973 Lahore 420) to contend that the starting point of limitation for filing an execution application is the date of decree and not the date when the decree is drawn and signed by the Judge. The learned counsel for the respondent on the other hand relied on the case of Government of West Pakistan v. Niax Muhammad (PLD 1978 SC 2/1) in support of this submission that the psriod of limitation for applying for execution of a decree will start only from the date when the decree was actually drawn and signed by the Judge. It is not necessary to decide this controversy in the present case as it does not arise on the admitted facts and circumstances of the case. As pointec out earlier the compromise in CMA No. 256 of 1968 did not bring into existance any new decre: but only amounted to partial satisfaction of the original decree while right to obtain satisfaction of remaining decree was made dependant on happening of certain events namely redemption of the property from mortgage. In these circumstances, it was neither necessary nor permissible to draw any decree on the basis of the ocmpromise. As the right to apoiy for execution of the remaining decree was dependant on the redemption of mortgage by the applicant, the rcspon dent/decree holder should have first established the date of redemption of the property by the applicant so as to determine his right to applly for execution of remaining decree as well as the question of limitation applicable to the case. As this was not done, the Uial Court could not issue the execution without first disposing of the objection of application regarding non-maintainability of execution on the ground of limitation. I accordingly accept the revision application, set aside the orders of the courts below and remand the case back to the executing court with direction to first determine the question of limitation in the light of the above observation and thereafter dispose of the execution application of the respondent in accordance with the law. There will be no order as to costs, (MIQ) Revision accepted,

PLJ 1987 Karachi 161 PLJ 1987 Karachi 161 Present: syed ally madad shah, J. Mst. ANIS BANG and 3 Others—Appellants versus Mst. RABIA—Respondent First Rent Appeal No. 598 of 1985, allowed on 22-1-1987. Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 & 21 —Eviction—Application for—Landlord and tenant—Re­ lationship of—Denial of—Effect of— Relationship of landlord and tenant denied by appellants—Held : Respondent to establish relation­ ship by positive evidence—No evidence except word of respondent re­ garding appellants having ever paid or promised to pay any rent to respondent available on record—Held : Evidence on record falling short of proving relationship of tenant and landlord between parties, issues of default in payment of rent and subletting of premises not to hold ground. [P. 163JA. Mr. K. B. Bhutto, Advocate for Appellants. Ch, Zafar Aziz Bajwa . Advocate for Respondent. Date of hearing : 18-1-1987. judgment The appellant Mst. Anis Bano is a widow of one Wall Ahmed, and the appellants No. 2, 3 & 4 are her minor daughters. They have been ordered to vacate house No. A/28 in Block-2, Improvement Scheme No 24 Gulshan-e-lqbal, Karachi by order dated 21-10-1985 made by Vth Sr Civil Judge/Controller, Karachi (East) in Rent Case No. 2788/78 (01d)/659 of 1985 (New) filed by the respondent Mst, Rabia widow of Mohammad Ismail. They have preferred this appeal against the order of ejectment. The respondent's case, briefly stated, is that she is the owner of the house and she let it out to the late Wali Ahmed, who was her brother, on compassionate ground, in August, 1977 and he died on 18-12-1977, It is alleged that after the death ot Wali Ahmed, his wife locked the house and went to live in the house of her parents alongwith her childern and later sublet the house to Dr. Syeda Fatima Sadiq and her daughter Najma but did not pay rent from December, 1977 onwards. The ejectment application was filed on 31-5-1978. The appellants resisted their ejectment denying the relationship of tenant and landlord and claiming the house as their property inherited from Wali Ahmed. The parties adduced evidence. The respon­ dent filed her own affidavit. On the other side, the appellant Mst. Anis Bano filed her own affidavit and two other affidavits sowrn by Abdul Mughni and Waheedu-ur-Rehman. The learned Controller struck four issues for determination, one relating to tbe relationship of landlord and tenant between the parties, another to default in payment of rent, third one as regards alleged subletting of premises and the lasc one regarding the order to be passed. All the three issues were decided against the appellants and in favour of the respondents and in consequence thereof the order of ejectment was passed. The learned Counsel for the appellants has urged that relationship of tenant and landlord between the parties was not established and issues in respect of default in payment of rent and subletting did not arise. According to him the house was purchased by late Wali Ahmed in tbe name of the respondent Mst. Rabia as a Benami purchase as a matter of respect for her, being his sister, and he was living there alongwith his family members and there was no question of tenancy between them. On the other hand, the learned Counsel for the respondent has contended that the respondent has Adduced oral as well a.s documentary evidence in proof of her claim that she is the owner of the house and it may therefore be assumed that Wali Ahmed and, after his death, his wife and childern remained in occupation of the house as her tenants and they were liable to be ejected from there as they had not paid the rent after his death. It is apparent from the pleadings of the parties and the evidence adduced by them that there is serious dispute between them as regards title over the property. There are certain documents on the record relating to the respondent's title over the house. On the other hand, the possession of the house is admittedly with the appellants. There is no documentary evidence that Wali Ahmed had come in occupation of house as the tenant. There is even no oral evidence except the word of the respondent Mst. Rabia that Wali Ahm-d had come in occupation of house as the tenant by agreement. Any amount of evidence to the title does not necessarily lead to irresistable conclusion that there was relationship of landlord and tenant between the person holding the title and the person in occupation of the demised premises, particularly in the circumstances where the relationship between the parties is so closed as in the instance case. Since the appellants denied the relationship of tenant and landlord, the respondent bad to establish that relationship, if any, by positive evidence. There is no evidence, except the word of the respondent, that the appellants or Wai Ahmed had ever paid or promised to pay any rent to the respondent Obviously, the evidence on record does not establish that there wa> relationship of tenant and landlord between the parties. The question of title could not have been determined by the Controller and it could be agitated before any other forum. Since the evidence on the record falls short of proving the relationship of tenant and landlord between the parties, the issues of default in payment of rent and subletting of the premises do not hold ground. Accordingly the impugned order of eject­ ment dated 21-10-1985 is not sustainable and is set aside. Appeal is allowed with costs. Appeal allowed.

PLJ 1987 Karachi 163 PLJ 1987 Karachi 163 Present : saeeduzzaman siddiqui, J HASHIM—Appellant versus Mrs. HAMIDA BEGUM and 7 Others—Respondents Second Appeal No. 1 of 1985, accepted on 18-12-1986 Displaced Persons (Compensation & Rehtbilitation) Act, 1958 (XXVIII of 1958) —

S. 30—Statutory tenant—Protection of—Open plot transferred to respondents under Settlement Scheme No. 6 on basis of construction raised by them over plot—Appellant admittedly in possession of shop (built on such plot) prior to transfer of same in favour of respondents—Held : Appellant to bs deemed to be tenant in respect of shop premises on building site transferred to respondents—Held further : (Protection under S. 30 of Displaced Persons Act being available), suit instituted by respondents against appellant for pos­ session and mesae profits not to be maintainable. [P. 165]A 1984 CLC 3227 followed. Mr. S. Z.A. Qureshi, Advocate for Appellant. Mr. Nasrullah Awan, Advocate for Respondents. Date of hearing : 10-12-1986. judgment This Second Civil Appeal under section 100 CPC is filed by the defendant/appellant against the judgment and decree, dated 13th of November, 1984, passed by Vlltb Additional District Judge, Karachi, allowing the appeal filed by the respondent and remanding the case back to the trial Court for decision according to law. The respondents, who are transferees of an open building site, bearing No. A.M. 362, Karachi, measuring 340 sq. yds. instituted a suit for possession and mesne profits against the appellant in respect of a shop premises, which is constructed on the above plot. The appellant contested the above suit and took the plea that his possession in respeet of the shop is protected under the pro­ visions of section 30 of the Displaced Persons (Compensation and Rehabi­litation) Act, 1958. The trial Court tried the issue relating to the protec­ tion claimed by the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as a preliminary issue, and after having reached the conclusion that the appellant's possession over the premises was that of a tenant within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, rejected the plaint on the ground that the suit was not maintainable. The first appel­late Court, however, reversed the finding of the trial Court on the above iS»U«, and reached the conclusion that, since the premises, in respect where­ of the suit was instructed by the respondent was an open building site, the protection claimed by the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was not available and, as such, the suit before the Civil Court for possession and mesne profits was maintainable. On such consideration, the judgment and decree of the trial Court was reversed and the suit was remanded back to the trial Court for decision according to law. Mr. Zaheer Qureshi, learned counsel for the appellant has contended before me that, in view of decision in the cases of Muhammad Moosa and others v. Shabbir Ahmad and another (1984 CLC 3227) and Riazuddin v. Haji Muhammad Aslam (PLD 1985 Karachi 411), the appellant shall be deemed to be a tenant of the shop on the plot and was protected under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel for the respondent, on the other hand, contended that, in view of the decision of the Supreme Court in the case of Ayoob and another v. Masjid-e-Nsman (1973 SCMR 604), a person in possession of the building site shall not be deemed to be protected under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and, as such, the learned first appellate Court was right in holding that the suit was maintainable and correctly remanded the case back to the trial Court for decision according to law. It is an admitted position in the case that the respondents are the transferee of an open plot, which was transferred to them under Settlement Scheme No. 6 on the basis of the construction raised by them over the plot. It is also an admitted position that the shop, which is built on the above plot, was in possession of the appellant prior to the transfer of the plot in favour of the respondents. The only question which, in these circumstances, arises for determination in the case is, whether, by virtue of being in possession of the shop constructed on the open plot, the appellant was entitled to the protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act or not. In the case of Riazuddin v. Haji Muhammad As/am (PLD 1985 Karachi 411), decided by a learned Single Judge this the Court and relied by the learned counsel for the appellant, it was held that a property which was transferred to a person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as a building site, and there were unauthorised constructions on the plot, the occupants of such construction will be deemed to be a tenant and were amenable to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1958. Similarly, in the case of Muhammad Moose and others v. Shabbir Ahmad and another (1984 CLC 3227), a Division Bench of this Court held that in the case of an open plot, which is purchased by the transferee from the Settlement Authorities in open public auction, and over which the person in possession had raised the construction, which was used either as a commercial or residential unit, the occupants shall be deemed to be a tenant within the purview of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and statutory tenancy is created in their favour. In the above cited Division Bench case, the case of Ayoob and another v. Masjid-e- Noman (1973 SCMR 604), cited by the learned counsel for the respondent, has not only been referred, but, after full discussion, has been distingui­ shed. The ratio decidendi in the case of Muhammad Moosa and 2 others v. Sbhabbir Ahmad and another (1984 CLC 3227) supports the contention of the learned counsel for the appellant that, where the property trans­ ferred to a person under the provisions of the Displaced Persons (Com­ pensation and Rehabilitation) Act, 1958, is a building site on which co nstruction existed, which is either used as a commercial or a residential unit, then the occupant of such construction shall be deemed to be a tenant of the transferee within the meaning if section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The above cited case having been decided by a Division Bench of this Court is binding on me as a Single Judge, and therefore I hold that the suit instituted by the respondent against the appellant for possession and mesue profits was not| A maintainable, as the appellai.t shall be detmed lo be a tenant in respecj of the shop premises on the above building site, which was transferred tot' the respondent, within the purview of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act in view of the decision in the case of Muhammad Moosa and 2 others . Shabbir Ahmad and another (1984 CLC 3227). I accordingly accept the appeal, set aside the judgment and decree passed by the first appellate Court and restore the order of the trial Court. In the circumstances of the case, there will be no order as to costs.

Appeal accepted.

PLJ 1987 Karachi 165 PLJ 1987 Karachi 165 Present : abdul razak A. thahim, J SULEMAN-Appellant versus AL-KARIM PRINTERS, Karachi-Respondent FRA No. 52 of 1985, allowed on 21-12-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— Ss. 14 & 19—Vacant possession—Delivery of—Summary procedure for—Procedure prescribed for disposal of rent cases not made applicable to cases filed under S. 14 of Ordinance—Held : Enquiry by Rent Controller or right of hearing of parties having not been de­barred, Court to have resort to law of natural justice. [Pp. 166 & l67]/4 (ii) Sind Rented Hremises Ordinance , 1979 (XVII of 1979) — ——Ss. 14 & 21—Vacant possession —Delivery v/f—Summary procedure —Rent Controller dismissing rent case filed under S. 14 of Ordinance without holding any proper enquiry—Held : Appeal to be accepted and case to be remanded back to Rent Controller to decide matter afresh. [P. I67]fi Mr. Muhammad Rafiq Khanzada, Advocate for Appellant. Mr. Saleem Karamally, Advocate for Respondents. Date of hearing : 8-12-1986. judgment Appellant Suleman is landlord. He filed Rnt Case No. 234/84 under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as 'Ordinance') against the respondent. The written statement was filed on 4-11-1984. On the same day respondent filed another applica­ tion wherein it was prayed that rent case be dismissed as the provision of section 14 do not attract to the Rent Case. The appellant filed counter affidavit on 13-11-1984. The Rent Controller, by an order dated 29th November, 1984, dismissed the rent application as being not main­ tainable. Mr. Muhammad Rafiq Khanzada appearing for the appellant argued that Rent Controller without holding any summary enquiry erroneously dismissed the rent case of landlord. It is argued that filing of rent case on fresh grounds is no bar to invoke the provisions of section 14 of the Ordinance. He has referred to the cases reported in 1984 SCMR 881 and 1986 CLC 1745 that before deciding tne issue, the appellant could have been given opportunity to adduce the evidence in rebuttal. Mr. Salim Karmally, appearing for the respondent has argued that Rent Controller has rightly dismissed the application as same documents were produced showing that appellant is in occupation of other premises therefore application is liable to be dismissed. He has referred to the cases reported in PLJ 19S1 Kar. 271, PLD 1981 Kar. 329 and 329 PLD 1965 SC 90 and 1984 CLC 2587. The main grievance of appellant is that when he has taken the specific plea in his counter affidavit that he is not in possession of any premises in the vicinity and there is no such bar for the landlord using premises for the commercial purpose. The Rent Controller has only considered the affidavit of Respondent/tenant and photostat copy of two documents. The deponents were not subjected to cross-examination. The Rent Controller has relied on the evidence of the respondent recorded on 17-2-1982 ia an­ other case. The copies of deposition were not furnised by the respondent. In every case the circumstances are to be considered independently. The evi­ dence of one case cannot be considered in other case. In this case on the A day, the written statement was filed the Rent Controller on another applica- (tion dismissed the real case. In Section 19 of the Ordinance the procedure is prescribed for disposal of the rent cases. It is specifically mentioned that these provisions are not applicable to the cases filed under section 14 of the Ordinance but it does not debar enquiry by the Rent Controller or right of hearing of the tenant or landlord therefore court have to revert to the law of natural justice. In so many cases this point has been consi­ dered by this Court. On this 1 refer a case of Azad Bin Haider v. Adam Khan reported in PLJ 1981 Kar. 271, wherein it has been held that the question of fact can not be decided by Controller without holding inquiry and hearing the parties. In case of Mamtazuddin Ahmed v. Mst. Sultan Jehan Begum reported in PLD 1981 Kar 329 that inquiry on application under section 14 be held within the discretion of Rent Controller and appellate authority in such manner as they may deem fit but reasonably opportunity of being heard to be provided to both the parties In a case of Ibrahim Ismail v. Brig. (Retd) SH.A. Gardezi reported in PLJ 1981 Kar. 697 it has been held that principle of natural justice could be applied to the cases. Application under section 14 of the Ordinance or affidavit filed by the tenant does not amount an inquiry. In a case of Mst. Rifat Parveen v. Mst. Kaniz Fatima reported in 1986 CLC 1745 it has been held that when specific plea taken regarding occupation of landloiu of other premises, tbejRent Controller has to decide this point on the evidence. With re­ gards to the plea of respondent that earlier rent case was dismissed therefore present rent case was not competent cannot be sustained in view of case of Muhammed Ahmed and others v. Mst. Sakitw Begum and others reported in 1984 SCMR 881 where it has been held first Rent Case no bar on account of previous litigations. For the reasons stated above I am of the viewi that Rent Controller without holding proper inquiry dismissed the rentL case. I therefore accept the appeal and set aside the impugned order ofl the Rent Controller. The case is remanded back with the directions to| decide the same in the light of above observations. Appeal accepted

PLJ 1987 Karachi 167 PLJ 1987 Karachi 167 Present : sved haider ali pirzada, J Mrs. RAFIQA BEGUM (deceased) represented by Dr. GHULAM ULLAH Ch. and Others—Respondent versus Mrs. MAHMOODA WAHIDINA—Appellants FRA No. 479 of 1985, allowed on 17-12-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— ——Object of — Held : Ordinance to be piece of social legislation aimed at easing problem of accommodation, protecting tenants from evictions inspired by profit hunting motives and providingcertain safe-guards for tenants and saving them from great expense inconvevience and trouble—Interest of landlord, also not completely overloo>[- ed in granting him clear right to seek eviction of tenant on proof of grounds mentioned in S. 15 of Ordinance — Held : Just balance be­ tween requirements in good faith on one hand and great incon­ venience and trouble of tenants on other appears to have struck by Ordinance. [Pp.169 & 170 ]B (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— •

S. i5 (2) (vii)—Requirement in good faith —Meaning of—Helsi : Words "requires premises in good faith" to postulate that there must be element of need as opposed to mere desire or wish — Distinction between desire and need should undoubtedly be kept in mind but not so as to make even requirement in good faith as nothing but desire— Held further : Term need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for landlord to get order of eviction. [P. 170JC (Hi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- Ss. 15 (2) (vii) & 21—Eviction—Personal use—Ground of—Appel­ lant though proving his requirement in good faith of house for his research work, Rent Controller misdirecting himself by entering into discussion about its suitability for research pursuit — Held : Pre­ mises belonging to appellants having been proved to be required for research pursuits, inference regarding premises being suitable for purpose to be drawn in case. [P. 169]A Mirza A. Rasheed, Advocate for Appellants. Syed Inayat AM, Advocate for Respondent. Date of hearing : 15-10-1986. judgment This First Rent Appeal is directed against the order dated 4-5-1985 passed by the XVIth Senior Civil Judge/Rent Controller, Ktrachi, whereby he dismissed the eviction application filed by the appellant. The facts leading to the filing of the above appeal are that Mrs. Rafiqa Khanum was the owner and landlady of property bearing No. 197, E/2, P. E. C. H. S. Ltd. Karachi and the respondent is tenant in respect of ground floor of the said bungalow on a monthly rent of Rs. 800 plus water, conservancy and electricity charges. The said landlady filed eviction application on the ground of personal requirement. During the pendency of the eviction application she died and the present appellants were brought on record. The respondent resisted the eviction application. To; appillant No. 1 Dr. Ghulamullah filed affidavit-in'evidence in support of the eviction application. The respondent filed her own affidavit-in-evidence in rebuttal. They are cross-examined by the learned counsel for the respec­tive parties. The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learn­ ed counsel for the parties, dismissed the eviction application vide order dated 4-5-1985. The appellants being aggrieved against the order dated 4-5-1985 of the XVIth Senior Civil Judge/Rent Controller Karachi have preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Mirza A. Rashid the learned counsel for the appellant has con­ tended that the learned Controller failed to appreciate the evidence produc­ ed by the appellants oral as well as documentary and came to an erroneous finding. On the other hand Mr. Syed Inayat Ali, the learned counsel for the respondent has submitted that the order of the learned Controller is in accord with the evidence. The appellants averred in their eviction application that the appellant No, 1 wanted to settle permanently in Karachi and as such the appellant No. 1 required the premises in question in good faith for his own occupa­ tion. The appellant No. 1 filed his own affidavit-in-evidence in support of the eviction application. The appellant No. 1 stated that he is a scientist and he retired as a director from the Biological Research Institute. Peshawar. He also stated that ''actually I want to carry out my scientific pursuit in collaboration with other scientists. 1 am scientist". He further stated that <; I say tbat I svant to come to Karachi to settle here for my further pursuit and the premises on ground floor is suitable to my require­ ment. 1 say that I need the present premises for my personal bonafide occupation and use in the good faith". The appellant to a suggestion in cross-examination replied that "I am well reputed and I shall start my research work independently in own bungalow at Karachi. The premises in case are residential house but is suitable for the purpose of my job that search work". The appellant stated in bis cross-examination that they never requested for an increase in rent during the last five years. As against the above evidence, the respondent stated in her affidavitin-cvidence tbat "I deny the allegation that the premises in case is required iq gcod faith for personal use as alleged or otherwise and I saw that the reasons advanced in paragraphs 4 and 5 of the application for eviction and deposition are false, fabricated" and unfounded." The respondent to suggestion in cross examination replied that "it is incorrect to say that Cbaudhry Ghulamullah wants to establish his science laboratory in the premises and needs the premises for that purpose but the fact is that he had asked me for enhancement of rent and on my refusal, he has filed this :ase". The respondent admired in her cross-examination that she did not mention in her affidaiut this fact of demand of enhancement of rent. The appellant No. 1 stated in his affidavit-in-evidence that he is a scientist and he wants to--carry out his scientific pursuit in collaboration with other scientists. The appellant No. 1 to auggestion in cross-examina­ tion replied that "I am well reputed scientist and I shall start my research work independently in my own bungalow at Karachi. The premises in case are residential house but is suitable for the purpose of my job /'. e. research work. It is, therefore, proved by the evidence discussed above that the appellant required the house for his research work. The Controller has not at all discussed this part of the evidence of the appellant but at the samej time being impressed by the fact that the appellant No. 1 had a strong! desire to occupy the premises in question and use it for his research work. Thereafter the Controller appears to have lost himself in to wilderness by entering into a discussion about its suitability for research pursuit. Here the Controller has misdirected himself. If the appellant No 1 had proved that his necessity was in good faith, that the present premises which belong­ ed to them were required for research pursuits, there could be no question 1 of its suitability or not. In fact the irresistable inference which could be| drawn from the facts is that the premises are suitable for the purpose. I do not agree with the learned counsel for the respondent that thereL is a mere desire to occupy the premises. The Ordinance is a piece of social! legislation aimed at easing the problem of accommodation, protecting the tenants from evictions inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and troubb. But the Ordinance does not completely over­ look the interest of the landlord and has under certain conditions granted a clear right to the landlord to seek eviction on proof of grounds mentioned in Section 15 of the Ordinance Thus, the Ordinance appears to have (truck a just balance between the requirements in good faith on the one aand and great inconvenience and trouble of the tenants on the otber. It was also not disputed that the respondent had taken the present premises on lease only for one year and now she has been in possession of the same over ten years. If the appellant wanted to settle in Karachi permanently and. therefore, it was necessary to occupy the present premises so as to start his research work, it cannot by any stretch of imagination be said that the appellant No. 1 had merely a desire rather than a bona fide need for evicting the tenant I, therefore, disagree with the finding of the Controller that the appellants had not proved that they had any bona fide need for occupation of the premises in dispute. Moreover, Section 15 (2) (vii) of the Ordinance uses the words "re­ quires the premises in good faith" which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish The dis­ tinction between desire and need should undoubtedly be kept in mind but not so as to make even the requirement in good faith as nothing but a desire as the Controller (sic) of the term need 'or requi.ement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely d'fficult for the landlord to get an order of eviction. Such a course would defeat the very purpose of the Ordinance «vhieh affords the facility of eviction of the tenant to the landlord oa certain specified grounds. The superior Courts have considered the import of the word'requirement' and pointed out that it merely connotes that there should be an element of need. For the above reasons given above, the appeal is allowed. The order of the Controller is set aside and an order of eviction of the respondent from the present premises is hereby passed against the respondent In the circumstances of the case the parties will bear their own costs. However the respondent is allowed to vacate the premises before 30 June, 1987. (TQM) Appeal allowed.

PLJ 1987 Karachi 170 PLJ 1987 Karachi 170 Present: Sveo haider Au pirzada, J, Mst. KHATOON, BEGUM-Applicam versus Mst. BARKATUNN1SA BEGUM and 6 Olh«rs—Respondents Revision Application No. 12 of 1986, dismissed on 1-12-1986 (i) Contract Act, 1S72 (IX of 1872)— —S. 62—Contract—Substitution of by another—Held : Contract to be said to bs rescinded by another (contract) between same parties when latter be inconsistent with or renders impossible performance of for­ mer—In case of legal effect being same, both contracts to be constru­ ed together—Held further : Question of agreement entered into being in substitution of old agreement or not to be always question of fact depending also on intention of parties—Such intention, however, to be (competently) inferred from contents of documents by looking to substance of matter and not to mere form. [Pp. 173 & 174]Z) & E f'li) Contract Act, 1872 (IX of 1872)—

S. 62 —Novation—Effect of—Held : Novation being substitution of contract and not mere variation of its terms, (new) contract should rescind or extinguish previous contract. [P. 173JC (1831) 1 LJ Ch .15 ref. (Hi) Contract Act, 1872 (IX of 1872)—

S. 62—Novation—Effect of—Held : Substitution of new contract being core of novation, right under original contract to be extin­guished and new rights referable to new contract to be created—­ Held farther : Substituted contract must be valid and enforceable contract to be effective as novation—New agreement or contract suffering from legal flaw such as want of registration, stamp etc.— Held : Original contract in such case being not extinguished, rights and liabilities of parties to be determined on that basis. [P. 173J.8 (it) Specific Relief Act, 1877 (I of 1877)— —S.I2 & 27—Specific performance—Suit for—Held: In suit for specifi: performance plaintiff not only to set out agreement on basis of which he sues in all details but also to plead regarding his having applied to defendant specifically to perform agreement pleaded by him and regarding defendant having not done so—Readynesi and willingness of plaintiff to perform his part of contract also to be show and pleaded in such suit. [P. 174JF (t) Words & Pbrasei—

'Novation'—Meaning of—Held : Term "novation" to imply that there being contract in existence some new contract substituted for it resulting in discharge of old contract. [P. \12]A Mr. Abdul Majeed Khan, Advocate for Applicant. Mr. Zafar Alam Khan, Advocate for Respondent. Date of hearing ; 5-! 1-1986- JUDGMENT This Revision Petition arises out of the judgement and decree dated 4-12-19S5 passed by the 1st Additional District Judge (West) Karachi confirming the judgment and decree dated 15-2-1982 in suit No. 307 of 1969 passed by the XXXI Civil Judge Second Class, Karachi. The facts which give rise to the above Revision are that on 31-10-1968 Dr. Saleemuddin had agreed to sell plot with structure thereon bearing No. 89, Block I, measuring 120 square yards, Sharifabad, Federal 'B' Area, Karachi to the petitioner for a consideration of Rs. 22.0UO/- vide sale agreement dated 31-10-1968 (Ext. D/l). In pursuance of the agreement the petitioner paid Rs. ll.OOO/- as earnest money to the said Dr. Saleemuiddin and the balance amount of Rs ll.OOO/- was agreed to be paid at the time of registration of sale deed which was to be executed on or before 30-11-1968 which can be extended at the option of the vendor. As per clause (4) of the said agreement (Ext : D/1) the petitioner was delivered possession of the said property. It is the case of the petitioner that on 27-11-1968 the parties executed another sale agreement (Ext. P/l). It is the case of the petitioner that the petitioner had pa'd to the said Dr. Saleemuddin Rs. 7,500/- on 27-11-1968 and the balance of sale consi­ deration of Rs. 7.500/- was to be paid at the time of registration of saledeed which was to be executed on or before 31-12-1968. The case as set out in the suit is that the said Dr. Saleemuddin under­took to finalise the execution of sale deed on or before 31-12-1968 and on his failure to fulfil his commitment with regard to the said sale deed before the stipulated date, the said Dr. Saleemuddin requested for extension of time and the time was extended upto 6-2-1969 but he failed to finalise the registration of the sale deed within the extended time. The petitioner sent a notice dated 7-2-1969 calling upon him to finalise the registration of sale deed within four weeks from the date of receipt of notice. The said Dr. Saleemuddin sent a reply dated 18-2-1969 stating therein that the petitioner had agreed to purchase the property for a total sale considera­ tion of Rs. 22.000/- and the said Dr. Saleemuddin was ready and willing to execute the sale deed in terms of agreement dated 31-10-1968 (Ext. D/1). The petitioner sent a notice dated 4-3-1969 and stated therein that agree­ ment dated 31-10-1968 was cancelled by both the parties. Thereafter the petitioner filed the suit bearing No. 307 of 1969. The said Dr. Saleemud­ din filed the written statement. During the pendency of the suit he died and the present respondents were brought on the record. The trial Court dismissed the suit and in appeal the Additional District Judge affirmed the judgment of the trial Court. Mr. Abdul Majeed Khan the learned counsel for the petitioner advanced his three-fold arguments in support of his contention that the suit as instituted ought to have been decreed in favour of the petitioner/ plaintiff. His main contention is that Ext. P/l constitutes novation. The argument is that it was the intention of the parties that Ex. P/S shall extinguish all rights under the previous contract Ex. D/1 and this document is inconsistent, contradictory and cannot co-exist with the original contract. According to the terms of the agreement dated 27-11-68 (Ext. P/l) the original amount of Rs. 22,OOO/-was reduced to Ri 15.000/- and instead of execution of sale deed on or before 30-11-1968, it was to be executed on or before 31-12-1968. The first question that arises for decision is whether the agreement (Ext. P/l) pleaded in the plaint is true or a real document. The first point therefore, for my consideration, is whether Ext. P/l extinguished all rights and liabilities under the old contract to form the sole basis for an action against the respondents, in other words, whether Ext. P/l is a novation. The term novation implies that there being contract in existence some new contract has been substituted for it resulting in discharge of the old contract. This term appears in the marginal note to Section 62 of the Contract Act which reads as below : Effect of novation, rescission and alteration of contract ". If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be per­ ormed". Substitution of a new contract is the core of novation. Its essential feature is that a right under the original contract is extinguished and new rights referable to new contract are created. The substituted contract therefore, must be a valid and enforceable contract to be effective 35 novation.- If the new agreement or contract suffers from legal flaw such as want of registration, stamps, etc., on account of which it becomes unenforceable, the original contract will not be extinguished and the rights and liabilities of the parties will be determined on that basis. The peti­ tioner sent a notice dated 7-2-1968 and the said Dr. Saleemuddin sent a reply on 18'2-69 wherein it was stated that agreement dated 27-11-68 (Ext P/(l) was meant only a camouflage for showing to the Income Tax authorities for securing the clearance certificate as well as to secure reduc­ tion in the stamp duty it was at the suggestion of pctitioners's son. The petitioner sent a reply dated 4-3-69. In this reply the petitioner did not deny about the sale agreement dated 31-10-68 (Ext. D/l) but stated that the said Dr. Saleemuddin regretted his inability to finalise the said deal as he was not in a position to secure the said clearance certificate of the Income Tax on account of some trouble the said Dr. Saleemuddin was facing with respect to the assessment of income tax and under these circumstances the agreement dated 31-10-1968 was cancelled by ooth the parties It is pertinent to note that Dr. Saleemuddin was cross-examined at length but no suggestion was made to him that the original contract was cancelled due to his inability to obtain income tax clearance certificate or there was trouble about his income tax assessment. I think that both the Courts below have rightly held that the agreement (Ext. P/l) was a mock agreement and it was not to be acted upon. I now proceed to consider whether Ext. P/l according to the terms, teior and intent of the parties constitutes in fact a novation. Ex. D/l dated 31-10-68, the original agreement between the parties, is an agreement to sell. According to its terms, the said Dr. Saleemuddin had agreed to sell the house for Rs, 22.000/-. The petitioner paid Rs. U.OOO/- and the balance amount of Rs. 11,000/- was to be paid at the time of execution of sale deed which was to be executed on or before 30-11-1968. Ext. P/l does not bear reference to the original agreement to sell. It only refers to a sum of Rs. 15.UOO/- The agreement only restricted only to some of the conditions viz quantum and period of execution of sal deed. As observed above, a novation is a substitution of the contract not a mere variation of its terms. It should rescind or extinguish previous contract. As laid down in Gilbert v. Hall, (1831) 1 LJ Ch new and independent agreement concerning the same matter as the previous agreement may be construed to discharge the former, only if the terms of the latter are so inconsistent with those of the former that they can't stand together. In other words, a contract will be said to be rescinded by anothen between the same parties when the latter is inconsistent with or renders!.. impossible the performance of the former. If their legal effect is the samel though they differ in terms, even then it will be mere ratification of thej first and they must be construed together. Whether an agreement entered into is in substitution of an old contract or not is always a question of fact depending also on the intention of the parties. The intention of the parties no doubt may be inferred from the ontents of docum.-nts but in order to gather their intention one should |look to the substance of the matter and not to the mere form. It cannot, therefore, be said that Ext, PI is a rescission of the previous contract of sale. At the most it is an agreement varying the quantum of purchase money in view of saving stampts duty and for the purposes of securing income tax clearance certificate. The execution of sale deed was extended from 30-11-1968 to 31-12-1968. The term relating to possession is not altered. The term about forfeiture of earnest money was deleted. In this way, Ext. P/l and Ext. D/l are ooth put together, one complete subsisting contract. The plea of novation therefore must fail, It may be noticed that the agreement (Ext D/l) pleaded by late Dr. Saleemuddin is wholly different from that pleaded by the petitioner. The late Dr. Saleemuddin pleaded that he had agreed to sell the property for a total sale consideration of Rs. 22,000/- and the petitioner pleaded that the said Dr. Saleemuddin had agreed to sell the property for total sale consi­ deration of Rs. 15,000;'- The petitioner did not at any stage accept tne agreement pleaded by the said Dr. Saleemuddin as real agreement. The agreement pleaded by petitioner is said to have been entered into subse­ quent to the original agreement. The purchase price in both the agree­ ments is different. The petitioner did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agree­ ment pleaded in reply dated 18-2-68 sent by the said Dr. Saleemuddin or in the written statement filed by late Dr. Saleemuddin A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 given in Appendix A of the First Schedule of the Civil Procedure Code. Para. 2 of Form 47 requires the plaintiff to state in the plaint that he applied to the defendant specifically to perform the agreement on his part but the defendant has done so. Para. 2 of Form 48 requires the plaintiff to state in the plaint that on such and such date the plaintiff tendered— rupees to the defendant and demanded a transfer of the said property by a sufficient instrument. Para. 3 of Form 48 requires the plaintiff to 'state that on the day of 19 , the plaintiff again demanded such transfer (or the defendant refused to transfer the same to the plain­ tiff). In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all details, he must go further and plead that he has applied to the defendant specifically p to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken these pleas. In the present case the petitioner did not plead in the suit that he was prepare ed lo purchase the property for Rs. 22.000/- or the petitioner was prepared to purchase the property for the price which the respondent was prepared to sell the said property to the petitioner. In the circumstances the Courts below dismissed the claim for specific performance on the consideration that the ontract of sale was not sitablished. The Revision in the circumstances must fail. The Revision is accordingly dismissed with costs to the respondents, (TQM) Petition dismissed

PLJ ,987 Karachi 175 PLJ ,987 Karachi 175 Pretent : saeeduzzaman siddiqui, J EASTERN GENERAL INSURANCE COMPANY LIMITED I. I. Chundrigar Road, Karachi—Applicant versus Syed MAHMOOD HUSSAIN and 2 Others—Respondents Civil Revision No. 252 of 1986, decided on 8-12-1986 Motor Vehicles Act, 1939 (IV of 1939)-

S. 95 read with Motor Vehicles Ordinance, 1965 (W. P. Ord. XIX of 1965) — S, 122 & Twelfth Schedule — Insurance company — Statutory liability of—Held : Statutory liability of insurance com­ pany under S. 95 (2) (a) of Motor Vehicles Act, 1939 to be limited to Rs. 20,000 only for each accident —Same vehicles involved in more than one fatal accident on one date—Held : Liability in respect of each one of such accidents to be separately to extent of Rs, 20,000. [P. P6]A Mr. Riazul Hassan. Advocate for Applicant. Mr. Hussain, Advocate for Respondents. Date of bearing : 8-12-1986, judgment By this order I propose to dispose of Revision Applications No. 252 and 233 of 1986 finally as in both the Revision Applications a common question of law has arisen. Today only Miscellaneous applications in the above revision applications are fixed for hearing but with the consent of learned counsel for the parties. It have heard the arguments on the main case. The respondent No. 1 in the above revision instituted two separate suits under Fatal Accident Act for recovery of compensation against the applicant and two other defendants who are respondents 2 and 3 in these petitious. The trial court decreed the suits of respondent No. 1 in the sum of Rs. 50.000/- each against ail the defendants. The petitioner challenged the decrees in both the suits before the first appellate court but without any success and has now challenged these decrees in the above revisions. Mr. Riazui Hassan, the learned counsel for the respondent (sic) has contended before me that the liability of the Insurance Company in both the cases is limited to only Rs. 20.000/- in view of section 95 of the Motor Vehicles Act and as such the decrees passed in the above suits against all the defendants joinrly and severally in the sum of Rs. 50.000/- is in excess of juiisdiction. Learned counsel for the respondent No. 1 in the above revisions on the other hand contended that the liability of the Insurance Company was not limited to Rs. 20,000/- only as there is nothing on record to show that the Insurance Policy issued by the applicant limited the liability of insured to only Rs. 20.00J/-. It is common case of the parties that the vehicle ; nvolved in the case was a goods carrying vehicle. It is also an admitted position that the incident took place on 12th November, .971 in which two persons who were riding on separate bycycles were killed on Circular Road, near National Stadium. Mr. Riazul Hassan, learned counsel for the applicant contends that the liability of insurance Company in both the cases is limited to Rs. 20,000/- as both the persons died in the same accident. I have gone through the plaints in the two suits as well as the evidence and judgments of the two courts below and after reading the same I am satisfied that the pleadings and evidence did not show that the two persons who were riding on separate bicycles died in one and the same accident. Mere fact that the incident had taken place at about the same time on the same road did not necessarily mean that the incident was also one. If the stand of the applicant was that alt these persons who died were involved in the same accident ; it was for them to have pleaded and prove the same. Since the evidence recorded in two suits did not disclose that the death of all the persons involvedin the accident was the result of a single incident the trial Court rightly decreed the suit separately against the defendants in each suit for separate amounts. However, after reading the provisions of section 95(2)(a) of the Motor Vehicles Act it is quite clear that the statutory liability of Insurance Company for each accident is limited to Rs. 20,000/- only If the same vehicle is involved in more than one fatal accident on one date, then the liability in respect of each one of such incident will be separately to the extent of Rs. 2J.OOO/-. I. therefore, hold that the liability of applicant in each one of the above suits was limited to Rs. 20.000/- oaly, in view of section 95 of Motor Vehicles Act. The contention of the learned counsel for respondent No : 1 in the above petitions that the liability of the applicant was unlimited cannot be accepted in the absence of oroof of such liability on the part of the applicant. I accordingly modify the judgments and decrees in the above cases to the extent that out of the decretal amount in the above suite only a sum of Rs. 20.OOO/- in each will be recoverable from the applicant as their statutory liability under section 95 of the Motor Vehicles Act, However, as this statutory liability was not discharged by the applicant, immediately on service of notice under section 95 of the Motor Vehicle Act, they will also be liable to pay interest at the rate 12% per annum on the sum of Rs. 20.000/- on each case from the date of decree till the amount is paid to the decree holders. I am informed by the learned counsel for the parties that under in attachment order issued by the trial Court a sum of Rs. 1,00,COO/-belonging t,o the applicant is lying attached with the State Bank of Pakistan. The executing Court may call for the amount of Rs. 20,000/- in each case plus the interest calculated at the above rate from the attached amount and balance amount may to released from attachment. Learned counsel for respondent No : 1 in both the cases requested that it may be clarified that the remaining decretal amount could be recovered from the other defendants in the suit. No such clarification is needed in the cases as the decree against other defendants in the suits are upheld. There will be no order as to costs. Order accordingly.

PLJ 1987 Karachi 177 [FB] PLJ 1987 Karachi 177 [FB] Present : saeeduzzaman siddiqui, K. A, ghani & ibadat yar khan, JJ PAKISTAN INDUSTRIAL ENGINEERING AGENCIES LIMITED, Karachi—Applicant versus COMMISSIONER OF INCOME TAX (CENTRAL), Karachi—Respondent Income Tax Reference No. 54 of 1976 (also Nos. 55 & 56 of 1976). answered on 25-1 1-1986 Per Ibadatyar Khan, J : [Minority view] : (i) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii) — Capital borrowed for pusposes of business — Interest on—Allowance of—Assessee—Wisdom of—Relevancy of— Held : Taxation authority to have no right to judge wisdom of assessee in calculating business necessity to borrow funds, [P. 189]C (ii) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii) — Capital borrowed for purposes of business — Interest on—Allowance of — Concession of — Abuse of — Taxable income granted exemption from general rule of taxability of income —Held : Assessee not to (be allowed to) abuse or misuse concession allowed to it under by S. 10 of Income-tax Act—Held further : Bene­ fit of S. 10 (2) (iii) of Act to be extended by Taxation Authority only in case of exemption claimed by assessee falling under rule of'ex­ ceptions' to genera! rule. [P. 189JB (iii) Income-tax Act, 1922 (IX of 1922) —

S. 10 (2) (iii) — Capital borrowed for purposes of business — Interest on — Allowance of — Exemption from income-tax allowed by Income-tax Authorities during last several years—Held : Merits of case for year under assessment being (only) relevant, following decisions of previous years to amount to adjudication without applying mind to case (in hand). [P. !9U]E (iv) Income-tax Act, 1922 (IX of 1922)— -—S, 10 (2) (iii) — Capital borrowed for purposes of business — Interest on—Allowance of—Huge amount of fixed deposits though readily available, assessee feeling necessity of still borrowing Rs. 3 'lacs from its directors—Held : Loan having competenly been held to be not for business purposes, interest paid on such amount not to be deducted. [Minority view]. [P. 189JD (v) Income-tax Act, 1922 (IX of 1922)—

-S. 10 (2) (iii)—Capital borrowed for purposes of business—Interest on—Allowance of—Loan amount while put in Fixed Deposits, surplus funds utilised by assessee for purposes of business —Held : Assessee having used its own funds and not borrowed funds for purposes of business, deduction under S. 10 (2) (iii) of Act not to be allowed, [Minority view], fP. J92JH (vi) Precedent —

Binding nature of-Held : Previous decision or precedent to have (only) persuasive (and not binding) value unless it be law declared by superior court of competent jurisdiction. [P 190]F (?ii) Precedent —

Court—Decision of—Binding value of—Held : Decision of court not to be blindly followed until it be proved that it interprets law in identical situation and points now requiring adjudication also raised, examined and disposed of in such decision. [P. 190]G (viii) Precedent —

Value of—Held : No two cases being similar, each case to be decided on its own merits—Held further: Law being best explained in given situation, facts of two cases unless identical, enunciation of law in one set of facts to hardly be compelling reason to be adopted in another case [P. 188]A Per K. A.Ghani. J : (ix) Income-tax Act, 1922 (IX of 1922)— ——S. 10 (2) (iii)—Capital borrowed for purposes of business—Interest on—Allowance of—Assessec company previously also borrowing loan for its business inspite of available surplus cash invested in fixed deposit account—Held : Income tax Appellate Tribunal not to act suo motu without any material and justification io disallowing claim under S. I0(2)(iii) of Act by inferenc drawn on mere surmises that subsequent loan (borrowed from same creditors at previous rate of interest) not to remain loans for purposes of business for to years under consideration. [P. 195]J (x) Tax-

Assessee -Investment by — Decision regarding — Held : Revenue authorities not to decide for assessees nor to guide them as to how investments to be made by them. [P. 196]K Per Saetduzzaman Siddiqui, J (xi) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii)—Borrowed capital—Interest paid on—Deduction of —Claim regarding—Held : In order to entitle assessee to claim deduction of interest paid on borrowed capital under S. 10 (2) (iii) ol Act from profits und gains, assessee to be required to show that capital during assessment years borrowed by it for purposes of business, posfession and vocation of assessee and that amount of interest on borrowed capital also paid by it—In case of assessee establishing such facts, deduction claimed by assessee to be allowed by Income-tax Authorities—Any further enquiry by such Authorities in this regard to be not permissible nor same to come within scope of S. 10 (2) of Act. [P. 197]L (xii) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii)—Capital borrowed for purposes of business—Interest on—Allowance of—Claim regarding—Claim of assessee disallowed by Tribunal on ground of it being no more advisable for company to keep loan on which company paid interest at rate of 9 per cent. while on its own surplus kept in fixed deposits, assessee received only 4^ per cent, interest — Held : Such considerations to be not relevant for disallowing claim for deduction under S. 10(2)(iii) of Act. [P. 200)0 (xiii) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii)—Capital borrowed for purposes of business—Interest on—Allowance of—Held : Mere fact of company having surplus capital which it invested in security less profitable then interest paid by it on borrowed capital to be not sufficient circumstance to hold that borrowed capital not to be needed for business purposes. [P. 2Q8JP (xif) Income-tax Act, 1922 (IX of 1922)—

S. 10 (2) (iii) — Capital borrowed for purposes of business — Interest on — Allowance of — Positive conclusion regarding loan obtained by assessee being not for purposes of its business not reached by Income-tax Authorities — Held : Factum of borrowing and payment of interest thereon being not in dispute assessee not to be held disentitled to deductions under S. 10 (/) (iii) of Act. [P. 208] M (xt) Income-tax Act, 1922 (IX of 1922)—

Ss. 10 (2) (iii) & 66 (2) — Capital borrowed for purposes of business—Interest on—Allowance of—Claim regarding—Borrowed capital not shown to be not utilized by assessee for busineis purposes —Held : Claim of assessee for deduction of interest paid on borrowed capital not to be disallowed under S. 10 (2) (iii) of Act. [P. 203]Q (xvi) Income-tax Act, 1922 (IX of 1922) —

S. 66 (2)—High Court—Reference to—Finding of fact—Challenge to—Findings of facts not challenged in reference before High Court under S. 66 (2) of Income-tax Act, 1922—Held : Findings of facts recorded by income-tax officer and Appellate Tribunal (in such case) to be binding on High Court. [P. 199JN Mr. Iqbal Naeem Pasha, Advocate for Applicant. Shaikh Haider, Advocate for Respondent. Dates of hearing :\, 14, 18 & 20-11-1985 and 6 & 7-10-1986. judgment Ibadat Yar Khan, J —This is a reference under Section 66(1) of In­ come Tax Act filed by the assessee pertaining to the assessment years 1969-70, 1970-71 and 1971-72. The assessee is a private Limited Company and deals in import of ball bearings. They have been assessed from year to year since long time. But we are here copcerned with the accounting years ending 30-9-1968, 30.9-1969 and 30-9-1970. In all these three years their claim for exemption of interest paid by them on the amounts bor­ rowed for the purpose of the business have not been allowed by the Income Tax Officers, who have passed assessment orders in respect of these three years, This grievance was taken in appeal to the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal has passed a single order disposing of the three appeals against orders passed on 10-5-1973 relating to Assessment years 1969-70, 1971/71 and S971-72. Against this common order for the aforesaid three years, the appel­ lants have filed three different references being I. T. Ref. No. 54/1976, 55/1976 and 56/1976 and these references wou!d be disposed of by this common judgment, because the same point of law is involved in a!! the three references. By tbis common order the three appeals of the assessee have been dismissed and orders of Income-Tax Officers have been upheld. The view taken by the Tribunal is that in the circumstances of the case the amount of loan on which the interest hss been paid to the two share-holders from whom the loan was borrowed could not be treated as business loans. The Assessee Company had sufficient funds readily available to be employed if needed. As such there was neither any necessity nor indeed justifica­tion to obtain this loan of Rs. 3,00,000 and lodge claim for interest paid on this amount. The assessee Company moved the Appellate Tribunal for making a reference to the High Court under section 66(1) of the Income-Tax Act for the opinion of the High Court on the following question of law :— "Whether the learned Income-Tax Appellate Tribunal misdirect­ ed itself in law in disallowing interest payment of Rs. 27,000?" By their order dated 10-2-1976 the Appellate Tribunal rejected this application. The Tribunal in this order observed "our finding that the loans were not obtained for the purposes of the business continues to hold good. There is not the least dispute that this is the rinding on facts. The question posed by the applicant, therefore, in our opinion, is a ques­ tion of fact and in consequence, we refuse to refer the same." The assessee has, therefore, filed this reference directly in the High Court under section 66(2) with the prayer : "It is, respectfully submitted that the Seamed Tribunal having overlooked the fact that interest received by the Applicant had been assessed under Section 10 as income from business, it had misdirected itself in law in arriving at the finding that the capita! borrowed was not used for the purposes of the business The question as framed in para (10) of this application is a question of law involving interpretation of Section 10(2)(iii) of the Incometax Act, It is, therefore, humbly prayed that this Hon'bie Court be pleased to decide the said question of law." Mr. Iqbal Naeem Pasha, the learned counsel for the applicant relying on the plain language of Section 10(2}(iii) argues that all the requirements of this provision of law are satisfied and the applicants are entitled to the beneficial exemption provided by the Section. Mr. Shaikh Haider learned counsel for the Department, however, supports the order of thj Income Tax Officer and the Income Tax Appellate Tribunal. In his reading of the section, the assessees have merely resorted to the device of showing the amount as a loan to escape from tlis tax liability. The learned counsel :ontends that only such interest would be exempted from she tax liability which an assesses has paid on the capital borrowed for the purpose of the business. Any interest on a capital which cannot be co-related with the needs and for requirements of the business cannot and should not be excluded from tax liability. Sub-section (2) clause (lii) of Section 10 of tbe Income Tax Act is in the following language :— Section 10(2)(ni) (2) Such profits or gains shall be computed after making the fol­ lowing ; namely :— (iii) in respect of capital borrowed for the purposes of the business, profession or vocation, the amount of the interest paid : Provided that no allowance shall be made under this clause in any case for any interest chargeable under this Act which is payable without the taxable territories, not being interest on a loan issued for public subscription before the 1st day of April, 1938, except interest on which tax has been paid or form which tax has been deducted under section 18 or in respect of which there is an agent in the taxable territories who may be assessed under section 43 or, in the case of a firm, for any in­ terest paid to a partner of the firm". A careful reading of the section would show that at the time when the "profits and gains of the business profession or vocation" of the assessee are being calculated and determined for purposes of determining the tax liability, they are to be computed after making some allowances. These allowances are incidental to the busjness through which the profits and gains have originated. For instance, the rents of the premises where the business is carried on is allowed as an allowance and has to be deduct­ ed from taxable income. S ; milarly, the costs and expenses incurred on repairs of the premises occupied by the assessees for the business is an expense which is permissible as deduction from the income and allowance would be given for sums spent on repairs. Then follows the part of the section under review. Under this part of the section not all the interest paid but only such interest as has been paid on such capital as was acquired of purposes of business. In other words it means that an adventurous assessee who wents to generate a pool or create a capital to be employed in the business or for purpose of advanc­ ing the interest of business, should not feel hesitent or frusterated for lack of funds, but is free to resort to borrowing and if. he borrows for thg business and pays interest, the amount paid as interest should be treated as an allowance permitted to be deducted from the income, or profits or gains and would not be subjected to tax liability. Now the question arises that an assesses, who already sits on a fat capital and has according to his own balance sheet, substantial cash in hand, readily available to be employed in any adventure or investment which the exigencies of the business may claim or require can he or would be think of locking up this huge capital in his safe and resort to borrowing of interest bearing loans for his business. Such is the situation in this case. The balance sheet for the assessment year 1969-70 shows b cash balance of Rs. 9,13,266 standing to his credit on the opening day of the year and yet an interest bearing |oa;i is obtained by the appellant from two of the share-holders and a sum of Rs, 27,000 is credited to their account as interest paid to them. To put it mildly it is to be termed as imprudent act on the part of any businessman to allow his own funds to remain unproductive and treasured in a safe and go about begging for funds to feed the business requirements. To put it crudely it may be called a clever devise to "play fraud on the statute". The fact that this cash of Rs.

shown in the balance-sheet was put in Bank under F.D.B. is of no consequence' because the F.D R. are yielding an interest of 4|% and the interest laid to the share-holder on the borrowed amount is as such as 9%. There would be some point if this capital shown as surplus in the balance-sheet ending the period of each business year was invested or was locked in some other way and was not readily available when needed. But when questioned about its involvement, the learned counsel for the appli­ cant frankly and categorically conceded that this capital was not stuck up anywhere and was never beyond reach. It could be pulled out and utilised any time the applicants wanted it. There was no long term or even short term commitment for this capital as in cases cited by the learn­ed counsel for appellant in support of his contention. In this situation it cannot be said that the Income Tax Officer and the Appellate Tribunal were wrong in their approach by holding tnat the amount shown as interest on capital borrowed for purposes of business was not borrowed lor the pretended purpose but for feeding the ihareholders through back door on the one hand and escaping the tax liability on the other. (1984) 50 Tax 189. C. /. T. v. Fateh Ally & Co. In the case 'Commissioner of Income-Tax, Karachi v. Fateh Ally & Co. Karachi' reported in (1984) 5U Tax 189, the deductions were allowed by the Assistant Appellate Tribunal and the Appellate Tribunal on the findings that the amount of loans obtained by the assessee Company were secured by the Company from the Bank "as and when found necessary for carrying on of its own business and that its advances to its directors were made in the usual course of business." Moreover, this was a case in which the loans were obtained when the Company's own funds were already converted into stock in trade or shares to the Directors and the exigencies of the business required repletion of capital to be employed for purposes of the business of the company. The facts of this case are, therefore, clearly distinguishable from the case on hand where Company's own funds far exceeding the amount of loan borrowed have always remained available to the Company for purposes of its business. (1984) 50 Tax 196. "C. /. T. v. Adamjee Sons'. The other reference z. e. I. T. R. No. 709/1972 reported as Commis­ sioner of Income Tax Karachi v. Adamjee Sons was disposed of by the High Court and has been relied upon. In this case the Income-Tax Officer had disallowed the deductions on the ground that the firm had made substantial payments and advances to the wives and children of the partners of ths firm and such utilisation of the borrowed capita! could not be called utilisation of the capital for purposes of business of the firm. The Appellate Tribunal set aside the order of the Income-Tax Officer and allowed these deductions in full. It was held by the Tribunal ; the funds of the firm w.ere built with .contributions from -the .partners and- their family members, and portion of these Funds was lent to them on loan for building their own house. Then the important part of the order : "If after this arrangement the appellant fell short of the capital in any manner it was fully at liberty to borrow money on interest. It was none of the department's concern to direct the appellant not to make advances to the partners who had debit balances in their accounts. After all the entire capital was of the assessee and it could utilise the fund at its disposal in any manner it chose. This being the position no exception could be taken to ' the tax free advances being made even to the partners whose accounts showed debit balances. If thereafter the business needed any capilaf foe appcf/ant coufd resort to borrowings and on such On tbese facts the High Here again the findings are tnat tne capital which was their own money was consumed by the partners for construction of their houses and fresh capital was needed fo be employed for the purposes of the business which could only be obtained by the assessee by resorting to borrowing. PID 1957 (WPj Kar. p, 130. (Mis. Eastern Silk Stores v. The Comm. ' 'tne- Tax), Another case relied upon by the counsel for the applicant is reported in PLD 1957 (WP) Karachi p. 130 The Assessee firm which was a partner­ ship of two sons of one Jevat Ram obtained a loan from the father of the partners and paid interest at the rate of 9% for earlier years and raised it to 12% in later years. The Income Tax Officer as well as the Tribunal did not allow exemption on the enhanced rate. When the matter was placed before a Division Bench of this Court for opinion on this and other points involved, the Court remanded the case to the Department with the direc­ tions that "Income-tax Appellate Tribunal to refer the following question alongwith a statement of facts, for answer under section 65 (2) of the Income-tax Act to this Court : "Whether, when interest has been paid in respect of capital borrowed for the purposes of the assessee's business, the Incometax Authorities are justified in reducing the rate of interest on the ground that an excessive amount has been paid for non-commer­ cial reasons 1" This case provides no guidance for the problem in this case whether the assessee having adequate funds in reserve, can still resort to borrowing and claim exemption for the interest paid on such loans. Though this case does not render any help for solution of the main problem, still there are weighty observations which are relevant for this case. At page 135 the following lines are important to note : — "This subsection contemplates that any expenditure not in t'ue nature of capital expenditure or personal expenses of the assessee laid out or expended wholly or exclusively for such business, profession or vocation shall be given allowance by the Income Tax authorities. The onus sf establishing that a particular expense was wholly or exclu­ sively for the purpose of such business is clearly on the assessee," If the order of the Tribunal in the present-case particularly the following passage is read in-the'light of theabove quoted observations of the Court, the case of the assessee must "fail : "We, however, felt that if the business can be carried on even after depositing Rs, 8.65.000/-in 1971-72 and Rs. 4,15,000/- in the years 1969-70 and 1970-71 how can it be thought that Rs. 3,l)0,000/- was needed by business for purposes of the business. In such circumstances we are constrained to hold that the loan did not remain loan for purposes of business for the years under review and hence uphold the disallowance of the interest paid to the share-holders," Again in the order dated 16-2-1976 which was passed on the application of the assessee/appellant praying for making a reference of the case to the High Court under section 66 (1) of the Income Tax Act, the Appellate Tribunal while rejecting this request observed as follows :— "Our finding that the loans were not obtained for the purposes of the business continues to hold good. There is not the least dispute that this is the finding on facts. The question posed by the Applicant, therefore, in our opinion, is a question of fact and, in consequence, we refuse to refer the same." (1963) 48 ITRs p. 930. Govan Brothers v. Commissioner of Income Tax, U.P. This case is from Indian jurisdiction and has close resemblance with the facts of the present case as few extracts from the judgment would show. This case came to the High Court of Allahabad on a reference under section 61 (1) of the Income Tax Act in the following circum­ stances :— The assessee firm were managing agents of two Sugar Mills for a period of 20 years. While this term of 20 years had still 4 years to cooiplete, the assesses firm purchased shares of the value of Rs. 19.o4.l26/- of the Sugar Manufacturing Companies from H. H. Nawab of Rampur. To finance this purchase of shares the assessee borrowed interest bearing loans from different sources and paid a sum of Rs, 64,239/- as interest to the lenders including the Nawab After about eight months the assessee sold these shares to a new company. Incidentally the Directors of this Company were close relatives of the partners of the assessee firm. The assessee claimed reduction of Rs. 64.239/-. The Income Tax Authorities disallowed this deduction and held that "the capital was not in truth borrowed for the business." The Appellate Tribunal upheld this decision of the Income Tax Officer. At the request of the assessee reference was made to the High Court under section 61(1) of ttie Act to answer the following question :— "Whether on the facts ani circa rutancjs of ths case, the sum of Rs. 64,239,'- paid as interest of H H. the Nawab of Rampur and others is a permissible deduction in computing the business income of the assessee ?'" The High Court of Allahabad answered the reference in the negative and held :— "Coming now to its allowability under section 10 (2) (Hi) one has to remember that the managing agency was still to run for a period of four years on the date of borrowing and purchase. Only eight months later the shares were transferred to Dalmia Cement Company as according to the assessee it had no funds to pay the amount borrowed. Clearly, the assessee must have taken us financial position even on the date of the borrowing and the purchase It could not have suddenly dawned on the assessee only after the expiry of eight months that it could not hold on to the shares and must part with them. It follows that the borrow­ ing and the purchase and the subsequent transfer of the shares to Dalmia Cement Company were all parts of a pre-determined scheme, There is the further fact that the assessee and the. Dalmia Cement Company were closely linked as the shareholders of, the latter company were relations and close friends of the managing director of the assessee. The pretext for the borrowing and the purchase and sale was that the arrangement would help the assessee to retain the managing agency for a further period as under the agreement of sale, the vendee would exercise its vote according to the desire and in the interest of the assessee. This pretext stands completely exposed when we find that by further agreement between the parties incorporated on December, 24 1951, the benefit of the receipt of 25% commission and office allowance was in no way to stand reduced even if the vendee parted with all but a negligible portion of its shareholding." It was also observed in the next para, as under ; — "The device is further exposed by the further agreement dated January 2, 1952, by which the benefit of the agreement was trans­ ferred to Messrs. Dalmia Jain Trust. Presumably this was done with a view to completely evade payment of tax on 25% of the managing agency commission and office allowance, the amount of which it appears was quite considerable. It is significant that the assessee himself probably felt that the arrangement for parting with 25% of the managing agency commission and the office allowance was in the nature of a partnership arrangement for depleting the profits of the business of the managing agency and not a bona fide arrangement for acquiring assets necessary for its business. It, therefore, incorporated a paragraph in the agree­ ment of sale that the agreement did not amount to a partnership between the parties. It is true that on assessee is entitled to arrange its affairs in such a way as to reduce its tax liability by all legal ways but the arrangement must be genuine and not a sham. Here it appears that the object of h rrowing was illusory and colourab­ le and not genuine or bona fide. It follows that the sum of Rs. 64,239,- was not allowable as deduction under section I0(2)(iii) also. The deduction was not claimed under any other provision. The question referred to us should, therefore, be answered in the negative." (1962) 44 Income Tax Reports p. 847 Birla Gwalior Private Ltd v. Commissioner of Income-Tax M. P, The learned counsel for the applicant relies on a case reported in (1962) 44 Income Tax Reports p. 847 Birla Gwalior Private Lid. v. Commissioner of Income-Tax M. P. In this case the reference made to the High Court of Madhia Pradesh under section 66 (1) of tbe Income- Tax Act was answered in the negative on the question formulated as under :— "Whether having regard to the provisions of section 10 (?) (iii) of the Act, the Income-Tax Authorities had power to scale down the rate of interest on the ground of unreasonableness ?" It was observed in the case that the assessee's claim for deduction under section 10 (2) (iii) was to be determined by keeping in view the following points : (1) first, the money, that is the capital, must have been borrowed by the assessee ; (2) secondly, it should have been borrowed for the purposes of the business, profession or vocation of the assessee ; and (3) thirdly, the assessee should have paid the interest amount claimed by him as an allowance under that clause. The interest paid has not been made subject to the test of reasonableness as is bonus or commission under section 10 (2) (x). The learned counsel for the applicant relies on the above observations and contends that once these three elements are found to be existing in favour of the assessee there should be no reason to disallow the deduction. If the discussion had ended here, perhaps the decision would lend support to the contention of the learned counsel. But these observations are followed by very relevant condition which is to be borne in mind and which in the present case is the basis of decision of the department in the reference now before us. The observations are to the following effect : "Therefore, when the income-tax authorities have found that the borrowing transactions were not illusa'y or colourable and that the capital was borrowed by the assessee for the purpose of the business and the amount of interest was paid, then they have no jurisdic­ tion under clause (iii) to determine a reasonable amount of interest as deduction." In the present case this is exactly what the learned counsel for the department is arguing He is contesting that the loan was bDrrowzd to feed tbe business. According to the department, the object was to feed the directors. The case, therefore, cannot be read in favour of the appel­ lant. Rather it supports the view point of the Department. (1978) 114 Income Tax Reports p. 654 Kishinchand Chellaram v. Com­ missioner of Income Tax, Bombay City III. The next case cited by the learned counsel for the applicant is Kishinchand Chellaram v. Commissioner af Income Tax [1TR Vol. 114 (Ibadat Yar Khan, J) (1978) p, 654]. In this case also the point involved was totally different from the point involved in the present case. It was held in this case :—• "That so far as the Bombay High Court is concerned, it is quite clear that, under section 10 (2) (iii), interest paid on borrowed capital will be allowed as a deduction only if the capital was borrowed and used for purposes of business and that if it is used for a purpose other than that of business, then interest to the extent to which the capital was so used, will not be allowed as a premissible deduction under section 10 (2) (iii)." I may also add that the question involved in the above case was whether the amount borrowed and spent on discharging the tax liability of the partners could be treated as the amount spent in the business of the firm ? The reference was answered in the negative. This case is not relevant for tbe determination of the point involved in the present case. (1964) 51 1TR p 835 Amna Bibi Haji Issa v.Commissioner of Income Tax. In this case the assessee had her accounts in a firm which also used to act as her banker. The balance remained fluctuating according to deposit and withdrawals. On 1st April 1956 the assessee had an overdraft of Rs. 96,625/-. On 31-3-1957, she deposited a sum of Rs. 1,01,OuO/- in her account and also withdrew as a loan a sum of Rs. 90,000/- specifically for investing as capital in another firm. She operated this account during the year and made several withdrawals from time to time. On the closing day of the accounting year i.e. 31-3-1957, a debit balance of Rs. 53,182/- was struck in her account as loan and she was charged interest in the sum of R. 2,963/-on this amount which she claimed as deduction from her income in the assessment year 1957-58. "This claim was disallowed by the Tribunal on the ground that Rs. 90,000;'- could not be treated as borrowed capital as it could have come out of Rs. l.Ol.OOO/- she received on March 31, 19:7 and that for lack of identity assessee's claim must fail." At the assessees request the department made a reference to the High Court under Section 61 (1) of the Income Tax Act. The High Court answered the reference in favour of the assessees and allowed the deduc­ tions. Commenting on the decision of the Tribunal the,. Judges made following observations : "The Appellate Tribunal apparently relied upon the circumstances that the assessee, according to the above account, bad certain sums belonging to her which she could very well have utilised towards furnishing the capital to Thayub, Madurai, and that, therefore, she need not have made any borrowing. It seems to us that this view is hardly sound. To take a general example, it may be that an assessee has in his banking account a large sum of surplus money available. But that does not prevent the assessee from making a borrowing elsewhere for the purpose of financing a business or a partnership. It is not unusual for persons to make borrowings if they could do so at a lower rate of interest for the purpose of making new investments and not to disturb their existing investments which may by earning a higher rate of interest. The fact, therefore, that the assessee had ample resources which she could draw upon for the purpose of making this investment and that she need not have borrowed is hardly relevant to the question." 1 This case has been unhesitatingly followed by a Division Bench of this Court in Income Tax Reference No. 288/1974. Incidentally reference was in relation to the assessment year 1968-69 of the same assesses with whom we are dealing with in this reference. It now remains to consider the two judgments of this Court written by a Division Bench in two Income Tax Reference No 288/1974 and 294/1974, IT Ref. No. 288/74, which as a reference filed by the Commissioner of In­ come Tax against the assessee. Incidentally the parties were the same as in the reference before us. In this reference deductions of interest on borrowings of the assessees were allowed by the Tribunal and the Department filed the reference for the opinion of the Court on the following question of Jaw :~~ "Whether on the facts and in the circumstances of the case the Tribunal was justified in allowing the amount of interest payable to the two minor share holders ?" A Division Bench answered the question in the affirmative and disposed of the reference relying on three cases mentioned in the judgment. They are as follows :— (1) 1984 PTD 341, Commissioner of Income-Tax v. Fateh AH & Co, (2) 1984 PTD 390, Commisioner of Income-tax v. Mjs. Adamjee Sons ; and (3) (1964) LI ITR Madras, 835, Amna Bai Hajee Issa v. Commissioner of Income-Tax. Fateh AWs case has been discussed by me in the earlier part of the judgment. Mis. Adamjee''s case has also been distinguished by me in the earlier part of the judgment. I will deal with the Madras's case a little later. On reading these cases the learned Judges of the Division Bench came to the following conclusion : — "It may be observed that Section 10 (2) (iii) does not specify any condition as to the entitlement of deductions of interest from the profit and loss account and therefore the learned Income-Tax Tribunal was justified in granting the deductions for interest paid to the minor Shareholders as the factum of borrowing as the amount of borrowing was not disputed by the Department." It is this finding of the learned Judges which is the foca! point of the case and has been relied upon by the learned counsel for the appellant in this case. The learned counsel for the appellant insists that on the basis of these observations no room is left for any other opinion and the reference should be answered accordingly, it is to be borne in mind that no two cases are similar. Each case had to be decided on its own merits. Without meaning to under-estirnate the value of the precedent it cannot be denied that law is best explained in a given situation and unless the facts of two cases are identical the enunciation of law in one set of facts can hardly be a compelling reason to be adopted in another case. The facts of the case before that Division Bench are not given and it cannot be said whether the point now being argued before us also fell for determination in that case and the approach was brought above after ex­amining this point. So far as the legal proposition is caneernd, there can be no catfi! (bat "section 10 (2) (Hi) does not specify any condition as to the en­ titlement of deduction of interest from the Profit and Loss Account." No doubt the assesses is free to resort to borrrowing if the exigencies of his business require. He is also free to invest his own capital as well as the borrowed capital to any use profitable or un-profitable. Further, if he takes up a business adventure which may prove to be hazardous depriving him of every thing there is no body to question his discretion. One may go to the extreme limit of saying that even if funds hav been committed and are stuck up in not very attractive adventures and the assessee generally feels the necessity to replenish the pool and raise capita! for investment the Income-Tax Officer has no authority to question the discretion of the assessee, because these considerations are the sole consideration of the assessee and the law has allowed him to fully and completely enjoy the right of manoeuvrability of his funds. Yet there is one consideration to oversee the unrestricted exercise of right by the assessee and that is this that the assessee should not abuse or misuse the concession allowed to him by this section. It must be appreciated that this section allows what has been described as "exemption" in the Act. In other words this otherwise B taxable income is granted an exemeption from the genera! rule of taxablity of the income. To this extent it is the duty of the Taxing Authority to see whether the exemption claimed by an asiessee falls under the rule or 'exceptions' to the genera! rule. Only in latter cases the benefit of section (10) (2) (iii) would be extended and not in others. In the present case on the morning of 1st of October 1970 when the business year of the assessee started, we have to see what were the assets and liabilities of this assessee and whether on that point of time it was or it could be a business necessity to resort to borrowing. Whether the motive of borrowing was to generate funds to feed the business or generate amount of interest to feed the share holders ? I may repeat that I am not conceding to the Taxation Authority the right to judge the wisdom of the assesseef in evaluating the business necessity to borrow the funds but merely theU phenomenal necessity of borrowing from the Directors on the opening dayj of their business year or even thereafter during the course of the year I The balance sheet on the opening day of the year shows that the position of cash and bank balance of the assessee was as follows : — "In baud ... Rs. 2,708.38, On current account ... Rs, 64,422.43 & On Fixed Deposit A/c ... Rs. 8,50,000.00." Looking to this balance sheet showing fixed deposits available to the asseseee to the tune of Rs. 8.50.000/- the burden immediately shifts to the assessee to satisfy the Taxation Authority that this huge amount of fixed deposits which though readily available to him still left the necessity of borrowing Rs. 3 Lacs from the Directors of the assessee. The plain answer to this question is that the assessee having failed to satisfy the Taxation Authority that in this situation the borrowing was for busi ness purposes, the Taxation Authority on appreciation of facts of the case was competent to hold that this was not a loan for business purpose, and consequently interest paid on this amount was not to b<= deducted. Question arises whether we in this reference can question the judgment of the Taxation Authority that this finding or conclusion was not proper ? In my humble view this was a pure question of fact whether or not the burden had been discharged to the satisfaction of the Taxation Authority. The learned counsel for the appellant contended that the loan was obtained in 1959 and has been shown in the books since then. That it was not a fresh loan. In my opinion this would not change the position because we have to judge the commitment each year and the position of the tax is to be seen yearly. The admitted position is that neither the loan was for a specified period which could continue till the end of that period. Nor indeed the Fixed Deposits shown in the Balance Sheet was fixed commitment where this amount was stuck up. Therefore, this argu­ ment does not hold any weight. The next argument was that because the Income-Tax Authorities have been allowing this exemption during the last several years, the Income- Tax Authority should have followed that precedent. This argument is also not impressive because each officer has to perform his duties accord­ ing to the situation before him. If an erroneous view of law has been taken or there is an erroneous judgment, this can be no justification to repeat the same mistake. We have to see the merits of the case for the year under assessment. To follow the decisions of the previous years would, to say the least amount to adjudication without applying his mind the case before him; I may repeat once again that a previous decision or a precedent, unless it is the law declared by a superior Court of competent jurisdiction, may oave a persuasive valu; is not binding. Even a decision of a Court cannot be blindly followed until it is proved that it interprets the law in identical situation and the points now requiring adjudication were raised, examined and disposed of. In the present case all that is shown is that parties were same and the amount barrowed in 1959 by the present assessee was utilised for business purposes. As such the interest paid was allowed as permissible deduction for the taxable income. There is no finding and no discussion on the important point involved in the present reference, that a huge amount of cash lying idle or say put in bank against F. D. R. all the time within reach of the assessee, should be completely blanketted from the revision, and the vacuum thus created should be allowed to be filled by the borrowed amount. In the years under review ths Tribunal has examined this aspect of the case and has formed an opinion that on facts before him, it could not be a borrowing for purposes of business or a loan which was business necessity which could qualify for exemption within the meaning of Section IQ(2)(w) of the Income-Tax Act. The judgment in Reference No. 288/1974 is therefore not germane to the decision of the case on hand. The other judgment of the same Division Bench in Reference No. 294 of 74 is even less helpful because it has simply answered the reference by following judgment in Reference No. 288 of 1974. So far as the Madras case is concerned, it is to be noted with utmost respect that the opinion expressed and relied by the learned counsel for the applicant here would be difficult to adopt as proposition of law, particularly the following lines in the judgment ;••—• "The Appellate Tribunal apparently relied upon the circum­ stance that the assessee, according to the above account, had certain sum belonging to her which she could very well have utilised towards furnishing the capita! to Tfaayub, Madurai, and that, therefore she need not have made any borrowing,'' This judgment has received adverse comments from the Editor of the Journal in which it is printed. Not only this, the lines following the above passage are indicative of the situations visualised by their lordships to justify deductions in that case But these situations materially differ from the situation of the present cases and surely this case cannot be a dependable basis for decision of the present case. Their Lordships have visualised the situation when inspite of reserve funds, borrowings could be made 1 quote ; "To take a general example, it may be that an assessee has in his banking account a large sum of surplus money available. But that does not prevent the assessee from making a borrow­ ing elsewhere for the purpose of financing a business or a partnership. It is not unusual for persons to make borrowings if they could do so at a lower rate of interest for the purpose of making new investments and not to disturb their existing investments which may be earning a higher rate of interest." With utmost respect for the learned Judges, it may be said that once it is conceded that the bank deposit is earning a higher interest this by itself is such a factor, which would change the whole complexion and completely change the approach. la the first place this by itself may be a business proposition and a mode of invsstount chosen by the assessee. Moreover there is a second rationale behind the urge for borrowing additional funds because the reserves or savings are already invested in productive invest­ ments. In the present case the situation is totally different. The huge amounts of cash are kept aside and interest bearing loans are obtained at 9% interest. The wisdom of putting the.n in F. D. Rs earning 4% interest his not been explained by the assessee to the Taxation Authority and they have taken a view that borrowing was not a business necessity and for lack of idsntity utilisations coald no: b; said to be employment of the funds in the business. This should not be confused to be interference with assessee's right to invest his funds in any manner he chooses. Even with his right to create fresh capital or supplement the existing capital for further investment in his business by borrowing. All the case law cited at the bar relates to aforesaid situations. In the case in hand choice of utilisation of funds is not involved, nor the option to resost to borrowing. Here the very object and motive for borrowing is held to be, to use the language of their Lordships of Allahabad High Court in a similar situation a "borrowing illusory and colourable and not genuine or bonafide." There is another angle from which the claim of the assessee can be examined. The exemption claimed is in respect of a cash amount to the extent of Rs. 3 lacs for each year. Question arises which sum in case was employed for the F.D R and which was put in circulation for business purposes. All that we know is that amount of loan borrowed as early as 1959 remained in circulation for a period of time and then was invested in F D. Rs, Can it be asserted with certainty that the loan amount remained ia circulation i'or business purposes and the surplus which has remained fluctuating between Rs, 4 lacs to 8 lacs during the years under review was utilised for investment in FD Rs. If the loan amount has been put in FD Rs, and the surplus funds have been utilised for purposes of business then clearly the assessee is not entitled to the deductions under section 10(2)(iii) because he has used his n funds and not the borrowed funds for the purposes of business. On this view of the matter also the assessee's claim must fail on account of ack of identity of the funds for which exemption is claimed. In my humble opinion the answer to the reference should be in the negative. K. A. Ghani, J —-I have had the honour of reading the judgment of my learned brother Mr. Justice Ibadat Yar Khan answering the question reproduced above in the negative. The learned Judge inter alia, referred to the case of Commissioner of Income Tax (Central Zone) Karachi v. M[s, Pakistan Industrial and Engineering Agencies Limited Karachi (ITR No. 288 of 1974 for the assessment year 1968-69) in which the same question as raised in the present case came up for consideration and was answered by the learned Division Bench who heard that case, in the affirmative. My learned brother Ibadat Yar Khan J, in his judgment in the present case, with reference to the judgment given in the earlier case (ITR No. 288/74) rightly observed that the facts of the case before that Division Bench are not given. The learned Judge further observed that it could not be said whether the point argued before this Bench also fell for determination in the case and the approach was brought about after examining this point. The learned Judge after extensive examination of case law took a view different from that given in the judgment by the learned Division bench of this Court in the earlier case (ITR No. 288 of 1974), 2. The facts of the earlier case ITR No. 288 of 1974 briefly stated as could be gathered from the record of the said as well as the present cases may briefly be stated as follows : — (/) The assessee is a private company registered under the Companies Act 1913. Right from assessment year 195960 (each accounting year ending on 30th day of September) on the capital amount Rs. 3 lacs borrowed from its two minor share-holders for purposes of business, interest paid at 9% per annum has continuously been allowed as business expenditure within the meaning of Section 10(2;(iii) of the Income Tax 1922 and interest received by the assessee on fixed deposite at 4% per annum was treated as business income. However for the said assessment year 1968-69, ending 30-9-1967 the Income Tax Officer disallowed payment of interest by order passed on 6-12-1971 the relevant finding is reproduced below :— "Interest Rs. 27,000. Long time ago, the Coy. borrowed Rs. 3,00,000 from two minor share-holders to meet business exigencies. The money was never returned to them, it has remained with the coy, and interest is being paid on it @ 9% per annum. During the year under assess­ ment the assessee had huge surplus cash which remained deposited in the bank in fixed deposits, yet the money borrowed was never returned to the creditors, although the FDR's fetched only 44% under assessee paid 9% to the creditors. Asked to explain the reasons of this payment of interest on the unneeded money borr­ owed, the learned counsel, in his reply dated 22-11-71 only relied on the past history of the case. The argument is of no avail, as wrong allowance in the past is no justification for an inadmissible claim. The interest has been paid for considerations other than business. \o prudent businessman would borrow capital at an interest rate of 9% only to invest in Bank Fixed Deposits yielding only 41%. Disallowed Rs. 27,000." Relevant it would be to point out here that the Income Tax Officer for the assessment >eur 1968-69 had disallowed payment of interest on the borrowed capital inter alia for the reason that the assessee had Rs. 12 lacs surplus cash which it kept invested in the bank in fixed deposit fetching interest at 4'; , p. a. only instead of utilising it in returning the capital borrowed (Rs. 3 lacs) on which interest was paid at 9% p. a. According to the ITO no prudent businessman would do that. (ii) The assessee aggrieved by the order passed by the Income Tax Officer as above disallowing interest paid to the creditors for the reasons reproduced above filed an appeal (1TA No. 7018/1971-72) before the Income Tax Appellate Tribunal which by its order passed on 30th April, 197? allowed the same and thus vacated the order of the Income Tax Officer inter alia on the ground that the disallowance of interest was contrary to the past history of the assessee, that the Income Tax Officer is no judge of the reasonableness of the interest and that he was little justified to bold inferentially that the debt was not for the business pur­poses. It was further held : — "Merely because the rate of interest paid by the assessee in the opinion of the Income Tax Officer was higher was not conclusive to hold that it was not for the business purposes. In the circum­ stances we are persuaded to hold that the debt in the question was purely for business purposes and the department had them­ selves allowed the same in the last ten years. Consequently the appeal is accepted and the order of the Income Tax Officer is vacated." (The under lines have been made by me). (iii) Application under Section 66(1) of the Act was then made by the Commissioner of Income Tax (Central Zone, Karachi) in the High Court and was registered as ITC No. 288/74. In the said case the follow­ ing question of law arising out of the order of the learned Tribunal came up for consideration :— "Whether on the facts and in the circumstances of the case the tribunal was justified in allowing the amount of interest payable to the two amount share-holders,'' The said case was heard by a learned Division Bench of this court consisting Mr. Justice Ajmal Mian (as he then was) and Mr. Justice Tanzilur Redman. After referring to the cases of Amina Bai Hajee Essa v. Commissioner of Income Tax, Madras [(1964) 51 1TR 835], Commissioner of Income Tax v. Fateh Alt Co. (1984 PTD 341) and Commissioner of jHere in italics] Income Tax (West) Karachi v. Adamji Sons, Karachi (1984 PTD 390) in the opinion of the Court delivered by Ajmal Mian J. it was held :— "It may be observed that Section 10(2)(iii) does not specify any condition as to the entitlement of deduction of interest from the profit and loss account, and, therefore the learned Income-tax Tribunal was justified in granting the deduction for interest paid to the minor share-holders as the factum of borrowing of the amount was not disputed by the department. In this view of the matter our answer to the above question is in the affirmative, but there will be no order as to costs." 3. (i) For the subsequent assessment years 1969-70, 1970-71, 1971-72 the assessee claimed the payments made as interest to the same creditors, at the same rate 9%p a. on the same capital borrowed for the purposes of business which amount had remained outstanding. The Income Tax Officer, however, rejected the claims for the same reasons recorded in the order passed lor the assessment year 1968-69. Reasons recorded for dissallowing the claim in the order passed for assess­ ment years 1969-70 (which were relied in orders while making assessments for 1970-71 and 1971-72 are reproduced below :— "Interest - Rs. 27,000 ;— Facts regarding disallowance of interest on money borrowed by the assctsee company have been discussed at length in the asstt : order for 1968-69. During the year under con­sideration also the assessee has paid interest to Mr. R D. Mahtani and CH. Mahtani Rs. 13000/- each. The assessee had surplus cash which remained deposited in the Bank in the fixed deposit yet the money borrowed was never returned to the creditors although the F D. rupees fetched only 4£% interest whereas the assessee has paid 9% interest on the money" sorrowed. Some explanation as in the last year, has been repeated by the counsel of the assessee, keeping the past history in view interest paid at Rs. 27,0^0/- will be disallowed like iast years...27,OOG/-". (//) Appeals were preferred by the assessee against the above orders but the learned Appellate Tribunal dismissed the same by order passed on 12-12-1976 with the following observations : — "The Income Tax Officer could not believe that this could be a business loaa also on the ground that no prudent business man would keep a loan and pay interest at 9% when he was receiving back from the bank for fixed deposit interest only at the rate of 4i%. It was not the rate of interest which was the subject told inspite bat the very loan itself or the advisibility of having the loan when it could be repaid as the creditors were share-holders. It was difficult to inagine why the loans were not being repaid. In the assessment year 1968-69 a similar disallowance had been made but the Tribunal in ITA No. 7018/1971-72 had deleted the dis. allowance on the ground that the Income Tax Officer was no judge of the reasonableness of the interest nor was he justified in holding that the debit was not for business purposes merely because rate of interest paid by the assessee in the opinion of the Income Tax Officer was higher. We have given our thoughtful cossideratioo to the Tribunal's order and found tast the disallowance was deleted on the ground that the Income Tax Officer was no person to judge the reasonableness of the rate of interest and without basis to regard the loan as a loan not for business purposes We however felt that if the business can be carried on even after depositing Rs 8,65,000/- in 1971-72 and Rs. 4,lj,OUO/- in the years 1969-70 was needed by business for the purpose of business, In such circumstances we are constrained to hold that the loan did not remain loan for purposes of business for the years under review and hence uphold the disallowance of the interest paid to the share-holders." (iii) The assessee made an application on 25-2-1975 under Section 66(1) of the Act (as it then stood) and prased that the Tribunal may refer the question of law reproduced above, for adjudication by the High Court. This application however was rejected by order passed on 10-2-1976. 4. In the above circumstances the assessee moved the three applications under Section 66(2) of the Act of 1922 in this Court and prayed that the common question which has arisen in ail the three references, may be decided/answered according to law. 5. A perusal of the 'Statement of Facts' submitted by the Com­ missioner of Income Tax in ITC No. 288 of 1974 and the judgment of learned Division Bench in that case in my bumble opinion that the facts involved in the present cases as well as the earlier case (ITC No 2s8 of 1974) are identica'. The reasonableness of the interest paid and the fact that the amount was borrowed for the purposes of business stood settled not only by the learned Income Tax Appellate Tribunal by its order given in ITC No. 7018 of 1971-72 but also by the learned Division Beach of ?his Court by judgment delivered on 5 11-1984. The Income Tax Officer as well as the Tribunal after the question had been answered in ITC No. 288/74 could not have taken a different view particularly when the facts continued to remain the same/identical. If the departmental authorities were not satisfied the only course open to them was either to have preferred an appeal before the Honourable Supreme Court against judgment given in ITC 288/74 or by referring the question to this Court by filing appropriate application in accordance with the law. 6. To me it appears that without any material on record and against the past history of the loans borrowed by the assessee company for its business on which interest was paid at the same rate to the same creditor inspite of available cash surplus invested in Fixed Deposit account, the tribunal could not have acted suo moto without any material and justiSca tion in disallowing claim under Section I0( ; ) (iii) by inference drawn on mere surmises that the loans did not remain loans for purpose of business for the years under consideration. The findings of the tribunal are against the statutory provisions contained in Section 10(2) (iii) of the Act which provide for allowance of interest in respect of "capital borrowed for the purposes of business." The tribunal as well as Income Tax Officer nowhere held that the amount borrowed from the two share-holders was not capital borrowed for purposes of business. The observation of the tribunal that how it can be thought that Rs. 3 lacs was needed for the purposes of business if the business be carried on even after depositing Rs. 8,65,000/- in 1971-72 and Rs. 4J5.000/- in the years 1969-70 and that in such circumstances the loan did not remain loan for purposes of business, my opinion are not only against the past history of the case, but are also KJbased upon mere surmises. It is not for the revenue authorities to decide [for the assessees or guide them as to how the investment be made by them. 7. In the light of the above discussion keeping in view the judgment of my learned brother Mr. Justice Ibacat Yar Khan in the present case and that given by the learned Division Benah in 1TC No. 288 of 1974, I am of the opinion that this case may be placed before a larger Bench to decide the question which has been raised. ORDER This case may be placed before the Honouarable Chief Justice for constituting a larger Bench, for hearing. Saeeduzzaman Siddiqui, J. — The above noted three Income-tax References have been placed before me as a result of difference of opinion between the two learned Judges of a Division Bench of this court (K. A. Ghani and Ibadatyar Khan JJ ) on a question referred, to this Court under section 66 (2) of the Income-tax Act. In these references which were filed directly by the applicant under section 66 (2) of the Income-tax Act, 1922 and related to assessment years 1969 70, 1970-71 and 1971-72 the following question was referred for opinion of this court :— "Whether the learned Income-tax Appellate Tribunal misdirected itself in law in disallowing interest payment of Rs. 27,000/- ?" For the assessment years under review of Income-tax Authorities disallowed the claim of applicant for deduction of interest paid by it to two minor shareholders of the company on the borrowed capital from the profits and gain of company under section 10 (2) (iii) of Income-tax Act on the ground that during these years the assessee had surplus funds which remained deposited in bank in fixed deposits fetching only 44-% interest yet the money borrowed was never returned to the creditors and the assessee paid 9% interest thereon. One of the learued Judges of the Division Bench (Ibadatyar Khan, J.) took the view that since the assessee had already fat capital in his baUncs sheet which was readily available for being employed in any business during the-assessment years under review it was hardly prudent on the part of the assessee to have allowed his own funds to remain unproductive and go about begging for funds to feed the business requirement and as such the Income-tax Authorities rightly disallowed the claim of applicant in respect of interest paid on the borrow­ed capital and accordingly answered the above references in the negative. The other learned member of the Division Bench (K. A. Ghani, J.) was however, of the opinion that from the statement of the facts submitted by the Department in a previous Income-tax Reference No. 288/74 in respect of the same assessee and the judgment of this court in that case, the reasonableness of the interest paid and the fact that the amount was borrowed for the purposes of business, stood settled and as there was no material on record against the past history of the case the claim of the assessee/applicant for deductions under section 10 (2) (iii) in respect of the interest paid on the borrowed capital could not be disallowed. I have heard Mr. Iqbal Naeem Pasha for the applicant and Mr, Shaikh Haider for the department at length. On a careful reading of section 10 (2) (iii) of Act XI of 1922 and after considering the case law cited at the bar I am of the view that in order to entitle an assessee to claim deduction of interest paid on the borrowed capital under section 10 (2) (iii) of the Act from the profits and gains he has only to show, that he had borrowed the capital during the assessments years, that the borrow ed capital was for purposes of business, profession and vocation of the assessee and that the assessee had paid the amount of interest on the borrowed capital which he is claiming as a deduction under section 10 (2) (iii) of the Act. If the assessee succeeds in establishing these facts the Income tax Authorities will allow the deduction claimed by the assessee under section 10 (2) (ni) of the Act. Any further enquiry by the Income-tax Authorities in this regard to find out whether the act of borrowing by the assessee was prudent or not or there existed any necessity for the assessee to indulge in such borrowing or not or that the interest paid on the borrowed capital was reasonable or not, in my humble opinion is neither permissible nor come within the scope of the above section. In the cas. before me it is an admitted position that there was no fresh borrowing by the assessee for the years under review. It is quite clear from the facts on record that the assessee had borrowed the disputed capital during the assessment year 1939-60. It is also an admitted position that until the assessment year 1968-69 the interest paid by the assessee on the above borrowed capital was allowed by the Department consistently under section 10 (2) (iii) of the Act. However, for the first time in the assessment year 1968-69 (ending 30th Sept., 1967) the Income-tax officer disallowed the interest claimed by the assessee by his order dated 6 12-1971. A read­ ing of the order dated 6-12-1971 will show that the claim of the applicant for deduction of interest on borrowed capital under section 10 (2) (iii) of the Act was disallowed by the Income-Tax Officer on the ground that the capital was borrowed by applicant long ago and inspite of the fact that the company dow had surplus capital which is kept deposited in F. D. R. fetching an interest only 44° 0 the assessee bad failed to return the borrow­ ed capital and continue to pay interest at 9% per annum. The above order of the Income-tax officer was, however, set aside by the Income-tax Appellate Tribunal on appeal, as the learned Tribunal took the view that merely because the interest paid by the assessee was in the opinion of the Income tax officer higher was not conclusive to hold that the capital was not borrowed for the business purposes. The department then brought the matter in a reference before this court which was decided by a Division Bench of this court and it was held that as section 10 (2) (iii) did not specify any condition as to the entitlement of deduction of interest, therefore, the learned Income-tax Tribunal was justified in allowing the deduction under the relevant section as the factum of borrowing of the amount was not disputed by the Department. From the above resume of the fact "it is quite clear that interest on borrowed capital was allowed under section 10 (2) (iii) of the Act by the Income-tax Authorities from 1959 upto the assessment year 1968-69 in favour of applicant without objection. That claim for such de­ duction was disallowed by Income-tax Authorities for the first time in the assessment year 1968-69 and the grounds for disallowing deduction were firstly, that the assessee had a surplus amount which it had kept in F. D. R. where interest was paid only 4%% whereas the assessee was pay­ing interest on borrowed capital at 9% to the creditor$ and secondly that nspite of having a surplus the assessec had failed to return the amount of loan. None of the above reasons given by the ITO in disallowing the deduction under section 10 (2) (iii) of the Act were found sufficient by the Income-tax Tribunal which allowed these deductions in favour of appli­ cant for the year 1968-69 and the order of Income tax Tribunal was upheld in ITC No. 288/74 by High Court. The grounds on which the Income-tax Officer once again disallowed the claim of the applicant for deduction of interest paid on the borrowed capital from the income for the assessment years 1969-70, 1970-71 and 1971-72 are produced in the order of my learn­ ed brother K. A Ghani, J. and for the sake of convenience 1 reproduce the same here. It is as follows ; — "Interest = Rs. 27,0001- Facts regarding disallowance of interest on money borrowed by the assessee company have been discussed at length in the asstt. order for 1968-69. During the year under consideration also the assessee has paid interest to Mr. R. D. Mahtani and C. H. Mahtani @ Rs. 13,000/- each. The assessee had surplus cash which remained deposited in the Bank in the fixed deposit yet the money borrowed was never returned to the creditors although the F, D. rupees fetched only 4^% interest whereas the assessee has paid 9% interest on the money borrowed. Some explanation as in the last year, has been repeated by the counsel of the assessee, keeping the past history in view interest paid at Ri. 27.000/- will be disallowed like last year ... 27,000/- I have carefully examined the above reasons given by the income tax officer for disallowing the claim of applicant for deduction of interest paid on borrowed capital from income for assessment years 1969-70, 1970-71 and 1971-72 and J am unable to find anything new in the above order which could justify the disallowance of this claim of applicant. It will be seen that once again the reason which prevailed with the income tax officer for not allowing the above claim of the applicant were that the assessee had surplus cash which remained deposited in the bank in fixed deposit yet the money borrowed was never returned to the creditors although the F. D. R. fetched only 4^% interest whereas the assessee had paid 9% interest on the money borrowed. The above reasons given by the income tax officer for disallowing the claim of the assessee for the assessment years under review are substantially the same which were given in respect of the assessment year 196«-6y and which were not found sufficient by the Income-tax Appellate Tribunal as well as by this court in ITC No. 288/1974 to uphold the order of income tax officer. The above reasons given by the income tax officer for disallowing the claim of deduction of applicant under section I0(2)(m) of the Act at best amounted to a finding that the act of borrowing by the assessee f y the Income-tax officer or by the Income-tax Appellate Tribunal mat iae money which was initially borrowed by the company in the year 1959 for the business purposes was not applied for business purposes for the assessment years under review. In the case of Commis­ sioner of Income-lax Bombay City v. Bombay Satnachar Limited [(Vol 74) 1969 1TR 723] it is heid that the conditions required to be satisfied in order to enable the assessee to claim deduction in, respect of the interest on borrowed capital under section 10 (2) (iii) are; firstly that money must have been borrowed by the assessee; secondly, it must have been borrowed for business purposes and thirdly the assessee must have been paid interest on the said amount and claimed as a deduction. It is further held that it is not the requirement of the law that the assessee must further show that the borrowing of the capital was accessary for business purposes so that if at the time of borrowing the assessee had sufficient amount of its own, the claim for deduction could not be allowed under section 10 (,.; (iii) of the Act. The assessee in the above cited case had advanced loan to another company on which it was not charging any interest whereas it was paying interest to its own creditor on the borrowed money The claim for deduc. lion of the interest paid by the assessee to its Creditor was disallowed for some years by the Income-tax Tribunal on the ground that since the assessee had advance its own fund to other person on which it was claiming no interest it was not entitled to the claim of the deduction of the interest oq the money borrowed by it from its creditors. The order of Income-tax officer was confirmed by the Appellate Assistant Commissioner in appeal who took the view that to the extent of the capital which the company bad advanced to the other company the borrowed capital must be taken to have been diverted and interest paid on that amount borrowed by the assessee could not therefore be allowed under section 10(2)(iii). On a further appeal before the Tribunal the Tribunal allowed the interest claimed by the asessee on the entire amount an^ on a reference before the High Court of Bombay the order of Income-tax Tribunal was upheld. The following observations of the High Court of Bombay in the above case may be reproduced here with advantage :— "As we have already pointed out, it is undisputed that the amounts borrowed from outsiders on which interest hs been paid have been used for the purpose of the business of the assessee. It appears to have been the view of the Income-tax Officer that if the assessee had collected the outstandings which were due to it from others, it would have been able to reduce its indebtedness and thus save a part of the interest which it had to pay on its own borrowings. The assessee, therefore, was not justified in allowing its outstandings to remand without charging any interest thereon while it was paying interest on the amounts borrowed by it. To the extent, therefore, to which it would haye been in a position to collect interest on the outstanding due to it from others, it could not be permitted to claim interest paid by it to outsiders. In our opinion the view taken by the Income-tax Officer is ciearly unsustainable. As has been pointed out by the Madhya Pradesh High Court in Ram Krishan Oil Mills v. Commissioner of Income-tax the only conditions required to be satisfied in order to enable the assessee to claim a deduction in respect of the interest under section 10(2j(iii) are firstly, that money must have been borrowed by the assessee; secondly, it must have beet) borrowed for the purpose of business and, thirdly, the assessee must have oaid interest on the said amount and claimed it as a deduction. It is not the requirement of the pro­ vision that the assessee must further show that the borrowing of She capita! was necessary for the business so that if at the time of borrowing the assessee had sufficient amount of its own, the deduction could not be allowed. Similarly, the Madrass High Court in Amna Bai Hajee Issa v. Commissioner of Income-tax has held that in deciding whether a claim for interest on borrowing can be allowed the fact that the assessee haa ample resources at its disposal and need not have borrowed, is not a relevant matter for consideration Th; matter to be decided is whether the amount of interest was paid in fact in respect of the capital bor­ rowed for business.' 1 Similarly in the case ot Caiaco Dyeing and Priming Works v. Commissioner of Income-tax [(Vol. 34) 19.^8 1TR 265)] claim of the assessee was disallow­ ed by the Department on the ground that the plant and machinery were not used for business purposes in the accounting year under consideration. While laying down the requirements which are to be established by an assessee to entitle him to claim deduction of interest under section 10(/} (iii) of the Act the learned Judges in the above case observed as follows at page 270 of the report : — "Before we look at the authorities, it would perhaps be best to turn to the section itself, and the deduction which is permissible under section 10 (2) (iii) is "in respect of capital borrowed for the purposes of the business, profession or vocation, the amount of the interest paid". Now it will be noticed that the sub-sectsua makes no distinction between capital borrowed in order to acquire revenue asset and capital borrowed to acquire a capital asset. All that the section requires is that the assesssee must bor­ row the capital and the purpose of the borrowing must be for the business which is carried on by the assessee in the year of account. The capita! must be born for the purpose of no other business except roe business which is being assessed. Now, when wr look at the other sub-clauses of section 10 (2), it is clear that the underly­ ing idea of these sub-clauses is that tbc.particular deduction claimed must be in relation to the business which is referred to in sub­ section (1) of section 10, that is, the business in respect of which tax is payable by an assessee. In the same case while repelling the contention of the Department in this behalf the learned Judge further observed at page 272 of the report as follows :— "Therefore, in order to determine whether capital has been used for the purpose of the business, it is not open to the Taxing Department to reject the claim of the assessee in respect of interest paid on that capital merely because the use of the capital is unremunerative. That really, in short, is the contention of Depart­ ment. The Department says that the assessee has borrowed capital, it has used capital in putting up plant and machinery, plant and machinery is not working, and, therefore, no profit is received from the plant and machinery." In yet another case reported as Rajkashan Oil Mills v. Commissioner of Income-tax UP. [(Vol. 56) 1965 ITR 186] the learned Judges of the High Court of Madhya Pradesh held that the requirement of sec­ tion 10 (2) (iii) of the Income-tax Act is only to the extent, firstly, that the money must have been borrowed by the assessee ; secondly, it must have been borrowed for purposes of business or vocation of the assessee and thirdly, the assessee should have paid this amount before claiming deduc­ tion under the aforesaid section. It is further observed in this case that the above section does not provide that for the purposes of business the borrowing of capital should have been necessary so that if at the time of the borrowing the assessee had sufficient money ot his own to invest in the business then the deduction cannot be allowed. In a recently decided case by our Supreme Court reported as Commissioner of Income-tax Lahore Zone v. Shaikh Muhammad Ismail and Co. [(1986) 53 Tax 122 (SC Pak)J the claim of the assessee for deduction of interest paid to the bank on the overdraft was disallowed by the income-tax Authorities on the ground that the loans taken by the company were directed to the Managing Director who utilized the money on his personal account and it was held that such interest could not be claimed as interest on capital borrowed for purposes of business of the company. The order of Income Tax-officer was confirmed in appeal by the Appellate Asstt : Commissioner but on a further appeal the Tribunal deleted the addition and allowed total interest claimed by the company by way of deduction. The matter was then brought to the High Court by the Department and it was held by the High Court that the Tribunal rightly deleted the addition made by the Income-tax Officer. Thereafter, the matter was finally brought before the Supreme Court but the appeal was dismissed and it was held as follows :— "It seems that according to the above provision an assessee is free to carry on a business with his own capital or from money borrowed from any bank or other financial institution and it is only in case where the assessee chooses to run bis business with borrowed capital that he would be entitled to deduction in respect of amount paid for and on account of interest. Thus, the only eventuality which might disentitle an assessee to claim deduction of the whole or any part of interest is where the amount is not shown to have been used as capital in the business carried on by the assessee. In this case, the entire account including the cash books and the bank accounts were before the Income Tax Officer who completed the assessment under sub-section (3) of Section 23 but he failed to show that any part of the borrowed money was not used in business and was diverted to the personal use of Mian Aziz A. Sheikh. Indeed, a finding of fact has been recorded by the Tribunal that the whole of the capital which was borrowed was used for the purposes of the Company. It appears that no provision exists in the Income Tax Act, 1922 to prevent a company from advancing money to a Diretor or shareholder which could operate as a bar to the making of advances by companies to their Directors In order to overcome this lacuna a provision has been made in the new Income Tax Ordinance, 1979, namely, clause (7) of Section 12 which provide... In view of above discussion I am quite clear in my mind that in the above cases in the absence of a finding by the Income Tax Authorities to the effect that the borrowed capital by the assessee was not utilized for the business purposes, the claim of the assessee for deduction of the interest paid on the borrowed capital could not be disallowed under sec tion 10 (2) (iii) of the Act. [ accordingly agree with the conclusion of my learned brother K. A. Ghani, J. and answer the question referred to the court in the above References in the affirmative. There will be no order as to costs. (TQM) Reference answered accordingly.

PLJ 1987 Karachi 203 PLJ 1987 Karachi 203 Present : syed abdur rahman, J PAKISTAN RAILWAYS—Petitioner versus KHURSHID ALI and Others—Respondents Const. Petition No. 125 of 1981, dismissed on MO-1986 (f) Payment of Wages Act, 1936 (IV of 1936)— Ss. 15 & 17 read with Constitution of Pakistan, 1973—Art. 199 — Authority—Direction by — Appeal against — Claim of respondent allowed by authority under Payment of Wages Act—Appeal against such direction also dismissed by Labour Court on ground of amount allowed having not been deposited by employer before filing appeal— Held : Amount awarded to poor lampman (in case) being not very big, High Court not to interfere with finding of Labour Court in exercise of its constitutional jurisdiction. [Pp. 305 & 206JB & C (ii) Labour Court—

Decision by—Challenge to—Different and inconsistent view taken by Labour Court in other cases [under Payment of Wages Act, 1936 (IV of 1936)]— Held : Such fact (alone) to be no ground for setting aside impugned order (by High Court in exercise of its constitutional jurisdiction). [P. 205]A Ch. Rasheed Ahmed, Advocate for Petitioner. Mr. M. A. Sayeed, Advocate for Respondent No. 1. Date of hearing : 1-10-1986. judgment This Constitution Petition is directed against the order of Presiding Officer Labour Court No. VI dismissing the appeal of the petitioner on the preliminary ground that the amount was not deposited with the Authority as required by proviso to clause (a) subsection (1) of S. 17 Payment of Wages Act, The respondent No. 1 is working as a lampsman at the Kotri Railway Station. On 18-2-1981 the respondent No. 2 who is Commissioner Workmen's Compensation & Authority under Payment of Wages Act allowed claim of Respondent No. 1 for total sum of Rs. 30,030.OU/-. The petitioner was directed by respondent No. 2 to deposit this amount for payment to respondent No. 1. This was also stated to be the require­ ment of law as well for which the proviso to clause (a) of sub-iection (1) of Section 17 was referred to which reads as under : — "Provided that no appeal under this clause shall lie unless the memorandum of appeal is accompanied by a certificate of the authority to the effect that the appellant has deposited with the authority the amount payable under the direction appealed against or." The respondent No. 3 was of the view that since the amount was deposited by cheque and not in cash therefore it was not deposited within the meaning of the above proviso. In support of its view the respondent No. 3 placed reliance on the case of Badshah Khan v. PECO Limited reported in 1979 PLC 310 which was cited by the counsel of the respon­ dent No. 1. The relevant citation is as under :— "From the perusal of the record 1 find that alongwith the memorandum of appeal a certificate dated 13-12-1976 of the Authoiity under the Payment of Wages Act was appended which is to the effect that a cheque for the amount had been received. The said certificate did not say that the amount had been deposited as required under law. It is well established that if law prescribed a particular mode of doing an act, it must be done in that mode to gain validity." Mr. M. Asghar Jamil the Chairman of Labour Appellate Tribunal who had given above ruling supported this view by referring to the following cases. The case of Col. Bashir Hussain and 10 Others v. Land Acquisi­ tion Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lahore 521) where it was held : — "It is an accepted principle of law that if a statute requires some­ thing to be done and also prescribes the modes for doing it, the requirement of law can be fulfilled by doing the act, in the manner prescribed." In the case of Nazir Ahmad v. King-Emperor (MR 1936 PC 253) it was observed : — 'The rule which applies a different and not less well-recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at allother rnetiiods of performance are necessariiy forbidden," In the case of Ghulam Abbas v. State (PLD 1968 Lahore 101) it was held : '-It is wel! settled that there a power is given to a particular person to do a certain thing in a certain way the thing, must be done in that way or no? at all ; other methods of performance are necessarily forbid-der ". In the case of Muhammad Snarij \, Sfi. Muhammad Rafiq Settlement and Rehabiliiaiion Commissioner Lahore and 2 others (PLD i968 Lah. 263) it was held : — "That when a particular act is directed by the legislature to be done in a particular manner it should be done by that and that manner alone." In the case of Chairman Evucuec Trust Property, West Pakistan Lahore v. Muhammitl Din and others (PLD 1971 Lah 211). It was held :— "Whenever a statute limits a thing to be done in a particular manner it necessarily includes in self, a negative, viz., that the thing shall not be done otherwise." Mr. Ch. Rasheed Ahmed, who appeared for the petitioner has con­ tended that it was a practice with the Railway that the amount was deposited through a cheque and not in cash. He has referred to two judgments of Mr. Mukhtar Ahmed Junejo the same Presiding Officer of the Labour Court one f which was reported in 1982 PLC 408, where the appeal was accompanied by a certificate that the amount was deposited within 30 days by way of a cheque with the authority which had accepted that cheque and presiding officer of the Labour Court had considered the deposit as valid. I have gone through the decisions. The mere fact thatj a,different and inconsistant view had been taken by the respondent No. 3 in other cases cannot be advanced as a ground for setting aside his ira-j pugned order, Mr, Rasheed Ahmed has also cited the case of Hanifullah reported in 1984 PLC 1654 which is a decision of this court wherein my brother Mr. Justice K. A, Ghani had held that where the cheque for requisite amount was deposited within the period of limitation and accepted by the autho­ rity but encashed after expiry of the limitation period and certificate issued by Authority was deposited by the appellant on the same date, in the Labour Court, the argument that appeal is time barred, was not valid. The finding of the Labour Appellate Tribunal to that effect even if alleged to be erroneous was refused to be interfered wjth by the High Court in constitutional jurisdiction. This ruling is also distinguishable from the facts of the present case, because it has been held clearly that such finding even it was erroneous cannot be interfered with in the constitutional jurisdiction. The respondent No. I is poor lainpsrnan and the employee of Railway, The sum nwarded to him is not a very big amount I, therefore do not propose to interfere with the finding of the respon-Jdeni No. 3 in the constitutional jurisdiction of this court, which is an "iequitable jurisdiction as well, even if it is erroneous. The constitution •petition is therefore dismissed, Petition dismissed.

PLJ 1987 Karachi 206 PLJ 1987 Karachi 206 Present : saeeduzzahan siddiqui, J ABDULLAH—Appellant versus HIGHWAY GOODS TRANSPORT, Young Husband Road, Kharadhar, Karachi—Respondent First Rent Appeal No. 41 of 1983, dismissed on 1-10-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 5—Landlord and tenant—Agreement between—Protection of—­ Tenancy agreement of date prior to enforcement of Ordinance plead­ ed in case—Held : Such tenancy to be saved under proviso to S. 5 of Ordinance. [P. 208JA (ii) Sind Reated Premises Ordinance, 1979 (XVII of 1979)—

S- 15 (2) (i) & 21—Eviction — Default — Ground of — Tenancy enjoyed by tenant found to he statutory one after expiry of agree­ ment of tenancy—Held : Rent having been paid within sixty days of its becoming due, tenant not to be defaulter in payment of rent. [P. 209]B Mr. H. A. Rahman, Advocate for Appellant. Mr. U. Niamat Moulvi, Advocate for Respondent. Dates of hearing : 1, 3 & 8-9-1986. judgment This appeal under section 21 of the Sind Rented Premises Ordinance. 1979, is filed by the appellant/landlord against the order of the Rent Controller dated 13-12-1982, passed in Rent Case No. 5237 of 1980. The Rent Controller by the impugned order dismissed the ejectment application filed by the appellant against the respondent on the ground of default in payment of rent and damage caused to the property which allegedly materially reduced the utility of the premises. The learned counsel for the appellant has pressed this appeal only on the ground of default in payment of rent. It is urged by the learned counsel, that the rent in respect of the premises was payable in advance under the written agreement of tenancy which was by mutual agreement of parties continued to be applicable even after its expiry and as such the Rent Controller was in error in holding that the rent could be paid within sixty days of its becoming due after expiry of the written agreement of tenancy, as provided under the Statute. in the eviction application the appellant alleged default for the months April and May 1980. The rent for these months was remitted by money order by the respondent on 31-3-1980. Tbe contention of the appellant before the Rent Controller was that the real for Aprs! and May could be paid by the 16th of these months as according to agreement of parties the rent was payable on she ist of each month according to English Calendar. In order to establish that the rent in respect of the premises was payable in advance on first of each month, the appellant examined himself and produced in evidence the original agreements of lease dated 1st of October 1975 and ist of September 1976, copies of the letters dated 10-11-19/9 and 29th May 1980 sent by the appellant to respondent and reply of respondent dated 28th June 1980. In rebuttal the respondent examined one of his partners and an employee of the Firm, The Rent Controller after aaalysing the above evidence reached the conclusion that after expiry of lease d:ed dated 1-9-1976. the relationship between the parties as tenant and landlord was governed under the statute and as such the provisions contained in the expired agreement of lease for payment of rent in advance was no more applicable and as the rent for the defaulted months was sent within sixty days of the same becoming due, there was no default in payment of rent. The learned counsel for the appellant contends that there was enough material on record to establish that the rent in respect of the premises was payable on the first of every month and as such the Rent Controller wrongly held that remittance of rent on 31-5-1980 for the months of April and May was according to law. The learned counsel for the respondent in reply to the above contentions of appellant, firstly contended that any stipulation with regard to payment of advance rent cannot be enforced as rent becomes due under the law only after expiry of the month. It is next contended by the learned counsel that there can be no Implied agreement of tenancy between the parties after expiry of written agreement and in any case after enforcement of Siod Rent Premises Ordi­nance XVII of 1979. there could only be a written agreement of tenancy between the parties, in view of the provisions of section 5 thereof. It is lastly contended that there is no evidence on record to prove that after expiry of agreement of tenancy dated 1st September, 1976, any fresh agreement of lease/tenancy was executed between the parties and as such the tenancy between the appellant and respondent after expiry of the lease dated 3 st September 1976 was a statutory tenancy. Tbe tender of rent of the premises on 31-5-1980 for April and May 1980, it is accordingly contended, was according to law. In support of the contention that where the rent was contemplated fo be payable in advance the default in payment of such rent could not be enforced by filing an application under section 13 of the repealed Ordinance VI of 1959, the learned counsel referred to the eases of Muhammad Ashraf v. Muhammad Anwar (PLJ 1975 Peshawar 157) and Iltaf Hussain v. Talib Hussain (PLD 1977 Lab. 110). Similarly to support his contention that where the original agreement of tenancy had expired, he tenancy between the parties could only be a statutory tenancy, the 1 arned counsel referred to the cases of Muhammad Khawaja v. Abdul \tamad Sirajuddin (1986 CLC 1517) and National Bank of Pakistan v, jSshtiaq (1986 CLC 1975). I will first of all deal with the legal contentions raised by tbe learned counsel for the respondent before examining the case on merits. The first contention of the learned counsel for the respondent is that in view of tbe dictum laid down in Mohammad Ashraf and Ahaf Hussain s cases (PLJ 1978 Peshawar 157 and PLD 19">7 Lahore HO); any stipulation in an agreement providing for payment of advance rent cannot be enforced in an ejectment case under the Ordinance, 1 may only mention hsre tbat in view of the decision of Supreme Court in the case of Mohammad Baqar Qureshi v. Mst. Razia (PLJ 1980 SC 369= S981 SCMR 18) the decisions relied by the learned counsel stand over-ruled. The next submission of the learned counsel for the respondent is that in view of"section 5 of Sind Rented Premises Ordinance, 1979, there cannot be any oral tenancy between the parties. To support his contention the learned counsel has relied on the case of Habib Ahnad v. Liaquat Hussein (PLD 1985 Kar. 741). Apart from the fact that She decision in the case of Habib Ahmad has been dissented from by another learned Single Judge of this Court in a recently decided case of Mst. Fatima v, Mst. Hani fa (1986 CLC 1613) ; the case in hand is distinguishable on facts as the alleged agreement of tenancy pleaded in the present case was of a date prior to the enforcement of Ordinance XXVII of 1979 and as such is saved under the proviso to section 5 of the Ordinance. The iearned counsel for the respondent also contended that in addition to the provisions of section 5 of Ordinance XXVII of 1979, there also could not be any implied agree­ ment of tenancy between the parties after expiry of the written agreement in this behalf in view of the decision in the case of Mohammad Yousuf v. Ahdullah (PLD 1980 SC 298) ; Relying on the same decision, the learned counsel for the appellant contended that after expiry of a written agree­ ment of tenancy, the parties may either expressly or implied!v agree that their relationship shall continue to be governed under the expired agree­ ment. It is not necessary to decide this contradictory here, 35 after examining the merits of the case, I am of the view, that there is no evidence on record to establish that the parties had agrssd that they shall continue to be governed under th; old agreement after its expiry. It is an admitted position that the premises was initially let out under an agreement of tenancy dated 1st Ssptsmbar, 1975 which was for a period of eleven months. After expiry of this agreement, another agreement dated 1st September 1976 was executed between the parties which amongst others provided as follows :--• "AND whereas on the verbal request of the LFsstE the lessor has agreed to continue the iease with effect from l-9-7n for a further period of eleven months e\p>»og on 3!-"i9?7 .-;•!' the aforesaid premises on the terms and conditions mentioned berembeiow." A reading of the above stipulation in the agreement will show that, firstly, the lease agreement was renewed at the request of lessee from 1-9-1976 and secondly, it was renewed only for a penod of eleven months and expired on 31 7-1977, There is nothing in the lease agreement dated 1st September 1976 to show that the parties intended that after its expiry it will be renewed for any further period. On the contrary the lease agree­ ment specifically mentioned its expiry date, namely 31-7-197". The learned counsel for the appellant, contended that after the expiry of the above lease the appellant sent letters dated 10-11-1978 and 29th May 1980 asking the respondent to pay the rent of the premises in advance and agree to continue as tenant of the premises under the expired agreement of tenancy and by his conduct the respondent agreed to it as he sent rent for one month in advance It is tru<; that in the two Setters referred to above, the appellant had asked the respondent to continue as tenant on the terms and condition of expired agreement of tenancy in the premises but respondent refused to agree to the above offer as is evident from his reph dated 16 th him 1980, written in response to appellant's letter dated 29-5-1980. The fact that on one occassioo the respondent remitted rent ia advance, io these circumstances, cannot be treated as his agreement to continue to ! be governed under the expired agreement of tenancy. It is not disputed: by the learned counsel for the appellant that if the tenancy is found to be a statutory tenancy under the provisions of section 15 of the Ordinance. 8 then there was no default on 'he part of the respondent io payment of rent. After going through the evidence of the parties I am satisfied that the Rent Controller rightly heid that after expiry of the agreement of tenancy dated I-9-I976. the tenancy enjoyed by the respondent was statu­ tory tenancy and as such there was no default in payment of rent. No case for interference is made out, the appeal is accordingly dismissed but there will be co order as to costs. ,'MIQ) Appeal dismissed

PLJ 1987 Karachi 209 PLJ 1987 Karachi 209 Present : sysd haider ali pirzada, J Mil, AKHTARJ BEGUM—Appellant versus MUHAMMAD QASIM—Respondent First Rent Appeal No. 1127 of 1982, allowed on 21-10-1986 (i) CiYil Procedure Code, 1908 {V of 1908}-—

O. VI, R. 2 — Pleadings—Contents of — Held : ingredients of any fact on which plaintiff/defendant wants to rely to be essentially pleaded in pleadings, [Pp. 2M& 212]B (ii> Sind Rented Premises Ordinance, 1979 fXVfi O f 1979) — — —S. 15—Eviction—Application for—Reply to—Plea not raised in — Effect of—Held . No evidence to be led or looked into in support of plea not pleaded m pleadings. [P 21I1A (iii; Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 15—Eviction —Application for — Civil Procedure Code, 1908 (V of 1908)—Applicability of—Held ; All provisions of Code of Civil Procedure though not applicable to proceedings in applications for eviction under Ordinance,principles which be basis and foundation for administration of justice to be applicable to proceedings under Ordinance also. ;P. 2I2]C fir) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 15 (2) fvii)—Eviction—Persona! use — Landlord—Choice of— Held : Question of which one of premises to be appropriate premises for landlord to be matter exclusively left to him to decide — Held further : Application for eviction not to be dismissed merely on ground of other shops though lying vacant, landlady (in case) pressing for eviction oftenant from particular shop only. [P. 212 & 213JD (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— . 15 (2) (vii) — Eviction — Personal use — Ground of—Bona fide —Proof of—Held • Potential capacity to raise required funds (only) being important, existence of: ready money need not be proved to support bona fides. [P. 214JF (fi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15 (2) (vii)—Persona! me—Bona fides of—Finances — Availabi­ lity of—Relevancy of—Held : Landlady not to necessarily produce, evidence of availability of finances unless such plea be taken by tenant specifically in written reply necessitating recording of evidence on point. [P. 214]E («i) Sin Rented Premise Ordio- ace, 1979 (XVII of 1979)-

Ss. 15 (2) (vii) & 15A—Eviction — Personal use — Ground of — Complete safeguard provided to tenant by insertion of S. ISA in Ordinance—Held : Question of mala fide raised by tenant to lose much of its relevance. [P. 214]G Mr. S. Ishtiaq AH, Advocate for Appellant. Mr. Mansoorul Arfin, Advocate for Respondent. Dates of hearing : 1, 8 & 9-9-1986. judgment This First Rent Appeal is directed against the order dated 14-11-1982 passed by the Vlth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction apolication filed by the appellant. The facts giving rise tc this appeal are that the appellant is the owner and landlady of the building on plot No. 2/230, Commercial Area, Liaquatabad, Sarafa Bazar, Karachi and the respondent is tenant in respect of a shop No. 1 thereof at the monthly rental of Rs. 70/-. The appellant filed eviction application on the ground of personal requirement of her son. The respondent resisted the eviction application. The appellant filed affidavit-in«evidence of her husband and constituted attorney Abdul Aziz and his son Abdul Hafiz and one Ghalamali, In rebuttal the respondent filed his own affidavit-in-evidence besides the affidavit-in-evidence of Rana Maqbool Ahmed, Muhammad Younis and Muhammad Haroon. They were cross-examined by the learned counsel for the respective parties. _Th« Ua.rneH Controller after takina into consideration the evidence The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advaccd by the learned counsel for the parties dismissed the eviction application vide order dated 14-11-1982. The appellant being aggrieved against the order dated 14-11-1982 of the Vlth Senior Civi! Judge/Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal, Mr. S Ishtiaque Ali, the learned counsel for the appellant has raised the following contentions : — (1) The learned Controller erred in accepting the plea railed by the respondent in his evidence and without pleading in written statement that the appellant is allegedly in possession. (2) The learned Controller has gravely erred in law and totaliy ignored the evidence of the appellant. On the other hand Mr. Mansoorul Arfin the learned counsel for the respondent has submitted that the provisions of Code of Civil Procedure are not applicable in rent proceedings. The learned counsel for the respondent has submitted that the learned Controller is right in holding that the evidence on record does not prove sufficiently that the shop in question is required in good faith for the use and occupation of the appel­ lant's son for establishing a jewellery shop. Reverting to the first contention of the learned counsel for the appellant that the Controller erred in accepting the plea raised in evidence. The respondent's pleadings in this regard are contained in paras 4 and 9 of the written statement which are in the following terms :— "That the contents of para 4 of the application are denied. The good faith of the applicant in this regard is denied It is submitted that the applicant demanded exorbitant increase in the rate of rent from the opponent of the shop/premises to the extent of Rs. 450/- p.m. from Rs. 70/- p.m. and also a substantial sum of pagree. The opponent did not agree with the unreasonable demand of the applicant as the same was arbitrary and unreasonable demand. The applicant therefore becams infuriarated and filed as a result, the instant case mala fide and in bad faith. That the contents of last un-numbered prayer para of the application are false and without any base. Therefore, the same are denied in its entirety. It is submitted that the application has been filed in bad faith, with ulterior motive and simply to extort a substantial amount of pagree amount which has been quoted at a very high good will amount. The applicant, therefore, has become greedy and therefore has been resorting repeatedly to futile litigation so that his ulterior object may be obtained. Even other­ wise the application has no merits or any legal base as the applicant or his son has ever stated or demanded from the opponent the premises in the case in the applications already filed and disposed". A perusal of the aforesaid pleadings would indicate that the appellant demanded exorbitant increase in rent and the respondent did not agree with the unreasonable demand of the appellant as the same was arbitrary. The appellant became infuriated and filed the instant case. The respondent further stated that the appellant became greedy and therefore had been resorting repeatedly to futile litigation so that his ulterior object may ba obtained. Evidence was, however, led to establish the defence that two shops namely, Shama Jewellery and the other shop adjacent to it are lying vacant and in possession of the appellant for the last several months. This evidence evidently was irrelevant to the pleadings, for it was not the case of the respondent in his pleadings that these shops are lying vacant and are in possession of the appellant. It is well established that no evidence can be led or looked into in support of plea that had not been pleaded in the pleadings. It is well established and salutory principle of law that in any civill proceedings, it is essential for a proof to plead the ingredients of any factsIB in the pleading on which he wants to rely and in proof of which he may produce evidence. Order VI Rule 2, Code of Civil Procedure, specifically provides for the same. It is reproduced below : — "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures". Though all the provisions of the Code of Civil Procedure are not •applicable to the proceedings in applications for eviction under the ,iOrdinance but the principles which are the basis and foundation for the jadministration of justice as this one incorporated in Order VI Rule 2 of the icpc, will undoubtedly be applicable to these proceedings also. The purpose in following the proceedings for framing of issues in eviction apolications is also intended to pin-point the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudiced. If there is no specific pleading about certain matter, the other party would have no opportunity to controvert the same and consequent^ no issue would be framed. !n these circumstances, the parties will be in the dark as to whether to lead evidence in affirmation, or in rebuttal and thus, som: important matter in controversy may be overlooked deliberately or inadvertently. \nSiddiqueMahmoodShaii-. Saran [AIR 1930 P.C, 57 ( l}j, which is the basic judgment on the subject, it is held : "whether a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward". The ratio of the decision in the above case was followed by me in the case of Mst. Jana Bai v. Mst. Ghulshan and another (PLJ 1984 Karachi 411). Such being the position, the inescapable conclusion follows that the Controller committed the error of taking into consideration evidence which he ought not to have done so. Once the evidence in justification of the plea of two shops are lying vacant and in possession of the appellant is ruled out of consideration as already observed, had not been pleaded, then the plea that survives or the defence that survives is that the landlord demanded exorbitant increase in rent and also a substantial sum of pagree. Such a defence is not recognized if the bona fide requirement is proved. Admittedly the landlady has several shops in the building which have been rented out to different tenants. As it appears, some of the shops had fallen vacant before the commencement of this proceedings. The landlady did not put her son Abdul Hafeez in support of such premises for his business venture. The evidence as to the vacancy is not very positive and clear, besides it has been the consistent view of the superior courts that D which would be an appropriate premises for the landlord is a matter exclusively left to him to decide and it would become difficult for the Controller to such a dispute. I am, therefore, not inclined to accept tbe submission of Mr. Mansoorul Arfin that the application for eviction shouldf have failed on the ground that other shops were lying vacant when tliej landlady was pressing for eviction of the respondent from the present! shop. The next question for consideration is as to the bona fide requirement of the premises. The appropriate plea in support of the ground for eviction is to be found in paras 2, 3 and 4 of the eviction application where it was stated that her son had grown up and as such her son had decided to run business of silver and gold (jewellery) in the shop in dispute. The appellant further averred in her application that the said son was working with Firdous Jewellery and as such he acquired complete knowledge and experience of the business. The appellant averred that she required the shop in dispute in good faith for use and occupation of her son so that he W'. uld be in a position to set up his independent life. The respondent filed written statement in which he denied contents of para 2 of the eviction application and stated therein that it is false that the appellant's son has decided to run the business of silver and gold (jewellery) as alleged. There is nothing on record to show that the appellant is occupying any shop in the same building or that she owned or possessed any such property in that urban area. Even the P.T. I is not helpful to the respondent. A perusal of the aforesaid pleadings would indicate the details which were given as to the nature of the business proposed to be set up by Abdul Hafeez. The eviction application was filed on 25-10-1981. Abdul Hafeez had acquired seven years complete knowledge and experience of the business. The appellant averred in para 5 of her eviction application that since last seven years was working with Firdous jewellery and had acquired know­ ledge and experience. The respondent denied contents of para 3 of the eviction application, PW Abdul Aziz reiterated the same facts in his affidavit-in-evideace, Abdul Aziz denied the suggestion that his son Abdul Hafeez had no experience of a gold-smith. PW Ghulam Ali filed affidavit-in-evidence. He is the proprietor of Firdous Jewellery, He stated that appellant's, son was his employee and had got sufficient experience of the said business and was able to do the business of silver and gold inde­ pendently and was satisfied with his work. It is pertinent to note that this witness was cross-examined at lenght and in his cross-examination it was only suggested that Abdul Hafeez was working as a peon. This witness to a suggestion in cross-examination stated that "he works as a goldsmith and also as a salemao", P.W. Abdul Hafeez filed his own affidavit in support of the eviction application and reiterated the facts stated therein. He also stated in his affidavit that he decided to open the shop in the premises in question for silver and gold (jewellery) comparatively in a better way and for better earning. He denied the suggestion in crossexamination that he had no funds and technical knowledge in goldsmith to start jewellery shop. In rebuttal the r.spondent filed his own affidavit-in-evidenee, besides affidavits-in-evidence of Muhammad Haroon, Muhammad Youms and Rana Maqbool Ahmed. All of them admitted that the appellant's son Abdul Hafeez was working in Firdous Jewellers shop. In the present case the appellant's attorney and his son Abdul Hafeez have made a statement that his son decided to establish a jeweller's shop, Nothing has beeo brought on record to show that their statements are not correct I am of the view that the learned Controller has erred in law in not taking this aspect of the case into consideration. The appellant's son was admittedly doing jewellers work and has got sufficient experience of business, nothing has been brought on record to show that he is incapable of running jewellers shop in the premises. It was averred in the eviction application that the appellant's son required the shop in dispute in good faith for his use. As against all the evidence led by the respondent that the appellant had two f.hops in her possession. It is well established legal position that the assertion in the eviction application about requiremeat of the appellant for her son's use has been fully supported in her husband's deposition and her son's deposition aod nothing has been brought out in cross-examination which could show that claim of personal requirement for her son is to be false or is based on wrong statements. It is contended by the learned counsel for the respondent that it was incumbent upon her to show that she had sufficient finance for establishing her son itfthe business. Besides experience the finances were also required to start the business. In the instant case the landlay had asserted in her eviction application that her son decided to commence jewellery business and her son and husband deposed that he had the means and experience, The appraisal of evidence recorded by the Controller clearly indicates that there it sufficient evidence to satisfy the requirement of law that the premises in question arc required for the use of her son. It seems that

n the instant case she has not only established bona fide but has also proved the reasonable requirement. The respondent has not taken such a olea in the written statement. It is not necessary that landlady must oroduce evidence of the availability of the finances unless such plea is aken by the tenant specifically in the written statement necessitating recording of evidence on the point. Wben such a plea is not taken by the respondent initially in the written statement, it is never necessary t>>r the landlady to produce such evidence voluntarily. In the instant case had the respondent taken such plea in the written statement, the appellant would have been on her guard and would have produced such evidence. \part from this 1 am of the view that existence of ready money need not ^e proved to support bona fides. It is only potential capacity to raise required funds and the same has been proved in this case. The question

f mala fide raised by the learned counsel for the respondent is otherwise f not much relevance now in view of complete safeguard provided to tenant in the Ordinance by insertion of section ISA in the said Ordinance. In these circumstances I hold that the appellant succeeded ia establi­shing her son's bona fide requirement io the case, In view of the above discussion I accept this appeal and reverse the impugned order of the Controller and grant the application for eviction of the respondent. The respondent is directed to put the appellant in possession of the shop in dispute within four months subject to deposit of rent as ordered by the Controller. In the circumstances of the case, the parties will bear their own costs. (MIQ) Appeal accepted.

PLJ 1987 Karachi 215 PLJ 1987 Karachi 215 Present : ibadatyar khan, J HABIB BANK LIMITED, Habib Bank Plaza I. I Cbundrigar Road, Karachi—Plaintiff versus AL1 MOHTARAM NAQV1—Respondent • CMA No. 4025/1986 (in Suit No. 985 of 1985) allowed on 1-1-1987 (i) Civil Procedure Code, 1908 (V of 1908)— —~S. 10— -Res-subjudice —Principle of— Applicability of —Held : B&r under S. 10, CPC being applicable to all classes of suits without any distinction, court to stay its hands (due to maoadatory requirement of section) moment such bar be brought to its notice. [P. 2l8]A (ii) Civil Procedure Code, 1908 (V of 1908)—

S. 10— Res sub judice —Principle of—Mandatory nature of—Held : Provisions of S. 10, CPC to be manadatory in nature. [P. 218]B (iii) Ci?il Procedure Code, 1908 (V of 1908)—

S. 10 —Res sub judice— Principle of—Held: No two adjudications resulting in clash against each other to be made. [Pp. 219 & 220]J (ir) Civil Procedure Code, 1908 (V of 1908)—

S. 10—Suit—Stay of—Held : Operation of S: 10 of CPC not to be restricted to one class of suits by excluding another class from its ambit. [P. 22!]N (v) Civil Procedure Code, 1908 (V of 1908) —

S. 10 & O. XXXVII, Rr. 2 & 3—Suit-Stay of—Application for— Held : Application under S, 10 CPC ranking higher than application for interlocutary relief, consideraton and disposal of such applica­ tion (in suit filed under O. XXXVII CPC) not to be deferred till after decision of leave application. [P. 220]L (?i) CiTil Procedure Code, 1908 (V of 1908)—

O.XXXVII, R. 2—Negotiable instrument — Summary Procedure on—Held : Suit filed under O XXXVII not to be given priority over (ordinary) suit filed earlier in point of time. [P. 221[M (vii) Civil Procedure Code, 1908 (V of 1908)—

O. XXXVII, R 2—Negotiable instrument — Summary procedure on—Held : Suit filed under O. XXXVII, CPC beiag suit from moment of its institution, same not to be treated differently from suits filed in regular manner—Burden of proof usually resting on plaintiff, however, to be shifted to defendant, in case of suit institu­ ted under summary procedure—Plaintiff, in such case, to start with initial advantage of presumption in his favour while defendant (to start) with initial handicap of discharging burden of displacing such initial presumption. [P. 2I8JC&D (Tiii) Civil Procedure Code, 1938 (V of 1908)—

O. XXXVII, Rr. 2 & 3—Negotiable instrument — Summary proce­ dure on — Defendant failing to dislodge initial (advantage of) pre­ sumption in favour of plaintiff—Held : Negotiable instrument being itseif conclusive evidence against defendant, decree to be passed out­ right without any further evidence—Suit, on other hand, to proceed in normal way and defendant to be allowed to defend same in case of his successfully demolishing initial presumption. [P. 219]E (ix) Civil Procedure Code, 1908 (V of 1908)—

O. XXXVII, Rr. 2 & 3—Negotiable instrument — Summary pro­ cedure on —No application to defend suit filed within 10 days nor (such application though filed) leave to defend suit granted by court - Held: Plaintiff to be entitled to clear and final decree without leading any evidence in support and by cutting down all procedural trapping, in way. [P. 219"|F (x) Civil Procedure Code, 1908 (V of 1908)—

O. XXXVII, Rr. 2 & 3 -Negotiable instrument—Summary proce dure on — Held : Interlocutory application seeking interim relief being subservient to relief claimed in plaint, such application not to be pressed till grant of leave to defend suit. [P. 220]K Cxi) Civil Procedure Code, 1908 (V of 1908)—

O. XXXVII, R. 3—Leave to defend — Application for—Decision on—Held : Court to discuss some of merits of case and to pass order (of grant or refusal of leave to defend suit) with certain reasonings. i. P. 219]H (xii) Ciyil Procedure Code, 1908 (V of IS08)—

O. XXXVI1, R. 3-Leave to defend suit — Grant of—Effect of — Held : Grant of leave to defend suit amounting to converting mode of disposal of suit from summary to regular form, consideration for discharging burden of proof in such eventuality to be same as in any other case. [P. 219[G Mr. Ibrahim Peshori, Advocate for Plaintiff. Mr, A. Razzak Siddiqui, Advocate for Defendant. Date of hearing : 1-12-1986. order The suit has been filed by the plaintiff for the recovery of substantial amount of Rs, 30,63, 674.13 under the Summary Chapter of CPC and Section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979. 2. The Defendant has moved an application CM A No 450/1986 under Order 37 Rule 3 CPC read with Section 7 of the Banking Companies (Re­covery of Loans) Ordinance, 1979. praying for leave to defend the suit. He has also moved another application CM A No. 4025/1986 under Section 10 read with Section 151 CPC. The learned counsel for the Defendant insists that CMA No. 4025 of 1986 should be decided first. He submits that if CMA No. 450/1986 is decided first, the second application No. 402^/1986 which goes to the root of the matter may become infructuous thus depriving the Defendant of a valuable right to which he is entitled under the scheme of the Code of Civil Procedure. S. The contention raised in this application CMA No. 4025/1986 is that as the defendant has filed another suit being Suit No. 681/1983 against the plaintiff bank for a more extensive and comprehensive relief of dec­ laration, redemption of property and damages etc. proceedings in the present suit should be stayed. Suit No. 681/1983 was filed by the defen­ dant on 28th of November, 1983, about two years prior to the filing of the present suit (986/1985) which has been filed in this Court on llth December, 1985. 4. The learned Counsel for the Defendant reads Section 10 of the CPC which runs as under : "10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in (Pakistan) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (Pakistan) established or continued by (the Central Government) and having like jurisdiction, or before the Supreme Court). Explanation. —The pendency of a suit in a foreign Court does not preclude the Courts in (Pakistan) from trying a suit founded on the same cause of action." 5. Learned Counsel for the Defendant contends that all the conditions visualized in the Section are fully satisfied in the present case inasmuch as the parties in both the suits are the same and the matter in issue directly and substantially the same. It may be said that the off shoots originating from the main cause of action may differ a little but the crux of the matter is so similar that it cannot be said that the findings in one would not cast heavy shadows on the findings of the other. The best criterian to deter­ mine the similarity between the two suits is to compare the pleadings in the two actions. When I asked the learned counsel for the plaintiff whether the written statement in the present case would be the same as contents of the plaint filed in Suit No. 681/1983, the answer of the learned counsel was in the affirmative. The learned counsel for the plaintiff frankly conceded that both the suits related to the same cause of action, the matter in issue in this suit is also directly and substantially in isrue in Suit No. 681/1983 filed two years earlier. In view of the above the learned counsel for the Defendant gets a strong footing for his contention that proceedings in the present suit should be stayed in terms of Section 10 CPC. 6. The legislative intent for enacting Section 10 CPC is summarized by Aamer Raza in his CPC, Para 1 of the commentry of Section 10 CPC at page 43 of the 4th Edition of this book may be reproduced here : "The object of the rule contained in Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same matters in issue (a). The policy of the law is to confine the parties to one suit, thus obviating the possibility of contradictory adjudications with regard to the same matters in issue (b). Section 10 codifies the principles of res sub judice, whilst section 11 relates to matters which have been adjudicated upon i,e., res judii'ata (c)." 7. Learned counsel for the plaintiff however, advanced two foid arguments in opposition to the Defendant's application. Firstly he tried to draw a distinction between the suits filed under Order 37 CPC read with Section 3 of the Banking Companies (Recovery of Loans) Ordinance, 1979, and suits filed in the regular manner. He submitted that Section 10 did not apply to the suit of formal category. In the alternative he argued that if Section 10 is applied to the Summary suits also then the application under Section 10 would not He till the Defendant has been granted leave to defend the suit. Argument advanced by the learned counsel proceeds on the assumption that the suit filed under the Summary Chapter notionaliy speaking is not a suit at all because unless and until leave is granted under subrule (2) of rule 2 of Order 37, it cannot be said that the parties are at issue against each other But once leave is granted, learned, counsel concedes, the stage would come when the provision of Section 10 CPC would become operative and consequences visualized in this section would immediately begin to follow I am afraid I cannot read any such jCiassification of suits in Section 10 of the CPC, In my reading the bar junder Section 10 CPC is applicable to all classes of suits without any Aidistinction and the moment it is brought to the notice.. of the Court, the [Court must stay its hands due to mandatory requirement of this Section. JAnd I must add that there is no dispute that the provisions of Section 10 BJCPC are mandatory in nature. One of the reasons for not subscribing to the view of the learned counsel for the plaintiff is that if the distinction, between the Summary Chapter suits and regular suits is accepted then exercise of the power under Section 10 CPC would depend on the option of the plaintiff. If the arguments of the learned counsel is accepted then the Court was to pass one order, if the suit was filed in the regular procedure and another order if' the plaintiff had chosen to file a suit under the Summary Chapter I am afraid this kind of classification cannot be read in Section 10 CPC. Before proceeding further it is better to read Order 37 CPC : "All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereuader, be institu­ ted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Apnendix B or in such other form as may be from time to time prescribed," 8. The words "Suits" and "Institution" clearly indicates that the suit filed under the Summary Chapter is also to be treated as suit from the moment of its institution and there is nothing to show why it should be differently treated from those suits which are filed in the regular manner. 9. A close look at Order 37 would show that this Order consisting of only 7 rules prescribes summary procedure for disposal of suits filed on the basis of negotiable instruments. The plaintiff remains plaintiff aod the defendant remains defendant. The only difference is that the burden of proof which usually rests on the plaintiff is shifted to the defendant. It may be said that in suits under Order 3? CPC the plaintiff starts with an initial advantage of presumption in his favour and the defendant with an initial handicap of discharging the burden of first displacing this initial presumption. This is evident from the words used in sub-rule (2) which postualtes "In default of his obtaining such leave the allegations in ths plaint shall be deemed to be admitted and the plaintiff shall be entitled to the decree for the principal sum due on the instrument and for interest," The effort for getting rid of this presumption against him is made by defendant through an application to be filed by him under sub-rule (2) of rule 2 of this Order. The defendant must enter appsarancs within SO days after service of notice of the filing of the suit and satisfy the Court that initial presump­tion drawn in favour of the plaintiff on the strength of negotiable instru- ,T.ent is not well founded and that he has a good defence to the claim lodged by the plaintiff. This is usually calied the application seeking permission or leave to defend the suit. After the defendant enters appearance the plaintiff would press for a decree and the defendant would make an effort to eei rid of initul presumption and the Court shall be obliged to examin-Mhe rruriu of the contentions of boih the parties and reader the decision If the defendant tails to dislodge the initial presump­ tion the decree would be passed out right without any further evidence. The negotiable instrument itself would be treated as conclusive evidence against the defendant. In case the defendant succeeds in demolishing the initial presumption he would be allowed to defend the suit and the suit will proceed in the normal way. it needs no efforts to emphasize that what could be achieved through the process of a prolong procedure has been compacted to be done in a suintniry manner in this Order. The negotiable instrument dominates over all othsr facts and over weighs against all other evidence. Withoutjleading any evidence in support and cutting down all procedural trappings m the way the plaintiff would be entitled to a clear and ftna! decree if no application to defend the suit has been filed within 10 days or the application has been filed but leave has beeo refused. By no mjans it can bs said that to obtain a decree anything further would b: required to '03 dans. As stated in the earlier- paragraphs if leave is refused decree would be passed and as such nothing would be left to be stayed. If however, the leave is granted then it would amount to converting the mode of disposal of the suit from summary to regular _, from and in such an eventuality the consideration for discharging the burden of proof would be the same as in any other case. 10. It is to be kept in mind that in either case where the leave is refused/ or leave is granted the order of the Court would discuss some of the merits off the case and pass the order with certain reasonings. This by itself would mean! expression of opinion on the merits of the case which would cause adverse/ effect in the previously filed suit. id my humble opinion the mandate postulated in Section 10 CPC should be applied at the earlier stage before the mischief which is intended to be controlled has fully run its course. Once a decree is passed the provision of Section 10 would ecome a dead letter from the point of view of the defendant who was entitled to the protection of Section 10 CPC on account of the previous action which he had filed in the Court. 11. The learned counsel further contended that this suit has been filed under Banking Companies (Recovery of Loans) Ordinance, 1979 which is aimed at securing speedy results of the actions launched under this Ordinance. This may be so, but unfortunately ha has not been able to show how such an intention can be interpreted to frustrate other 'statutory provisions which are of mandatory nature unless a clear intention is expressed for adopting such a course. Ths controversy between the/ parties and consideration for its resolution remain the same. The concept/I of Section 10 CPC is that no two adjudications should be produced which may clash against each other. Whether these adjudications are made by the ordinary Courts or a special Banking Court is not of much consequence. More-over, there is hardly any difference between provisions of Order 37 and the Banking Companies Ordinance. Merely a Special Court has been provided by the Ordinance for trial of suits of a particular category. 12. To be fair to the learned counsel I must mention that in support of his argument the learned counsel relied on a case decided by a learned Single Judge of this Court. The case is reported in PLD 1982 K.ar. 74x In this case the suit was filed under Order 37 on the allegation that the defendant had obtained a loan from the plaintiff. In order to discharge this liability the defendant had issued a cheque. This cheque when tendered to the bank for encashment was dishonoured obliging the plaintiff to file a suit for the recovery of the amount of this dishonoured cheque. The defen­ dant denied the claim and pleaded that the cheque was one of the nine cheques which the defendant had issued in various amounts for investment in business. The plaintiff had realised the amount of one cheque, but after realising the amount had failed to share the profits. The defendant there­ fore, lost faith in the plaintiff and stopped further payments to the plaintiff which he was to collect by negotiating all the remaining cheques. The defendant further pleaded that he had filed a suit for declaration that the cheques issued by him were without consideration and they should be cancelled. 13. The defendant therefore, prayed for stay of the suit pending disposal of the suit filed by him earlier. Question arose whether he was entitled to stay by force of Section 10 CPC. The learned Judge after hearing the parties and their advocates and also four other learned counsel who appeared as amicus curias in the case answered this question and ruled that the plaintiff's application under Section 10 CPC for stay did not lie till his applicatibn for leave to defend was not allowed by the Court. Holding that the provision of Section 10 CPC were mandatory the learned Judge nevertheless opined that they were not attracted till the Defendant had acquired a locus standi in the proceedings by obtaining "leave to appear and to defend the suit". The learned Judge held : "I am of the opinion that unless a defendant obtains leave from the Court to appear and defend the suit he is not entitled to make inter-locutory application including an application under Section 10 CPC The consideration of application under Section 10 CPC is deferred till the defendant's application under Order 37 rule 2 is decided." 14. It appears to me that the learned Judge has treated the application under Section 10 CPC as an interlocutory application in the suit. With great respect to the learned Judge my approach is different. The interlocu­ tory application seeking an interim relief is subservient to the relief claimed in the plaint. Surely such an application is not to be pressed till such time that leave to defend is granted to the Defendant. But an application under Section 10 CPC ranks higher than the application for interim/inter-locutory relief. Conceptually speaking such an application is not the application in the suit It is an application out of ambit of the suit. In my humble opinion if the consideration and disposal of the application under Section 10 CPC is deferred till after the leave application is decided it would result in consequences diagonally opposed to those which section 10 seeks to achieve. As discussed by rae in the preceding paragraphs if leave is refused a decree would immediately be passed against the defendant and there would be nothing left to be stayed. The decree would be final decree against which an appeal may be filed but nothing would remain alive so far as the suit is concerned. 15. Alternatively if leave is granted then the learned counsel himself concedes and indeed such is the burden of the judgment in PLD 1982 Kar. 745, that the stay should be granted. In other words what could be done at the earliest stage is now being done after the disposal of this application. Moreover, it is to be noted that in disposing of the leave application whether it is refused or granted the Court will discuss the merits of the case and this discussion would result in a situation which Section 10 seeks to avoid. Un account of discussion in the disposal of the leave application the findings in the previously instituted suit would surely be effected because this discussion would not be tentative in nature but in a judgment which is appealable. To highlight the objects of Section 10 I cannot do better than to refer to the opinion expressed in the judgment of the learned Judge who has himself discussed the impact of this provision of law in para 5 at page 745 of PLD 1982 Karachi : "Before considering various authorities cited by the learned counsel it would be appropriate first to determine the object and nature of Section 10 CPC and Order 37 CPC, Section 10 is mandatory and has been couched in a prohibitory language. The object of Section 10 is to prevent Coi. ts of concurrent jurisdiction from simultaneously adjudicating and proceeding with trial of two suits in which the matter in issue is directly and substantially the same between the same parties. This section prohibits trial of two parallel litigations in respect of the same cause of action, the same subject-matter the same relief between the same parties. It has always been the policy of law that multiplicity of suits should be avoided and possibility of conflict of decision between two or more Courts in respect of the same subject-matter and controversy should be discouraged," I fully concur with the above analysis but cannot see any reason why a suit under Order 37 should be given priority over a suit which has been filed earlier in point of time. Would it not amount to cause violence to the mandate plainly and lucidly enunciated by the learned Judge in the judgment referred to above in the following passage : "Where the conditions laid down by Section 10 are satisfied the Court had no discretion in the application of this section as the provisions of this section are mandatory and the previously instituted suit alone should be proceeded with and the subsequent suit must be stayed." 16. The upshot of the discussion above is that there is no statutory requirement nor indeed any rule of prudence to clothe Section 10 with the interpretation advanced by the learned counsel for the plaintiff and restrict its operation to one class of suits and exclude another class of sui from its operation. In my view the application under Section 10 CPC filed by the defendant is maintainable and the provision of Section 10 being mandatory I have no discretion or option to sitber reject this application or to defer the consideration of this application till the disposal of the defendant's application for leave. This application is, therefore, granted and the proceedings in the suit are stayed. (TQM) Proceedings stayed.

PLJ 1987 Karachi 222 PLJ 1987 Karachi 222 Present : TANZIL-UR-RAHMAN, J D. A. GILL and 3 Others—Appellants versus LAHORE DIOCESAN TRUST ASSOCIATION, Mission Road, Lahore and Others—Respondents First Civil Appeal No, 82 of 1971, dismissed on 24-3-1985 (i) Ci?il Courts Ordinance, 1962 (W. P. Ord, I! of 1962)- -~S. 7 read with Civil Procedure Code, 1908 (V of 1908)—S. 6— District Judge—Pecuniary jurisdiction of—Objection as to— Value of suit property far exceeding pecuniary jurisdiction of District Court at relevant time—Plaintiff, however, arbitrarily fixing valuation of suit at Rs. 200 (only)—Held : Court of District iudge to bave no pecuniary jurisdiction to entertain suit, [P. 226]A (ii) Civil Courts Ordinaisee, 1962 (W. P Ord. II of 1962)—

S. 7 read with Civil Procedure Code, 1908 (V of 1908)—S». 6 & 96—District Judge — Pecuniary jurisdiction of—Bar of—Effect of— District Judge having no pecuniary jurisdiction to entertain suit— Such Judge, however, examining and deciding other issues also involved in case—Held : Findings of District Judge on such issues to be deemed as void and non-existent. [P, 227]B PLJ 1985 SC 57 & PLJ 1975 SC 185 rel. Mr. G. H. Abbasi, Advocate for Appellant. Messrs S.A. Waheed, G. M. Qureshi, M. M. Mahmudi, H. A. Rehmani, A. Matin & Ibrahim Pishori, Advocates for Respondents. Date of hearing : 5-3-»985. judgment This is a First Appeal against the judgment and decree dated 22-5-1970 passed in Suit No. 1 of 1969 by the IVth Additional District Judge, Karachi dismissing the said suit. The facts leading to this appeal, briefly stated, are that there is a plot of land bearing No. LB-3/1 Lawrence Road, Karachi measuring 39,7f3 sq yards, allegedly the property of a religious and charitable trust created under a Government grant dated 25-5-1927 of which the members of the Anglican Church including the appellants are its beneficiaries. On 26-3-1969 the appellants after obtaining necessary sanction from the Additional Advocate-General, West Pakistan, Karachi filed a suit under Section 92 Civil Procedure Code against respondents Nos. 1 to 4 praying for the following reliefs : — ''(a) direction of this Honourable Court declaring the sale of the portion measuring 26,400 square yards of the plot of land, bear­ ing Survey No. 1, Sheet L R. 3, measuring 39, 63 square yards situated at Lawrence Road, Karachi by the defendant No. 1 and 2 in favour of the defendants No. 3 and 4 and the sale deed, dated 14-1-1965 executed and registered ia this connection, as illegal and inoperative in law being in violation of terms and conditions of the 'Sanad' relating to the aforesaid premises ; (b) settling a scheme on the Trust Land, viz. Plot No. L. A. 3/1 for the welfare and rehabilitation of the Christian families residing therein and accommodating other needy Christian families and appointment of a commissioner for this purpose ; (c) Appointment of a commission for taking accounts with regard to income and expenditure of the said Trust property ; (d) removal of Rev. Chandu Ray and Lahore Diocesan Trust Associa­ tion from Trusteeship of the said Trust Property and appointment of a new Trustee for the administration of the said Trust Pro­ perty; (e) costs of this suit ; and (f) any other or such other relief as this Honourable Court deems fit and proper in the circumstances of this matter," 4. It was, inter alia, averred in the plaint that the Respondents Nos. 1 & 2 defendants Nos. I and 2 out of the said land unauthorisedly disposed of 26,400 sq yards to respondents/defendants Nos. 3 and 4 for a total sale consideration of Rs. 10 lacs and executed a sale deed which was duly registered on 14-1-1965, in their favour. It was further stated that the market price of the land in the area is manifold higher than that of the rate at which the portion of the plot has been sold away by the said respondent/defendants Nos. 1 and 2 to respondents Nos. 3 and 4. It was further alleged that the respondent/defendant No. 2 was stated to have been offered Rs. 50 lacs for the said portion of plot, as against Rs. 10 lacs, agreed to be paid by the respondents/defendants Nos, 3 and 4 in instalment (s)j. The conduct of the said defendants was therefore questionable for disposing of the trust land at such low rate thereby causing serious loss to the trust which gave cause of action to file the suit. 5. The respondents/defendants filed their written statement and controverted the allegations of the appellants/plaintiffs. Some legal and preliminary objections were also taken by the said respondents and there­ fore the following four preliminary issues were framed :— (1) Whether this Court has jurisdiction to entertain the suit ? (2) Whether the suit has been properly valued and the court fee is paid thereon ? (3) Whether the suit is barred by res judicata ? (4) Whether the suit is barred by provision of Order 2 Rule 2 CPC ? 5. The learned District Judge after bearing the learned counsel for the parties held that the said Court did not have the pecuniary jurisdiction to entertain the suit and that proper court fee has not been paid thereon. It was also held by the learned Judge that the suit was barred by resjudicata. However, his findings on issue No. 4 was in favour of the appellants/plaintiffs that the suit was not barred under Order 2 Rule 2 CPC. 2. I have beard Mr G. H. Abbasi, learned counsel for the appellants and M/s. M. M. Mehmoodi, Abdul Matin, H. A. Rebmani, G. M. Qureshi and Ibrahim Pishori, learned counsel for tbe respondents. 7. It will not be out of context to mention here that a number of other respondents were broughf on record during the pendency of this appeal by this Court as respondents Nos. 3 and 4 had sold various portions of the said plot to the said newly added respondents. 8. The learned counsel for the parties agreed to confine their argu­ ments only on issues Nos. 1 and 2. However, if the decision on the point of jurisdiction is against the appellants, it will not be necessary to decide the appeal on the other issues. 9. Mr. G. H. Abbasi learned counsel for the appellants submitted that the lower Court had jurisdiction to entertain the suit inasmuch as the appellants had simply asked for relief for declaration simpliciter and not a consequential relief or cancellation of the sale deed dated 14-1-1965 as prayed for in prayer (a) of pa^a, 23 of the plaint. He further submitted that the reliefs claimed by him will be governed by Article 17 (vi) of the Second Schedule to the Court Fees Act, S87G and not Section 7 (iv) of the ^ourt Fees Act 1870, as held by the learned Judge. In support of his contention Mr. Abbasi referred to a number of decisions reported as (I) Mst, Zeb ul-Nisa and others v. Chaudhry Din Mohammad and others (AIR 1941 Lahore 97) (2) E. I. Ry., Calcutta v. Jot Ram Chandra Bhan (AIR 1928 Lahore 163) (3) Ramrup Das and others v. Mohunt Sujaram Das and others (17 Indian Cases 92) and (4) Mustafa Htasain and others v. Mt. Husain Bandi Bibi (AIR !943 Oudh 186), 10. The first named case (AIR 1941 Lahore 97) relied on by Mr. Abbasi relates to a trust, in the nature of Waqf 'allal autad under the Islamic Law. The reliefs claimed in the said case included "(i) a declara: lion to the effect that the property mentioned in para. ! of the plaint is wakf', and (ii) secondly that the alienations of the property me ntioned in para. 4 of the plaint, are null and void and ineffectual as against the wakf property." The Full Bench after considering various aspects of the question and also discussing exhaustively the law on the subject came to the conclusion that first part of the relief for declaration "that property is "Waqf was purely declaratory, whereas the second part of the relief that "alienations thereof are ineffectual" tantamount to cancellation of alienation and therefore held that the second relief claimed fell under Article 1 of Schedule 1 to the Court Fees Act, 1870. 11. The second case (AIR 1928 Lah. 113) cited by Mr. Abbasi has, in fact, been referred to by the Full Bench in the case referred to above. It relates to a suit filed under Section 92 of the Civil Procedure Code wherein it was, inter alia, observed that :— "There cannot be any doubt that Art. 17, ci. (vi) Sen. 2, Court Fees Act, applied to cases which are brought under the provisions of S. 92, Civil P. C. If any authority were ceeded, the case reported as Ramrup Das v. Sujaram Das (1910) 14 C. W. N, 932«7 I. C. 92 = 12 CLJ 211). clearly lays down that a suit under S. 92 Civil P. C., falls within the purview of Art.-17 cl. (vi) Sch. 2, Court-fees Act." 13. The third case (7 Indian Cases 92) also relates to a suit under Section 92 of the Civil Procedure Code wherein it was observed that the suit for rendition of accounts to be taken from the trustees fell under Article 17 clause (vi) Schedule II to the Court Fees Act, 1870. 14. In the fourth case (AIR 1943 Oudh 113) it was held that the Court fee was payable in accordance with the Schedule II Article 17 (vi) of the Court Fees Act, 1870. In that case the suit was for the removal of the Mutawalli of a public social trust and for a declaration that plaintiff No. 1 as heir of the doner was entitled to be Mutawatli and was also entitled to be in possession of the properties mentioned in the list A and B which vested in him as Mu:a\calli, but if this relief was not granted then scheme for management might be framed and some suitable Shi'ah may be appointed as Mutawalli. 15. As would appear from the perusal of the above decisions, the first case goes against the contention raised by the learned counsel for the appellants, whereas the other three cases are distinguishable inasmuch as in sons of them a relief was sought in the nature as prayed for in prayer clause (a) of the case before me. 16. M/s. Abdul Matin and H. A. Rehmani who argued the case on behalf of the newly added respondents which were adopted by M/s. M. M. ehmoodi, G. M. Qureshi and Ibrahim Peshori, learned counsel for the other respondents contended that the Court fee in this case was not at all payable under Article 17 (vi), Schedule II of the Court Fees Act. 1870. They further submitted that the Court fee was payable under Article 1 of the First Schedule to the said Act. In support of their contention they relied on a number of decisions of this Court reported as (1) Muhammad Siddiq and others v. Haji Ahmad & Co. [(PLD 1967 Karachi 468 (DB)], (2) Badrul Islam v. Qamrul Islam and 4 others (PLD 1971 Kar. 682 and (3) Acharya Advendra Prasadi and 2 others v. Tirathdas and 10 others (PLD 1972 Karachi 251). 17. In PLD 1967 Karachi 468 both the issues i. e. the pecuniary jurisdiction of the subordinate courts of Karachi as well as the court fee payable in a suit for setting aside an ex pane decree were considered. It was held that :—• "It seems to us that ordinarily in suit falling under section 7 (iv) (c) a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court-fee on the valuation. We are in respectful agreement with the view of Davis, J. C. that absence of the rules under section 9 of the Suits Valua­ tion Act is no bar to the exercise of the power under Order VII, rule 11, CPC and that the question as to what is proper valuation depends upon the circumstances of each suit and the judicial decision of the Court. To hold otherwise would mean to give unlimited power to litigants in drafting their prayers so as to include or exclude relief with a view to confer jurisdiction oo the Court to try the suit." 18. It may also be stated that in an earlier decision of this Court reported as Zafar Ahmad v. Khaliq (PLD 1964 Karachi 386) it was held that according to Full Bench decision reported as Lakhomal Deepchandv, Deepchand Tolaram (AIR 1937 Sind 241) the valuation for purposes of Court fee under section 7 (iv) (c) in suit for setting sside a decree should be the amount involved in the impugned decree. In the said decision it was also observed that :— "In the present case the petitioner in the suit filed by him neither has put any valuation for purposes of Court fee nor for purposes of jurisdiction under section 7 (iv) (c). On the other hand he has valued the suit separately for purposes of Court fee treating the suit as falling under Article 17, clause (vi) of Schedule II and for purposes of permanent injunction under section 7 (iv) (d) of the Court Fees Act and has paid fixed Court fee separately on that basis. It is quite correct that on the view taken in the above mentioned Lahore Full Bench case the plaintiff should be allowed to fix valuation for purposes of Court fee and jurisdiction under section 7 (iv) (c). But since in this region uptil now the Full Bench decision of the Sind Court reported in Lakhomal Deepchand v. Deepchand Tolaram is followed, I am not inclined to review the case law on the subject and disturb the view hitherto followed by this Court. According to the Sind Full Bench decision the valuation for purposes of Court fee under section 7 (iv) (c) in a suit for setting aside a decree should be the amount involved in the impugned decree. I would therefore, uphold the view of the learned subordinate Court in calling upon the petitioner to pay deficit Court fee on that basis. The petitioner is allowed to pay the deficit Court fee within one month." 19. In the other case (PLD 1971 Karachi 682) which was a suit for rendition of accounts of Waqf property and for mandatory injunction directing the Mutawalli to perform his duty it was held that the plaintiff was not allowed to value his claim for relief arbitrarily as in the plaint itself it was stated that the value of the property dedicated 10 the waqf exceeded Rs, 67.000/- the valuation of the reliefs by the plaintiff at Rs. 200/- was arbitrary and was done deliberately in order to file the suit in the wrong court. The plaint was, therefore, returned for representation to the proper Court namely the High Court at Karachi. 20. In another case Acharya Adv ndra Prasadi & 2 Ors. v. Tirathdas & 10 others (PLD 1972 Karachi 251) it was observed that the High Court at Karachi is the principal civil Court on original side in Karachi for suits involving subject matter of amount or value exceeding Rs. 25.00Q/- and that the District Court of Karachi was not a competent Court for such suit. It was further observed that the payment of fixed court fees and undervaluation of relie'fs sought for by plaintiffs, in circumstances, was immaterial for the purpose of determination of jurisdiction of the Court. 21. Now, as regards the first issue that the District Court had no pecuniary jurisdiction, suffice it to say that it is itself stated in the plaint that the property in suit is worth Rs. 5u lacs. However, the sale deed which is sought to be declared as void ab-initio and inoperative in law was executed in consideration of Rs. 10 lacs. It is, therefore, apparent that the value of the suit property is far exceeding the pecuniary jurisdiction of the District Court which, at the relevant time, was upto Rs. 25000.00 only. Relying on the decisions cited by the learned counsel for the respondents and more particularly the decision reported in PLD 1971 Karachi 682. I am clear in my mind that the Court of District Judge did not have pecu­ niary jurisdiction to entertain the suit and the valuation fixed by the appellant at Rs. 200'- was arbitrary and the suit was filed in a wrong court. 22 Since it has been held by me that the District Court had nol jurisdiction to entertain the plaint, the findings of the learned DistrictlB Judge on issues Nos. 2, 3 and 4 do not arise and will be deemed as void) and non-existent. To my mind, the learned District Judge, after having decided issue No. 1 that it had no pecuniary jurisdiction, it was not necessary for him to examine the other issues particularly issue Nos. 2, 3 and 4. For this view of the matter, I place my reliance on a recent decision of the Supreme Court reported as The Collector, Central Excise and Land Customs and others v. Aslam Ali Shah (PLJ 1985 SC 57). In this connection the case reported as Chief Settlement Commissioner, v. Mohammad Fazil (PLJ 1575 SC 185) cited by Mr. Abbasi is also relevant in which it was observed that an order is to be treated as void when it is made by a Court, Tribunal, or other Authority which had no jurisdiction either as regards the subject matter, the pecuniary value or the territorial limits, where the dispute arose. 23. In the result, the appeal is dismissed subject, however, to the observations made by me in para 22 above, the plaint is to be returned to the appellant to be presented to the Court having jurisdiction, which, in this case, will be the High Court at Karachi. The respondent will, how­ ever, be free to take the plea of limitation, or any other legal plea as available to them on such presentation. 24. There will, however, be no order as to costs. (MIQ) Appeal dismissed.

PLJ 1987 Karachi 227 PLJ 1987 Karachi 227 Present: abdur razak A. thahim, J TAHER ALI and 2 Others—-Appellants versus fessrs Sheikh MIRAN BUX KARAM BUX—Respondents FRA No. 351 of 1982, dismissed on 30-11-1986 Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)—

S. 13 read with Sind Rented Premises Ordinance, 1979 (XVII of 1979)—Ss. 21 & 27—Eviction—Defauh—Ground of—Rent in case all along being collected on yearly basis—Respondent also immedi­ ately depositing rent in advance for whole year on feeling appre­ hensions of eviction application being filed by landlord—Held : Discretion in favour of tenant rightly exercised by Rent Controller [Pp. 228 & 229]A& B Mr. I. M. Patel, Advocate for Appellants. Mr. S. Manzar Ahmad, Advocate for Respondents. Date of bearing : 30-11-1986. judgment Rent Case No 1050/74 was filed by appellant under section 13 of West Pakistan Urban Rent Restriction Ordinance, 5959, on the ground of default in payment of rent from 1-1-74 till filing of the rent case. 1. In written statement, respondent took the plea that there was practice between the parties whereby accumulated rent for one year was being collected in advance from time to time. The Rent Controller by an order dated 21-2-82 dismissed the rent case. Appellant-landlord being aggrieved with this order has filed this appeal under section 21 of the Sind Rented Premises Ordinance, 1979. 3. On behalf of appellant one Inayat Hussain, Property Manager and Rent Collector, was examined and he has produced one letter, Ex. A/2, showing the conditions of the tenancy whereas on behalf of respondent one Sheikh Bashir Ahmed, Manager of Opponent, was examined. 4. I have heard Mr. I. M. Patel for the appellant. It is contended by the learned counsel that respondent has committed default in payment of rent from January 1974 to April 1974 for 4 months and rent case was filed on 24th April 1984. According to the terms of the tenancy rent is liable to be paid in advance on or before first of the same month and respondent failed to pay the rent, therefore, are liable to be evicted from the premises. He has referred to the cases reported in 1981 SCMR 93, 1984 SCMR 755, NLR 1985 Civil 607 and 1985 CLC 2413. It is also argued that the practice has not been proved as respondent in his croisexamitation admitted that rent was to be paid every month. 5. Mr. S. Manzar Ahmed appearing for the respondent contended that there was a practice that accumulated rent was being collected by the appellant for the whole year whenever bills were presented. He has referred to the case reported in PLD 1985 Kar. 74. 6. The rate of rent and relationship is not disputed between the parties. It is also an admitted position that rent of January to April 1974 was neither paid nor any- attempt was made to tender but on 17-5-74 respondent deposited the rent from January 1974 to December 1974 and no further default has been committed. It is argued that rent was not collected purposely to make out a case for default. On this he has referred to the conditions of tenancy of agreement. The condition No. 5 of the tenancy produced as Ex. A/A is as under :— "5. No rent shall be paid without the presentation of a bill and the signature of landlord or his agent shall always be obtained on payment. The landlord will not be responsible for any ayment made for which signatures is not obtained.'' 7. In the present case nothing has come on the record that appellant presented a bill and respondent has refused to make payment. Receipts, Ex. A/B, A/C. A/E, A/F and A/D, have been produced through rent collector of appellant which show that rent was being received yearly from which it appears that on presentation of a bill as per terms and conditions of the tenancy the payment was made immediately and receipts were acknowledged. Rent for January to December 69 was paid on 5th June 1969, January to December 1970 on 23-2-70, January 1971 December 1971 on 1-4-71, January 1972 to Djcember 1972 on 14-2-72 and January 1973 to December 1973 on 25-4-83. These receipts have not been denied. It is clear that ail along the rent was being collected on yearly basis. Not only this but respondent immediately under the circumstances feeling an apprehension went and deposited the rent in advance for the whole year 197 in Misc. Rent Case on 17-5-74. This question has been recently considered by the Supreme Court while deciding Civil Petition No. 577-K/ 85 on 26th August 1986 where their lordships have observed as under :— "3. We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of the rent in lumpsum. The perusal of the details of the receipts covering the period July 1974 to May 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though che rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by Mst. Hamida Khanum. wife of the petitioner, the respon­ dent started depositing the rent in the court of the concerned Rent Controller and thus under the c ircumstances it cannot be said that the respondent is a willful defaulter. Finding no merit in the petition, the same is dismissed". 8. In these circumstances, I am of the view that the Rent Controller! has rightly exercised his discretion in favour of the respondent. There isle no merit in the appeal which is accordingly dismissed with no order as tol costs. (MIQ) Appeal dismissed.

PLJ 1987 Karachi 229 [DB] PLJ 1987 Karachi 229 [DB] Present : nasir aslam zahid & mamoon kazi, JJ RAB NAWAZ—Petitioner Versus SIND LABOUR APPELLATE TRIBUNAL, Saddar, Karachi and 2 Others—Respondents Const. Petition No. D-1007 of 1981, allowed on 8-12-1986 (i) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ord. VI of 1968)—

S. 2 (i)—Workman—Definition of—Held : Test for determination regarding particular person being or not being workman to wholly depend upon nature of duties to be performed by him—Held farther : Basic question being whether skilled, unskilled, clerical or manual work performed by employee to form substantial part of his duties or it be incidental or ancillary to his main duties, mere performance of some duties of clerical or manual nature not to bring employee within purview of definition, (of workman) unless such duties be shown to form substantial part of his work. (Pp. 233 & 234]£ (ii) Industrial & Commmercial Employment (Standing Orders) Ordinance, 1968 (W. P. Ord. VI of 1968)—

S. 2 (i)—Workman—Definition of—Duties performed by applicant including opening and closing of gates, physical search of trucks, counting of bags, checking of quality of rice and conducting search of persons etc. clearly falling within ambit of definition of 'work­ man'—Held : Petitioner's case to clearly fall within purview of de­ finition in question. [P. 234]C (Hi) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ord. VI of I9o8)—

S. 2 (i)—Workman—Definition of—Nature of work done by chowkidar, security guard or watchman not involving his mental faculties—Held : Only physical exertion being involved, chowkidar in question to be brought within ambit of definition of 'workman'. [P. 234JD (i») Words & Phrases—

'Manual'—Meaning of. [P. 23l]-4 et ieq. Blacks Law Dictionary, Oxford Dictionary & Chambers Twentieth Century Dictionary ref. Mirza Muhammad Kazitn, Advocate for Petitioner. Mr. Obaidur Rehman, Advocate for Respondent No. 3. Dates of hearing : 3, 4, 10 & 14-9-1986. judgment Mamoon Kazi, J.—This petition ealls in question the two orders, passed by the learned Sind Labour Appellate Tribunal, Karachi and the Fourth Sind Labour Court Karachj, dated 1-6-1981 and 23-4-1981 respectively, holding that the petitioner was not a workman and therefore, not entitled to seek relief under section 25A of the IRO, 2. The facts of the case are, that the petitioner was employed as Chowkidar in the Rice Export,,Corporation of Pakistan Ltd., the third respondent herein. He allegedly committed misconduct in consequence whereof he was dismissed from service by the respondent on 14-10-1978. The petitioner then filed a grievance petition against the third respondent before the learned Fourth Sind Labour Court, Karachi, which was allowed, but the respondent was permitted to hold a fresh enquiry against the petitioner. Pursuant to this order a fresh enquiry was held against the petitioner and the petitioner was again dismissed from employment on 22-7- 1980. He then filed another grievance application before the learned Labour Court which was resisted by the third respondent on the plea that the petitioner was not a "workman" within the meaning of the term as defined in section 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as "the Ordinance"). This preliminary objection was upheld by the learned Labour Court, holding that the nature of duties being performed by the petitioner did not attract the aforesaid definition to his case. The petitioner filed an appeal before the learned Labour Appellate Tribunal but the iam« was also dismissed as the order passed by the learned Labour Court was upheld. 3. There has been no contest on the point that a person whose services have been terminated or who has been removed, retrenched, discharged or dismissed from employment, in order to avail his remedy before the Labour Court under section 25A of the IRO, must be a "workman" according to the definition of the term in the Standing Orders Ordinance, since it is section (sic)} 12(3) of the Ordinance which specifically provides a remedy for such person by filing of a grievance petition before the Labour Court. The only argument of Mr. Mirza Muhammad Kazim, learned Counsel for the petitioner, therefor, has been that the petitioner was a "workman" according to such definition and, therefore, both the learned Labour Court and the learned Appellate Tribunal fell into error by holding othetwise. The definition is as under : — "(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward." 4. According to the evidence led by the petitioner before the learned Labour Court, he was a Chowkidar. However, his duties were of manual nature, involving mental and muscular toil as he had to check each and every truck coming into and going out of the premises of the Rice Export Corporation, he had to count the number of bags, he had to check the quality of Rice bv taking them out of the bags through bamboos, and he had to make and serve tea sometimes. Besides that, the petitioner also had to walk continuously within a radius of five miles and search every corner in the performance of his duties as a Chowkidar. 5. The definition of the term "workman" in the Ordinance indi­ cates that the key words used therein are, "skilled or unskilled, manual or clerical work". The word "work" was substituted by Act XXIII of 1973 in place of the word "labour", earlier used in the definition, thu» widening its scope. As it is not the case of the petitioner that he was doing any skilled or unskilled clerical work, what is to be determined is whether the petitioner was doing any skilled or unskilled manual work j The word''manual" has been defined in the Black's Law Dictionary toj mean as "of or pertaining to, the hand or hands; done, made, or operated/ by or used with the hand or hanus : or as manual labour. Performed by the hand ; used or employed by the hand ; held in the hand. "Although "manual work" has not been defined in the same Dictionary, but "manual labour" has been defined as "work done with the hand; Labour performed by hand or by the exercise of physical force, with or without the aid of tools and of horses or other beasts of burden, but dependent for its effectiveness chiefly upon personal muscular exertion rather than upon skill, intelligence or adroitness." 6. Oxford Dictionary has defined "manual" to mean as, "pertaining to the hands" or "done or performed with the hands". Similar definition of the word can be found in the Chambers Twentieth Century Dictionary. The definition of "workman" in the Ordinance has been examined by the Courts in Pakistan in a number of cases. In one of its recent judgment given in the case of General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others (PLJ 1986 SC 73), the Supreme Court has made the following test necessary to determine whether a person is a "workman" under the Ordinance. It has been held : "The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidential to such employ­ ment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted." Applying the above test, it has been held by the Supreme Court that a shift engineer does not fall within the definition of the term "workman". Reference has been made in this judgment to various cases including those from the English jurisdiction and two such cases which need to be mentioned in this respect are those of Hunt v. Great Northern Railway Company [(1891) 1 QBD 601] and Bound v. Lawrence [(1892) 1 QBD 226]. The first is the case of a railway guard, and the question arose, whether the work performed by him was manual. It was held that since his primary duty was to use his intelligence and not his hands, therefore, he was not engaged in manual labour. The duties of manual nature which he was occasionally called up on to perform were, therefore, held to be not enough to make him a person engaged in such work. Similar views were expressed in the second case referred to above which related to a salesman. In The Workers of Bata Shoe Company Lahore v. Bata Shoe Company, Ltd. and another (1971 PLC 1), once again the questson before the Supreme Court was, whether a foreman in a factory was a workman. The Supreme Court held that the mere fact that such person was doing something with his own hands by way of checking or testing work done by other workmen would not make his work manual within the meaning of the definition of the word "workman". In Rehmat All v. The Security Papers Ltd. and another (PLD 1982 Kar. 913) decided by a Division Bench of this Court, Ajmal Mian, J. (as he then was) while writing the judgment of the D.B., held :- "it may be noticed that Chowkidars or Security Guards as a class are not excluded expressly by the definition of workman given in section 2 (i) of the Ordinance quoted hercinabove: The question whether a Chowkiclar or a Security Guard is covered by the definition of workman given in the Ordinance will depend on the nature of duties, as pointed out hereinabove." It was held in that case that the words "any manual" and "work" used in section 2 (i) of the Ordinance are susceptible to a very wide connota­ tion, and therefore, they would cover a person who performs any manual work while discharging his duty irrespective of the. quantum of such manual work, provided he belonged to a labour class. In another case reported as Ganga R. Madhani v. Standard Bank Ltd. and another (1985 SCMR 1511), a similar question came to be discussed before the Supreme Court, the question being whether an accountant in a bank, holding a power-of-attorney from the bank, whose duties including passing of vouchers cheques and bank drafts, supervision and checking of ledgers and supervision of discharge of bank advices and statements ol accounts etc., was a workman within the definition of section 2 (i) of the Ordinance, It was held that such employee was not a workman within the meaning o-f the definition. Another important case on the point is the case of Chair­ man, Brooke Bond (Pakistan) f.tfl,, Karachi v. General Secretary, Karkunane Brooke Bond (Pakistan) Ltd. Rawalpindi (PLD 1969 Lah. 717). The question in that case was, whether a salesman who was Incharge of a depot and was responsible for sales and distribution of work in his area and who travelled from place to place at the expense of the Company, and went on rounds in his area alongwith a vanman and distributed and sold tea to the shop keepers, issued cash memos. for the stock sold, collected amounts, maintained accounts, etc., was a workman. It was held by the Lahore High Court as follows : — "In short a salesman in this company is responsible for the sales and distribution of the tea in his area. No doubt in the process he has to go round mostly on cycle at the cost of the company but that is not the end in itself. It is merely an incidental part of those main and primary duties. For the manual work involved in carrying the stocks for distribution all over the area be has the services of the vanman under him and he is not there merely to push the van from shop to shop. The clerical work involved in the discharge of his responsibilities in preparing the cash memos. the small columnwise daily statement of sales and the weekly returns forms but a small part of his duties and are altogether consequential in nature. These do not in any way change the complexion of the basic work for which the salesman is employed by the company." Another case decided by the Supreme Court on the point is the case of Shahzar Khan v. Sind Labour Court No. 4 Karachi and two others (1977 SCMR 103). In this case a chowkidar who was also supervising three other chowkidars and drawing a salary of Rs. 350/- per month was held to be a workman. No doubt, the definition of the term "workman" which was taken into consideration was not the one in question, but the defini­ tion of "worker" or "workman" given in the I. R. O. However reliance was placed on the case of Organization of Karachi Port Trust Workers v. Karachi Port Trust, etc. (Civil Appeal No. K-6 of 1968) wherein on the basis of the definition of the word "workman" given in section 2 (n) of the Industrial Disputes Ordinance, 1959, it was held that the chowkidars were workmen. It may be pointed out that the definition of "workman" in the Industrial Disputes Ordinance and the Ordinance is the same. In another judgment recently given by the Full Bench of this Court in Zubair Ahmad v. Sind Labour Appellate Tribunal, Karachi and another (PLJ 1986 Kar. 1). it has been held that before an action under section 25A could be initiated by the applicant, he should be first required to prove by evidence that he was a workman. It was further held in that case that any person doing any skilled or unskilled work or any skilled or unskilled, clerical or manual work would be covered by the definition of workman in the Ordinance, 7. The consensus of these.authorities clearly is that the test for deter­ mination, whether a person is or is not a workman, wholly depends .upon the nature of the duties, which he has been employed to perform which must be of skilled or unskilled, manual or clerical nature. The basic question, however, would be, whether the skilled, unskilled, clerical or manual work performed by him forms a substantial part of his duties or it is incidental or ancillary to his main duties. Therefore, merely because a person performs some duties of clerical or manual nature would not bring him within the purview of the definition, unless it is shown that such duties form a substantial part of his work. If this test is applied, then n our opinion, the petitioner clearly falls within the purview of the defini­ tion in question. The dudes performed by him which include opening and closing of the gates, physical search of the trucks, counting of bags, checking of the quality of rice, and conducting search of persons, etc., clearly fall within the ambit of the definition of "workman". 8. While supporting the impugned orders, Mr. Ubaidur Rehman, learned counsel for the respondent, nevertheless contended that the main duties performed by the petitioner were those of a chowkidar and the other duties, performed by him were of subsidiary nature and therefore they could not bring him within the ambit of the definition of workman His further contention was that the plea that the petitioner was a workman had not been raised by him initially in the pleadings, therefore, the same could not be permitted to be raised for the first time in his evidence. These conten­tions, in our opinion, do not merit consideration, the first plea raised by the counsel, although had found favour both with the learned Appellate Tribunal and the Labour Court. However, the argument does not appear to be tenable in view of the evidence led by the petitioner on the point. We do not think that the duty as a chowkidar was the main duty being performed by the petitioner and the other duties performed by him were of subsidiary nature or subservient to his main duty. Even otherwise the nature of work done by a chowkidar or a security guard or a watchman does not involve his mental faculties as the same involves only physical exertion, and that in our view, should be sufficient to bring him within the ambit of the definition of workman, but in any case, the nature of other duties performed by the petitioner, which by no stretch of imagination can be regarded as incidential to his duties as chowkidar, clearly brings, him within the purview of the definition. The next contention of Mr. Ubaidur Rehman is that the plea taken by the petitioner that he was a workman was belated, also appears to be devoid of force as in the earlier case between the parties, such a plea had been taken by the petitioner and not controverted by the respondent No. 3. Although it is true that the plea was not raised again in the second application filed by the petitioner before the learned Labour Court, but by no means the same can make the plea an afterthought. Mr. Kazim has explained that since the plea, which had specificclly been taken in the earlier grievance petition, had not been controverted by the third respondent in its written statement, the petitioner did not find it necessary to specifically raise the same plea again. We also find that no evidence has been led by the respondents to rebut the evidence of the petitioner on the point. All this leads us to accept the petitioners evidence on the point which clearly establishes that the petitioner was performing duties of manual nature. The contention, therefore, has no force. 9. For the foregoing reasons, we allow this petition and hold that the orders passed by the learned Labour Court and the learned Labour Appellate Tribunal, dated 23-4-1981 and 1-6-1981 respectively, are without lawful authority and of no legal effect. The case is therefore remanded to the learned Labour Court for decision on merits. In view of the questions involved, the parties are left to bear their own costs. (TQM) •—•

Petition allowed.

PLJ 1987 Karachi 235 PLJ 1987 Karachi 235 Present: syed haider ali pirzada, J Haji MUHAMMAD RAFiQ-Appeliant versus SHAHENSHAH JEHAN BEGUM—Respondent First Rent Appeal No 336 of 1985, dismissed on 17-12-1986 (i) Civil Procedure Code, 1908 (V of 1908) -

O, IV, R, 1—Suit— Institution of—Suit to be instituted by pre­ senting plaint—Provisions of —R. 1 of O. IV, however not specifying by whom plaint to be presented—Held : Plaint to be competently presented by any person. [P. 237JB (ii) CJTil Procedure Code, 1908 (V of 1908)—

O. V!, Rr. 2, !4 & 15—Plaint—Verification of—Requirement of— Plaint (though) not properly signed or verified, same admitted and entered in register of suits -Heid : Such plaint not to cease to be plaint. [P. 237JC PLD 1963 Kar, 446 ; PLD !972 Qca. 5 ; PLJ 1979 Kar. 181 & 1984 MLD 1220 ref. (iii) Civil Procedure Code, 1908 (V of 1908)—

O. VI, R. 14 — Pleadings — Signatures on — Held : Expression "signed by person duly authorised by him to sign same" not to be restricted to written authorizations—Held farther : There being no reason to read O. VI, R. 14 as requiring written authorization or power-of-attorney, even oral authorization, if proved, to be taken as sufficient. [P. 237]A (iv) Sind Rented Premises Ordinance , 1979 (XVII of 1979) —

S. 15 (2) (vii)—Eviction — Personal requirement — Ground of— Landlady —Failure to examine herself—Effect of — Landlady requir­ ing disputed premises to be vacated for her husband—Such husband appearing in witness box — Failure of landlady to appear as witness causing no prejudice to tenant—Held : Non-examination of landlady to be of no consequence. [P. 23S]D (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

Ss. 15 (2) (vii) & 21 — Eviction—Personal need — Ground of — Pressing necessity of occupying premises for purpose of commencing her husband's work proved by landlady—Held : Rent Controller not to be said to be in error in allowing eviction application on such ground. [P. 239jE Mr. Khalique Humayun, Advocate for Appellant. Mr. A. Aziz Khan, Advocate for Respondent. Date of hearing : 20-10-1986. judgment This First Rent Appeal is directed against the order dated 21st April, 1985 passed by the VHIth Senior Civil Judge/Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over vacant possession of the premises to the respondent within one month from the date of the order. The facts leading to the filing of the above appeal are that the res­ pondent is the owner of the double storeyed building situated on plot No, 679-C, Central .Commercial Area, PECH Society, Karachi. The ground flour of the said building was let out to the appellant for a period of 5 years in pursuance of an agreement dated 28-6-1978. The respondent filed eviction application No. 4529 of 1983 on the ground of personal requirement and unauthorised lease, subletting of a portion of the disputed premises to another person who is running a 'pan' shop therein. The appellant resisted the eviction application. Husband and attorney of the respondent filed his affidavit-in-evidence in support of the eviction applica­ tion and examined Muhammad Ameen Excise and Taxation Inspector. The appellant filed his own afBdavit-in-evidence in rebuttal. They were cross-examined by the learned counsel for the respective parties. The learned Rent Controller on the_ basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application on the ground of personal requirement vide order dated 21-4-1985. The appel­ lant being aggrieved against the order dated 21-4-1985 of the YHIth Senior Civil Judge/Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Khaliq Humayoon, learned counsel for the appellant, has raised the following contentions :— (1) Eviction application is not maintainable. (2) Eviction application is signed by a person who was not autho- rised under the power-of-attorney to sign the same. (3) Landlady was admittedly in Karachi and she did not sign and present it. (5) Landlady did not appear in the witnesss-box to give evidence. On the other hand Mr. A. Aziz Khan learned counsel for the res­ pondent has submitted that the eviction application is maintainable in jaw and the order of the learned Rent Controller is in accord with the evidence on record. I take first three contentions together as the same points are involved. I have perused the original eviction application. This eviction application was filed by the attorney of the respondent; The husband and attorney of the respondent produced general power-of-attorney alongwith his affidavit-in-evidence. I have perused the power-of-attorney Clause 1 thereof shows that the attorney is authorised to sign and execute all documents on her behalf and to appear before the Registrar or any autho­ rity for that purpose. A perusal of Clause 13 shows that the attorney is authorised to prosecute or defend any suit, complaint, application, petition or any proceedings whatsoever before any Court or authority as may be necessary or expedient relating to her property and for such purpose to appoint any advocate, pleader or agent on her behalf to verify or file plaints, applications, written statements, memorandum of appeal and to compromise, compound, withdraw and refer to arbitration such legal proceedings in or before any court or authority and for that purpose the said authority may accept service of any summons, notice, wril etc, issued against her by any legal authority, I he objections having taken by the appellants on the ground that the eviction application was uot properly signed or verified by the respondent. The relevant provisions of the CPC must be brone in mind. They are Order 4 Rule 1, Orde; 0 Rule 14, Order 6, Ruts 15, Order 3 Rules i and 2 and Order 7 Rule 11. Order 6 Rule If requires that every pleading shall be signed by the party and hij pleader, if any, provided that where a party pleading is, by reason of absence or lor other good cause, unable to sign the pleading, it may Le signed d\ an;, person duly authorised by him, Orjjr 6 Rule 14 provides that in certain circumstances a pleading may be signed by any person duly authorised by the plaintiff to sign the plain: or to sue on his behalf. The expression ''Signed by a person duly authorised by him to sign the same" need not be restricted to written authorizations. If the authorization is proved, even an oral autnorization should be taken as sufficient and there is do reason to read Order 6 Rule 14 as requiring written authorization or a power-of-attorney. Order .3 R;;ie 2 describes who the recognized agents referred to in Order 3 Rule i aje. A bate reading of Order 3 Rule 1 shows that it only applies to appearances applications or acts in or to any court required or authorised by law to be made or done by any party in such court; The signature on a plaint is not an appearance or application, or act in or to a court. The presentation of piairit may be an act to or in a court, but the mere act of signing a plaint would not be an act in or to a court. A bare perusal of Older 4 Rule i shows that it merely provides that every suit; .bail Di instituted by presenting a plaint. Order 4 Rule 1 does not specify! by \nom a plaint is to be presented. A plaint can therefore be presented by a ay person. Oidcr 7 Rule l i CPC svnich refers to the rejection of a plaint, enume­ rate only four cases in which a plaint can be rejected but it does not enumerate any of the defects or irregularities referred to in Order 6 Rules 2, 4 and 15, It is clear from the provisions contained in Order 6 that these rules relate to procedure, i am of the view that if a plaint or rent case is not properly signed or veritied but is admitted and entered in the register of s.uhs or rent cases, it does not cease to be a plaint or a rent case and the suit or eviction application cannot be said to have been instituted merely because of existence of some defects or irregularities iu the matter of signing and verification of plaint or eviction application, 1 shall next turn to the authority of decided cases. That defects ia legard to signature on a plaint or eviction application are technical irre­gularities relating to matters of procedure. In Khuda Bux and other.? v. Fida Hussain (PLD 1963 Karachi 446) where it was Held that proceedings before Rent Controller should not be judged strictly from the point of view of mere technicalities that are observed in law courts. The Single judge of the then High Court of Sind. and Balucuistaa (Quetta) in Chand Muhammad AH & Co. v. Dr, Sirajul Haq ami ? others (PLD 1972 Quetta 5) where it was held a Rent Controller is not a court and the CPC is not applicable. It was further held "it would be absured to dismiss an eviction application merely because a landlord had inadvertently failed to sign it or because it was signed on his behalf by an agent who did not bold a general power-of-attorney from him, In Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai (PLJ 1979 Karachi 181) where it was held that eviction application cannot be allowed to fai! merely for reason of landlord having inadvertently failed to sign it or because of person signing such application being not landlord's attorney within meaning of Order 11 of Civil Procedure Code, 1908. In State Bank of Pakistan . Jehangir Rustam Kakalia (1984 MLL) 1220) where it was held that the person who has signed the application and has given evidence was authorised under Regulation 36 to sign plaints and other documents on behalf of the appellant. It therefore seems that he had the authority to deal with matters under litigation. Additionally a mer; omission to sign the ejectment application or if it is signed by a authorised person, will not make it incompetent. The eviction application in the instant case is signed by respondent's husband and attorney. The signature of the attorney is, therefore, sufficient. Ihe husband also admittedly happens to be the attorney of the respondent The respondent has authorised to file eviction application on her behalf. In any case the appellant paid him rent which was accepted by him. The attorney was authorised to receive the rent from him. In this view of the matter it is not to decide the question whether Muhammad Rehman was authorised by proper power-of attorney to sign and to verify the eviction application as 1 have already earner held that the words "duly authorised" in Order 6 Rule 14 need not be restricted to mean authorisedly proper written authority or by power-of-attorney. The objections are therefore overruled. The other objection of the learned counsel for the appellant is that the landlady herself present in Karachi and she herself did not appear in witness box. The eviction application was filed on the ground of personal requirement of her husband who wanted to start his independent work. The appellant examined her husband as to the bona fides of his need In presence of his evidence it is hardly necessary to examine his wife. In the instant case the landlady required the disputed premises to be vacated for ner husband and the husband for whom the premises in dispute was required, had appeared in the witness box and he was cross examined. D The failure of the landlady to appear in the witness box was not fatal to the case of the landlady, as no prejudice was caused to the tenant on account of the failure of the respondent to appear as a witness in the case. As uch non-examination of the respondent would be of no consequence. The only other submission of the learned counsel for the appellant is that the respondent failed to prove the bona fide personal requirement of the premises. The respondent averred in her eviction application that her husband wanted to start an independent work and the premises in the occupation of the appellant most suited to his requirement. Muhammad Rehman the husband and attorney of the respondent filed his own affidavit in support of the eviction application and stated therein that he is highly qualified and experienced civil engineer. He also stated that at the time tne premises was let out and at the time of renewal of tenancy for a period of five years he was in servie. He was due to retire in April 1979 and there was possibility of extension in his service. He further stated that he was trying and expecting some suitable assignment as Adviser under one of the organizations of the United Nations and had then no intention of starting the independent practice and as such the tenancy renewed upto June 1983 and eventually he decided to start his own practice as consulting engineer in Karachi. The attorney described the details in his affidavit and hereafter stated that the location of the premises in question on the ground floor is a matter of additional convenience for him and the prospective clients. It is pertinent to note that the husband and attorney of the respon­ dent was cross-examined at length and the only suggestion to him is that he did not give details of his qualifications and experience in the eviction application. It is amply proved from his evidence that the premises in queition was required by him to start the practice as a structural engineer. The respondent stated in her eviction application that her husband is a highly qualified and experienced engineer and decided to start his own indepen­ dent work. She also stated that he served in Government service as an engineer and the premises in question is most suited to his requirement. After having heard counsel for the parties I am of clear opinion that the appeal must fail on the ground of personal requirement. Learned counsel for the respondent contended that there was sufficient material before the Controller to show that the respondent did not merely have a desire to occupy the premises in question, but her husband required it in good faith. 1 find that the respondent had clearly mentioned in her eviction application that she required the premises in question for the purpose of her husband's independent work. If the respondent/applicant had proved that her necessity was bona fide, that the premises which belonged to her was required for establishing her husband's independent work, there could be no question of a mere desire, but it is a case of real requirement or gnuine need. In fact the irresistable inference which couldi be drawn from the facts is that the respondent's husband had a pressing ne-j cessity of occupying the premises for the purpose of commencing his work. J The Controller, therefore, could not be said to be in error in allowing hen eviction application on this ground. In the result, this appeal therefore, must fail and is dismissed but the parties will bear their own costs. The appellant is directed to hand over possession of the present premises on or before 31-3-1987. In case of failure to hand over possession on the above date, the writ of possession will be issued without any notice to him. (MIQ) Appeal dismissed.

PLJ 1987 Karachi 239 PLJ 1987 Karachi 239 Present : saleem akhtar, J SAJJAD MAHMOOD and Another—Petitioners Versus PRESIDING OFFICER & FCM, SIND LABOUR COURT No. V, Muslimabad, Karachi and 3 Others—Respondents Const. Petition No. S-80 of 1983 : allowed on 24-1M986 (i) Constitution of Pakistan, 1973— —Art. 199 read with Provisional Constitution Order, 1981 (CMLA's I of 1981)-Art. 9 and Industrial Relations Ordinance, 1969 (XXIII of 1969)—Ss. 15, 16 &. 53 —Writ jurisdiction—Exercise of— Labour Court—Jurisdiction of—Objection regarding — Failure to raise in petition—Effect fo —Objection regarding jurisdiction of Labour Court not taken in (writ) petition — Challenge to jurisdiction, however, based on interpretation of provisions of Industrial Relations Ordi- :s:-ice, 1969—Oppoitunity also afforded to respondent to submit

:.';.' as arguments (on point)—Held : Petitioner to be entitled to pre-,i (such) objection (before High Court). [P. 242]A fii) industrial Reltions Ordinance, 1969 (XXIII of 1969)- ... — Ss. li, ]6 & 53—Unfair labour practice — Offsnces relating to- Trial of—Labour Court-Jurisdiction of—Held : Trial of offences nrfair labour practice being within exclusive domain iUM\t J .ti,on of Nation.! Industrial Relations Commission. of Labour Court to try such offences to be limited to where it be authorised to do so by general or special • - f Co'u'dission r p. 2461E Stations Ordinance, 1969 ^XXIII of 1969)- «. 3 -L'niair labour practice Protection against—Proieltl. In case of any unfair labour practice being cornpa'tv to be entitled to institute proceedings seeking icdress against commission or contmuation of specified in Ss, IS and 16 of IRO — Held based ors violation of Ss. 15 & 16 but not 53 to be competently adjudicated by «s by National industrial Relations Comiiowever, to be placed on jurisdiction of t of proceedings relating to offences under "time which fall within exclusive n such cases to try offences ui .peein! order of N1RC .u.Mial Industrial Relations Commission—Functions at': 1 k - l..)'i of —Held : National Industrial Relations Commis- •:.:tu to initiate pro eeti'tua, trial or proceedings in respect of matters relating to its iurct'ons- Such Co'nmission also to competently withdraw any application, proceedings or appeal relating to unfair labour practice or to refer such cases to Labour Court for report or dis­ posal. [P. 245]B (?) Industrial Relations Ordinance, 1969 (XXIII of 1969) - ——Ss 53 & 35—Unfair labour practice—Penalty for—Labour Court — Jurisdiction to try offences--Held : Limitation having been placed by S. 33 of Ordinance, Labour Court to try offences under such sections only in case of its having been authorised by National indus­ trial Relations Commission, [P. 245]C (?i) Interpretation of Statutes-- .. -—Harmonious construction—Principle of—Held : While interpreting statute all its provisions to be taken into consideration and endeavour to be made to give harmonious construction and avoid conflict. Mr. Now Muhammad, Advocate for Petitioners. Mr. Bilal K'-mvaja, Advocate for Respondents 2 & 3. Date of hearing : 7-8-1986. judgment The petitioners have challenged the proceedings initiated before the Sind Labour Court No-V Karachi, the respondent No. 1 in respect of offence relating to unfair labour practice against the workers. The petitioners are employed as officers in Pakistan Burma Shell which is a public limited company and is engaged in business of storing, and marketing petroleum products in Paki5tan. The petitioners No. 1 and 2 are working as Install­ ation Manager and Labour Welfare and Administrative Officer respectively at the Company's Establishment at Keamari, Karachi. The Workers of the company had two trade unions namely Karachi Petroleum workers Union (KPWU) and Burma Shell Employees Union (BSEU). The first union is a local trade union registered with the Registrar of the Trade Union Sind with the membership of Company's workers working at Pakistan Burma Shell !nt«al!ation at Keamari. Karachi. The second trade union is registered with NIRC consisting of the membership of company's workers work : ns a! the head offire, southern office and all the workers of the Company engaged outside the province of Sind. K.P.W.U is the Collective Bargaining Agent of the Company's workers for its establishment at Karachi, and BSEU continues to be the Collective Bargaining Agent of the Company's workers throughout Pakistan except the establishment at Karachi. In May, 1981 differences arose among the office bearers of KPWU and thereupon the respondent No. 2 organized a third trade union, the respondent No. 3 which according to the petitioners has only 47 members. On or about 14-12-198! the respondent No. 3 made an application under section 5 of the Industrial Relations Ordinance 1969 to the respondent No. 4 for iti registration as a third trade union for the establishment in the Province of Sind. It is alleged that the respondent No. 4 granted the certificate on 7-1-1982 without making any inquiry from the Company as to the number of workmen employed in its establishment. According to the petitioner this certificate was issued illegally and without any authority and is of no legal effect, as the condition precedent prescribed by section 7 (2) (b) of the IRO has not been complied with. On or about 25-1-1981 the respondent No. 2 as Genera! Secretary of respondent No. 3 sent a letter to the General Manager of the Company alleging that the management of the company at Keamari was conniving at in the harassment of workers who had recently joined the respondent No. 3 and that the water supply to the PBS quarters of such workmen has been stopped to pressurize them not to join the respondent No. 3. Alongwith this letter a list of workmen affected by such illegal act was attached ; they were (1) Nursy, Sweeper 106 and (2) Afvr. Lakshami w/o Durya, Sweeper 107. The Cotnoany by it litter dated 2-2-1983 denied that it had any knowledge as 10 the identity of any members of respondent No. 3 or that it had disconnected water supply of 'any of its employee or that any of its officers are showing any concern with the choice of these workmen to join that ever union they prefer and that the allegation of unfair labour practice alleged by the respondent No. 3 was baseless. In the meantime'Nursv and Ml. Lakshrni both intimated the Company that they have nothing to do with the membership of KPWU as they have joined respondent No. 3 and their contribution to KPWU be dis­ continued. On 12-3-1983 the respondent No. 4 sent a show-cause notice to the Compahy asking for comments and reply to the application dated 15-2-1' 83 of respondent No. 3 requesting the Director Labour Sind to prosecute the management of the Company for unfair labour practice and alternatively to give permission to the respondent No. 2 to lodge the complaint. The company sent a reply dated 16-3-1983 asserting that the respondent No. 3 has been irregularly registered and action under section 10 of the 1RO should be taken, that the Company has never been supplied with the names of the company's workers who have become members of the respondent No. 3, the Company is not aware of the identity of the workers of respondent No. 3, and finally it was denied that unfair labour practice has been committed. It further stated that the Company was neither under any obligation to supply water at workers quater nor it has disconnected of discontinued water supply at any of its workers quarters: On 7 6-1983 the petitioners received summons from the respondent No. 1 requirng them to attend before him on 12-6-1983 and to answer the complaint made by the respondent No. 2 alleging commission by the petitioners offences of unfair labour practices under clauses (c) and (d) of section 15 of the IRO and praying that they be sentenced under section 53(1A) of the IRO, 1969. The petitioners then filed this petition challenging the action. Mr. Noor Muhammad the learned counsel for the petitioner has contended that the Labour Court has no jurisdiction to try offences relating to unfair labour practice. It has also been contended that as the provisions of Pakistan Essential Services (Maintenance) Act, 1952 have been made applicable to the company the labour court has no jurisdiction to prosecute the petitoner. The registration of respondent No. 3 is not proper and legal as it has illegally been granted without any notice to the company and if at all the registration is legal and proper it is only the CBA which can approach the authority to represent the workmen and action taken by respondent No. 3 is not valid in law. As regards first contention regarding jurisdiction of the Labour Court Mr. Bilal Khawaja the learned counsel for the respondents No. 2 & 3 has contended that this objection has not been taken in the petition therefore the petitioner can not be permitted to raise it, Mr. Bilal Khawaja requested for time to submit written arguments on this objection and the same has been submitted and placed on record. It is correct that no specific plea clallenging the jurisdiction of the Labour Court in respect of trial of offences regarding unfair labour practice has been taken but the moment the proceedings were started the petitioner filed this petition challenging its legality. In ground 'F' it has been pleaded that the order and proceedings lire without any lawful authority and of no legal effect. Considering the facts and circumstances of the case and as opportunity was given to the respondent's couns2l to submit written arguments and further as the challenge to jurisdiction is based on interpretation of provision of IRO without investigating the facts of the case, in my view, the petitioner is entitled to press this objection. In any event the respondents have not been taken by surprise as opportunity has been given to them to submit written arguments besides the arguments addressed by their counsel. The learned counsel for the petitioner has referred to two judgments of the learned Labour Appellate Tribunal, Sind, namely, Shaikh Shafiuddin, Director Ahmed Food Industries Limited Karachi v, Taj AH Kundi, General Secretary Labour Union 1984 PLC 538 where ii was held that the Labour Court has jurisdiction in respect of offences relating to unfair labour practice but if the NIRC has taken cognizence of any such offence the Labour Court shall not take any action or entertain any application or proceeding in respect thereof unless the case is referred to the Labour Court for disposal, in Zahirudctin Ansari v. Mashoodul Hassan 1984 PLC 538 the learned Tribunal held that the trial of offences in respect of unfair labour practice under section 15 and 16 1RO fail within the exclusive jurisdiction of National Industrial Relations Commission and unless the Commission authorises Labovr Court it can not try the same. It would be proper to reproduce the relevant provisions of IRO : Section 22A : ------

The following shall be the functions of the Commission, namely — (/) to try offences () punishable under— 0') section 53. other than sub-sections (1) and (5) thereof ; and (j'i) any other sections, in so far as they relate to employers or workers in relation to an industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation ; (g) to deal with cases of unfair labour practices specified in section 15 and 16 on the part of employers, workmen, trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down uader section 25A or section 34 or in such other way as may be prescribed, and, to take, in such manner as may be prescribed by regulations under section 22F, measures calculated to present an employer or workman from committing an unfair labour practice ; I A

— _ ____ _ j

V ) Section : 22A (9) The Commission may, on the application of a party, or of its own motion, — (a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions ; and (b) withdraw from a Labour Court any application, pro­ ceedings or appeal relating to unfair labour practice. Section : 22A (10) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may—- (a) proceed directly with the case, or (6) ask the Registrar within whose jurisdiction th; c.i^ his occurred or is likely to occur ;o enquire into it and submit a report, or (f) refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or ior dis­ posal. Section : 22A (10A) The Labour Court to whom the cast is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case a« if the proceedings had originally commenced before it {and giant such relief as the Commission has the p,..wer to grant) Section : 22A (11) Save as provided m (sub-section 11(JA) aad (12) no Registrar Labour Court or Tribunal shall take anv action, or entertain aay application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission, Section : 22A (12) Nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively ; Provided that no court, including a +• Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.' Section 35 :

>

—

iy\ (5) A Labour Court shall,— try offences under this Ordinance and such other offences under any other law as the Provincial Government may, be notification in the official Gazette, specify in this behalf. exercise and perform such other powers aiid functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law. Section 53 : Penalty for unfair labour practices—- (!A)

•- .—-—. — , (2) — —-——..— •»..__. ,, (6) Nothing in this Ordinance shall be deemed to exclude the jurisdic­ tion of a Labour Court or the Court or a Magistrate to try a case under this section if it is authorised to do so by a genera! or special order of the Commission. Section 64 : Trial of offences. —Save as provided in this Ordinance, no court other than a Labour Court or that of a Magistrate of the First Class shall try any offence punishable under this Ordinance. The functions and jurisdiction of NIRC have been specified in section 22A (8) IRO which inter alia provides that NiRC has jurisdiction to try offences punishable under section 53 except mentioned in sub section (1) and (:<) and to deal with cases of unfair labour practices specified under sections 15 and )6 IRO. NIRC has power on the application of a party or suomoto to initiate prosecution, trial or proceeding in respect of matters relating to its functions. It can also withdraw any appiication or pro ceedings or appeal relating to unfair labour practice or refer such cases to, Labour Court for report or disposal. Sub-section (11) provides that ( except the cases referred to the Labour Court under sub-section (10-a) and cases of unfaii labour practice, the Labour Court shall not entertain or take any action relating to matters falling within the jurisdiction of NIRC. Sub-section (12) provides that section 22A does not debar the Labour Court from entertaining cases of unfair labour practice. In order to determine whether Labour Court has the jurisdiction to try offences under section 53 one has to look to the other provisions of the IRO Under section 35 (5) (c) the Labour Court is empowered to try offence under IRO. Section 53 provides penalty for unfair labour practice Section 53 (6) specifies that nothing in the Ordinance shall be deemed to exclude the jurisdiction of the Labour Court to try any case under section 53 if it is authorised to do so by a generally or special order of the Commission. The effect of these! provisions is that although the Labour Court is empowered to try offences| under the Ordinance, limitation has been placed by section 53 to the effeci that it can try offences under this section only if authorised by the NIRC. Section 64 provides that except as provided by the Ordinance no court other than the Labour Court or that of a 1st Class Magistrate shall try offences under the Ordinance. This provision empowers the Labour Court to try offences under the Ordinance but exercise of such jurisdiction is subject to other provisions of the Ordinance. This section therefore imposes limitation on the jurisdiction of the L C. to try offences and such limita­ tions are provided under the Ordinance. If no limitations were intended to be placed it was not necessary to open section 64 with the words 'save as provided by the Ordinance.' It would have been sufficient to provide that no court except the Labour Court will have jurisdiction to try offences under the Ordinance. It is pertinent to note that these opening words were added by Act XVI of 1975. To find out the limitations placed on the jurisdiction of Labour Court to try offences under Ordinance, the aforestated provisions have to be considered and interpreted. For determining the jurisdiction of the Labour Court for trial of offences relating to unfair labour practice two key words viz 'offence' and 'case' require special consideration. In the aforestated provisions words 'offence' and 'case' have been used conveying different meanings. Under S. 22A (8) (f) NIRC can try offences under section 53 which provides penalty for unfair labour practices. Section 22A (g) authorities NIRC to deal with cases of unfair labour practices specified in section 15 and 16. These provisions clearly demonstrate that words 'offence' and 'case' convey different meanings. If the intention of the legislature was to use the words 'offeree and 'case' for the same meaning then it was not necessary to specify them separately in sub-section (8)(f) and (&)(g). The trial of 'offence' and "dealing with cases" refer to two different and distinguishable matters. Tne scheme of the Ordinance clearly distinguishes between 'cases' and 'of­ fence' relating to unfair labour practice as specified in section 15, 16 and 53. Where any unfair labour practice is committed the aggrieved party is entitled to institute proceeding seeking relief, protection and redress againet commission or continuation of unfair labour practice specified in section 15 and 16. The other remedy available under section 53 is to prosecute the guilty party. AH proceedings which are based on violation of sections 15 and 16 but do not seek prosecution under section 53 can be adjudicated by the Labour Court as well as by NIRC. But restriction has been placed on the jurisdiction of the Labour Court in respect of proceedings relating to offences under section 53 (1-A) (2) (3) and (4) which fall within the exclusive jurisdiction of NIRC, The Labour Court can try these offences if authorised to do so by a general or special order of NIRC as provided by Section 53(6). In this provision [Section 53(6)] the word 'case' has been used but it has been qualified by the words -under this section (section 53) which refert to penal proceedings provided by this section. Therefore the trial of offences relating to unfair labour practice are within the exclusive domain and jurisdiction of NIRC and the jurisdiction of the Labour Court to try such offences is limited to sucb cases where it is authorised to do so by a general or special order of the Commission. While coming to this conclusion I have taken into consideration the provision of section 13 which specifies the powers and functions of the Registrar. It gives a general description of offences for lodging complaints before the Labour Court or NIRC. It does not specify that the complaints in respect of offences relating to unfair labour practice are to be lodged before the Labour Court. The view expressed by me is in accord with the well recognised principles of interpretation that while interpreting a pjstatute all its provision should be taken into consideration and endeavour •should be made to give a harmonious construction and avoid conflict. A» the Labour Court has no jurisdiction to try offences relating to unfair labour practice unless authorised by the Commission it is not necessary to consider other contentions raised by the learned counsel for the petitioner. The permission granted by respondent No. 4 under section 13(b) to lodge complaint before the respondent No. 1 and the proceeding initiated by it are declared to be without lawful authority and of do legal effect, The petition is allowed with no order as to costs. (TQM) Petitions allowed.

PLJ 198 PLJ 198? Karachi 424 [DB] Present ahull hayeb kurf.shi, C j & abdul ra/ak A thahim, J llaii MUHAMMAD AMlN — Petitioucr Huji urHAUS BAK.HSH and 2 sjiusis — Rcipondcuti Const Petition No. D-243 of i^S4, heard on 27-8-1984 (i) Stud Local Government Ordinance, 1979 (XII of 1979}- — S, 37 (3)-— Candidate—Disqualification of—Held : Election authority or its member not to be competent to disqualify any person under S. 73 (3) of Ordinance without enquiry or affording oppor­tunity of being heard to person concerned. [P. 428]E (ii) Siod Local Government Ordinsncc, 1979 (XI! of 1979}— — S, 37A ..... Nominee of political piuty - Election by — Held ' Pro­ visions of S- 37A of Ordinance not to b-L» invoked against persons having any affiliation or membership of political party unless inch persons be nominees of such party in elections. I P. 427] A a member ; (b) the proposer or the seconder is not qualified to sub- icribe to the nomination paper . (c) an> provision of Rule ^3 or Rule 54 has not been complied with, or id) the signaUne of the proposes or the seconder is not genuine; provided that — ) the rejection of a nomination paper sfaail uot invali­ date the nomination of a candidate by any other valid nomination paper; and Ui) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature, y.nd may allow tny such defect to be remedied forth with (4) The Returning Officer shall endorse on every nomina­ tion paper his decision, accepting or rejecting it, and sbaHi ia the case of reitciion, record a brief statement of reasons thereof ; (5) Any candidate whose, nomination paper has been rejected may file with the Returning Officer an appeal addressed to the Election Authority before such time ai may be specified by it. Such an appeal shali be disposed of before such time as may be specified by the Election Authority, and any order passed on such appeal shall be final ," Under sub-section (2) of the above section it was open for any person to attend the scrutiny and examine the nomination paper and raise any objections thereon which Returning Officer had to decide. We muit state that no document of any kind has been placed before us lo show that such objection was raised but on 16-1-1984 a telegram was sent by tbe petitioner to the Deputy Commissioner, Nawabshah, The contents of the telegram are as under : — "Ghous Bux Ataanullah Quresbi worker MRD resigned 10-9-1983 membership U.C. Gher Gaju AAA He has filed nomination paper Ward 44 Kur Kassan Union Council TaSuka Nsusbaro Feroze AAA Pray enquiry cancel nomination paper AAA Application resignation No. 329 dated 10-9-3983 lying with ADBD. Nawabshah.'' This telegram seems to have been sent after the nomination paper of the respondent No. 1 was accepted. The petitioner did not file any appeal against ths acceptance of the nomination paper of respondent No. 1. It may be pointed out that Rule 19 of the Sind Local Council (Election Rules) 1979, had now been amended by insertion of sub-rule (5) to provide that as appeal shall lie even against the decision of tbe Returning Officer undsr sub-rule (4), although the previous rule provided for appeal in cases of rejection of nomination paper only. It is an admitted fact in the present e»se that no such appeal was filed. Even before the date of election candidature of the respondent No. I was not challenged by way of any application under Section 3?A of the above Ordinance. The election took place and results were aonouBced inipite of that the petitioner did not file any election petition m provided under Rule 65 of Sind Local Council Election Ruks, 1979, Tie sa;i, contention of the petitioner is that the respondent No. 1 had ioiaea MRD as a gesture of sympathy for which he resigned from the membership of the Union Council, therefore, he is not quali6ed to contest ''uture elections. Under Sectioa 37A, no person can contest ao election who directly or indirectly give out himself as a candidate or nominee of political party or display or carry any insignia, flag or any such other thing indicating his association with or affiliation to such, party. Section 37A reads as under : — "Notwithstanding any other provisions of this Ordinance no person contesting ao election under this Ordinance shall, for the purpose of such election directly or indirectly — (a) give out himself as a candidate or nominee of political party, or display or carry any insignia flag or any such other thing indicating his association with or affiliation to such party ; (b) seek vote or support oo party bails or in terms of the mani­ festo of any political party or by attributing party affilia­ tion to his opponent ; (c) claim or receive any financial or other assistance from any political party. 7 ' We are of the view that case of respondent No. ! does not fall in any of the clauses of section 37A as no such allegation has been made in the petition. It is also not clear a to which political party the respon­dent No, ! is associated. The provisions of the above amendment can­ not be invoked to the persons having any affiliation or membership of the political party until unieis he had been a nominee of the party attribu­ ting party association to his opponent in terms of manifesto. In the above amended section there is embargo only that she contesting candi­ date is not allowed to violate the provisions of Section 37A (a), (b) and (c) but person shall be disqualified from being elected, there is specific provisions under section 37(1) A(2) which reads as under :-- "37(1) A(2) A person shall be disqualified from being elected as and from being a member if— (a) he is not or has ceased to be a citizen of Pakistan ; (b) he is an undischarged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent ; (c) he ii of unsound mind and stands so declared by a com­ petent Court or is physically in-capaciated ; (d) he has, on conviction for any offence, been sentenced to imprisonment and a period of three years or such less period as Government may, in any case specify, has not elapsed from the date of expiration of the period of sentence." However, the petitioner has not filed election petition though remedy was available to him and all disputes relating to the election on the poim of fact and law cou!d validly be agitated by way of election petition as, contemplated under rule 65 which reads as under ;— "No election shall be called in-question except by an election petition made by a candidate for that election." in view of the specific rule providing for alternate remedy the present petition is not competent. U may be observed that the right of the franc­hise or the right to contest an election is a valuable right which cannot be deprived of unless the evidence brought before the competent authority is D 1 of independent character and inspire full confidence. On this point this Court allowed so many Constitutional Petitions and held that person can­ not be disqualified under Section 37(3} of the Act orany other provision on vague-allegations. We refer to a case of Abdul Hussain Azad v. Provincial Election Authority Karachi and others reported in PLD 1984 Karachi 42 and same view has been taken in an un-reported case CP No. D-761/1983. These are questions of fact for winch no document or evidence whatsoever has been produced before us and even otherwise the election authority or member is not competent to disqualify any'person under Section 37(3) of the Ordinance without enquiry or affording opportunity of being heard to the psrson co nceroed, la these circumstances, this Constitutional Petition is without merit and is dismissed with no orders as to costs. (TQM) Petition dismissed.

PLJ 1987 Karachi 247 PLJ 1987 Karachi 247 [Sukkur Bench] Present : ahmed ali U. qureshi, J Mst. HUSNA—Petitioner versus MUSHTAQ ALI and 2 Others-Respondents Const, Petition No. S. 204 of 1984, (partly) allowed on 3-3-1986 Guardims & Wards Act, 1890 (VIII of 1890)-

Ss. 25 & 47 read with Family Courts Act, 1964 (W. P. Act XXXV of !964)-Ss. 5 & 14 and Constitution of Pakisian, 1973—Art. 199— Custody of minor—Application for—Order on — Appeal against — Competency of—Custody of minor restored by Family Judge to respondent No. 1—Appeal against such order subsequently dismissed by District Judge on ground of same being not competent — Held : There being, no prohibition of filing appeal against such order under Guardians and Wards Act, 1890 for custody of minor and such appeal being also competent under S. 14 of Family Courts Act, 19o4, impugned order of District Judge (dismissing appeal) to be illegal and without" lawful authority, [Pp. 248 & 249]A & B PLJ 1986 SC 39 rel, Mr, Muhammad Hanif Mangi, Advocate for Petitioner. Mr. Bhajandas, Advocate for Respondent No. 1. Dates of hearing : 11-2 & 2-3-1986. judgment This petition is directed against the order of learned Civil Judge and Family Court, Shikarpur dated 3-1-1983 and 6-2-1984 and against the order of learned District Judge Shikarpur dated 5-12-1984. The brief facts leading to this petition are that the petitioner was married to the respondent No. 1 and a daughter Mst. Rozina was born out (sic) of this wedlock. The marriage between the parties was dissolved by the Civil Judge and Family Court Khairpur by his order dated 30-4-1974. After dissolution of marriage Mst. Rozina who was at that time aged about 14 year continued to live with the petitioner who looked after her and educated her. The respondent filed application No. 11/84 under section 25 of Guardian and Wards Act for restoration of Mst. Rozina in the Family Court Shikarpur. This application was granted ex-parte on 3-1-1983 awarding the custody of minor to the respondent. The petitioner resisted the execution application filed by respondert but her objections were dismissed by the Family Judge by order dated 6-2-1984. Her appeal before the District Judge Shikarpur was dismissed on 5-12-1984 by a short order. It appears that the minor Mst. Rozina filed Constitutional Petition bearing No S-28/84 in this Court which was dismissed by learned Single Judge of this Court vide order dated 12-9-1984. The learned counsel for the petitioner has assailed the impugned orders mainly on the ground that Family Court at Shikarpur had to jurisdiction to hear the case as minor is residing and has been residing at Khairpur alongwitb the petitioner. Secondly that the welfare of the minor was not considered by the Family Judge while passing the impugned order. The order of learned District Judge assailed on the ground that it is very short order passed without discussing or considering the mirits of the appeal. The copy of this order of learned District Judge has been filed as annexure E. The relevant portion of this order is reproduced as under :— "Appellant has filed constitutional petition before the Honourable High Court against the said orders but the same was dismissed by the order dated 12-9-1984. Perusal of this order indicates that the constitutional petition has been dismissed on considering the facts and circumstances of this matter and as such it is not open to this court to re-examine the same points. Further in the same order, it has been held, that against the said orders no appeal lies. I therefore, dismiss this appeal with no order as to costs." It will be seen that learned District Judge has not discussed the con­ tentions raised by the petitioner in the appeal before him, but has merely dismissed the appeal because constitutional petition filed by the appellant had been dismissed by the High Court, wherein it has been observed that no appeal lies against the orders of the Family Court. This order of District Judge is erroneous in the sense that the constitutional petition was not fi/ed by the appellant viz. the petitioner but was filed by Mst. Rozina the minor, whose custody is under dispute I have gone through the copy of the order of the learned Single Judge in this constitutional petition. The learned Judge has held that the order is passed by competent court which holds the field and in extraordinary writ jurisdiction no case for inter­ ference has been made out. Hawever, the learned Judge has made a passing observation to the effect that all the points which are agitated in the petition were agitated by her mother before the Family Court which has been considered by the Court of competent jurisdiction and disposed of by an order against which no appeal lies. It is not clear as to in what context this observation was made. It appears that the question as to whether appeal lies or does not lie was not direc'ly at issue in the petition and, therefore, section 14 of the West Pakistan Family Courts Ordinance, 1964 does not appear to have been brought to the notice of the learned Single Judge. This section provides that notwithstanding anything pro­ vided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable, Subsection (2) of this section provides : (2) No appeal shall lie from a decree by a Family Court :— (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 ; (ft) for dower not exceeding rupees one thousand ; (c) for maintenance of rupees twenty five or less per month. I It will be seen that there is no prohibition of filing appeal against an Ajorder under the Guardians and Wards Act for the custody of minor. In this {context it would be relevant to refer to the observations of their lordships of the Supreme Court in the case of Ihsanur Rehman v. Mst. Najma Parveen (PLJ 1986 Supreme Court 39). Their lordships have observed : — "The High Court has no revisiona! jurisdiction whether in cases dealt under the Family Courts Act or those dealt under the Guardians and Wards Act by virtue of section 25 of the Family Courts Act. Section 14 providing for the appeals continues and will continue to cover the field of remedy, of course apart from the Constitutional remedy." Thus there can be no doubt that appeal was competent under sec­ tion 14 of the said Act and the learned District Judge ha& wrongly heid that appeal was not competent. Obviously the impugned order of learned District Judge is not based on merits. Therefore, the petition is partly allowed. The impugned order of the District Judge is held to be illegal and without lawful authority and the case is remanded back to the District Judge to decide the appeal on merits, I refrain to pass any comments on the impugned orders passed by learned Civil Judge as they will be sub-judice before the learned District Judge in appeal. The parties are directed to appear before the learned District Judge, Shikarpur on 14-4-1986. The petition was disposed of by short order dated 2-3-1986. Above are reasons in support of the said order. (TQM) Petition partly allowed.

PLJ 1987 Karachi 249 PLJ 1987 Karachi 249 [Sukkur Bench] Present: syed abdur rahman, J LAIQ-Petitioner versus PROVINCE OF SIND and Others-Respondents Const. Petition No. D-124 of 1985, dismissed on 22-4-1986 (i) CiTil ProcedDre Code, 1908 (V of 1908)—

S. 115 read with Constitution of Pakistan, 1973 —Art. 199— Revision—Incompetency of—Effect of—Immediate appeal against impugned order though competent, petitioner preferring revision petition against same before District Judge—Held : District Judge to be perfectly justified in dismissing revision petition. [P. 251]^ & B PLD 1970 SC 506 ref. (ii) Constitution of Pakistan, 1973—

Art. 199—Writ jurisdiction—Exercise of—Held : Equitable relief under constitutional jurisdiction of High Court not to be provided to those coming to Court with unclean hands or who be guilty of laches, indolence or improper conduct. [P. 252]C Mr, Abdul Latif Gabole, Advocate for Petitioner. Mr. Zawar Hussain Jafferi, AAG for Respondent No. 1. Mr. Ali Aslam Jafarri, Advocate for Respondents No. 4 & 6. Date of hearing : 22-4-1986, judgment By this constitution petition order dated 30-4-1985 passed by the District Judge, Khairpur has been challenged. The petition was dismissed by short order on 22-4-1986. These are the reasons for the above decision. 2. Petitioner Laiq alongwith one Ghuiam Rasool had filed a suit claiming that agricultural land bearing S. No. 135 of Deh> Mithan Fakir, taluka Kotdiji exclusively belongs to petitioner Laiq. In addition he had got share with some other persons in survey Nos. 134, 1W, IIS and 471 of the same deh. It was further stated that respondents No. 4 to 6 are near relatives of co-plaintiff Ghulam Rasool and defendants No. 17 and 18 are his sisters. Respondent No. 6 by deceitful means got the mutation of the land in favour of respondents No. 4 to 6 and on the strength of same illegal mutation the said respondent and others attempted to obtain loan from Agricultural Development Bank by creating encumberance. On coming to know about the said illegal acts in March, 1975, the petitioner and co-plaintiff Ghulam Rasool filed an appeal before the Deputy Collector, Khairpur, who rejected the same as being time barred and directed them to civil court. Hence the suit. Respondents No. 4 to 6 contested the suit and claimed that the land bearing Survey Nos. 134, 117, 118 and 471 was their ancestral property. The khata stands in their names since 1970. They were in peaceful possession and enjoyment since the death of their father who was in possession and enjoyment thereof before that. They have further stated that S No. 135 also belongs to them and they have been mortgaging the same with the bank 2nd are entitled to get it from the bank. The remaining defendants had not contested the suit and had fallen to line with the petitioner. On the pleadings of the parties, the learned Senior Civil Judge, Khairpur framed as many as 12 issues and after taking into consideration the evidence led by the parties dismissed, the suit by judgment dated 31-5-1983. 3. Against this judgment the petitioner filed an appeal before the District Judge, Khairpur which came to be heard by 1st. Additional Sessions Judge, who set aside the judgment and decree and remanded the case to the trial court for deciding matter afresh after giving reasonable oppor tunity to the petitioner and co-plaintiff as well as to the other side to lead further oral or documentary evidence, as according to him certain important documents were not produced by them on issue No. 5 with regards to the origion of the title The parties were directed by the 1st. Addl. District Judge to appear before the trial court on 21-4-1984. Inspite of the direction of the first appellate court and the notices issued by the trial court, the parties did not appear nor they led any further evidence, henc; the learned Senior Civil Judge by his order dated 5- 8-1984 again dismissed the suit in-accordance with the previous judgment. An application under O. 9 rule 9 CPC was made by the petitioner and co-plaintiff for restoration of the suit under O. 9 rule 9 CPC. It came to be heard on 18-9-1984. On this date also the petitioner and co-plaintiff and their advocate remained absent. The learned Senior Civil Judge therefore dismissed the application for non-prosecution as well as on the ground that since the suit was dismissed on merit, hence application under O. 9 rule 9 CPC was not competent, Against this order the petitioner and co-plaintiff filed revision before the District Judge, Khairpur. The learned District Judge after narrating the history of the proceedings pointed out that the last order passed by the learned Senior Civil Judge was an appealable order and the appellant should have filed an appeal. The revision application was not competent. He explained the scope of section 115 CPC and rightly pointed out that in revision application it is to be seen whether the subordinate court has exercised the jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Since he was of the view that the learned Senior Civil Judge has exercised the jurisdiction which was vested in him according to law, therefore he dismissed the revision application. 4. We have heard Mr. Abdul Latif Gabole advocate for petitioner and Mr. AH Aslam Jafri advocate for respondents. 5. The order of District Judge which has been challenged before usl holds that no revision application lies in this case because there are nol two opinions on the proposition that where an immediate appeal againsij the impugned order was competent, no revision petition could be filed | The advocate for the respondents Mr. Ali Aslam Jafri cited before us PLD 1970 Supreme Court 506 Municipal Committee, Bahawalpur . Sh. Aziz Elahi, which went to the extent of holding that even in a case where no direct appeal would lie to the High Court but the second appeal alone was competent then also revision petition was not maintainable. The Sup­ reme Court over-ruled the decisions in the case of S. Ghulam Shahbaz Shah v. Ch. Muhammad Siddiq reported in PLD 1959 BJ 10 and Abdul Waheed. Allah Din reported in PLD 1960 Karachi 472 and held as follows:— "The trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent. This view is also sound on general principles for, if the framers of section 115 of the Code of Civil Procedure, had been of the opinion that a revision would be incompetent only where an immediate appeal lay to the High Court, they would have used the word "from'' and not "in" before the words "which no appeal lies thereto " To hold otherwise would lead to anomalous situations, for, a person would thereby be entitled to circumvent the ordinary procedure laid down for preferring an appeal or appeals, as the case may be. He would also be in a position to take advantage of his own negligence by not filing an appeal within the prescribed time. There is no reason why the word "appeal" used in section 115 of the Code of Civil Procedure should be given the restricted meaining of a first appeal. The words "no appeal lies thereto are words of general import and there is nothing in the section to confine their operation only to first appeals. If this is not done, and an "appeal" is held to include a second appeal, then no difficulty is created by the word "thereto." 6. We are therefore of the clear view that the learned District Judgel was perfectly justified in dismissing the revision application of the peti-|B tioner. Even otherwise the conduct of the petitioner in the past has beenj reprehensible. After the dismissal of the suit he went in appeal to the District Court wherefrom the suit was remanded for leading'additional evidence. He did not appear on the date of hearing and did not lead any evidence whatsoever and therefore the learned Senior Civil Judge was com­ pelled to dismiss his suit once again. Although he was given sufficient opportunity by the learned Senior Civil Judge, to lead additional evidence but he did not avail of the same. He had then made an application for restoration of the suit which was dismissed because he again remained absent on the date fixed for hearing of that application. Thereafter he filed the present revision application instead of filing an appeal which was dismissed by the District Judge as shown above. It may be pointed out rhat the constitutional jurisdiction provides equitable relief to those persons only who come to the court with clean hands. It does not provide any relief to those persons, who come to the court with unclean hands or who are guilty of laches, indolence and improper conduct. (TQM) Petition dismissed.

PLJ 1987 Karachi 252 [DB] PLJ 1987 Karachi 252 [DB] [Sokkur Beach] Present: ahmad ali U. qureshi & syed abdur rihman, JJ ALLAH RAKHIO-Petitioner versus KHUSHMIR KHAN and 4 Others—Respondents Const. Petition No. D-16 of 1985, allowed on 4-3-1985 (i) Citil Procedure Code, 1908 (V of 1906)—

O. I, R. 10—Proper party — Impleadment of— Interest of peti­ tioner involved in proceedings before civil court — Held : Petitioner to be proper party (to be impleaded) in case. [P. 254JA (ii) Civil Procedure Code, 1908 (V of 1908)—

O. I, R. 10 & S. 115—Party—Addition of—Order of — Revision against — Judicial discretion exercised by Senior Civil Judge on proper considerations in nrdering impleadment of petitioner as party—Held : Such order not .to attract revisional jurisdiction of District Judge. [Pp. 254 & 255JC PLJ 1983 SC 219 ref . (iii) Constitution of Pakistan, 1983—

-Art. 199—Writ jurisdiction—Exercise of—High Court—Powers of Held : High Court to have got powers to set aside in exercise of itswrit jurisdiction any order which be unlawful or without juris­ diction. [P. 254]B Mr. Gianchand, Advocate for Petitioner. Mr. Muhammad Hanif Mangi, Advocate for Respondent No. 1. Mr. Zawar Hussain Jafferi, AAG for Respondents No. 2 to 5. Date of hearing : 25-2-1986. judgment Ahmad Ali U. Qnresbi, J—The petitioner in this petition has impugned the order of learned District Judge, Sukkur dated 1-10-1983 whereby in the revision petition he has set aside the order of learned Senior Civil Judge, Ghotki impleading the petitioner as a party to the suit filed by res­ pondent No. 1 against respondents No. 2 to 5, The brief facts of the case are that the disputed land measuring about 14 acres in deh Chanad, tciluka Ubauro, used to be taken on lease by the ancestor of the present petitioner on Harap rights till 1967 whereafter the land was put in the schedule of Defence Forces Scheme and was granted to the father of respondent No. 1. On appeal filed by the father of the petitioner the Additional Commissioner, Sind by his order dated 12-11-1973 cancelled the grant of this land and granted the , t same to the father of the petitioner on the ground that late Captain Duran Khan father of respondent No. 1 was not living in the land and had no interest in it and that the land had been developed by the father of the petitioner. Being dis-satisfied with this order respondent No. 1 as legal heir of his dead father late Captain Duran Khan preferred an appeal before the Member, Board of Revenue. The Member, Board of Revenue by the order dated 23-9-1981 cancelled the grant in favour of father of petitioner and also rejected the appeal of respondent No. 1 and directed that land be granted to some other genuine settlers. Aggrieved by this order the petitioner filed review petition before the Member, Board of Revenue which is still pending whereas the respondent No. 1 filed a suit in the court of Senior Civil Judge, Ghotki praying therein that the order of the Member, Board of Revenue dated 23-9-1981 may be declared as illegal and respondent No. 1 be declared to be entitled to retain the land in dispute. The respondent No. 1 filed this suit without joining the petitioner as party who moved an application under Order 1 rule 10 CPC for being joined as party. The learned Senior Civil Judge vide (his order dated 21-2-1983 impleaded petitioner as party which order was set aside by the learned District Judge by the impugned order. The petitioner filed a revision petition in the High Court at Sukkur which was subsequently dismissed by this Court on the ground that second revision was not maintainable. Hence this constitutional petition. It is contended by the learneed counsel for respondent No. 1 that constitutional petition against the order in revision of the learned District Judge is not maintainable. In his support he has relied upon unreported decision of Division Bench of this Court in Const. Petition No. 42/82= In this case the application of the petitioner to be joined as party was rejected by the Civil Judge and was also rejected in the revision by the learned District Judge. While dismissing the constitutional petition the learned Judges observed : "It will suffice to observe that the qustion as to whether a person is a proper or necessary party in a suit is a question to be decided by the trial court or by the revisional or appellate court. It is also well settled law that if a person is not a party to a suit he will not be bound by the judgment in case it affects his right or he can file appeal against judgment if the judgment takes away his right without impleading him but in no case the constitutional petition is maintainable." It is contended by the learned counsel for the petitioner that every case has to be decided on its own merits. In the instant case the order which is being challenged by respondent No. 1 in the civil suit was passed in pro­ceedings in which the petitioner was as party and which order be has also challenged in review petition which is pending. The land for the entitlement of which the declaration is sought by respondent No. 1 is the land which is claimed by the petitioner on the basis of ancestral right of Harap on the land and also on the basis of order of Additional Commissioner granting this land to his father. As such he can not be said to be neither necessary party nor a proper party. Reliance is placed on the case of Islamic Republic vf Pakistan v. Abdul Wall Khan (PLJ 1975 SC 345). Their lordships while discussing the meaning of proper party have held: "A proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceed­ings. The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore be a person whose interest is likely to be affected even though no relief is claimed against him." judging the case of the petitioner in light of the law laid down by their lordships there can be no doubt that the interest of the petitioner is involved in the proceedings and, therefore, he is a proper party. The question that arises now is whether in constitutional petition tbi>s Court can set aside the order passed by the learned District Judge in Prevision petition. There can be no dispute that this Court has got powers ,,in exercise of its writ jurisdiction to set aside any order which is unlawful for without jurisdiction. It is argued by the learned counsel for the petitioner that the order of the iearoed District Judge was not in the proper exercise of his judicial powers. The powers that vested in the District Judge under section 115(2) CPC are defined in subsection (1) of the said section. The learned District Judge couid make an order in case where the subordinate court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction or has acted in the exercise of its jurisdiction illegally or with material illegality. It is not contested that learned Senior Civil Judge bad so jurisdiction to pass the order impleading the petitioner as a party or that he failed to exercise his jurisdiction. The only point to be seen is whether he had acted in exercise of his jurisdiction illegally or with material irregularity. As already pointed the facts of the present case clearly show that the petitioner was a proper and necessary party and his presence was necessary to avoid multiplicity of the suit. In the case of Msi. Knurshid Begum v. Malku and others (PLJ 183 SC 219) the Supreme Court set aside the order passed its revision by the High Court setting aside the order of the trial Court impleading the petitioner as a party. Their lordships held ; 'Her (petitioner) being impleaded at this stage will definitely eliminate multiplicity of litigation and enable full and proper adjoudicatiou of the factual controversy raised in the suit. Judged in this context, the impugned action of the trial court was an exercise of judicial discretion which was based on proper consideration. There can not be said to be any error or material irregularity in Us exercise to attract the revisional jurisdiction of the High Court." In the instant case also we find that the order of the learned Senior C Civil Judge impleading the petitioner as a party was the exercise of judicial discretion which was based on proper consideration. As such it did not attract the revisional jurisdiction of learned District Judge. The viewi of the District Judge that the petitioner was not a proper party because even if the suit of respondent No. 1 was dismissed petitioner was not entitled to get the land was uncalled for at the stage of deciding a revision petition specially in view of the fact that petitioner is still agitrting his right over the land in the proper forums. Considering all the factual and legal aspects we are of the opinion that the impugned order of the learned District Judge was without lawful authority and illegal, As a result this petition is allowed and the impugn­ ed order of learned District Judge is set aside as illegal and without lawful authority. The learned Senior Civil Judge will proceed with the suit with the petitioner as a party to the suit. (TQM) Petition allowed.

PLJ 1987 Karachi 255 PLJ 1987 Karachi 255 [Sukkur Bench] Present: ahmed An 1J. qureshj, J Zyed NASIR AHMAD KAZMI—Petitioner Versus Syed MUHAMMAD ZULFIQAR ALI and Others—Respondents Civil Revision No. 106 of 1984, dismissed on 6-11-1986 (i) Contract Act, 1872 (IX of 1872)—

S. 54 — Reciprocal promises — Effect of default as to — Contract consisting of reciprocal promises such that one of them not to be (competently) performed till performance of other— Held : In case of promisor of promise (last mentioned) failing to perform it, such promisor not to competently claim performance of reciprocal promises—Compensation also to be made by such person to other party to contract for any loss sustained by such party. (P. 260]A (ii) Specific Relief Act, 1877 (I of 1877)—

S. 24 (b) read with Contract Act, 1872 (IX of 1872) — S. 54 — Specific performance—Bar as to relief of—Agreement between parties coming to end on cancellation of grant of land by Government due to non-payment of instalments by applicant — Held : Question of specific performance of sale agreement not to arise in case of grant of land remaining cancelled—Respondent succeeding in getting land regranted and restored with his own efforts and on payment of interest after seven years—Held : Applicant having failed to himself perform his part, of contract, his right to claim specific performance of sale (agreement not to be revived (on restoration of land to respondent). [P. 260JB Messrs Gul Bahar Korai, Muhammad Aslam Bhutto and Ali Aslam Jafferi, Advocates for Petitioner. Mr. Abdul Ban, Advocate for Respondent No. 1 Date of hearing : 16-10-1986 judgment This civil revision application is directed against the judgment and decree dated 9-9-1982 passed by Senior Civil Judge, Sukkur in suit No. 106/ and the subsequent judgment and decree passed in Civil Appeal No, 139/ on 14-3-1984 by learned First Add!. District Judge, Sukkur, I have heard the learned counsel for the parties and also perused the record and proceedings of the suit as well as the appeal. The facts leading to this revision in brief are that respondent No. I was granted agricultural land measuring 64-14 acres in deh Bohi, taluka Panoakil, District Sukkur under the Defence Personnel Scheme by the Colonization Officer, Gudu Barrage, Sukkur vide order dated 3l-8-19(j6 on instalment basis at the rate of Rs. 500 per acre. The first instalment amounting to Rs, 3,200 was paid by respondent No, 1. On 9-11-1966 the present applicant entered into sale agreement with respondent No, 1 in respect of half of the said land. The respondent No. 1 also executed simultaneously affidavit and irrevocable general power-of-attorney. The applicant made investments and brought the land under cultivation but failed to pay the instalments as per terms and conditions of sale agreement on the ground that the blocks of the land had been wrongly described in the allotment order. As a result of non-payment of instalments the grant of the land was provisionally cancelled by the Colonization authorities on 19-2-1970 and was finally cancelled on 17-4-1972. Tbe applicant also filed a civil suit against Colonization authorities for proper correction of the blocks of land and for injunction and also offered to pay the dues to the Colonisation authorities who refused to accept on the ground that civil suit was pending Under the agreement the applicant was given the possession of entire land for 13 years and General power-of-attorney was also for 13 years. After the expiry of 13 years the respondent No. I got the land restored in 1979. The applicant then filed suit for specific perfor­ mance of the sale agreement and permanent injunction on 24-12-1979, The respondent No. I contested the suit and raised plea that the aoplicant can not claim the specific performance of agreement as he himself failed to per­ form his part of agreement of failing to pay the instalments which resulted in cancellation of the land. He also raised certain legal pleas. On the pleadings of the parties the learned trial court settled the following issues :— (1) Whether the suit land consists of B. No. 137, 138, 158 of deh Boni or B, No. 135, 136, 135 and 156 ? (2) Whether the suit land was uncultivable at the time of its grant ? (3) Whether the defendant No. 1 executed agreement to sell to plaintiff and whether he gave power-of-Tttorney to plaintiff for this purpose ? (4) Whether the plaintiff has paid the instalments towards Matkana ? (5) Whether the defendant No. 2 did not accept the instalment from plaintiff ? «6) Whether the grant is now fully paid up 1 (7) Whether the plaintiff is entitled to half of the land now ? (8> Whether pUitntiff .has no cause of action ? (9) Whether plaintiff has no locus standi to file suit ? (10) Whether suit is barred under section 42 of Specific Relief Act ? (11) Whether the suit is bad for acquiscence and estoppel ? (12) Whether the suit is barred by section 19 and 36 of the Coloniza­ tion of Government Lands (Punjab) Act, 1912 ? (13) What should the decree be ? The learned trial court dismissed the suit of the applicant. Appeal was also dismissed by learned appellate court. Hence this petition. The fate of this revision petition hinges upon the interpretation of the sale agreement which has been produced by the applicant in the trial court as Exh. 65. As both the parties rely on various conditions laid down in this agreement for the proper appreciation of their submissions it is neces­sary to reproduce the agreement which reads as under : — "This agreement is made at Rawalpindi on this 9th day of November, 1966 between Syed Muhammad Zulfiqar Ali Abid'i, son of Syed Muhammad Hussain Abidi resident of at present PA^'F Chaklala, Rawalpindi hereinafter called tbe 1st party) and Hakim Syed Nasir Ahmed Kazmi son of Syed Sajjad Ali Kazmi r/o Pannu Akhil, District Sukkur (Khairpur Divn), (hereinafter called the second party). Whereas the first party is the owner of land measuring 63 acres at Bohi, Teh : Pannu Akhil, Sukkur, about which I had been held entitled vide Assistant Colonization Officer, Pannu Akhil, No. 1096 of 1966 dated 31-8-66, on, instalments basis nnd the first instalment had already been pa|d by the first party of Rs. 3200. That the second party is the Genaral attorney and the pay­ ments will be made by the name of the first party, and after the completion of all the dues of instalment to the Govt. and on the full ownership of the land, the 1st party is bound to transfer ½ of the land in all respect, in favour of the 2nd party, in case the first party as his legal heirs, representatives are declined to do so, the 1st party will pay the price of half of land the market value at that time to the 2nd party. (2) (2A) That the second party will pay Rs. 20,000 to the first party in case of failing or non-payment of the instalments, or dues to the Government, as a result of which the land had been dis­ possessed. (3) That if the second party complete all the instalments of the Govt. he will pay the revenue tax and will take into the possession uptil 13 years and will pay all the dues, (4) That the first party is bound to transfer one half of the land, when all the dues completed by the second party. (5) That in case the land taken into possession of the Govt. under the policy, either party will not compensate to each other, and this agreement will remain into force upto 13 years." There does not appear to be much dispute about the facts. The sale agreement and its terms are admitted. It is not disputed that the applicant did not pay the instalments as a result of which the grant was cancel­ led. It is also not disputed that the respondent got the grant restored in 1979 However, the applicant contends that he did not pay the instalments because the land was wrongly described in order of grant of the land and, therefore, he filed suit for the correction of the survey block numbers and for shifting of instalments. Both the courts below have rightly held, while giving their findings on issue No. I, that applicant even in his deposition has not stated, that the suit land was described by wrong survey numbers and what were the correct survey numbers. Therefore, both the courts gave concurrent findings in negative on ibis plea of the applicant. I have gone through the evidence of the applicant and find that applicant has not deposed a single word about his averment that the land was wrongly, des­ cribed but rather has stated, that land was found short viz only 40 acres including 8 acres which were Kabuli land of Kalhoras. It may be pointed that no such plea was raised in the plaint. The form 'A' in the case file shows the survey numbers of the land as Wf 11 as the area and also that full payment of the land was made on /4-12 1979. The survey numbers as well as area shown therein are the same as shown in the sale agreement and there is no evidence to the contrary. The second contention of the learned counsel is, that the applicant had filed civil suit for the correction of the survey numbers as well as shifting of instalments. It may be pointed, that no copy of ths plaint has been produced. It is also ad mitt d, that the suit was 'subsequently dismissed for non-prosecution is 1979 or 1980. It is also contended, that the applicant was willing to perform his part of contract by paying instalments but then the Colonization Officer refused to accept instalments because of pendency of the suit. This plea has aho been rithtly rejected by both the courts below because the only evidence produced by the applicant as to his attemot to nay the instalments was letter of Colonization Officer in 1978 infornrng him that his request for restoration of grant can not be granted because of the pendency of the civil suit However, as already pointed the grant was provisionally cancelled in 1970 and it was finally cancelled in 1972. The courts below have rightly hHd that the applicant has failed to prove that he made any attempt to pay the instalments before the can­ cellation but it was much after cancellation that he made his half-hearted attempt. The second contention of learned counsel is that even if it is held that the applicant failed to pay the instalments the only penalty that he has to pay is what is described in para 2 of the agreement. It may be pointed that two paras are wrongly numbered as para 2- The relevant para which has been numbered by me as para (2A) provides : "That the second party (viz applicant) will pay Rs. 20,000 to the first party (viz respondent) in case of failing or nonpayment of the instalments or dues to the Government as a result of which the land had been dispossessed." It is contended that the respondent can not refuse specific performance of sale agreement but at the most he could claim this amount as damages under section 74 of the Contract Act. It mav be pointed that the suit was not filed for damages for breach of contract but was sought for specific performance of the sale agreement. The learned counsel for the respondent has contended that the claim of the applicans for specific performance of the agreement was barred under sec­ tion 24 (b) of Specific Relief Act, 1877 and also under section 54 of the Contract Act, 1872. To appreciate the arguments of the parties it is necessary to reproduce the relevant provisions of the law : — Section 24 (b), Specific Relief Act. "24 Personal bars to the relief.— Specific performance of a con­ tract can not be enforced in favour of a person — (b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed ; Illustrations. A contracts to sell B a house and garden in which there are ornamental trees, a material element in the value of the property as a residence. A, without B's consent fells trees. A can not enforce specific performance of the contract. A holding land under a contract with B for a lease, commits waste or treats the land in an unbusbandlike manner. A cannot enforce specific performance of the contract." Section 54, Contract Act. "54. When a contract consists of reciprocal promises, such that one of them can not be performed, or that its performance can­ not be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor can not claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-perfor­ mance of the contract." Illustrations A contracts with B to deliver to him, at a specified price, certain merchandise on board a ship which cannot arrive for a month, and B engages to pay for the merchandise within a week from the date of the contract. B does not pay within the week. A's promise to deliver need not be performed, and B must make compensation. A promises B to sell him one hundred bales of merchandise, to be delivered next day, and B promises A to pay for them within a month. A does not deliver according to his pro­ mise. B's promise to pay need not be performed, and A must make compensation. if paras 2,3, and 4 of the sale agreement are readtogether.it would be Jear, that the burden is shifted upon the applicant to pay all the instal­ ments to the Government and -only after the completion of all the dues of instalments by the applicant and on acquiring the full ownership of the land, the respondent was bound to transfer one half of the land in all respects in favour of the applicant. In case the respondent declined to do so he would pay price of half of the land at the market value at that time to the applicant. Thus there can be no doubt, that in this agreement there are iprocal promise. First promise is made by the applicant to pay the instal­ ments and after such payment when all the dues are complete and ownership right was transferred to the respondent, he bound himself to transfer half of the land to the applicant or in default to pay its value at the prevalent mar­ ket price. The second part of agreement viz transfer of the land obviously can not be performed, unless the first part of the agreement viz payment of the due instalments by the applicant was fulfilled. On reading section 54 of Contract Act, it would be seen that in contracts of reciprocal pro­ mises such that as one of them can not be performed till the other has been performed (as in this case) or the promisor of the promise last men­tioned fails to perform it, such promisor (as applicant in this case) can not claim performance of reciprocal promise. Not only that he can not claim performance of the reciprocal promise but he has also to make compensa­tion to the other party to the contract for any loss which other party may sustain. The penalty as provided in para 2A of the agreement in fact refers to damages which can be claimed by the respondent under section 54. This penalty clause does not entitle the applicant to press for specific performance even after he failed to perform his part of the contract. This agreement thus provides stipulation with regard to damages that each party can claim in case of breach of contract from the other party under section 73 or 74 of the Contract Act. In the instant case the agreement between the parties came to an end when the grant of the land was cancelled by the Government due to non­ payment of the instalments by the applicant. If the land had remained :ancelled, the question of specific performance of sale agreement could not have arisen. Rather the respondent could have claimed damages i-s pro­vided in para 2A of the agreement. The fact that after seven years the respondent with his own efforts and on payment of interest was able to get the land regranted or restored, would not revive the rights of the applicant to claim specific performance of sale agreement when he himself failed to perform bis part of the contract. Considering all the facts and law discussed above I do not find any illegality or impropriety in the impugned judgments passed by the courts below to call for any interference by this Court in exercise of its revisional jurisdiction. The revision application is, therefore, dismissed. (MTQ) Revision petition dismissed.

PLJ 1987 Karachi 260 PLJ 1987 Karachi 260 Present: syed ally madad shah, J MUHAMMAD YUSUF—Appellant versus MUHAMMAD SAGHIRUDDIN QURESHI-Respondent 1st Rent Appeal No. 572 of 1984, accepted on 4-9-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 5—Tenancy — Terms and conditions of—Held : Terms and onditions of statutory tenancy following extinguished contractual tenancy to be regulated by relevant law. [P. 2b5JB PLJ 1984 SC 241 ; D LJ 1980 SC 364 & PLD 1980 SC 298 re/, (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15 (2) (ii) — Tenant — Eviction of — Default — Ground of — Eviction application filed even before expiry of per­ missible period of sixty days for payment of rent—Held : No case of wilful default in payment of rent to stand established. [P. 266]C (iii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)—

S 2 (i) & 13 (1) — Contractual tenancy — Termination of— Effect of—Contractual tenancy established between appellant and respondent terminating on expiry of eleven months—Held: Statutory tenancy to come into being by operation of law. [P. 263]A Mr. Mansoorul Af//in,»Advocate for Appellant. Mr. Habibur Rehman, Advocate for Respondent. Dates of hearing : 13-2-16-3 & 4-5-1986. judgment This appeal u/s 21 of the Sind Rented Premises Ordinance. 1979 is directed against the order of ejectment dated 30-4-1984 passed by the learned Xth Senior Civil Judge/Controller, Karachi in R. C. No. 4952/79. The appellant Mohammad Yousuf is a tenant of the respondent Muhammad Saghiruddin Qureshi on the Ground Floor of a double storeyed building bearing No 16-L/2, PECHS, Karachi. The tenancy was established by a written agreement dated 1-12-1973. The rent of the rented premises was settled at Rs. 400- per month exclusive of wafer and conservancy charges. It was subsequently increased to Rs. 450/- per month. The respondent filed R. C. No. 4952/79 on 30-10-1979 for ejectment of the appellant on the ground that he had not paid/tendered rent for the months of August, September and October, 1979 ; and, secondly, that he had been a source of nuisance to the applicant and his family members and also to the neighbourers by picking up petty quarrels ; and, thirdly that he had damaged the premises ; and, fourthly that he (the respondent) bonafidely needed the rented premises for his own use. The appellant resisted the ejectment application, denying all the allegations. He contended that the respondent/landlord declined to accept the rent which was first offered to him and later remitted to him by money orders' He alleged that his ejectment was sought malofidely as he had not succumbed to the pressure of the respondent/landlord for enhancing the rent. The parties filed their affidavits in evidence. The appellant filed alongwith his affidavit, number of documents. The learned Controller passed the impugned order of ejectment dated 30-4-1984 only on the ground of default in payment of rent, while rejecting the other ground as not proved. The impugned order of ejectment rests on the sole ground of default in payment of rent for the months of August, September and October, 1979. Undisputedly, the rent for the aforesaid three months had remained un­ paid till the ejectment application was filed on 30-10-1979. The contention of the appellant is that he had offered to the respondent rent for the month of August, 1979 but the respondent refused to accept it unless the rent was increased and it was thereafter remitted by money order on 24-10-1979 but it was not accepted. His further contention is that the rent for the afore­ said three months was remitted by money orders for each month separately on 29-11-1979 but remittances were not accepted and the rent was therefore deposited with the Controller on 9-12-1979 after obtaining his per­ mission vide his order dated 6-12-1979 in Miscellaneous Rent Application Case. The learned Counsel for the appellant has urged that the appellant had become statutory tenant on the expiry of the contractual tenancy for eleven months ; and after refusal by the respondent to accept the rent, the appellant had tendered rent by money order remittances within the statutory period of 6U days and there was no default on his part in pay-ment of rent. He, relying upon the provisions of section 10 of the Sind Rented Premises Ordinance, 1979, advanced the argument that the rent for the month of August 1979 was payable by the 10th of the month of September, 1979 and the period of 60 days envisaged under clause (») of sub section (2) of section 15 of the said Ordinance counted from llth of September, 1979 had not expired by the time the ejectment application was filed on 30-10-1979. According to him, the ejectment application was premature and was liable to be dismissed. On the other hand, the learned Counsel for the respondent has contended that although the tenure of the tenancy under the written agreement was 11 months, yet the continuance of the tenancy beyond that period was deemed to be tenancy on the same terms and conditions as incorporated in the tenancy agreement and the default in payment of rent is to be considered in that context. He has urged that according to the terms and conditions of the tenancy, as put in writing, tne monthly rent was to be paid in advance on the 1st of the tenancy month and the default in payment of rent started on the expiry of 15 days allowed under clause (i) of sub-section (2) of section 13 cf the Sind Urban Rent Restriction Ordinance, 1959, whereunder the rent case was filed and, therefore, there was clear default in payment of rent for the months of August, September, and October, 1979 and the appellant had thereby made himself liable to ejectment. He has refuted the argu­ ment by the learned Counsel for the appellant that the provisions of section 10 of the Sind Rented Promisee Ordinances are attracted in the case by advancing the argument that the rent case was filed under the then existing law viz. the Sind Urban Rent Restriction Ordinance, 1959 and provisions of that law wsre applicable to the proceedings of the case. In this respect, he relied upon tne cases Abdur Rehman v. Haji Mir Ahmed Khan and another (PLJ 1983 SC 57) and Abdul Wasey Jamil and another v. Mrs. Nasreen Tafazal (1984 CLC 1031). He has further contended that the rent due was not tendered to the respondent by money order remittances or in any other manner and deposit of rent with the Controller after default had been committed did not save the appellant from the order of ejectment. According to him, the documents relied upon in respect of tender of rent viz. money order coupons and postal receipts have not been proved. He has relied upon the cases Syed Shafiuddin v. Abdul Hakim Khan (PLD 1978 Kar. 149) ; and Hafiz D a wood v. Abdul All Khan (1973 SCMR 598). The tenancy between the parties was established by a written agree­ ment dated 1st December, 1973 put in evidence as Ex. 2/1. The con! its thereof bear out that the tenancy was established initially for a period of eleven months commencing from 1st December, 1973 on terms and condi­ tions set out therein. Another clause in the tenancy agreement was "that after the expiry of this lease it will be the option of the lessee to extend the lease for a further period on monthly rental basis". As regards the mode of payment of rent, it was covenanted that the lessee (tenant) had to "pay the monthly advance rent on the 1st of each following English Calendar month". It is an admitted position that thi tenancy was continued after the expiry of contractual period of tenancy for eleven months and the only variation subsequently brought in the terms of the tenancy was that of increase in the rate of rent from Rs. 400/- to 450/- per month and this variation seems to have been done orally. The law at the relevant time regulating the relationship between the tenants and (he landloids was "the Sind Urban Rent Restriction Ordinance, 1959 (since repealed and herein after mentioned as the said Ordinance). By virtue of definition of the term "tenant" contained in clause (i) of section 2 and the provisions of subsection (1) of section 13 of the said ordinance, a tenant by contract continues to be a tenant after determination of contractual tenancy until evicted from rented premises in accordance with law and the contractual tenancy is extended by operation of law and it adopts the form of statutory tenancy. It follows that the contractual tenancy extingui­ shed by efflux of specified time stood transformed into statutory tenancy Accordingly, the contractual tenancy established between the appellant and the respondent terminated on the expiry of eleven months from 1st Desem ber, 1979 and statutory tenancy came into being by operation of law. It was provided under clause (i) of subsection (2) of section 13 of the said Ordi­ nance that the landlord could seek ejectment of a tenant who did not pay or tender rent due from him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord, or, in the absence of any such agreement, within 60 days from the period for which the rent was payable. Applying the provisions of clause (1) of subsection (2) of section 13 of the said Ordinance, referred to above, to the instant case, the default in payment of rent became operative on the expiry of 60 days from the period for which the rent was payable. However, a question has arisen as to whom the monthly rent had become due. According to the learned ^Counsel for the appellant, the rent became payable after the expiry of the' calendar month for which the rent was to be paid, whereas the contention of the learned Counsel for the respondent is that the monthly rent was to be paid in advance as was stipulated in the agreement of tenancy. The question of terms and condi­tions of statutory tenancy coming into operation on the termination of contractual tenancy was considered by the Supreme Court in the following three cases referred to by the learned Counsel for the parties. (1) AlfDin . Khadim Hussain (PLJ 1980 SC 364). (2) Mohammad Yousufv. Abdullah (PLD 1980 SC 298). (3) Mrs. Alima Ahmed v. Amir AH (PLJ 1984 SC 241). In the case at serial No. 1 viz Alf Din v. Khadim Hussain decided by a Bench of two learned Judges on 2nd April, 1980 the view adopted by a Division Bench of the Lahore High Court in a case Mohammad Ashraf v. Mohammad Sharif & 3 others (PLD 1971 Lah. 610) that a tenant continu­ ing in possession after the termination of the lease must be held to be governed by the same terms and conditions as were applicable to--him under the agreement of tenancy which had terminated was approved with the following observations : "The learned Counsel had no answer to the argument that if there was no agreement in existence between, the parties how at p. 368 could he contend that the rate of rent remained the same, as that contained in the original agreement but that only the mode of payment was no longer operative. Other anomalies would also arise if this interpretation was accepted. It is to avoid all such anomalies and the absurdities that the rule has been laid down in the case of Mohammad Ashraf v. Mohammad Sharif ana others (PLD 1971 Lahore 610) that all the teims continue when a tenant continues to remain in occupation of the property in spite of the termination of the tenancy by efflux of time. We, there­ fore consider that no modification in the rule laid down therein is called for". In the second case cited as Muhammad Yousufv. Abdullah, decided by four learned Judges, on 30th August, i980, the view taken in the afore­ said case Muhammad Ashraf v. Muhammad Sharif (PLD li»71 Lah. 610) was not approved of and their lordships made following observations : "The respondent's case however is supported by a judgment of the Lahore High Court in Muhammad Ashraf v. Muhammad Sharif (2), and Mr. Rahimtoola relied on it, because the view taken by the Court was that a tenant's liability to pay rent con­tinues to be governed by the terms of the lease agreement even after the expiry of the lease. And in dismissing the tenant's appeal, on facts almost identical to those in the instant case the Court observed (at page 614) that the said Ordinance : "itself does not specify the terms and conditions on which such a tenant shall continue in possession; and therefore, we must of necessity presume that the intention of the law is that he shall continue on the old terms and conditions .... By according statutory recognition to the position of a tenants who continue in possession of the demised property after termination of the lease, the statute does not seek to introduce new terms and conditions of tenancy except continuing it be­ yond the stipulated period." We pointed out that the provisions of the said Ordinance are of an over-riding nature, and they regulate in considerable detail the rights and liabilities of lessors and lessees. Therefore, in our humble opinion, the proposition that the said Ordinance "does not seek to introduce new terms and conditions of tenancy except continuing it beyond the stipulated period", is much too wide. There may be lease agreements which are not inconsistent with the provisions of the said Ordinance, but such cases would be the exception rather than the rule. Therefore, with the utmost respect, for the reasons, which we have given, we are unable to agree with the view taken by the Lahore High Court in Muhammad Ashraf s case." In the case at serial No. 3, Mrs. Alima Ahmad v. Amir AH leave to appeal was granted to the landlord to examine whether ihe tenant continuing in possession of the demised premises after the expiry of the written agreement of tenancy was not controlled stricto senso by the terms of the agreement particularly with regard to the payment of rent by a particular date and whether Controller's discretion not to eject a tenant on his being found in default as to be based on recognised equitable principle The appeal was decided by five learned Judges. Both the cases namely Alf Din v. Khadim Hussain (PLJ 1980 SC 364) and Muhammad Yousufv. Abdullah (PLD 1980 SC 298), mentioned above, were referred to in that case. Their lordships made following observations on the question of default in payment of rent in the circumstances of the case :— "The appellant alleged non-payment, default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admit­ ted payment of -«-ent from April, 1970 to September, 1970 by cheque ~;ited 20-8-1970 for the rent of October 1970 to Marcu, 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousufs case, the tenant was clearly in default for April and May 1970 and October to December, 1970." As stated above, the case Alf Din v. Khadim Hussain (PLJ 1980 SC 364) was decided by two Judges on 2nd April, 1980 and the case Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) was decided by four Judges on 30th August, 1980 i,e. subsequent to the decision in Alf Din's case. The law laid down in the latter case was referred to considering default in payment of rent by the tenant in the case: Mrs. Alima Ahmed v. Amir AH (PLJ 1984 SC 241). Similar question of payment of rent under statutory tenancy following contractual tenancy was considered also in the case Sheikh Abdul Sattar v. Malik Muhammad Afzal and others, reported in PLD 1985 SC 148 and the view adopted in the case 5 Muhammad Yousufv. Abdullah PLD 1980 SC 298) was endorsed. The consensus of the view propounded in the aforesaid cases therefore is that the terms andj g conditions of the statutory tenancy following the extinguished contracualj tenancy are regulated by the relevant Law. Accordingly, the contentions' of the parties in tne instant case are to be considered in that perspective. The ejectment in the instant case has been sought on the ground of default in payment of rent for the months of August, September and October, 1979. (The statutory tenancy between the parties was on monthly basis). The rent for the months of August, September and October, 1979 became due on the expiry of each month. Thus the rent for the month of August, 1972 fell due on 1st of September, 1979 and the period of sixty days expired on 30th of October, 1979, while the rent due for the month of September had not reached the stage of default, and the rent for the month of October, 1979, had not even become due by the time the ejectment case was filed on 30th October, 1979. The appellant's case is that the rent for the month of August, 1979 was offered to the re­ spondent in time but he had declined to accept it and it was remitted to him by money order on 24-10-1979 but be did not accept it. The learned Counsel for the appellant has urged that the rent was tendered within permissible time limit of 60 days from the day it had become due in accordance with the law and no default was committed. He has referred to money order coupons and MO remittance fee receipt. As regards rent for the months of September and October, 1979. his contention is that rent for those months and also for the month of August, 1979 was remitted by separate money orders on 29-11-1979 but it was not accepted. He has made reference to photostat copies of money order coupons O2(IV), 02 (V), 02 (VI) and 02 (VII), remittance commission. receipts Ex. Ol (IV), OI (V), OI (VI) and Ol (VII). Original documents have not been put in evidence. The photostat copies filed alongwith affi­ davit of the appellant, referred to above, are hardly decipherable. The dates and the postal stamps thereon are confusing. However, it follows 'from the facts discussed above that there was hardly any wilful default in payment of rent as the period of sixty days allowed by law for payment of rent for the month of August, 1979 was to expire on 30th October, 1979, when the ejectment case was filed and payment of rent for the month of September, 1979 was within the range of permissible period of sixty days, and the rent for the month of October, 1979 had not become due. In the circumstances, no case of wilful default in payment of rent stands established against the appellant. Accordingly, the appeal is allowed and the impugned order of the Controller dated 30-4-1984 is set aside. Since the matter involved legal questions, the parties are to bear their own costs. (MIQ) Appeal accepted,

PLJ 1987 Karachi 266 PLJ 1987 Karachi 266 Present: syed haider ali pirzada, J Miss ABIOA RIASAT—Appellant versus S. SEQUEIRA—Respondent First Rent Appeal No. 52 of 1984, accepted on 15-12-1986 (i) Civil Procedure Code, 1908 O 7 of 1908)—

O IX, Rr. 6, 7, 8 & 9 — Ex-parte order — Setting aside of—Court —Duty of—Held : Courts being there for advancement of justice, . litigants ordinarily not to be deprived of thier rights — Held farther: Courts/Rent Controllers ordinarily to be inclined to restore suit/rent case/appeal (dismissed in default) or to set aside ex-pane order/decree unless there be gross negligence on part of party concerned. [Pp. 268 & 269JB AIR 1936 PC 9 ref. (ii) Civil Procedure Code, 1908 (V of 1908)—

O. IX, Rr. 8 & 9—Suit—Dismissal in default of—Restoration of— Held : Restoration of case dismissed for default should ordinarily not to be denied unless party (concerned) be found to be guilty of contumacious negligence or wilful default. [P, 270]C (iii) High Court Rules & Orders— —Vol. I, Ch. I, Part J, Rr. 4, 5 & 6—Court—Dismissals in default and ex pane proceedings by—Court—Duty of — Held : Duty of Court/ Rent Controller being to administer justice in accordance with law punitive jurisdiction not to be exercised by dismissing suit/eviction application or by declaring defendant/ opponent ex parte merely because of counsel being busy in other court—Held further : It being not possible for counsel to remain present before controller as well as before Additional District Judge at same time, proper course for court/controller to be to pass over suit/rent case or appeal in order to enable advocate to finish case in other court and appear before it. [P. 268JA (it) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15, 19 & 21—Eviction application—Dismissal in default of— Restoration of—Eviction application dismissed in default at 10-35 A.M, while applicant and his counsel appearing within half hour of passing of order on same, day — Application for restoration also moved on same day — Held : It being no case of contumacious negligence or wilful default, order of Rent Controller dismissing application for default as also his refusal to restore same to be liable to be set aside. [P. 270]D Mr. Aftab Kizilbash, Advocate for Appellant. Mr. A. Aziz Khan, Advocate for Respondent. Dates of hearing : 14-10-86 and 16-10-86. judgment These two First Rent Appeals under section 21 of the Sind Rented Premises Ordinance, 1979 are directed against the order of the Xllth Senior Civil Judge/Rent Controller, Karachi delivered on 30th November, 1983, whereby she dismissed the applications filed by the appellant for setting aside the dismissal order dated 23-4-1983. The dispute in the instant case is in respect of two flats bearing Nos. 3 and 4, first floor, Bismark Building, situated on plot No. 38/1-SB-3, Mir Karam Aii Talpur Road, Sadar, Karachi. The appellant is the owner/landlady of the said building while the respondents are the tenants of the said flats. The appellant filed two eviction applications bearing Nos. 534 of 1974 and 535 of 1974 against the respondents on the ground of personal requirement. The respondents resisted the eviction applications. On the pleadings of the parties, the Controller framed the following issues :— "(1) Whether the applicant requires the disputed premises in good faith for her own personal bonafide use ? (2) What should the order be ? The attorney of the appellant filed affidavit-in-evidence in support of the eviction applications on 18-2-1980. The cases were adjourned from time to time. After the matters thus under-went adjournments without the cross-examination of the attorney of '.he appellant, the same were posted for cross-examination on 31-3-1982. The attorney was partly crossexamined on 31-3-1982 and the cases were adjourned to 29-4-1982 for want of documents. The cases were again adjourned to 23-4-1984 when the matters were dismissed in default at 10-35 A.M. on account of absence of the attorney. The applications for recalling the order dated 23-4-1983 were moved on the same day. The attorney filed his affidavit in support of the applications. It is advantageous to reproduce paras 2 and 3 of the affidavit which read as under :— "(2) That the case was fixed today for my further cross-examination. I came to Court with my Advoca'e Mr. Mirza Aftab I. Alam Kizilbash, Advocate at 9-30 A.M. The Advocate informed the learned Xllth Rent Controller in chamber that be was before tie V-ADJ. (3) That, I and my advocate came to the Court again at II A.M. and were informed that the case had been dismissed for default." The respondent filed counter affidavit and resisted the applications. The case of the respondent: as revealed in the counter affidavit is that there was no reason or justification for the attorney to have allegedly gone and waited in the chambers of his Advocate awaiting call from him as and when his counsel would be free. The respondent also denied that the attorney and his counsel had come at 9-30 A.M. on 23-4-1983 in the Court. The learned Controller after taking into consideration the arguments of the learned counsel for the parties dismissed the application vide order dated 30 11-1983. The learned Controller held that the counsel for the appellant attended the court at 9-30 A.M. and he had also been informed about fixing the case at 10 A.M. She also observed that the matters were fixed for the cross-examination of appellant's attorney and for this purpose the presence of the advocate was not required. The appellant being aggrieved against the order dated 30-11-1983 of the Controller has preferred two separate appeals on the grounds mentioned in the memo of appeals. I have heard the learned counsel for the parties and perused the diary sheet and gone through the impugned order and the cases cited by both the learned counsel for the pertics in support of their respective con­ tentions. The only question that arises for decision in these appeals is whether the absence of a lawyer is not a sufficient cause to recall the dismissal order.The facts set out above clearly show that the learned counsel for the appellant appeared before the Controller at 9-30 AM. In the affidavit the attorney stated that his counsel informed the Controller in chamber that he was busy before the V-ADJ in CMA 63/82 which was fixed for evidence and would be able to attend after he is free from the Court of Vth ADJ and the advocate told him to wait in his chamber from where he would be called. The attorney further stated that he and his advocate came again at 11 A.M. and were informed that the cases were dismissed for default. The learned counsel for the appellant had given a valid excuse for his absence, viz. that he was busy before the Vth ADJ. I have perused the diary sheet for 23-4-1983. A perusal thereof shows that the learned counsel for the appellant appeared before the Controller in the morning but the diary sheet nowhere shows that the learned counsel for the appellant was informed that the cases were fixed at 10 A.M. It is not possible for the advocate to be present before the Controller as well as before the Vth ADJ at the same time. The duty of the Court/ Controller is to administer justice in accordance with law. The Court/ Controller ought not to exercise a punitive jurisdiction by dismising the suit/eviction application or by declaring the defendant/opponent ex parte in such circumstances. The proper course for the Court/Controller is to pass over the suit/rent case or appeal in order to enable the advocate to finish fbis case in the other court and appear before it. I am of the view that Courts/Controllers would ordinarily be inclined B Jto restore the suit/rent case/appeal or set aside ex parte order/decree unless there has been gross negligence on the part of the party because the! courts are there only for the advancement of justice and ordinarily would] not be inclined to deprive a litigant of his right. The Privy Council in the case of Srinivas Prasad Singh v. Keshava Prasad Singh and others (AIR 1936 PC 9) laid down as follows :— "Every litigant has the right to have his case heard and disposed of, but that right must not be abused, even though the defendant, for reasons of bis own, is not anxious to complain of the plaintiff's delay. But the Court is not entitled to deprive the litigant of his right, except on clearly ascertained grounds, and to the exclusion of grounds which rest only on suspicion, The history of the suit and its delays, the champertous agreement—which is lawful in India—and the financial difficulties of one of the parties to that agreement, along with the causes of those difficulties, rested on material which the learned Judge was entitled to take into consideration. But their Lordships are unable to find any material such as would justify the learned Judge in the very serious charges which he makes in the last two sentences of his judgment, and, in their Lordships' opinion, it was an unjustifiable and improper consideration to take into account in the judicial exercise of the discretionary power of dismissal under R. 36. It appears that before 19th January 1932 when the notice was issued, a letter was received, which was dated 8th December 1931 and was addressed to the learned Judge and signed by a name, which cannot be identified as that of any real person. This letter is endorsed "bord Williams, J.—Let this be kept with the records of the suit." A perusal of the Controller's record indicates that the eviction applica­ tions were dismissed in default on 23-4-1983 at 10-35 A.M. The question which calls fox determination is as to whether the Controller was justified in acting in this manner. So far as the subordinate courts under the control of this court are concerned, certain specific guidelines have been issued to them as prescribed in the High Court Rules and Orders. Rules 4, 5 and 6 Part J. Chapter 1-J, Volume 1 thereof, are to the follow­ ing effect :— "(4). Order IX, Rule 8, lays down that if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order dismissing the suit, unless the claim is admitted wholly or in part, in which case the claim shall be decreed only to the extent to which it is admitted. (5). The above rules must be worked in a reasonable manner, other­ wise they will result in a number of applications for setting aside orders passed in the absence of one or both parties. A litigant may have gone away for a few minutes to call his pleader, or to refresh himself. It is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is sitting. (A convenient method is to lay aside a case when it is found that both the parties are not present, and to call it a second time later on in the day, when all other cases have been called and those in which parties are present have been disposed of, and though it is not desirable to lay down any hard and fast rule as applicable to all cases, the above course should ordinarily be followed. Occasionally, whe . it is brought to the notice of the Court that both the parties to a case which has been held over are in attendance, it may be found convenient to call up the case before all other cases have been disposed of.). (6). Some judicial officers are inclined to dismiss cases in default hastily in order to show increased outturn. This tendency must be strongly deprecated. No case should be dismissed without giving a party reasonable opportunity to appear as indicated above and if this is done, the number of successful applications for setting aside dismissals in default will be appreciably reduced. The same remarks apply to proceedings taken ex parte and applications to set aside ex parte orders. When a suit or applica­ tion is dismissed in default, the exact time of dismissal should be noted in the order by the Presiding Officer in his own hand." The then High Court of West Pakistan, Karachi Bench, Karachi also forwarded a letter dated 23-12-1961 to the same effect. It appears that the learned Controller did not attrac '-jr attention to the above rules of procedure particularly Rule 5 and proceeded to dismiss the cases for default at 10-35 AM., primarily for the reason that the appellant's attorney was not present on that day. It has been stated in Rule 5 that in case the pleader of a liMgant is not available and is sent for the Controller/Court should not straight away proceed to dismiss the eviction application/suit for default, but should call the case again in the later part of the day. There is nothing to show if this has been done. The learned Controller should have also taken note of the fact that the learned counsel for the appellant appeared before her in the morning and submitted that he was busy before Vth A.D.J. and would appear as soon as he would be free, The learned Controller observed that the presence of the pleader was not necessary as the cases were only fixed for the purposes of crossexamination of the appellant's attomey. However, the practice is contrary. The attorney in his affidavit had given a valid excuse for his absence, viz, [that he was advised by his counsel to wait in his chambers and he followed the advice. It has been held by the Superior Courts that restoration of a ise dismissed for default should not ordinarily be denied unless the [party is found guilty of contumacious negligence or wilful default. Even on merits, the very fact that the eviction applications were dismis­ sed at 10-35 A.M. and the appellant and his counsel appeared at 11 A.M, within half an hour on the same day, the applications for restoration were also moved on the same day show that it is not a case of contumacious negligence or wilful default. In this view of the matter the orders of the Controller dismissing the eviction applications for default as also their refusal to restore the same are liable to be set aside and it is ordered accordingly. The rent cases shall be restored at their original numbers and the Controller shall proceed to dispose of the same on merits in accordance with law. It is unfortunate that the Controller refused to restore the rent cases and the eviction applications havs to be tried afresh after a lapse of three years, If only the Controller had restored the eviction applications, they would have been disposed of on merits long ago. The eviction applica­ tions are directed to be disposed of as expeditiously as possible. The parties through their counsel have been directed to appear before the Vth Senior Civil Judge/Rent Controller, District South, Karachi on 17-1-1987 for proceeding further in the matter. There shall be no order as costs in the present appeals. (MIQ) Order accordingly.

PLJ 1987 Karachi 271 PLJ 1987 Karachi 271 Present: saleem akhtar, J Mst. FATIMA—Appellant versus Mst. HANIFA—Respondent FRA No. 64 of 1984, dismissed on 30.3-1986 (i) Bind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 5—Landlord and tenant — Agreement between—No substantive right conferred by provision of S. 5 of Ordinance (same being pro­ cedural in nature) — Agreement of tenancy not in terms of section S executed by parties—Held : Agreement not to be unvalidated nor parties to be debarred from proving relationship of landlord and tenant by producing and proving such agreement or other admissible evidence as provided under law. [P. 276]E (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 5—Landlord and tenant—Agreement between — Oral tenancy not prohibited under law—Held : Tenancy creating valuable right, disputes regarding terms and existence of relationship between parties to be avoided by executing written deed—Held further : S. 5 being in nature of procedural provision, agreement not made in form described in section not to be nullified. [P. 276]D PLJ 1976 SC 159 ref. (iii)S Sind Rented Premises Ordinance , 1979 (XVII of 1979)-

S. 5 — Landlord and tenant — Agreement between — Provisions regarding—Nature of— No penaltyjfor non-compliance with pro visions of S. 5 of Ordinance provided— Held : Provisions to be directory and not mandatory — Held farther : Mere use of word "shall" not to make S. 5 mandatory. [P. 275]B (it) Sica Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss i5 & 5—Eviction—Application for—Title—Question of—Held: Ejectment case filed without getting title cleared—Held : Landlady to first get her title cleared after which eviction proceedings to be competently proceeded with by her. [P .273JA (v) Interpretation of Statutes—

Statute—Scope of—Held : While interpreting provisions of law, entire scope of statute and other provisions to be taken into con­ sideration. [P. 275]C Sh. Abdul Majted, Advocate for Appellant. Miss Wajahat Niaz, Advocate for Respondent. Date of hearing : 22-1-1986. judgment The appellant filed an ejectment case against the respondent in respect of hut on plot No. 342 Old Golimar, Karachi, on the ground of default in payment of rent. It was alleged that the respondent is her tenant from the year 1971 and has defaulted in payment of rent from 1-1-1980. The respondent denied the tenancy and claimed that she is the owner of the disputed premises. The learned Controller framed the following issues: — (1) Whether there exists any relationship of tenancy ? (2) Whether the opponent has committed wilful default with effect from 1-1-1980 ? (3) What should the order be ? The learned Controller after discussing the evidence produced by the patties and relying on section S of the Sind Rented Premises Ordinance, 1979 dismissed the ejectment application as the appellant had failed to produce rent agreement or any other proof in writing regarding the existence of relationship of landlord and tenant between the parties. Mr. Shaikh Abdul Majeed the learned counsel for the appellant has contended that from the evidence on record the appellant has established that she is the owner of the disputed premises and the respondent was paying rent to her. Miss W.ajahat Niaz the learned counsel for the respondent contended that there is'no conclusive proof of the ownership as well as the relation­ ship of landlord and tenant. She further contended that in view of section 5 of the Sind Rented Premises Ordinance as there is no agreement of tenancy as required by this section, the question of existence of tenancy or its proof in any other manner does not arise. In this regard the learned counsel has referred to Habib Ahmad v. Liaqat (PLD 1984 Kar. 741). First I would like to deal with the merits of the case by referring to the evidence of the parties. From the very beginning the respondent has been disputing the title of the appellant as well as the relationship of land­lord and tenant between the parties. The appellant has produced several witnesses to show that the property was purchased by her husband from Din Mohammad who had purchased it from Mohammad Umar. Ex. P/3 is a receipt dated 7-2-1968 on a stamp paper of Rs. 2/- by which Mohammad Umar had sold to Din Mohammad the premises built with mud and woods in Badal Para. Purana Golimar. Second document Ex. P/4 is also entitled as a receipt from Din Mohammad in favour of Murad Bukhsh the husband of the appellant. By this document he trans­ ferred his right to Murad Bukhsh in respect of the two houses built of mud and two houses built of wood in Badal Para, Purana Golimar, Mangnopir Road. This transaction was made on 23-3-1969. In the ejectment application filed by the appellant, the cause is in respect of two wooden rooms contructed on plot No, 342 Old Golimar, but nothing has been shown to co-relate this property with the property alleged to have been purchased by the husband of the appellant. Moreover, receipt Ex. P/4 cannot create any title or interest in respect of immovable property whicu is, more than Rs. 100/- and is sought to be transferred by an unregistered document. Although this document was executed by Din Mohammad on 23-3-1969 the witness No. 4 and the Oath Commissioner have signed and attested on 23-4-1969 /. e. one month after the alleged execution of the receipt. The appellant has also examined the executing witness, but this will not change the legal effect of the document produced by her. There is a genuine dispute between the parties regarding ownership and title to the property. In these circumstances, the observation made in Rehmatullah"s case PLJ 1983 SC 546 should govern the situation where it was observed as follows :— "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. Hs can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required "reason­able'' doubt but has convinced him that his plea is not frivolous and or vexatious, but due to constraint of summary/speedy pro­ cedure, has failed to create the required satisfaction or doubt, while ejecting him the Controller can leave scope for civil suit by observing so and where be fails to do so, higher Court can do the same". In the facts and circumstances of the case, I have refrained from making any "observation on the merits of the case as the issue regarding ownershipl has to be settled by a civil Court. For the purpose of the present procee-j. dings suffice to say that the appellant should first get her title cleared! after which she can proceed with the ejectment case against the) respondent. The next contention which has prevailed upon the learned Controller and on the basis of which the application has been rejected is the provision of section 5 of the Sind Rented Premises Ordinance which reads as follows :—• "5. Agreement between landlord and tenant. —(I) The agree­ ment by which a landlord lets out any premises to any tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by and sealed with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge, or First Class Magistrate. (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force, a certified copy of the registered deed and • where the agreement is not so registrable, the original duly attested under sub-section (1) shall be produced and accepted in proof of the relationship of the landlord and tenant ; Provided that nothing in this section shall affect any agreement between the landlord and tenant ; immediately before coming into force oftbis Ordinance," Miss Wajahat Niaz while supporting the order of the learned Con­troller has contended that unless the agreement of tenancy is made as provided by section 5 of the Sind Rented Premises Ordinance 1979 there can be no valid tenancy in the eyes of law. In this regard reference has been made to Habib Ahmed's case PLD 1985 Kar. 741 where it was observed as follows :— "It would be noticed from the subsection (1) of above section that every agreement by which any premises is to be let out has got to be reduced in writing. The use of word 'shall' in the said subsection denotes the intention which clearly is that it is mandatory for the parties to have such agreement in writing. In other words the oral agreement in respect of such transaction will have no legal force and hence will not be permitted to be used as the basis for any litigation in respect of any matter including ejectment of tenant under the Ordinance. This is clear from subsection (2) hereinabove which requires the written agreement to be produced and accepters proof of the relation­ ship of landlord and tenant between the parties". With respect I am unable to subscribe to the view expressed in this judgment. Sind Rented Premises Ordinance was promulgated in November, 1979 which repealed the provision of Sind Urban Rent Restric­ tion Ordinance, 1959. Tbe repealed Ordinance had not provided for a mode of execution of tenancy agreement. It only restricted itself in giving definition of the terms 'landlord' and 'tenant'. In the Sind Rented Premises Ordinance, 1979 section 5 and section 6 were introduced which provision did not find place in the earlier Rent Ordinance of 1959. Section 5 has been reproduced above. Section 6 reads as follows :— "6. Tenure of tenancy. —No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy ; Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance". Section 5 provides a mode for executing an agreement of tenancy which will be accepted as proof of relationship of landlord and tenant Section 6 proviSes that after expiry of the period of tenancy fixed under the agreement between the parties the tenancy shall cease to be valid. Consequently by section IS sub-section (2) (i) a ground for ejectment was provided as follows : - 15(2). "The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as specified in the order, if he is satisfied ; (i) that the tenancy has ceased to be valid under section 6. tii\ Therefore, if a duration of tenancy is fixed under an agreement then on the Z expiry of such period the tenancy ceases to be valid and the landlord can seek ejectment of the tenant. Subsequently, section 6 and section 15 (2) (i) were omitted by an amendment made by Sind Rented Premises Ordinance (Amendment) Ordinance 1984 with effect from 30th July, 1984. Section 6 and section 15 (2) (i) do not exist on the statute book. In this back-ground we have now to examine the provision of section 5 of the Sind Rented Premise Ordinance. Before adverting to section 5 it will be pertinent to keep in mind the meaning of the word "tenant" as defined by section 2 sub-section (j) which reads as follows :— (j) "tenant 1 'means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes :— (j) any person who continues to be in possession or occupation of the premises after the termination of his tenancy ; (ii) heirs of the tenant in possession or occupation of the premises , after the death of the tenant; and" This definition in general term provides that person who agrees or is liable to pay rent as consideration for possession or occupation of any premises will be a tenant. Besides the contractual tenants it recognises statutory tenants as well. Significantly enough it does not provide that contractual tenancy will be created only by agreement in writing as provided by section 5, nor this definition is subjected to any other provision of the Ordinance Section 5 provides that the agreement of tenancy shall be attested by signing and sealing with the seal of the Controller within whose jurisdiction the premises is situated or any Civil Judge or any 1st Class Magistrate. Sub-section (2) provides that the relationship of landlord and tenant can be proved by producing a certified copy of a registered agreement or the orieinal of an agreement not compujsorily registrable duly attested in terms of section i>0). Section 5 or any other provision of the Ordinance does not provide that if the agreement of tenancy is not in accordance with srction 5 it will be a nullity in law and wifl not be accepted as a proof of relationship of landlord and tenant. If the intention of the legislature would have been to nullify all tenancy -' agreements which are not in conformity with the provisions of section then such a provision would have been provided in the Ordinance. The absence of any penalty for non-compliance with section 5 of the Ordinance makes it directory and not mandatory. The use of the word "shall" doe; not make the provision of section 5 mandatory. While interpreting a provision of law the entire scope of the statute and other provisions have also to be taken into consideration. In Niaz Muhammad v. Fazal Raqify PLJ 1973 SC 73 it was observed :— "It is true that no universal rule can be laid down for the con­ truction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attend­ ing to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when •it contains matter merely of direction, but not when those directions arc followed up by an express provision that, in default of following them, the facts shall be null and void. To put it

differently, if the Act is directory, its disobedience does not entail any invalidity ; if the Act is mandatory disobedience entail serious legal consequences amounting to the invalidity of the act - ' done in disobedience to the provision". Section 5 provides a manner for making the agreement and care has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement. It is weil settled that any person can enter into agreement of tenancy orally as well. It is not prohibited under law. However, it is also well recognised that as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. Therefore, section 5 is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. As observed in Khuda Yar's case PLJ 1976 SC 159, the procedural provisions are 'desired with a view to impart certainty, consistancy, and uniformity to the administration of justice and to secure it against arbitrariness errors of individual judgment and malafides". Section 5 was designed to complement section 6. This was necessary as under section 6 after expiry of agreed period of tenancy, the tenancy did not only cease to be valid but under section 15(2), (i) the tenant was liable to be ejected. Therefore, in order to press in service the provisions of section 6 and 15(2)(i) it was necessary that the agreement of tenancy should be executed as provided by section 5. In my view section 5 requires agreement of tenancy to be made in writing in a particular form which shall if produced in court will be accepted without any further proof but it can not be extended to mean that where the agreement of tenancy is in writing but not in the manner provided by section 5 the rslationship of landlord and tenant shall not be created between the parties. Refer Mushtaq Ahmad v. Abdul Sattar 1984 MLD 1. It is a well settled principle of interpretation that all the provisions of a statute are to be construed harmoniously and to avoid conflict. If a strict interpretation as contended by the learned counsel for the respondent is given to section 5 then the tenancy created orally can not be treated as valid and will run counter to the provision of section 2)y) which defines ^ tenant and does exclude tenancy created by oral agreement. It is signifi­ cant to note that in ssction 5(2) the production of certified copy of registered document and where it is not compulsorily registrable then the original deed, duly attested as provided by sub-section (1) shall be produced and accepted in proof of relationship. If a strict view is taken and this Provision is held mandatory then although an unregistered agreement in terms of section 5(2) was executed, if it is lost it can not be proved by producing its copy. The provisions of section 5 do not confer any sub­stantive right. They are procedural in nature. If the agreement of tenancy in writing is not in terms of section 5 then neither it is invalidated nor the oarties are debarred from proving the relationship of landlord and tenant by producing and proving such agreement or other admissible evidence as provided under law. The appeal is dismissed. (SHR) Appeal dismissed

PLJ 1987 Karachi 277 PLJ 1987 Karachi 277 Present : abdul razzak A. thahim, J Dr. MUHAMMAD SAEED-Appellant versus Mrs, PARVEEN HILALUDDIN and Another—Respondents First Rent Appeal No. 193 of 1986, dismissed on 21-12-1986 Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15, 16 (2) & 21—Eviction—Application for—Rent Controller- Jurisdiction of—Tenant submitting to jurisdiction of Rent Controller without raising any objection of jurisdiction—Held: Rent Controller rightly not touched such point (of jansdicaon) in tentative rsnt order passed under S. 16 (2) of Ordinance. [P. 279]A Mr. Gul Zaman Khan, Advocate for Appellant. Mr. Nasim Farooqi, Advocate for Respondent. Date of hearing : 8-12-1986. judgment This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has been filed by appellant Dr. Muhammad Saeed against the order dated 29-3-86 passed nder section 16 (2) of the Ordinance. 2. Facts are that respondent Mr. Parveen Hilaluddin filed rent case No. 3597/84 under section 15 of the Ordinance on the ground of default in payment of rent. The written statement was filed by appellant and respondent No. 2. The Respondent No. I/landlady, filed an application under section 16 (1) of the Ordinance. The Rent Controller by an order dated 23-5-85 passed tentative rent order whereby respondent No. 2, Ciba Giegy (Pakistan) Limited was directed to deposit the arrears of the rent with effect from May 1984 upto August 1985 amounting to Rs. 67,500/- on or before 10th October. It was further directed that respondent No. 2 to deposit future monthly rent on or before 10th of every succeeding month. The order of the Rent Controller was not complied with, therefore, he has struck off the defence. 3. Mr. Gul Zaman Khan advocate for the appellant at the outset has submitted that point of jurisdiction is involved in the rent case which has not been decided by the Rent Controller, therefore, he was not competent to pass tentative rent order in the proceedings. He has referred to the cases reported in 1985 CLC 364 and PLD 1974 SC 124, It is argued that the orders passed under section 16(1) and 16 (2) are bad in law, 4. Mr. Nasim Farooqi raised the following points : (1) That appellant has no locus standi to file the appeal. (2) The order of the Rent Controller is against the respondent Mo. 2 who has not challenged the order. He has referred to the cases reporred in 1984 CLC 1118, 1981 CLC 212. 5. In Rerlt application, respondent No. 2, Ciba Gigey (Pakistan) Limited and appellant Dr. Mohammad Saeed were made party. They both iled separate written statements. Appellant was in service of respondent No. 1 and he used the premises by virtue of his employment of respondent No. 2. The agreement was between Mrs. Parveen Hilaluddin landlady and Ciba Giegy (Pakistan) Limited. On expiry of lease agreement, the possession was not handed over to owner. Respondent No. 2 in his written statement admitted the relationship but stated that appellant's services were terminated and he was entitled to be in possession upto 30th April 1984 and on or after 1st May 1984 the appellant was under a duty to vacate the premises and handover to the landlady but in breach of his obligations as the licensee he wrongfully continued in possession and now trespassed. 6. Appellant in his written statement admitted the agreement between respondent No. 1 and respondent No. 2 but stated that he bad all along been in possession of the premises but later on landlady refused to receive the rent from him with malajvde intention. In para. 9, he states as under :— "That no cause of action accrued to the applicant for filing this case against appellant (opponent No. 2). It is further submitted that this Hon'ble Court has got no jurisdiction to entertain with these proceedings. The application is liable to be dismissed with special cost", 7. Application under seccion 16 (1) of the Ordinance was filed on 23-5-85 and Rent Controller, directed respondent No. 2 (company) to deposit arreari of rent with effect from May 1984 upto August 1985 amounting to Rs. 67,500 on or before 10th October. It was further ordered that future monthly rent to be deposited on or bafore 10th of succeeding month, 8. Appelians made an application on 21-10-1985 under Order II rule 14 CPC in which it was requested to direct respondent No. 2 to pro­ duce lease agreements etc. as company has requested for disconnection of his telephone, This application was supported by affidavit of appellant. Dr. Muhammad Saeed who in his affidavit stated that he is old tenant of (applicant) respondent No. 1 and rent of May and June 1984 was duly sent to applicant by cheque dated 9-9-1984 which was refused with malafide intention just to create a ground of default. He has also stated that applicant (landlady) tried to dispossess him but he filed suit and got injunction from the court of XXX Civil Judge, Karachi. 9. Appellant also made an application of review of rent order in which he requested the Controller that he (appellant) may be defected to deposit the arrears of rent as well as future monthly rent. This application was also supported by an affidavit of appellant. His application was dis­ missed by the Rent Controller by an order dated 6-3-1986. 10. There are some facts which are not disputed. Appellant is in possession of premises through his employer and there is no agreement between appellant and respondent No. 1. The services of appellant have been terminated and respondent No. 2 are not interested in holding the possession. There is no direct relationship between appellant and landlady. The rent for the premises is not being paid. There is clear violation of tentative rent order as respondent No. l neither paid arrears nor future rents and they have not filed appeal against ejectment order passed under section 16 (2) of the Ordinance. While hearing the appeal appellant was asked to deposit arrears and future rent with Rent Controller but Mr. Gul Zaman did not agree. Mr. N. A. Farooqi frankly stated at the bar that in case rent is deposited in terms of tentative rent order the case be remanded. Mr Gul Zaman appearing for the appellant argued that since Rent Controller has no jurisdiction, the order passed by the Rent Con­ troller is ab-initio bad in law. 11. Appellant filed his written statement on 27-4-85 be has not taken the grounds that Rent Controller has no jurisdiction nor he submitted any document in support but at appellate stage learned counsel has argued that premises are within cantonment area, therefore, provisions of Cantonment Rent Restriction Ordinance, ,1963 will apply to the proceedings and Rent Controller under Sind Rented Premises Ordinance has no jurisdiction. He has placed reliance on a case of /. S. G. A. Ltd. v. Mst. Rift Fakhir repor­ted in 1985 CLC 364. Presently there is no evidence .to this effect. This point can be taken on the basis of documents when issue is to be framed but no such application was made by the appellant to the Rent Controller. Rent case has not proceeded. In the meanwhile application under section 16 (1) of the Ordinance was filed on 23-5-85 and appellant filed two appli­ cations on 21-10-85. One under Order 11 rule 14 and other for review of order. He stated in the affidavits that on 9-5-84 he tendered rent and admits to be the tenant. He has not raised objection of jurisdiction. Hei submits to the jurisdiction of Rent Controller at this stage, therefore, RentJA Controller has rightly not touched this point in tentative rent order or inj order passed under section 16 (2). In the above cited case, 1985 CLC 364 in para 6 of judgment it is held as under :— "6. In the case referred to above, it was no doubt, held that a person having submitted to the jurisdiction of an authority could not take exception to the jurisdiction he had submitted to. But in all the cases the concerned authorities did have jurisdiction under the relevant law but that jurisdiction could not be consider­ed in these particular cases". H»d any objection been raised before the Rent Controller he could have taken into consideration. 12. Now I revert to the locus-standi of appellant to file appeal. Appellant has possession of demised premises through his employer/com­ pany/tenant. The ejectment of company automatically includes ejectment of appellant. Now appellant on one hand wants to keep possession and claims to be the tenant strictly in terms of the Ordinance and volunteered to pay arrears and rent before the Rent Controller but when he is afforded opportunity by this Court to plead his case before Rent Controller but deposit the rent. He declined On this I refer to case reported in 1981 CLC 212 and came to the conclusion that he has no right to file appeal. In case of Nazar Ahmed v. Seth reported in 1984 CLC 1118 it is held as under:— "On the other hand, it is submitted by Mr. Mahmoodi that appellant has no locus-standi to file the appeal as he was not the tenant and not even sub-tenant according to the findings of the learned Controller and therefore, the appeal is not maintain­ able." s \ "Mr. Mahmoodi has pointed out that the respondent has accepted Mst. Ghulam KLubra as his tenant as her request made by her in her letter dated 3rd September 1971 Exh. A 4. The plea taken in the written statement was that deceased tenant had left several children atid in view of this plea the present appellant could not be successor or a legal representative, and the sons had not applied for being joined as a party or claimed any right or interest in the tenancy at any stage. I agree with Mr. Mahmudi that this appeal by the present appellant is not maintainable as he was neither the tenant nor the legal representative of the deceased tenant". 13. The .appeal of Dr. Muhammad Saeed/Appellant is also not maintainable. I therefore dismiss this appeal and maintain the order of Rent Controller. (MIQ) Appeal dismissed.

PLJ 1987 Karachi 280 PLJ 1987 Karachi 280 Present: syid abdur rahman, J JABAR AHMED-Appellant versus ABIDA ISMAIL—Respondent First Rent Appeal No. 946 of 1984, allowed on 29-9-1986 i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— --•—S. 10—Rent—Payment of—Receipts—Signatures on—Held ; Land­ lord not to be required to obtain signature of tenant on receipts of rent issued by him to tenant nor joint receipt book for all his tenants to be required to be maintained by him. [P. 284JC (ii) Sind Rented Premises Ordinance,fl979 (XVII of 1979)—

S. 10—Rent—Payment of—Tenant not protesting on refusal of landlord to issue receipts and keeping quiet on account of confi­ dence reposed by him in landlord — Held : Presumption regarding tenant having not paid rent to be attracted in case. [P. 282JB PLD 1967 Lab. 696 ref. 1986 CLC 1551 & 1984 CLC 1924 distinguished (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15 (2) (ii)—Eviction—Default—Ground of—Rent—Payment of —Proof of—Held : It being duty of tenant to prove payment of rent, (relevant) receipts to be produced by him in order to sub­ stantiate his allegation of payment — Landlord, however, to initially state on oath regarding tenant having not paid rent and then burden to be shifted upon tenant. [Pp. 281& 282]A Mr. Akhtar Mahmood, Advocate for Appellant. Mr. Attaullah Khan, Advocate for Respondent. Date of hearing : 29-9-1986. judgment This appeal is directed against the judgment of 12th Senior Civil Judge and Rent Controller, Karachi, dated 24-7-1984, whereby the application of the appellant for ejectment of the respondent was dismissed. 2. Briefly stated the facts giving rise to this appeal are that the appellant is landlord of premises No, 87/A/423 situated in Malir Colony Karachi. The respondent is the tenant of the said premises of the rate of rent of Rs. 250/- per month. The appellant has contended that he requires the premises in dispute for his personal bona fide use. Conse­ quently he had requested the respondent to vacate the premises but he refused. The appellant has aiso alleged that the respondent had not paid any rent after March. 1977 inspite of repeated demands. He is therefore liable for ejectment on both these grounds, 3. The respondent filed written statement in which she has alleged that she had been regularly paying the rent to the applicant but the applicant had never issued any receipt to her since inception of the tenancy. She has also denied that the applicant requires the premises for bona fide personal use. 4. On the pleadings of the parties, following issues were framed by the Controller. (1) Whether the applicant requires the premises in case for his personal bona fide use ? (2) Whether the opponent has committed default in payment of rent? (3) What shouid the order be ? 5. He decided both the issues against the appellant and dismissed his application as shown above. 6. I have heard Mr. Akhtar Mehmood for the applicant and Mr. Attaullah Khan for the respondent. 7. The stand of the appellant as stated in his application was that the respondent had stopped paying rent from March, 1977. In reply the respondent stated in her written statement that she was paying rent to the applicant regularly even after March, 1977 but the applicant had never issued any receipt to her. Her case was that she was not at all a defaulter. The appellant had filed this application for ejectment as she had refused to yield to his demand for enhancing the rent. During the course of evidence the appellant filed his affidavit and in order to refute the contention of the respondent that no receipts were being issued to her, produced the receipt book which contained 14 counter foils of the receipts issued to the respondent from time to time and 36 un­ used receipts, in all 15 leaves of printed receipts. As againsl this the opponent filed affidavit of her husband Ismail who also acted as her attorney and that of her sons Zahid and Shahid. All the three witnesses stated that the opponent was continuously paying the rent to the appellant upto November, 1978 but she had never issued any receipt to the opponent inspite of repeated demands. The law on the point is quite clear. It is the duty of tenant to prove, that he had paid the rent to the landlord and in order to substantiate hisL allegation of payment of rent it was his duty to produce the receipts. Noj doubt it was the initial duty of the landlord to state on oath that thef Itanent had not paid the rent and then the burd3n shifted upon Jthe tenant to prove that he had paid the same. Admittedly in this lease the appellant/landlord had not only stated in his applica­ tion to that effect but also stated in his affidavit on oath that the respondent had not paid the rent to him after March 19/7. The reply of the respondent in this connection was that she had been paying the rent and that the landlord had not been issuing receipts to her, She has not given any explanation for not insisting on receipts and for keeping quiet on the refusal of the appellant to issue receipts. If the tenant does not protest on the refusal of the landlord to issue receipts and .keeps quiet on account of confidence that he reposes in the landlord Jtben he has to thank himself for his conduct. The presump- B jion in such a case would be that the tenant had not paid rent. Referlence in this connection may be made to the case of Muhammad Ramzan v. 'Bashir Ahmed reported in PLD 1967, Lah. 696, where it was stated as follows : "6. It was then contended by learned counsel for the appel­ lant that the learned Appellate Authority based his finding of default of rent on an alleged admission made by the learned counsel for the tenant in the following words— "The learned counsel for the respondent admitted, as indicated in the Rent Controller's order on the 28th of September 1959 that his client had been in arrears so far as the period between October 1957 to February 1959 was concerned and conse­ quently the respondent had rendered himself liable for eviction under section 13(2)(i) of Ordinance VI of 1959." Learned counsel for the appellant submitted that there was no such observation in the order of the Rent Controller passed on the 28th of September 1959. This submission of the learned counsel is correct, that however, does not alter the position as the fact remains that Bashir Ahmed applicant appeared as his own witness and stated that the tenant had not paid him rent since October 1957. The tenant controverted this statement saying thai he had paid the rent but that he had never demanded any receipt because he had faith in the landlord. In cross-examination he admitted that he was submitting accounts to the Income-tax Department since 1951 but that there was no entry in his account books regarding the payment of rent. 7. In this state of the evidence a mere assertion that rent had been paid would not carry the day." Mr. Attaullah Khan who appeared for the respondent relied upon (1) Amin Master v. Abdul Rashid 1986 CLC 1551, and (2) Qamar Khan v. Rehmatullah reported in 1984 CLC 1924 and contended that where the tenant was alleging payment of rent and adducing oral evidence and not producing the receipts of rent, the Controller could hold that there was payment of rent if the evidence produced by the tenant convinced him. I have gone through these rulings. These rulings are distinguishable from ebe facts of the present case. In both these rulings the landlord had admitted that he was n-.-t issuing the receipts. As such the court was justified in holding that ths tsnant could not be asked to produce receipts of the payment of the rent. In the present case the landlord has not made any such admission of non-issuance of receipts but has on the con­ trary insisted that he had been issuing receipts to the respondent and has produced the receipt-book containing the counter-foils. Finally the advocate for the respondent cited the case of Faiyazi Begum and others v. Zakiuddin 1986 CLC 1280, wherein it was held as under : "The appellant has stated that he had been regularly issuing receipts to the respondent. Once a landlord pleads that he had been issuing receipts to the respondent and the same is denied by the tenant then the burden is upon the landlord to establish that such receipts were issued as and when the occasion arose. If the landlord is unable to produce documentary evidence of such facts then mere statement of the landlord to the effect that the tenant has defaulted in payment of rent should be corroborated by some proper and cogent evidence because in such circumstances the sole statement of landlord may not be sufficient to prove the default. The respondent had taken a consistent stand that the appellant had never issued any receipt of any type for the last 9 years. The appellant has not been able to establish that receipts were issued by him. In a situation where allegation is made that receipts were issued but has not been proved there remains word against word and, therefore, the Court while determining the question of default has to consider the circumstances, the con­duct of parties and any other relevant evidence that may be available." I have also gone through this ruling, I find that this ruling also does not apply to thj facts of the present case. As already pointed out by me the appellant has not remained content with the assertion that he had been issuing receipts but has produced documentary evidence of having issued such receipts to the respondent from time to time. He has produced the receipt-book which contains as many as 14 counter-foils of receipts of rent issued by him to the respondent. Hence as observed by Justice Saleim Akhtar in this ruling this is not, a case of a landlord who was unable to produce documentary evidence of such facts, and therefore, it cannot be said that the mere statement of the landlord that the tenant had defaulted in payment of rent was not sufficient. Such statement no doubt requires corroboration. In this case the statement of the appellant/ landlord that he had been issuing receipts to the respondent/tenant was corroborated by the counter-foils of the receipts" produced by him and was therefore the proof of the fact that the appellant had been conscien­ tiously performing his part of the duty. The observation of Justice Saleem Akhtar who had decided the case of Faiyazi Begum may be usefully reproduced to clarify the position. "In cases where the landlord claims that the tenant has defaulted in payment of rent, initially burden is upon him to establish that a default has been committed. To discharge sueh a burden the entire evidence available to prove it should be produced. If there is any documentary evidence it must be produced but where no documentary evidence is available, statement on oath by a landlord that default in payment of rent for specific month has been committed by the tenant will be sufficient to initially discharge the burden which then shifts to the tenant who should produce evidence in rebuttal to establish that he has paid the rent. Therefore, once the initial burden has been discharged the tenant has to affirmatively prove, if alleged by him, that he has paid the rent." Learned Controller has given two reasons for disbelieving the genuine ness of the counter-foils of the rent receipts produced by the appellant. J First is that the counter-foils are not signed by the tenants. The second is that the receipt books of all the tenants of the applicant are not joint, and the receipt book of the respondent/tenant has been kept separately. 1 find myself unable to agree with this reasoning of the learned Controller. Neither the Sind Rented Premises Ordinance 1979 nor any other law for time being in force requires the landlord to obtain the signature of the tenant, on the receipts of rent which he issues to the tenant, nor is there any obligation upon the land­ lord to keep a joint receipt-book for all his tenants. The respon­ dent's counsel was also not able to show us any such custom or usage prevailing in Sind. Hence I am of the clear view that the reasons given by the learned Controller for discarding the counter-foils of the receipts produced by the appellants/landlord are not cogent or convincing. Hence 1 do not see any reason to agree with the finding of the learned Controller on this point. I am satisfied that the respondent has failed to prove that she had paid rent to the appellant after March, 1977. I am therefore, unable to uphold the finding of the learned Controller on the issue of non-payment of the rent. I do not propose to deal with the finding on the issue regarding requirement of the premises for personal use for the time being as the finding on the issue of default in payment of rent would be sufficient to dispose of this appeal An application under Section 21(3) of Sind Rented Premises Ordinance, 1979 was also made by the respondent (CMA 1635/1986) for recording additional evidence on the point that one Zakir Ahmed, a tenant of the appellant of a flat on the ground floor of the same building, had vacated the same which was still lying vacant and the appellant had not occupied that flat. Since this application also related to the issue of requirement of the premises for personal use and I am not touching that issue, therefore, I do not propose to pass any order on this application as well. These are the reasons for which I passed short order today, allowing the appeal and setting aside the impugned order of the learned Controller and directing the respondent to vacate the premises within four (4) months from the date of the order. ((MIQ) Appeal allowed,

PLJ 1987 Karachi 284 PLJ 1987 Karachi 284 Present ; syed haider ali pirzada, J AHMAD NASIR KHAN—Appellant versus -Khalifa FATEH MUHAMMAD—Respondent First Rent Appeal No. 973 of 1984, accepted on 17-11-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 5 — Landlord and tenant — Agreement between — Demised, building identified as house in tenancy agreement—Held : Parties to be taken to have used expression 'house' in sense in which 'house' (is) understood in common parlance or as indicated by its dictionary meaning. [P. 287]A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 & 21—Eviction—Application for—Order on—Appeal against—Misreading of evidence and misconstruction of law—Effect of—Conclusion arrived at by Rent Controller that appellant had not established conversion and impairing value and utility of premises based on misreading and overlooking of material evidence and misconstruction of law—Appeal accepted and respondent (tenant) directed to hand over vacant and peaceful possession of premises in question to landlord within 4 months. [P. 292]H (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979) —

S. 15(2)(n'i)(6) — Eviction—Application for— Premises—Use of for purpose other than for which it was let out—Tenancy agreement silent about specific purpose for which 'house' was to be used— - Held : Purpose to which demised premises can be put by virtue of its identification as 'house' in tenancy agreement, would be purpose to which demiied premises could be put if same had been merely identified as 'residential building'. [P. 288]B (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15(2)(/n)(£>)—Rented premises—Change of user of—Demised premises or building identified merely as 'house'—Held : Such building can be used only as residential house—Held further : Subsequent use of such building exclusively as office or godown, to amount to change of user. [P. 288]C (?) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15(2)(jn)(Z>)—User—Change of—Right of landlord to eviction- Premises used for purpose other than one for which these were let out—Held : Landlord to earn right to evict tenant-Held further : Premises mentioned as house in tenancy agreement not to be converted into ofBce-cw/n godown for clerical work, handling money, entering into contracts and for storing goods to be sold without consent of landlord. [P. 288, 289 & 290]D E & F (ri) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 15(2)(zv)—Bvilding—Impairing value and utility of — Eviction on ground of—Held : Construction of staircase and two rooms on roof to impaire utility of premises and deprive landlord of enjoy­ ment of same. [P. 292]G Mr. Wajihuddln Ahmed & Mr. Mahfoozul Haq, Advocates for Appellant. Mr. Muhammad AH Jan, Advocate for Respondent. Dates of hearing : 30-9, 2-10 & 8-10-1986, judgment This First Rent Appeal is directed against the order dated 22-9-84 passsd by the Vllth Senior Civil Judge and Rent Controller Karachi, whereby, he dismissed the eviction application filed by the appellant. The facts which give rise to this appeal are that the respondent is tenant of the appellant in respect of house No. 964, Pit Illahi Bux Colony at a rental of Rs. 650/- per month payable in advance before 1st'of every English Calendar month. The appellant filed eviction application No. 1316 of 1981 against the respondent on the ground of conversion of •the use of the premises and also on the ground of infringement of condi­ tions on which the demised premises was let out to the respondent. The respondent resisted the eviction application. The appellant filed his own affidavit-in-evidence besides affidavit-in-evidence of Muhammad Arif Hussain In rebuttal the respondent filed affidavit-in-evidence of Dost Muhammad, son and duly constituted attorney besides affidavit-in-evidence of Aziz Mian and Babu Vakil. They were cross-examined by the learned counsel for the respective parties. The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties, decided issues 1 and 2 in the negative and dismissed the eviction application vide order dated 22nd September, 1984. The appellant abovenamed being aggrieved by the order dated 22-9-1984 of the Vlltb Senior Civil Judge and Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Wajihuddin Ahmed, the learned counsel for the appellant has contended thai the finding of the learned Controller on both the issues are erroneous and are on surmises and conjectures hence liable to be reversed. On the other hand Mr. Muhammad Ali Jan, the learned counsel for the respondent has submitted that the order is in accord with the evidence on record. The subject matter of tenancy agreement dated 18-11-1972 (Ex, 6-C) between the appellant and the respondent in generic terms is "House". Hence before adverting to the rival contentions canvassed on behalf of the parties, reference to such provisions of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance) as define the generic terms "building" "premises" and their species are necessary. Also is necessary for facility of reference, the extraction of the relevant provisions of the said Ordinance envisaging eviction on the ground of change of user. Section 2, clause (a) of the Ordinance defines building as under :— (a) "building" means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garrage, out-house and open space attached or appartment there­to ; Section 2 clause (h) defines "premises" as under :— (/>) "premises" means a building or land, let out on rent, but does not include a hotel ; Section 15, subsection (2), clause (iii) sub-clause (b) of the said Ordinance, which envisages eviction of the tenant for change of user of the premises is in the folloing terms :— "Section 15. (2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that— (Hi) the tenant has, without the written consent of the 186 lord— (b) used the premises for the purpose other than that for which it was let out ;" A perusal of the provisions of the said Ordinance would show that the Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that the tenant has, without the written consent of the landlord used the premises for the purpose other than that for which it was let out. Considering now a hypothetical tenancy agreement such as the tenancy agreement wherein the premises let out is described only a "house" without any further description thereof except that the house consists of two big rooms, verandahs in the front and on the back, one small room, store, bath room and kitchen etc., with telephone No. 413225, would such a tenancy agreement be considered to b: implyingly indicating the use for which the demited premises is intended to be let out. In my opinion, such tenancy agreement would be considered totally silent as to the use for which the demised premises is let out. The tenancy agreement would show as a house. Such a senancy agreement by itself, would be considered silent for itself intended use by the tenant, to put the house so tenancy to any use without attracting the provisions of Section 15 (2) (Hi) (b) of the said Ordinance. The said Ordinance categorises further the premises into building or land and the building is defined as any building or part thereof together with all fittings and fixtures therein, if any, and includes any garden, garrage out house and open space attached or appartcnaat thereto. If in a given tenancy agreement the demised premises is identified as bouse, in such a case even when'no express purpose is msntionsd in the tenancy agreement, the identification of the house as residential building would at least restrict its use to only such purposes as a residential building can be put to and would at least exclude the use of residential buidling as exclu­ sively residential building. Further a "residential building" can be identified in a given tenancy agreement as house, Kothi, bunglaow. villa or palace. All these terms', in my opinion would be indicative of only one use being intended of the demised building, that is, residential purpose. Hence, in my opinion, it would be utterly illogical to say that the identification of a demised building or premises in a tenancy agreement by itself is not indicative of the use to which the premises or demised building was intended to be put by the tenant. Accordingly, if a demised building is identified as a house in a tenancy agreement, it would be taken that the parties had used the expression 'house' in the sense in which the 'house' is understood in commor parlance or as indicated by its dictionary meaning. Similar would be the| situation where the expression 'office' or 'godown' is used. In usch a case, the parties would be taken to have used the expression -'office' or godown' as understood in common parlance and the meaning given to it the same in the dictionaries. B If the record is innocent of any evidence, oral or documentary, indicating expressly or circumstantially, the use to which the premises described as a 'house' in the tenancy agreement were to be put by the tenant, then the purpose to which the demised premises can be put t>y virtue of its identification as 'house' in the tenancy agreement would be a purpose to which demised premises could be put if the same had been tierely identified as 'residential building'. Again, assuming that the :xpression 'house' cannot as building for human habitation then if tne demised premises are only identified as 'house' (and if the tenancy agree­ ment is silent about the specific purpose for which the 'house' was to be used), then the occupant could be using it as a dewelling house without attracting the provisions of Section 15 (2) (iii) (b) of the said Ordinance that is he could reside therein. The discussion is meant to emphasise that where a derailed 'premises' or •building is identified merely as 'house then the same can be used only as [residential house, but if the said demised building came to be used later on Cjexclusively as office or godown, then that would tantamount to a change of user. Similarly if such a demised premises was put to use exclusively as an office and godown (for the moment assuming that the expression 'office' connotes the building or part, used for office purposes including adminis­ tration, clerical work, handling money, the expression "godown" connotes a 'building' that is used for the purpose of only stocking provisions therein), then that would tentamount to the change of user. The reason being that when the demised premises is used as a residential house, it is being put to constant use by the tenant which, by implication ensures its proper upkeep likely timely repair, timely white washing, but when premises is used as a godown, which is merely used for dumping goods therein, such an upkeep may neither, bs possible nor, by implication envisage as such a 'godown' remains mostly close, while a house remains mostly open. The premises used as a godown are bound to deteriorate and a landlord, if had been informed at the time of entering into tenancy agreement that the tenant intended to use ths demised premises described as a house, he might not have agreed to eater into ths said agreement. Hence when the demised premises are used for a purpose to which having regard to its description as 'house' 'office' ; godow.i' etc , ths landlord, may not have intended, had ths said diffireiit parpnj, wsiich ths tenant had in mind, been made known by the tenant to him, then the landlord may not have agreed to let out the said premises for that purpose. The word 'house' does not mean or include an office/godown for the purpose of Section 15(2)(iii) (b) of the said Ordinance and the premises, which are mentioned as a house in the tenancy agreement cannot without the written consent of the landlord, be converted -into office cum godown D for clerical work, handling money, entering into contracts and for storing the goods being sold at the same premises or at the other premises by the tenant. The words 'house' 'office-CHm-godown' are distinct having distinct and separate meaning which are well understood in this part of the country and that matter, in dictionaries meanings of the words 'house 'offi-ca and godown' are given as these are understood in Pakistan. When the premises have been used for the purpose other than the one-for which these were let out, the landlord earns a right to evict the tenant |E The tenancy agreement executed between the parties is a charter of their rights. If the purpose or use for which the premises is Jet out, is set out after agreement by the parties, in the tenancy agreement, then it does not pose any problem. If on the other hand, it does not specifically state the purpose of letting, then the Controller or the appellate authorities are called upon to decide the matter in controversy by interpretation of the statutory definition or, in the absence of such a definition by reference to the ordinary dictionary meanings or their meanings as are commonly understood in the locality. The terms of the tenancy agreement in the instant case were clear and explicit and did not leave any scope for the argument that the premises in question could be used as an 'office-cwm-godown'. In the case of Ch, Muhammad Anwar Sipra v. Malik Muhammad Dirt etc. (PLJ 1981 SC 841), the Honourable Supreme Court laid down the following dictum :— "It would be noticed that the premises had been mentioned in the lease deed as a house. Although the lease deed is silent about the use to which the house was to be put, yet considering that it is mentioned in the Lease Deed as a house, secondly that the premises in question consist of the first and the second floor of the building, it is evident that the said premises were leased out on the condition that it would be used for residential purpose. There­ fore, by putting it to a different use by converting a part of it into a lawyer's office, the appellant hid evidently infringed the first part of clause (b) of Section 13(2)(ii) which prohibits a tenant from using a building for a purposs other than for which it was leased out. Moreover he can also be deemed to have infiringed one of the conditions on which he had evidently taken the house on leass, i.e. to use it for his residence. As such he was also guilty of contravening the second portion of clause (b) of Section 13 (2) (ii)." Reliance is also placed on PLD 1981 SC 578, 1980 SCMR 590, PLD 1982 SC 75 and 1985 CLC 1861. The appellant in his affidavit-in-evidence stated that he let out the pre­ mises to the respondent for residential purpose and the respondent is using the house in question for commercial purpose, "The appellant denied the suggestion that since the time premises was let out, "the respondent is using the same for office cum godown. The appellant to a suggestion in cross-examination stated that "I had not given any notice in writing since 1974 complaining to the opponent that he is using the premises for commercial use. I had verbally asked him so it is incorrect that as I had not got converted from P.I.B. Society the premises from residential to commercial therefore I have cancelled commercial use since 1974". P.W. 2 Muhammad Arif stated in his affidavit in-evidence that it was let out by the appellant to the respondent only for residential purposes. This witness denied the suggestion that the premises is being used for office and godown since 1972. As against the above evidence the attorney of the respondent stated in his affidavit-in-evidence that "on the expiry of the stipulated period the at pp. 283 & 284 pponent became the tenant of the applicant as month to month and was for the purpose of establishing office cum godown. The attorney to a suggestion in cross examination replied that the said premises is being used for office cum godown since inception of the tenancy. The two defence witnesses supported the version of the attorney of the respondent. Coming now to the instant case, the purpose to which a house can normally be put being inherently different from the normal use to which a building described as 'office cum godown' is put as already observed, the 'house' herein having been used exclusively as 'office cum godown,' the conclusion in the light of what is held above, is inevitable that the respon­ dent had changed the user and was liable to be evicted in terms of Section 15 (2) (iii) (b) of the said Ordinance. The learned counsel for the respondent has submitted that conversion before the promulgation of the said Ordinance is not within the perview of clause (iii) (b). The relevant words are 'has used the premises.' The present perfect house contemplates a complete event connected in some way with the present time. The language of sub-clause (b) of clause (iii) of subsection (2) of pection 15 of the said Ordinance leaves no doubt in my mind, that on Sroof of the fact that the tenant has used the premises for the purpose other than that for which it was let without written consent of the land­ lord, the landlord is entitled to an order for eviction against the tenant. I am of the view that the tenant has used the premises for the purpose other than that for which it was let out without written consent of the. landlord either before or after the promulgation of the said Ordinance, the respondent/tenant is not protected from eviction under Section 15 (2) (iii) (b) and it matters not that the tenant had a right to use the premises. The appellant's right to obtain possession of the premises in question under Section 15 (2) (iii) (b) is no way impaired by his acquiescence in the breach of the condition which would under the Transfer of Property Act enable him to re enter the leased premises or tenanted premises what is denied to the appellant by his acquiescence in the breach of the condition or by his waiver is the right of re-entry and not other remedies open to him under the law. Ths provisions which are incorporated in Section 15 (2) (iii) (b) of the said Ordinance contemplate that the tenant has used the premises for purpose other than for which it was let put to him. These provisions do not permit change of the purpose by acquiescence or waiver of the landlord. 1 am Satisfied that on the facts and circumstances of this case the evidence does not disclose that the appellant concurred with the purpose for which the respondent was allowed to use the premises. The appellant averred in para 3 of the eviction application that the respondent infringed conditions on which the demised premises had been let out to him. The appellant further averred in para 4 of the eviction applica­ tion that the respondent committed such acts which impaired material value or utility of the demised premises. The respondent denied all these allegations of infringement of the conditions of the tenancy agreement and authorised additions, alterations and construction, on the demised premises. According to the respondent the appellant himself constructed stair-case and room on first floor. Accordin to the respondent the appellant took advance to the tune of Rs. 20;565 for carrying out additional construction within the said premises. The Controller who tried the eviction application held that 'by construc­ ting additional rooms and stair case the value and utility of the premises in question is increased but not decreased.' The grounds on which a tenant can be evicted are specified in Section 15 of the said Ordinance. Breach of conditions of the tenancy is one of the grounds specified in sub-clause (c) of clause (iii) of subsection (2) of Section 15 of the said Ordinance, The other ground for eviction of the tenant is specified in clause (iv) of subsection (2) of Section 15 of the said Ordinance that is, the respondent/tenant has committed such acts as are likely to impaire the value and utility of the premises. It is common ground that the premises from which the respondent was sought to be evicted were in his occupation by virtue of tenancy agreement dated 18-11-1972. Term or condition No. 9 provides that the respondent will not cause damage to this premises and will not change the premises and will not damage the premises. According to the appellant the respon­ dent had actually constructed pucca stair-case and two rooms over and above the ground floor of the said house without the written consent of the appellant. Mr. Muhammad AH Jan contends that the terms and conditions of the tenancy agreement under which the respondent held are contained and confined which created the tenancy under which the respondent holds the premises in dispute and the tenancy agreement did not contain any condi­ tion prohibiting the respondent from erecting any permanent structure that is rooms on the first floor and a stair-case, even if, any permanent structure had been constructed by the respondent, that would not amount to a breach of the conditions of the tenancy. A perusal of condition No. 9 shows that the respondent was prohibited from treating or damaging the demised premises and the respondent was prohibited from damaging the premises in any manner whatsoever. The word 'permanent structure,' must be distinguished from words like 'fixtures' and 'structure' and means 'something' which is constructed in the way of being build up as a 'building'. The rooms on the floor and the stair-case were not constructed for the purpose of use otf the particular occasion. It seems that the respondent constructed the rooms and stair­ case intending it to use it as rooms and stair-case during the terms of his tenancy. Even assuming that the rooms and stair case were such that they could be dismentled without causing damage to the demised premises, in view of the nature of construction and the intention of the entire terms of his tenancy and not merely temporarily, the aforesaid construction must be held to be a 'permanent structure.' As it was constructed without the written consent of the appellant unauthorisedly, the respondent com­ mitted breach of conditions of the tenancy and, therefore, he is liable to be evicted. It is true, as pointed out by Mr. Muhammad Ali Jan that the Control­ ler has not recorded a specifice finding whether the rooms and stair-case were permanent structure or not and that it was his duty to record such a finding. As, however, the qusstion was a permanent structure or not can be decided on the materials on record and it is manifest that the rooms on the first floor and the stair-case were permanent structure. In the case of Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. (PLJ 1981 SC 841) the Hon'ble Supreme Court laid down the following dictum. "Again since the Lease Deed does not contain any clause permit­ ting the tenant to make any construction on the building without the landlord's consent, therefore, any construction made by the tenant without the permission of the landlord would evidently be against the written agreement." After going through the deposition of the witnesses examined by the parties and also the receipts produced by the respondent. I am of the view that the appellant has proved that the respondent constructed stair-case and two rooms on the roof of the premises was let out to him. In this connection the observations of Mr. Zakaullah Lodhi, J in the case of Chiragh Din v. Mushtaq Muhammad and another reported in PLJ 1976 Karachi 23 as follows :— "The outcome of this discussion, therefore, is that the roof of a building does not form part of the tenament and its upper portion can be used by the landlord for construction of upper storey or for any other purpose subject to the condition that it does not in any manner disrupt the peaceful enjoyment of the premises by the tenant. The contention, therefore, that the roof formed part of the tenament and it could not be separately leased out is also without force and is hereby repelled." I am in respectful agreement with the above discussion for the reasons in that decision as such I am of the opinion that the construction of stair :ase and two rooms on the roof impaired the utility of the premises and deprived the enjoyment of the satns. It is expedient in the interest of justice to decide the matter on the basis of the record below. I have done so instead of remanding the case for decision of the question. In this state of evidence, I am clearly of the view that the Controller has misread and ignored material evidence and construed the law in reach­ ing the conclusion that the appellant had njt established conversion and impairing the value and utility of premises in question. 1, therefore, accept this appeal and allow the eviction application. The respondent is directed to hand over the vacant and peaceful posses­ sion of the premises in question within four months to the appellant on the condition that he shall continue to deposit monthly rent in accordance with the Controller's order. In case the respondent will commit any default in respect of the above condition the appellant shall be at liberty to file an execution application immediately on commission of such default. (MBC) Appeal accepted

PLJ 1987 Karachi 293 [FB] PLJ 1987 Karachi 293 [FB] Present : naimuddin, CJ ; abdul qadeer chaudhry, muhammad zahoorul haq, ally madad shah & syed haider An pirzada. JJ MUHAMMAD BACHAL MEMON—Petitioner versus GOVERNMENT OF SIND through Secretary, Department of Food,- Sind Secretariat, Karachi and 2 Others—Respondents Office objection in Const. Petition No. D-128 of 1936, decided ou 26-3-1987 (i) Constitution of Pakistan, 1973—

Arts. 199 & 270A—Military courts — Conviction by — Challenge to—Constitutional petitions—Competency of—Held : Petitions under Art 199 of Constitution (under present dispensation) not to be com­ pletely barred in respect of convictions by Military Courts or actions by Military authorities — Scope of challenges now, however, to be restricted to without jurisdiction acts and. orders and to proceedings coram non judice. (Unanimous view). [P. 330JBC (ii) Constitution of Pakistan, 1973—

Arts. 270A & 199—Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—Validity of—Challenge to—Held: MLO 107 having been validly protected under Art. 270A of Constitution, such Martial Law Order or inclusion of MLO 105 in schedule of such Order not to be called in question (in writ jurisdiction of High Court). (Unanimous view). [P. 330]BB Per Zahoorul Haq, J (Abdul Qadeer Chaudhry, J agreeing) : (Hi) Constitution of Pakistan, 1973-

Art. 199 read with Martial Law (Pending Proceedings) Order, 1985 (MLO 107) — Para. 4 — Martial Law Authorities — Actions of— Challenge to—High Court—Writ jurisdiction of—Interference in— Held : MLO 107 not to oust jurisdiction of High Court under Art. 199 of Constitution. [P. 314]Y (iv) Constitution of Pakistan, 1973—

Arts. 199 & 270A read with Martial Law (Pending Proceedings) Order, 1985 (MLO 107) Para. 3 & 4 Martial Law Authorities — Actions by—Writ against—Held : Jurisdiction of High Court) under Art. 199 of Constitution being not affected by MLO 107, such Order at most to be made defence to constitutional petition by clothing action of Martial Law Authorities with legality and propriety - Held further: Constitution being superior to MLO 107, no bar upon seeking remedy provided by Constitution to be placed by such Order. [P. 31i]AB (v) Constitution of Pakistan, 1973—

Arts. 199 & 270A (2) (5)—Martial Law Authorities—Actions of— Challenge to—Bar of—Writ petitions—Competency of—Some bar and restrictions to entertainment of constitutional petitions in respect of actions of Martial Law Authorities and actions under Martial Law by different other authorities provided under clauses (2) & (5) of Art. 270 of Constitusion—Held: Bar being not complete, scope to be still left for scrutiny if challenge be based on action on ground of its being coram non judice or without jurisdiction, [P. 313]S (yi ) Constitution of Pakistan, 1973—

Arts. 199 & 270A (5)—High Court—Writ jurisdiction of—Exercise of —Held : High Court itself being creature of Constitution and its jurisdiction under Art. 199 being also subject to Constitution, High Court not to act in contravention of Constitution by brushing aside clause (5) of Art. 270A. [P. 3101O (Tii) Constitution of Pakistan, 1973—

Art. 270A—Martial Law Orders & Regulations — Affirmation of —Effect of — Impugned actions found to be mala fide, without jurisdiction or coram non judice — Held : Complete bar in respect of such actions having not been provided, immunity provided under Art. 270 (2) of Constitution not to save same completely from scrutiny of superior courts. [P. 310]G (riii) Constitution of Pakistan, 1973— Art. 270A—President's Orders etc, —Affirmation of — Provision re­ garding— Constrcution of—Provisions similar to Art. 270A of Constitution sevsral times interpreted by Supreme Court — Held : Legislature being aware of interpretation placed by Supreme Court on similar provisions, validity and immunity to actions to extent already explained and interpreted by such Courts to be provided — Such validity also not to be extended to action which be mala fide, coram non judice or without jurisdiction. [P. 310)F (ix) Constitution of Pakistan, 1973—

Arts. 270A read with Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—Paras, 3 & 4~Martial Law Orders and Regulations —Saving of—Complete saving of provisions of law in force on 31-12-1985 (in spite of any thing contrary to same in Constitu­ tion) provided by Parliament—Held : All laws in force on 30-12-1985 and enforced between 5-7-1977 and 29-12-1985 to be completely saved from challenge and not to be tested even against proviso found contrary to same in Constitution itself — Held further : MLO 107 (enforced on 29-12-1985) though sacrosanct from any challenge, legislature to be competent to amend same like any other law, [P. 306]D (x) Constitution of Pakistan, 1973—

Arts. 270A & 199 — High Court — Ouster of jurisdiction of— Legislature incorporating no provision (in Art, 199 or 270A) ex­ cluding jurisdiction of courts completely— Held : Complete ouster of High Court's jurisdiction under Art. 199 having not been intended, only partial exclusion to be allowed. [P. 3l2]Q (xi) Constitution of Pakistan, 1973—

Arts. 270A & 199— Mala fide action—Challenge to—Writ jurisdcition—Interferencee in—Challenge to actions specified under clause (2) & (5) of Art. 270A on basis of mala fides forbidden under Constitu­ tion—Held : Restriction to scope of enquiry under Art. 199 of Constitution having been indirectly provided, such enquiry to be now narrowed down to only two types of actions namely coram non judice and without jurisdiction— Held further : There being no other provision excluding jurisdiction under Art. 199 of Constitution, actions specified under clauses (2) and (5) of Art. 270A to be still competently challenged on limited grounds of being coram non judice or without jurisdiction. [P. 311JL & M (xii) Constitution of Pakistan, 1973—

Art. 270A (2)—President's Orders etc. — Affirmation of — Held : Words "Notwithstanding any judgment of any court" used in clause (2) of Art. 270A not to be construed to exclude interpretation of Supreme Court upon such words. [P. 312]R (xiii) Constitution of Pakistan, 1973—

Art 270A (2) & (5) - Martial Law Orders & Regulations — Affirmation of—Deeming clause—Construction of—Held : Deeming clause (5) of Art. 270A to have effect of making actions specified in clause (2) of Art. 270A as actions taken in good faith and for purpose intended thereby. [P. 311JP (xir) Constitution of Pakistan, 1973— Art. 276 (5)— Action— Mala fide nature of—Challenge on ground of—Door of enquiry and scrutiny to extent of challenge based on mala fide nature of action closed by legislature—Held : Three types of mala fide actions where person taking action on account of some prejudice or ill will against aggrieved person or action taken for purpose of benefiting doer of action for bis personal benefit or for benefit of relations and friends or still action not for purposes intend­ed in statute but apparently for different or colourable purpose or its being saved upon statute according to allegation of petitioner, having been saved unuer Art. 270 (5) of Constitution, such action to be deemed to have been done in good faith and also for purpose for which it (was) meant to be. [Pp. 310 & 311JJ (xt) Constitution of Pakistan, 1973—

Art. 270A (5)—Court—Ouster of jurisdiction of—Deeming clause- Effect of—Held : Clause (5) of Art. 270A though as such not ousting jurisdiction pf High Court under Art. 199 of Constitution, such clause to make it mandatory for everyone including courts to deem that action referred to in clause (2) of Art. 270A (was) taken bona fide and for purpose for which it (was) meant—Action not appearing to have been taken in good faith and for purpose to be served thereby thus to be treated as done in good faith and for purpose provided in statute. [P. 310JH (xt!) General Clauses Act, 1897 (X of 1897)—

S. 6 read with Constitution of Pakistan, 1973 — Art. 199 — Repeal—Effect of—Effect of actions taken under repealed provisions of law during their subsistence saved by S. 6 of General Clauses Act — Such section of General Clauses Act, however, not excluding jurisdiction of Art. 199 of Constitution — Held : S. 6 of Act being merely subconstitutional provision, effect of Art. 199 of Constitution not to be offset by its particularly in cases of actions being not past and closed. [P. 307]E (xvii) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)— ——Para. 3 & 4—Martial Law—Proclamation of — Revocation of — Requirements of—Retention of some of Martial Law Orders and Regulations found necessary in order to facilitate revocation of Proclamation of Martial Law—Held : Retaining of some of Martial Law Orders and Regulations not to be described as completely irrelevant to facilitate revocation of proclamation of Martial Law [Pp. 305 & 306JC (xviii) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—

Paras. 3 & 4—Martial Law Orders—Repeal or continuation of- Provision regarding—Held : Any provision which seeks to provide for repeal or continuation of Martial Law Order to be clearly inci­ dental to revocation of Martial law as it pertains' to subject of revoking effect of Martial Law. [Pp. 302 & 303]A (xix) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)— —•—Paras. 3 & 4—Martial Law Orders and Regulations— Repeal and continuation of—CMLA—Order by—Effect of-CMLA choosing to retain some of provisions enforced by him during Martial Law— Held : There being no embargo about his choice, CMLA to com­ petently decide about particular MLO or MLR which he wanted to be saved from effect of revocation of Martial Law Orders and Martial Law Regulations in pursuance of revocation of proclamation of Martial Law—MLO 105 (regarding rehabilitation of Karachi Hotel Project Order, 1985) made before 10-9-1985 saved by CMLA—Held : Choice of CMLA in saving effect of MLQ 105 not to be open to question. [P. 305JB (xx) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—

Para. 4—Martial Law Authorities—Actions of — Challenge to — Held : Word "proper" (used in para. 4 of MLO 107) appearing to be relevant to deficiency on merits of matter or other impropriety or irregular or improper procedure adopted by Martial Law Authorities, actions completely without jurisdiction and absolutely not covered by law under which particular authority acted to be not rectified or saved by deeming them to be proper actions or decisions. [P. 314JW (xxi) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)— ——Para. 4—Martial Law Authorities — Actions "validly done or taken"—Protection of—Held : Expression "validly" though far more comprehensive than "properly", actions coram non judice or with­out jurisdiction not to be covered by it (also). [P. 314]X (xxii) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)-

Para. 4—"Proper"—Meaning of—Held : Word "proper" (used in para. 4) meeting only those challenges where action be said to be improper, unreasonable, irregular or not in accordance with facts or procedure, such word not to cover actions without jurisdiction or cor am non judice. [Pp. 313 & 3l4]V (xxiii) Martial Law (Pending Proceedings) Order, 1985 (MLO 107) —

Para. 4 read with Constitution of Pakistan, 1973 — Art. 199 — Martial Law Authorities—Actions of — Challenge to —High Court- Writ jurisdiction of—Interference in—Held : MLO 107 being subconstitutional in nature, its para. 4 not to take away jurisdiction of High Court under Art. 199 of Constitution. [P. 313]U '(xxiv) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—

Para. 7—President/Governor — Petition to — Person considering himself wrongly convicted by Martial Law Court — Held : Petition under para. 7 of MLO 107 to be neither adequate remedy for such person nor same to give right to claim personal hearing, [P, 316]AD (xxt) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)—

Para 10—Martial Law—Promulgation of — Order regarding — Revocation of—Effect of—Para. 10 of MLO 107 allowing such Order to have effect notwithstanding repeal of Martial Law Regulation and Martial Law Orders—Held : Such MLO though saved from repeal, same to have effect of ordinary law or sub-constitutional measure (with effect from date of revocation of Proclamation of Martial Law). fP.314]Z (xxvi) Martial Law (Pendiag Proceedings) Order, 1985 (MLO 107)—

Para. 10 read with Constitution of Pakistan, 1973 — Art. 270A— MLO 107 — Nature of — Held : MLO 107 being not found in Schedule VI of Constitution, such Order not to be treated at per with any provisions of Constitution — Such Martial Law Order, held-further, to be competently amended by appropriate legislature by ordinary majority. [P. 415] A A (xxvii) Good faith—

Meaning of—Held : Good faith to be converse of malice which naturally means "in bad faith". [P. 311]K (xxviii) Interpretation of Statutes—

Deeming clause—Construction of— Held : Deeming clause to be interpreted to provide artificial cloak for action which (may) in fact be different but law makes it look like one deeming clause wants it to be. [P. 311]N (xxix) Legislature—

Advice to—Martial Law Courts—Convictions by—Challenge to— Tribunal—Establishment of—Desirability of—Scores of challenges made by aggrieved persons on innumerable grounds against con­ victions by Martial Law Courts—Held : Some sort of opportunity of hearing provided to aggrieved parties to ventilate their grievances before appropriate tribunal to be more conducive to public confi­ dence particularly after revival of Constitution and restoration of fundamental rights. [P. 316JAE (xxx) Mercy Petition —

Aggrieved person — Right of hearing — Held : Mercy petitions merely seeking exercise ot plenary and executive powers of authori­ ties, same to be no vested right of person aggrieved. [P. 316]AC (xxxi) Words & Phrases -

Proper—Mewing of. [P. 313]T Per Naimuddin, CJ: (xxxii) Constitution of Pakisan, 1973—

Art. 189—Supreme Court—Dictum of—Binding nature of—Held : Full Bench consisting of five Judges of High Court to be bound by dictum of Supreme Court under Art. 189 of Constitution. [P. 320]AF (xxxiii) Constitution of Pakistan, 1973—

Arts. 238, 239 , 70 , 71, 73 & 77 — Parliament — Power to give vaildity to legislative instrument—Held : Parliament to be under no constraint to give validity to any legislative instrument whatever (may) be defects. [P. 324]AR PLD 1983 SC 457 «/. (xxxiY" 1 Constitution of Pakistan, 1973—

Arts. 199 & 185 — Power to legislate — Limitations on — Held : Powers of superior courts to examine vires of Act to be limited to examine legislative competence or other limitations (as) contained in Constitution. [P. 32l]AH PLD 1973 SC 49 & PLD 1983 SC 457 ref. (xxxv) Constitution of Pakistan, 1973—

Arts. 199 & 270 (2) (5)—Coram non judice proceedings—Validity of—Examination of—High Court—Powers of—Held : Validity of proceedings coram non judice or orders and acts without jurisdiction to be competently examined by High Court on petition under Art 199 of Constitution in exercise of its judicial powers notwithstanding bar contained in clause (2) with clause (5) of Art. 270A of Constitu­ tion. [P. 328]AS PLD 1973 SC 49 : PLJ 1974 SC 77 ; PLJ 1975 SC 368 & PLD 1983 SC 457 rel. (xzxvi) Constitution of Pakistan, 1973—

Art. 238—Parliament—Power to amend Constitution—Limitation on—Held : Powers of Parliament to amend Constitution not to be limited. [P. 320]AG (xxxvii) Constitution of Pakistan, 1973—

Art. 239 (5)—Constitution—Amendment in — Validity of—Chal­ lenge to—Held : Validity of amendment made in Constitution by Parliament not to bs tested on touchstone of provision initially not enforceable part of Constitution but made enforceable by Presi­ dent's Order of 1985. [P. 322JAJ (xxxviii) Constitution of Pakistan, 1973—

Art. 270A — Martial Law (Pending Proceedings) Order, 1985 (MLO 107) — Validity of — Challenge to — MLO 107 promulgated within dates mentioned in clause (Ij of Art. 270A of Constitution— Held : (Validity) of such MLO not to be called in question. [P. 325JAL (xxxix) Constitution of Pakistan, 1973—

Art. 270A (2)—Past and closed transaction—Challenge to—Held : Past and closed transaction not to bs called in question by virtue of Art. 270 (2) of Constitution. [P. 328]AR (si) Constitution of Pakistan, 1973—

Art. 270A (5)—Martial Law Orders & Regulations — Affirmation of—Effect of — Orders, •'cts and proceedings (of Martial Law Authorities) not to be called in question on ground of mala fide under clause (5) of Art. 270A—Held : Proper words having not been added in clause (5), proceedings coram non judice and acts and orders without jurisdiction not to be validated. [P. 328]AT (xli) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)— — Provisions of—Effect of—Held : Provisions of MLO 107 to facilitate revocation of proclamation of 5th July of 1977. [P. 337]AP . (xli) Martial Law (Pending Proceedings) Order, 1985 (MLO 107)— -- Paras. 3 & 4— Martial Law Order & Regulation — Repeal of — — Effect of — Held : On lifting of Martial Law and consequent repeal of Martial Law Orders and Regulations' provisions to be (required to be) made of necessity for saving effect o? (repeal) and for continuing certain Martial Law Orders and Regulations for various reasons (e.g. for dealing with or completing incidental or conse­ quential matters). [P. 327JAM (xliii) Martial Law (Pending Proceedings) Order, 1985 (MLO 107) — -- Para. 4— Proceedings coram non judice — Protection of — Held : Effect of proceedings coram nan judice or orders and acts without jurisdiction not to be saved (even) by use of word "properly" in para. 4 of MLO 107. [P. 329] AW (xliv) Jurisdiction—, --- Wrong decision —Effect of— Held : There being clear distinction between act wholly without jurisdiction and act done in im­ proper exercise of that jurisdiction, mere wrong decision not to render decision without jurisdiction— Held furt'aer : Court/ Authority having jurisdiction to decide to have jurisdiction to decide rightly of wrongly. [P. 328]AU plj 1073 SC 42 & PLJ 1974 SC 77 re/. hlv) Words & Phrases— __ -Facilitation" -Meaning of. [P. 327JAQ et seq. Oxford English Dictionary (Vol. IV, p. 10) ref. (3lvi) Words & Phrases— __ .-Incident to"-Meaning of-Held : Thing to be 'mc.dent to another when it appertains to or follows on that oth-r wb.ch be more worthy or principal. [P. 327] AO Strouds Judicial Dictionary (Vol. 2, p. 1412, Ed. 3rd) ref. (i Ivii) Words & Phrases— __ ..Incidcntal"-Meaning of-Held : Incidenal to something only adjunct to something else. [P. 327]AN (xlviii) Words & Phrases— __ "Properly'— Meaning of. [P. 329JAV Oxford English Dictionary (p. 1470) ref. Pfr Syed Ally Madad Shah, J : (xlix) Constitution of Pakistan, 1973— _ Arts 238 & 239-Constitution-Amentment in-Held : Parl.ament to have unlimited powers to make any amendment ,n Constitution in accordance therewith. [P. 3 30] AX (1) Constitution of Pakistani 1973— __ Art. 270A- Martial Law (Pending Proceedings) Order, 1985 (MLO 107)-Vires of - Challenge to - MLO P™" 1 ^.^ coming into force of Art. 270A of Constitution-Held : Such MLO 5o stand affirmed, adopted and declared to have been vahdly made and not to be called in question on any ground whatsoever notwithstanding anything contained in Constitution — Such subconstitutional law, held further, given cover of immunity from challenge in any court on any ground whatsoever. [P. 330JAZ & BA (li) Constitution of Pakistan, 1973—

Arts. 270A (2) & (5) & 199—Martial Law Authorities — Orders, proceedings and acts of—Protection of— Held : Protection to orders, proceedings and acts envisaged under Art 270A being not absolute, such orders etc. to be competently called in question before High Court on grounds of want of jurisdiction and/or called their being coram nonjudice. [P. 330]AY PLJ 1973 SC 42 & PLJ 1974 SC 60 ref. Mr. Khalid M. Ishaque, Mr. Abdul Mujeeb Pirzada, Mr. Raja Qureshi, Mr. A. Hafeez Lakho, Mr. Sabihuddin Ahmed, Mr. S. AH Ahmad Tariq, Mirza Abdul Rashid Mr. Muhammad Hayat Junejo, Mr. Nooruddin Sarki, Mr. Aftab Ahmed Akhund, Mr. Mazhar AH B. Chohan, Syed Qaim AHShah & Mr. Muhammad Saleem, Advocates for Petitioners in various writ petitions. Mr. Rashid A. Akhund, Advocate for Attorney General, Mr. Qadir H. Sayeed, Standing Counsel, Mr. Imam AH G. Kazi, Deputy Attorney General, Mr. Abul Khair Ansari, Advocate, Mr. Wajihuddin Ahmed Advocate-General & Mr. S. M. Muslim Naqvi, Advocate for Respondents. Dates of hearing : 27-12-86, 14, 15, 19, 20, 21, 26, 27, 28 & 29-1, 2-2 & 3-2-1987. judgment Muhammad Zahoorul Htq, J.—It is not necessary to go into the facts of the 14 petitions which are before us in view of the fact that the question of admission of these petitions is not before us and we are only considering the office objection in respect of maintainability of these petitions. Suffice it to say that in the 11 petitions conviction by Martial Law Courts i challenged on different grounds of illegality, malice, double jeopardy and breach of natural justice. In one petition Martial Law Order 107 is challenged to the extent of inclusion of MLO 105 in the schedule of MLO 107, and in one petition the order of delivery of possession of a property in pursuance of the decision of Military Court is challenged. Still another petition challenges an action as it is alleged to have defamed the petitioner. The office has raised an objection that in view of Article 270A of the Constitution the petitions are not maintainable. The provisions of the said Article are reproduced hereunder :— "270 A- (1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984, (P. O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Mohammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (1) of Article 4i, the Revival of the Constitution of 1973 Order, 1985 (P. O. No. 14 of 1985), the Constitution (Second Amendment) Order 1985 (P. O. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any court, to have been validjy made by csmpetent authority and, notwithstanding anything contained in the Consti­ tution, shall not be called in question in any court on any ground whatsoever : Provided that a President's Order, Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facili­ tate, or are incidental to, the revocation of the Proclamation of the fifth day of July. 1977, (2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 197", and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported ex­ ercise of powers as aforesaid, shall,notwithstanding any judgment of any court, be deemed to be and always to have been valid! made , taken cr dene ard shall tot be called in question in an court on any ground whatsoever. (3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules orders or bye-laws in force immediately before the date on which this Article conies into force shall continue in force until altered, repealed or amended by competent authority. Explanation.—In this clause, "competent authority" means : — la) In respect of President's Orders. Ordinances, Martial Law Regulations. Martial Law Orders, and enactments, the Legislature ; and (b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law. (4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) For the purpose of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby. (6) Such of the President's Orders and Ordinances referred to in clause (1) as are specified in the Seventh Schedule may be amen­ ded in the manner provided for amendment of the Constitution, and ail other laws referred to in the said clause may be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation.— In the Article. "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders". Sub-clause (1) of this Article provides a blanket cover in respect of all the laws, Martial Law Orders, Martial Law Regulations, enactments etc., made or issued between 5-7-1977 and 30-12-1985 and these laws are affirmed to have been validly made inspite of any judgment of any court to the contrary or inspite of anything contained in tbe Constitution and it is clearly provided that they shall not be called into question on any ground whatsoever. It, therefore, appears to be clear that the parliament intended to provide complete cover in respect of these laws and wanted to save them from being challenged in any manner. The purpose obviously was to avoid any chaos or confusion because if all these laws which have been made during this period were allowed to be challenged, then the basis of the rights and liabilities which had accrued in pursuance of these laws, would have been disturbed and the same would have created a great deal of difficulty and upheaval. These laws are, therefore, completely saved from the scrutiny of the courts and nothing which is contained in the present Constitution can be made a test or basis for challenging these laws. We have already held in another Full Bench case of Nazar Mohammad Khan (PLD 1986 Karachi 516/519 that the validity of the laws including Martial Law Regulations and Martial Law Orders made between 5-7-77 and the date on which the Article 270A came into force i. e, 30-12-1985 could not be questioned. We had arrived at that decision after considering the various authorities of the Supreme Court of Pakistan, starting from State v. Ziaul Rahman and latest of which is PLD 1983 SC 457. The counsel for most of the petitioners have not challenged the vires of any Martial Law Order or Martial Law Regulation in these petitions. It was really not necessary to reiterate our view which we have taken in the case of Nazar Mohammad Khan except for the purpose that Mr. Raja Quresht had clearly raised the question of inclusion of MLO 105 in the schedule of MLO 107 to be ultra-vives of the Constitution itself. He urged that as the proviso of clause (1) of Article 270A of the Constitution had provided that after the 30th of September 1932, and till ths appointed day (30-12-85) the scope of Martial Law Orders and Martial Law Regula­ tions would be restricted only to the matters which were incidental to or were to facilitate the relocation of the proclamation of Martial Law made on 5-7-1977. He asserted that inclusion of MLO 105 in the schedule of MLO 107 had nothing to do with that object, as MLO 105 had provided for expropriation of a property and hence schedule of MLO 107 is ultravires to that extent. The answer to the challenge made in respect of inclusion of MLO 105 in the schedule of MLO 107 is that MLO 105 was a Martial Law Order and when the Martial Law proclamation was being lifted it was absolutely necessary to make a provision in respect of the existing Martial Law Orders and Martial Law Regulations and also in respect of the actions itaken in pursuance of the same as well as the pending proceedings. There- Ajfore, any provision which seeks to provide for the repeal or continuation |of a Martial Law Order would clearly be incidental to the revocation of the proclamation of Martial Law as it pertains to the subject of revoking the effect of Martial Law. When the Martial Law was being revoked it 1 is open to the CMLA to retain some of the provisions which he had enforced during Martial Law. He, therefore, enforced MLO 107 on 29-12-85. The whole MLO 107 with serial 9 of its schedule is reproduced hereunder : — "1, (1) This order may be called the Martial Law (Pending Proceed­ ings) Order, 1985. (2) It shall come into force at once. 2. In this order, unless there is anything repugnant in the subject or context ; (a) "Appointed Day" means the day on which the proclamation of the 6fth day of July 1977, is revoked ; (b) • Martial Law" means the Martial Law imposed by the procla­ mation of fifth day of July, 1977 ; (c) ''Martial Law" Authority" includes any person >or body of persons or any court authorised by or under any Martial Law Regula­ tion or Martial Law Order to perform any function or to exercise any power under such regulation or order ; and (d) -'Martial Law Period" means the period commencing the fifth day of July 1977, and ending on the day the proclamation of the fifth day of July, 1977, is revoked. 3. (1) All Martial Law Regulations and Martial Law Orders, made and promulgated on or after the fifth day of July 1977, by the Chief Martial Law Administrator and all Martial Law orders made and promul­ gated by the Martial Law Adminisrrators of Zones A, B, C, D and E as mentioned in MLO-3 notwithstanding its cancellation on or after the said day, other than those specified in the schedule to this order, shall stand cancelled on the appointed day. (2) In the Martial Law Orders and Martial Law Regulations specified in the Schedule to this Order, for the expression "The Chief Martial Law Administrator", the term "The President", for the expression "a Martial Law Administrator", the term "the Governor concerned" and in case of Martial Law Administrator Zone 'E', the Force Commander Northern Areas, and for the expressions "Military Court" or "Special Military Court" or -Summary Military Court'' the expression "Criminal Court of competent jurisdiction" shall stand substituted on the appointed day and the said Martial Law Regulations and Martial Law Orders shall have effect with such adaptations and modifications as the circumstances and the implementation of ths said Martial Law Regulations and Martial Law Orders may require. (3) Notwithstanding the cancellation of Martial Law Order No. 5 and Martial Law Regulation No. 14, contravention of any provision of a Martial Law Regulation or Martial Law Order specified in the schedule shall continue to be punishable with the penalties specified in the said Martial Law Order No. 5 and Martial Law Regulation No. 14. 4. The cancellation of the Martial Law Regulations and Martial Law Orders, referred to in clause (1) of paragraph 3, shall not effect the previous operation thereof, and anything done, action taken, obligation, liability, penalty or punishment incurred, or proceedings commenced shall be deemed to have been properly and validly done, taken, incurred or commenced, as the case may be. 5. (1) Every case pending immediately before the appointed day before a Special Military-Court or a Summary Military Court shall stand transferred to the criminal court which would have jurisdiction to try the offence constituted by the facts of that case under the ordinary law. (2) A case transferred to a criminal court under sub-paragraph (1) shall be tried by it in accordance with the procedure applicable to the trial and transfer of such a case under the ordinary law. 6. (1) Every case which, having been decided and disposed of by a Special Military Court is, immediately before the appointed day, pending for confirmation of the findings or, the sentence or of both and every petition or application for review in respect thereof so pending, shall, on or after the appointed day, be confirmed, or dealt with and disposed of, as the case may be, by the President if the sentence passed by the Special Military Court is that of death of amputation of hand and, in other cases by the Governor concerned, or the Force Commander Northern Areas as the case may be. (2) Every case which, having been disposed of by a Summary Military Court is, immediately before tbe appointed day pending for counter-signature, and every petition or application or review in respect thereof, so pending, shall on or after the appointed day, be countersigned or dealt with and disposed of, by the Governor concerned, or the Force Commander Northern Areas as the case may be. 7. (1) Any person who deems himself aggrieved by the sentence 'passed by the Military Court may submit a petition to the President, if the sentence is one of death or amputation of hand and, in all other cases, to the Governor of the province concerned or the Force Commander Northern Areas in case of Zone E. (2) On such a petition, the President or, as the case may be, the Governor, or the Force Commander Northern Areas may annul the proceedings or, with or without any conditions, grant pardon or remit, reduce, commute or suspend any sentence or reject the petition. Provided that a Governor or, the Force Commander Northern Areas, as the case may be, shall exercise the powers under this sub paragraph subject to the prior approval of the President. 8. (1) Every sentence of death passed during the Martial Law period by a Special Military Court which was not promulgated and executed during the Martial Law period may be promulgated and executed under the order of the Provincial Government. (2) Eveiy sentence of imprisonment passed during the Martial Law period by a Special Military Court or a Summary Military Court which was not put into execution during the Matrial Law period may be put into execution under the warrant of District Magistrate of the district in which the person under sentence may be found ; and every such sentence shall commence to run on the day on which the person under sentence is received into the prison to which he is committed by such warrant. (3) Every sentence of tine passed during the Martial Law period by a Special Military Court or n Suirmarv Military Court which was not carried out during that period may be carried out by the District Magistrate of the district in which the person under sentence resides, if it were a sentence of fine imposed by him under the Code of Criminal Procedure, 1898 (Act V of 1898) provided that the provisions of Chapter XX!X of the said Code shall not apply to any such sentence. 9. For the disposal of cases under this Order the President or a Governor, or the Force Commander Northern Areas as the case may be, shall exercise the same powers and adopt and follow the same procedure as were exercised, adopted and ^followed by the Chief Martial Law Administrator or a Martial Law Administrator before the appointed day subject to the provisions of this Order. 10. The provisions of this Order shall have effect notwithstanding the repeal of Martial Law Regulations or Martial Law Orders. "SCHEDULE MARTIAL LAW ORDERS ISSUED BY THE CMLA Serial MLO Subject No. No. 2. 22

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+s • \J\J ~ ^^ ~~ ™ ~ ..- — — • — — ™™ ™ ~ — •• -"^ — IJ1 •• - ™ ~~ — — « — — ™ . — « . 6. 81 ---- ----------------------- 7. 85 --------------------------- 8. 94 ------------------------ ^. 105 Regarding rehabilitation of Karachi Hotel Project Order, 1985.'' This MLO. therefore, makes provision for cancellation of all Martial Law Regulations and Orders except specified in the schedule. It also makes modifications in those MLOs and MLRs which are continued and makes provisions for pending proceedings and provides validity and pro­ priety to action taken under the cancelled MLOs and MLRs and also provides for making of petitions in respect of sentences awarded by Military Courts. CMLA till 29-12-85, could choose which MLO and MLR to retain and which one to cancel. He cancelled a great number of them but retained some. There was no embargo upon CMLA about this choice. He could decide about the particular MLO or MLR which he wanted to be saved from the effect of revocation of the Martial Law Order and Martial Law Regulation in pursuance of the revocation of the proclamation of Martial Law. His choice is, therefore, not open to question in saving the effect of MLO 105 particularly when this MLO was made before 30-9-85. The parliament in it's wisdom provided protection to all MLOs made before 30-12-85 and hence MLO 107 is free from any challenge on any basis, We are also clear in our mind that in order to facilitate the revo-i cation of the proclamation of Martial Law it may be necessary to retain/ some of the Martial Law Orders and Regulations and. therefore, retaining of some of the Martial Law Orders and Regulations cannot be described as completely irrelevant to facilitate the revocation of the proclamation of the Martial Law. We cannot loose sight of the fact that the Martial Law Regulations and Martial Law Orders have been cancelled by this very MLO 107. Which Martial Law Orders and Martial Law Regulations are to be retained as ordinary laws even after the lifting of Martial Law, is for CMLA to choose and if a choice is made by him, then the same could not be challenged. Till 29-12-1985 even Article 270A with the proviso of its clause (I) had not come into force as it came into force on 30-12-1985 Mroe. over, as stated above, the parliament itself having provided complete saving of those provisions of law which were to remain in force on 3U-12-19S5 inspite of anything contrary to the same in the Constitution, the said law namely MLO 107 is now sacrosanct from any challenge even to the extent of inclusion of MLO 105 in its schedule. Consequently ail the laws which D were in force on 30-12-1985 and which had been enforced between 5-7-77 and 29-12-85 are completely saved from any challenge and the same cannot ae tested even against a proviso which may be found contrary to the same n the Constitution itself. It is, however, a different matter that MLO 107 s a law which can be amended by the concerned legislature like any other law. Let us now consider the bar in respect of actions. The bar provided under clause (2) of Article 2?OA of the Constitution is in respect of actions taken during 5-7-77 and 29-12-85 uncler any Martial Law Regulation, Martial Law Order, enactment, rule etc. This sub-article on the face of it appears to be barring a challenge to these actions before any court on any ground whatsoever. We have interpreted this article in another Full Bench case of Nazar Muhammad as reported in PLD 1986 Karachi 516. But the main argument in that case was the bar provided -under Art. 15 of Pro­ visional Constitution Order of 1981. Contention of Mr. Khalid Ishaq, Mr. Abdul Mujeeb Pirzada, Mr. Abdul Hafeez Lakho, adopted by M/s. Qaim Ali Shah, Nooruddin Sarki, Aftab Ahmed, AH Ahmed Tariq, Mirza Abdul Rashid, Raja Qureshi. Muhammad Saleem and Sabihuddin is that case of Nazar Muhammad decided by Full Bench and reported in PLD 1986 'Kar. 516 is a decision which was decided on the basis of PCO of 19 s ? 1 and hence the same is not applicable in respect of those petitions which have been filed after revival of the Constitution and the revocation of the proclamation of Martial Law of 5-7-1977 as done on 30-12-85 and the repeal of Martial Law Orders and Regulations and particularly the repeal of Provisional Constitution Order of 1981. They contend that after the repeal of Martial Law there is now no impediment an the exercise of supervisory jurisdiction of the High Court under Article 199 of the Constitution and also of Article 4. More parti­ cularly after the Fundamental Rights have been restored, the Courts should enforce the same and test the actions of even Martial Law Authorities on the basis of Fundamental rights. They also urged that the Objectives •Resolution is not a mere preamble of the Constitution now but is a part and parcel of the same and it should be applied with vigour by the Courts in order to achieve the purpose for which Pakistan was created. They have also pointed out that Ihere is no emergency in the country and therefore rule of Law should be allowed to have its full play. They have relied upon the decisions of Supreme Court in casss of Asma Jilani, Ziaur Rahman, Saeed Ahmed, F. B. All, Yamin Qureshi and finally of Fauji Foundation and stressed that Supreme Court has interpreted the clauses excluding the Supervisory Jurisdiction of the Superior Courts in a strict manner and has clearly established that even though Supreme Court is a creature of the Constitution and is bound by the Constitution but it has'the right of inter­ preting even those clauses of the Constitution which exclude the jurisdiction of the Superior Courts. Their submission is that even though clause 281 of Interim Constitution of 19?2 and clause 269 o! the Constitution of 1973 had tried to exclude the jurisdiction of the Superior Courts in a comprehen­ sive manner in respect of past actions of military authorities, yet the Supreme Court had interpreted them in a manner that they were not allowed to cover those cases where the actions were either malafide, coramnon-judice or without jurisdiction. They stressed that such interpretation was made by Supreme Court mspite of the fact that at that time Funda­ mental Rights stood suspended, emergency was in force and the Objectives Resolution was merely a preamble to the Constitution. The power to exercise the supervisory jurisdiction of the High Court is contained in Article 199 of the Constitution which has been restored from 30-1T-1985. Previous to that such powers were not available at least with effect from March, 1981 when the Provisional Constitution Order was enforc­ ed. Particularly paras b (a), 5 (b) and 5 (c) of the Article 15 of the said PCO did not permit the High Court to exercise its jurisdiction in respect of actions taken under the provision of Martial Law Orders and Regulations and especially the actions of Martial Law authorities and the decisions of Martial Law Courts. However, the said PCO of 1981 has been repealed with effect .from 30-1285 and there is no more any Martial Law in the country. There would have been thus no bar in the Constitution to the exercise of jurisdiction under section 199 in respect of actions of the Martial Law authorities if the bar of Article 270A has not been introduced. Of calk's; the effect of the actions taken under the repealed provisions of law. during tne;r subsistence, is saved by section 6 of the General Clauses A:: But sect; dc 6 would not have excluded the jurisdiction of Article 19y as section 6 c-f General Clauses Act is merely a subconstitutional provision and hsnce it cannot offset the effect of Article 199 particularly if actions! were not past and closed. At the moment we are not considering the bar provided under Martial Law Ordrrs 107 which we will examine later as we wish to confine ourselves at this stage to the bar provided in the Constitu­tion itself. Mr. Wajihuddin has argued with a great deal of vehemence that we should construe the bar of Article 270A as a complete bar to the exercise of jurisdiction in respect of actions taken under various Martial Laws. His argument was that Legislature being aware of the interpretation put by the Supreme Court on Art. 281 of 1972 Constitution or Art. 269 of the Consti­ tution of 1973 should be presumed to have completely saved the effect of all actions taken under different martial laws by various authorities and military • courts by enactment of Art. 270A which is comorehensive in its coverage and does not allow any scope of interference now. He was of course frank enough in conceding at the outset that the High Court had the judicial Dovver to determine the effect of Art. 270A and hence it could inter­ pret the same, but at the same time asserted that ouster should be interpre­ted to be complete. Let us examine Art, 270A. Its clause (I) gives validity to all the laws including martial law orders and regulations made during 5-7-1977 to 30-12-1985 and provides that the same shall not be called into question in any court on any ground whatsoever notwithstanding any judgment of any court or anything contained in the Constitution. Clause (1) without its proviso has received the attention of the Supreme Court in several cases like Saeed Ahmed's case (PLJ 1974 SC 77) and Fauji Foundation case (PLD 1983 SC 457) and it has been interpreted a:, to oust the jurisdiction of the courts to question the legality of such laws We have respectfully agreed with this view in the case of Nazar Muhammad decided by us. We will leave the proviso of clause (I) of Art. 270A as it covers a small period of 30-9-1985 to 30-12-I98D, but it does provide a scops for examining the laws made by the CMLA during this period. More important in respect of the actions of Martial Law authorities is clause (2) of Art. 270A which has provided that actions taken by the Martial Law authorities during the above specified period shall not be called into question on any ground whatsoever notwithstanding any judg­ ment of any court. Fortunately we have before us some of the decided cases where a similar provision has been for consideration before Supreme Court. We at the very outset state that amended Article 281 (2) of the Interim Constitu­ tion of 1972 was completely in the same language in which the present clause (2) of Article 270A is found. Moreover clause (2) of Article 269 of the Constitution of 1973 was also in the same language and we have the inter­ pretation of Supreme Court in respect of these provisions. In the case of Ziaur Rahman reported in PLD 1973 SC 49 the unamended clause of Article 281 of the 197/Constitution came for consideration before the Supreme Court and the Supreme Court held that inspite of the bar provided in the said clause the jurisdiction of the superior courts to scrutinize actions of military authorities was not completely barred in respect of those actions which were malafide, without jurisdiction or coram-non-judice. At that time the unamended Article 281 (?) of 1972 Constitution was interpreted by the Supreme Court in the case of Ziaur Rahman and the words "shall not be called in question in any court on any ground whatsoever" were not found in the said clause (2) of Article 281. Yet the Supreme Court was of the above view and held that jurisdiction was not completely barred at least in respect of above three categories of action. However, Article 281 clause (2) was later on amended to include the words "and shall not be called in question in any court on any ground whatsoever". Thus the inclusion of these words in Article 281 (2) brought it completely at par with the present Article 270A of the Constitution and, therefore, view of the Supreme Court in respect of the amended Article 281 of 1972 Interim Constitution, shall be very relevant for our purpose. In the case of Saeed Ahmed (PLJ 1974 SC 77) the amended Article 281 (2) came up for consideration before the Supreme Court and the Supreme Court held that its view in the case of Ziaur Rahman that actions which were malafide, without jurisdiction or coram-non-judice were still open to challenge before the Supreme Court inspite of ihe comprehensive words used in clause (2) of Article 281 of the Interim Constitution debarring the courts from entertaining any challenge to such actions. It would be worthwhile to reproduce the observation of Chief Justice Hamood-ur-Rahman in the above case at page 90 : — "The result, therefore, to which we have arrived as a lesult of the interpretation of the provisions of Article 281 of the Interim Constitution as amended by President's Order No. 3 of 1973 and Articles 269 and 270 of the permanent Constitution, is that we are still unable to agree, upon the accepted principle - of construction to which we have adverted earlier, that acts, orders or proceed­ ings, which are done, taken or made without jurisdiction, mala fide or coram nonjudice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provisions. However wide a meaning is given to the word -'validly', the result would still be the same, for, the validity that has been con­ ferred is 10 acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such Orders, Regulations, Enactments, Rules, Orders, Bye-Laws, etc. and to nothing else." The same amended Article 281 of the Interim Constitution of Pakistan, 1972 came up for consideration in the case of Faitji Foundation v. Shamimur Rahman (PLD 1983 SC 457) and it was held that exercise of judicial power under Article 201 was subject to constitutional limitations in view of ouster clause in Article 281 (2). ' In respect of the word "Validly"-it was explain­ ed at page 5S~ that validity was confined to competence alone. In this vtr> ruling while considering the effect of immunity from scrutiny provided for the laws and actions in Article 281 (2) of the 1972 Constitution the Supreme Court observed in para 149 as under :—• "In the background in which Article 281 was enacted, the object was to legalise not only the legal measures but also the actions taken thereunder and to indemnify the person from prosecution who had taken thereunder and to indemnity the person from prosecution who had taken action under these legal measures. This was in the nature of an indemnity clause for it provided legal exemption from incurred liabilities or penalties as a result of the promulgation of the legal measures by a usurper. It favourably compares with sections 1, 5 and 6 of the Indemnity Act, 1920, enacted by the British Parliament after the First World War to give protection to the persons and so also to the laws and the actions taken thereunder. In essence both undet the Indem­ nity Act and under Article 281 validation is givers aad the juris­ diction of the Courts barred. The only exception under our cons­ titutional provision is that it has been construed not to cover actions which are mala fide or coram-non-judice or without jurisdiction. In all other cast's validation is conclusive." (underlining is ours). It is. therefore, apparent that the consistent view of the Supreme Court while considering provision similar to Article 270A was that if the actions were malafide, coram-non-judice or without jurisdiction, then in'pite of the validity conferred on such actions and the immunity provid­ ed in Article 28! (2) of the Interim Constitution, the Superior Courts v/ere not completely debarred from scrutinising the actions. However, the scope of scrutiny was limited to actions which were male fide coram~non-judice and without jurisdiction. In other respects the immunity was considered complete. Since the Supreme Court of Pakistan had interpreted a provision similar to Article 270A of our Constitution several times, therefore it is reasonable to conclude that the legislature was aware of the interpretation placed by the Supreme Court of Pakistan on a similar provision. There­ fore, when it enacted clause (2) of Article 270A of the Constitution, the legislature knew that it is providing validity and immunity to the actions to the extent already explained and interpreted by the Supreme Court and that this validity did not extend to action which were mala fides, coramnon-judice or without jurisdiction . Therefore, by reading only clause (2) of Article 270A without taking into consideration the other provisions of the same Article, it would be clear that the legislature had intended that if the impugned actions were mala fide, without jurisdiction or coram-non-judice, then the immunity provided under Article 2"OA clause (2) would not save them completely from the scrutiny of the superior courts and, therefore, clause (2) of the Article 270A does not provide a complete bar in respect of such actions. However, another important clause of Article 27UA clause (5) makes a provision which is completely distinct and different from the provisions which have sc far been in the so called indemnity clauses. We reproduce this clause :— "(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, acts done or purporting lo be made, taken or done by any authority or person shall be deemed to have been mode, taken or done in good faith and for the purpose intended to be served thereby. The ouster of jurisdiction is however an indirect effect of this clause. This clause does not as such oust the jurisdictioa of this court under section 199, but it does make it mandatory for everyone including courts to deem that an action as referred to in clause (2) of Art, 270A was taken bona fide and for the purpose for which it was meant. Therefore, the effect of this clause appears to be that although an action may not appear to have been taken in good faith and for the purpose to be served there­by, yet this clause shall oblige us to treat it as done in good faith. And again even though the action may not appear to have been for the purpose for which it was intended to be under the statute yet this deeming clause, which is a part of the Constitution itself, will not leave it open to the courts or to anyone else to declare that the action was not taken for the purpose provided in the statute, but on the other hand to treat it as the action taken for that purpose, It, therefore, appears that the legislature has closed the door of enquiry and scrutiny to the extent cf the challenge based 03 mala fide nature of the action. Thus the three types af mala fide actions where a person taking action on account of some prejudice cr ill will against the aggrieved person, or an action taken for the purpose of benefiting the doer of the action for his personal benefit or for she benefit of relations and friends or still an action which is not for the purposes intended in the statute under which it is taken but is apparently for a different or colour­ able or collateral purpose or is a fraud upon the statute aecordiag to the allegations of the petitioner, are saved and it is no more left open to makej any inquiry and the Constitution declares them to be done in good faitbl and also for the purpose for which it was meant to be. It is well known that good faith is converse of malice which literallyj means "in bad faith". Therefore, indirectly this clause (5) of Art. 270AJK does provide a restriction to the scope of enquiry u/A. 199 of the Constitu-' tion. The result, therefore, appears to be that the Constitution has now forbidden a challenge to such actions on the basis of mala fides also and thus the scope of enquiry, which had been left open under clause (2) in respect of mala fide, coram-non judice and without jurisdictional actions, is l now, by clause (5) closed in respect of mala fide actions also. Tnerefore, the scope of enquiry under Art, 199 is now narrowed down to only two types of actions namely coram-no~judice and without jurisdiction. There is no other provision in the Constitution or Art. 270A which could be used for the purpose of excluding jurisdiction under Article 199 of the Constitu­ tion and, therefore, it appears to us that such actions as are specified under clauses (2) and (5) of Art. 270A, can yet be brought under challenge on the limited ground of being coram-non-judice or without jurisdiction. It is, however, a different matter whether the challenge on that basis can succeed before the admitting Bench or not. No elaborate discussion is necessary to consider the effect of deeming clause. It has been interpreted to provide an artificial clo:k for an action which may in fact be different but law makes \ look like the one the deeming clause wants it to be Clause (5) of Art. 270A is not a part of ordinary law which is subconstitutional, but it is a part of Constitution itself and sioce the jurisdiction of the court under Article 199 is subject to the Constitution, therefore, the High Court has to give effect to clause (5) of Art. 270A and cannot brush it aside as the High Court is itself the creature of the Constitution and cannot act in contravention of the Consti­ tution. Hence the dieming clause (5) of Art. 270A has the effect of making the actions specified in clause (2) of Article 270A as the actions taken in good faith and for the purpose intended thereby. If there be any doubt about the effect of clause (5) of Art. 270A as interpreted by us then with respect we will invite reference to discussion of "mala fides" in PLJ 1974 SC 77 at page 91 (case of Saeed Ahmad) which is reproduced here in extenso and which situation appears to be now cover­ ed and served by clause (5) : — "Mala {ides'" literally means "in bad faith" Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a cast of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken 'rtiala fides. But in order to make out a case of mala fides, an individual must establish that his land tvas taken not for the purpose authorised by the law but for the personal aggrandisement of the person empowered with the power to make th? order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition is authorised in certain speci­fied purposes, then the taking of action in such a case for purpos­ es not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law." It would, therefore, be clear that the effect of clause (5) of Art. 270A is to avoid the effect of interpretation of mala fides by the Supreme Court as reproduced in above para. It, therefore, saves challenge based on any kind of mala fides but does not save the action from the challenge based on coram~non-judice or without jurisdiction. After ail there must be some purpose assigned to the exclusion of provision like Art. 15 of PCO from Art. 199 of the Constitution or even from Art. 270A. If the legislature had intended to exclude the jurisdiction of courts completely then it would have done so by merely incorporating such provision in either Art. 199 or Art. 270A, but its not having done so shows that complete ouster of the courts jurisdiction under section 199 was not intended but only partial exclusion was intended. The words "Notwithstanding any judgment of any court" used in (clause (2) of Art. 270A cannot be construed to exclude the interpretation Rlof the Supreme Court upon such words. The only meaning given to 'these words could be that if there had been a judgment of any court like the judgment in the case of Asma Jeelani reported in PLD 1972 SC. 139 where all the laws made by usurper General Yahya were declared void or a judgment in the case of Mrs. Nusrat Bhutto v. Federation of Pakistan reported in PLJ 1978 SC 47 which had saved the general superintendence of the courts in respect of all actions of Martial Law Authorities by declaring that CMLA Order 1/77 was not valid tn the extent of exclusion of supervisory jurisdiction of Superior Courts, then the effect of these judg­ments would have been lost b • the words "Notwithstanding any judgment of any court". However, the interpretation of the Supreme Court upon the use of similar words is not deemed to be excluded by such expression as the same is of universal application. The discussion about actions-without-jurisdiction and decisions ct/ram-non-judice would not be complete without quoting the examples of such actions. In 1973 SC 49 (86) (Ziaur Rahman's case) the following two examples were given at page 86 which are sufficiently instructive. "Thus if an act can be done only by a Chief Martrial Law Administrator, then if the same is done by a Sub-MLA, he can not possibly claim that be purported to act as CMLA" "Similarly, if a trial can be held only by a Special Military Court, then a Summary Military Court cannot hold the trial and yet claim that it purported to act as ;i Special Military Court." Mr. Rasbid Akfaund who had argued on behalf of the Attorney- Genera! of Pakistan bad laid great stress upon Martial Law Order i07 as the law which barred the jurisdictijn of the High Court in respect of .the actions tak«n by the Martial Law Authorities during the relevant period. His submission was that the provisions of MLO 107 read in conjunction with the Constitution namely Art. 270A place a complete bar to the entertainment of Writ Petitions in respect of actions of Martial Law Authorities. He argued that MLO 107 wa^ a special law in respect of the saving of actions of Martial Law Authorities and, therefore, it should be preferred to the general law contained in Art. 270A (2) and (5) of the Constitution which were general clauses in respect of the actions of all the authorities during the relevant period. We have not been able to grasp the significance of reading the Constitution and Martial Law Order in conjuction with each other. We have seen that Art. 270A (2) and (5) does provide some bar and restriction to the entertainment of .Constitutional Petitions in respect of the actions of Martial Law Authorities and actions under the Martial Law by different other authorities but the bar is not complete and scope is still left for scrutiny if the challenge is based on the action being roram non judlce or without jurisdiction. We would now examine the provisions of MLO 107 which was promul­ gated on 29-10-1985. Para. 3 of this MLO has cancelled all Martial Law Regulations and Martial Law Orders with effect from 30-12-1985 except those specified in the schedule. This para is hardly relevant for the purpose of saving the effect of the actions under the icpealed provisions of Martial Law. Para • ;> really the relevant provision which has been strongly relied upon by Mr. Rasbid Akhund. It provides that the cancellation of the Martial' Law Regulations and Martial Law Orders shall not affect the previous operation thereof and anything done, action taken obligation, liability, penalty or punishment incurred or proceedings commenced shall be deemed to have been properly and validly done, taken, incurred or commenced, as the case may be. The argument was that this provision not only saves the effect of the actions taken under the repealed Martial Law Regulations and Martial Law Orders but at the same time it also provides a deeming clause in respect of those actions and makes those actions as having been properly and vahdty taken. He suggested that the word "properly" was more comprehensive in its meaning and, therefore, even if action by the Military Authorities was alleged to be mala fide, co'am-non-judice or without jurisdiction, the s-ime is saved by the words which require that chose actions shall be deemed to be proper and valid. In Black's Law Dictionary Vth Edition page 1095 the word "proper" is shown to be meaning ''that which is fit; suitable; appropriate; adapted; correct; reasonably sufficient". We are not in agreement with the learned counsel that para 4 of MLO 107 which is sub constitutional would take away the jurisdiction of the High Court under Article 199. Moreover, in the firs! instance, the word ' oroper" would appear to meet only those challenges where the a:t:on is said to be improper, unreasonable, irregular or n>u in accordance with the facts or not in accordance with procedure. It cannot cover tho^e actions which are alleged to be without jurisdiction or cor am non judice. The word "proper" appears to be relevant to the deficiency on merits of a matter or other impropriety or the irregular or improper procedure adopted by the Martial Law Authorities and cannot cover trios; cas,ss where an action is alleged to be completely W without jurisdiction a ad absolutely not covered by the law under which the particular authority has acted. Therefore, the actions which were without jurisdiction are not rectified or saved by deeming th;m to be proper actions or decisions The other words used in clause (4> of MLO 107 is "validly done or taken'. The expression "validly" is certainly far more comprehensive than ''properly" and it covers those cases where it is alleged that an action is without lawful authority, or not in accordance with the law under which the same has been taken. It is, therefore, a much stronger word than the previous word "proper" But even the expression "validly" will not cover those actions which were either coram-non judice or without jurisdiction. It would be useful to point out here that the very words "validly done or taken" had been used in Art. 281 (2) of 1972 Constitution and repeated in Art. 269 (2) of 1973 Constitution and again repeated in Art 270A (2) of the present Constitution, and the same has been authorita­ tively held by the Supreme Court in different cases not to include those cases where the action is alleged to be either mala fide, without lawful authority or coram-non-judice. Therefore even "validly done or taken" used in para 4 of MLO 107 does not deprive the High Court of scrutinizing those actions of the Martial Law Authorities which are completely without jurisdiction or coram-non judice. We have seen above that jurisdiction of the High Court in respect of enquiry about mala fide actions had now been excluded by clause (5) of Art. 270A of the Constitution in an indirect manner. The result, therefore, is that even MLO 107 does not oust the juris-Mdiction of the High Court under Art. 199 of the Constitution. In this respect we may also note, thi stress laid upon MLO 107 by Mr. Rashid Akhund as well as by Mr. Wajihuddin asserting that it wa a supra constitutional measure. Ws have no reservation in repelling this submission. MLO 107 might have been a supra constitutional measure on 29-10-1985 when it was invoked but it is certainly not supra constitutional measure with effect from 30-12-1985 and it simply has the effect of an ordinary law or a sub-constitutional measure. It is of course saved from repeal by paragraph 10 of this MLO itself which allows this MLO to have ffect notwithstanding the repeal of Martial Law Regulations and Martial Law Orders. Mr. Khalid had contended that it was a still bora legisla­ tion, but its para 10 gave life to it and in our opinion it is a subsis­ ting law. By virtue of the provisions of clause (3) of Art. 270A, MLO 107 will continue to be in force utsti! it has been repealed or altered by the compe­ tent authority. However, clause (6) of Art. 270A provides that the Martial Law Regulations and Martial Law Orders which are specified in the VII Schedule of Constitution may be amended in the manner provided for amendment of the Constituion, Therefore, those P.Os and Ordinances are similar to a provision of theConstitution to the exteat of its amendment which is cot by a more majority of two houses but requires a particular percentage of votes. But MLO 107 is not found in the VII-Schedule of the Constitution and, therefore, it cannot be treated at par with any provision of the Constitution. The same clause (6) of Art, 270A provides that all other laws referred to in clause (1) may be amended by the appropriate legislature and, therefore, this MLO 107 can be amended by the appro priate legislature by ordinary majority and it is now ordinary sub constitutional legislation. B Conclusion, therefore, is that MLO 107 cannot affect the jurisdiction under section 199of the Cohstituion. It will at the most provide a defence to the petition u/s 199 of Constitution by clothing the actions of Martial Law authorities with legality and propriety but nothing further. It does not have the effect of placing any bar upon seeking the remedy provided by the Constitution which is superior to MLO 107, Another objection raised by office in some of the petitions was that there was an alternate remedy available to the petitioners in respect of decisions of Martial Law Courts in the form of a petition under para 7 of MLO 107. Some of the petitioners'counsel whose clients had made the petitions under para 7 of MLO which had been dismissed and also those petitioners whose mercy petitions were treated as petitions under para 7 of MLO 107 and dismissed as such, had contended that they had been denied a right of hearing which should be deemed to be apart of every law and hence they had been condemned unheard and the orders cf dismissal of such petitions were a nullity in law and were coram non-judice. They also submitted that such petitions were therefore not an alternate remedy and in any case they bad exhausted that remedy. Counsel in the other petitioas particularly Mr. Abdul Hati/ Lakho took up the position that a petition under para 7 of MLO 107 is hardly a remedy as it is merely a petition in respect of the sentence only without providing a challenge to the legality of the trial. Submission was that it was more or less a mercy petition similar to the one provided under Pak. Army Act and it was meant to seek the plenary powers of the President or the Governor en grounds of :iemenc>. It was not in the nature of a right given to the convict to challenge his entire conviction in a criminal appeal nor it was in the nature of a confirmation case where the High Court was obliged on its own to examine the merits of a case where a person has been sentenced to death' Mr. Imam Ali Kazi who had argued on behalf of the Federal Govern­ment in some of the petitions had taken a positive stand that petition under para 7 of MLO 107 was only mercy petition as it did not provide an opportunity to challenge the merits of the case, but was confined to seek reduction or remission of the sentence. He argued that the President or the Governor with the concurrence of the President had of-course the power to even annul the sentence or conviction, but doing so was their own and absolute privilege and not the right of the petitioner to seek. He, therefore, submitted that oo right of hearing was, therefore, involved, The other learned counsel for the Government and for the Attorney- General adopted the same position. In the light of these submissions it is hardly possible to irsat a petition under para 7 of MLO 107 as adequate or alternate remedy to a writ petition u'A 199 of the Constitution. It appears to be merely •>,. Different form of a mercy petition as provided under sections 401 to 402A of Cr. Procedure Code and u/A 45 of the Constitution. This petition is not either an appeal or a revision against conviction as known in sections 410 to 423 or sections 435 to section 439 of Cr. Procedure Code. Since this petition under para 7 of MLO 107 is confined in its scope towards reduc­ tion or remission of sentences only therefore, merits cannot be attacked and even the criticism in respect of merits is directed only to secure the reduction of sentence and hence it is no remedy for a person who challenges his entire trial and conviction. Provisions of para 7 of MLO 107 are thus more or less similar to a mercy petition and para C J of MLO 107 allows the President and the Governor to exercise the same powers in respect of petitions under para 7 which the CMLA or the MLA could respectively exercise under Army Act or Rules where no hearing was ever contemplated or visualized. There­ fore, by this process the provisions of Pak. Army Act in respect of mercy petitions are again brought into play and it is no body's case that ever any loerson has been heard in respect of mercy petitions because such petitions cjmerely seek the exercise of plenary and executive powers of the authorities land are not a vested right of the person aggrieved. Therefore, petitions under para 7 of MLO 107 are neither an adequate remedy for a person who considers himself to be wrongly convicted by a q Martial Law Court, nor these petitions give a right to claim a personal hearing. In fact, in such cases a personal hearing by the President or the Governor is farfetched in view of the high Offices and multifarious and important responsibilities of these dignitaries. We cannot, however, refrain ourselves from poioting out thai in view of the scores of challenges made by aggrieved persons on innumerable grounds against convictions by Martial Law Courts, it may have been more conducive to public confidence, particularly after ths revival of the Constitution and restoration of Fundamental Rights, if some sort of opportunity of hearing had been provided to the aggrieved parties to ventilate their grievances before an appropriate tribunal to the extent of 'challenge allowed in Ziaur Rahman's case by the Supreme Court or at least to the extent of challenge now available jnspite of clauses (2) and (5) of Article 270A, the same would have cleared the air a great deal and would not have burdened the High Court with scores of petitions. Tnose tribunals could consist of Retired Judges of the High Court or even Senior Retired Army Officers or retired Senior Civil Servants. Naimuddin, C.J. —I read the draft opinion proposed to be delivered by my learned brother Muhammad Zahoorul Haq J. I deem it proper without dealing in detail with the facts or submissions or arguments of the learned Counsel for the petitioners or respondents or Advocate- General to add as follows :— 2. Mr. Abdul Hafeez Lakho submitted that Article 270A 01 the Constitution is violative of Article 2A o/ the Constitution and those par» of it which are so violative are invalid. 3. Mr. Khalid M. Ishaque also while replying to the arguments of the learned Advocate-General and other Counsel appearing for the respon­ dents read several paragraphs at pages (xi) to (xviii) from the book "The Constitution of the Islamic Republic of Pakistan", edited by Mr. Makhdoom Ali Khan, Bar-at-Law, in support of the contention that the amendment made in the Constitution by inserting Article 270A has changed the basic structure of the Constitution and is hit by Article 2 A of the Constitution which was inserted by the President's Order No. 14 of 1985, with effect from 2nd March, 1985, and Article 4 of the Constitution although he clearly stated that for the purpose of his petition he need not question clause (1) of Article 270A of the Constitution, for he was questioning an act which is directly covered by clause (2) of Article 270A. Mr. Makhdoom AH Khan in his aforesaid book has clearly brought out the difference of opinion that has prevailed in the Indian Supreme Court on the question of power of the Parliament to amend the Constitution that may be noticed here. But before tio'ng so I may mention the case ieferred to by him on the point. These are :— C) Sankari Prasad Singh Deo v. Union (AIR 1951 SC 458), (2) Sajjan Singh and Others v. The State of Rajastan and others (AIR 1965 SC 845), (3) /.. C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643), (4) Rustom Cavasjee Cooper v. Union of India (AIR 1970 SC 564), (5) H. H. Maharajadhiraja Madhav Rao Javadi Rao Scindia Bahadur and others v. Union of India (AIR 1971 SC 530), (6) His Holiness Kesavananda Bharali Sripadaharu and others . State of Kerala and another (AIR- 1973 SC 1461), (i) Smt. Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 SC 22C9). (8) Minerva Mills Ltd. and others v. Union of India and others (AIR 1980 SC 1"S9), (9) Woman Rao and others etc. v. Union of India and others, etc. (AIR 1981 SC 271), and (10) San jeer Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (AIR 1983 SC 239). 4. In Sankari Prasad's case the Constitution (First Amendment) Act, 1951, was challenged on the ground that an amendment of the Constitution was lav- within the meaning of Article 13 (2) of the Indian Constitution but the same was rejected for the reason that though amendment of the Consti­ tution is ia-. but there is a distinction between legislative and constituent power. The v.ord 'Law' used ia Article 13(2) (ibid) was found not to include a constitutional amendment made in exercise of constituent power. 5. Thereafter Seventeenth Amendment in the Constitution was chal­ lenged in Sajjan Singh's case on the ground that it affected the jurisdiction of the superior courts and it was void for not having been enacted in accor­ dance with the special procedure laid down in the proviso to Article 368 of the Indian Constitution. The Supreme Court unanimously ejected the contention. 6. This amendment was again challenged in L. C. Golak Math's case wherein the heirs of Golak Nath were aggrieved by an order under the Punjab Security of Land Tenures, Act, 1953, through which a certain area of land was held surplus in their hands. It was pleaded on their behalf that this property could not be taken from them as it violated their funda­ mental rights under Articles 14 and 19 (f) (g) and that the said Act as well as the Constitution First, Fourth and Seventeenth Amendment Act of 1951, 1955, aad 1964 were respectively void-, being beyond the powers of the Parliament. In view of doubts cast by Justice Mudholkar and Hidayatullah in th: minority opinion on the correctness of Sankari Prasad's case a Bench of 11 Judges was constituted by the Chief Justice of India to hear the case and by a majority of 6 to 5 the Supreme Court of India decided that Sankari Prasad and Sajjan Singh were not good law, and held that First, Fourth, and Seventeenth Amendments were incompetently enacted and that a constitutional amendment was law within the meaning of Article 13(2). Accordingly, it was held that the Parliament had no power to amend Articles 12 to 35 of the Constitution so as to abridge fundamental rights. The view expressed in the aforesaid case was followed in Rustom Cavasjee Cooper v. Union of India (AIR 1970 SC 564), and H. H. Maharaja- Dhiraja Madhav Rao Scindia Bahadur and others v. Union of India (AIR 1971 SC 530). Thereafter a number of amendments were made to nullify the effect of these cases by Twentyfourth, Twenty fifth, Twenty sixth and Twcntyninth Amendments. Ail these amendments were challenged in Kesavnanda Bharti's case. There was already a judgment of 11 Judges. Therefore, this time still a larger Bench of 13 Judges was constituted. The following summary of the judgment was signed by nine Judges : — "(1) Golak Nath's case is overruled ; (2) Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution ; (3) The Constitution (Twenty-fourth Amendment) Act, 1971 is valid ; (4) Section 2 (a) and 2 (b) of the Constitution (Twenty-fifth Amend­ ment) Act, 1971 is valid ; (5) The first part of section 3 of the Constitution (Twenty-fifth Amend­ ment) Act, 1971 is valid. The Second part, namely, "and no law containing a declaration that it is for giving effect to such a policy shall be called in question in any court on any ground that it does not give effect to such policy" is invalid ; (6) The Constitution (Twenty-ninth Amendment) Act, 1971 is valid. The Constitution Bench will determine the validity of the Consti­ tution (Twenty-jixth Amendment) Act, 1971 (relating to abolition of privy purses and privileges of princes) in accordance with law" 7. After the aforesaid decision, the question of the violation of the essential framework of the Constitution again came up for consideration in Smt. Indra Nehru Ghandi's case. During the pendency of her appeal in the Supreme Court the Constitution (Thirty-ninth Amendment) Act, 1975, was passed, whereby Article 71 was amended and Article 329A wai added to the Constitution. The latter incorporated in the Constitution special provisions for the election of Prime Minister and Speaker and validated such election even if it voided by the Court and made all laws applicable to election petitions inapplicable to such election. The Supreme Court following Kesavnanda's case invalidated clause (4) of Article 329A, holding that the clause was a legislative judgment which eminently destroyed the basic structure of the Constitution. The clause (4) was in the following term. . "(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament and sucb ejectjop shall not be deemed to be void or ever to have become void on any ground on which such election could be declared void or has, before such commence­ ment, been declared to be void under any such law and notwith­ standing any order made by any court before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect." 8. To nullify the effect of rhis judgment Parliament passed the Con­ stitution (Forty-second Amendment) Act, 1976. Section 4 amended Article 31C and Section 55 inserted the following clauses (4) and (5) in Article 368 ; "(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article (whether before or after the Commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976, shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article." 9. The Minerva Mill's and Woman Rao's cases affirmed the view taken by the Indian Suprem Court as to the Kasavananda's doctrine of immunity from legislation with regard to basic features of the Constitution. 10. The case of Smt. Indera Nehru Gandhi was considered by the Supreme Court of Pakistan in the case of Fatiji Foundation v. Shamimur Rahman (PLD 1983 SC 457), and the doctrine of inviolation of basic itructure of the Constitution was not accepted and it was held in paragraph 201 of the judgment that it was difficult to follow what the Supreme Court of India held in Mst. Indira Nehru Gandhi's case as the conclusion rested eminently on the interpretation of the amending provision which had no constitutional restriction. Additional reason stated was that the view expressed was not consistent with that in earlier two decisions namely, Sankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458), and Sajjan Singh and others v. The State of Rajastan and others (AIR 1965 SC 845), wherein it was held that the amending power was without any limi­ tation. I may quote the paragraph herein below ; "201.—For all these reasons it appears to me to be difficult to follow what the Supreme Court held in Smt. Indira Nehru Gandh's case as the conclusion rested eminently on the interpretation of the amending provision which had no constitutional restrictions, the moreso when its view was not consistent with that ia the earlier two cases namely, Sankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458) and Sajjan Singh and others v. The State of Rajastan and others (AIR 1965 SC 845), wherein it was held that the amending power was without any limitation." 11. It may be pertinent to mention that Shamim Hussain Qadri, J., (as he then was) in the case of Darvesh M. Arbey v- Federation of Pakistan (PLD 1980 Lah. 206) had observed that "The Parliament is not sovereign to amend the constitution according to its likes and dislikes much less than changing the basic structure of the Constitution." This opinion was com­ mented upon by Muhammad Haleem, C. J., in the case of Fauji Founda­ tion v. Shamimur Rahmen (PLD 1983 SC 457) and it was observed at page 627 of the report : "This opinion of the learned Judge is based on Kesavananda BharatVs case which again is subject to the same criticism as I ventured to highlight while reviewing Smt. Indira Nehru Gandhis case. It does not advance the case of the respondent any further as the learned Judge faijed to notice that the amending power unless, it is restricted can amend, vary, modify or repeal any provision of the Constitution." 12. In The Federation of Pakistan v. Saeed Ahmed Khan (PLJ 1974 SC 77), the learned Counsel for the respondents relying on. the statement of law contained in Vol. 16 of the 1 Corpus Juris Secundum, impressed upon the Court to constantly keep in mind the main purpose sought to be a- complished by the adoption of the Constitution and to so construe the same as to effectuate rather than destroy that purpose, which, according to him, as enshrined in Article 3 of the Interim Constitution and Article 4 of the permanent Constitution. While considering the submissions Hamoodur-Rahman, C. J., observed at page 87 of the report as follows : "We are not unmindful of these provisions but after our decision in Zia-ur-Rehman's case we are no longer in a position to say that the 'Martial Law Regulations, under which the executive actions impugned in the present cases were taken, have not acquired the status of a "law" within the meaning of thes-) Articles. In any event it is not possible for us to declare that a provision of the Constitution is not law because it seeks to oust the jurisdiction of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot stiike it down We can only interpret it, according to the accepted rules of interpretation and define its nature and scope." 13. Now, firstly, we are bound by the dictum of the Supreme Court under Article 189 of the Constitution, secondly, our Constitution does not contain any provision limiting the powers of the Parliament, as claimed, to amend the Constitution. It may be pertinent if 1 may quote. Article 238 of G the Constitution herein below : "238—Subject to this Part, the Constitution may be amended by Act of (Majlis-e-Shoora (Parliament)." 14. It is obvious that only limitation provided in this Article is 'subject to this part' which contained only two Articles, i. e., Articles 238 and 239. It may be convenient for ready reference, if I may quote hereinbelow Article 239 in extenso : — "239.—(1) A Bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes oT not less than two-thirds of the total membership of the House, it shall be transmitted to the other House. (2) If the-Bill is passed without amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (I), be presented to the President for assent. (3) If the Bill is passed with amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall be reconsidered by the House in which it had originated, and if the Bill as amended by the former House is passed by the latter by the votes of not less than two-thirds of its total membership it shall, subject to the provi­ sions of clause (4), be presented to the President for assent. (4) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be presented to the President for assent unless it has been passed by the Provincial Assembly of that Province by the votes of not less than two-third of its total membership. (5) No amendment of the Constitution shall be called in question in any Court on any ground whatsoever, (6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parlia­ ment) {o amend any of the provisions of the Constitution-" 15. It is clear that clause (5) of this Article expressly provides that no amendment of the Constitution shall be called in question in any Court on any ground whatsoever and clause (6) further provides for the removal of doubt, that there is no limitation whatever on the powers of Majlis-e- Shoora (Parliament) to amend any of the provisions of the Constitution. Even before substitution of Article 239 by the President's Order No, 14 of 1985, there was no such limitation as claimed, in originnl Article 239 on the powers of the Parliament to amend the Constitution. I may not be understood as saying that there are at all no limitations on the power to legislate under the-written constitution. Undisputedly the superior Courts! have powers to examine the vires of an Act but their powers are limitedj to examine the legislative competence or such other limitations as arel contained in the Constitution. [See : (1) State v. Zia-ur-Rehman (PLDI 1973 SC 49), and (2) Fauji Foundation v. Shamim-ur-Rehman (PLD 1983 SC 457)]. 16. I may quote below a paragraph from the judgment of Fauji Foundation which appears at page 546 of the report : "Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limita­ tions as are in the Constitution ; and while declaring a legislative instrument as void, "it is not because the judicial power is saperior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the constitutional provi­ sion so as to give effect to it or where the Legislature fails to keep within its constitutional limits." 17. Thirdly, Article 2A on the basis of which also validity of Article 270A is sought to be questioned was inserted by the President's Order No. 14 of 1985, promulgated on 2-3-1985, by the President of Pakistan. I do not find any valid reason nor has any been advanced by any Counsel to test the validity of an amendment made in the Constitution by the Parlia­ ment by Constitution (Eight Amendment) Act, 1985, on the touchstone of a provision which was initially not an enforceable part of the Constitution and which was made enforceable by the President's Order No. 14 of 1985. In my opinion both the amendments have the same force and the validity of one cannot be tested on the touchstone of the other. 18. As regards the question of testing the validity of Article 270A of the Constitution on the touchstone of Article 4 thereof, it may be stated that the question was considered by the Supreme Court in fauji Founda­ tion's case and several other cases in relation to Article 2 of the 1962 Cons­ titution which was in similar term as Article 4 of the present Constitution and it was dealt with by Muhammad Haleem, C. 3., in paragraphs 158 and 159 of the judgment and it may be useful if I may reproduce these para­ graphs herein below as some of the arguments noticed in paragraph 159 of the judgment were also advanced before us in relation to Article 4 of the Constitution which continued to occupy the field notwithstanding the suspension of fundamental rights under the Laws (Continuance in Force) Order, 1977, as only those fundamental rights which were continued in Part II of Chapter 1 of the Constitution were suspended or kept in abeyance and the same was the position under the Provisional Constitution Order, 1981. "(158) Now coming to the crucial observations of Hamood-ur Rahman, C.J., as reproduced earlier, what he meant to emphasise was the scope of expression "in accordance with law" in Article 2 as to be comparable to the American "due process" clause, which embraced within its concept, like English common law, the principles of natural justice and so also what S. A. Rahman, J., bad emphatically stated in Faridson's case namely, a duty to act judicially, which Hamoodur Rahman, C.J,. put it in Begum Shorish Kashmeri's case, as according to the accepted forms of legal process and a strict performance of all the functions and duties laid down by law". Hamoodur Rahman, C.J., did not affirmatively hold by using the word "comprehensive" to mean that the word "law" in Article 2 has the same substantive connotation as the "due process'' clause in the American Constitution, but he only meant to emphasise the principles of natural justice as obtaining in the judicial procedures of the "due process" clause for judging actions taken against persons in regard to their life liberty or property. From a review of the judgments', this is the only conclusions, I can draw ; and as the procedural aspect of "due process" clause was to an extent assimilable as an element of natural justice, in Article 2 of the Constitution, it was, therefore, described as to have been enacted in a new garb, as no such provision existed in any earlier Consti­ tution. The word comprehensive, in my view, could not bavirtneant the natural law-c«w-due process clause limitation on the legislative power as is contended for that concept is not obtainable under our constitutional system. (See : F. B, AIVs case). Concluding, therefore, the word "law" in Article 2 could not be regarded as the touchstone for testing the normative contents of law, nor did it serve as an embargo against legisla­ tion. (159) Again it was contended by the counsel for the respondent that the impugned legislative instrument could be tested with reference to the provisions of the 1962 Constitution as Article 2 was preserved or for that matter by reference to Article 20, 21 or 22 of the Legal Framework Order, 1970. This contention rests on Article 3(1) of the Provisional Constitu­ tion Order, 1969, and the cases reported as Province of East Pakistan v. Mehdi Alt Khan [PLD 1959 SC (Pak.) 387]. Muhammad Afzal v. Commissioner, Lahore Division (PLD 1963 SC 401. Tanbir Ahmad Siddiky v. Province of East Pakistan (PLD 1968 SC 185) and Mir Hassan v. State (PLD 1969 Lah 786). In the Legal Order as it existed, although 1V62 Constitution was abrogated yet by Article 3(1) of the Provisional Consti­ tution Order, it was in terms made clear that "subject to any Regulation or Order made, from time to time, by the Chief Martial Law Administrator, the State o'f Pakistan shall, as otherwise provided in this Order,be governed as nearly as may be in accordance with the said Constitution". A similar provision existed earlier namely, the Laws (Continuance in Force) Order, 1958. Construing the like provision of this Order Cornelius, J., .in the case of State v. Dosso fPLD 1958 SC (Pak ) 535], held that it did not give any new life to the Constitution nor that its provisions retained any validity of their own force as the late Constitution ceased to be an organic law. In the case of Mehdi Alt Khan, Cornelius, J., evaluated his earlier opinion in Dosso's case and held "that perhaps the words "shall be governed as nearly as may be in accordance with late Constitution" were undervalued, and now a fuller consideration led him to think that this expression furnished a key to the understanding of the true nature of the. Martial Law imposed on the 7th of October, 1958, which though having repudiated the Constitution as to its form yet retained these words as an assurance that its provisions so far as applicable in the changed conditions resulting from the dissolution of the Legislatures and the dismissal of the elected governments continued to be applied in practice though subject to the Regulations or any Orders made to amend or vary. His was a minority opinion which ran counter to the majority opinion according to which Article 2(1) of the Provisional Consjitution Order had reference to the structure and outline of the Government and not to the laws including the law of Constitution, which was the subject-matter of Article 4(1) of the Order and that Article 2 of the Order did not have the effect of preserving the fundamental rights. Cornelius, J's minority opinion was later explained in Tanbir Ahmad Siddiky's case on the hypothesis that what he meant was that a possibility was envisaged that the fundamental rights in question had not become entirely devoid of validity, but perhaps could be placed on the footing of the directive principles of policy. In Muhammad Afzals' case, Hamoodur-Rahman J , as be then was, held that Article 2(1) of the Laws (Continance in Force) Order, 19 >8, gave validity to the provisions of the Constitu­ tion subject to the expressed will of the sovereign authority. In Mir Hassan's case' Musbtaq Hussain, J., held that "in the matter of the goverance of the country by the 1962 Constitution, Martial Law Regula­tions or Orders made by the Chief Martial Law Administrator can make provision to the said Constitution", but not .against the specific provisions of Provisional Constitution Order by reason of Article 3(1) of the said Order. This conclusion was based on Muhammad AfzaVs ease although in the state of the Legal Order, as it then existed, the provisions of the Constitution were given validity by the Laws (Continuance in Force) Order, 1958, yet it was the Order which had the status of a supra-Constitution, and the Chief Martial Law Administrator could make a Martial Law Regulation inconsistent with any provision of the Constitution. There­ fore, the Constitution could not be the touchstone for testing the Martial Law Regulation, but some higher norm was needed, which was not available. The same legal position existed under the Provisional Consti­ tution Order, 1969, as a like provision was incorporated in it. Again in botn the Orders a like provision existed, which preserved the operation of a Martial Law Regulation and placed them on a higher status than an Ordinance or any other law, which was repugnant to such Regulation. This too gave an indication that the 1962 Constitution had no superior status than the Martial Law Regulation itself, and hence it could not provide a norm for testing its normative contents. Here also I may point out that the language of the two sw;?/-a-Constitutional Orders did not legally place any constraint on the power of the Chief Martial Law Administrator to legislate against the provisions of the late Constitution." I 19. Lastly, there was no coustrain on the Parliament to give validity £110 any legislative instrument whatever may be the defects. While consider- |ing the validity of legal measures and protection given to them under Article 181 (1) of the Interim Constitution which as already stated, is similar as Article 270A of the Constitution, the Chief Justice in the case of Fauji Foundation clearly laid down at page 585 that there was no cons­train on the constituent assembly to give validity to any legislative instru­ment whatever might have been the defect. 20. I am, therefore, of the opinion that vires of Article 270A of the Constitution cannot be questioned under Article 199 thereof on the afore­ said ground. 20A. Mr. Raja Qureshi in his petition (C. P. No. D-184 of 1986) has questioned the validity of Martial Law Order No. 105 on the ground that it is violative and repugnant to the constitution particularly Article 4 there­ of. In the petition he has also questioned the inclusion of Martial Law Order No. 105 in the schedule to Martial Law Order No. 107 on the ground that it is mala fide piece of legislation and i« a bad law, being beyond the scope of the proviso to clause (1) of Article 270A Which inter alia provides that President's Orders, Martial Law Regulations or Martial Law Orders made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to the revocation of ths Proclamation of the Fifth day of July, 1977. 208. Now, so far as the question of validity of Martial Law Order No. 105 is concerned, it may first be stated that this was promulgated on 21-3-1985, which is a date between Fifth day of July, 19/7, and 30th December, 1985, provided in clause (1) of Article 270A. Thus its validity cannot be called in question on any ground as provided therein. This very Full Bench has already held so in relation to MLR 52 in Nazar Muhammad Khan's case (supra). As regard the validity of the amendment in the Constitution by insertion of Article 270A (1), I have already dealt with this contention in great detail herein before. 21. Now, as regards the question that it is a mala fide piece of legisla­ tion, it may be stated that a similar question was raised in relation to Martial Law Regulation No. 103 which was promulgated in 1972 and - considered in the case of Fauji. Foundation v. Shamimur Rehman (supra) first by the High Court and on appeal by the Supreme Court and it was held by the Supreme Court that no mala fide could be pleaded against a statute and for that reason it could not be regarded as being void. I may here quote a passage from the judgment which may also be relevant in the context of past and closed transactions which appear at pages 691 and 692. "The past and closed transactions have a constitutional protec­ tion. Accordingly, it is not open to the respondent to challenge the effect of the repea-I. The High Court seems to have got over, the repeal of these legislative instruments by holding that as they were enacted mala fide they were void and the first appellant ^ acquired no right in the Mill from its inception.. This assumption is wholly erroneous as no mala fides can be pleaded against a statute (under lining" 1 is mine for emphasis) and for that reason it cannot be regarded as being void. Lastly, in regard to the plea . of past and closed transaction, it was held that it was not sustain­ able on facts as action was being taken against the respondent and his father on the strength of these legislative instruments, and as they are void they amount to a continuing wrong which has given to them a continuing cause of action. This conclusion is erroneous as upon repeal and impugned legislative instruments could not be said to be in operation so as to provide a ground for taking actiou against the respondent and his father. The distinc­ tion here seems to be that this action was taken in pursuance to the consequences which bad taken effect as mentioned in the said clauses (b) and (c). Accordingly, the effect of repeal cannot be whittled'by a fanciful conclusion on facts. It may also be stated here that there was no legal proceedings pending, therefore; they were not saved by the repeal." 22. Now, there re'mains the contention that the inclusion of Martial Law Order No. 105 in the schedule to Martial Law Order No. 107 is beyond the scope of the proviso to clause (1) of Article 270A. Now, before I consider this contention I may state that paragraph 3 (1) of Martial Law Order No. 107 provides that all Martial Law Regulations and Martial Law Orders, made and promulgated on or after the fifth day of July, 1977, by the Chief Martial Law Administrator and all Martial Law orders made and promulgated by the Martial Law Administrators of Zones "A", "B". "C" «'D", and "E" as mentioned in MLO notwithstanding its cancellation on or after the said day, other than those specified in the schedule to the order, shall stand cancelled on the appointed day. 23. Now, considering the contention I may first state that Martialj Law Order No, 107 was promulgated within the dates mentioned in clausejA (1) of Article 270A and therefore, it could not be called in question by| virtue of clause (I) (ibid) and Nazar Muhammad Khan's case decided by this very Full Bench. Consequently, Martial Law Order No. 107 or inclu­ sion of Martial Law Order No. 105 in the schedule to Martial Law .Order ; No. 107 could not also be called in question. Assuming for the sake of ! argument that I am not correct in my view with regard to the inclusion of [Here in italics] Martial Law Order No. 105 in the schedule to Martial Law Order No. 107 the further question is whether the saving of Martial Law Order No. 105 by Martial Law Order No. 107 is not in accord with the proviso to clause (1) of Article 270A. Martial Law Order No. 107 is similar in its application and scope to a great extent to Martial Law (Pending Proceedings and Protection) Order, 1962, (President's Order No. 26 of 1962) which was promulgated on 6th June, 1962 after the enforcement of the 1962 Consti­ tution on 1st March, 1962, which provided for transfer of pending cases in Summary Military Courts and made provision for re-disposal of cases, annulment and commutation, execution and continuance of Martial Law sentence, protection, immunity etc. It however, made no provision with regard to saving from repeal of any Martial Law Regulation but the same was provided in Article 225 of 1962 Constitution itself. Clause (3) of Article 225 provided as follows : "(3) All Martial Law Regulations except those specified in the Table to this clause, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation so specified shall be deemed to have become an Act of the (competent legisla­ ture) and shall, with the necessary adaptations, have effect as such. Date Title 7th February, 1959. 23rd July, 1959. 16th June, 1960. 23rd August, 1961. 17th March, 1959. West Pakistan Land Reforms Regulation. Rawalpindi (Requisition of Property) Regulation, 1959. Pakistan Capital Regulation. Scrutiny of Claims (Evacuee Property) Regulation. West Pakistan Border Area Regulation, 1959." 24. Similar provisions were made by the Martial Law (Pending Pro­ ceedings) Order, 1972, (President's Order 14 of 1972), promulgated on 18th April, 1972, effective 2lst April, 1972, when Martial Law was withdrawn in 1972, and Interim Constitution was promulgated in 1972, and/wherein Article 280 (3) made similar provision. I may quote clause (3) herein below : "(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that day each Martial Law Regula­tion and the Martial Law Oiders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such : Provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President." 25, It will therefore, be seen what is provided in Paragraph (1) of the Martial Law Order No. 107, is not some thing new. The necessity of providing so by the Martial Law Order No. 107, arose because the Constitution of 1973. which was being kept in abeyance was being restored and no new Constitution was being given or made as was, done in 1962, or in 1972. 26. On lifting of Martial Law and consequent repeal of Martial Law Regulations and Mattial Law Orders provision had to be made of necessity, for saving the effect of 'repeal-as is provided in the case of repeal of a Federal Statute under Section 6 of the General Clauses Act, 1897, and for ontinuing certain Martial Law Orders for various reasons one of which could be that though actions taken were complete but some incidental or consequential matters were required to be dealt with or completed, In Constitution Petition No. 184 of 1986, the project was taken over and vested in the Custodian under the Martial Law Order No. 105, who had to pay compenstation and/or to sell mortgage or transfer the Project or any part thereof as provided in paragraph (3) (ibid). Therefor, a provision for saving this Martial Law Order had to be made of necessity otherwise the project would have remained incomplete. Therefore, i" inclusion of the Martial Law Order No. 105 in the schedule to the Martiall Law Order No. 107, was 'incidental', which means something that is only] an adjunct to something elss. (Sse : Carstens Packing Co v. Unemployment Compensation Division of Industrial Accident Board, 144 P. 2d 203 208, 65 Ihaho 370). A thing is 'incident' to another when it appertains to, orK follows on, that other which is more worthy, or principal, (See : Stroud's]® Judicial Dictionary, Vol 2, page 1412, (3rd Ed.). 27. Further, in my opinion the provisions of the Martial Law Order No. 107 also facilitated the revocation of proclamation of 5th day of July, 1977. Toe word 'facilitate'according to The Oxford English Dictionary,\ Vol IV, page 10, means (I) to rinder easier the performance of (an action)/ the attainment of (a result); to affjrd facilities for, promote, held forward (an action of process). This word also came up for consideration in anumber of American cases and its meanings with reference to 'Webster' were defined as 'to make easy of less difficult : to free from difficulty or impediment'. (See : Radio Station Wmfr v. Eitel-McCullough, Inc.. 59 S.E. 2d 779, 782, 232, N.C. 287, ( 2) (See also Panzer v. Horn 83 N. Y. 2d 887, 893, and (3) U. S. v. One 1949 Ford Sedan D.C.N.C. 96 F. Supp. 341, 343). Yet in another case it was defined as follows : "Facilitate means to make easy or less difficulty; to free from difficulty or impediment; as, to facilitate the execution of a task ; to free more or less completely from obstruction or hindrance ; lessen the labor of. (U. S. v. 'One 1950 Buick Sedan, C. t. Pa., 231 F. 2d 219, 222" 28. Accordingly the inclusion of Martial Law Order No. 105. in the schedule to Martial Law Order No. !07, facilitated the revocation of the Proclamation of Fifth July, 1977. 29. Moreover, the cancellation of Martial Law Regulations and Martial Law Orders referred to in clause (1) of paragraph 3 of Martial Law Order No, 107 does not affect the previous operation of Martial Law Order No. 105, whereunder the project of the petitioner was taken over by the Custodian appointed by tbe Federal Government under clause (3) of the Rehabilitation of Karachi Hotel Project Order, 1985, (Martial Law Order No. 105), promulgated on 21-3-1985, and from the appointed date Althe ownership and administration of the affairs of the project vested in him |and thus it become a past and closed transaction which could not be called 'in question by vitue of Article 270A clause (2) and Paragaaph 3 of Martial Law Order No. 105. Under that Martial Law Order the petitioner was, " 'or may still be, entitled to compensation. I have already referred to the observations of Muhammad Haleem, C. J., in Fauji Foundation's case which appear at page 25 of this opinion. 30. I agree with my learned brother Muhammad Zahoorul Haq, J., that the validity of the proceedings that are coram nonjudice or orders and acts that are without jurisdiction can be examined by the High Court on a petition under Article 1S9 of the Constitution in the exercise of judicial powers notwithstanding the bar contained in clause (2) read with clause (5) of Article 270A of the Constitution on the authority of the Supreme Court' decisions in (1) State v. Zia-ur-Rahman (PLD 1973 SC 49), (2) Federation of Pakistan v. Saeed Ahmed Khan (PLJ 1974 SC 77,(3) F.B. Ali and Another v. The State (PLJ 1975 SC 368), and (4) Fauji Foundation and Another v. Shamimur Rahman (PLD 1983 SC 457). ' 31. However, it may be pertinent if 1 quote a paragraph from Saeed Ahmed Khan's case which appear at page 90 of the report : "The result, therefore, to which we have arrived as a result of the interpretation of the provision of Article 281 of the Interim Constitution as amended by President's Order No. 3 of 1973 and Article 269 and 270 of the permanent Constitution, is that we are still unable to agree, upon the accepted principles of construction to which we have adverted earlier, that acts, orders or procee­ dings, which are done, taken or made without jurisdiction mala fide or coram non judice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provisions. However, wide a meaning is given to the word "validly", the result would still be the same, for, the validity that has been conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such orders, Regulation, Enactments, Rules, Orders, Bye-laws, etc, and to nothing else." 32. Now, under clause (5) of Article 270A, orders, acts and proceed­ ings cannot be called in question on the ground of mala fide. If the inten tion was to validate even orders, acts and proceedings that were without jurisdiction or coram non judice proper words would have been added in clause (5) but it has not been done so. 33. 1 may however, state here that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then there is jurisdiction to decide either rightly or wrongly and merely a wrong decision does not render the decision without jurisdiction. (See : Nawab Syed Raunaq Ali etc, v. Chief Settlement Commissioner and others (PLJ1973 SC 42/61), and also Muhanmad Hussain Munir and others v Sikaudar and others (PLJ 1974 SC 60). In the last named case it was observed at page 62 of the report by Muhammad Gul, J. as follows ; "It is well settled that where r. Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of act or even of law." Reliance was placed on a Privy Council's decision in Amir ffussain Khan v. Shew Bakhsh Singh (111. A. 237). Reliance was also placed on the opinion of Kaikaus. J., in Badrul Haque Khan v. flection Tribunal, Dacca and Others (PLD» 1963 SC 704), that "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is juris­ diction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction." Reference may be made to the observation of S K. Das, J. in Smt Ujjma Bai v. State of Uttar Pradesh (AIR 1962.SC 1621), wherein he said, "where a

PLJ1987 Karachi 331 PLJ1987 Karachi 331 [FBJ Present: naimuddin, CJ ; abdul qadeer chaudhry, muhammad zahoorul haq, syed ally madad shah & syed haider A li pirzada, JJ ABDUL GHAFFAR LAKHANI—Petitioner Versus FEDERAL GOVERNMENT OF PAKISTAN through SECRETARY CABINET DIVISION, GOVERNMENT of PAKISTAN, Islamabad and 2 Others—Respondents Constitution Petition No. 140 of 1986? dismissed on 19-8-1986 - Per Muhammad Zahoorul Haq, J (Abdul Qadeer Choudhry, J agreeing) : (i) Constitution of Pakistan, 1973—

Art. 199 (1) (a) (i) & (3)—Chief of Army Staff— Writ of prohibi­ tion and mandamus against—Competency of—Held: Direction under Art. 199 (1) (a) (i) of Constitution to be competently issued against Chief of Army Staff in respect of performance of his functions within territorial jurisdiction of Court by restraining him from doing any­ thing not permitted by law to do or by directing, him to do any­ thing within territorial jurisdiction of Court which such Chief of Army Staff be required by law to do—Jurisdiction,Jf6weVer, being limited, High Court not to ask such respondent fo refrain from doing anytring or direct him to do anything outside its territorial jurisdiction. [P. 345JN & O PLD 1968 SC 387 & 1979 SCMR 555 rel. (ii) Constitution of Pakistan, 1973—

Art. 199 (1) (a) (i) & (ii) & (3)—Chief of Army Staff—Writ against —Held : Location ot office of Chief of Army Staff or his residence being not important under Art. 199 (1) (a) (i) & (ii), performance of functions or doing of any act or proceedings or omission within jurisdiction of High Court to invest court with jurisdiction under these two clauses. [Pp. 345 & 346]P (iii) Constitution of Pakistan, 1973 —

Art. 199 (1) (a) (ii) & (3)—Chief of Army Staff—Writ of certiorari against—Competency of—Held : High Court being competent to make declaration in respect of legal effect of action or proceedings taken within its territorial jurisdiction, such writ of certiorari under Art. 199 (1) (a) (ii) to be competently issued (even) against Chief of Staff of Army—High Court, on other hand, to have no jurisdiction to interfere in case impugned action taken by Chief of Staff out­ side territorial jurisdiction of High Court. [P. 345JL & M (iv) Constitution of Pakistan, 1973—

Art. 199 (l)(b) (ii)—Holder of public office— Writ of quo-warranto against — High Court — Territorial jurisdiction of — Holder of public office not shown to be residing in Sind nor his office located within territorial jurisdiction of Sind High Court—Held : Writ of quo warranto being essentially directed against person himself or his office only, location of office of subordinates of such person not to give High Court jurisdiction to issue such writ. [P. 344]K (y) Constitution of Pakistan, 1973—

Art. 199 (1) (b) (ii)— Quo warranto — Writ of — HiglfeCpuit— Territorial jurisdiction of—Held: Emphasis in respect 9? quo warranto proceedings being net on performance of functions and actfbn of functionary being also no deciding factor in this regard, office of person (challenged) must be located within territorial jurisdiction of High Court or he should be resident in that jurisdiction—Held further: Quo warranto writ being directed against person himself and not (•igainst) his subordinates, (location of) office of subordinates of such person to be of no consequence. [P. 344]H & J (vi) Constitution of Pakistan, 1973—

Art. 199 (1) (b) (\)-Quo warranto— Writ of—High Court—Terri­ torial jurisdiction to entertain—Held : Jurisdiction of High Court under Art. 199 (1) (b) (ii) being restricted to person holding public office within territorial jurisdiction of High Court, such jurisdiction not to be co-extensive with performance of function or capacity to do any act or omission within jurisdiction of High Court—Office in case held outside jurisdiction of High Court and person also not residing within territorial jurisdiction of court -Held : Quo warranto proceed­ ings being directed against particular person or his office, High Court to have no jurisdiction to call upon such person (not residing or having his office within its jurisdiction) to show his authority. [P. 346JQ & R (vii) Constitution of Pakistan, 1973—

Art. 199 (3)—Armed forces—Member of—Authority to hold office ' —Challenge to—Authority to hold office by member of armed forces challenged as being in contravention of Constitution—Held : Such challenge based on provisions of Constitution to be treated (if not higher) at least at par with challenge based on lack of jurisdiction by virtue of ordinary law— High Court finding such challenge deserved to be considered in depth—Held ; Constitution petition to be com­ petently maintained inspite of initial bar of Art. 199 (3) of Consti­ tution. [P. 3431G PLJ 1983 SC 109 rel. (yiii) Constitution of Pakistan. 1973 —

Art. 199 (3)—Armed forces—Member of—"Matter arising out of service of"—Meaning of-Held : Term "matter" being very wide one (almost) covering (even) things concerned with or in relation to particular person or thing described, expression "matter arising out of service'' [used in Art. 199 (3)] of Constitution to include everything connected with service of member of armed forces or in relation to or in respect of same. [P. 340]B (ix) Constitution of Pakistan, 1973—

Art. 199 (3)—Armed forces — Members of —Unconstitutional ap­ pointment of—Examination of—Very basis of appointment to posi­ tion of member of armed forces alleged to be unconstitutional— Held : Jurisdiction of High Court to examine legality of appoint­ ment or authority under which public office assumed to be matter to be (competently) considered by High Court without fear of doing anything against Constitution. [P. 341]F PLJ 1975 SC 368 rel . (x) Constitution of Pakistan, 1973 —

Art, 199 (3)—Chief of Army Staff —Writ against—Competency of—Petition against serving General and Chief of Staff of Army clearly appearing to be related to service of such respondent in armed forces—Held : Initial bar of Art. 199 (3) to be apparently attracted to petition. [P. 341]E (xi) Constitution of Pakistan, 1973—

Art. 199 (3)—Member of armed forces—"Matter arising out of service of"—Interpretation of term of—Held: Use of words "arising out of" apparently indicating something coming out of something or resulting therefrom, expression "any matter arising out of service" to mean any substance or thing in relation to or connected with or com­ ing out of service. [P. 341]D (xii) Words & Phrases—

"Arise"—Meaning of. [P. 340JC et seq Concise Oxford Dictionary (p. 46), Oxford English Dictionary (Vol. I, p. 445) & Law Lexion by Iyer (p. 83) ref. (xiii) Words & Phrases—

"Matter"—Meaning of. [P. 340]A et seq Law Lexcion by Iyer (1940 Edn. p. 797) & Oxford English Dictionary (Vol. VI, p. 241) ref. Per Naimuddin, CJ (Syed Ally Madad Shah & Syed Haider Ali Pirzada, JJ agreeing) : (sir) Constitution of Pakistan, 1973—

Art. 199—Writ—Issuance of—High Court—Territorial jurisdiction of—Held : Person to whom direction be sought to be issued under Art. 199 (1) (a) (i) must be performing functions in connection with affairs of Federation, Province or local authority within territorial jurisdiction of High Court while for declaration under cl. (i) (a) (ii) act done or proceedings taken must have been done or taken within territorial jurisdiction of Court —Similarly, person should be in custody within territorial jurisdiction of Court for issuance of writ of habeas corpus under cl. (1) (b) (i) of Art. 199—Held farther : Concept of cause of action having been incorporated only in cl. (1) (a) (ii) of Art. 199, person should be within territorial jurisdiction of High Court for issuance of writ in nature of quo warranto. [P. 314JAE (xv) Constitution of Pakistan. 1973— Art. 199 (1) (a) (i) & (ii|--Writ—Issuance of—Court — Territorial jurisdiction of Held: For g'r&njing writ in nature of mandamus or prohibition, person whose acts' of commissions or omissions be chal­ lenged must (be shown to) have performed or omitted to perform acts complained of within territorial jurisdiction of High Court — Likewise, writ in nature of certiorari to be issued only in respect of orders passed or proceedings taken within territorial jurisdiction of High Court and not otherwise, [P. 354]X (xt!) Constitution of Pakistan, 1973— —Art. 199 (1) (b) (i) & (3) - Chief of Army Staff-Writ of quo war­ ranto against—Competency of—Chief of Army Staff neither residing nor having office within territorial jurisdiction of (Sind) High Court —Action of such respondent in relation to any officers or canton- • ment within territorial jurisdiction of High Court also not challenged —Held : Holding of office as Chief of Staff having only been ques­ tioned, High Court of Sind to have no territorial jurisdiction to entertain petition. [Pp. 361 & 364]AC, AF & AG (xvii) Constitution of Pakistan, 1973—

Aft. 199 (1) (b) (ii)— Quo warranto — Writ of — Competency of— Held : Writ of quo warranto under Art. 199 of Constitution to be issued against any person holding public office but not against persons excepted from its purview—Court, in such case should have jurisdiction over both person and matter. [P. 353JW (xviii) Constitution of Pakistan, 1973—

Art. 199 (1) (b) (ii)— Quo warranto — Writ of •- High Court — Territorial jurisdiction of—Held : It being not every person in regard to whom High Court to competently pass order requiring him to show under what authority of law he claims to holder pur­ ports to hold public office, writ of quo warranto to be issued by High Court (only) against person having his residence or office within territorial jurisdiction of such Court. [P. 360]AA (xix) Constitution of Pakistan, 1973—

Art. 199 (1) (b) (ii)—Quo warranto— Writ of—Issuance of-Held: Place of residence or of office of person against whom writ of quo warranto be sought being (only) relevant, area over which person exercises authority or powers of office held by him to be immaterial. [P. 361]AB ..-.'. (xx) Constitution of Pakistan, 1973—

Art. 199 (1) (b) (ii)-Qwo warranto— Writ of— M a/a fide— Question of—Relevancy of—Held : Public office being held either with lawful authority or without it, no question of mala fide to arise in case of writ of quo warranto. [P. 354]Y (xxi) Constitution of Pakistan, 1973— ——Art. 199 (1) (bl(i) & (3)—Chief of Army Staff-r Writ of quo warranto against—No action of Chief of Army Staff challenged before High Court—Held : (Mere) holding of office not to be termed as action without jurisdiction or coram non-judice or mala fide. [P. 353]V (xxii) Constitution of Pakistan. 1973— -—Art. 199(l)(a)(ii) & (3)—High Court—Territorial jurisdiction of— Action of person not covered by cl. (3) 'of Art. 199 questioned— Held : High Court to have jurisdiction in case of action having been taken within its territorial jurisdiction. ]P. 361]AD 1979 SCMR 555 ; PLJ 1976 SC 377 ; AIR 1953 SC 210 ;( AIR 1954 SC 207 ; AIR 1961 SC 532 ; AIR 1962 SC 1513 & PLD 1957 Dae. 342 ref. (xxiii) Constitution of Pakistan, 1973—

Art. 199 (3)—Armed forces—Member of—Writ against—Compe­ tency of—Matter raised in petition originating or resulting from (or coming up in relation to) holding of office of Chief of Army Staff by respondent (No. 3)—Held : Petition to be hit by clause (3) of Art. 199 of Constitution. [P. 351JU (xxif) Judiciary—

Functions of—Court — Limitations on — Held : Determination of what existing law is in relation to something already done or happened though to be function of Court (constitutional) court nonetheless to act within limitations (, if any,) provided by Constitution itself. [P. 359]Z PLD 1973 SC 49 & PU 1974 SC 77 ref. (xxt) Words & Phrases—

"Arise"—Meaning of. [P. 351]T Shorter Oxford English Dictionary (Vol. I, p. 97 & Corpus Juris Secundum (Vol. 6, p. 336) ref. fxxti) Words & Phrases— _—"Matter"—Meaning of. [P. 351]S Chambers Twentieth Century Dictionary, (Revised Edn. 209) ref. Mr. Muhammad Muzaffarul Haq, Advocate for Petitioner. Mr, Aziz Munshi, Attorney-General assisted by Mr. Liaquat H. Merchant, Dy A G, Mr. Sayeed A. Shaikh, Advocate-General Sind & Mr. Wajeehuddin Ahmed. Standing Counsel for Respondents. Dates of hearing : 21,22 (£-28-5-1986. judgment Muhammad Zahcornl Haq, J.—In this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner has ,:jscrted thai after having assumed the office of the President of Pakistan under Article 270A, General Mohammad Ziaul Haq, the respondent No. 3, could not continue to hold the office of the Chief of the Staff of Pakistan Army as under Article 43 of the Constitution it is provided that the Presi­dent cannot hold any office of profit in the service of Pakistan, and there­fore it raiiy be declared that he has ceased to hold that office of Chief of Army Staff. 2. The office had taken the objection that the petition was incompe­ tent, in view of the provisions of Article 270A of the Constitution and because nons of respondents was within the territorial jurisdiction of this court. 3. The matter was placed for consideration of a D. B. consisting of the Hon'ble Chief Justice and another Hon'able Judge and the said D. B. called upon petitioner's counsel to make submissions in respect of Article 199 (3) of the Constitution and thereafter referred the matter of objections to jurisiction to a full bench observing that the matter respecting the jurisdiction of this court was of a fundamental nature. The question posed was : "Whether this court has jurisdiction to entertain this petition". 4. We have heard Mr. Muhammad Muzaffarul Haq for the petitioner and Mr. Aziz Munshi, Attorney-General, who was assisted by Mr. Liaquat H. Merchant, Mr. Sayeed A. Shaikh and Mr. Wajihuddin Ahmed. 5. Mr. Muhammad Muzaffarul Haq has pointed out that Article 41 (7) has provided that General Mohammad Ziaul Haq has become the President of Pakistan on the day of the first meeting of the Parliament and, therefore, in view of the provisions of Article 43 which bars the President to hold any office of profit in the service of Pakistan or any other position carrying the right to remuneration for the services, the President automa­ tically ceased to hold the office of Chief of Staff of the Army and hence he is no more the member of the Armed Services of Pakistan. He, there­ fore, argued that the bar in Article 199 (3) of the Constitution is thus not attracted and the office objection is not justified. 6. It is necessary to reproduce the relevant provisions of Article 199 : "199 (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law : — (a) on the application of any aggrieved party, make an order : (0 directing a person performing, within the territorial jurisdic­tion of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do ; or (//) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect ; or (b) on the application of any person, make an order : — (i'i) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office : or (2) (3) An order shall not be made under clause (1) on application made by or in relation to a member of the Armed Forces of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or a person subject to such law. (4) — (4A) - (4B) — (5) - Whether the President has ceased to hold the office of the Chief of Staff of the Army is a matter which involves the decision of the petition on merits which has to be tackled by the Bench which is entrusted with this petition if we were to hold that this court has jurisdiction to entertain it. 7. The matter pertinent for this Full Bench is only the reference in respect of the jurisdiction only. 8. Mr. Muzaffarul Haq submitted that since he is challenging that the respondent No. 3 cannot hold the office of the Chief of Army Staff, because the holding of the post of COAS by the respondent No. 3 is unconstitu­ tional in view of the provisions of Article 43 and hence the bar under Article 199 (3) is not attracted. He relied upon PLJ 1975 SC 368. the case 0f F. B AH; where it was held by the Supreme Court that if an action taken against a member of the armed forces was coram non judice or with­ out jurisdiction or mala fide then the bar under Article 98 (3) of 1962 Cons­ titution will not be attracted. It may be cleared here that present Article 199 (3) is a similar to the provisions of Article 98 (3) of 1962 Constitution. The counsel also relied upon PLD 1966 SC 174 where it was held that the bar of Article S8 (3) (a) operates only in cases where the action hai been taken against a member of defence services. Reliance was also placed oo 1986 SCMR 252. case of Mirza Abdul Hameed, where it was held that after vacating the office of Chief Justice, Governor could not perform functions of Judge in that capacity and his duties while functioning as governor are alien to the judicial office held by him and the functions exercised in that capacity. It was held in that case that the office of the governor and Chief Justice are incompatible with each other. The case of Zulflgar 4li Bhutto v. State reported in PLJ 1978 SC 154 was also referred where it was held that permanent Chief Election Commissioner cannot hold any other office of profit including office of Judge of Supreme Court or High Court. However, in that case it was observed that the acting Chief Election Commissioner was not under that disability. In PLD 1977 SC 315 it was held that unconstitutional appointment can be challenged and remedied by a constitutional petition. It was further held in the same case that in quo warranto enquiry reltaes to a matter in which the public are interested, namely, legality and sanctity of a public office and not the enforcement of individual rights or redress of individual grievances. 9. In PLJ 1977 Lahore 622 (631) a learned single Judge, as he then was, followed the case of F. B. AH and observed that if the impugned action is found to be without jurisdiction High Court would be competent to grant relief. 10. On the basis of the above authorities and citations the petitioner's counsel stressed that the petitioner is only seeking declaration that the respondent No. 3 had ceased to hold the office of COAS and since he is relying upon a constitutional provision which bars the holding of any office by the President, therefore, the continuing of the holding of the office of COAS by the President is unconstitutional. He further argued that if in the case of F. B. AH in PLJ 1975 SC 368 (387) where the convic­ tion of the appellants by the Court Martial under the provisions of the Army Act was upheld by the Supreme Court, but still their conviction by court martial under section 121 of Pakistan Penal Code could have been held by the Supreme Court to be without jurisdiction^ inspite of bar contained in Article 98 (3) on the ground that the appellants before the Supreme Court were not subject to the Army Act when this offence was alleged to have been committed by them then on the same analogy an appointment which is challenged to be unconstitutional and illegal could be treated as not barred under Article 199 (3) of the Constitution. The counsel emphasised that the supremacy of judicial system as provided in Constitution should be established by examining the questions raised in this petition. Petitioner's counsel clarified that he is challenging the very holding of the office by COAS while the bar under Article 199 (3) appears to be related to an individual who is admittedly an office of the armed forces and appears to be intimately connected with his office and matters arising in respect thereof and not merely touching the sai-d office incidently, 11. In respect of public office he referred to PLD 1966 Karachi 1(8) where public office was defined as a right and duty conferred by law by which an individual is invested with some portion of the sovereign function of the government to be exercssed by him for the public. Reliance was also placed on PLD 1957 SC 219 where the Supreme Court had observed that it had the power to examine and interpret the Constitution. Further submission of the counsel was that he has not challenged either the terms and conditions of service of Chief of Army Staff nor the petition involves any matter arising out of the service of Chief of Army Staff but he is only challenging the very basis of respondent No. 3 to bold that office and therefore the bar under Article 199 (i) is not attracted in this case. Counsel also wanted this court to consider whether the dual legislative authority, namely, the Parliament and Chief Martial Law Administrator as sole legislator can function during martial law. This argument is however irrelevant in this matter as there is no martial law now. 12. In respect of the jurisdiction of this court reliance was placed upon PLD 1973 SC 49 (69), case of State v. Ziaur Rehman, where the Supreme Court had observed that Supreme Court is the creature of the Constitution but it has the right to interpret the Constitution and to say what a particular provision of Constitution means. It was further observed that this judicial power is inherent in the court itself. He also brought to our attention the case reported in PLD 1972 SC 139 (207) where the Supreme Court had not felt inclined to condone every action of usurper who had assumed power but it only condoned those actions which were found necessary, 13. Mr. A. A. Munshi. learned Attorney-General, emphasised that this court while exercising powers under Article 199 was having a jurisdic­ tion which was subject to the Constitution itself and therefore if there is any bar in respect of the exercise of powers under Article 199 (3) then High Court should refuse and refrain to exercise that jurisdiction. He asserted that the very prayer in the petition shows that the petitioner wanted this court to declare that the respondent No. 3 ceased to act as Chief of Army Staff after his assumption as elected President of Pakistan, and therefore, he was seeking a declaration in respect of the office of a member of armed forces and that matter was eminentlv arising out of such service and therefore the bar under Article 199 (3) was eminently attracted in this case. The eounseS emphasised that there would be nothing left in the petition if the post of COAS was not involved. He urged that the Constitution had hought it fit that no matter which touched upon the terms and conditions of service of a member of the armed forces or was in respect of any matter arising out of bis service or in respect of any action taken in relation to him as member of the armed forces should be beyond the scope of scrutiny of the High Court. He emphasised upon the words "subject to the Constitution" appearing in the very beginning of Article 199 and argued that since the bar under Article 199 (3) was in the Constitution itself, therefore, the proceedings of quo warranto as provided in Article 199 (1) (b) (ii) was hit by clause (3) of this Article which was applicable to all the sub-clauses as appearing in Article 199(1) and therefore this High Court should not require a person who is performing his functions as COAS, and therefore as a member of the armed forces of Pakistan, to show his authority of law under which he claims to hold that office. His argument was that the quo warranto proceedings in respect of the member of the armed forces are completely out of pale of this High Court as otherwise the bar under clause (3) of Article 19^ would not have b:en in respect of the whole matters covered by entire clause (1) of Article 199. If the Constitution wanted the authority of the member of armed forces to be questioned then it would have excluded clause (i) (b) (ii) from the ambit of clause (3) of Article 199. He also urged that PLJ 1975 SC 368 was not applicable to the present case as the observations of the Supreme Court that bar under Article 98 (3) was not applicable in the matter of conviction of the appellants before Supreme Court, under section 121 PPC, because it was found that the appellants were not subject to the Army Act when the offence under that section was alleged to be committed by them, but he submitted that it is not so in this case as the respondent No. 3 is a general and COAS accord­ ing to the petitioner himself and hence he is a member of the armed forces and the submission that he has ceased to bold that office is a matter arising out of his service. He further argued that the present Constitution was enforced on 10th March, 1985 and on 23rd May 1985 the respondent took over as the Presi­dent of Pakistan as a result of the referendum held on 19-12-84 while the Martial Law was revoked by the then Chief of Army Staff and CMLA, General Muhammad Ziaul Haq, the respondent No. 3, on 30th December 1985. He therefore argued that if this court was to hold that General Muhammad Ziaul Haq was not Chief of Army Staff on 30th December 1985 then the very effect of the revocation of martial law by the COAS would become a doubtful matter and loose its force because the martial law had been imposed on 5-7-77 by the COAS Pakistan Army and could be revoked by the COAS alone and not merely by the President of Pakistan without having the authority of the Chief of Army Staff. He therefore urged that no such declaration should be given by this Court He relied upon PLD 1973 SC 49 (69) where there the Supreme Court had observed as under :— "This court has never claimed to be above the Constitution nor to have the power to strike down any provision of the Cons­ titution." it was further observed in the same case at page 70 as under :— "It is not the function of the judiciary to legislate or question the wisdom of the legislator in making a law if it has made it compe­ tently without transgressing the limitation of the Constitu­ tion." He therefore strongly urged that this High Court should uphold the objection raised by the referring Bench and refuse to admit this petition. 14. 'It appears to us that the controversy in respect of the objection to the jurisdiction of this court centres around the expression "in respect of any matter arising out of his service', an. expression used in Article 199 (3). What is therefore really to be considered is whether the petition which seeks a declaration that the President has ceased to hold the office of COAS is seeking a declaration in respect of a member of armed forces in respect of any matter arising out of his service. 15. This petition is not a matter in respect of terms and conditions of service nor a matter in respect of any action taken in relation to a member of the armed forces or a person subject to such law. 16. The word "matter" is defined in Law Lexicon by Iyer 1940 Edition at page 79? as 'some substance or essential thing opposed to form:' in law 'a fact or facts constituting a whole or part of a ground of action or defence. At the same page cause or matter is defined as 'a most com­ prehensive term'. 17. In Oxford English Dictionary printed in 1961, Vol. VI at page 241 "matter'' is defined as "ground, season or cause of doing or being some­ thing". It is furlher described on ths same page in vague sense as "thing or something' of a specified kind involving or related to a specified thing. Furrher on same page -'matter" is defined as "something which is to be tried or proved statements or allegation which come under the considera­ tion of the court''. On the next page it is explained as "the circumstance or state of things which actually involves or concerns some person or thing". Taking the things as a whole, speaking generally". In the .-.ame dictionary at page 242 (third column) "in the matter of", is shown to mean "in relation to, with regard to:" 18. It therefore appears to us that "matter" is a very wide term and almost covers even a thing concerned with or in relation to the particular person or thing described. Therefore the expression "matter arising out of service" would appear to include everything connected with ths service of the member of the armed forces or in relation to the same or in respect [of the same. 19. Another expression which could need consideration is ''arising out of ". Word ''arise" is explained in the Concise Oxford Dictionary at page 49 46 to mean" originate'; result from : In Oxford English Dictionary JVol. I at page 445 "arise" is explained to mean "'to attain, to reach, (to spring up, come above ground, to spring forth, to originate, or result from'. 20. The expression "arising out of" would appear to indicate as if it was something coming out of some specified object. But it can also result from something. However, it is not defined in any dictionary assucb. The expression arising out of land has been interpreted in FR 1898 as reproduced in Law J.axiam by Iyer at page 83, as under ; "right to use the water of a perinneal stream for irrigation purposes in a benefit arising out of land because it comes out of the land and is therefore immovable property within the meaning of section 2 of subsection (5) of Genereal Clauses Act, 1868" Therefore, "arising out of would appear to indicate that it is someth­ ing coming out of something or resultingjtherefrom and hence the expres­ sion "any matter arising out of service" would appear to mean any substanceor thing in relation to or connected with or coming out of the service. Consequently, this petition clearly appears to be related to the service of respondent No. 3 in the armed forces as he is the serving General and Chief of Staff of Pakistan Army. It is therefore the obvious result that the initial bar of Article 199 (3) is apparently attracted to the present petition. But this does not conclude the matter. 21. In respect of the citations quoted by the petitioner where the ar of Article 199(3) was observed to be not applicable by superior courts we find that those were cases of actions which had been taken by the military authorities in respect of the persons who were not the members of the armed forces or subject to such law at the relevant time. In the matter of F. B. AH the Supreme Court had rejected the submissions of the etitioner that the conviction against them by the court martial were illegal or in any way coram non judice, mala fide or without jurisdiction and therefore it had applied the bar of Article 98(3) of the then Constitu­ tion. It had, however, held the conviction against them under section 121 PPC by the court martial as without jurisdiction as they were not subject to the Army Act at the time where they were alleged to have committed those offences and therefore Supreme Court held that bar of Article 98(3) could not be attracted and the Supreme Court or for that matter the High Court could scrutinise the action. Therefore, the observations of the Supreme Court were essentially based on the facts of that case. These observations are however entitled to great respect, but the facts of the present case are different where the pelitioner admits that the respondent No. 3 is holding the office of COAS as a fact but wants a declaration that the President should be treated to have ceased to hold that office by virtue of Article 43. In the case of F. B. Alt the Supreme Court had observed that if the action taken against a person by court martial was coram non judice, without jurisdiction or mala fide then the bar under Article 98(3) would not be applicable. Following these observations of their lordships of the Supreme Court and taking them to their logical conclusion it could reasonably be urged that if the very basis of appointment to the position of member of the armed forces is alleged to be unconstitutional then the jurisdiction of the High Court to examine the legality of ths appointment of the authority under which the public office is assumed could be a matter whicn could be considered by the High Court without the fear of doing anything against the Constitution. 22. The expression 'subject to the Constitution 1 , could be made use of by all the parties. The petitioner could contend that if an appointment was against the Constitution itself then the bar of Article 199(3) should not be used against him while the respondent could also take advantage or the said expression and say that since the Constitution itself had pro­ vided that matters in respect of service of the member of the armed forces will not be dealt with by the High Court irrespective of the merits or demerits of the appointment to that post and that High Court should respect that position and decline to deal with such a matter as otherwise it would be acting against not only the spirit of the Constitution but against the very words of the Constitution. 23. The contention that the President has ceased to hold the office of CO AS is a matter which arises out of the assumption of office by the President and on account of the constitutional bar contained in Article 43 that the President shall not hold any public office Therefore it is a matter basically arising out of the constitutional disability of the President to hold a public office. But at the same time this petition cannot be considered to b: completely unrelated to or unconcerned with a matter which arises out of service of the numbir of the armed services. It is an established position in law that Chief of Staff of the Army is the Coramander-in-Chief of the Army (Section 8 of the Army Act, 1952) and as such he is member of the armed forces. His continuing as COAS or ceasing to hold the office of COAS is very much related to his being member of the armed forces and thus arises out of his service as such. Therefore it is a matter arising out of such service. The relationship of the post with the ultimate result of cessation of holding of that post can­ not be denied irrespective of the m:ans which cause that result. It is only after the respondent is treated as holdar of post of COAS that the effect of his assumption of offi:e as President and ceasing to hold the office of COAS is to be taken into consideration. There can be no cessation if thare was no bolder of that office. Therefore the result of cessation is intimately related to thj matter of service itself as the cessa­ tion of office is the result of the cause of constitutional disability created by Article 43. But the cause cannot exist alone and it has to have an effect upon an object The object in this case is the service of respondent No. 3 as COAS. Without the post of COAS the cause will evaporate in the thin air. It is therefore quite clear to us that if we were to give a declara­ tion that respondent No. 3 has ceased to bold the office of COAS then we would be doing so only after we have dealt with a matter which arose out of the service of respondent No. 3 in the Armed Forces. We are afraid that we have ordinarily no such jurisdiction as the matter is fully covered by Article 199(3) of the Constitution, 25. In the case of PLJ 1975 SC 368 (F. B. Ali's case) the Supreme Court had held that conviction under section 121 PPC against the appel­ lants by court martial was without jurisdiction although it had upheld the convictions against those very persons under section 31 of the Pakistan Army Act, awarded by the same court martial as legal and affective. The Supreme Court had scrutinised the case of convictions in detail and bad come to the conclusion that the appellants were not covered by the Army Act on the day that they were accused to have committed the offence under section 121 PPC and therefore conviction under the charge was without jurisdiction. They had observed that if an action was coram non judice or malafidi or witho.it jurisdiction then the bar under Article 98(3) of the Constitution [a provision similar to Article 199(3) of present Con­ stitution] would not apply. Tturefore Supreme Court was of the view that, inspite of the initial bar uadsr Article 199(3) if there was a funda­ mental challange to the legality and lawfulness of the action, based on the lack: of jurisdiction or mala fide or coram non judice t then the superior courts could entertain a petition and scrutinise the action. It would be legi timate to conclude that in a case where the authority to hold an office by a member of the armed forces is challenged as being in contravention of the Constitution then the said challenge could be examined by the High Court and if it was of the view that the challenge deserved to be considered in depth then the Constitution petition could be maintained inspite of initial bar under Article 199i3) of the Constitution. After all a challenge based on a provision of the Constitution has to be treated, if not higher, at least at par with a challenge based on the lack of jurisdictien by virtue of ordinary law. Mr. Aziz Munshi had relied upon PLJ 1983 SC 109 where a petition filed by a civil employee of defence services was treated as barred under Article 98(3)(a) of 1962 Constitution as he was treated as member of the Defence Services and his petition related to terms and conditions of his service. But in this case there was no challenge made on the basis of lack of jurisdiction, mala fide or coram non judice and the action of retirement was held to be with jurisdiction. Therefore this can hardly neutralise the effect of the observations made in the case of F. B. All. 26. I am therefore of the view that inspite of the initial bar contained in Article 199(3), the present contention of the petitioner, that the respon­ dent had ceased to hold office of COAS aftsr assuming the office of the President subject to the objection of lack of territorial jurisdiction, could be entertained by the High Court under Article i99 of the Constitution if the admitting bench could be pursuaded to the view that contentions of the petitioner were prima facie sustainable and required a further scrutiny. But in this case there is a bar on account of the absence of the person or office of the respondent No. 3, within the termitorial jurisdiction of this court as explained later. 27. 1 have refrained from expressing my opinion on the merits of the contentions of the petitioner as the same were not canvassed before the court in detail. It is enough to state that the challenge was based upon Article 43 which debars the President from holding another office of profit and the bar appears to be equivocal. But the reply of Mr. Aziz Munshi is also weighty that Article 41(7) itself has allowed General Muhammad Ziaul Haq to become the President of Pakistan notwithstanding the pro­ visions of Article 41 and Article 43, and has further allowed him to hold that office for a period of 5 years from the day of joint sitting of Majlis-e- Shoora and hence the bar of Article 43 is not applicable to General Muhammad Ziaul Haq, because the Constitution itself allows General Muhammad Ziaul Haq to continue to hold the office of President. Even a General is the bolder of an office of profit in the Pakistan Army which carries emoluments and therefore the objection of the petitioner is answer­ ed by the Constitution itself. Since this provision is contained in the Constitution itself therefore the effect of Article 43 is neutralised. How­ ever, it is not necessary to consider the matter in further detail in view of the fatal objection about the territorial jurisdiction of this court in quo warranto matters as discussed hereafter. 28. There is objection to the jurisdiction on the basis that the respon­ dent is not holding or purporting to hold a public office within the territori­ al jurisdiction of this court and hence power under Article 199(l)(b)(ii) cannot be exercised. Not much argument was advanced by the petitioner's counsel on this aspect. He merely asserted that since the COAS is the Commander-in-Chief of Pakistan Army had its installations in Sind which are inspected and visited by COAS therefore he holds a public office within the territorial jurisdiction of this court. Mr. Aziz Mu nshi had on the other hand, pointed out that office of COAS was located at Islamabad and hence he was not holding any office within the territorial jurisdiction of this court. 29. In this respect it may be useful to refer to a case of Indian Supreme Court reported in AIR 1953 SC 210 (213) where it was observed as under :— "Secondly the peison or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories." 30. In the cited case the Madras High Court had issued a writ of prohibition against the Election Commissioner whose office was located at Delhi, but it heard and Election Reference at Madras, but still the Supreme Court of India held that High Court of Madras bad no jurisdiction to issue such a writ as office of Election Commissioner was located at Delhi. The Supreme Court of India had relied upon AIR 1943 PC 164 where it was held that Madras High Court had no jurisdiction to issue writs of certiorari to any one outside the Presidency of Town of Madras. 31. However, initially it appeared to me that the above cases are not applicable to the present case as the office of COAS may be located at Islamabad but the respondent No. 3 is having many cantonments under his control in various parts of Sind where he is exercising his control and authority and he is in fact incharge of defence of the whole country and therefore he should be treated to hold office and perform functions within the territorial jurisdiction of this court and the word location in respect of COAS should not be confined to his headquarters at Islamabad, but should include the installation and offices under the control of the COAS in Sind as well where he exercises bis authority. 32. But on closer examination it appears that in respect of the quo warranto proceedings the emphasis is not on performing of functions nor it is the action of a functionary which is the deciding factor in this regard. What is necessary is that the office of the person should be either located within the territorial jurisdiction of this court or that be should be resident in that jurisdiction. The office of the subordinates of that person are of no consequence. 33. The quo warranto writ is directed against the person himself and TJnot his subordinates. We can, under Article 199 (1) (b) (ii) require a person who is, within our territorial jurisdiction (Sind), holding or purport­ ing to hold a public office to show under what authority of law he claims jto hold that office. Therefore, either the respondent No 3 should be shown to be resident in Sind, which he is evidently not, as he has his residence in Islamabad, or his office should be located in our jurisdiction. K Again the office of COAS is situated at Rawalpindi/Islamabad and not in Sind. The location of the office of ths subardinates of respondent No. 3 in Sind would not give us a jurisdiction to issus of writ of quo warranto as this writ is essentially directed against a person himself or his own office o ly. W0uld be useful to cons 'der and compare the various jurisdicof this court under Article 199 as discussed below. writ 'V °[. coursc undoubted that this High Court has jurisdiction to issue, win ot certwran against respondent No. 3 under Article 199 (IV (a) (ii) if he! aCtl ° n ° r P roc « diD gs within the territorial jurisdiction of this! L can ™ ake a declaration in respect of legal effect of that action! /' But n ^ l uch action or Proceedings of respocdent No. 3 is? r i ?£ ",, ? d ^ ncc there is DO q uesti on of exercise of ouf powers mm,a A H 1 !• • 0) i a) (ii) in this P etition - But !t is ajso clear «»>at if tha S?n S k' s taken . by the r «pondent outside our territorial juris- M S ih« f D T hav ! no Jurisdiction to interfere in that action. Jurisdiction is, therefore, limited to this extent. a ' ^' S' m 'larly we can issue a direction against respondent No. 3 under Article 199 (1) fa) (ii) in respect of performance of his functions within the territorial jurisdiction of this court and we can restrain him from doing anything he is not permitted by law to do or we can direct him to do anytning, within our territorial jurisdiction, which he is required by law to do. Reference is invited to PLD 1968 SC 387 (397) where the Election Commis­ sioner pt Pakistan having its office in Islamabad was held to be amenable to tne jurisdiction of the High Court of East Pakistan as it was held to be a person or authority which exercises in the province of East Pakistan func­ tions in connection with the affairs of the Centre, namely, Elections to the omce ot the President etc. But again in this petition we are not required to issue any manJamus against the respondent No. 3 as there is no allega­ tion of illegal action or omission against him. But again it is clear thall outside its territorial jurisdiction, this court will not ask the respondent! _ No, 3 to refrain from doing anything or direct him to do anything. There! again the jurisdiction is limited. It would be useful to refer to 1979 SCMR 555 (556, 557) where it was held that since the Director of Military Lands and Cantonments, Rawalpindi whose order was brought under challenge was at Rawalpindi, therefore, the Peshawar High Court would have no territorial jurisdiction to issue any writ. It was observed in that case that Hazara Office of the Govt. of Pakistan and Director of Military Lands and Cantonments were only one chain in administrative set up and since that office had not done anything against the petitioner in that case nor any relief had been sought against it, not even a formal one, and it had not even been impleaded as a party therefore writ was not competent. 36. But it should be emphasised that both under Article 199 (I) (a) (i)i and (ii) the location of the office of the respondent No. 3 or bis residence! f ;s not important and it is the performing of the functions or {he doing of] oy act or proceedings or omission within our jurisdiction which invests us rith jurisdiction under these two clauses. 37, However, the matter of issuing of quo warranto under Article 199 0) (b) (ii) is quite different and here the jurisdiction is not co-extensive with the performance of functions or the capacity to do any act or omission within our territorial jurisdiction but it is restricted to the person who is Qjholding a public office within the territorial jurisdiction of the High Court. Therefore, if the office is held outside the jurisdiction of the High Court and the person is also not residing here then we do not have jurisdiction to call upon him to show his authority. Our hands are tied by the Constitu­ tion if he is beyond our territorial jurisdiction. In PLD 1947 PC 90 (Hamid Hasan v. Bonwari Lai) where the Howarah Corporation had b&n superseded and Hamid Hussain had been appointed in place of the Councillors and writ in thi nature of quo warranto had been issued by Calcutta High Court, it was held by the P. C. as under : — "Jurisdiction of Calcutta High,Court in the nature of quo warranto arises in exercise of ordina Original Civil Jurisdiction and is confined to the town of Calcutta and as the appellant does not reside and the office which be is alleged to have usurped is not within those limits, the court had no power to grant infor­ mation." 38. It is, therefore, clear to us that quo warranto proceedings are [directed against a particular person or his office and in case be is not resi- Ident within the jurisdiction of this court or his office is not located here (then we have no jurisdiction. No one had even alleged that there was any office of Chief of Army Staff in Sind and hence it is clear to us that the office objection in respect of jurisdiction is fatal and therefore, we have no jurisdiction to entertain this petition. Abd«l Qadeer Chaudhry, J.—I agree. Naimuddin, C.J.—I had occasion of going through the judgment pro- ••• posed by my learned brother Muhammad Zahoorul Haq, J. 1 would like to record my own reasons for the opinion I form. By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan filed by the petitioner against the Federal Government of Pakistan, through the Secretary, Cabinet Division, respon­ dent No. 1, the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan. Islamabad, respondent No. 2., and General Muhammad Ziaul Haq, Chief of Army Staff, President House, Rawalpindi, respondent No. 3, he ha§ prayed for a declaration that respondent No. 3 has ceased to act as Chief of Army Staff after assumption as elected President of Pakistan under Article 270A of the Constitution and for a further declaration that respondent No. 3 is Supreme Authority/Commander of all armed forces of Pakistan under Article 243 of the Constitution of Pakistan. 2. The petitioner in his petition has stated that respondent No. 3 is a God fearing person and he has done lot for this country and that he has opened a new chapter in the history of Pakistan, being Chief Martial Law Administrator he has lifted Martial Law and transferred the power peace­ fully and successfully to the Civilian Government and also held impartial election in the country and got lifted the emergency. He has further stated that respondent No. 3 has taken upon the neglected task of Islamization of Itw and infusing the true Islamic spirit in the vuuntry so that the Muslims of Pakistan may be able to lead their lives in consonance with the directive of the Holy Quran and Sunnah, 3. The grievance of the petitioner however, is contained in paragraph 5 of the petition and it may be stated in his own words by reproducing the said paragraph immediately herein below : — "the respondent No. 3 being elected President under Article 41, of the Constitution is holding an office of profit as Chief of Army Staff under Article 243 of the Constitution and his holding of office as Chief of Army Staff is against the Constitution laid down under Article 243 of the Constitution and it is also affecting the dignity and integrity of the respondent No. 3 in the eyes of general public and the entire world because respondent No. 3 as President of Pakistan himself is the appointing authority of Chief of Army Staff and head of other forces and the respondent No. 3 is perhaps due to misconception is not relinquishing the office of the Chief of Army Staff and hence it is bad in law, therefore, the petitioner is challenging its legality by way of this Constitution petition as no other adequate remedy is available". 4. The office has raised the following objections to the maintainability of the petition "(1) How this petition is competent in view of Article 270A of the Constitution of Pakistan, 1973, as amended by Eighth Amendment Act, 1985 ? (2) How this petition is competent in this Court under Article 199 of the Constitution when none of the respondents are within the terri­ torial jurisdiction of this Court". 5. When the matter came up for consideration before a Division Bench of this Court, it referred the following question to Full Bench. "Whether this Court has jurisdiction to entertain this petition?". 6. Accordingly, the Full Bench heard the learned Counsel for the peti­ tioner and the Attorney-General on the question. 7. The learned counsel for the petitioner submitted that he was challenging the holding of office of the Chief of Army Staff by respondent No. 3 on the ground that it was unconstitutional under the provisions of Article 43 of the Constitution, therefors, the bar under Article 199 (3) of the Constitution would not apply to him. He referred to the following decisions :— (1) The Chief Secretary to the Government of East Pakistan v. Moslehuddin Sikdar and another (PLD 1957 SC 1). (2) In the matter of reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan (PLD 1957 SC 219). (3) A. K. M. Fazlul Quader Chowdhury v. Government of Pakistan and another (PLD 1957 Dacca 342). (4) Munir Ahmad v. Returning Officer, Karachi and Others (PLD 1966 Kar. 1). (5) Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan through the Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and Another (PLD 1969 SC 174) (6) Miss Asma Jilani v. The Government of the Punjab and Another (PLD 1972 SC 139). (7) The State v, Zia-ur Rahman and others [(PLD 1973 SC 49 (69),] (8) Brig. (Retd.) F. B. AH and Another v. The State (PLJ 1975 SC 368). (9) Abrar Hassan v. Government of Pakistan and another (PLJ 1976 C 377). (10) Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLJ 1978 SC 47). (11) Saifuddin Saif v. Federation of Pakistan [(PLD 1977 Lab. 1174 (1185)], and (12) Zulfiqar All Bhutto v. The State (PLJ 1978 SC 154). 8. As already stated herein before this Constitution petition is filed under Article 199 of the Constitution and it would be convenient, if I may reproduce Article 199 of the Constitution in order to consider the question 'whether under Article 199 of the Constitution this Court has jurisdiction to entertain the petition. "199.(1) Subject .to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law :— (a) on the application of any aggrieved party, make an order :— (0 directing a person performing within the territorial juris­ diction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do. or to do anything he is required by l,w ". co ; or (//) declaring that any act clone or proceeding taken wunm the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority his been done or taken without lawful authority and ii of no legal effect ; or (b) on the application of any person, make an order : (/) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held iu custody without lawful authority or in an unlawful manner ; or (//) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public offic» to show under what authority of law he claims ~ ' ; that office ; or (c) on the application of any aggrieved person, ake an o- -er giving such directions to any person or-authority, inchi ag any Government exercising any power or performing any function in, or in relation to, any territory within the juris­ diction of that Court as may be appropriate for the enforce­ ment of any of the Fundamental Rights conferred by Chapter 1 of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not bs made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of hit service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. 9. Before I proceed further I may at the very put set state that the learned Counsel for the petitioner submitted that bis case is covered by Article 199 (1) (b) (ii) of the Constitution whereunder the Court is empowered to require a person within the territorial jurisdiction of the court holding or purporting to hold a public office to show under what authority of law he claims to hold that office. Although the prayer is not to that effect yet 1 will proceed to examine the said provisions alongwith the provisions of clause (3) (ibid) which prohibit making an order under clause (1) of Article 199 of the Constitution on the application made by or in relation to a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those Forces in respect of bis terms and conditions of service, or in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. 10. Now , it is clear that if a person is (i) a member of Armed Forces of Pakistan or he is for the time being subject to any law relating to those forces and (ii) the matter or question is in respect of his terms and condi­ tions of service or it arises out of bis service or is in respect of any actioin taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law, then this Court has no jurisdiction to pass any order under clause (I) of Article 199 of the Constitution. Now, it was not agitated before us that respondent No. 3, as Chief of Army Staff is not a member of Armed Forces of Pakistan. Even otherwise, Section 8, sub-section (2) of the Army Act, 19S2, (hereinafter called the Act) as amended with effect from 20-9-1967, defines Chief of rmy Staff as 'the ficer commanding the Pakistan Army. Section 8 sub-section (12) defines Officer' as 'a person' other than a junior commissioned officer, commis­ sioned, gazetted of in pay as an officer of the Pakistan Army and inculdes, in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the Pakistan Navy and an officer of the Pakistan Air Force It was not disputed that be is covered by both the definitions of 'Chief of Army Staff' and 'Officer', therefore, it appears that respondent No. 3 is a person who is a member of Armed Forces. II. Then Section 2 (I) of the Act provides that the following persons shall be subject to this Act, namely :— "(a) officers, junior commissioned officers and warrant officers of the Pakistan Army ; (6) persons enrolled under the Indian Army Act, 1911, before the date notified in pursuance of sub-section (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act ; Persons subject to the Pakistan Navy Ordinance, 1961, or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Goverament may direct ; (c) persons not of'.icrwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, area employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army." Thus the respondent No. 3 as the Chief of Army Staff is a person who is subject to the Act. Sub-section (2) of Section 2 of the Act provides that every person subject to the Act under clause (a), clause (b), or clause (c) of sub-section (1) shall remain so subject until duly retired, released, dis­ charged, removed or dismissed from the service. 12. It is, therefore, clear that respondent No. 3 is not only a member of Armed Forces but is also subject to the Act, and he will continue to be so until duly retired, released, discharged, removed or dismissed from service as provided in sub-section (2) of Section 2 of the Act. It is not the petitioner's case that respondent No. 3 has been retired, released, discharged, removed or dismissed from service. Indeed it is the peti­ tioner's own case that he is holding the office of the Chief of Army Staff and he is not relinquishing the office as stated in paragraph 5 of the petition. I Dave already examined the question whether respondent No. 3 is a person who comes within the purview of clause (3) of Article 199 of the Constitution and reached the conclusion that he does come. Now, I would examine whether the matter raised in the petition relates to the terms and conditions of service or is in respect of any matter arising out of the service of respondent No. 3 or the petition is in respect of any action taken in relation to him as a member of Armed Forces of Pakistan, for, if it is so then the bar provided in clause (3) (ibid) would operate. The petition does not question any action in relation to respondent No. 3 as member of the Armsd Forces of Pakistan. The petition is also not in respect Armed Forces of Pakistan or as a person subject to such law. The petitioner in the prayer clause seeks a declaration that respondent No. 3 has ceased to act as Chief of Army Staff after his assumption as elected President of Pakistan. This in my view raises the question whether respondent No. 3 continues to hold or has ceased to hold tbe office of the Chief of Army Staff. For this 1 have to consider the meanings of the word 'matter' and the phrase 'arising out of used in clause (3) (ibid). The 'matter according to Chambers Twentieth Century Dictionary! Revised Edition, p. 809, means 'that which occupies spaces, and wiSuh which we become acquainted by our bodily senses ; that out of which) anything is made, material : subject or material of thought, speech, writing, dispute, etc. ; substance (opp. to form), good sense (Shak.) ; anything engaging the attention affair; subject; thing; that with which one has to do ; cause or ground ; thing of consequence ; something that is amiss ; that with which a court is concerned something to be tried or proved ; importance. In accordance with the above meaning 1 have no doubt that the question raised in the petition relates to matter concerning the service of respondent No. 3 at Chief of Army Staff. The word 'arising is a present participle of 'arise'. The word 'arise'! inter alia means to come above the horizon. To go or come higher. Toj T go or come up, to rise with its submit or surface. To spring up, come) above ground, into existence. To spring forth from the lource. To take its rise, originate. To spring, originate, or result from. To come into existence or notice. (See: Shorter Oxford English Dictionary, VOL-1, A-M, p. 97) 14. Corpus Juris Secndum, Vol-6, page 336, gives its meanings as accruing, appearing, or originating. The phrase 'arising out of empoyment for its meaning with reference to 38 Am Jist Workm. Comp S. 211 was considered as 'implying a casual connection between an inquiry to an employee and the performance of work required of him. 15. The question or matter raised in the petition originates or results rom the holding of the office of Chief of Army Staff by respondent No. 3 or it has come up in relation to holding of such office. Therefore, it arises out of his service. In any case, the matter or question even if it has a casual connection with the service of respondent No. 3 as Chief of Army Staff it would therefore, arise out of his service as such. Moreover the U word 'any is significant as it enlarges the scope of the pharase and leaves no doubt whatsoever, that the matter raised arises out of his service. It is, therefore, clear that the matter in question arises out of the service of respondent No. 3 in the Armed Forces. Accordingly, the petition is hit by clause (3) of Article 199 of the Constitution. It was not argued and it could not be argued that clause (I) (b) (ii) of Art. 199 of the Constitution is not hit by clause (3), because the provision of clause (3) itself prohi­ bits that an order shall not be made under clause (1), which would include all the sub-clauses including sub-clause (b) (i) or (b) (ii). 16. The learned counsel for the petitioner mainly relied on the Supreme Court judgment of Brig. (Retd.) F. B, Alt and another v. The State (PLJ 1975 SC 368) in support of his arguments that if action of the authority is without jurisdiction, mala fide or coram non judice, the Higr Court can entertain petition under Article 199 of the Constitution not­ withstanding bar of jurisdiction provided in the law or in the Constitution. He particularly relied on the following passage from the judgment of Hamood-ur-Rehman, C.J., which appears at pages 391-92 :— Somewhat similar provisions contained in Article 98(3) (a) of the 1962 Constitution came up for consideration by this Court in the case of Muhammad Akram Khan . Islamic Republic of Pakistan PLD 1969 SC 1?4) and it was held that the bar operates only in a case where the action has been taken against a member of a defence service in relation to him exclusively as ember of such a service in respect of matter specified in clause (3). Originally clause (3) of Article 199 of the present Constitution was the same as clause (3) of Article 98 of the 1962, but in 1974, it was amended so as to bar an application also in relation to a person "who is for the time being subject to any law relating to any of these forces" even in respect of "any action taken in relation to him as a person subject to such law". Under clause (5) a "Court or Tribunal established under a law relating to the Armed Forces" is excluded from the category of '-persons" against whom any direction or order can be issued under Article 199. The learned Attorney-General has contended that the words "relating to" in clause (.3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceiveable action taken in relation to even a person for the time being subject to the Army Act as the appellants were. However, wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram-non-judice or has been taken mala fide as held by this Court in State v. Ziaur Rahman (PLD 1973 SC 49). On the other hand if the action is with jurisdiction and bona fide then I am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Force. The action must, however, be one which is taken while he is so subject and not before he becomes so subject or after he ceates to be so subject. In this view of the matter the trial of the offence under section 121 A, PPC, would not, in ray opinion, be protected being without jurisdiction". 17. In order to understand the case of F.B. Ail I must state the facts of the case as summarised in the head note of the report. The appellants were sought to be brought within the ambit of the Pakistan Army Act, 1952 by reason of amendments made in the Act by Ordinance III of 1967 and Ordinance IV of 1967 on the accusation made against them of attempting to seduce certain named officers and others in the military forces of Pakistan from their allegiance to the Government. The appellants claimed that since they had been retired from the Army they were no longer subject to the Pakistan Army Act and they could not be tried by a General Court Martial. The contention was that the provisions of clause (rf) of sub section (1) of Section 2 of the Act as introduced by Ordinance III of 1967, should be read in a restricted manner and unless some nexus or connection with army is established persons not normally subject to the Act should not be made liable to be dealt in accordance therewith. It was asserted that notwithstanding the amendment introduced in the Act by Ordinance III of 1967 the provisions of the Act could not be extended to persons who have at the relevant time no connection what­ soever, with the Army. Even persons who are normally subject to the Army discipline remain subject only till retirement, release, discharge, removal or dismissal from service. 18. Considering the above mentioned contention in the light of the aforesaid facts it was held that the words of clause (d) introduced into section 2 of the Army Act by Ordinance No. Ill of 1967, were clear enough. It was further observed that the words "persons not otherwise subject to this Act," clearly embraced all others who were not subject to the said Act by reason of the provisions of clause (a)(b), (bb) and (c) and the intention of the farmers of clause (d) was clearly that even civilian or persons who had never been, in. any way, connected with the Army should be made subject to it in certain circumstances gravely affecting the maintenance of discipline in the Army. It was further observed that "the nexus required is that they should be persons who are accused of seducing or attempting to seduce any person subject to the Army Act from his duty or allegiance to Government. In this case, the appellants were so accused, and therefore, came within ambit of clause (d). The nexus, if any required, was provided by the accusation. No other nexus or connection was necessary". 19. It would, therefore, be seen that question in that case was whether the General Court Martial had jurisdiction over the persons who were tried by that Court and it was in this connection that it was held that if an action was without jurisdiction, coram non judice or mala fide, the superior Court could go into the same. Before us no acUoa ofl respondent No. 3 is challenged. 'Holding of office' cannot in my opinion! be equated to 'action' and therefore holding of office could not be termedl as action without jurisdiction, or eoram non judice or mala fide. Indeed] the Counsel for the petitioner in his arguments wholly relied on clause (1) (b) (ii) of Article 199 of the Constitution which provides for issuance of a writ in the nature of quo warranto. In order to issue a writ ofj quo warranto under the aforesaid clause it is necessary to see whether the Court has jurisdiction over the person in respect of whom writ of quo warranto is sought. Under Article 199 of the Constitution a writ of quo warranto could be issued against any person holding a public office but not against the persons excepted from its purview. The Court should have juris­ diction over both the person and the matter. If clause (3) (ibid) was not iucorporated in Article 199, which excepts from its purview the pirsons who are members of Armed Forces of Pakistan or who are subject to the provisions of the Army Act 1952, then I would have surely gone into the question whether the holding of offiee of Chief of Army Staff by respon­ dent No. 3 is constitutional or not. 20. Even in respect of the cases covered by Article 199 (1) (a) (i) direction could be issued only to a person who performs the functions within the territorial jurisdiction of the Court in connection with the affairs of the Federal, Provincial or local authorities for the purposes mentioned therein. Similarly under Article 199 (1) (a) (if) a declaration could be made in respect of any act or proceedings taken only, if the act was done or the proceedings taken within the territorial jurisdiction of the Court. In other words for granting a writ in the nature Of mandamus or prohibit ion, the person whose acts of commissions or omissions are challenged must have performed or omitted to perform the acts com- X plained of within the territorial jurisdiction of the High Court. Likewise a writ in the nature of certiorari could be issued only in respect of orders passed or proceedings taken within the territorial jurisdiction of the High Court and otherwise. 2 1 . Now, taking up the other cases on the point referred by the learned counsel for the petitioner, I may say that in Saifuddin Saif's case (supra) the learned Single Judge of Lahore High Court followed the decision of the Supreme Court in the case of F. B. All and with reference to clause (3) of Article 199 of the Constitution, held that if action suffered from certain infirmities including absence of jurisdiction on the part of authority taking action, then clause (3) would not, in the circumstances, operate as a bar. Th^ learned Judge further held that in order to oust the jurisdiction of the liigh Court under clause (1) ot Article 199 of the Constitution of Pakistan, it is imperative for the respondents to show that the impugned action taken against the detenu including arrest and deten­ tion was and is being taken "while he is so subject (to a law relating to the Armed Forces) and not before he becomes so subject". I may mention that the learned Judge in the judgment has relied on the following passage from the judgment of the Supreme Court in F. B, All's case : — "However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction cor am non judice or has been taken mala fide as held by this Court in State v. Ziaur Rehman (PLD 1973 SC 49). On the other hand if the action is with jurisdiction and bona fide then I am prepared to c oncede that the bar will be operative in respect of almost anything if it is in relation to a person who is even only for the time being subject to a law relating to the Armed Forces". (Underlining is mine). This observation again speaks of action taken and is not in respect of an office held or purportedly held. In other words, it is not in relation to a writ of quo warranto. Indeed this observation to some extent supports the view taken by me as I have already shown that respondent No. 3 is a member of Armed Forces of Pakistan, and if the petition is in respect of any matter arising out of the services of respondent No. 3, then the observation that 'the bar will be operative in respect of almost anything" would apply with full force to the case under consideration. 22. I may state that the question of mala fide has not been raised in the petition under consideration at all and in my opinion such a question could arise in relation to an action and not in relation to holding of a public office for the office is either held with lawful authority or without it and no question of mala fide arises in such case. 23. The distinction made by me between 'holding an office' and 'an action' was also made by Salahuddin Ahmad J 5 in his separate opinion in [Here in italics] the case of Abrar Hassan v. Government of Pakistan (PLJ 1976 SC 377 at pages 389-90) in the following words :— "The bar contemplated under clause (5) of the Article is, inter alia, against a High Court as such and not against a Judge of a High Court in his individual capacity apart from his function as a Court. The present petition does not seek any writ against the act or order of a Judge of a High Court as a Court, but questions his authority or right to act as such Judge. While the former is not permissible under Article 199, the latter is". In that case the question was whether a writ could issue to the Chief Justice of the High Court or not in view of the bar provided in Article 199 clause (5) of the Constitution. 24. In the case of Ex. Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan (PLD 1969 SC 174), the facts, as taken from the report, were that the appellant, who was at the material time a Captain in the 13th Punjab Regiment, was arrested on the 22nd of January 1962, and taken into custody by the Military Intelligence Authorities Oo the 20th of April 1962, charges were framed against him for violation of Martial Law Regulations Nos. 6 and 20A, and a Special Military Court was convened, under Martial Law Regulation No. 1 A, on the 21st of April 1962, to try him The trial commenced on the 23rd of April 1962, but the appellant continued to remain in the custody of the Military Authorities. At the trial, immediately after pleading to the charges, the appellant, through his counsel, raised an. objection in writing to the jurisdiction of the Court to try him. He maintained that being a person serving in the Defence Services he was not amenable to the jurisdiction of the Special Military Court but could only be tried by a Court Martial in accordance with the provisions of the Pakistan Army Act, 1952. This objection, which is on the file, was rejected and the trial proceeded with. The trial concluded on the 2nd of May 1962, when the Special Military Court recording finding of guilty on both count and the President of the Court, certified under bis signature that the Court bad awarded the appellant the sentence of death by hanging. This sentence, which required confirmation by the Chief Martiai Law Administrator, was accordingly transmitted to him for such confirmation. The minutes of confirmation were signed by the Chief Martial Law Administrator on the 4th of June, 1962, before the coming into force of the Constitution of the Islamic Republic of Pakistan on the 8ih of June 1962 but the sentence could not be promul­ gated until the 26th of June 1962, in accordance with the practice of the Army in the J.C O's Mess at Quftta. It was only after this that the appellant was sent to the Superintendent of the Quetta Prison to be lodged there under a warrant of the said date until such time as a further warrant was issued. This sentence was subsequently, upon the appel­ lant's; mercy petition, commuted on the 15th of August, 1962, by the Comminder-in-Chief of Pakistan Army, to transportation for life and again on the 18th of February 1967, on the representation of the appel­ lant, further to reduced a sentence of 12 years rigorous imprisonment. His further attempts to have his sentence revised also failed and thus, having exhausted his remidies on the administrative side, the appellant ultimately invoked the jurisdiction of the High Court under Article 98 of the Consti­ tution (1962) on the 26th of February, 1968. It was inter alia contended on behalf of the appellant that clause (3) of Article 98 constituted no bar to the High Court entertaining the proceedings before it, but the High Court repelled the contention and held that Article 98 (3) (a) of the Constitution was a complete bar to the exercise of any jurisdiction by it. Dealing with the question of jurisdiction, it was observed by Hamoodur Rehman, C.J., who delivered the opinion of the Court as follows :•— "This brings us to the next question, namely ; as to whether the jurisdiction of the High Court, under Article 98, was barred by by reason of the provisions of clause (3) (a) thereof. This clause is in these terms :— "(3) An order shall not be made under clause (2) of this Article— (a) on application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan". "It will thus be seen that the bar provided by clause (3) (a) is not a general bar against the entertainment of any application moved by or in relation to a member of a Defence Service of Pakistan but the bar operates only in respect of an application made by or in relation to such a person if the application is in respect of the matters specified therein, namely ; (a) the terms and conditions of his service or (b) any matter arising out of his service, or (c) any action taken in relation to him as a member of the service. In the present case the application was certainly not in respect of the terms and conditions of the appel­lants service or in respect of any matter arising out of his service but was it in respect of an action taken in relation to him as a member of the Defence Services of Pakistan. "Does this mean any and every kind of action taken in relation to a person who is a member of a defence service? It obviously cannot, for, a member of a defence service is also a citizen of the State with rights and obligations as such a citizen. A distinction has of necessity to be drawn between his duel capacities and, therefore, the action referred to in clause (3) (a) of Article 98 must be confined strictly to action which is only relatable to a person in the capacity or a member of a defence service and not to any other capacity. "The Pakistan Army Act itself makes a differentiation between certain categories of offences and between "civil offences" and offences punishable under the Act. Thus offences of murder, culpable homicide and rape committed by a member of a defence service in relation to a person who is not a member of a defence service cannot be dealt with under the Array Act except when committed while on active service at any place outside Pakistan or at a frontier post. Again even though sec­ tion 59 of this Act makes all other "civil offences'" also offences under the Act yet under section 94 waere the offence is also triable by a Criminal Court then it is the prescribed officer who has in his discretion to decide as to which Court still try him. If such an officer decides that the case shall be tried by the criminal Court and not a Court under the Army Act then should not the ordinary incidents of such a litigation attach to such a proceeding even though the accused is a member of a defence service. The choice lies with the defence service authorities and if they choose to treat him as an ordinary citizen they cannot subse­ quently claim that action was taken against him as a member of a defence service only. "This is exactly what happened in the present case, After arresting him under the Army Act, it was decided to have him tried by a Special Military Court set up under Martial Law Regulation No. 1A as an ordinary citizen. This is confirmed also by the fact that the appellant had at the very first sitting of the Special Military Court raised an objection in writing to its jurisdiction and claimed to be tried by a Court Martial, as the offence was one which fell within the category of a civil offence under the Pakistan Army Act.". 25. Taking up the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLJ 1978 SC 47), it may be stated that the learned counsel only referred to this case without referring to any principles enunciated, accepted or decided therein or without referring to any parti­ cular passage in that lengthy judgment wherein four Honourable Judges, namely, Anwarul Haq, C. J., Muhammad Akram, J., Qaisar Khan, J., and Dr. Nasim Hasan Shah, J , have expressed separate detailed opinions. Therefore, it is not necessary to discuss this case in any detail. 26. Reference was also made to the case of Mr. Zulfikar Alt Bhutto v. The State (PLJ 1978 SC 154). In this case the constitution of the Lahore High Court and the validity of the appointment of Mr. Justice Mushtaq Hussain, as Acting Chief Justice of the Court was questioned and in support the following contentions were raised :— "(i) The High Court was not properly constituted in terms of Article 192 of the 1973 Constitution as the permanent Chief Justice. Mr. Justice Aslam Riaz Hussain was no longer holding the office of the Chief Justice, nor was he performing its functions, having been appointed as the Acting Governor of the Punjab and having relinquished charge of the office of Chief Justice with effect from the 13th of July 1977 ; (ii) Mr. Justice Mushtaq Hussain had not been appointed as Acting Chief Justice of the High Court by a competent authority in terms of the Constitution ; (m) The Acting Chief Justice had not taken the oath as prescribed by Article 194 of the Constitution read with Schedule III, thereof, and bad instead taken a modified oath prescribed under President's Order (Post Proclamation) No. 1 of 1977 — High Court Judges (Oath of Office) Order, 197','—with the result that he could not be regarded as having validly entered upon his new office ; (iv) Even if it be assumed that Mr. Justice Mushtaq Hussain bad been validly appointed as Acting Chief Justice, and had validly assumed the duties of his office, yet he could not continue in this capacity after his appointment as the Chief Election Commissioner with effect from the 17 th of July 1977, as Article 216 of the Constitution prohibited the Chief Elec­ tion Commissioner from holding any other office of profit in the service of Pakistan ; and (v) In the alternative, Mr. Justice Aslam Riaz Hussain still continued to be the permanent Chief Justice'of the High Court as his appointment as the Acting Governor of the Punjab was unconstitutional and not justified on the grounds of necessity or welfare of the people with the necessary consequence that there was no occasion at all for the appointment of an Acting Chief Justice." It will be seen that none of the contentions relates to the bar provided in clause (3) of Article 199 of the Constitution, and the bar provided in clause (3) did not come up for discussion in that case. I have no doubt that but for the bar provided in clause (3) of Article 199 of the Constitution which goes to the very root of the matter I would have considered the question on merits as was done in the above mentioned case in relation to the holding of office of the Chief Justice by Mr. Justice Mushtaq Hussain in view of the bar provided in Article 216 of the Constitution in the way of Chief Election Commissioner to hold any office of profit in the services of Pakistan because Clause (3) of Article 199 applies to a member of Armed Forces of Pakistan or to a person who is for the time being subject to any law relating to any of those forces and not to any other holder or purpor­ ted holder of public office. 27. I have gone through the following other cases referred to few Mr Haq :- (1) The Chief Secretary to the Government of the East Pakistan v. Moslehuddin Sikdar and another (PLD 1957 SC 1), (2) In the matter of reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan (PLD 1957 SC 219), (3) Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), and (4) Munir Ahmed v. Returning Officer, Karachi and others (PLD 1966 Kar 1). 28. So far as cases at Serial Nos. 1 to 3 are concerned the learned Counsel merely cited them. He did not argue how could these cases advance his case. It is therefore, not necessary to examine them in detail. 29. As regards Munir Ahmed v. Returning Officer Karachi (PLD 1966 Kar. 1), it was held in this case that for issuing a writ of quo warranto, the petitioner need not be an aggrieved party. There is no cavil with this pro­ position. The other question raised in this case was that the respondent was not holding a public office. But no such contention was raised before us. Thus reference to this case was unnecessary. 30. The learnrd Counsel for the petitioner further submitted that the supremacy of the judicial system as provided in the Constitution should be established by examining the grounds raised in the petition and in support of his submission he relied on State v. Ziaur Rehman (PLD 1973 SC 49) and the Federation of Pakistan v. Saeed Ahmad Khan & others (PLJ 1974 SC 77) to which reference was also made by the Attorney General. He particularly relied on the following passages in Zia-ur-Rahman's case :— "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitutions, that it derives its powers and jurisdictions from the Constitution ; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Consti­ tution and to say as to what a particular provision of the Consti­ tution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. "This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself. "In saying this, however, 1 snould make it clear that I am making a distinction between "judicial power" and "jurisdiction". In a system where there is a trichotomy of sovereign powers, then ex necessitate rei from the very nature of things the judicial power must be vested in the judiciary, But what is this judicial power. "Judicial Power" has been defined in the Corpus Juris Secundum, Vol. XVI, paragraph 144, as follows : — "The judiciary or judicial department is an independent and equal coordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of Government which is charged with the declaration of what the law is, and its cons­ truction, so far as it is written law". There is no doubt that the determining of what the existing law is in relation to some thing already done or happened is the function of the judiciary. A Constitutional Court has nonetheless to act within the limi tations if any, provided by the Constitution itself for if the Constitution says that the High Court shall not have jurisdiction in any matter, how can then the High Court deal with that matter. In the words of Hamoodur Rehman J , as expressed in the above quoted passage from the judgment of Ziaur Rehman's case "So far therefore this Court is concerned, it has never claimed to be above the Constitution nor has it claimed a right to strike down any provision of the Constitution". Further, it would be instructive if I quote another passage from the same judgment which appears at the same page and the next page :— "It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide constitutional issues. It may demarcate the territories in which a pirticular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial powers to hear and determine will be exerciseable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court." 31. In the case of Saeed Ahmed Khan (supra) the same principles of interpretation applying to a constitution were stated which were enunciated in Ziaur Rahman's case, and they need not be recapitulated here. 32. In rebuttal to the contention of Mr. Muzaffaru! Haque, leained counsel for the petitioner that Article 199 (3) of the Constitution does not bar the jurisdiction of this Court, learned Attorney-General relied on Muhammad Khurshid Butt v. Government of Pakistan (PLJ 1983 SC 109). In thi^ case it was contended on behalf of the appellant that once the appellant established that he belonged to an All Pakistan Civil Service, then notwith­ standing the fact that he was rendering se'rvices "in connecton in with defence" he could claim the constitutional protection in the matter of retirement before reaching the age of superannuation. It was, however, pleaded on behalf of the respondents that the jurisdiction to entertain peti-tion under Article 98 (3) (a) of the Constitution of 1952 was barred. While dealing with the contention, it was observed by Shafiur Rahman, )., who delivered the a'pinion of the Court as follows :— "The expression Defence Services of Pakistan in its generic sense would mean not only service in Defence Forces but all employ­ ment in Defence Forces and service connected with, ancillary or incidental to the tasks performed by the defence forces or requiring performance of duties on which the effective funcrioning of the defence in times of peace and war depends. Military Engineering Service to which the appellant admittedly belonged would on this view certainly be a Defence Service. The constitutional petition by the appellant being relatable to terms and conditions of service was barred by Article 98 (3) (a) and its dismissal by the High Court was unexceptionable. This appeal has no merits, fails and is hereby dismissed leaving the parties to bear their own costs.'' ^ It will be seen from the above observations that the real question was whether the petitioner was in the Defence Service of Pakistan or not so to atttact or not to attract the bar contained in Article 98 (3) (a) of the Con­ stitution. 32A. I am, therefore, of the opinion that the petition is hit by the provisions of clause (3) of Article 199 of the Constitution. 33. Now, I shall consider the question whether this Court has terri­torial jurisdiction to entertain this petition. A perusal of sub-paragraph (ii) of paragraph (b) of clause (1) shows that in order to require a person to show under what authority of law he claims to hold or purports to hold a public office he must be within the territorial jurisdiction of the Court. The word 'person' in sub-clause (b) (ii) is followed by the words'within the territorial jurisdiction'. It is, there­ fore, not every person in regard to whom High Court could pass an order requiring him to show under what authority of law he claims to hold or purports to hold the public office. It is only a parson within tha territorial •$ jurisdiction of the High Court over which it shall have jurisdiction. The phrase 'A person within the territorial jurisdiction' used in clause (1) (b) (ii) of Article 194 of the Constitution could only mean that either he should have his residence or his office within the territorial jurisdiction of the I High Court. Respondent No. 3 on petitioner's own showing is the (resident of President's House Rawalpindi. He has neither his residence nor his office within the territorial jurisdiction of this Court. 34. It was, however, submitted by the learned counsel for the peti­ tioner that a person would come within the territorial jurisdiction, if he exescises powers or authority over the area within the territorial jurisdiction of the Court and as in the present case respondent No. 3 exercises his authority by controlling all Military Officers and Cantonments in Pakistan including those within the territorial jurisdiction of the Court, therefore he comes within the territorial jurisdiction of this Court. As already stated that for issuance of a writ in the nature of quo warranto it is the place of residence, or the place of office of the person against whom such a writ is sought which is material and that should be within the territorial jurisdiction and not the area over which he exercises the authority or powers of the office held by him. In the present petition uo action of respondent No. 3 in relation to any officers or the Cantonment within the territorial jurisdiction of this Court is challenged. What is being questioned is the holding of office as Chief of Army Staff. Therefore, this Court has no territorial jurisdiction. It may be stated that where at action of a person who is not covered by clause (3) of Article 199 is questioned, the Court would have jurisdiction, if action was taken within the territorial jurisdiction of the Court as would be clear from the language used in clause (1) (a) (ii) of Article 199 of the Constitution. I am fortified in my view by a decision of the Supreme Court of Pakistan and several other decisions from foreign jurisdiction and a decision of Dacca High Court, namely, (1) Sabir Din and another v. Government of Pakistan (1979 SCMR 555), (2) Abrar Hassan v. Government of Pakistan and another (PLJ 1976 SC 377), 3) Election Commissioner India v. Saka Venkatasubbarao (AIR 1953 SC 2iO), 4) K. S. RashiS and Son v. Income Tax Investigation Commission and others (MR 1954 SC 207), (5) Lt. Col. Khajoor Singh v. Union of India (AIR 1961 SC 532), (6) Madan Gopal Rungta v. The Secretary to the Government of Orissa and others (AIR 1962 SC 1513), and (I)A.K.M. Fazlul-ur-Quadir Chowdhury v. Government of Pakistan and another (PLD 1957 Dacca 342). 35. I shall first refer to the case of Sabir Din v. Government of Pakistan and another (1979 SCMR 555) in some detail. In this case the facts were that the petitioner claimed that he was promoted and duly confirmed as Deputy Assistant Military Estates Officer in the Directorate of Military Lands & Cantonment, under the Ministry of Defence, Govern­ ment of Pakistan, respondent No. 1. He was posted, as further claimed, in the office of the Military Estates Officer, Hazara Circle, Abbottabad, from where he was transferred to Muzaffarabad (Azad Jammu & Kashmir) as Deputy Military Estates Officer (Military Estates Section) which, as stated, fell within Hazara Circle (NWFP). It was asserted from the petitioner's side that respondent No. 3 (the Departmental Promotion Committee at Rawalpindi) seemingly acting under a letter of the Establishment Division of the Pakistan Government, made recommendation for the reversion of the petitioner and three others which was approved by the Director, Military Lands and Cantonments, Rawal­pindi, respondent 2. Learned counsel stated that although the office of the Hazara Circle required to give the information about the reversion, they did not do so and in fact the petitioner learnt about it at Rawalpindi from an employee of Rawalpindi Circle. The petitioner challenged the above order of his reversion in the Peshawar High Court through a writ petition under Article 19 of the Constitution, seeking relief against the respondents for the ' quashment of the order" passed by respondent No. 2. The same having been dismissed in limine on ground of lack of territorial jurisdiction, he moved a petition for special leave to appeal in the Supreme Court. Muhammad Afzal Zullah, J., who wrote the opinion of the Court observed as follows : "The normal considerations of'residence' etc. and the 'cause of action qua territorial jurisdiction even if attracted in the circumstances, do not support the petitioner's case. The cause of action partly arose at Muzaffarabad and partly at Rawalpindi. The Central Government, as held in th~ case of Waliullah Safyani, does not reside at any one place in the realm. However, the respondent No. 2 whose order (Annexure 'B to the writ petition) was brought under challenge, is at Rawalpindi. On this view the Peshawar High Court would have no territorial jurisdiction. The Hazara Office of the respondents Nos. 1 and 2 is only one chain in the administrative set up. It has not done anything against the petitioner nor any "relief "has been sought against it'nor even a formal one. Indeed it has not even been impleaded as party. That aspect of the matter either, would not confer territorial juris­ diction on the Peshawar High Court. (Underlining it mine). "The question having arisen in the context of a writ petition the Peshawar High Court was justified in refusing to exercise jurisdiction on another ground as well. As provided in Article 199 (1) (a) of the Constitution the impugned action or the authority taking the same should be within the territorial jurisdiction of the High Court, for exercise of jurisdiction there­ under. None of those conditions is satisfied herein. Therefore, the refusal by the Peshawar High Court to exercise jurisdiction is unexceptionable". 36. In the case of Abrar Hassan v. Government of Pakistan (PLJ 1976 SC 377) to which reference was also made by the learned Attorney-General Muhammad Yaqub AH, C J. at pages 384-85 of the report observed as follows :— "Article 199 (1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial juridiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to person performing functions in another province." 37. In the case of Election Commission v. Saka Venkuta Subba Rao (supra), the respondent had applied to the High Court of Madras under Article 226 for a writ restraining the Election Commission, a statutory authority constituted by the President, having its office permanently located at New Delhi, from inquiring into his alleged disqualification for "[Here in italics] 13. f his terms and conditions of service. The learned Counsel for the petitioner himself stated that h: was not questioning any terms or conditions of service of respondent No. 3. He however, submitted that he was challenging the very basis of holding of office of the Chief of Army Staff by respondent No. 3 as being against the Constitution which sub­ mission I propose to deal with while discussing the cases cited by the learned Counsel. Therefore, the only point that requires consideration to attract the provisions of clause (3) is whether the petition is In respect of any matter arising out of the service of respondent No. 3 as member of membership of the Assembly. The High Court issued the writ. From order of issuing writ an appeal was filed in Supreme Court of India The Supreme Court recalled the writ holding that the High Court had no power to issue writ to the Election Commission which had its office permanently located at New Delhi. It was observed by the Court that the mere func­ tioning of a tribunal or authority, permanently located elsewhere, within the territorial limits of the High Court was not sufficient to invest the High Court 'with jurisdiction under Article 226 to issue a writ. Nor was the accrue! of the cause of action within the territorial limits of the jurisdiction of the High Court sufficient for investing the High Court with jurisdiction under Article 226 to issue a writ. 38. The Supreme Court of India did not accept the reasoning of Madras High Court that if a tribunal or authority, permanently located elsewhere, exercised jurisdiction within the High Court's territorial limits so as to effect the right of the people therein, such tribunal or authority must be regarded as 'functioning within the High Court's jurisdiction. The Court held that the person or the authority against whom the writ is sought must be amenable to the Court's jurisdiction either by residence or by location within the territorial urisdiction. The basis of jurisdiction as held to be the residence or location of the person or the authority concerned and not the cause of action, It was contended before the Supreme Court that the jurisdiction of the High Court to issue a writ is analogous to the jurisdiction of a Court to grant'a decree or order against persons outside the limits of its local jurisdiction provided that the cause of action arose within those limits. The court over-ruled the contention in these words :— "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Art. 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction." Accordingly, it was held that no High Court except that of Punjab could issue writ against the departments of Government of India which were located in New Delhi. 39. The Supreme Court of India again considered the matter in Lt. Col. Khajoor Singh v. Union of India and Another (supra), and reiterated the principle laid down in Election Commission's case (supra) and again refused to accept the concept of cause of action as the basis of issuing the writ by a High Court on the ground that Article 226 did not refer to it at all. The Court held that the argument that the Government of India was all pervasive and was functioning throughout India confused the concept of 'location of a government with the concept of its 'functioning'. The seat of the Government of India being at New Delhi, it is as such located there. The Supreme Court observed that the jurisdiction of a High Court under Article 226 depended on the person or authority against whom a writ was sought to be issued being within the territory of the concerned High Court. 40. In order to obviate the hardship faced by the injured persons who, because of their limited resources, could not always resort to the Punjab High Court, the Indian Law Commission suggested removal of the hardship by amending Article 226 which was done in 1963, and the 'cause of action' has bsen added as a ground on which the High Court could have jurisdiction to issue writ. The amended Article 226 reads as follows : . "226. Power of High Courts to issue certain writs. —(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises juris­ diction, to issue to any person or authority, including in appro­ priate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose). (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (J) ................................. Not'material ........ , (4) ...... . Not material ......... 41. It will be seen that under Article 199 of our Constitution the equirement of clauses (1) (a) (i) for issuing a direction is that the person to whom the direction is sought must be performing the functions in connection with the affairs of the Federation, a Province or a local authority, within the territorial jurisdiction of the Court, and for a decla­ ration under clause (1) (a) (ii) the requirement is that ths act done or the proceedings taken must have bsen don: or taken within the territorial jurisdiction of the Court. Similarly, under clause (1) (b) (i) for issuance of a writ in the nature of habeas Corpus the person should be in custody within the territorial jurisdiction of the High Court. Likewise under clause (1) (b) (ii) for issuance of a writ in the nature of quo warranto the person should be within the territorial jurisdiction of the High Court. It will be seen that in our Constitution in Article 199 the concept of cause of action seems to have been incorporated only in clause (1) (a) (ii) of Article 199 of the Conititution. 42. I may mention that there is not a single word in the petition to attract the provisions of clause (1) (a) (ii) of Article 199 of the Constitu­ tion in relation to respondent No. 3 that hs has done anything or taken any proceedings within the territorial jurisdiction of this Court. Al 43. I am therrfore, of the opinion that this Court has also no territo-GJrial jurisdiction to entertain the petition. 44. In the result I dismiss the petition. Syed Ally Madad Shah, J.—I agree that this Court does not have territorial jurisdiction to entertain the petition.. I agree with the view of the learned Chief Justice that the petition is not entertainable in view of the provisions of Article 199 (3) of the Constitution. Syed Haider AH Pirzada J,—I agree with the learned Chief Justice, OPINION OF THE FULL BENCH By unanimous opinion it is held that this Court has no territorial jurisdiction to entertain the petition which is in nature of quo warranto. By majority opinion it is held that the petition is not entertainable in view of the bar contained in Article 199 (3) of the Constitution. ORDER OF DIVISION BENCH Naimnddin, CJ & Syed Ally Madad Shah, 3 : In view of the opinion delivered by the Full Bench today that this Court has no jurisdiction, we dismiss this petition in limine. (TQM) Petition dismissed.

PLJ 1987 Karachi 365 [FB] PLJ 1987 Karachi 365 [FB] Present : naimuddin, CJ ; abdul qadeer cbaudhry, M. zahoorul haq, ally madad shah & haider Ati pirzada, JJ NAZAR MUHAMMAD KHAN-Petitioner versus PAKISTAN and 2 Others—Reipondents Constitutional Petition No. D-883 of 1985, dismissed on 4-8-1986 . (i) Constitution of Pakistan, 1973— Arts. 199 & 270A read with Martial Law Regulation No. 5.2—Paras. 4, 6 & 11 & Provisional Constitution Order, 1981 (CMLA's 1 of 1981)—Art. 15—MLR 52—Termination of services under — Chal­ lenge to—All orders made and acts done in exercise of powers derived from any Martial Law Regulation already protected under clause (2) of Art. 15 of PCO—Held: Order of termination of services of petitioner (passed under MLR 52) not to be called in question in writ jurisdiction of High Court — Petitioner, at time when order passed, precluded from questioning same in any court — Held: Legality or constitu ucnality of MLR 52 not to be (subsequently) queitioned (by filing writ petition under Art. 199 of Constitution). [Pp. 367 369 & 370JA B & C 1982 SCMR 551 & 562, 1983 CLC 3105 i PLJ 1984 SC 381 ; 1985 SCMR 443 ; PLJ 1981 Lab. 403 ; 1982 CLC 1979 & 1984 CLC 706 rel. (ii) Provisional Constitution Order, 1981 (CMLA's 1 1981)-

Art. 15 (2)—Martial Law Regulation No. 52—Order of termination passed under—Challenge to—Services of petitioner dispensed under provisions of paras. 6 & 11 of Martial Law Regulation No. 52—Such under Regulation subsequently validated and protected under Art. 15 of Provisional Constitution Order—Held: Order of termination passed under MLR 32 not to be called in question (by riling constitutional petition in High Court). [P. 373JD Mr. U. Niamat Mouhi, Advocate for Petitioner. Mr. Aziz A. Munshi, Attorney-General assisted Merchant, Deputy Attorney-General for Respondents. Date of hearing : 25-5-1986. judgment Naimoddin, CJ.—This is a petition under Article The petitioner's case is that he was a confirmed Professional Assistant in Grade-13, with effect from 1-6-1973, and was appointed as Assistant Security Officer, Air Port Security Force, after his selection by Federal Public Service Commission on 26-10-1976. 3. The petitioner by the letter, dated 23-8-1981, was informed by the Force Commander, Airports Security Force, on behalf of Secretary- General Defence that his services were no longer required and in exercise of the power under the provisions of paragraph 6, read with paragraph 11 of the Martial Law Regulation No. 52, his services were dispensed with, with immediate effect with normal terminal benefits admissible to him as per rules. It may be stated here that the petitioner attained the age of superannuation on 24-9-1984, as would appear from prayer clause (iii), of the petition, 3. On 20-8-1985, the petitioner preferred an appeal, being Appeal No. 120 (K) of 1983, with the Federal Service Tribunal, Islamabad, which was dismissed, as being hopelessly, time-barred. The petitioner's applition for condonation ot the delay was also dismissed as the Tribunal held that inordinate delay could not be satisfactorily explained. It is pointed out in the order that the jurisdiction of the Tribunal was barred under Article 15 of the Provisional Constitution Order, 1981. 4. The petitioner by the present petition filed on 19-12-1985, under Article 199 of the Constitution has sought declaration that Martial Law Regulation No. 52, was unconstitutional, illegal without lawful authority and of oo legal effect and consequences and for further declaration that the order dispensing with the services of the petitioner was unwarranted and was beyond the very scope of Martial Law Regulation No. 52, being in contravention of paragraphs 6 and 11 thereof, and, therefore, without jurisdiction and lawful authority. The petitioner has also sought declara- ! tion that he continues to be in service or is entitled to be re-instated. 5. The office has raised the following objections on the petition :-— "(;') How this petition is maintainable against dismissal order under MLR 52 in view of Article 15 (5) (d) of PCO, 1981, and (//) remedy is available before the Supreme Court under Aricle 212 of the Constitution." 6. When the petition came up before a Division Bench of this Court, the Bench felt it necessary to hear the office objection in the presence of the Attorney-General and accordingly issued notice to him. Meanwhile the petitioner filed an application under Order VI, rule 17, CPC, for amend­ ment of the petition which came up for hearing on 10-4-1986, before the Bench but was dismissed. The order dismissing the application is reported as Nazar Muhammad Khan v. Pakistan and 2 Others (PLD 1986 Kar. 3ul). By the same order, at the request of the Deputy Attorney-General and with the consent of Mr. U. Niamat Moulvi, the Division Bench directed to place the matter before a Full Bench. Accordingly the Bench heard Mr. U. Niamat Moulvi on behalf of the petitioner and Mr. Aziz Munshi, the Attorney-General. 7. It was submitted by Mr. Mouivi that Martial Law Regulation No. 52 was ultra vires and unconstitutional. He relied on Begum Nusrat BHutto v. Chief of Army Staff and Federation of Pakistan (PLJ 1978 SC 47). 8. Before going into the submission we may quote here the entire prayer for ready reference. It reads as follows :— "(/) For a declaration that the impugned MLR 52 was,is, unwarrant­ ed, uncalled for, unconstitutional, illegal and of no legal effects and consequence and patently, without lawful authority. (i'0 That the impugned order of dispensation of the services of the petitioner was patently uncalled for, unwarranted, i.e. Annexure "C", dated 23rd August, 1981 and even beyond the very scope of MLR 52 and in patent contravention of paras. 6 and 11 thereof, rendering the same as a nullity. (Hi) Declaration that the dispensation of the services of the petitioner were without jurisdiction and without lawful authority and the petitioner does and did continue in his service and alternatively the petitioner is duly entitled to be re-instated with dignity and honour with retrospective effect from 23rd August, 1981 i.e, the date of the impugned order of dispensation at Annexure "C". hereto, entitling the petitioner to all benefits, privileges and interest from the date of the said impugned order to the date of the petitioner's superannuation on 24-9-1984 etc. O'v) Any other relief, this Hon'ble Court may deem fit and proper to grant in the circumstances of the case to meet ends of justice and equity." 9. It will be seen from the prayer clause reproduced above that the petitioner has not questioned in the petition the order of the Tribunal dated 28-8-1985. 10. Now, before considering the objections raised by the office we take up the queition of vires, legality or constitutionality of the Martia Law Regulation No. 52. In this regard it would suffice to say that by insertion of Clause 270A in the Constitution by the Constitutional (Eighth Amendment) Act, 1985, all the President's Orders, Ordinances, Martial Law Regulations etc., have been affirmed, adopted and declared, notwith­ standing any judgment of any Court, to bave been validly made by compe­ tent authority. By the same Article it has been provided that notwith­ standing anything contained in the Constitution the same shall not be called in question in any Court on any ground whatsoever. By virtue of clause (2) of Article 15 of the Provis'ional Constitution Order, 981, the etitioner at the time when the order was passed was preculded from calling the same in question tn any Court Further, a Division Bench of this Court has already dealt with, in some detail, the question of legality of Martial Law Regulations and Martial Law Orders in the order dismissing the application under Order VI, rule 17, CPC for amendment of the petition made by the petitioner in this petition, as stated before anp has held that the validity of the laws including Martial Law Regulations and Martial Law Orders made between 5-7-1977. and the date on which the Article 270A came into force i. e , 30-12-1935 could not be questioned. n doing so the Division Bench relied on the decisions of the Supreme Court in The Federation of Pakistan through the Secretary. Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151= PLJ 1974 SC 77). Sheikh Karamat All v. The State (PLD 1976 SC 476-PLJ 19?6 SC 341) Yamin Qureshi v. Islamic Republic of Pakistan (PLD 19PO SC 22 = PLJ 1980 SC 106) and Fauji Foun­ dation and another v. Shamimur Rehman (PLD 1983 SC 475). In view of the amendment of the Constitution, by insertion of Article 270A therein and whereby affirmation, adoption and validation of all Martial Law Regulations and Martial Law Orders, etc., reference to Begum Nusrat Bhutto's case, in our opinion, has become unnecessary. 10A. Further, Article 15 (5) of the Provisional Constitution Order, 1981, precluded this Conrt on 19-12-1985, when the petition was filed in this Court, from making an order relating to the validity or effect any Order, Martial Law Regulation made by the Chief Martial Law Adminis­ trator or a Martial Law Administrator. Article 15 of the Provisional Constitution Order, 1981, reads as follows : — "15.— Validation of laws, Acts, etc.—(I) The Proclamation of the fifth day of July, 1977, all President's Orders, Orders of the Chief Martial Law Administrator, including Orders amending the Constitution made by the President or the Chief Martial Law Adminis­ trator, Martial Law Regulations, Martial Law Orders and all other laws made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and shall not be called in question in any Court on any ground whatsoever. (2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Adminis trator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwithstand­ ing any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever : Provided that nothing in this clause shall apply to transactions past and closed. (3) Where a Military Court is established in pursuance of a Martial Law Order made by the Chief Martial Law Adminis­ trator, do other Court, including the Supreme Court, and a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter of which cognizance has been taken by, or which has been transferred to the Military Court, and all proceedings in respect of any matter of which cognizance has been taken by, or which has been transferred to the Military Court, and all proceedings in respect of any such matter which may be pending before such other Court, shall abate. (4) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on occount of or in respect of any order made, proceedings taken or act done whether in the exercise of or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers. (5) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of the Courts relating to judicial review, any Court, including the Supreme Court and a High Court, shall not, (a) make an order relating to the validity or effect of any Order or Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder ; (b) make an order relating to the validity or effect of any judgment or sentence passeed by a Military Court or Tribunal ; (c) grant an injunction, make any order or entertain any proceed­ ings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal; or (d) issue any process against the Chief. Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. (6) Every such order, injunction or process as is referred to in clause (5) made, granted or issued at any time before or after the commencing day shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate, and it is hereby declared that any such order, injunction or process shall not be binding on any Martial Law Authority or civil authority acting under the directions of a Martial Law Autho­ rity." We, therefore, do not consider it necessary to go into this question any further detail and bold that in view of the aforesaid. provisions the legality or constitutionality of Martial Law Regulation No. 52 cannot questioned. 11. As regards the order terminating the service it may be stated that it was passed under paragraph 4 of Martial Law Regulation No. 52. Now, taking up the first objection, it may be stated that instead of provisions of Article 15 (5) (d) of the Provisional Constitution Order 1981, the provisions of Article 15, clauses (2) and (5) (a) are attracted. The provisions have already been quoted above. It will be seen from the above provisions of clause (2) that on or after fifth day of July, 1977, they protect all orders made, proceedings taken and acts done by any authority in the exercise or purported exercise of powers derived from any President's Order or Orders of Martial Law Administrator, Martial Law Regulations. Martial Law Orders, etc., notwithstanding any judgment of any Court, deemed to be and always to have been validiy made, taken or done anc they could not be called in question in any Court on any ground whatsoever Since the order of termination of the service of the petitioner was (passed under Martial Law Regulation No. 52, therefore, it could not jhave been called in question. We are fortified in out view by several decisions of the Supreme Court and of High Courts namely, Muhammad Haroon v. District Food Controller and others (1982 SCMR 55U Dr Muhammad Elias Dubash v. Punjab Service Tribunal and others (1982 SCMR 562), Electric Lamp Manufacturers of Pakistan Ltd. v. Additional Commissioner, Karachi and 3 others (1983 CLC 3105), The Province of the Punjib and others v. Syed Muhammad Akram Shah (PLJ 1984 SC 381) Government of Punjab and others v. Salezm Hussain Gardezi(\98S SCMR 443), Major-General (Retd.) Tajjamal Hussain Malik v. Federal Government of Pakistan through Defence Secretary and 2 others (PLJ 1981 Lah. 403) Sirajuddin v. Larkana Municipal Committee (1982 CLC 1979), and Muhammad Anwar Khan v. CMLA etc. (1984 CLC 706). 12. In the first named case Dr. Nasim Hasan Shah, J. while deliver­ing the opinion on behalf of the Supreme Court observed at page 556 of the report as follows : "Rana Abdul Majid learned counsel for the petitioners appearing in support of the remaining petitions submitted that he was neither challenging the validity of Martial Law Instruction No. 22 nor questioning the view that if action was taken thereunder it would be immune from challenge after the promulgation of the Provi­sional Constitution Order, 1981. His plea was that the provisions of Martial Law Instruction No. 2 > had not been observed, while cancelling the depot of the petitioners, whom he was representing. In this connection, he submitted that in the case of Qazi Muhammad hbaq (Petitioner in C. P. S. L. A. No. 184>'82) for instance the said petitioner's authorisation was cancelled without hearing him, although para. 8 of Martial Law Order itself pro­ vides that the cancellation of the authorisation would be ordered only after giving a show cause notice to the persons effected. The question whether a person was issued a show-cause notice before cancelling his authorisation or not is a question of fact; and in so far as action purports to have been taken under the said Martial Law Instruction No, 22 and shall be presumed that its provisions have been complied with. Moreso, its validity is to be judged according to the tenor of the order and if it purports to be passed in pursuance of the said Martial Law Instruction it is immune from challenge. However, if the petitioners felt aggrieved by the said order on the ground now urged before us they should have filed an appeal to the authority superior to one, who had passed the said order as provided for under para. 9 of the Instruc­ tion, in the course of which the objection being taken before us could have been scrutinised and investigated." (Underlining is ours). 13. In this case of Electric Lamp Manufacturing of Pakistan Ltd., (supra) a Division Bench of this Court consisting of Abdul Hayee Kureshi, C. J. and Saeeduzzaman Siddiqui, J., followed decision of the Supreme Court in the cnse of Muhammad Haroon (supra). It was contended before [Here in italics] the Division Bench that the order passed by respondents Nos. 1 and 2 were not passed in conformity with the Martial Law Order 33, and, therefore, was liable to be quashed. Repelling the contention the Division Bench observed as follows : — "We are afraid on such ground the petition against the order of Martial Law Authorities cannot be entertained by this Court in view of the provisions of Article 15(5) of the P.C.O., 1981." 14. In the case of Dr. Muhammad E/ias Dubash the compulsory retirement was challenged by the petitioner and a Full Bench of the Supreme Court headed by the then Acting Chief Justice and now the Chief Justice Mr. Justice Muhammad Haleem, helJ that under the Provisional Constitu­ tion Order, 1981, any challenge to an order passed by the Martial Law Administrator was not entertamable in view of clause (2) of Article 15 of the Provisional Constitutiion Order, 1981. It was further observed that any submission in regard to the validity of the order of compulsory retire­ ment was beyond the pale of challenge. We may quote the relevant observation : — "Under the present dispensation namely, the Provisional Con­ stitution Order of 1981, any challenge to an order passed by the Martial Law Administrator is not entertainabie in view of clause (2) of Article 15. Therefore, any submission in regard to the validity of the order or compulsory retirement is beyond the pale of challenge." 15. In the case of Muhammad Akram Shah the order was passed by the Board of Revenue persuant to the recommendation of the Revenue Board constituted under Martial Law Instruction No. 21. The order was challenged before the Service Tribunal which set aside the same but the Supreme Court held the order of Service Tribunal could not be sus­ tained because the order passed by the Revenue Board on the recommenda­ tion of Review Board constituted under the Martial Law Instruction No 21 was immune from being called in question in any Court. Jn delivering the opinion on behalf of the Court Dr. Nasim Hassan Shah, J, at page 414 and 415 of the report observed as follows :-- "The overall conclusion is that the order of the Board of Revenue, dated 14-9-1977, which was passed in pursuance of the recom­ mendation of the Review Board, constituted under Martial Law Instruction No. 21, was immune from being called in question in any Court and, therefore, the impugned order of the Service Tribunal, dated 18-10-1981, setting aside the order cannot be sustained." 16. In the case of Government of the Punjab and others v. Saleem Hussain Gardezi (supra) the respondent's services were terminated by the Review Board constituted under the Martial Law Instruction No. 2|. It was held by the Full Bench of the Supreme Court consisting of Sbafiur Rahman, M S. H Qurashi, and Mian Buctmuvidva Khan, JS, Itaat such order of termination by the Review Board could not be challenged under section 4(1) before the Service Tribunal in view of the provisions of Article 15 (2) of the Provisional Constitution Order, 1981. We may reproduce the relevant observations which read as follows : — "Moreover, under Article 15 (2) of the Provisional Constitution Order, 1981 which is as follows : — All orders made, proceedings taken and acts done by any authori­ ty, or by any person, which were made, taken or done, or pur­ ported to have been made, taken or done, on or after the fifth day of July, 1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Adminis­ trator, Martial Law Regulations, Martial Law Orders, enactments notifications, rules, orders or bye-laws or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in ques­ tion in any Court on any ground whatsoever " the order of the Board or the constitution of the Board cannot be challenged. In view of this prohibitory provision of law the learned Tribunal was debarred from adjudicating pn the order passed under Martial Law Instruction." 17. In the case of Major-Genera! (Retd.) Tajjamul Hussain (supra) the vires of the Provisional Constitution Order, 1981 was also consider­ ed by a Division Bench, of Lahore High Court in paragraphs 10, 11 and 12 and it was observed as follows : - "10.—The Proclamation of the fifth day of July, 1977, read with CMLA Order 1 of 1977, on the other hand, supplies a complete answer to the omissions. The proclamation lays down a scheme of interim Government while the CMLA Order gives its details. Further, as is clear from its last para, of the preamble, the Pro­visional Constitution Order derives its life, strength and validity from the Proclamation and the CMLA Order 1 of 1977. It reads as under :— "Now therefore, in pursuance to the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (CMLA Order 1 of 1977), and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make the following order." 11.—It is, therefore, quite clear that the Provisional Constitution Order is just another Order of the CMLA, made in exercise of the powers conferred on him by Article 2 of the CMLA Order 1 of 1977. It does not lay down or give a new legal order. We, therefore, do not agree with the learned counsel that the CMLA has given an alternate Constitution in the Provisional Constitution Order, 1981, or in any way upset the Proclamation of the fifth day of July, 1977, or its purpose. 12.—In vic.v of our finding that the Provisional Constitution Order is only another CMLA Order issued in exercise of the Proclama­ tion and the Laws (Continuance in Force) Order, 1977 and that is not at all an alternate or parallel Constitution, we do not think that the other objection of the learned counsel, about amendment of the Constitution or interference with the power or jurisdiction of the superior Courts, has any force. The learned counsel had specifically referred to a portion at page 715 of the report of Nusrat Bhutto's case which is as under :— "As • result, the true legal position which, therefore, emerges is :— (/) That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity ; <n) That the President of Pakistan and the superior Courts •continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of Proclamation of Martial Law ; .............................. " 18. In Sirajuddin's case (supra) a Division Bench of this Court held as follows :— "It has also been urged that when a competent authority has jurisdiction to pass an order, it has jurisdiction to pass even a wrong order and even a wrong application of Martial Law Order or Regulation by a competent authority shall be beyond the power of judicial review of this Court according to Articles 15 (4) (5) and (6) of the Provisional Constitution Order, 1981. In this connec­ tion, we may quote with advantage the observations made by Ajmal Mian, J of this Court in Constitutional Petition No. D-1330 of 1978. After quoting the provisions of Article IS the learned Judge observed as under :— "A. perusal of the above-quoted paras, indicates that this Court cannot go into the validity or effect of an order of Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator of anything done or action taken or intended to be done or taken thereunder. In our view the phrase 'anything done' or 'action taken' or 'intended to be done or taken thereunder' employed in the abovequoted para, (a) of the P. C. O. is of wide import as to exclude the jurisdiction of this Court to go into the validity of an order, though prima facie it seems that the impugned order is not in accordance with the M. L. O. We are sure that if the petitioner will approach the competent authoritybis grievance will be redressed.' (3) In view of the abovequoted clause (6) of Article 15 of the P. C. O., the above petition stands abated." We are in respectful agreement with the above observations and consequently are of the view that this petition is barred by Article 15 of the P. C. O, 1981. Accordingly, the petition is dismissed in Jimine." We are, therefore, of the view that the order of termination of service having been passed under Martial Law Regulation No. 52, was protected under Article 15 (2) of the Provisional Constitution Order, 1981, and could not have been called in question in this Court, and therefore, the petition is not maintainable. 19. With regard to second objection Mr. U. Niamat Moulvi referred to Anjuman e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and others PLD 1966 SC 639 ; Muhammad Khan v. Shamsuddin and others PLD 1969 SC 212 and Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 io support of his submission that the appeal to the Supreme Court under Article 212 of the Constitution was not adequate and alternate remedy. 20. However, in view of our opinion on the first objection expressed above, we do not consider it necessary to go into the second objection. We, therefore, dismiss this petition as not maintainable. (TQM) Petition dismissed.

PLJ 1987 Karachi 374 PLJ 1987 Karachi 374 Present: nasir aslam zahid, I MUHAMMAD ASHFAQ and Another—Applicants versus SOHAIL HAMEED and 3 Others—Respondents Civil Revision Application No. 29 of 1985, decided on 19-6-1986 (i) Civil Procedure Code, 1908 (V of 1908)-

S. 115—Documents not produced before trial court—Consideration of in revision—Documents not produced and fact not pleaded before trial court through oversight—Held: High Court normally not to con­ sider such additional document in revision nor it normally to allow applicant to raise such factual pleas—Additional facts and docu­ments, however, to be taken into consideration by High Court, even at stage of revision, for compelling reasons (in exceptional cases) or to avoid grave injustice to take place. [P. 381]A&B (ii) Civil Procedure Code, 1908 (V of 1908)- —O. I, R, 8—Suit—Permission of court for filing—Requirement of— Suit (relating to public nuisance) not filed by respondents in represen­ tative capacity for and on behalf of numerous other persons not impleaded as plaintiffs—Consent of Advocate-General under S. 91 CPC for filing suit, however, obtained in case—Held : Suit filed by four respondents afterhaving obtained consent under S. 91 CPC prima fucie being maintainable, objection regarding permission of court for filing suit having not been obtained under O. I, R. 8, CPC not to be relevant. [P. 382JC & D (Hi) Civil Procedure Code, 1908 (V of 1908)-

O- XXXIX, Rr. 1 & 2—Interim relief—Grant of—Part of property of one of plaintiffs rented out to tenant for running office—Held : Failure to mention such fact (in suit for permanent injunction) not to disentitle plaintiff to claim interim relief from trial court. [Pp. 382 At 383)E (iv) Civil Procedure Code, 1908 (V of 1908)- —O. XXXIX, Rr. 1 & 2, O. XL1H, R. 1 (r) & S. 115-Interim injunction—Grant of—Challenge to — Revision — Interference in- Lower courts not shown to have exercised jurisdiction not vested in them nor such courts failing to exercise jurisdiction so vested in them or exercising jurisdiction illegally or with material irregularity in granting application for temporary injunction — Orders also not appearing to be perverse or arbitrary to call for any interference under S. 115 CPC—Held : There being no mis-exercise of jurisdiction or discretion by lower courts or other exceptional circumstances, High Court not to interfere under S.I IS of CPC. [P. 384JF Mr. Z. U. Ahmed & Mr. M. Faseehuddin Ahmed, Advocate! for Applicants Respondent No. 1 in person. Nemo for Respondent No. 2. Mr. Usman Ghani Rashid, Advocate for Resdondent No. 3. Mr Qadir U. Sayeed, Advocate for Respondent No. 4. Dates of bearing : 21, 22 & 28-5-86 and 2 & 4-6-1986. judgment This revision application has been filed by the two applicants, namely, Muhammad Ashfaq and Zahid AH Khan, who are defendants in Suit No. 427 of 1984 filed by the four respondents, namely, Sohail Hameed, Muhammad A faq. Professor Dr. Zafar H. Zaidi and Saeed, for declaration and permanent injunction. The applicants/defendants are joint owners of residential plot No. 139-S/2, P. E. C. H. S., Sir Syed Road, Karachi. In the plaint filed by the respondents it is averred that the respon­ dents/plaintiffs are residents of four plots which are situated adjacent to and/or in the immediate vicinity of plot No. 139-S/2 of the applicants. According to the plaint all the plots are purely residential. It is then averred in the plaint that in or about July 1974 the applicants started con­ struction on their plots initially for residential purposes but subsequently the applicants secretly converted the nature of construction to a Marriage Hall. It was averred that the plan for construction of plot No. 139-S was sanctioned for residential purposes. The grievances of the respondents are contained in paras 7, 8, 9, 10 and 11 of the plaint which are reproduced here : (7) That the disputed plot is a corner plot with Kashmir Main Road on one side and Sir Syed Road on the other side which are busy roads and as such the existence of a Marriage Hall shall be public nuisance and also shall cause hindrance, congestion and obstruction to the smooth Sow of traffic passing on each road by heavy parking on the side thus causing imminent danger of sub­ stantial common injury, obstruction and annoyance to the public and/or perpetual nuisance and physical discomfort to the plaintiffs and the general residents of the locality and/or to person who occasion to use any public right. (8) That the main consideration with the plaintiffs in purchasing the respective plots was for a peaceful enjoyment of their properties in the locality-at large which is defeated by the change of purpose by the defendants who are the joint owners of the disputed plot. The injury is perpetual, continuous and irrepatr&ble. (9) That the marriage ceremony is accompanied by high gathering, of people of all shades and character, food, music, noise and/or other side activities causing common injury, obstructions and annoyance to the people who dwells within the vicinity of the said plot, including the plaintiffs. (10) That the said conversion of construction into a Marriage Hall, cause permanent, actual and substantial common injury, obstruction and annoyance to the sense, sight smell and hearing of the person residing in the vicinity of said plot. The plaintiffs shall generally suffer permanent physical and mental discomfort and peace of mind making life most miserable. (11) That the defendants are hurriedly and secretly carrying on the unauthorised construction day and night and likely to com­ plete the same and succeed in their design to the detriment of the plaintiffs and people who dwells in the vicinity of the said plot and/or to the public in general. Thus the defendants are guilty of public nuisance, acts of omission and commission, causing intended common injury, obstruction and annoyance to the public and/or to the people who dwell or occupy property in the vicinity and of persons who occasion to use of any public right. Hence the suit to vindicate the public rights. The following prayers have been made in the suit filed by the respon­dents against the applicants :— (a) It may be declared that plot No. 139-5 PBCHS is a residential plot and can be used only as such. (b) The defendants to their contractors, employees and their agents be permanently restrained from construction/using the plot No. 139-S, Sir Syed Road, PECHS, Karachi for running Marriage Hall or for any other commercial purpose. (c) The defendants by a mandatory injunction be also ordered to demolish the commercial and/or unauthorised construction raised internally and externally and on complusory open space etc. not authorised by the Building Control Authority.' Before filing the aforesaid suit, the respondents had obtained the consent under Section 91 CPC. In the aforesaid suit, an application for temporary injunction was also filed which was opposed by the applicants but the learned Senior Civil Judge Karachi by order dated 12-1-1985 granted the application by confirm­ ing the interim order of status quo granted earlier on 2-12-1984. The last two paragraphs of the order dated 12-1-1985 of the learned Senior Civil Judge Karachi are reproduced here :— "I have heard learned advocates for the parties. I have also gone through the case papers. Perused the site inspection report furnished by the Commissioner. Admittedly, defendants have got constructed a marriage hall on the plot in question which is meant for the residential purpose and not for commercial purpose. Defendants have not stated that they have obtained approved plan from the Building Control Authority for raising of such construction on plot which is meant for residential. Although, the defendants have stated that they have applied to the authorities for conversion of the plot from residential to commercial. But their request for marriage hall plan is still pending. As per site inspection report, the defendants have raised construction of the marriage hall without (sic) on the site. It has also come on record that the marriage ball is situated in the residential area and not on commercial area. It is contended that there is no marriage hall in that locality. It is matter of common sense that the marriage halls where marriage functions are being held, there becomes huge crowd of ladies and gents of every category. Beside, there is problem of car parking which is source of nuisance for the inhabitants. Since, defendants have unauthorisedly raised construction of the marriage hall, the plain tiffs justified in filing this suit for declaration and permanent injunction. Tfie plaintiffs have made good prima facie and arguable case to the grant of injunction. Balance of convenience also lies in their favour. Naturally plaintiffs Suffer irreparable loss in case injunction is refused, I therefore, confirm order of status quo granted on 2-12-1984." Being aggrieved, the applicants filed Civil Misc. Appeal No. 13/85 but the same was dismissed by the impugned order dated 2-2-1985 of the learned IV Additional District Judge Karachi. The reasoning of the learned appellate Court in dismissing the appeal are follows : — "In their counter affidavit to application under O. 89 R. 1 & 2 CPC r/w section 151 C. P. C. both the appellants have admitted that the plot where the marriage hall is being constructed is a residen­ tial plot. It has not been converted into commercial plot. Further they have admitted that they have no approved plan for raising construction of marriage hall. The arguments of Mr. Mirza Adil Baig the learned advocate for the appellant that it is for the competent authority to take action against the appellants for their illegal act has got no force. No doubt it is for the competent authority to take action against the appellants for unauthorised marriage hall but by refusing injunction to plaintiffs/respondents, it will indirectly help and encourage wrongdoers. Further the functions in the marriage hall go till late hours in the night and there is always rush of the people in marriage hall and it also creates traffic problem as vehicles are parked out side the marriage hall. Admittedly plaintiff/respondent are living in the vicinity of the plot in question which is basically residential area. In case unauthorised marriage hall is allowed to function, it will cause common injury and annoyance to the public particularly plaintiffs/ respondents who are living in the vicinity of marriage hall. Prima facie it appears to me that construction of marriage ball is a public nuisance for the peaceful living of people of the vicinity. The arguments of Mr, Munawar Malik advocate for appellants as that Advocate General, was not competent to grant sanction under S. 91 C P C becomes the merits of the case, as such I avoid to give my finding on this point at this stage. In view of above reasons, I find that the plaintiffs have prima facie case, balance of convenience is also in their favour, they will also suffer irreparable injury in case temporary injunction as prayed is not granted to them. I therefore, uphold the order dated 12-1-1985 of learned Link Judge of the Court of XIII Senior Civil Judge Karachi and dismiss the appeal with no order as to costs." In the circumstances the applicants have filed the present revision appli­ cation. While admitting this revision application to regular hearing, this Court passed an interim order on 11-2-198•> allowing the applicants to hold 3 marriage ceremonies for which bookings had already been made by third parties. Thereafter, by order dated 19-5-1985, on interim applications filed by the applicants in this revision application, 3 advocates of this Court were appointed as Commissioners to visit at least 3 marriage functions on the plot of the applicants and submit their reports separately about their impression of causing nuisance or inconvenience to the neighbours and particularly to the respondents. Against this interim order dated 19-5-1985, the respondents filed a petition for Special Leave to Appeal No. 314-K/85, and, by order dated 3-7-1985, the said petition was converted into an appeal and by the consent of the parties the interim order dated 19-5-1985 passed in this revision application was set aside and the applicants were allowed to hold functions in the marriage hall on certain dates during July 1985 so as to avoid inconvenience to third parties and the High Court was requested to dispose of the revision application at an early date. It was clarified by the Supreme Court of Pakistan in their order dated 3-7-1985 that the said order was not meant to affect the rights of the parties to be determined at the trial of the suit or the disposal of the revision application in the High Court on merit of the case. 2. I have heard at length the arguments of Mr. Z. U. Ahmed, learned counsel on behalf of the applicants, Mr. Sohail Ha meed respondent No. 1, who appeared in person, Mr. Usman Gharri Rashid, learned counsel for the respondent No. 3 and Mr. Qadir H. Sayeed, learned counsel for respondent No. 4. No one has appeared on behalf of respondent No. 2. It was stated by the learned counsel for the parties that respondent No. 2 was no longer interested in the prosecution of the suit against the applicants as he has compromised with the applicants. It may also be mentioned here that during the pendency of this revision application, after about one year of its presentation, an application under section 151 CPC read with Order 6 Rule 17 CPC (CMA No. 140/86) was filed. Through this appli­ cation, the applicants wanted various other grounds to be added in their memo of revision application and they also filed various documents for consideration by this Court while deciding the present revision application. Arguments on this application were also heard at the time of regular hearing of the revision application. 3. On behalf of the applicants, Mr. Z. U. Ahmed advocate raised the following contentions :— (a) In the suit, the respondents had not asked for any specific relief under section 91 CPC. It was argued that as no relief was claimed that the running of a marriage hall on the plot in question amounts to public nuisance, no temporary injunction, could be granted ; (b) It was submitted that from a perusal of the plaint filed by the respondents it is apparent that the suit is a representative suit filed under Order 1 Rule 8 C P C but no permission has been sought by the respon­ dents from the Court to maintain the representative suit, Reference in this regard v» as made to the provisions of Order 1 Rule 8 CPC which require the permission of the Court where one or more persons want to sue on behalf or for the benefit of numerous persons having the same interest, According to (he learned counsel, as no such permission has been obtained, the suit filed by the respondents itself is not maintainable. On scope of Order 1 Rule 8 CPC, learned counsel cited the following case law :— (0 Kumaravelu v. Ramaswami (AIR 1933 PC 183). (ii) Bibhuti Narayan v, Mahadev Asram (AIR 1940 Patna 449). (Hi) Surendra Kumar v. District Board Nadia (AIR 1942 Ca-l. 360). (/v) Kissondas v. Jivallal Pratapshi & Co. (AIR 1936 Bom. 423). (v) Taltersalls Club v, 5. M. Suletran (PLD 1956 Sind 49). (v/) Abdur Rahman Mobashir v. Amir All Shah (PLJ 1978 Lab. 67). (c) It was argued that the respondents did not come to the Court with clean bands inasmuch as it is stated in the plaint that their plots are resi­ dential whereas it is now an admitted position that Sohail Hameed, respon­ dent No. I, has rented out a portion of his property for commercial pur­ poses, that is, a tenant is using it as office premises ; (d) It was submitted that before this matter reached the High Court, there was only an apprehension on the part of the respondents about the running of a marriage hall being a source of inconvenience or nuisance to the neighbours but under orders of the High Court and the Supreme Court, as noticed earlier, various functions have been held in the marriage hall of the applicants but no grievance has been made in the form of any affidavit or application on behalf of the respondents that holding of such functions in fact caused any inconvenience or was in any way a source of nuisance to the respondents. (e) The running of a marriage hall on the plot of the applicants can­ not amount to public nuisance. On the question as to where the High Court will interfere under section 115 CPC, Mr Z. U. Ahmed referred to the decision of a Full Bench of the Lahore High Court reported in the case on Gurdevi v. Muhammad Bakhsh (AIR 1943 Lab. 65) and argued that the powers under section 115 CPC of the High Court are similar to powers of the High Courts to issue writs of certiorari. It was argued that the lower Courts have exercised discretion arbitrarily and as such interference is called for under section 115 CPC. Learned counsel also referred to the following judgments in connection with the powers of the High Court under section 115 CPC to interfere with interlocutary orders :— (i) Feroze Din v. Abdul Hamid (PLD 1969 Lab. 89). (//) Sui Gas Transmission Co. . Sui Gas Employees Union (1977 SCMR 220). (i/i) N. K. Gandhy v. D. P Edulji & Co. Ltd. (PLD 1951 Lab 262). (/») Manager Jammu & Kashmir State Property v. Khuda Yar (PLJ 1976 SC 59). In support of the application for amendment (CMA No. 140/86) and for considering the documentary material filed alongwith the said appli­ cation, it was argued by the learned counsel for the applicants that the amendment application can be made even at the appellate stage and subse­ quent events that is events that have taken place after orders have been passed by the lower Courts can also be taken into consideration by the Revisional Court. Learned counsel cited the following authorities in support of the amendment application : — (i) Zubeda Begum . Wall Muhammad Khan (1974 SCMR 181). (it) Keramat Alt v. Muhammad Yunus (PLD 1963 SC 191). (Hi) Amina Begum v. Ghuhm Dastgir (PLD 1978 SC 220). 4. Opposing the Revision Application Mr. Usman Ghani Rashid, learned counsel for the respondent No 3, agrued that the frame of the suit cannot be questioned at the revisional stage as it was not challenged before the lower Courts and that this plea of Mr. Z. U. Ahmed has also not been taken in the memo of Revision Petition nor even in the amendment appli­ cation. In any case, it was argued that necessary facts have been given in the plaint and it was not necessary under the law to seek a declaration that running of a marriage hall by the applicants on their plot is public nuisance. As regards the plea raised on the basis of Order 1 Rule 8 CPC, it was submitted that the suit filed by the respondents was not a represen­tative suit but the suit was filed by four persons and it is covered by the provisions of section 91 CPC. Wifh reference to the contention that the respondents have not come to the Court with clean hands, it was submitted that the main thrust of the plaintiffs' suit was on the running of the marri­ age hall and that in so far as respondent No. I is concerned, it was not necessary to mention in the plaint that part of his house was being used by a tenant for office purposes. It was submitted by Mr. Usman Ghani Rasbid that there was neither any arbitrariness nor perversity in the ten­ tative findings of the lower Courts and they exercised discretion vested in them by law and the impugned orders are not liable to interference. According to the learned counsel, on the basis of the pleadings and docu­ ments on record, no case of mis-exercise of discretion has been made out to call for interference under section 115 CPC. 5. Mr. Qadir Hussain Sayeed, learned counsel for the respondent No. 4, opposed the request of the applicants that additional documents, which were not filed before the lower Courts, may be allowed to be produced and considered at the revisional stage before this Court. It was submitted that in Revision it is questions of law and not questions of fact which are consi­ dered learned counsel relied upon the following judgments :— (a) Muhammad Nazir v. Abdul Latif [PLJ 1985 SC (AJK) 21]. (b) Kanwal Nain v. Fateh Khan (PLJ 1983 SC 1). It was also argued that the averments in paras 7 to 12 of the plaint made out a case of private nuisance, in addition to public nuisance under section 91 CPC. 6. Respondent No. 1 Sohail Hanaeed, who appeared in person referred to the contents of the plaint and the affidavit in support of the temporary injunction application filed on behalf of the respondents before the learned Senior Civil Judge and the counter-affidavit on behalf of the applicants. According to respondent No. 1, the case of the respondents inter alia was that both the roads on which the plot in question is located are busy roads and during the holding of functions in the marriage ball can will be parked creating congestion and these facts have not been denied in the counteraffidavit filed on behalf of the applicants. It was also submitted that according to the respondents tMe applicants had constructed the marriage hall without any approved plan and this fact has not been denied. Refe­ rence was also made to the case on behalf of the applicants to show that according to the applicants themselves about 500 to 700 people were being invited in the functions on the plot which definitely would cause extreme inconvenience to the neighbours which inconvenience would continue till late at night on each day such function is held. According to Mr. Sobail Hameed, the temporary injunction application was decided on the basis of the record available before the lower Courts and no case of misexercise of discretion has been made out nor is there any allegation in the Revision Application that the impugned orders are arbitrary or fanciful. The amendment application was opposed on the ground that new facts were being pleaded at the revisional stage which could not be done and apparen­ tly the applicants were treating the revision application as a first appeal. The respondent No. 1 relied upon the following judgments :—• (1) K. D. A. v. Taj Muhammad (PLJ 1977 Kar. 102). (2) Fazal Akbar v. Hussain Pari {PLJ 1982 SC 218). (3) Anjuman Jamia Ahli Hadis v, Abdul Qadir (PU 1982 Lab. 103). 7. I would first take up Misc. Application CMA No. 140/86 filed by the applicants. By this application, the applicants sought permission to address various grounds in support of the present Revision Application. which grounds have not been taken in the original memo of the Revision Application, In addition, through this, application, the applicants want this Court to take into consideration various facts and documents, which were not pleaded or placed before the lower Courts. In so far as the additional legal pleas which do not require consideration of any facts or documents, which were not pleaded/produced/piaeed before the lower Courts, 1 find no objection to the grant of the aforesaid application to such extent. In fact, at the time of arguments, I had informed the learned counsel for the applicants that he could raise any of the legal pleas in support of the revision application, although such legal pleas had not been raised before the lower Courts and that such pleas would be considered by me while deciding this revision application. However, I am not inclined to take into consideration such facts or documents, which were not pleaded/placed/produced before the lower Courts. If through oversight any fact was not pleaded or a document was not produced before the trial Court and as such the same was not consider ed by the trial Court, the High Court in a revision application under sec­tion 115 CPC will not normally consider such additional documents and will not normally allow an applicant to raise such factual pleas. However, subsequent to passing of the interim orders by the trial Court under Order 39 Rule 1 or Rule 2 CPC, if new circumstances arise, which require consi­ deration by the Court, the proper course for the aggrieved party is to file an application under Order 39 Rule 4 CPC for discharge or variation of the interim order passed earlier by the trial Court. For compelling reasons or in cases where grave injustice may take place, the High Court may.j even at the stage of revision, take into consideration additional facts and| B documents but the present is not an exceptional case and in the circum-l stances of this case I am not inclined to make an exception in favour of the applicants to allow the applicants to plead new facts and to rely of documents which were not placed before the lower Courts. To the extent that legal pleas are allowed to be raised in support of the Revision Application, CM A No. 140/86 is allowed but the request of the applicants to allow new pleas of facts or consideration of documents, which were not placed before the lower Courts, is not allowed. CMA No. 140/86 is disposed of accordingly. 8. (a) As regards the submission about the frame of the suit inasmuch ai no relief of declaration about public nuisance has been sought in the plaint raised by Mr. Z. U. Ahmed, learned counsel for the applicants, prima facie I am of the view that the suit as framed and filed is maintain­ able. Consent under section 91 CPC has been obtained by the respondents before filing their suit, and facts, which, according to the respondents, amount to public nuisance, have been given in sufficient detail in para­graphs 7 to 11 of the plaint. Then no such plea had been raised by the applicants before the lower Courts. In the circumstances, the suit filed by the respondents does not appear to be non-maintainable, Prima facie the suit for permanent injunction filed by the respondents is maintainable. (b) Mr. Z. U. Ahmed, learned counsel for the applicants, is correct in arguing that for a representative suit filed under Order 1 Rule 8 CPC, per­ mission of the Court is required to maintain such representative suit. However, from a perusal of the plaint it does not appear that the respon­ dents were filing the suit in representative capacity for and on behalf of numerous other persons not made as plaintiffs. Under section 91 CPC, a suit for public nuisance can be instituted by two or more persons after baving obtained the consent in writing of the Advocate-General. In the instant case, consent under section 91 CPC has been obtained by the respon­ dents/plaintiffs. Although the sanction is signed by the Additional Advo­ cate-General and not by the Advocate-General, Mr. Z. TJ. Ahmed had stated that he was not taking up the objection at this stage about the con­ sent not having been signed by the Advocate-General and as such this point has not been considered by me. It is, however, open to the applicants to take up this plea before the Trial Court. Prima facie the suit filed by the four respondents after baving obtained the consent under section 91 CPC is maintainable. The judgments cited by the learned counsel for the applicants on the maintainability of the suit under Order 1 Rule 8 CPC are, therefore, not relevant. (c) As regards the plea raised by the learned counsel for the applicants that the respondents had not come to the Court with clean hands inasmuch as it is stated by the respondents in the plaint that their plots, adjacent to or in the vicinity of the applicants'plot, are residential, whereas it is now an admitted position that respondent No. 1 Sohail Haraeed has rented out a portion of his property for commercial purposes to a tenant, who is running an office there. The fact that all the plots of the applicants as well as the respondents are residential is admitted. Nothing has been placed on record to show that any of the five plots has been converted into a commercial plot. If a portion of the property of respondent No. I Sohail Ahmad has been rented out to a tenant who is running it as an office, the said plot of respondent No. i does not stand converted into a commercial plot. In my view, failure to mention the fact that a part of B |the property of respondent No. 1 had been rented out to a tenant for running an office did not disentitle the respondents to claim interim relief! from the trial Court, (d) The next contention of Mr. Z U. Ahmad was that after functions bad been held on the plot of the applicants under specific orders/permission from the High Court and the Supreme Court, no grievance was made by any of the respondents through any application or affidavit filed in the present Revision Appplication that holding of such functions did in fact cause any inconvenience or nuisance to any of the respondents. On this ground, the orders of the louver Courts are not liable to be set aside in this Revision Application under section 115CPC. The lower Courts have decided the interim application on the basis of the pleadings and documents on record. If subsequent to the passing of such orders certain events have taken place and the applicants fesl that such events and consequences resulting from occurrences of such events have a bearing on tbe grant of interim order in favour of the respondents, the proper course for the applicants was to move the trial Court by an application under Order 39 Rule 4 CPC. Non-filing of affidavits by the respondents in this Revision Application after several functions had been he!d in the Marriage-Hall of the applicanis under orders,permission of the High Court and the Supreme Court does not make out any case for the grant of this Revision Application. (e) It had been argued that the running of Marriage-Hail on the plot of the applicants cannot amount to public nuisance, !t was argued by the learned counsel for the applicants that in Civil Procedure Code "public nuisance" is not defined, but according to section 3(44) of the General Clauses Act, "public nuisance" means a public nuisance as defined in Pakistan Penal Code and section 268 of the Pakistan Penal Code defines public nuisance and being penal in nature, definition of public nuisance is to be construed strictly. Reference was also made to the Interpretation of Statutes by Maxwall-Tenth Edition ( 1953) at pages 264 and 265. It was also argued that factually also running of a Marriage-Hal! by the applicants could not possibly be a source of inconvenience or cause public nuisance. It was also argued that marriage is a solemn occasion and in a marriage function there could not possibly be any element hostile to decency and that relations and friends of parties and their guests normilly display their best of manners on such occasions. Reasons which prompted the learned Senior Civil Judge, who passed order of status quo on the interim application moved by the respondents, are given in his order dated 12-1-1985 and the relevant part of the said order has been reproduced earlier in this judgment. On the basis of the pleadings and record, the learned Senior Civil Judge noted the following points : — (i) The plot of the applicants is residential ; (ii) The applicants have not stated that they had obtained approved plan from the Building Control Authority for constructing a Marriage-hall or commercial building on their plot ; (;'//) Applicant,, iheroselvei had stated that they had only applied to the authorities for conversion of the plot from residential to com­ mercial ; (/v) Marriage-hall constructed by the applicants is situated in a residential area and not in commercial area ; (v) There is no marriage-hall in that locality ; (v/) It was observed by the learned Senior Civil Judge that it is a matter of common sense that marriage halls where marriage functions are being held, huge crowd of ladies and gents of every category come there ; (v/i) There is problem of car parking which is source of nuisance for the inhabitants." The Appellate Court by its order dated 2-2-1985 rejected the Miscel­ laneous Appeal filed by the applicants and additionally it was observed that functions in the marriage-hall go till late hours in night and there is always rush of the people in marriage-hail and it also creates traffic problems as vehicles are parked outside the marriage-hall and all the respondents are living in the vicinity of the plot in question which is basically a residen­ tial area, and in case unauthorized marriage-hall is allowed to function, it will cause common injury and annoyance to the public particularly respondents, who are living in the vicinity of the marriage-hall. After perusal of the two orders passed by the learned lower Courts it does not appear that the lower Courts have exercised jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested in them or have exercised their jurisdiction illegally or with material irregularity. The orders also do not appear to be perverse or arbitrary to call for any interference under section 115 CPC. It is not an exceptional case where nspite of there being no misexercise of jurisdiction or discretion by the ower Courts and the impugned orders also not found to be perverse or orbitrary, this Court will interfere under section 115 CPC. 9. From a perusal of the order dajed 12-1-1985 of the learned Senior Civil Judge, it is found that he has ordered for maintenance of status quo. The main grievance of the respondents has been against running of the marriage-hall and holding of functions therein by the applicants, The status quo order is accordingly substituted by an interim order restraining the applicants, till the disposal of the suit from running the marriage-hall on their plot bearing No. 139-S/2, PECH Society, Sir Sayad Road, Karachi. Subject to the aforesaid modification, Revision Application No. 29/85 is dismissed but with no order as to costs. In the circumstances of the case, however, a direction is given to ths trial Court that the suit filed by the respondents be disposed of finally by 31-12-1986. (TQM) Order accordingly.

PLJ 1987 Karachi 385 PLJ 1987 Karachi 385 Present : saleem akhtar, J Msl. ANWAR FATIMA and 5 Others—Appellants Versus MUHAMMAD All MUTLAQ-Respondent First Rent Appeal No. 278 of 1985, accepted on 1-12-1985 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 16 & 21—Deposit of rent—Order of — Non-compliance of — No deposit of rent for months of November, December and January made by tenant — Held : Tenant having clearly de­ faulted in not complying with order for deposit of rent, .his defence to be struck off (by allowing appeal in case). [P. 390]C (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— ——Ss. 16 (2) & 21—Striking off defence—Application for—Dismissal of—Appeal against — Competency of — Held : Order dismissing application for striking off defence being final, appeal against same to be maintainable. [P, 390]B (iii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959) ——Ss, 13 (6) & 15—Striking off defence—Refusal of—Appeal against —Competency of—Held : Order refusing to strike off defence under S. 13 (6) of Ordinance to be final and as such appealable. [P. 390JA, Mr, Maqbool Baqir, Advocate for Appellants. Mr. S. Inayat All, Advocate for Respondent, Dates of hearing : 17 & 18-i 1-1985. JUDGMINT The predecessor-in-interest of the appellants filed application for ejectment against the respondents under Section 15 of the Sind Rented Premises Ordinance 1979 in respect of premises on plot No. 43 situated in Malir Township, Kala Board, Malir, Karachi which was rented out to the respondent under an agreement dated 13-9-1966 on a monthly rent of Rs. 512. The main ground for ejectment was that the respondent has committed default in payment of rent from November 1979 to February 1980. The respondent in his written statement admited the tenancy and rate of rent but denied that any default has been committed. His plea was that rent from November 1979 to January 1980 was paid but no receipt was issued to him and the rent for February 19^0 was remitted by money order on 3-3-1980 which was refused and thereafter from April 1980 he started depositing rent in Court in Miscellaneous Case No, 1159 of 1980. On 26-4-1980 the deceased landlord filed an application under Section 16(1) of the Ordinance seeking direction to the respondent to deposit the arrears of rent and also the future rent in court. The learned Controller by his order dated 24-5-1981 directed the respondent to deposit the arrears of rent from November 1979 to January 1980 amounting to Rs. 1,536 in court on or before 15th July 1981 and to continue payment of future monthly rent in court on or before 10th of each month. Oa 23-11-1981 the deceased landlord filed an application under section 16(2) of the Ordinance for striking off the offence of the respondent as he had not complied with the order dated 24-5-1981. The report of the Nazir confirmed that the respondent had not deposited arrears of rent for the months of November. December 1979 and January 1980. Consequently, by order dated 18-3-1982 the defence of the respondent was struck off. The respondent filed an appeal against the said order and by judgment dated 30th October 1984 the said order was sctaside and the case was remanded to the Controller for first deciding the question whether the ejectment application was competent under the Sind Rented Premises Ordinance 1979 and further direction was given that if finding was in the affirmative the Controller should decide the application under Section 16(2) dated 23-11-1981. After the remand the learned Controller recorded the evidence of the appellant. The respondent however did not file his affidavit of evidence. The learned Controller after hear­ ing the parties by order dated 20.1.1985 held that the ejectment application was competent and he had jurisdiction in the matter, There­ after application under Section 16(2) was taken up for consideration to which the respondent had filed his objection. The learned Con­ troller by the impugned order dated 3-3-1982 dismissed the application. Mr. Syed Inayat Ali, the learned counsel for the respondent, has raised a preliminary objection that as the order dismissing the application under Section 16(2) is an interim and interlocutory order no appeal lies under Section 21 of the Sind Rented Premises Ordinance 1979 which reads as follows : 'Any party aggrieved by an order, not being an interim order, made by the Controller may within thirty days of such order, prefer an appeal to the High Court.' The learned counsel for the respondent has relied on Anwar Hussain v. Kaniz Abbas and others 1982 CLC 2282 where it was held that order passed by the Controller under Section 16(1) for deposit of rent was an interim order and appeal against that order is not maintainable; it was further held that there was no substantial difference between Section 13(0) of the previous Ordinance of 1959 and Section 16(1) of the present Ordinance of 1979 The next case cited by the learned counsel for the respondent is Syed Intesar Ali v. Ahmad Din and others 1983 CLC 998. In this case the appellant had challenged the order whereby his side was closed by the Controller as he had not filed the affidavit of his witnesses. It was held that the impugned order was in the nature of interim order and therefore appeal did not lie- In Sultan Ahmed v. Senior Civil Judge II Rent Controller and others 1984 CLC 101 where the appellant had challenged the order of the Controller setting aside the order of dismissal of the ejectment application and restoring the same for hearing, it was held that appeal against such interlocutory order did not lie. It was observed that the object is to avoid appeal on fragmentary decisions which delay the determination of main controversy, In such cases the parties should wait till the final order is passed and then file an appeal challenging both the orders. For this observation reliance was placed on PLJ 1978 SC 267 and PLD 1983 Kar. 21 (sic). In this regard reference can also be made to a judgment reported in 1982 CLC 1436 (Wohid Bakhsh v. Chulam Muhammad Baloch) where it was held that interim or interlocutory order means not a decision of the cause but the determination of an intervening matter to the cause. It was held that an order for setting aside for exparte order thereof an order of restoration of possession are interim orders and •re not appealable. From the cases cited by the learned counsel for the respondent it is clear that none of them relate to an order passed rejecting application under Section 16(2) for striking off the defence for non.compliance of order of deposit of rent. The orders considered in these cases were order for deposit of rent, order setting aside the exparte order of dismissal or closing the side. Such orders are in the nature of interim order as they do not in any manner relate or decide the main controversy or dispute between the parties. Mr. Baqir Advocate for the appellant No. 2 has ably argued that the order rejecting the application for striking off the defence has been held to be a final order as it finally concludes the controversy and therefore it is not an order in the nature of an interim or interlocutory order and appeal is maintainable. In this regard the learned counsel has referred to Abdul Hamid and others . Hafiz Abdullah PLD 1969 Kar. 82.where the Division Bench consisting of Justice A.S. Faruqui and Justice Dorab Patei observed as follows": — ....................................... 'We are however of the opinion that this order under section 13(6) would have concluded the proceedings because subsection (6) of section 13 provides that the defence, in the circumstances narrated in that section, shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. So it would appear that the order of the Controller refusing to strike out the defence was a final order in so far its impact on the proceedings was concerned.' In Rana Zahid Alt Khan and five others v. Ehsan E/ahee PLD !977 Lah. 538 while considering the provisions of section (3(6) of West Pakistan Urban Rent Restriction Ordinance 1939 with particular reference to question whether order granting or rejecting application for striking off defence under section 13(6) is an interlocutory order it was held as • follows :— In these circumstances two types of cases can be within the contemplation of the legislative. One is a case where in view of the default committed by the tenant in complying with the order of the Rent Controller, the Rent Controller directs the striking °ff the defence and the consequent ejectment of tenant The other alternative is that the Rent Controller after coming to an erro­neous conclusion that the tenant has not been in default within the meaning of that term as explained in Ghulam Muhammad Lundkhor v. Safdar AH PLD 1967 SC 530 where it was held that the most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is no way responsible, refuses to strike off the tenant's defence. For all practical purposes this type of order will be akin and analogous to an order dismissing the application of a landlord under Section 13. This type of order will be an order virtually dismissing the application to strike off the defence. For the purposes of finality , therefore, do distinc­ tion can be made between these two types of orders which can be passed to the Rent Controller even under Section 13(6) irrespective of whether it be an order of striking off the defence and ejecting the tenant or of refusing to pass such an order. The order falling in the second category cannot be treated to be an interlocutory order for the simple reason that if a different view on merits be taken in the appellate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment. The finality of order under Section 13(6) should be judged from the point of view whether the appellate Court by reversing the finding of the Rent Controller can pass a final order terminating the proceedings of ejectment pending before the Rent Controller. I have no manner of doubt left that the order refusing to pass an order of ejectment by striking off the defence should be considered as a final order which will give a right to the landlord to file an appeal against it. The learned counsel for the appellant also relied on Mst. Fatima Bai v. Fatima Begum PLD 1977 Kar. 1007 where referring to PLD 1969 Kar. 82 and PLD 1965 Lab. 179 it was observed as follows :— "No decision to the contrary was brought to my notice by either counsel. The matter lies within a narrow compass in view of the principles laid down by the Supreme Court in Ibrahim's case referred to above. • In the case of preliminary issue regarding the relationship of landlord and tenant the matter is obviously collateral and incidental to the main dispute whether the tenant is liable to be ejected and in the case of an order under the first part of subsection (6) of section 13 fixing the rate of tentative rent and the amount of arrears, the matter is obviously of a provi­ sional nature and therefore interlocutory in character. Such cases are not therefore envisaged to form the subject matter of appeal. However, the question arising at the stage where violation of the tentative order under section 13(6) is alleged and denied, the position is entirely different. In such case the statute provides that in case of non-compliance with the order passed for deposit of rent provisionally fixed, th; defence of the tenant is liable to be struck off and the landlord put into possession of the property without taking any further proceedings in the case. Thus section 13 envisages the making of an order of eviction either on merits provided the tenant continuous to comply with the tentative order or under subsection (6) of section 13 by a summary procedure in case of default in compliance of the tenta­ tive order. Obviously therefore the question of non-compliance of the order under subsection (6) of section 13 is a question germane to the dispute whether the tenant is liable to be evicted. Such order from its nature if correctly passed may result in the decision of the entire controversy and may terminate the pro­ ceedings so far as the Controller is concerned. It therefore follows that such an order is a final order and an appeal to challenge its correctness would lie under section 15(3) of the Ordinance. In Muhammrd Oomar v. Dr. Amina Ashraf(PLD 1977 Kar. 305) a learned single Judge of this Court held that an order passed by the Controller to substitute the purchaser of the building in dispute pending decision of the ejectment application, was neither interlocutory nor determinative of a matter merely incidental or collateral to the dispute and as such was appealable, A learned single Judge of the Lahore High Court construed the provisions of section 15(1) of the Ordinance in Zahid Aii v. Ehsan Elahi (PLD 19 7 Lah 538) in relation to this specific point and came to the conclusion that the order refusing to strike off defence appealable for the simple reason that if a different view on merits be taken by the appeallate Court, it may be in a position to pass an order of striking off the defence of the tenant and directing his ejectment," In this judgment, following the aforestated judgments the order dismissing application for striking off defence was held to be a final order appealable under Section 15(1) of the West Pakistan Urban Rent Restriction Ordi­ nance. The learned counsel for the appellant referred to Hayat All v. Miss Aziza Mahmood (1980 SCMR 298) where similar question as in the previous judgment was considered and the view expressed in Rana Zahid Alt Khan v. Fatima Bai's cases was approved and it was observed as follows :— "In seeking leave to appeal the learned counsel for the peti­ tioner contends that the impugned order of the Rent Controller is not determinative in the sense that it finally decides the con­ troversy. This necessarily involves the consideration as to the nature and scope of the order passed under the second part of the subsection keeping in view the meaning of the word 'default occurring thetein. As held in Ghulam Muhammad Khan Londkhor v. Safdar All (PLD 1967 SC 530) in every case of non-compliance the question arises as to whether the default is avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows that is, the striking ofifthc defence. Again, if the default is unavoidable then the non-compliance is excusable in which case the Rent Controller can condone the non-performance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explana­tion resting on facts and in a given case his decision might be erroneous. If he holds against the tenant, the order, beyond doubt, is final as it leads to his ejectment. As such this order is appealable, and again it is for the appellate Court to judge as to whether the Rent Controller was right in holding that the tenant was guilty of default; and if he is not so held, he is absolved of the consequence of default. Vice versa if the Rent Controller decides against the landlord, can it then be said that such an order is not appsalable howsvsr erroneous it may b; as it does not conclude the proceedings? This would mean putting a pre­ mium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate Court might come to a contrary conclusion and hold the d;fault to have been proved, in which case his defence will be struck off. In either case there has to be an application of mind to the question of default which culminates in the passing of an order for the striking off the defence or the condonation of the non compliance. The former leads to the ejectment of the tenant while the latter condones the default. But what is pivotal is that it concludes the controversy presented by the second part of the subsection. Accordingly, both the orders are to be treated at par in determining their nature, for, if they are reviewed in appeal, vice versa conclusion can follow which gives to it finality. On this view of the matter the High Court was correct in holding that the appeal was competent on the view taken in Zahid AH Khan v. Ehsan Elahi and Mxt, Fatima Bai v. Fatima Begum which we approve," These authorities have directly dealt with the question involved in this [appeal and it now well settled that the order refusing to strike off defence Alunder Section 13(6) of Urban Rent Restriction Ordinance is a final order land is appealable. Mr. Syed Inayat All the learned counsel for the respondent has con­ tended that section 15 of Urban Rent Restriction Ordinance 1959 is com­ pletely different from section 21 of the Sind Rented Premises Ordinance as it specifically bars appeal against an interolocutory order. It is true that Section 15 does not in clear terms specifically bar an appeal against an interim or interlocutory order but as is obvious from the aforestated authorities that the courts are of the view that only such orders are appeal­ able which are final and germane to the main controversy between the parties. Section 21 of Sind Rented Premises Ordinance specifically provides that no appeal lies against an interlocutory order. The question therefore arises whether an order dismissing an application under Section 16(2) of Sind Rented Premises Ordinance 1979 refusing to strike off the defence is appealable. The aforestated authorities have held that an order refusing to strike off defence is a final order. '"•• learned counsel for the respondent contended that words 'interim order' means an order which does not finally disposes off the proceeding and some thing is left to be done. According to the learned counsel after the dismissal of application under Section 16(2) the case is not finally disposed of and further pro­ ceedings are to be taken. As stated above the Supreme Court has not I termed an order refusing to strike off defence as an interim or interlocutory order. The consensus is that an order dismissing an application for striking off defence is a final order. The appeal is therefore maintainable. Now coming to the merits it seems that the learned Controller has dismissed the application under Section 16(2) of the Ordinance mainly on the ground that the appellant had complained of the default in depositing the rent for the month of October 1981 and as the respondent had pro­ duced a receipt dated 11-5-1981 showing deposit of rent from July to December 1981 no default has been committed. According to the learned counsel for the appellant the learned Controller has misread the applica­ tion and has completely ignored the facts stated in the application. In paragraph 2 of the application it was alleged that the respondent has committed default and not complied with the order passed by the Court. In paragraph 3 allegation of default was made specifically in respect of the month of October 1981 stating that it was deposited" on 19-11-1981. The learned Controller therefore has not correctly examined the application when he says that the complaint was made only in respect of deposit of rent for the month of October 1981, Pursuance to this application the report of the Nazir was called from which it is clear that no deposit has been made for the months of November and December 1979 and January 1980. The receipts produced by the respondent do not relate to the rent for these three months. No other evidence has been produced to show that the rent for these months was deposited, In these circum­ stances the respondent has clearly default and has not complied with the order for deposit of rent. The defence of the respondent is struck off and the appeal is allowed. The respondent is directed to vacate the disputed premises and hand over vacant possess ion to the appellant within four months. (MIQ) Appeal allowed.

PLJ 1987 Karachi 391 PLJ 1987 Karachi 391 Present : mamoon k.azj, J Syed IRFAN ALI and Another-Applicants versus ALI AHMAD—Respondent Civil Revision Application No. 232 of 1985, accepted on 12-11-1986 Civil Procedure Code, 1908 (V of 1908)

O. XXI, R. 10 and Ss. 115 & 151-Decree — Execution of—Appli­ cation for—Record-Loss of—Effect of—File of suit got lost in case —Held : Attempt to be made by court to first reconstruct record of original suit—Executing court, on other hand, passing order on execution application without there being any decree on record- Appellate court also upholding order of civil court without taking proper steps for reconstruction of record—Held : Subordinate courts clearly fell into error in proceeding in haste without making any attempt to first reconstruct record. [Pp. 392 & 39JJA & B PLD 1971 BJ 19 ; AIR 1915 Mad. 407 & AIR 1915 Mad. 1038 ref. Mr. M. Shah, Advocate for Applicant. Mr. Muhammad Yasin Azad, Advocate for Respondent. Date of hearing : 12-11 1986. judgment This revision application is directed against the appellate judgment passed by the learned First Additional District Judge (West), Karachi dated 11-11-1985, upholding the order passed by the learned Civil Judge, Karachi dated, 22-7-1984. 2. The facts of the case, briefly, are that a suit No. 1951/71 was filed by the respondent against the appellants for specific performance and recovery of Rs. 7,252/- and also mandatory injunction. This suit was decided against the appellants, and as is alleged by the respondent, a decree had also been prepared by the learned Judge. It so happened, thereafter, that the file of the aforesaid suit got lost. However the respon­ dent filed an execution application before the learned Civil Judge for the execution of the decree. The appellants filed objections which were dismissed by the learned Civil Judge vide order dated 22-7-1984 and the execution of the decree was ordered. 3. Being aggrieved by this order the appellants preferred an appeal before the District Court; inter alia, contending that since the record of the original side Court had been lost, there was neither the judgment nor the decree in existence, on the basis of which execution could be sought by the respondent. The learned Appellate Court however, brushed aside the objections and decided the appeal against the applicants, holding, that since the objection had not been originally taken by the applicants before the executing Court, the same could not be taken before the appellate Court, and hence this revision. 4. 1 have heard Mr. M. Shah, learned counsel for the applicant and Mr. Muhammad Yasin Azad learned counsel for the respondent. 5. The contention of Mr. M. Shah before this Court has been that the order passed by the learned Civil Court was a nullity in law since the same was based neither on the judgment nor the decree, since the record of the case has been lost. Reliance has been placed by the learned counsel on the case of Mst. Khudija Begum v. The State (PLD 1971 Baghdad-ul- Jadid 19). In this case the judicial record of the case before the subordi­ nate Court has got lost and M. A. Zullah, J. (as he then was) while hearing the appeal, made the following observations : — "The principle thus is found to have been established in our system of law and in almost every other system of jurisprudence, that the reconstruction of lost record is within the inherent power of the authority of Court, concerned with that record, in original, appellate or supervisory capacity. Therefore, I repel the extreme contention of the learned counsel for the State that reconstruction of record is, in no case, permissible by law." The learned Judge after referring to the relevant provisions of the West Pakistan High Court Rules further held that whenever judicial record or file etc. is found to have been seriously damaged, tempered with, destroyed, lost or mislead, every effort should be made to replace the missing or damaged papers from all available sources. Similar view also appears to have found favour with the Madras High Court in Venkatamma v. Madikkam Nayani Varu and others (AIR 1915 Madras 407) as it was held therein that the Court has inherent power to construct records which have disappeared from its custody and the documents lost could be re-construc­ ted on the evidence and affidavits adduced and filed by the parties. In another case decided by the Madras High Court and reported as AIR 1913 Mad 1038, the learned Judge who gave the Judgment, went to the extent of holding that the Additional Sessions Judge, under such circumstances, could re-write the judgment from memory. 6. There appears to be lot of force in Mr. Shah's contention. As is indicated by the facts of the instant there is no judgment or decree on record of the case, therefore, when the execution application was filed before the learned Civil Judge, despite the fact that the objection had not been specifically taken by the applicants before the learned Civil Judge, notice should still hav; been taken by the learned Judge himself and an attempt should have been first made by him to re-construct the record of the original suit. But as the facts indicate, he failed to act accordingly and proceeded to pass order on the execution application, without there being any decree on the record. However, when the appellant filed appeal in the case the facts were brought to the notice of thi appellate Court, but the appellate Court, it ssems, failed to take notice and instead upheld the order passed by the learned Civil Judge. I think, atleast the appellate Court should have taken proper steps fjr re-constructioa of the record. 7. Mr. M. Shah has also drawn my attention to the evidence which was recorded at the enquiry held by Mr. Mehmood Ahmed S. Chandio, Assistant Sessions Judge, Karachi after the suit file had been misplaced. One of the clerks of the Court, namely Pir Bux Bhatti, who appears to have given evidence at the enquiry, has stated that no decree in the suit till then had been prepared. If what has been stated by him is correct, llhen how could the execution of the decree be ordered, is yet to be explain- BJed, However, I am definitely of the view that the subordinate Courts [have proceeded in haste, without making any uttempt first to re-construct the record, and, therefore, both the learned Courts clearly have fallen into error. 8. I am, therefore, of the view, that attempt should first be made to re-construct the record and if such efforts have failed and the same cannot be made available then, as was held in Madras case, the record should be reconstructed on the basis of evidence on the point which may be recorded by the trial Court. 9. For the aforesaid reasons, I set aside both the impugned orders and remand the case to the trial Court for proceeding in the matter accordingly. The trial Court is further advised to dispose of the case expeditiously, and if possible, within two months from the date or this judgment. In view of the points raised, there will be no order as to costs (SHR) Petition accepted.

PLJ 1987 Karachi 393 PLJ 1987 Karachi 393 Present: abdul razak A. thahim, J ZAINAB BAI deceased through her legal heirs—Appellants versus SHAFIUDDIN-Respondent First Rent Appeal No. 114 of 1984, allowed on 27-11-1986 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 5, 6 & 15—Lease agreement—Expiry of—Effect of—No fresh deed executed between parties after expiry of lease agreement— Held : Rights and liabilities of tenant to be governed by provisions of law regulating ejectment of tenant after expiry of agreement. [P. 39b]A PLJ 1985 SC 174 rel. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 (2) (iv) & 21—Material value and utility of premises— Impairment of—Material value or utility of premises not shown to have been affected by acts of appellant by getting any engineer or expert examined in case—Held : Minor alterations having not changed value or utility of premises, eviction order passed by Rent Controller to be set aside. [Pp. 393 & 396]fl & C Sh. A. Aziz, Advocate for Appellants. Agha Faqir Muhammad, Advocate for Respondent. Date of hearing : 27-ll-198'6. judgment Rent Case No. 3206/1982 was filed by landlord/Shafiuddin under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) on the ground of default in payment of rent and infringement in the conditions of the agreement, It is stated that respondent has raised the front wall of the front side gallery and shifted gyser from the bath room to terrace without the consent of the respondent. It is also alleged that driver of the tenant is using the garrage as his residence. 2. Appellant, in her written statement, denied the default and stated that various amenities including the terrace, gallery and the gyser, and garrage facility have been continuously used by the appellant for several years with the consent, approval and knowledge of the respondent and there is no question of any unauthorised use or alteration of the premises as alleged. 3. Respondent/landlord, examined himself and corroborated the contents of bis written statement and stated that appellant raised the front wall of the front side gallery and shifted the gyser from the bath room to the terrace and extended gas line upto the terrace without his consent when he was out of country and on return to Karachi he asked the appellant as well as her son A.K.. Soomar to bring the front wall of the front gallery to its original position and shift the gyser from the terrace to bath room and use garbage for car parking only. On which they omised that front wall of the front side gallery is to be brought to its original position and gyser would be shifted to the bath room and garrage would be used for car parking only but he found that this promise was not fulfilled there­ fore a legal notice was sent. He has also stated that he did not receive the rent from June till the filing of the case. 4. On behalf of the appellant her son and attorney Muhmmad Umar were examined. He has taken the same stand as in the written statement. He stated that due to small wall of about one feet high and a small iron grill of about 2% feet high in the entire gallery lounge measuring 14 feet long, the house was fully exposed from the opposite house, and from the road no purdah could be maintained for the women folk and it was also dangerous for the small children, as such with consent of the respondent the wall was raised to about 3 feet more on the same gate few months after the letting out of the premises. He has also stated that gyser was originally installed in one of the bath room which is smill in size as such the entire bath room got suffocated and chocky due to running of gyser. His mother being an old lady of about 80 years could not bear the suffocation as such with the consent of the respondent the gyser was removed from the bath room to the terrace about 12 years ago. He stated that his mother is a heart patient and these amenities were being continuously used for about 12 years with the consent, approval and the knowledge of the respondent. It is stated that constructing of wall or shifting of gyser have not impaired the material value and utility of the pnmises but rather enhanced it, He has denied the default. 5. The Rent Controller, on the pleadings of the parties, framed the following three issues :— "(1) Whether the appellant has infringed the terms and conditions of the tenancy ? (2) Whether the appellant raised front wall of gallery shifted gyser and gas line the terrace and put the garrage to residential use, if yes, what effect ? (3) Whether appellant committed default in payment of rent ?. 6, The findings of the Rent Controller on the default the payment of rent arc against the respondent. He has stated that no default has been committed. This has not been challenged. Now only question remains whether appellant has infringed the conditions on which the premises were let out cr committed such acts as are likely to impair the material value or utility of the premises. 7. I have beard Mr. Shaikh A. Aziz and Mr. Agha Fakir Muhammad Advocates 8, It is contended by Mr. Shaikh Aziz that agreement which was executed in November, 1969, was for two years and it has not been renewed therefore, the conditions of the agreement are not binding on the appellant. He has submitted that this rent case was filed with mala fide as from the record it is clear that no default was committed mspite of that this ground was shown in the rent application. It is argued that in the evidence it has been admitted that if enhanced rent is paid, the respondent is prepared to accept. It is contended that these minor changes were made with the consent of the respondent since 10-12-years. On this he has referred to the cases reported in PLD 1979 Kar 579, 1982 CLC 42 and 1982 SCMR 33. He has also referred to the cases reported in NLR 1984 Ci\il6s-9, 1984 CLC 1073 and PLD 1983 Kar. 162 and stated that these changes have not material!) affected the demised premises. The contention of Mr. Agha Fakir Muhammad is that appellant has violated the conditions and the structure of the building has been changed and no such permission was granted by the respondent to shift the gyser or construct the wall on the gallery, It is also argued that garrage is being used as a residential accommodation. He has not cited any case law in support of his contention. 9 The admitted position is that the lease agreement has expired and no fresh agreement has been executed between the parties, therefore, in view of case of Abdul Satiar v. Muhammad Afzal and others reported ir PLJ 1985 SC 194, after the expirv of agreement rights and liabilities of tenant are governed by the provisions of the law which regulate in terras as to an ejectment. In this context I refer to section 15 (2) (iv) which! reads as under :— " i 5 (2) (iv). If tenant has committed such acts as likely to impair the material value or utility of the premises On this point there is only oral evidence of both the parties. Respon­ dent Shafiuddin, landlord, has not examined any engineer or expert t< show that by the acts of appellant the material value or utility of the premises has been affected. 10. The contention of appellant is that verbal permission was granted. In case of Naeem Metal and Plastic Works and others v. Azra Vaqar reported in 1984 CLC 1073, it has been held at page 1075 as under : — " ...................... The learned Rent Controller had simply referred to alterations and additions admitted by the same must have materially impaired the value of the building. The evidence on this point if only of Vaqar Ahmed (Exh. 7) husband of the appellant who had simply stated that some alteration etc. have been made by the appellant io the building, but he does not state that these alterations etc. have in any way reduced the value of the building. The findina of the learned Rent Controller cannot, therefore, upheld as it is based on no evidence on this issue." The Rent Controller in his order has stated that loss, of easement is a material impairment of material utility which diminish the rental value of the apartment. I am not inclined to agree with this. He has not given the reason how these minor alterations have impaired the value of utility of the premises. In case of Muhammad Mirza v. Muhammad Hussain Ghani reported in PLD 1983 Kar. 162, it has been held that by removing of an old door and replacing it with a new door and lintel above it, no impairing of the value and utility of the building could be conceived. In the same case the definition of word "Impair" has been taken from the Ballentines Law Dictionary (3rd End. 584) as under :— "To make worse to diminish in quality, value, excellence or strength, to deteriorate." And finally held that for the purpose of coming to the decision whether the value and utility has been impaired the entire aspect of the so called changes has to be considered. 11. For the reasons stated above., I am of the view that this change [has not impaired the material value or utility of the premises as such the Hiviction order of the Rent Controller dated 13-3-1983 is set aside and (appeal is allowed with no order as costs. (SHR) Appeal allowed.

PLJ 1987 Karachi 396 PLJ 1987 Karachi 396 [Sukkur Bench) Present : ahmad Au U. qureshi, J PARTAB RAI and Another—Appellants versus KABIR KHAN-Respondent FRA No. 31 of 1986, allowed on 16-10-1986 (i) Siod Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 14—Vacant possession — Delivery of — Application for — Dis­ qualification for—Respondent admittedly renting out another shop after attaining age of 60 years us well as after acquiring rigbt as landlord—Held : Respondent not to be qualified to invoke summary procedure of S. 14 of Ordinance. [P. 4dO]B (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 14-Vacant possession—Delivery of — No unfettered right give to every person (who has attained age of 60 years or has pretire or is widow or orphan) to seek eviction under S. 14 of Ordinance— Held : Disqualifications prescribed in section itself to make certain persons ineligible for seeking eviction under S. 14 of Ordinance. [P. 398]A (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 14 — Proviso—Vacant possession—-Delivery of—Summary pro­ cedure for—Disqualification for — Held : Disqualification incurred under proviso to be kept alive even if incurred before promul­ gation of Ordinance, [P, 400JC Mr. Wohid Bakhsh Baloch, Advocat^ for Appellants, Mr. Fdrkhand AH, Advocate for Respondent. Date of hearing : 22-9-1986. JUDOMHNT This First Rent Appeal is directed against the order of Senior Civil Judge and Rent Controller Jacobabad dated 3-5-1986 in Rent Application No. 27.19&4. I have heard the learned counsel for the parties and also perused the record and proceedings of the case. The brief facts leading to this appeal are that respondent owns pro­ perty bearing C. S. No. 833 Ward No. 5 Jacobabad which comprises of two shops on the ground floor and one residential house on the first floor. The appellants are tenants of one of the shops. The respondent, who has attained the age of 60 years, moved application for eviction of the appellants under section 14 of Sind Rented Premises Ordinance (hereinafter called the Ordinance) on the ground that he required the same for his personal use. He served notice upon the appellants as required under subsection (1) of section 14 of the Ordinance but the appellants did not vacate the premises. Thc-appellants resisted the application on the grounds, that it was not maintainable and that the respondent had attained the age of 60 years prior to becoming the landlord of the premises and, therefore, was not entitled to invoke section 14 of the Ordinance. On the pleadings of the parties the learned Rent Controller framed the following issues. (1) Whether the application is not maintainable in law ? (2) Whether this Court .as no jurisdiction to entertain this appli­ cation ? (3) Whether the disputed shop is required by the applicant for his personal need ? Deciding these issues in favour of the respondent, the Rent Controller ordered eviction of the appellants vide the impugned judgment. The only ground urged before this Court in appeal is, that the respondent was not qualified to invoke section 14 of Ordinance. The main contention of the learned counsel is that the respondent had attained the age of 6U years prior to the date when the rights of landlord with respect to the demised premises devolved upon him. It is an admitted fact that the respondent was born in 190-J. Therefore, he would attain the age of 60 years in 196,, It is also admitted, that the respondent acquired the rights as landlord over the premises in question in 1973 by inheritance due to the death of his son Zakir Ali and his wife. To appreciate the questions involved in this crmention and the arguments of the parties, it is necessary to reproduce relevant part of section 14 of the Ordinance which reads as under :— "14. Delivery of vacant possession.—(I) Notwithstanding any­thing contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may. by notice in writing inform the tenant that be or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof : - Provided that nothing in this sub-section shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefit of sub-section (1) if he is in occupation of a building owned by him in any locality. It will be seen that this section does not give unfettered rights to every person, who has attained the age of 60 years or has retired or is widow or orphan to seek eviction under seetion 14. In the section itself, certain disqualifications are prescribed making certain persons ineligible for seeking eviction under section 14. As for the condition in subsection (1) that landlord shall serve notice upon the tenant, admittedly the notice has been served upon the appellants in this case. It is also not contended that the respondents have any other building in their occupation in the locality. Therefore, the disqualification contained in subsection (2) would not be applicable to the present case. However, the provision relevant for the disposal of this appeal would be proviso to sub-section (1) of section 14. It may be pointed that this proviso has been inserted by Sind Rented Premises (Second Amendment) Ordinance, 1980 by substituting it for the originally enacted proviso which provided as under : — Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, has become widow or orphan. It will be seen that under the previous proviso certain period was fixed within wihich the landlord had to file application after he acquired the qualification under subsection (1). This limitation has now been taken away by substitution of new proviso and only condition imposed is, that the landlord should not have rented the building after he has attained age of 60 years, The contention that the landlord should be the landlord of the premises at the time when he attained the age of 60 years does not appear to be borne out from the reading of this section. The require­ ment of the section is that such person should be a landlord at the time when he institutes proceedings of eviction. The learned counsel has relied upon 1983 CLC 317. In that case a widow had applied for eviction of tenant under section 24. It was contended by the tenant, that landlady should have owned the building before she became widow. This argument was rejected by learned Single Judge of this Court, who held that -widow: on the death of her husband becomes widow and simultaneously she becomes landlady by virtue of inheritance. The cause of action accrues to her for filing an application under section !4 of Ordinance on the death of her husband in the capacity cf a widow. However, a widow can not press into service provisions of section 14 of the Ordinance it'she purchases a property after becoming a widow from a stranger, lu other words a widow can not create a cause of action in her favour under section J4 b\ purchasing a property after she has become wi dow." In the instant case also the respondent had not created any cause of action for himself ay purchasing property after attaining the age of 60 vears. The property was inherited by him due to death of his son and his wife. In other words he became landlord Tor the reasons over which he had no control. There is another aspect of the matter also which does not appear to have been considered by the learned Rent Controller. As already pointed the respondent had attained age of 60 in 1969 and acquired the rights as landlord in 1973. As such he became qualified to invoke the provisions of stetson 14 after 1973. Respondent Kabir Khan has admitted in crossexamination, that the other tenant Rarnchand was put into possession as tenant by him in the adjacent shop of property about 8 or 9 years back. He was examined on 15-9-1985. Therefore, it can be safely assumed that he let out other shop to Ramchand in 1976 or 19/7 v /z after attaining the age of 60 years and after acquiring the rights as landlord. It is contended by the learned counsel for the respondent, that letting out of the shop before the promulgation of the Ordinance would not be hit by proviso to subjection (!). He has relied on 1983 CLC 1304 wherein a learned Single Judge of this Court has held that this Ordinance has no retrospective effect and letting out of another shop to a person prior to coming into force of ins Ordinance would not bar landlord's rights to invoke provisions of section 14 on a cause of action arising after the enforcement of the Ordinance. However, the scope and effect of this proviso and other provisions of section 14 of the Ordinance were considered by their lordships of the Supreme Court in case of Baksh Elahi v, Q a zi Wasif All (1985 SCMR 291)- It was observed by their lordships :•— " — ...idc clear intendment behind the provisions of section 14 (1) was to give the benefit thereof to the landlord if at the time of the happening of the contingencies enumerated therein, he is not in occupation of another building owned by him and has not rented out -'the building'" after the happening of such contin­ gencies. In other words the benefit considered by the provision is lost as soon as the landlord comes into occupation of another building of his own or lets out the building as the case may be." It appears that the purpose of the proviso was to avoid the extension of the privilege by laying down that the privilege was not available to the landlord if he rents out any building which but for that would have been available to him. Having regard to these considerations it appears quite clear that the intention of the Legislature was to grant the privilege to such a landlord to get possession of one of his buildings by the summary procedure, which privilege would lapse if he already has in occupa­ tion any other building either before or after the time of accrual of the privilege in terms of section 14 (1) or if he lets out any of his buildings after the relevant time specified in the provision in question." B In view of the law laid down by the Supreme Court there appears to be no doubt that the respondent was not qualified to invoke summary procedure of section 14 of the Ordinanc; as after attaining the age of 60 years as well as after acquiring the right as landlord he admitted rented out another shop. The qualification to invoke section 14 is acquired by landlord after he attains the age of 60 years. The qualification even if acquired before the promulgation of the Ordinance does not lapse but is kept alive. Similarly jthe disqualification incurred under the proviso would also be kept alive c jeven if incurred before the promulgation of the Ordinance. If the {legislature had intended otherwise it would have made it explicit in the proviso. No interpretation could be placed on the construction of the proviso other than what it clearly spells. Keeping in consideration the above factual and legal position I allow this appeal and set aside the impugned order but direct the parties to bear their own costs. (MIQ) Appeal allowed.

PLJ 1987 Karachi 400 [DBJ PLJ 1987 Karachi 400 [DBJ Present : naimuddin & K. A. ghani, JJ COMMISSIONER OF SALES TAX/INCOME-TAX (CENTRAL ZONE), Karachi—Applicant versus Messrs PAKISTAN PROGRESSIVE CEMENT INDUSTRIES LIMITED, Karachi—Respondent Sales-tax Reference No. 115 of 1974, answered on 7-3-1984 Sales Ttx Act, 1951 (111 of 1951) — —S. 7 & Sales Tax Notification No. 7, dated 26-6-1951—Item No. 34— Fire brick—Exemption from Sales tax of -Word "brick" used in item No. 34 of Notification without any qualification and in its generally accepted sense of block of clay burned or baked, generally rectangu­ lar in shape and used as building material—Held : Legislature having not intended to exempt or not to exempt bricks of particular kind only by using qualifying words, "fire bricks" (used for lining furnaces) to be included within term "brick'' used in item No. 34 of notification dated 26-6-1951. [P. 402]A Mr. A. A, Dareshani, Advocate for Applicant. Mr. Naseem Ahmad Khan, Advocate for Respondent. Date of hearing : 7-3-1984. judgment Naimuddiu, J. — By this application under section 17 (1) of the Sales Tax Act, 19>1, the Commissioner of Sales Tax Income Tax, (Central Zone), Karachi, has referred the following question of law arising out of the order of the Income Tax Appellate Tribunal dated 2-11-1973. "Whether on the facts and in the circumstances of the case the learned Tribunal was justified in holding that fire bricks and fire clay are exempt under item No. 34 of Sales Tax Notification No. 7, dated 26-6-1951 '?" 2. The Tribunal in the order, out of which the present question hai arisen, has held that-fire brick'is not liable to sales-tax as it is exempted under Section 7 of the Sales Tax 1951 and for reasoning has relied on its earlier decision in Sales Tax Appeal No. 8 of 1963-64, filed by the respondent. 3. The term or word brick has not been defined in the Sales Tax Act or the Sales-tax Rules or the Notification under which it is exempted. It has therefore, to be understood in its ordinary meaning. We may, there­ fore refer to various dictionaries to know its meaning. Ballentine's Law Dictionary, 3rd Edn,, page 156, states its mean­ ing as : •'Building material, made from clay and skale, moulded and baked in a kiln in oblong blocks, 4 inches wide, 8 inches long, and 2-1/2 inches high." According to the Shorter Oxford English Dictionary, Vol.1, page 220, it means : '•a substance formed of clay, kneaded, moulded, and hardened by baking with fire, or sun-dried, used in building. 2.— A block of this substance, of a definite size and shape ; usually rectangular. 6.—A similar block or slab of sand and lime, concrete, etc." According to the Chamber Twentieth Century Dictionary Revised Edition, page 160 it means : — "baked or 'burned' clay: a shaped block of burned clay, generally rectangular (the standard dimensions being 9o<4£x3 inches) ; a brick-shaped block of other material, often compres­ sed : a child's building block of wood, etc. : a loaf or a bun more or less in the shape of a brick." According to Webster's New International Dictionary, Second Edition, page 333, it means : "akin to. A building and paving material made from clay (either pure or mixed, as with sand, lime, etc ) by moulding into blocks while moist and hardening it in the sun or by fire. Sundried brick, used extensively in ancient times, and still made in-' warm countries, in much less durable than baked or burned brick. (See CLAY). Brick is burned either in a kiln or in stacks or clamps. The ordinary red color is due to the presence of iron compounds which arc converted into the red oxide, A greenishblue colour, as in sewer, or blue, brick, may be obtained by burning brick in a reducing fire (low in oxygen), or a brown or yellow colour by adding lime, pressed into blocks and steamed. (2).—(a) An individual molded block of the above material, usually rectangular. The average dimensions of an English brick may be taken as 2-5 ; 8x4-3;8x 9 inches; of an American brick, 2-1/4x3-3/4x8 inches. (b) A block of other material, as cement, concrete, sand and lime, etc.. of similar size and shape. (3) Any oblong rectangular mass as, a brick of ice cream. (4) A first-rate good fellow ; as, you're a brick. Colioq. (5.) Hort. A compressed block of dried manure containing mushroom mycelium, or spawn, used in mushroom beds, (6) Brick red." 4. The question for consideration is whether 'fire brick.' is included in the word 'brick' or not. According to Mr. Dareshani 'fire bri.k' is a special kind of brick and in this regard he has relied on the meaning of 'fire brick' as given in Chambers Twentieth Century Dictionary, Revised Edition, page 291, which gives its meaning as "a brick refractory to fire, used for furance-linings, ere." He has also referred to Webster''s New International Dictionary Second Edition, pags 952, for its meaning, This dictionary states its meaning as "a refractory brick, as of Ore clay capable of sustaining high temperature without fusion and used for lining furnace:;, etc., and such bricks ar; used f.>r different purposes." He therefore, argued that such bricks are not exempted under the notification. We regret we cannot accept this argument for the word "brick" used in item No. 34 of the notification is without any qualification and in our opinion is used in the generic sense. It has also been used in its generally accepted sense of a block of clay burned or baked, generally rectangular n shape and used as building material. If it is burnt or baked at a jigher degree or some other material such as lime or sand etc. is added to it, t would not make any difference as it would still be called a -brick" and it will still be used as building material. We have already referred to the meanng of 'brick' in Webster's International Dictionary and other dictionaries and according to them it can be of various kinds, colours, size and it is jenerally made of clay. If the legislature had intended to exempt or not to exempt 'bricks' of a particular kind only it would have indicated so y using qualifying words. Bricks are generally used as building material or construction of walls, roofs, floors and pavements. It will be seen that ire bricks/ are also used for lining furaances as stated in Webster's New nternatiana! Dictionary and this use is akin to the use of bricks for laying "oors, pavements and constructing walls and roofs. A Division Bench of this Court has already taken the same view as taken by us in this case, in S.T.C. No. 79 of 1973, (The Commissioner of Sales Tax . Messrs Pakistan Piogressive Cement Industries Ltd. Karachi). We may produce the relevant observations which are as follows : -'5. Item No, 34 of the said Notification relates to 'bricks' only- Mr, A. A. Dareshani has argued that Tire bricks', in respect of vvfcivh exemption is cLv,raed by ihc rc'-.p>nider\t, do not fall within the category of -bricks' relating to Item No. 34. He was unable to explain as to, how 'fire bricks' are not included in the category of 'brick'. 'Brick' is a generic term whereas •are bricks' is a species of 'bricks'. If 'bricks' are exempted from sales-tax, the inference would be that all species of 'bricks' including 'fire-bricks' would also be exempted under Item No. 34. "' It was then argued by Mr. Dareshani that the assessee was claiming exemption from payment of Sales-tax under item No. 34 of the notification and therefore the burden uas on the assessee to show that 'fire bricks' come within the purview of item No. 34.i e. bricks' and they have failed to do so. In reply it would suffice to say that our whole discussion is directed towards the consideration whether fire bricks are included in terra'brick' used in item No. 34 and we have reached the conclusion it does, Learned counsel for the parties stated that fire clay was not involved in this case. They explained that it was involved in other cases therefore, the same question was erroneously repeated in this case. They agreed the question need not be answered in relation to fire clay. We therefore, answer the question deleting the word -fire clay' from it in affirmative, " (TQM) Answered accordingly.

PLJ 1987 Karachi 403 [DB] PLJ 1987 Karachi 403 [DB] Present : K. A. ghani & ibadatyar khan, JJ KARACHI ELECTRIC SUPPLY CORPORATION LIMITED, Haji Abdullah Haroon Road, Karachi —Appellant versus CONSORTIUM 2000, F/2-86, PECH Society, Karachi—Respondent High Court Appeal No. 88 of 1984, dismissed on 19-2-1986 (i) Arbitration Act, 1940 (X of 1940)- —S 30—Arbitrator—Jurisdiction of—"No claim certificate"—Issuance of—Effect of—Arbitrator conferred authority to enter upon reference and adjudicate "all questions and disputes in any way arising out of or relating to contract" —Held : Plea that by issuing "No claim certificate'' claimant remitted all claims (except those mentioned in letter) to be hardly sustainable—Held further : Question whether issu­ ance of "No claim certificate" was in full and final settlement to be question which arbitrators whom reference made to have jurisdiction to deal with as "arising out of" or "relating to" contract. [Pp. 411 &415|D& E Judgment in Suit No. 342/67 agreed with. AIR 1974 SC 158, AIR 1981 Cal. 93 & AIR 1981 Cal. 101 ref. (if) Arbitration Act, 1940 (X of 1940)— S 30 —Arbitrator—Jurisdiction of — Objection to— Question of— Want of jurisdiction of arbitrator/umpire as to maintainability of claim raised—Held : Contention that arbitrators/umpire for such reasoo alone to be precluded from proceeding with case to bs h ardly accepted as absolute rule—Arbitrators deciding to enter upon con­ sideration of matter despite-such objection—Held : Party objecting to arbitrators' entering upon reference to be competent to appear under protest and to continue to attend before arbitrators and crossexamine witnesses on point objected to—Held further: Party adopting such course not thereby waives its objection nor to be estopped from saying that arbitrators have exceeded from authority by awarding on [P. 410JB Russel on Arbitration (19th Edn. p. 275) ref . (iii) Arbitration Act, 1940 (X of 1940)—

S. 30—Arbitrators—Jurisdiction of—Question of—Decision on — Held : Question of jurisdiction of arbitrator to be ultimately decided by civil court. [P. 411]C (iv) Arbitration Act, 1940 (X of 1940)—

S. 30—Award—Setting aside of—Held : Arbitrators and umpires being judges of law and facts, courts not to act as courts of appeal over awards/decisions given by them. [P. 407]A Mr, S. M. Noorul Hassan, Advocate for Appellant. Mr, Balal A. Khawaja, Advocate for Respondent. Dates of hearing : 4, 5 & 11-11-1985. judgment K/A. Ghani, J,— This intra court appeal has been preferred by the appellant against the judgment and decree dated 5th August, 1984 passed by the learned Single Judge (Original Side) in Suit No. 311 of 1982 whereby the application filed by th- appellant objecting to the making of the award dated 14-3-1982 given by the Umpire as rule of the Court, was dismissed. The facts felevanUleading to the filing of this appeal may briefly be stated herein below : 1. (i) The respondent was granted contract dated 1-11-1976 for the construction of G. T. S. Foundation in K-Area Korangi, Karachi for the appellant. However the work was completed in about 20 months and not within the stipulated period giving rise to disputes and claims the detail of which need not be gone into here being not necessary for the disposal of this appeal. It however appears that the respondent was also pressing for refund of the security'deposit and earnest money amount of Rs. 3,49,000/-. (ii) On 26th March, 1979 on behalf of the appellant its Chief Engineer (P & C) wrote a letter by which after referring to certain other claims as to the demand for refund of security deposit and earnest money the respondent was informed as follows :— " .. You are aware, that the Security Deposit and Earnest Money is paid after six months from the date of completion of the project, and for this you have to submit a No Claim Certificate. This certificate has not been submitted by you. You can, therefore, be paid Rs. 3,49,000/- and Rs. 10.000/- on your taking necessary action in the matter. Please, therefore, contact the Civil Engineering Department and do the needful," (iii) In reply the respondent sent his letter dated 27-3-1979 which ii reproduced below in extenso as the learned counsel for the appellants repeatedly referred to the same during the course of his arguments : "Re : Release of payments of Security Deposit on account of Construction of GTG Foundations at 'K' Area, Korangi Karachi. We refer to the Chief Engineer (P & C) letter No. EE/CD- 66/76-1V/279 dated 26th March, 1979 and as desired we hereby certify that we have no claim against the above work except the claims which we havt already submitted and under consideration of the KESC. We now request you to kindly release our payments without further delay. Our final bill is Rs. 10,780.44 (net peyable) and security deposit is Rs. 3,23,377.30 (including E/money)". 2. (i) Subsequently, as disputes and differences arose between the parties the respondents invoked the arbitration clause (Clause No. 27 of the Contract) which provided :— "Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings, and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work, or as any other questions, claim right, matter or thing whatsoever, in any way arising out of, or relating to the contract, drawings, specifica­tions, estimates, instructions order or these conditions or otherwise concerning the works, or the execution, or failure to execute the same, whether arising during the progress of the work or after the completion of abandonment thereof shall be referred to S E. for bis decision. In the event of non agreement, the matter shall be referred to two arbitrators, one to be nominated by the owner and the other by the contractor within one week. The arbitrator shall immediately appoint an Umpire, should the arbitrators fail within a reasonable time to resolve the matter or matters of difference, the whole matter or matters, as the case may be shall be referred to the Umpire whose decision shall be final and binding upon both the owner and the contractor." (ii) The appellants denied the claim and while contending that the respondents could not invoke arbitration clause, under protest nominated arbitrator on its behalf, but reserved the right to take appropriate legal action, 3. The two arbitrators (one nominated by each oj" the parties in­ dependently) appointed Mr. Justice (Rtd.) Noorul Arfin as the Umpire. Before the arbitrators the claim (besides another claim which is not the subject matter of this appeal) was fiied by -the respondent. The appel­lant however objected to the jurisdiction of the arbitrators to entertain the claim on the following grounds : — (;') That having notified 'No Claim' (except as to three items) vide its letter 27-3-1979. shall be deemed to have remitted all other claims and thus the scope of arbitration, clause stood narrowed down. It was accord­ ingly contended that the arbitrators were not coropeteat to. Entertain claims other than the three items mentioned in the letter dated 27-3-79 written by the respondent. (») That the jurisdiction of the arbitrators having been challenged, the matter should bave been left to the Civil Courts and that the arbitrator (Umpire) were not competent to decide the validity of the submission nude to them. 4. The arbitrators on 14-12-1981 recorded their decision disagreeing between themselves as to the maintainability of the claim. 5. The reference in the above circumstances came up before the Umpire on 14-2-1982 when on the joint request made he framed the follow. ing consent Issues to be decided as preliminary issues :— "Whether the arbitration is barred— (a) by the reason ol' clause 27 of the conditions of contract ; (b) by reason of the no-claim certificate given by the claimant and acceptance by the claimant of the final bill." The learned Umpire for detail reasons recorded in his award on the pre-ijiues concluded as follows : -• "Accordingly, I hold under the preliminary issues that the arbitration is not barred by reason of clause 27 of the Conditions of Contract or by reason of the no-claim certificate given by the claimants and the acceptance of the claimants of the final bill, but that the onus is on the claimants to prove that the facts admitted on the no-claim certificate are not correct." A question then arose before the Umpire, if he should proceed with the examination on the various claims submitted before the arbitrators. The learned Umpire finding that there was difference of opinion between the advocates for the parties as to the scope of enquiry before the Umpire and also because he himself was of the view that the proper procedure would be to send the case back to the arbitrators for examination of the claims made, directed that the case shall go back to the arbitrators for further proceed­ ings on the claims of the claimants. 6. The above award, which I may call an interim award was filed in the court by the Umpire pursuant to the provisions of Section 14 (2) of the Arbitration Act, 1940 read with Rule 282 (1) of the Sind Chief Court Rules (O. S) and was registered as Suit No. 311 of 1982. 7. After receipt of notices of filing of the award in the court, applica­ tion under sections 30 & 33 of the Arbitration Act, 1940 was filed by the appellants objecting to the making of the award of the court. The learned Single Judge, after hearing the advocates for the parties dismissed the application for the reasons given in the judgment dated 5-8-84 and directed that the award be made rule of the court and decree to follow in terms thereof. 8. In this appeal preferred against the above judgment Mr. S. M. Noorul Hassan, who appears on behalf of the appellant pressed the follow­ ing grounds : (1) That the jurisdiction of the arbitrators having been challenged the said arbitrators and or the umpire could not have proceeded with the arbitrator proceedings. (.') The respondents having given a 'no claim certificate' (except in respect of those which were mentioned in their letter dated 27th March, 1979) shall be deemed to have remitted all other claims. Thus there was no real dispute which could have been made subject matter of the reference. (ii) The court shall not allow the respondent to go out side its own letter dated 27-3-1979 whereby 'no claim certificate was given to the appellant. 9. I may state that substantially the same contentions were raised by the learned counsel for the appellant before the Umpire as well as the learned Single Judge before whom the application for making the award of the umpire rule of the court had come up for consideration. The learned counsel argued at length and cited a number of cases but before examining them it would be relevant not to loss sight of the settled principle that the arbitrators/umpire are judges of law and facts and that the courts are notl expected to act as courts of appeal over the award/decision given by them| A and that an award as provided by Section 30 of the Arbitration Act, 1940J which reads as follows :— "Grounds for setting aside award,—The award shall not be set aside except on one or mors of the following grounds, namely :— (a) that an arbitrator or umpire has misconducted himself or the proceedings ; (b) that an award has been made after the issue of an order by the court superseding the arbitration or after arbitration pro­ ceedings have become invalid under Section 35 ; (c) that an award has been improperly procured or is otherwise invalid." Under the provisions of Section 26A incorporated in the Act of 1940 by Arbitration (Amendment) Ordinance No. XV of 1981, an arbitrator/umpire is required to state in the award reasons for the award in sufficient details to enable the Court to consider any question of law arising out of the award. It has also been provided that in case reasons for the award in sufficient details are not stated, the Court shall remit the award to the arbitrator or umpire and fix the time within which the award together with reasons in sufficient details shall be submitted. These provisions are appli­ cable to the award which is subject matter of this appeal by reasons of Section 3 of the aforementioned Ordinance of 1981. In the light of above legal position I would now consider the points raised by Mr S. M. Noorul Hassan, learned counsel for the appellant. 10. Mr. Noorul Hassan, learned couusel for the appellant cited a number of cases on the points urged by him to which I may briefly refer hereinbelow. (1) Smith v. Martin (1925) (94) LJKB 645 (1925-1 KB. 745). In the cited case, the form of building contract inter alia provided that in case any difference shall arise between the building owner and the builder as ro the construction of the contact or as to any matter arising there under such difference is to be referred to arbitration, but that "such reference...... -shall not be opened uotil after completion of the works," As the builder during progress of certain works determined the contract for the reasons, which being not relevant for this case are not reproduced here, commenced arbitration proceedings. The learned Court however held the said arbitration proceedings as premature (the work having not been completed) in view of the language of the arbitration clause referred above. I have carefully considered the cited case and find that the principles on which it was decided are not attracted in the matter before us, (2) Province of West Pakistan v. Spinning Mills Ltd. (PLD 1962 Karachi 386). The facts of the said case were that an application under Sections 30 and 33 of the Arbitration Act 1940 was filed setting out grounds of attack upon an award. The said application was accompanied by the production of a copy of the award. It-was however dismissed by the learned District Judge and thus the controversy became subject matter of appeal preferred in the High Court. Dealing with the arguments advanced by the learned counsel that the petition was framed not merely to contest the award but to contest the arbitration agreement contained as it was for a contract of which the validity was disputed, the learned court held :— " ........................... ......There is no doubt that under Section 33, a party may apply to the Court for adjudication on the point whether an aibitration agreement is in existence or valid, bui once it is alleged that an award has been made in purported pursuance of such an agreement,, the attack upon the agreement, becomes an attack upon the award. He quoted the remarks of Chagla, J. in the case cited above as under : "If a question arises with regard to the validity, effect or existence of an arbitration agreement, then the question has got to be decided by the Court in whiqlj the award which may result from that arbitration agreement m'ay be filed." But this quotation cannot be divorced from the passage which follows immediately : "If the question is with regard to the award itself, then the question has got to be determined by the Court in which the award has been filed." There can obviously be cases where, without an award having been made, a party wishes to dispute the validity or existence of an arbitration agreement. But once the award has been given, then it is the award which must be challenged. There may be of course cases where a party against whom an award has been made, but not filed in Court, wishes to challenge the validity of a purported arbitration agreement in order to prevent any further proceedings in arbitration upon other matters,.., " In the above cited case the question which finally arose for considera­tion was, "whether the party who desires to challenge an award can do so before it has been filed in the Court under the provisions of Section 14 Arbitration Act''. The learned Judge after discussing the law answered the question in the affirmative, I may mention here that against this judgment of the High Court the respondent had applied for leave to appeal to the Honourable Supreme Court but the same was refused with the observation that validity of the award could be challenged even though original award had not been filed in Court. It was further observed that the government/ respondent No. 1 had filed a copy of the award and therefore the question whether the award could be set aside without filing the original award was purely an academic one. (Faqir Spinning Mills Ltd. v. Government of West Pakistan and others 1970 SCMR 186). (3) Water and Power Development Authority v. Abdul Razzaq Muhammad Jqbal (PLD 1977 Lahore 5). This case was relied upon by the learned counsel in support of hi contention that in case a dispute as to factum or validity of a contract is raised before the arbitrator he would not have jurisdiction to dieide such a question. In the said case it was held that the arbitration clause is confined to the dispute arising out of the agreement and as such its language cannot include a dispute as to the factum or the validity of the conlract itself. It was further held that the denial of the factum of the contract is the denial of the submission clause and the denial of jurisdiction of the arbitrator, It was further held that the existence or validity of the submission clause can be decided only by a civil court. To the extent the principles have been laid down in the sited cases there cannot be any other opinion. Such however is not the case before us in which the arbitration clause or the contract has not been disputed but the only plea raised is that there has been remission of the claim and that there was novation of the contract whereby the scope of the arbitration clause was narrowed down for determination of three claims which were mentioned in the letter dated 27th March, 1979. II. Learned counsel however relied upon the case of Union of India v. B. C, Nawn (Bros) Ltd. (AIR 1961 Calcutta 630) wherein it was held that in a case where the original contract containing arbitration agreement is extinguished by a settlement contract z. e, the settlement is in full satisfaction of the original contract, no dispute is left outstanding to be adjusted by arbitration and that if any dispute arises that must be a dispute under the settlement contract and such a dispute is not covered by the arbitration clause in the original contract for the simple reason that the original contract is dead and alongwith it the arbitration clause. It was further held that if however ail the disputes in respect of the contract con­ taining arbitration clause are not settled and some remaining still outstand­ ing and have yet to be adjusted, the contract is not dead but is still alive with the contract and the arbitration clause remains alive but for the limited purpose. The scope and extent of arbitration agreement inspite of its wide scope is only kept alive in respect only to such dispute under the contract as has not been settled. Learned counsel also relied upon the case reported as Shori Lai v. Sardari Lai (AIR 1963 Punjab 165) where ft was held that like ai! contracts the arbitration agreement is a contract and that unless there is any specific prohibition in the statute the contract can be revoked, altered or varied by the parties to the contract, f The learned counsel for the appellants placed reliance also on the provisions of Section 63 of the Contract Act which provide that every' promissor may dispense with or remit wholly or in part the performance of the promise made to him or may extend the time for such performance or may accept instead of it anv satisfaction which he thinks fit, 12. As to the point No. 1 raised in this appeal it may be observed that a reading of the award shows that before the learned umpire objection was not taken in the form as now urged before us. 1 have already repro­duced above the preliminary issues framed by the umpire with the consent of the parties a reading of which show that no such plea was taken before the learned umpire In that the preliminary Issue No. (a) question which came up for consideration before the umpire was if the arbitration was barred by reason of clause 27 of the conditions of contract. This issue was dealt with by the learned umpire in para. 5 of the award, wherein inter­ preting said arbitration clause, it was observed that its language is wide enough to cover the claim submitted by the respondent. As the same time the learned umpire cited the cases reported as Province of West Pakistan v. Faqir Spinning Mills Ltd. (ibid) and H 'A PDA . Abdul Razaq Muhammad Iqbal (ibid) aiBrming ihe principle that the jurisdiction of the Umpire cannot be decided by the arbitrator or the umpire. This being the settled principle of law even before the learned Single Judge none of the parties contested its correctness. The contention of the learned counsel that once the question of want of jurisdiction of the arbitrator/umpire as to the main­ tainability of the claim is raised they for that reason alone are precluded from proceeding with the case could hardly be accepted as an absolute rule. In my opinion if a party raises such an objection before the arbitrator who however nevertheless decide to enter upon consideration of a matter, which according to the said party was not preferred to him or was beyond the scope of arbitration clause/jurisdiction, it is open to him to object to the arbitrators entering upon reference and then appear under protest and continue to attend before the arbitrators and cross-examine the witness on the point objected to. By adopting such a course the party Joes not thereby waive his objection, nor he is stopped from saying that the arbitrators have exceeded from authority by awarding on the matter. (Russel on Arbitration 19th Edition page 275). The learned author in his said treatise has further observed that the parties objecting to the proceed­ing before au arbitrator may withdraw from the proceeding in case the arbitrator inspite of the objection continues with the consideration of the matter or withdraw from the proceeding. The legal implications following from the procedure that may be adopted have been summarised at para. 274 as follows : "For while withdrawal will undoubtedly preserve the right to object later to the irregularity concerned, it is dangerous ; if the objection is ill-founded, or the irregularity insufficient to invalidate an award, the arbitrator may properly go on with the proceedings in the absence of the objecting party." Thus that party may ultimately find that an award is made against him in his absence, yet he is unable to have it set aside." 13. The learned counsel was unable to cite any rule or law under which an arbitrator merely for the reason that objection to his jurisdiction has been taken is totally debarred from proceeding with the reference made to him. It would however be correct to say that ultimately the question of jurisdiction of the arbitrator is to be decided by the Civil Court who can e survives or parishes would depend upon the nature of the controversy and its effect upon the existence or survival of the contract itself. Where the binding nature of the contract is not disputed, but a difference has arisen between the parties thereto as to whether tture has been a breach by one side or the other or whether one or both the parties have been discharged from further performance such differences are "upon" or "in relation to" or 'in connection with" the contract ....." 15. Reference may be also made here to the case of Union of India v. . Bose and others (AIR 1981 Cal 95) The case before the learned High Court was an appeal which arose out of the judgment and order passed by the trial Judge dismissing application made by the appeliant under Sec­ tions 16, 30 and 33 of the Indian Arbitration Act, 1940 inter alia for setting aside of the award made by the arbitrator. The award was chal­ lenged amongst others on the ground that the entire claim of the claimant stood satisfied by the accord and satisfaction in view of the submission of 'No Claim Certificate' Rep;lhng the contention thus raised the learned High Court held as follows :— "In our opinion, the submission of 'No Claim Certiticale by the respondent to the appellant on the condition mentioned hereinabove or in any event as a dispute withio the ambit of the arbitration clause contained in the said contract and was a subject matter for adjudication by the Arbitrator." 16. Ji\'ani' E>i!>in?tiniii> W'.,,-ks (]') Ltd. v. Union of India (AIR 1981 Cal. 101) was a case in which the award made adjudicating upon the dis­ putes between the parties pursuant to a contract for execution of works, was challenged, inter alia on the ground that the award holder had executed a 'No Claim Certificate' and therefore he was not entitled to any claim in the reference as he had mentioned specifically in no equivocal term that there was no dispute or difference relating to the agreemect contained in the arbitration clause in the arbitraiion agreement. It was submitted that on the basis of the said : No Claim Certificate 1 the order of reference of the award became nullity as the arbitrator had no jurisdiction to enter into the reference as there was no diference or dispute between the parties arising out of the said contract. The learned court repelled the contention thus raised with the observations made as follows : — "But that does not prevent the contractor from raising bis claim before the arbitrator in terms of the arbitration clause for the value of his work or other claims within the scope of the agree­ ment between she parties. The said question came up before this Court from time to time and in one of the unreported decisions of the appeal Court in Award Case No, 124 of 1978 (Union of India .D Bnse,)ofC.L and S, C, Chose, J. dated J5eh February, -rve reported in ASR ;<)^ ! ("a! 9ii. the same rontenlion of Mr. P. K. Sen, who is appearing before me, as to the no claim certificate, has been rejected and, therefore, in my view, there is no substance in the said contention." 17. Finally, 1 may refer to unreported judgment given in Suit No. 342/f>7 (K. B. Haji Ishaque and Sons v. Province of West Pakistan) by Mr. Justice A S. Farooqui, (as he then was). It was an application filed under section 20 read with Section 8 (2) of the Arbitration Act, 1940 for filing of arbitration agreement in court and appointment of the Arbitrator. The plaintiff having executed certain works was made payment which appeared to have been made upon a final bill which according to the Defendant was made on submission of unconditional no claim statement as the payment was not made the application was moved for filing of the arbi­ tration agreement which inter alia provided as follows :— "If any dispute, difference or controversy shall at anytime arise between the contractor on the one hand and the Secretary of State for India in Council or the said Railway administration on the other , or as to any other matter or thing whatsoever connected with or arising out of the contract, and whether before or during the progress or after the completion of the work, "such question, difference or dispute shall be referred for decision to an arbitrator, who shall be a Railway Engineer, to be appointed by the Agent for the time being of the N. W. R, administration and his decision in writing shall be final, binding and conclusive." The application made by the plaintiff was resisted on the ground that after such no claim statement had been given the matter could not be re-agitated the learned Judge on the pleas taken by the Defendant framed the following issues : — ''(I) Whether there was no dispute in view of the no claim certificate signed by the plaintiff ? (2) Whether this is not a question which should also be left to be decided by the arbitrator ?" After hearing the Advocates who appeared for the parties in that case the learned Judge answered the above issues in favour of the Plaintiff with the following observations : — "With regard to the first issue there can he .no doubt that in fact there is a dispute between the parties with regard to the additional claims which are made by the Plaintiff. The question, however, is whether this is a matter which falls outside rhe arbitration clause so as not to be the subject matter of an arbitration. This question is connected with the second issue and for that purpose it would be necessary to refer to the arbitration clause. The arbitration clause includes "any other matter or thing whatsoever connected with or arising out of the contract". The fact whether the additional claim of the plaintiff is a thing connect­ ed with or arising out of the contract can hardly be denied. This claim does arise out of the contract. Whether it was fore­ gone or waived is also a matter which relates to the contract 1 am, therefore, clearly of the opinion that the present dispute is not outside the contract and is not excluded from the arbitratioq clause and, therefore, is a matter which should be referred to the arbitrator. Whether the plaintiff is entitled to any additional payment is a question which will fall entirely for decision within the jurisdiction of the arbitrator and 1 should not be understood in this order to have expressed any opinion with regard to it, The further question whether in the circumstances of the case the plaintiff had received full and final satisfaction as also the question whether the claim in question was waived and given up are also matters which must be decided by the arbitrator," 18. The discussion as above, particularly, its view of th: decision given by Mr. Justice A. S Farooqui (as hj then was) as reprociuceed above and with which 1 am in respectful agreem;nt, controversy raised before us stands concluded as the question whether ths issuance of No Claim I Certificate was in full and final settlement is a question which the arbttrator&Je to whom the reference has been made, have jurisdiction to deal with as| "arising out of" or "relating to the contract". Before concluding I may observe here that the direction given by the learned umpire, after holding that the arbitration is not barred by reason of clause 27 of conditions of contract or by reason of 'no claim certificate', sending the case back to the arbitrators for further proceedings on the claims of the claimants neither any objection was raised before the learned Single Judge (Original Side) nor its correctness of pro­priety was challenged in this appeal. 19. The upshot of the above discussion is that this appeal is dismissed but in the circumstances, the parties are left to bear their own costs. Ibadatyar Khan, J.— I agree. (TQM) Appeal dismissed.

PLJ 1987 Karachi 415 PLJ 1987 Karachi 415 Present : syed haider ali pirzada, J T. MOT AND AS (deceased) through his legal heirs—Appellants versus ANIS AHMED—Respondent Second Rent Appeal No. 40 of 1982, allowed on 3-12-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

O. VI, Rr. 2 & 4—Plea not taken in pleadings—Evidence in sup­ port of—Held : No evidence to bs led or looked into in support of plea not taken in pleadings—Held further : Ingredients of any fact to be esseniatfy pleaded ia srder to rely upon and to produce evidence in support of ",ucb fact. [P. 418]A (ii) Evidence Act, 1872 (I of 1872)—

S. 116—Estoppel of tenant—Doctrine of—Applicability of—Held : Doctrine that tenant to be estopped from denying his landlord's title during existence of relationship of landlord and tenant to have no ap­ plication where landlord's title has (already) expired or extinguished or where there has been fraud on part of landlord in execution of lease or where tenant did not obtain or retain possession under ease or by virtue of it- Person evicted or against whom eviction, order passed also to be justified in treating relationship of tenancy at end and to be at liberty to pive new and rightful character to his possession. [P. 42! ]C (ii>) Urban Rent Restriction Ordinance, 1959 (W P. Ord. VJ of 1959)- .-—S. 13—-Eviction—Application for—Code of Civil Procedure (Act V of 1908) —Applicability of—Held : All provisions of Code of Civil Procedure though not applicable to proceedings under Ordinance, principles which are basis and foundation for administration of justice to undoubtedly be applicable to such proceedings also. [P. 419 ]B (ir) Urban Rent Restriction Ordinance. 1959 (W, P. Ord. VI of 1959)—

S. 13 (2) (i)—Default—Proof of-Onus of—Held : Initial onus to be on landlord tp prove that tenant has not paid or tendered rent due from him within period allowed by law and that under circum­ stances case is fit one to obtain relief for which he has sued. [P. 422 ]D PLD 1967 Lah. 966 ref. (v) Urban Ment Restriction Ordinance, 1959 (W. P. Ord. VJ of 1959)— •

S. 13 (2) (i)—False plea—Raising of ~~ Effect of — Held : Tenant guilty of raising false plea not to be entitled to exercise of discretion in his favour. [P. 422]E (tj)- Urban Rent Restriction Ordinance. 1959 (W. P. Ord. VI of 1959) —

Ss, 13 (2) (i) & 15 — Concurrent finding — interference with in second appeal—Concurrent finding on not pure question of fact recorded by two courts below—Held : Objection that such finding not to be disputed in second appeal to be overruled. [P. JG & H (vii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord, VI of 1959)-

Ss. 13 (2) (i) & 15—Discretion—Arbitrary exercise of—Effect of— Courts below exercising their discretion in favour of respondent in arbitrary manner—Held : Interference by High Court in second appeal to be justified. [P. 422 ]F Mr. Moshin Tayabally, Advocate for Appellant. Mr, S. H. Rizvi, Advocate for Respondent. Date of hearing : 30-9-1986. judgment Ghanshamdas and another have challenged the judgment of Vlth Additional District Judge, Karachi dated 10-2-1982 whereby he affirmed the order of the Xllth Senior Civil Judge and Rent Controller, dated 4-7-1974 by way of this Second Appeal, The facts to the filing of this appeal are that the respondent i tenant in respect of a bungalaw No. 540, Garden East, Karachi at •';« monthly rental of Rs, 120/-. The father of the appellants filed an eviction application No 1922/1969 against the respondent on the ground of default in payment of rent for the period commencing from 1-1-1968 to 30-9-'969 amounting to Rs, ',520/- and also on the ground of personal requirement on account of division of property between bis sons, The icspoiideut tiled written statement and stated therein (Lai '^ttie pro­ perty being evcicuee property, it is beyond the jurisdiction of the Controller and the late Vtotandas was receding rent falsely claiming to be authorised agent of Sunder Das but he refused to show that the said authority or even to give in writing that he collects rent on behalf of Sunder Dns. Oa the pleadmgs of She parties the Controller framed die following issues ;• (1) Whether {he opponent committed Jefauh iu payment or mU ' If so, what is she effect ? (2) Whether the applicant requires the premises in dispute for his persona! hona I'idc use '.' (3) What should the order he " The father of appellants examined himself in support of the eviction application and the respondent examined hinisdf in rebuttal The learned Controller, after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided both the issues in the negative and dismissed she eviction application \id<: order dated 4-7-1974, The father of the appellants beinu aggrieved against the order dated 4-7-1974 filed First Rent Appeal bearing No. 351 of 1974 before the District Judge, Karachi, which was ultimately transferred to the Court of IVth Additional District Judge, Karachi, During the pendency of the appeal, T, Motandas died and the present appellants were brought on record. The learned Additional District Judge after taking into consideration the arguments advanced, by the learned counsel for the parties, dismissed the appeal vide judgment dated 10-2-1982 The appellants being aggrieved against the judgment dated 10-2-1982 of the JVth Additional District Judge, Karachi, have preferred this Second Appeal on the grounds mentioned in the memo, of appeal, Mr. Mohsin Tayyab All the learned counsel for the appellants has railed the following contentious :— (1) The entire case has been decided on materials which were not pleaded by the respondent, (2) There is no logical conclusion to believe the defence set up by the respondent. (3) The defence set up by the respondent is to be believed, legally he is not precluded from tendering or paying rent, (4) The learned lower Courts have erred in not appreciating the fact that by denying appellants' title the respondent had admitted that he had not paid rent to the appellants' late father and, therefore, he was stopped from leading evidence in justification of the default. On the other band Mr. S H, Rizvi, the learned counsel for the raspondent has submitted that the proceedings before the Controller were not proceedings in a suit. The deceased landlord admitted that the pro­ perty was forfeited and it was restored by him in 1969 and after restoration no notice was served upon the respondent and under the c.-rvurnstanccs the conclusion of the Court below that the default is not wilful is in accordance with the law and both tbc Courts below exercised their discretion in favour of the respondent. Lastly his submission is that there is a concurrent finding which can't be revised in Second Appeal. Reverting to the first contention of the learned counsel for the appel­ lants that the entire case has been decided on materials which were not pleaded by the respondent. The respondent's pleadings in this regard are contained in paras. 1, 2 and 3 of the statement which are in the following terms :~ "(I) The application has been filed in vsrong jurisdiction. The property in dispute is situated in New Town police station area which was within the jurisdiction of the VI Civil Judge First Class and Controller, Karachi. (2) With reference to para. 1 of the application, it is submitted that the bungalow in question is the property of Sundardas who is an evacuee. The property being an evacuee property it is beyond the jurisdiction of Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959. (3) The applicant was recovering rent of ths said property falsely claiming to be the authorised agent of Sundardas but he refused to show the said authortity or even to give in writing that he collects rent on behalf of Sundardas. As such the applicant is not entitled to collect rent The opponent is not estopped in denying the applicant's authority as the opponent's action in payment of rent was caused due to the fraud and mis-representation made by the applicant himself". A perusal of the aforesaid phadings would indicate that (1) the application was filed in a wrong jurisdiction, (2) property is the property of Sundardas who is an evacuee and the property being evacuee property it is beyond the jurisdiction of the Controller and (3) the applicant was recovering rent of the said property falsely claiming to be the authorised agent of Sundardas but he refused to show the said authority or even to give in writing that he collects rent on behalf of Sundardas. As such the applicant is not entitled to collect rent. The opponent is not estopped in denying the appellant's authority as the opponent's action in payment of rent was caused due to the fraud and mis-representation made by the applicant himself. Evidence was however, led to establish the defence that in June, 1967 the property was forfeited by Government. The Rent Collector used to collect the rent in the name of Sundardas Motandas. The rent collector did not corns to collect the rent from him for a long time and when he contacted the rent collecter, he told the respondent that since the property has been forfeited, be cannot receive the rent, after cancellation of the forfeiture, the rent will be accepted. The respondent also came to know that Sundardas is an Indian National. It is well established that no evidence can be led or looked into in isupport of a plea that had not been pleaded in the pleadings. It is well [established and salutory principle of law that in any civil proceedings it is Aljssential for a proof to plead the ingredients of any facts in the pleadiags Joa which he wants to rely and in proof of which he may produce evidence. Order VI Rule 2 CPC specifically provides for the same. It is produced below ;— Every pleading shall contain, and contain only, a statement in a concise form the material facts on which the party pleading relies for his claim or defence, as the same may be, but not the evidence by which they are to be proved and shall, when necessary, tse divided into paragraphs, numbered consecutively, dates, sums and numbers shall be expr;ssed in figures". Though all the provisions of the Code of Civil Procedure are nol applicable to th; proceedings in eviction applications under the Ordinance, but the principles which are the basis and foundation for the administration of justice as this one incorporated in Order VI. Rule 2 Code of Civil Procedure will undoubtedly be applicable to these proceedings also. The purpose in following the proceedings for framing ot ! issues in eviction application is also intended to pinpoint the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of tium may allege that he was in any way prejudiced if there is no specific pleading about certain matter the other side would have no opportunity to controvert the same and consequently no issue would be framed. In these circumstances the parties will be in the dark as to whether lead evidence in affirmative or in rebuttal and thus, some important matter in controversy be overlooked deliberately or inadvertently. In Siddik Muhammad Shah v. Mst. Saran and others [AIR 1930 PC 57 (!)] which is the basic judgment on the subject it was held : "Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward". The ratio of the decision in the above case was followed in the case of Kandav, Wag/in (AAR 1950 PC 68), Amir AH v. Ali Muhammad (PLD I98i Karachi 150), Mohammad Hanif V, Mst. Sara (PLD 1932 Karachi 182) and Syed Mohammad Murtaza v. Kehman and others ( 1982 CLC 172S), Taiab A. Kapajia v. Agha Ziauddin Barni (\9i\ CLC 1267) and by me in the case of Jana Bai v. Mst. Gliulshan and another (i984 CLC 1061). Such being the position, the inescapable conclusion follows that the lower courts below committed the error of taking into consideration evidence which they ought not to have done so. Once the evidence in justification of the pleas that (i) in June 1967 the property wa? forfeited by the Government (ii) "I have contacted he told me that since the property has been forfeited he cannot receive the rent, after cancellation of the forfeiture the rent will be accepted. I also came to know that Sundar is an Indian National. I produce the order of A. City Survey Officer, Karachi, dated 23-6-1967. List of plot Ex, 8 and 9A. I also produce a letter of Assistant City Survey Officer Ex. 10 (Original seen and returned). I have contacted Motandas on telephone for the payment of rent, he replied that he will accept rent after cancellation of forfeiture and I never refused to pay the rent. The applicant never intimated to me about the forfeiture and 1 came to know only when the rent case was filed'" is ruled out of consideration as already observed had not been pleaded, then the plea that survives or the defence that survives is that "the property is an cNacuee properly aod it i& beyond the jurisdiction of Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959 and (1) the applicant was recovering rent of the said property faUely churning to the Authorised agent of Sundardas but he refused to whom the said authority 01 c\en to given in writing tbat he collects rent on behal of Sundardas. As such the applicant is not entitled to collect rent. The opponent is not estopped in denying the applicant's authority as the opponent 1 s action ir. payment of rent was caused due to the fraud and mis-representation made by the applicant himself". Such a defence has proved" that the eviction appli­ cation was liable to be dismissed. The father of the appellants produced extract of properts Mi showing that he was the owner of the property. The appellants' late father also produced photostat copy of the certificate of the Custodian, Evacuee Property as Ex, A/2. This certificate was issued under section 2i of the Evacuee Properry Act (Xil of 1957), The appellants' father also produced copy of compromise application and the order passed thereon dated 26-1-1963, This pertains to the rent case filed by him against the respon­ dent. It is an admitted position that the respondent had paid rent to the father of the appellants upto December 1967 In view of the evidence the defence of the respondent has not been established. The respondent stated in his exarairiation-in-crnef that the Rent Collector used to collect the rent in the name of Sundardas MMan. The Rent Collector did not come to me for a long time, and "'when I contact­ ed him he told me that since the property has been forfeited he cannot recover the rent till the cancellation of forfeiture" He also stated that since Sundardas was an Indian National, the property was forfeited by Government. He produced the order of Deputy Commissioner Ex. 8, 9 and9A. The order of rhe Assistan Survey Officer was produced by the respondent as Ex. 10. The respondent further stated that many times he contacted late Motandas on telephone but every time he wa^ intimated that rent will be accepted. A little further the respondent deposed that "I have contacted Motandas on telephone for the pay meat of rent, he replied that he will accept the rent after cancellation of forfeiture

•'•:] 1 never refused to pay the rent. The applicant never intimated to me ..boat the forfeiture and I came to know only when the rent case was filed,'" it is pertinent to note that firstly the respondent did not take these pleas in his written statement and secondly wben the late T. Motandas appeared in the witness box, he did not suggest to him about these facts to him. On the contrary the trend of cross-examination shows that he refused to aceept rent from him for the reason that the property was an evacuee and his son Sundarlal whs in India or the Government had forfeited the property, It is common ground that the relationship oS landlord and tenant exists between the predecessor-in-intertst the appellants and the respondent, that the respondent has not paid rent to the appellant for the period 1-1-1968 to 30-9-1969. The Searnt'd counsel for the respondent contends that the appellant ceased to be the owner of the bungalow and the respondent was not bound to pay rent dunoa the period of lorfeitute The arguments appear to me to be wholly devoid of force. There is no iota of evidence on record to justify the conclusion that the govern­ ment ever threatened to evict cither late Motandas the landlord or the respondent. iiumsnt; for the sake of arguments that the Government neid out threat directly or indirectly to evict the respondent, the question arisen whether the threat could entitle the respondent to deny the landlord's title and i: atto--n to the paramount title. Section lift of Evidence Act is in the :': Mo 1 .' :cg terms ; •'i 16. hstoppt'l vj tenant and of licensee of person in possession,-~ No tenant of immovable property, or person claiming through .ch tenan;. shall, during the continuance of the tenancy, be permit tea to deny that the landlord of such tenant had, at the beginning of <he tenancy, a title to such immovable property and no person \'~\ . ime upon any immovable property by the licence of the pe.'ion • i possession thereof shall be permitted to deny tsai such person had a title to such possession at the time when luch licence was given", This Section accords statutory recognition to the well-known doctrine that during the existence of the relationship of landlord and tenant, the tenant is estopped from denying his landlord's title or from asserting that another person has a better title than the landlord. This doctors.: has no: application where the landlord's title ha» expired or been extinguished or where there has been a fraud on the part of the landlord in the execution of a lease, or where the tenant did not obtain or retain possession under the lease or by virtue of it, or where he has been entitled by Utle paramount A person who is evicted by such is at liberty to deny his iandiord's title for an eviction is equivalent to a termination of the tenancy. Even if a tenant is not actually evicted but if a judgment of eviction has been passed against him, a tenant is justified m treating the relationship of tenancy at an end and at liberty to give a new and rightful character to his possession. The eviction need not be actual but may be symbolic. In other words, if there is notice to quit from the real owier to the tenan? in occupation of the disputed property, or if there is a threat of eviction from the real owner to such tenant by the real owner, which would bring to an end the relation­ ship of landlord and tenant which is protected under section 116 of the Evidence Act The respondent in the present case was neither evicted from the premises occupied by him nor wat, a judgment of eviction ever passed either against the appellants' predecesssor-in-interest or against the respon­ dent. It may be that a suit for eviction application might be brought by the paramount landlord but that fact alone could not justify the respon­ dent in denying the title of the appellant and attorney to the government. The language of Section 116 of the Evidence Act is clear and unambiguous and the respondent was precluded during the continuance of the tenancy from denying that the appellants predeccssor-m-interest bad at the beginn­ ing of the tenancy title to let the premises out to him. It 11 an admitted position that the premises in dispute was forfeited by the Government and the same was withdrawn by the Government by an order dated 16-4 69. In this view of the matter the defence taken by the respondent does not survive The respondent in his examinatioc-ia-cbief that he came to know only when the rent case wa» filed, i have perused the exhibits 8, 9, 9A and 10. The respondent obtained the copies en 12-11-1971, that is. much after the filing of the documents. 1 have perused the order sheet dated 45-72 as well as the rent account filed by the respondent. These documents would show that the respondent did not leader the rent to iate Motandas or deposited with the Nazir of the Controller. A psrasai of clause (<) of subsection (2) of section 13 of the Ordinance shows that the initial onus is on the landlord to prove that the tenant ha? not paid or tendered rent due from him within the period allowed by the .law and that under the circumstances it is a fit case to order his ejectmect and to obtain the relief for which he has sued. In PLD 1967 Lahore 966 it was held that : "In exercising the discretion the Controller must not act arbitra­ rily, on humour or caprice, perusal likes and dislikes or irrelevant and extraneous considerations. He is bound to act fairly in accordance with common sense, justice and equity", Mr. S. H, Rizvi has contended that order of eviction should not be passed against the respondent even if he was held defaulter. His conten­ tion is that eviction of tenant on ground of default is discretionary with the Controller and in the instant ease both the courts below have exercised tbeir discretion in favour of the respondent. I am afraid, this contention icannot be evaiued in favour of the respondent, A tenant guilty of Jrsising fake pies is not entitled to exercise of discretion in his favour which Tp$ exercised on equitable and judicious consideration.The view of the {learned District Judge as well ai of the Controller on the isue of default was equally unjustified, arbitrary and unjust as well. The respondent had raised & false plea thai the property was evacuee and late Motandas was collecting rent on behalf of Suadar, It is n admitted position that late Motandas riled eviction ease against the respondent which was ultimately compromised. The other plea which was raised that late Motandas and the Rent collector informed him that the property in dispute was forfeited by the Government and they would collect the rent on restoration of the property. The respondent deposed ir his examination-in-ehief that he. same to know about the forfeiture aftet the filing of the rent case. Trie respondent came up with false as such he is clearly disentitled to claim exercise of discretion in hi favour. I am of the view that to exercise discretion in favour of such a tenant would be tentamount to encouraging false pleas. The omission on the part of she tenant in payment of rent by circumstances beyond his control only would justify exercise of discretion in his favour. In view of this, it seems that the icourts below have exercised their discretion in favour of the respondent in plan arbitrary manner and could justify interference by High Court in (Second Appeal. The last contention of the learned ^^unsei for the respondent is that this court can not interfere in Second Appeal at this is a pure question of fact. O= me ofher hand Mr. Mohsin Tayyabally learned counsel for the appeilica has submitted that the question whether these was a default :th;n the purview of the repealed Ordinance was a mixed question of law and fact and the High Court could, therefore displace the concurrent fining of the courts below. I have perused the impugned order and the judgment aad 1 find that there is a concurrent finding to the effect that the respondent is not a defaulter but this is not a pare question of fact. Hon'ble Supreme Court laid down the following decision in the case of Mohammad Alam v. floor Mohammad ( 1 97 3 SC M R 606} : — "We have heard the learned counsel for the appellant and read the evidence placeti on record by the parties, Tfee question whether 'hcic. - a ,i default within t'r.< purview of section 13 of the Rent R^stri' . ;on -.'"•' dinaoce, !9;9, , - a mixed question of law ,-nd Uv, 'i i h.gti Court could, therefore, displace the con­ current iindi^s of the Courts below on ibis point", la the case of Ghulam Abbas Adamali Jeevaji v. N, Hassanali & Co. (PLD 1984 Karachi 373), my learned brother Nasir Aslam Zahid held : '\ may here very humbly add that the finding oa the point whether reel of a particular period has or has not been paid is, however, a finding of fact but the question whether it would amount to a default under section 13 of the 1959 Rent Ordinance for which the tenant is liable to be ejected is a mixed question of law and fact. 1 may also observe that it is not every finding of fact which is immune from interference in second appeal by the High Court. There can be concurrent findings, which may not be based on any evidence or which might be perverse, in which caie the High Court can and do interfere with such concurrent findings". I agree with the above observations of my learned brother. In view off the above decisions the objection of the learned counsel for the respondentla that in this case the point of default cannot be disputed is over-ruled, For the reasons stated above and in the circumstances of the case, I am of the opinion that there is default in the payment of rent for the period 1-1-1969 upto 30-9-1969, the rent for this period was deposited by the respondent with Nazir of the Controller after passing of tentative rent order on 4-5-1972 when the same should have bseo paid within the lime specified in section 13 (2) (i) of the repealed Ordinance. As a result Ilnd Appeal No, 40/82 is allowed, the order dated 4-7-1974 of the Controller dismissing Rent Case No. 1992/69 and judgment dated 10-2-82 of the learned Vlth Additional District Judge dismissing Rest Appeal No. 35! of 1974 are set aside. The eviction application is allowed and the eviction order on the ground of default is granted. The respondent is allowed four months time to vacate the premises, (MIQ) Appeal allowed.

PLJ 1987 Karachi 428 PLJ 1987 Karachi 428 [Sukkur Bench] Present : ahmad An U. qureshi, J MUHAMMAD BUX-Appellant versus KARIM BUX alias KAMAN LALA—Respondents First Rent Appeal No. 83 of iy85 s dismissed on 2-9-1986 (i) Siad Rented Premises Ordinance, 1979 (XVi ' 1979)

S, 14—Vacant possession—Delivery of—Notice tor—Requirement of—Held : Provisions with regard to issue of notice la be directly (and not mandatory) and to be only for protection of tenant—Land­lord not specifically mentioning in notice that premises were needed by him for personal requirement—Held . Purpose of notice being served by issuance of notice of rent application containing such averment, lapse on part of landlord to mention such fact not to be fatal. [P. 433]A&B 1985 SCMR 24 & PLJ 1986 Kar. 289 rel (ii) Sind Rented Premises Grdiannce, 1979 (XVil of 1979)— ——Ss, 14 & 15~-Vacant possession—Delivery of—Summary procedure for—Previous eviction application—Dismissal of—Effect of— Itona/ufes —Proof of—Requirement of—Previous application for personal bonafide need under S. 15 of Ordinance already dismissed by Rent Controller— Held . Landlord being not required to prove bonafides of his need under S. 14 of Ordinance, dismissal of previous application under S, 15 to be no bar to competency of subsequent application under S, 14 of Ordinance. f P. 434]D (ifi) Siad Rented Premises Ordinance, 1979 (XVII of 1979)-

S. 14(!)—Vacant possession —Delivery of—Notice for—Held : Service of notice of ejectment application upon tenant to be sufficient compliance with requirement of notice as contained in S. 14(1) of Ordinance—Ejectment, however, not to be ordered by Rent Controller within sixty days of receipt of notice of application. [P. 434]C Mr. Lai Muhammad, Advocate for Appellant. Mr. Wahid Bux Baluch, Advocate for Respondent. Dates of hearing : 10-2, 15 5, & 27-8-1986. judgment This First Rent Appeal impugns the order of the learned Senior Civil Judge and Rent Controller Jacobabad dated 4-9-1985 in Rent Application No. 29/84 ordering eviction of the appellant. The brief facts leading to this appeal are that respondent/applicant is owner of property bearing C.S. No. 1/951 Jacobabad, which he had purchased from Settlement Department under PTD No. 1393 dated 27-1-1966. The property comprised of a shop on the ground floor and a residential house on the upper floor. Residential house is in possession of respondent/applicant, while he rented out the shop to the appellant in about 1968 or 1969. Respondent who has attained age of 60 years filed an application under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) for the eviction of the shop on the ground that he required it for his personal use. Earlier to the filing of the application he bad given notice to the appellant as required under section 14 of the Ordinance but he failed to vacate the premises. The appellant resisted application on various grounds. He disputed the identity of the respondent who called himself by various names. He also disputed the existence of relationship of landlord and tenant between the parties and further contended that the respondent had rented out the premises in 1978 after attaining age of 60 years in 1976. He further contended that previous application of the respondent bearing Rent Application No. 4/81 on the ground of his personal requirement was rejected by the learned Rent Controller. Therefore, this application was not maintainable and the requirement of the respondent was not bonafide. On the pleadings of the parties the learned Rent Controller settled th: following issues :— (1) Whether the application is not maintainable in law ? (2) Whether the relationship of landlord and tenant exists between the parties ? (3) Whether the applicant has attained the age of 60 years before filing of this application ? (4) Whether the applicant is not entitled to relief u/s 14 of Sind Rented Premises Ordinance, 1979 ? (5) The orders. Issue No. 1 was not pressed by the appellant while the findings of the learned Rent Controller on all the issues arc in favour of the respondent, I have heard the learned counsel for the parties and have perused the record and proceedings of the trial court. The confusion as to the existence of relationship of landlord and tenant between the parties has arisen because of inconsistent pleas taken by both the parties in previous litigation between them. It may be pointed that the respondent has earlier filed Rent Application No. 4/81 for eviction of the applicant on the ground of non-payment of rent and his personal requirement. The appellant had contested that application raising the plea that there existed no relationship of landlord and tenant between him and the respondent as the shop was rented out to him by Allahdino brother of the respondent who used to collect rent after his death Muhammad Ali used to collect rent. Learned Rent Controller held that in absence of written tenancy agreement and in absence of evidence of Muhammad Ali the respondent had failed to prove the relation­ ship of landlord and tenant between the parties. It may be pointed out that this application was filed on 26-1-1981 and was decided on7-3-1983. On2-2-1981 viz soon after the rent application 4/81 appellant filed Rent Application No. 3/81 describing the respondent as landlord and prayed for an order of restoration of electric connection which had been disconnected by the respondent. Respondent contested this application on the ground that the shop was rented out to the appellant by Allahdino, therefore, he had to prove the relationship of landlord and tenant. This application was decided by the learned Rent Controller on 23-6-1981 holding the respondent to be the landlord ordered him to restore the electricity to the appellant. However, FRA 62/81 was filed against this decision before this Court which was dismissed by this Court on 11-4-1983 holding ; "The factum that the rent was paid by the respondent (present appellant) to some body else would not negative the relationship if the above rent was collected by other person on behalf of appellant (present respondent) The very fact that the respondent had approached the Rent Controller under section 11 of the Sind Rented Premises Ordinance impliedly admit the factum of relationship which was not denied by the appellant." This finding of this Court sets at rest the dispute over relationship of landlord and tenant between the parties. It may be pointed out that while replying to the notice of the respon­ dent under section 14 of the Ordinance the appellant admitted to be tenant and did not deny the relationship of landlord and tenant between the parties. Under the circumstances the learned Rent Controller has rightly held that there existed relationship of landlord and tenant between the parties. The counsel for the appellant has attacked the maintainability of rent application on various grounds. He contends that the identity of the respondent is not clear as he calls himself by various names. The respon­ dent in his deposition has given his name as Karim Bux alias Abdul Karim alias Raman Lala son of Abdul Rahim Moghul. In view of the fact that the respondent is admittedly landlord the question as to what is his real name and what is his alias loses its importance. We need not discuss it further. It is contended that the respondent has produced birth certificate which shows date of birth as 14-11-1916. He has also produced his identity card as well as copy of electoral roll in which different date of birth is shown. However, from all the three documents, it is clear that the respon­ dent had attained age of 60 years prior to filing of the present rent applica­ tion. In my opinion the birth certificate is more reliable and in fact that certificate is relied upon by the appellant for further attack on the main­ tainability of the present application. It is contended that under this certificate the respondent bad attained the age of 60 years in 1976 and that be let out the demised premises to the appellant in 1978. This confusion as to when the premises were let out has also arisen from the conflicting stands taken by the parties in the present and previous litigation between them. It may be pointed out that in the Rent Application No. 4/81 the respondent had averred that he had let out the premises to the appellant in 1978 whereas in the present rent application he avers that he let out the premises to the appellant in 1968 or 1969. The contention of the appellant in Rent Application 4/81 was that the premises were let out to him in 1963 whereas in the present application he contends that same were let out to him in 1978. However, in the judgment of rent application 4/81 the learned Rent Controller bad held that the premises were rented out to the appellant much before 1978 because the ration card produced by him showed that it was issued in 1973 on the address of the demised premises. It may also be pointed that the statement of the respondent before the Rent Controller that he rented out the shop in 1968 or 1969 has not been challenged in bis cr^.s examination. Even the appellant has admitted in the cross-examination that he is tenant of the disputed shop since last 20 years. Under the circumstances this argument of the learned counsel for the appellant also loses force. The maintainability of the application is further attacked on the following two grounds : — ({') That the notice under section 14 is not in the proper form as required under section 14 of the Ordinance. (/(') That in the previous Rent Application No. 4/81 it was held that the respondent did not require the demised premises for his personal bonafide use and was, dismissed in 1983. Therefore present application would not be maintainable on the same ground . It may be pointed that in the notice under section 14 which was produced as Ex. 17, the respondent had not stated in clear words that he needed the building for personal use. It is also an admitted fact that in Rent Application No. 4/81 the respondent had prayed for eviction of the appellant on the ground that he required it for his personal bonafide need which ground was rejected by the learned Rent Controller and bit application was dismissed and no appeal was filed. It is contended by the learned counsel for the respondent that the form of notice laid down in section 14 of the Ordinance is merely directory in nature and not mandatory in nature and the omission to mention in the notice that the respondent needed the shop for his personal use would not be fatel. It is also contended that the dismissal of the application moved under section IS of the Ordinance would not be bar to moving an application under section 14 of the Ordinance. Both the learned counsel have relied upon case law in support of their respective contentions which I will presently discuss. In NLR 1982 Civil 597 a Single Judge of this Court dismissed the rent application under aection 14 as the cause of action whatsoever for landlord to evict the tenant in summary way was not disclosed in the application. This case is apparently distinguishable as the cause of action has been mentioned in the Rent Application. The various questions raised by the counsel of parties were considered by a Full Bench of this Court in case of Barkaiullah Khan v, Mirza Muhammad Hasan (PLJ 1968 Karachi 289). Before I proceed to consider the views on these questions expressed by the Full Bench I fell it will be relevant if section 14 of the Ordinance is reproduced which reads as under :— "14. Delivery of vacant possession. —(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to , attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof. Provided that nothing in this sub-section shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefits of subsection (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary." The majority view in Barkatullah Khan's case was as under :— "While interpreting the provision of section 14 of Sind Rented Premises Ordinance, the language used by the legislature has to be considered first. Section 14 makes it clear that the specified person who is the landlord 'may' by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver possession of the building within such time as specified in the notice., not being earlier than two months from receipt thereof". The word "May" is a pointer to the clear intention of the legislature. From grammatical construction of section 14 the notice requiring to vacate on expirty of two months from the receipt thereof cannot be termed as mandatory or a condition precedent for filing the action. In this regard taking \j into consideration the object of the legislation it is to be determin­ ed whether the provision relating to notice is mandatory or directory. ........................ In cases where the provisions of a statute can be divided in two parts, the part which confers a jurisdiction or lays down qualifications for invoking the jurisdiction or taking any action can be termed as conditions precedent to the action. So far procedural part is concerned unless it is specifically provided that its noncompliance will invalidate the proceeding or without its compliance no action can be taken, it will be treated as directory. ......................... A close scrutiny of section 14 (I) makes it plain that it can conveniently be divided in two parts, one relates to the jurisdiction and qualification for invoking it, and the other is procedural or machinery provision. So far the jurisdictional provisions are concerned they have to be strictly followed and are mandatory in nature. The right to invoke section 14 has been conferred on specified class of landlord who is a widow, or a minor whose both parents are dead or a salaried employee who is due to retire within next six months or has retired, or a person who is due to attain the age of 60 years within next six months or has attained the age of 60 years. In the words of the Supreme Court in Atta Muhammad's case these qualifications "enable persons to take legal proceeding under certain specified circumstances". There can be no laxity io satisfying the qualifications and complying with the conditions prescribed for the landlord to whom relief under section 14 can be granted. These provisions are mandatory and have to be construed strictly. The second part of the section requiring the landlord to serve a notice of sixty days is a machinery provision lying certain procedure for regulating the ejectment proceeding by such landlord. It can not be termed as mandatory or a condition precedent for filing the ejectment case. The provision requiring service of notice and period for vacating the premises by the tenant as held by the Supreme Court in Wall Muhammad's case is for the benefit of the tenant. It is not a provision relating to public benefit or public policy. It. therefore, follows that such a provision cannot be termed as mandatory." Thus there can be no dispute that the provisions with regard to issue of notice are directory and not mandatory and are only for the protection of the tenant. The spirit of thess provisions is that the tenant should not be taken unaware and he should have two months time to vacate the premises from the date of notice. The notice is required to contain two ingredients; firstly that tenant be informed that premises are required by the landlord for this personal need and secondly he be required to deliver vacant posses sion of building. In the instant case notice calls upon the appellant to deliver the vacant possession but does not specifically show that the premises were needed for the personal use of the respondent. However, this prayer is contained in the ejectment application filed by the respondent of which notice was received by the appellant. On the basis of the findings of the Division Bench the lapse on the part of the respondent to mentionl specifically in the notice that the premises were needed by him for personal! requirement, would not be fatal. The purpose of notice would be served! by the issuance of notice of rent application containing such averment. lol this context reference be made to the case of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (\9%5 SCMR 24). While dealing with the question whether issue of notice under section 13A of West Pakistan Urban Rent Restriction Ordinance was necessary before filing eviction application, their, t lordships observed "Receipt of copy of ejectment application and knowledge gained thereby would constitute due notice and same will have to be treated as substantial compliance". On the analogy of the law laid down by the Supreme Court it can safely be said that the service of notice of ejectment appliaction upon the appellant was sufficient compliance with the requirement of notice as contained in section 14(1) of the Ordinance The only limitation for the safer-guard of rights of tenant would be that ejectment could not have been ordered by the Rent Controller within sixty days of the receipt of notice of this ejectment application In the instant case the written statement was filed by the appellant on 27 2-1985 and it can safely assumed that he received notice prior to this date, while eviction was passed by the learned Rent Controller on 4-9-1985. On the question as to whether the Rent Controller could go in bonafides as to personal requirement of landlord in an application under section 14 of the Ordinance reliance is placed on 1984 CLC 3066 wherein ' it is held that the question of bonafides or malafides by Rent Controller for ejectment of tenant on ground of personal requirement of landlord under section 14 was not necessary. In 1985 CLC 882 it has been held that relief claimed under section 15 was subjected to bonafide and good faith of land­ lord while under section 14 it did not carry any such condition. This preponderance of case law with which I am in respectful agree­ ment rightly lays down that in an application under section 14 of the Ordinance the landlord need not prove the bonafides of needs but it is sufficient if he claims that the premises are required for his personal use. As such the fact that his application under section 15 of the Ordinance D when he claimsd premises for his personal bonafide need was dismissed, would not be a bar to the filing of application under section 14 because in the former case he had to prove the bonafides of his need, which is not required in application under latter section. The result of the above discussion is that there is no substance in this appeal which is dismissed. However, the premises in question is shop therefore, the appellant is given six months time to vacate the demised premises. The appeal was dismissed by short order dated 27-8-1986. Above are the reasons in support of the said order. (M1Q) Appeal dismissed.

PLJ 1987 Karachi 434 PLJ 1987 Karachi 434 Present : nasir aslam zahid, J Mst. HAYAT KHATOON—Petitioner versus ALLAHDINO and Another—Respondents Const. Petition No. 55 of 1982, allowed on 23-12-1984 Family Courts Act, 1964 (W. P. Act XXXV of 1964)— ——S, 5 read with Guardians & Wards Act, 1890 (VI11 of 1890)—S. 25 and Provisional Constitution Order, 1981 (CMLA's 1 of 1981)-Art. 9—Minor—Custody of—Suit for — Summary disposal of — Civil Judge initially ordering issuance of notice to petitioner in suit for custody of minor but after some time disposing of entire suit in favour of respondent (No. 1) on same day even without giving notice and proper hearing to petitioner—Held : Such arbitrary exercise of jurisdiction by Civil Judge (not to be favoured by High Court in exer­ cise of its constitutional jurisdiction. [P. 443]B (ii) Family Courts Act, 1964 (W. P. Act XXXV of 1964)-

Ss. 5, 3 & 2 (1) (b) read with West Pakistan Family Courts Rules, 1965—Rr. 7 & 5—Minor—Custody of-Held: Family suit for custody of children must be instituted in court of District Judge who can then transfer case to Additional District Judge or Civil Judge having jurisdiction under rule 5. [P. 442JA (Hi) Writ Jurisdiction—

Alternate remedy—Failure to avail — Writ petition — Maintain­ ability of—Patently without jurisdiction passed by Civil Judge in arbitrary manner and in complete disregard of provisions of law and principles of natural justice — Held : Constitutional petition (assailing such order in High Court) to be maintainable. [P.443JC Mr. A. A, Dareshani. Advocate for Petitioner. Mr. M. L. Shahani, Advocate for Respondent No. I. Dates of hearing 30-4, 2-5 & 26-11-1984 judgment This is a constitutional petition filed by the petitioner. The petitioner was first married to one Allah Bachayo Pahor, who died on 19-12-1978. Out of this wedlock 11 children were born 7 sons and 4 daughters. According to the petitioner, at the time of the death of Allah Bachayo, 5 children were minors, namely Wazir (11 years old), Mumtaz (7 years), Irshad (6 years), Najma (8 years), and Hajra (3 years). According to the petitioner, there were differences between her and 3 of her elder sons, namely, Allah Dino (Respondent No. 1), Ghulam Rasool and Shabbir, who wanted to usurp the property of the petitioner and they also wanted the petitioner to re­ marry one of their relation which the petitioner declined. According to the memo, of petition, the relationship of the petitioner with her three grownup sons and other relatives, therefore, became strained. The petitioner then made an application under Section 7 and 10 of the Guardians and Wards Act for her appointment as guardian of the persons of her 5 minor children. This application which was numbered as 22 of 1979 was granted by the learned Civil Judge & Family Court, Shahdadpur by order dated 21-5 1979. It is the case of the petitioner that inspite of her having been appointed as guardian of the minor chiidr;n ; her three eldest sons, namely Respondent No. 1, Ghulam Rasool and Shabbir snalched away 4 of the minor children (except Mst. Hajra) and the petitioner was driven out of the house and she, therefore, shifted to Kandiaro, District Nawabshah, where she, later on, married one Haroon Pahor, claiming to be a distant relation. According to the petitioner, she has been living with her second husband Haroon Pahor since then. According to the petitioner, she was not left alone even in Kandiaro and attempts were made to kidnap the remaining minor child Mst. Hajra. id the circumstances the petitioner filed a complaint before respondent No. 2 Civil Judge and 1st Class Magistrate Kandiaro. And on the said complaint 7 an order was passed by respondent No. 2 whereby the boy Irshad was given in custody of the petitioner and it was directed that in the event of recovery of this boy in consequence of any complaint/search warrant or other orders the Executing Officer shall in the first instance produce the said boy in the Court of Civil Judge & F. C. M., Kandiaro. Reference was also made about the order dated 21-5-1979 passed by Mr. Bin Yamin, Civil Judge, Sbahdadpur according to which the petitioner had been declared as guardian of the minors. The petitioner also filed a Civil Suit No. 27 of 1981 in the Court of respondent No. 2 against her four major sons and persone claiming the following reliefs :— (a) The marriage of the petitioner with Muhammad Haroqn be con­ firmed and declared as valid. (She had claimed that she had been married three months earlier with Muhammad Haroon, a distant relation) ; (/>) The defendants may ba restrained from interference and distur­ bance to the peaceful life of the petitioner with Muhammad Haroon ; (c) The defendants be restrained from snatching the minor girl from the legal custody of the petitioner. In the said Suit No. 27 of 1981 the petitioner also filed an application for interim injunction and by order dated 25-3-1981 an ad-interim order of status quo was granted by the respondent No. 2. This suit was fixed for hearing before respondent No. 2 on 10-11-1981 on which date the petitioner alongwith Mst. Hajra and Irshad, who, according to the petitioner had joined her, appeared before the respondent No. 2 but the case was adjourn­ ed to 24-11-1981 for want of time. It is then averred in the memo of petition that while the petitioner was waiting on 10-11-1981 in the Court premises in connection with her Suit No. 27 of 1981, a suit under Section 25 of the Guardians and Wards Act was filed by the respondent No. 1 (Allah Dino) against the petitioner in which the respondent No. 1 (Allah Dino) prayed that the Court may give the custody of minors Mst. Hajra and Irshad to Allah Dino on the following grounds :— (j) That Allah Dino had been appointed as guardian of the two minors by the Civil Court, Shahdadpur and a certificate to that effect was attached. (//) The said two minors were present in the Court. (Hi) If the said two minors were not snatched from the petitioner and given in custody of Allah Dino, the life of the minors would be ruined. (/v) There was liklihood that the petitioner would take away the minors to some unknown place as the petitioner had kidnapped them from the custody of the defendants. (v) It would be in the interest of justice that the said minors be given in the custody of Allah Dino who was their brother. This suit was admitted to hearing and summons were ordered to be issued to the petitioner. The grievance of the petitioner is that on the same application thereafter respondent No. 2 passed an order that Allah Dino deserved to be given the custody of the two minors. From the order it appears that it was passed in the presence of the petitioner and that she had made submission also before the respondent No. 2. This order which was also passed on 10-11-1981, and which has been impugned in ibis Constitutional Petition, is reproduced here :— "Mr. Allah Dino has filed an application u/s. 25 of Guardian and Wards Act. His contention is to the effect that he has been appointed as gurdiau of his minor brothers and sister named below by the court of Civil Judge, Shahdadpur vide order dated 7-1-1981. He has produced the said order according to which the applicant stands appointed as guardian of the following minors. 1. Wazir Ahmed. 2. Ghulam Mustafa. 3. Muhammad Hassan. 4. Mat. Najman. 5. Mst. Hajran. The applicant submits that out of the said five minors, minor No. 1, 3 and 4 are with him while minors No. 2 and 5 are in illegal custody of their mother Mst. Hayat Khatoon who has allegedly illicit terms with Haroon Pahore who is residing at Kandiaro. Msi. Hayat Kbatoon alongwith her advocate Mr. Allah Bux Waryani is present and she submits that the said Haroon is her husband for declaration of whose status she has filed suit No. 153/ 81 in this Court. Admittedly the mother, as per her own contention has left the house of her husband and sons and her alleged husband Haroon does not have his own house/property or means of livelihood and he is working as servant. Ui der the circumstances the applicant deserves to be given the custody of two minors namely Ghulam Mustafa and Mst. Hajran aged about 11 years and 7 years respectively. The applicant submits that in order to avoid circumstances of law and order and in view of the fact the from the said guardian, the applicant seeks police aid to accompany him to safer place. The request appears to be genuine and is granted in the interest of justice. Let the SHO Kandiaro may required to provide police force for the purpose. To safeguard the interest of the mother and to enable her to obtain remedy if any from superior courts, the applicant is ordered to execute bond in the sum of Rs. 5000 to produce the minors in this court if and when so required. Given under my hand and seal of the Court, this 10th day of November, 1981." I have heard at length arguments of Mr. A. A. Dareshani, learned counsel for the petitioner and Mr. M. L. Shahani, learned counsel for the respon­ dent No. 1. 2. Mr. A. A. Dareshani has raised the following contentions in support of the present constitutional petition :— (n) Respondent No. 2 as Family Court Judge had no jurisdiction to entertain the suit under Section 25 of the Guardian and Wards Act and the case should have been filed before the District Judge. (b) Section 25 of the Guardian and Wards Act was not applicable in the instant case ; (c) Rules of Natural Justice have been flouted as the impugned order was passed without any prior notice to the petitioner. According to the learned counsel for the petitioner, the petitioner was present in the Court on account of the hearing fixed before the respon­ dent No. 2 in the suit filed by her against Allah Dino and others. No hearing was granted to the petitioner and hardly any oppor­ tunity was granted to the petitioner to defend her case. (d) Respondent No. 2 had earlier passed a status quo order in the suit filed by the petitioner which status quo order was still in force and even in the suit filed under Section 25 of the Guardian and Wards Act by Allah Dino, notice had been ordered but after some time he disposed of the whole case by giving the custody of the two minors to Allah Dino. According to the learned counsel, there has been violation of all rules of natural justice and pro­ cedure. In fact it was argued that the impugned order is a perverse order . 3. Mr. M. L. Shahani, learned counsel for the respondent No. 1 in reply argued that the petition was not maintainable. It was submitted that the Family Judge (Respondent No. 2) had jurisdiction to entertain the family suit filed by Allah Dino. It was further submitted th 3 t no rule of . natural justice had been flouted and the petitioner was heard before the order was passed. It was further contended that against the order an appeal could have been filed but the petitioner allowed the period of limi­ tation to expire. According to the learned counsel Rule 22 (r) of the Family Court Rules prescribes a period of 30 days for filing an appeal and the rule itself provides for extension of this period but in the present case, even the application for a copy of the impugned order was made after two months. According to the learned counsel, an alternate remedy being available, it was not resorted by the petitioner and in t'act the period of limitation was allowed to lapse and then this constitutional petition was filed after about 4 months of the passing of the impugned order. According to the learned counsel the petition is not competent as alternate remedy was available and in any case the petition suffers from laches. A counter-affidavit has been filed by respondent No. 1 in which he has stated that petitioner's husband, who was also father of respondent No. 1, died on 19-12-1978, and before expiry of Iddat period, the petitioner voluntarily left the house of her husband and went with one Muhammad Haroon to Kandiaro where both of them married on 9-2-1979 and in this connection she got public notice published in the newspaper. Photo copy of the notice published in the newspaper of such notice is filed as annexure 'A' to the counter-affidavit dated 31- 7-1982 of respondent No. 1. It is then averred in para 3 of the said counter-affidavit that the said Muhammad Haroon divorced the petitioner and executed talaqnama on 1-4-1979. Photo copy of the talaqnama has been filed as annexure 'B' to the said counteraffidavit. In her affidavit-in-.rejoinder dated 5-9-1982, the petitoner has admitted that she married Haroon. She has not denied the notice given by her in the newspaper. She has not specifically denied the execution of talaqnama by Muhammad Haroon on 1-4-1979. According 'to the counteraffidavit of Allah Dino, even after the asid talaqnama by Muhammad Haroon, the petitioner has been living with Muhammad Haroon and this Is sinful. According to the respondent No. 1, the character of the petitioner will reflect on her children. In the counter-affidavit, Allah Dino denied that he had any notice of the proceedings before the Civil Judge and Family Court, Shahdadpur, where the petitioner was appointed as guardian of the persons of tier minor children. According to the respondent No. 1, notice of the application of the petitioner was published in weekly 'Mujahid' of Shahdadpur dated 9 4-1979 and this weekly newspaper had very limited circulation and it was not widely read by the people of the locality, and, morevsr respondent nj. 1 and his brothers were residing in the interior of Shahdadpur and they had no approach to the newspapers. He has further assrred that he an J his brothers were not party to the said application before tbi Civil Jjdg? Shahdadpur and the application filed by the petitioner for being appointed as guardian was also not in proper form. It was further averred that the petitioner had never custody of the minors since she left the house and married Muhammad Haroon but later on she came back to Shahdadpur for some tima and stayed with her brothers and somehow induced Mst. Harjan and Irshad and took them away and started living with Muhammad Haroon. According to the respondent No. 1, petitioners' taking of these two children to Dhoopali, Taluka Kandiaro, was without permission of the Court as respondent No. 1 had been granted guardianship certificate by the Court. It is then stated in the counter-affidavit of respondent nt. 1 that he is real brother of all the minor children of the petitioner and he had also applied to the same Civil Judge Shahdadpur for appointing him as guardian of all the minors and same Judge after observing all formalities allowed bis application and he was appointed as guardian, According to the respondent No. I, after having been appointed as guardian, he moved an application under Section 25 of the Guardian and Wards Act in the Court of Civil Judge, Kandiaro for custody of the aforesaid two minors — Mst. Hajra and Irshad and which application was granted. In para 7 of his counteraffidavit, respondent No 1 has stated that at present the petitioner is living with Muhammad Haroon who has divorced the petitioner and their living together is against the injunctions of Islam. It is further stated that Muhammad Haroon haf no house of his own at Dhoopali nor sufficient means to bring up the minors aod aliowicg the minors to live with the petitioner and Muhammad Haroon would be deterimental to the interest of minors and it would seriously affect the future of minors. He has also stated in para 8 of the counter-affidavit that as the petitioner is not a fit person to be a guardian of the minors and that she bad taken the minors out of the jurisdiction of the Court without prior permission, respondent No. 1 has made an application under Section 39 of the Guardian and Wards Act for revocation of guardianship of the petitioner. As observed earlier, a rejoinder has been filed by the petitioner in which various adverse allegations have been denied. However, as noticed earlier the fact that she bad married with Mohammad Haroon within her Iddat period has not been specifically denied. The giving of notice in the newspaper about her marriage to Mohammad Haroon in February, 1979 and the execution of talaqnama by Mohammad Haroon has not been denied specifically After refering to the reply on merits, it was submitted by Mr. M.L. Shabani learned counsel for she respondent No. I that this is a case where no relief ought to be granted to the petitioner under the constitutional jurisdiction of this court. 4. The contention of Mr. A.A. Derashani, learned counsel for the petitioner, that respondent No. 2 as Family Judge had no jurisdiction to entertain the application under Section 25 of the Guardian and Wards Act is based on Rule 7 of West Pakistan Family Courts Rules 1965. Before going to this rule reference may be made to certain provisions of the West Pakistan Family Courts Act 1964. Section 2 (I) (b) of the Act defines Family Courts as meaning a Court constituted under that Act. Section 3 provides that Government shall establish one or more Family Courts in each district or at such other place as it may deem necessary and appoint a judge for each of such Court. According to Section 4, no person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge Section 5 deals with jurisdiction of the Family Courts and it lays down that subject to the provisions of the Muslim Family. Laws Ordinance, 1961 and the Conciliation Courts Ordinance 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule to the Act. In the Schedule, apart from other matters, item No. 5 is about custody of children and item No. 6 is about guardianship. Accordingly Family Courts constituted under the Act have exclusivr jurisdiction over suits and other proceedings relating to custody of children. Then we come to the West Pakistan Family Courts Rule 1965. Rule 3 tales as follows :— "Subjecl lo Ihe provisions of rub 7, the Courts of the District Judge, Additional District Judge, and Civil Judge shall b: the Family Courts for the purposes of the Act." The relevant rule is rule 7 which reads as follows :— "Rule 7 (I) Suils relaling to custody of children and for guardian ship shall be instituted inland be heard and Iried by Ihe Court of Ihe Dislricl Judge, bul such Courl may Iransfer any such suil lo the Court of the Additional District Judge, the Senior Civil Judge the Civil Judge First Class or Ihe Civil Judge First Class (Additional) having jurisdiction as provided in rule 6, and thereupon the Court to which such is so transferred shall have jurisdiction to hear and try the same. (2) Suits triable under the Act, other than those relating to the custody of children and for guardianship shall be instituted in, and be heard and tried by, the Court of the Civil Judge, having jurisdiction as provided in rule 6, and where in any district there is no such Court, such suits shall be instituted in and be heard and tngd by the Court of the District Judege or the Additional District Judge. (3) Notwithstanding anything contained in sub-rules (I) and (2), the Court of District Judge may : — (a) recall any suit made over by it for trial under sub-rule (I) to any court specified in that rule, and either try such suit itself or refer it for trial to am other Court within the District ; (b) send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itielf or refer it for trial to any other Court within the District, and thereupon the Court of the District Judge or the Court to which such suit is so transferred as the case may be, shall have jurisdic­ tion to hear and try the suit.'' According to Mr. A. A Derashani, rule 7 is very clear and a suit relating to custody of children has to be instituted in the Court of District Judge but then the District Judge, instead of hearing and trying that suit, has the power to transfer such suit to the Court of Additional District Judge, Senior Civil Judge or other Civil Judge having jurisdiction and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try tfie suit According to the learned counsel the institution of the suit in the Court of respondent No. 2 (Civil Judge and Family Court Kandiaro) was not permitted by law and as such the impugned order is a nullity and deserves to be quashed. Learned counsel also relied upon a Division Bench authority of the Lahore High Court in the case of Muhammad Ismail v. Fazal Ahmad (PLD 1969 Lahore 834). The relevant part of the judgment of the Lahore High Court in this case is reproduced here :— "The position as it emerges from the two rules read to­ gether, therefore, is th.it the Administrative Civil Judge, Rahim-Yar Khan, was invested with the powers of the Family Court but he could not directly entertained an application under section 2i of the Guardian and Wards Act. Rule 7 reproduced above regulates the institution uf suits relating to the custody and guardianship of children. They have to be instituted in the Court of the District Judge who may either hear and try the suit himself or may transfer the same to any of the Court subordinate to him, of course not below the rank of a Civil Judge First Class (Additional). In the instant case, however, a perusal of the record makes it abundantly clear that the application was filed by the respondent directly in the Court of the Administrative Civil Judge and it did not come to him on transfer by the District Judge. The inevitable consequence that follow therefrom is that the entire proceedings cluminating in the impugned order were without jurisdiction and, as such have to be struck down." Rule 7 of the West Pakistan Family Courts Rules 1965 and PLD 1969 Lahore 834 supports the contention of the learned counsel for the peti­ tioner. However, Mr. M. L. Sbahanj, learned counsel for respondent No. 1 referred to Section 5 of the Family Courts Act 1964 and item No. 5 of the Schedule to the Act and also relied upon Section 25 of the Act to argue that the suit under Section 25 of the Guardian and Wards Act was properly entertained by the Civil Judge, Kandiaro. Section 5 and item No. 5 of the Schedule to the Act hav.- already been referred earlier. Section 25 of the West Pakistan Family Courts Act 1964 is to the followlowing effect : — "A Family Court shall be deemed to be a District Court for the purposes of the Guardian and Wards Act, 1890, and not­withstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act." According to Mr. Mr, L. Shahani, rule 7 of the West Pakistan Fimily Courts Rules 1965 is subordinate to the provisions of the Family Courts Act 1964 and in view of Section 5 and 25 of the Act read with item No. 5 of the Schedule to the Act, every Family Court has jurisdiction to enter­tain a Family Court suit for custody of children and it is not necessary that the suit should be instituted first in the Court of District Judge and then to be transferred to any Civil Judge or Additional District Judge. Learned counsel also relied upon a Full Bench authority of the erstwhile Sind and Baluc.histan Courts in the case of Zaibun Nisa v. Muhammad Mozammti (PLD 1972 Karachi 4lO; and submitted that this Full Bench authority has dissented from the decision of the Lahore High Court 1 reported in PLD 1969 Lahore 834. I have gone through the two judgments of the Lahore High Court and Sind and Baluchistan High Court. Ths point on which the Full Bench of the Sind and Baluchistan High Court dissented from the judgment of the Lahore High Court was about the forum of appeal. According to PLD 1969 Lahore 834, if the order had been passed by a Civil Judge as Family Court, such order was appealable directly to the High Court and not to the District Judge, whereas the Full Bench of the Sind and Baluchistan High Court in PLD 1972 Karachi 410 took the view that an appeal against a decree or decision of .1 Family Court under the Guardian and Wards Act, when its presiding Judge is not a District Judge or a Judge of equivalent rank, lies to the District Court and not the High Court. However the point whether a suit for custody of children or for guardianship was required by law to be instituted before the District Judge and could not b; instituted before a Civil Judge acting as a Family Court was not before the Full Bench of the Sind and Baluchistan High Court and as such it is not correct to suggest that the decision of the Lahore High Court in that context has been dissented from the view taken in that regard by the Lahore High Court in PLD 1969 Lahore 834. 5. la my view, the provisions of law are reasonably clear and there appears to be no ambiguity. As observed earlier, the power was with the government to establish the Family Courts. In accordance with this power, by rule 3 of the West Pakistan Family Courts Rules 1965, it was pro vided that Courts of District Judge, Additional District Judge and Civil Judge, shall be the Family Courts for the purposes of the Act but subject to the provisions of rule 7, And, as seen earlier, rule 7 specifically provides that suits/relating to custody of children and for guardianship shall be in­ stituted in and to be heard and tried by the Court of the District Judge but the District Judge may transfer any such suit to a Family Court presided over by an Additional District Judge or a Civil Judge. Reading rules 3 and 7 together with Section 2(1 )(b) and Section 3 it follows that a family uit for custody of children must be instituted in the Court of District Judge who can then transfer the case to an Additional District Judge or Civil Judge having jurisdiction under rule 5. Mr. A. A. Derashani is, therefore, correct in his contention that the family suit under Section 25 of the Guardian and Wards Act was wrongly instituted by Respondent No, 1 in the Court of Civil Judge, Kandiaro. It should have been insituted in the Court of District Judge Nawabshah who could then trans­ fer the case to a Court having jurisdiction under rule 5 of the West Pakistan Family Court Rules 1965. 0. There arc ether patent infirmities and illegalities in the impugned order dated 10-11-1981 of Civil Judge Kandiaro. Without giving notice and proper hearing to th petitioner, the entire suit was decided on the same day when it was instituted. This is an arbitrary exercise of jurisdic­ tion b\ the Civil Judge. Then apparently he had initially ordered issuance of notice to the petitioner but after some time on the same day he went ahead and disposed of the entire suit in favour of the respondent No. 1. 6. An argument was raised by Mr. M. L. Shahani that an alternate remedy by way of appeal was available to the petitioner but he did not avail the same. According to the learned counsel for respondent No. 1, in the circumstances, the present constitutional petition is not maintain­ able In the facts of this case ! do not agree with this contention. The impugned order is patently without jurisdiction and has been passed in an arbitrary manner and in complete disregard of ths provisions of law and principles of natural justice. The present constitutional petition is main tainable, ?. The impugned order dated 10-11-1987 is, therefore, declared to have been passed without lawful authority and to be of no legal effect. However, minors have remained in the custody of respondent No. 1, their real brother, for the lost over 3 years. An order had been passed on 10-11-1982 in the present constitutional petition by Mr. Justice Z.C. Vailiani, when four minors were produced by the respondent No. 1 in the High Court The learned Judge found that all the four minors were intel­ ligent and on his question, they flatly refused to go with the petitioner and in the circumstances, at that stage, he did not disturb the custody of the minors. In the background and facts and circumstances of this case it is ordered that the suit under Section ? 5 of the Guardians and Wards Act filed by the respondent No. 1 will be deemed to have been presented be­ fore the District Judge Nawabshah to whom the R & P of the case be sent. As soon as R & P of the case is received by the District Judge Nawabshah he will issue notices to the petitioner as well as respondent No. I for appearance before him with a direction to respondent No. 1 to produce Ghulam Mustafa and Mst. Hajran before the District Judge on the day when the minors are produced before the District Judge he will pass further orders about custody of the children in accordance with the law. In the background and facts and circumstances of this case it is directed that the District Judge himself will decide the suit and dispose of it in accordance with law within two or three hearings. The office is directed to send the R & P to the District Judge Nawabshah forthwith. 8. The petitioner will be entitled to costs in this petition as against the respondent No. 1. (TQM) Petition allowed.

PLJ 1987 Karachi 444 PLJ 1987 Karachi 444 Present : saeeduz/aman siddiqui, J MUHAMMAD ALI HEMANI (deceased) through his legal heirs—Appellants versus Mat. ALTAF FATIMA (deceased) through her legal hfirs—Respondents Civil Appeal No. 22 of 1970, dismissed on 15-10-1986 Evidence Act, 1872 (1 of 1872) —

S, 73—Disputed signature—Comparison of with admitted ones— Held : Comparison of disputed signature with admitted signatures of party by court though permissible under S. 73 of Evidence Act to enable court to reach conclusion whether two signatures are of one and same person, such practice to by court to be disapproved specially when person undertaking such comparision be not conver­ sant with subject and it is done without guidance derived from arguments of counsel and evidence of expert in this regard—Dis­ puted signatures compared with admitted signatures without having benefit of arguments of cpunsel or evidence of expert in this regard— Even aid of microscopic enlargement of disputed signatures not available before court — Held : Result of comparison of disputed signatures with admitted signatures (of respondent's attorney) by trial court not to be accepted as conclusive proof of fact that disputed document was signed by him or not. [Pp. 448 & 449JA & B AIR 1924 Pat 294 ; AIR 1923 Lah. 695 ; AIR 1925 Cal. 425 & 1935 Oudh. 31 ref. Mr. Akhtar Mahmood, Advocate for Appellants. Mr. S. H. Rizvi, Advocate for Respondents. Date of hearing : 15-10-1986. judgment This first appeal under section 96 CPC is filed by the defendant/ appellant to challenge the judgment and decree of Addl. District Judge, Karachi, decreeing the suit of respondent/plaintiff in the sum of Rs. 25.000/- with costs. The relevant facts are as under :— The appellant purchased deferred payment of Rs. 96,590/-which was available in the compensation book of respondent for a sum of Rs. 60.000/- on or about 12-12-1960. The appellant made part payment of Rs. 5.000/- to respondent on 12-12-1960 ride Ex. 7. It was agreed that the balance of Rs. 55.000/- will be paid by the appellant to the respondent on or before 30-6-1961. It is an admitted position that the agreed payment could not be made by the appellant by the above date. However, on 4-7-61 vide Ex. 9 a sum of Rs. 8.000/- was paid by the appellant to the respondent which included a sum of Rs. ?,000/- towards part payment of the balance ^. agreed consideration of Rs. 5r,000/- and a sum of Rs. 3,UOO/-as com­pensation for delay in payment. As a result of above payment the parties agreed to extend the time for payment of the,balance of the consideration upto 31-121961. It is again an admitted position that on 28-12-1961, the appellant paid only a sum of Rs. 25.000/- out of the balance of Rs. 50,000/ nde Ex 10 leaving a balance of Rs. 25.000/-.. It is the case of respondent that this balance of Rs. 25,000/- was not paid by the appellant inspite of service of two registered notices dated 30th July, 62 (Ex.11) and 30th Nov., 63 (Ex. 13) whereupon she instituted Suit No. 494/1964 for recovery of the same. The appellant in his written statement filed in the above suit denied the claim of the respondent/plaintiff and took the plea that the balance amount of Rs. 25.000/- was paid by him on 5-9-1964 under a receipt duly executed by the attorney of the respondent. On the basis of the above controversy between the parties the learned trial Court framed the following issues : — "(1) Whether defendant has made the full payment of the agreed consideration ? If not what amount the defendant has yet to pay? (2) Whether defendant agreed to pay additional amount Rs. 3.000/- and on that account the plaintiff extend the time to pay the remaining consideration by 31-12-1961. (3) What should be the decree ?" The respondent in support of her case examined her son/attorney Maqbul Ahmed (Ex. 5) who denied execution of disputed receipt Ex. 12. The respondent also examined witnesses Nasiruddin son of Omerdin (Ex. 14) and Syed Asghar Ali son of Syed Asad All (Ex 15) who allegedly accom­ panied the son attorney of respondent in November, 1964, to the office of appellant when the former had gone to the latter to demand payment of balance of Rs. 25,00 /-. The appellant in support of his plea examined himself (Ex. 18), Anwar Ali (Ex. 19), Piarali (Ex. 20) and Kassimali (Ex. 21). The appellant also produced extracts from cash book and the led­ ger book as Ex. 19.22 and 2 J tespectively. The disputed document (Ex. 12) was ord j red to b; referred to handwriting expert but by mistake another admitted document (Ex. 10) -,\as referred to handwriting expert who opined that the signature on the document (Ex. 10) was not that of the respon­ dent's attorney. In view of this report of handwriting expert and the delay which was likely to be caused in sending the disputed document to handwriting expert, the parties agreed before the trial court that the question whether the disputed document (Ex. 12) is signed by the respondent's attorney or not may be decided by the court itself. The learned trial court after anaissing the evidence led by the parties came to the conclusion that the witness's, produced by the appellant to establish execution of Ex 12 were highl;, interested and therefore, no reliance could be placed on them without jndcrcr, ' r

boration of their evidence. The learned trial court also found that ; i^i, v «re grave contradiction in the evidence of appellant who alleged that on the date he made payment to respondent he got a self cheque encashed from his bankers Habib Bank Limited ia order to make up the difference in the amount but be 'led no evidence to prove this fact. It was also naticed by the learned Judge that while previous payments of Rs. 5,000/-, Rs. 8.000/- and Rs. 2^,COO/- to respondent were made through cheque by the appellant, the disputed pay­ ment was made in cash although the appellant did not have the required cash with him to encash cheque of Rs. 15.000/- to make up the deficiency. This conduct of the appellant appeared to the learned trial Judge as unusal and unexplained in view of the past practice followed by him in this regard. The learned trial Judge lastly found on comparison of the dis­ puted signature, of the respondent's attorney on Ex. 12 with his admitted signature, that the disputed document (Ex 12) was not signed by him and as the disputed document (Ex 12) was also undated, he refused to rely on the same. As a result of above discussion of the evidence of appellant's side read with the denial of respondent's attorney the trial court decreed the suit of respondent. When this appeal was heard by me partly on 9-4-1984 1 felt that there was ambiguity in evidence with regard to encashment of cheque by respondent on 5-9 1964 in the sum ot Rs. 15,000? The appellant in his evidence claimed to have encashed the self cheque on the date of payment to respondent while in the evidence as well as in the ju.Jdtnent the learned trial Judge stated that such cheque was enca-hed on 9-9-1964 The learned trial Judge accordingly while disbelieving the appellant's version regarding encashment of cheque for Rs. I5.000/- observed as follows :— "Further it is all the more virpisma how and why the cheque was issued in the sum of Rs. 15.000'-on 991964 when payment was made on 5-9-1964. The payment could not have been made before the date of the issue of the cheque. This discrepancy could not be explained from the defendant's side " This ambiguity required clarification in the interest of justice and also to set at rest finally the controversy between the parties The appellant in hij cross-examination had stated Iruit he had account m Habib Bank only and could produce the deposit and cheque book. On my inquiry the learned counsel for the appellant stated that the deceased appellant had account with Habib Bank Ltd , Foreign Exchange Branch and if their record is summoned it will establish the assertion of appellant regarding encashment of cheque on 5-9-1964 in the sum of Rs. 15,000;-, Accordingly on 9-4-1964 1 passed the following order for recording of additional evidence x" in appeal :— "1 have heard this appeal partly and after hearing the learned counsel for the parties at length 1 feel that the evidence with regard to encashment of the cheques dated 5-91964 and 9-9 1964 which are referred in the judgment as welt a> in the evidence of the appellant was not produced before the trial court ; and it is a material evidence on which the whole case is based. There appears to b; no clear cut evidence with regard to encash­ ment of the cheques although the trial court has decided against the Defendant/Appellant mainly on the ground that although the amount of cheque was stated to have been encashed on 5-9-1964. whereas in the evidence he mentioned a cheque as dated 9-4-1964. In order to clarify this ambiguity and to set at rest the entire contro­ versy I feel it in the interest of justice to examine an officer from Habib Bank Ltd , Foreign Exchange Branch, Karachi with direction to produce the cheques issued and encashed by the Deft, company from 5-9-1964 to 9-9-1964 In case the cheques are not available ,f relevant entries from the Account Book showing withdrawal of amount through cheques by the appellant company on 5-9-1964 and 9-9 1964 be produced on the next date of hearing. For re­ cording evidence of the bank officer adjourned to 29-4-1986". In pursuance of the above order one Rafiuddin, an officer of Habib Bank Ltd.. Foreign Exchange Branch, Karachi, appeared in court on 29-4-1986 and h: produced certified copy of the account maintained by the deceased appellant with the bank for the period from 30 6-1964 to SO.12^964. There­ after the appeal was posted for regular hearing On 25 8-1986 when the appeal again cams up for further hearing Mr, Akhtar Mahmood, the learn­ ed counsel for the appellant stated that besides Foreign Exchange Branch of Bank Habib Ltd. the deceased also maintained accounts in other branches of Habib Bank and in order to do full justice to the parties, officers from those branches of Habib Bank Ltd, where deceased maintained account, may be summoned and examined in the case to prove encashment of cheque by ths deceased on 5-91964. This prayer of appellant's counsel was not opposed by the learned counsel for the respondent and accordingly on 2^-8-1986 I directed issuance of witness summon to Manager Habib Bank Ltd , Frere Road Branch and Napier Road Branch to produce in court the cheques if any issued by the deceased appellant during Septermber, 1964. In response to the summon issued to Habib Bank Ltd., Napier Road Branch one Anwar Jamal, an officer of the Bank appeared in court on 1-10-1986 and slated that there was no account in the name of the deceased appellant during the year J9f-4 No question was put to the witness in cross-examination by the appellant's counsel. Similarly, on the witness summon issued to Manager Habib Bank Ltd', Frere Road Branch it is stated that the branch of the bank itself was established on 5-4-1971. Accordingly the appeal was ouce again fixed for further hearing. Mr. Akhtar Mahmood the learned counsel for the appellant contended that the reasons given b> the trial court for discarding the evidence of appellant are not tenable in law. It is contended that the oral evidence led by the appellant to prove payment of Rs. 25.000/- to respondent's attorney not only sufficiently established the payment alleged by the appellant by it stood fully corroborated by the documentary evidence (Ex. 12) and the extracts from accounts book Ex. i9, 22 and 23, It is accordingly urged that the conclusion ot the trial court that the appellant failed to prove payment of Rs ?5,OOC'- on 5-9 1964 is contrary to evidence on record. It is further contended by the learned counsel that mere fact that the appel­ lant bad failed to prove encashment of cheque for Rs. 15,000/- on 5-9-1964 was by no mean conclusive to establish that no payment was made to respondent's attorney on that date and as such the court below should not have totally disregarded the other evidence led by the appellant to prove such payment on that date to respondent's attorney The learned counsel also contended that in view of the report of handwriting expert holding the admitted signatures of the respondent's attorney on Ex. 10 as not that of the attorney the result of comparision of the disputed signotures of respon­dent's attorney with the admitted signature by the trial court was not a safe test for arriving at the conclusion that the disputed signature on Ex. 12 was not that of the attorney of respondent. The learned counsel for the respondent on the other hand contended that the parties having agreed to left it to the trial court to decide whether the disputed signature on Ex. 12 was that of the attorney of respondent or not, no grievance in this regard could be entertained by this court now if the result of such comparison by the trial court had gone against the appellant. It is also contended on behalf of respondent that having been conclusively established in the light of additional evidence recorded by this court that no cheque was encashed by the appellant on 5-9-1964, as alleged in his evidence before the trial court, story of the appellant that be made payment of Rs. 25,000/- to reipondent's attorney on 5-9-1964 after encatbment of a cheque for Rs. 15.000/- stands totally blied. It is accordingly urged by the learned f counsel for the respondent that no case for interference with the judgment and decree of the trial court is made out. After hearing the learned counsel for the parties at length I am of the view that ihi appeal must fail Learned counsel for the appellant has contended that the comparison of the signature of respondent's attorney with his admitted signature to find out whether the disputed document was signed by the attorney of respondent was not a safe course in this case as it is an admitted position on record that even the admitted signature of the respondent's attorney was found by the hand writing expert as not his signature. Learned counsel for the respondent on the other hand while opposing the above argument contended that the appellant having agreed before the trial court that it should compare the disputed signature of the respondent's attorney with his admitted signature in order to find out whether the disputed signature was of respondent's attorney or not, no grievance can now be entertained after the result of such comparison by the trial court had gone against him. It is an admitted position in this case that instead of sending the disputed signature of the respondent's attorney on Ex. 12 alongwith other admitted signatures to handwriting expert the office of the trial court by mistake sent the admitted document namely receipt dated 28-12-1961 (Ex. 10) to the handwriting expert. It is also an admitted position that as a result of comparison of the signature of respondent's attorney on Ex. 10 with his admitted signature the handwriting expert opined that the signature on Ex. 10 are not that of the person whose admitted signatures were sent to him. In these circumstances the learned counsel for the appellant rightly urged that the result of comparison by the trial court of the disputed signatures on Ex. 12 with his admitted signatures could not be a conclusive test. Apart from it the course adopted by the learned trial court for comparision of the signatures of the respondent's attorney on the disputed document with his admitted signature was otherwise hazardous as the learned Judge while comparing the disputed signatures with the admitted signatures of respondent's attorney, neither had the benefit of the argument •.- of the learned counsel nor the evidence of the expert in this regard. Even the aid of microscopic enlargement of the disputed signatures were not available before the learned Judge while he was making the above compa­rison. No doubt comparision of the disputed signature with the admitted signatures of a party by the court is permissible under section 73 of the Evidence Act to enable the court to reach the conclusion whether the two signatures are of the one and the same person but in a series of cases the superior courts disapproved such practice by the court specially when the person undertaking such comparision is not conversant with the subject and it is done without such guidance as may be derived from the argument of the counsel and the evidence of the expert in this regard. Reference in this connection may be made to the cases of Mst, Bibi Kaniz Zainab v. Mobarak Hussaln (AIR 1924 Patna 294), Balak Ram v. Mohammad Said (AIR 1923 Lahore 695), Glastaun v. Sonatanpal (AIR 1925 Calcuttd 426) and Latafat Hussain v. Onkanned (1935 Odh 31). In view of the above legal position the result of comparison of the disputed signatures with the admitted signatures of the respondent's attorney by the trial court could not be accepted as the conclusive proof of the fact that the disputed document namely (Ex. 12) was signed by him or not. However, in the! present case the conclusion of the learned trial Judge that the disputed' signatures on Ex. 12 could not be that of the attorney of the respondent is not solely based on visual comparison of the two signatures but is also supported by the attending circumstances of the case. The appellant in his evidence categorically made a statement in cross-examination that on the day he made payment to the respondent's attorney he had only cash balance of Rs. 13,000/- with him and in order to make up the difference he got a self cheque in the sum of Rs. 15000,'- encashed before making the payment. He further claimed that this cheque was encashed from his account which he had with the Habib Bank through witness Piarali. He, however, could not produce the deposit book or the cheque book in support of his assertion. The additional evidence recorded before this court in the caje under Order 41 Rule 27 CPC shows that during the disputed month of September, 1964 no cheque at all was encashed by the appellant from the bank. Payarali, nephew of the appellant who was examined in the case after the evidence of appellant also no where stated in his evidence that he got any such cheque encashed issued by the appel­ lant. In these circumstances the claim of the appellant that he made pay­ ment of Rs. 25000/- on 5-9-1964 to the respondent's attoreny after encash­ ing a cheque of Rs 15000/-could not be said to have been substantiated Learned counsel for the appellant very vehemently urged that entries in the book of account fully supported the plea of appellant. No doubt in the cash book produced by the appellant, there is an entry with regard to the encashment of a cheque of Rs- 15.000/- by the appellant on that date but in the absence of supporting evidence in that behalf this entry alone could not be herd as proof of such payment. Apart from it, the respondent in his cross-examination admitted that the bank accounts are not entered in the books of account produced by him but they are entered in a separate book. The preponderance of the evidence in the case therefore fully supported the plea of the respondent that he did not receive any payment from the appellant on 5-9-1964 and as such the conclusion arrived at by the learned trial court that the disputed receipt Ex. 12 did not bear the signature of the respondent's attorney is not without any material on record. It is wrong to say that the conclusion reached by the learned trial court with regard to non-payment of the amount by the appellant to respondent's attorney on 5-9-1964 is based solely on a comparison of the signature of the attorney on the disputed document (Ex 12) with his admitted signature. After reading the judgment as a whole I am of the view that the comparison of the disputed signatures of respondent's attorney on Ex. 12 with his admitted signature was only one of the circumstances which influenced the opinion of the learned trial court in reaching the conclusion that it was not signed by him. The other evidence on record and the attending circumstances of the case fully supported the conslusion of the trial court tbat (Ex. 12) was not signed by the respon­ dent's attorney as no payment could be proved by the appellant on 5-9-1964. I, therefore, see no reason to interfere with the judgment and decree of the trial court and reject this appeal with costs. (MIQ) Appeal rejected

PLJ 1987 Karachi 450 PLJ 1987 Karachi 450 Present : naimuddin, J Syed KHAD1M WJSSMN A.BDI--Appellant versus Mst. GETI ARA BEGUM—Respondent P'R.A "No. 'i^ of V%S, 4vbia\v=,«L cm 1Q-U.19&5 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 10 (2)—Rent—Payment of—Receipt for—Held : Landlord being under obligation to acknowledge receipt of payment of rent in writ­ ing, tenant to be required to obtain receipt for same in order to avoid any future dispute as regards payment thereof. [P. 453]B (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

S. 15 (2) (ii)-Rent—Payment of—Proof of—Burden of proving that tenant had not paid rent sufficiently discharged by landlord— Held : Burden to be shifted on tenant to disprove (non-payment) by producing receipts or any other evidence. [P 452]A (Hi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)—

Ss. 15 (2) (ii) & 21 — Default — Proof of — Landlord discharging initial burden in proving non-payment of rent — Tenant, on other hand, failing to prove payment—Held : Order of eviction passed by Rent Controller to be upheld. [P. 454]C Mr. Abdul Naseer Khan, Advocate for Appellant. Mr. A. K. M. Idris, Advocate for Respondent. Date of hearing : 20-11-1985. judgment This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is from the order dated 20-3-1985, passed by the Controller whereby he has ordered eviction of the appellant from House No. 1329, Block 14, F. B. Area, Karachi. 2. The facts giving rise to this appsal, briefly, stated, are that the res­ pondent filed an application under Section 15 of the Ordinance for eviction of the appellant on the grounds of default in payment of the rent, the elec­ tricity and the gas charges, and nuisance. The appellant in his written state­ ment denied both the grounds. Therefore, on the pleadings of the parties the Controller framed the following issues :— "(1) Whether the opponent committed default in payment of rent, electricity and gas charges ? (2) Whether the opponent is guilty of nuisance ? (3) What should the order be ? 3. Before the Controller the respondent filed her own affidavit (Exh. 3) and the affidavit of her brother Allay Hassan (Exh. 4) in support of the plea of default and the affidavits of two other witnesses who are her neighboured namely Zaheer Baig (Exb. 5) and Abdul Rashid (Exh. 6) in support of the plea of nuisance. They were all cross-examined by the Counsel for the appellant. 4 On the other hand, the appellant riled his own affidavit and the affidavit of Maqsood Anwar in rebuttal to the affidavit of Zaheer Baig. All the aforesaid witnesses were cn'ss-examined After considering the evidence the Controller found issue No. 1 in favour of the respondent and issue" No. 2 against her. and ordered eviction of the appellant giving him three months time to vacate the premises. The appellant has, therefore came up in this appeal. 5. I have heard Mr. Abdul Naseer Khan, learned Counsel for the appellant and Mr. A. K. Idris learned Counsel for the respondent. The learned Counsel for the parties have also taken me through the affidavits in eVibence Tried by the aforesaid witnesses and their cross-examinatioD. 1 have also perused the notice dared 12-2-1981, (Exh. A/3) and the money order coupons. The respondent in the application had alleged that the rent of the premises is Rs. 450/-per month and that the appellant is also liable to pay electricity and gas charges. The case of the respon­ dent before the Controller was that ths respondent did not pay any rent, electricity and gas charges from August 1979. mspite of repeated demands. The appeHans in his written statement stated that thi rent was enhanced from Rs. 4>0/-per month to Rs. 500/-per month from 14-1-1980, and that he paid the monthly rent regularly but the respondent never issued any receipt for the same His further stand was that he paid the electricity and gas charges upto January. IW I. and that on refusal of the landlord to accept the rent sent to her by money ordsrs he started depositing the same in the Court in Misc. Aprs No. 284 of 1981, which was dated I2-I-I981. It may be mentioned that the Rent Case was field against the appellant on 21-1-1981. B.-fore the Controller it was asserted that the appellant had paid the rent frou August, 1979, to May. 19.SO and electricity gas charges from August, 1979 till" December, 1981, and that the respon­ dent did not issue any receipt for the .-ame, 6. However, the Controller refused to believe the appellant that he had paid the rent upto June, 1980 an.i electricity and gas charges upto December. 1981 for the reason ttut, it the respondent had refused to receive the rent from June, 1980, how could she receive the electricity and the gas charges from June. 1980 to December, I9S1. He found that the appellant had failed to produce any documentary or oral evidence proving that he had paid the rent, electricity and gas charges for the disputed period to the respondent und that the respondent did not issue any receipt for rent or the electric,!v and the gas charges. He relied on the adraissi jn of the appellant ma>ie in his crosexamination that he was unable to produce any rent retvipt

m other evidence to prove payment of rent from August I9"9, til! M.iy. !90. and electricity and gas charges from August i9?9, till D-cenmer i' : sl fi,' hci.l that in absence of any oral or documentary evidence mere word of the appellant was not sufficient to prove the payment He therefore ordered his eviction. 7. Mr. Abdul Naseer Khan learned Counsel for the appellant submitted that the finding of the Controller that the appellant had failed to pay the rent and electricity and gas charges for the aforesaid period is incorrect as there being word against word and burden of proof being on the respondent, he should have held that respondent had failed to prove nan-payment of runt and electricity and gas charges. He further submitted that the respondent had not issued any rent receipt and it was so admitted by her brother in his cross-examination. In support of his submission he relied on Mst. Fayyazi Begum Etc. v. Zakiuddin (N. L. R. 1984 Civil 96), Mst. Anwari Begum v. Noor Hassan (PLJ 1984 Kar. 179) Muhammad Shaft v. Iqbal Ahmad and another [PLD 1965 (W P) Lah. 23). 8. On the other hand Mr. A. K. M Idris learned Counsel for the respondent submitted that the appellant used to bring prepared receipt and the respondent used to sign the same. He further submitted that the respondent had proved non-payment of rent. He relied on and Muhammad Ramzan v. Bashir Ahmad PLD 1967 Lah. 696), and Allah Din v. Habib (PLD 1982 S C465). 9. Now taking up the submission of Mr. Abdul Naseer Khan that the respondent was not jssuing any rent receipts may be stated that the respondent in her cross-examination to the learned counsel for the appellant stated that the appellant used to bring rent receipt and she used to sign it. The learned Counsel for the appellant however, pointed out that the respondent in her cross-examination admitted that she was not in posses­ sion of the counterfoils which bear the signature of the appellant In the aforesaid circumstances her statement that she was not in possession of the counter-foils which bore signature of the appellant was correct. In view of the aforesaid evidence it cannot be said that the respondent was not issuing any rent receipt and the question of respondent possessing any counter-foils which bore her signature does not arise It was however, pointed out by Mr. Abdul Naseer Khan that the respondent's brother in his cross-examination has not said that the appellant used to bring rent receipts to his sister and his sister used to sign it. What he has said is that she used to issue receipt of rent in his presence and that he could not say as to when the last receipt was issued to the appellant by the respondent. This statement in my opinion is not in any manner inconsistant with her statement that the appellant used to bring receipit and she used to sign it. The evidence of her brother is to be read in that context. Therefore, in my view, the burden of proving that the appellant had not paid the rent was sufficiently discharged by the respondent and then burden nad shifted on him to disprove by producing the receipts or any other 1 evidence. The appellant in his evidence admitted that he had no evidence, c documentary or oral, available with him It was not his case that he had ' paid the rent for which the claim was made by the respondent in the r presence of any witness. It is therefore, clear that he failed to discharge the burden of disproving non-payment of rent or proving payment of the rent. 10. Now, before taking up the cases cited by the learned Counsel for the parties, I may refer to the following dictum of Hamoodur Rahman, C.J , in Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (both represented by heirs) (PLD 1971 SC 334) :— "The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to the definite conclusion—(Vide Durga Prasad and another v. Ghanshiam Das and others (PLD 1948 PC 171). lu such an event the rule is that the party on whom the onus lay must fail." 11. In view of the evidence brought on record lam of the view that the Controller was right in not believing the evidence of the appellant that e had paid the rent for there was not reasons for respondent not to accept electricity and gas charges but to accept the rent. The claim by the appelant that be had paid the electricity charges upto December, 1981, was made for the reason that, from June 1980, he had started depositing rent with the Controller in Mist.. Application filed bo him on 12-1 1981, but he had not deposited the electricity and gas charge with the rent nor had he included the said charges in the money orders for rent, which he had started sending from 14th June, 19KO. The appellant is a recruiting agent as alleged by the respondent or an Estate Broker as Mated by Mr. Abdul Naseer Khan at the bar, and in any case, he is an English knowing educated person as would appear from his affidavit and therefore, it is unbelieveable that he would make payment of rent without receipts. Further, under Section 10 (2) of ihe Ordinance the landlord is under obligation to acknowledge the receipt of paymsnt of rent in writing and it was the duty of the appellant to obtain receipt for tha same to avoid any future dispute as regards payment thereof. Under these circumstances finding of the learned Controller is unexceptionable. 12. Now, remains to be considered are the cases cited by the learned Counsel for appellant. In the case of Msl Fayyazi Begum etc, v. Zakiuddin (Supra) it was held that once a landlord admits that he had not been issuing receipt to the tenant and he claims that the tenant has not paid the rent and the same is denying by the tenant then the burden is on the land­ lord to estabish that such receipts were issued as and when the occasion arose. If the landlord is unable to produce documentary evidence of such facts then mere t.tatement of the landlord to the ef'Vct that the tenant has defaulted in payment of rent should be corroborated by some proper and cogent evidence because in .such circumstances the sole statement of landlord ma> not be sufficient to prove the default. In the present case the land­ lord has stated thai she had hfeu su'inng and giving (he rent receipts which used to be brought by I'm .••npe;hint in.:i ihat distinguishes the cited case It ma> h? mc;!ti.>ued !!mi '•'•> she c:u>! --.asc also the Icarnec Judge held that since the appellant h..d ;.•..-! ••>">; 'eg.iiarij issuing receipts and he had not examined any v\it;.e-sthe i,.: j k. k.j 10 ijuehurge tht? burden of pioof. But in the present ca-c burucn .if proof, ><> ray opinion, was fully discharged. Moreoxer. tht case is diit^gmshabic for the reason that in the case on band the appellant had Marted sending money orders for rent and thereafter depositing rent m M;sc proceedings from the month of January, 1981. He did not however, send my money order on account of electricity and gas charges. Thus hi anv case there was default in payment of elcctnciu charges \hich also made the appellant liable to be evicted from the premises in view of she dcfmin.'n of 'rent' as given in Section 2(1) of the Ordinance 13. In the ca-.^ of i/?/. 4>i-<>ri lit^um v \o»r .Hassan (supra) no rent receipts were issued by the landlady and her entire case rested on her sole oral e- (Jenee while ihe oral testimony regarding payment of rent to (be contrary was supported by documentary evidence in shape of money orders and cheques, In these circumstances it \yas held that default in payment of rent had not been proved This case again distinguishable on facts. 14. Taking up the last cited case m Muhammad Shaft (supra) it was held by Sajjad Ahmed, J, that non-production of receipts by the tenant has been given an exaggerated importance by the learned lower appellate Court. l! is not unusual for old tenants, like those placed in the position of the appellant, not to insist on the execution of receipts, thus avoiding to express openly a lack of faith in the honesty of purpose of the landlord, After reviewing the evidence it was observed that on the evidence on record and the entire circumstances of this case it is not possible to give a conclusive finding safely, one way or the other, whether rent was in fact paid for these three months, as alleged by the appellant, or remained in arrears, as alleged by the respondent. In this situation, since the onus was on the respondent to prove non-payment of rent, the doubt had to be resolved in favour of the appellant. In the present case in view of the circumstance there was no question of any doubt and the Controller reached the correct conclusion. Therefore, this case is also distinguishable on facts. 15. Taking up the cases citsd by Mr, A.K.M, Idris it may be mentioned that in the case of Muhammad Ramzan (supra) the statement of the landlord was that the tenant had not paid him rent since October 1957. The tenant however, in the cross-examination admitted that he was submitting accounts to the Income-iax Department since 1951, and that there was no entry in his account-books regarding the payment of rent. In these circumstances it was held that mere assertion tbat the rent had been paid would not carry the day. 16. Taking up the Supreme Court's case of Allah Din (supra) it may be stated that in this case it was observed by the learned Judges of the Supreme Court thai in civil proceedings an issue is to be decided by preponderance of evidence and in case where there is a word against a word, it is the party on whom Say the onus of proof must fail. It was was further observed that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by Section 13 (2( (i) of the SincS Urban Rent Restriction Ordi­ nance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent, for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question, and in support of this proposition reliance was placed upon Khairnn-Nif.n v. Muhammad Ishaq (PLD 1972 SC 25). 17. I am therefore, of the view that the respondent had discharged initial burden and the appellant failed to prove payment of rent. Accord­ ingly, the order of the Controller is upheld. Consequently, the appeal dismissed with costs. 18, I may record that A.K.M. Idris questioned the finding of the Controller on the issue of nuisance but since I have confirmed the finding on issue of default therefore, 1 do not consider it necessary to discuss the , issue of nuisance. I9r Mrr Abdul Naseer Khan requests two months time to vacate the premises. Mr. Idris is not agreeable for two months time. But 1 think the il request is reasonable and 1 grant the appellant two months time to vacate C the premises and hand over its possession to the respondent provided he deposits the rent according to the order of the Controller. (MIQ) Appeal dismissed.

PU 1987 Karachi 455 PU 1987 Karachi 455 Present jbadat\ar khan t , J (tan ABDULLAH (since deceased) through his legal representative-- — Plaintiff S, IQBAL NASEEM— Defendant Objections to award in Arbitration proceedings in Suit No. 498 of 1985, decided on 27-3-1936 (i) Arbitration Act 1940 (X of 1940) - -- Ss 13. 14 & 28 & First Schedule, Pant, 3 — Arbitrator — Duties of— Held : Arbitrator being required to complete bis work within four months, whale case not to be Kept pending by him after having heard parties and after having completed his work, without order from court. [P. 45SjC (ii) Arbitration Act, 1940 (X of 1940) — -- Ss. 14, 16, 28 & First Schedule, Para, 3— Award— Making of—Time for — Matter remitted back to arbitrator by High Court with direction to parties to appear before him nn 1<>- 1 1-1984 — File from High Court, however, received on 20-12-1984 — Held ' Time o.f four months to be caleuuted from 20-12-1984 (and not from 10-11-1984). [Pp. 457 & 458JB (in) Arbitration Act, 1940 (X of 1940)- -- Ss. 14 & 30 read with Limitation Act, 1908 (IX of 1908) -Art. 178 Award — Filing of in court— Limitation for— Party to arbitration agreement moving court for filing of award— Held; Period of 90 days prescribed under Art 178 to be applicable— Such Article, however, to have no application where arbitrator himself files award in court™ Arbitrator, on his o.vn, Sling award with covering letter— Held : Art. 178 to have no application to such ministerial act of arbitrator. [P. 45 71 A Mr. Sir aj Ahmad, Advocate for Plaintiff. Mr. A. Wajid, Advocate for Defendant. Date of bearing : 18.3-1986. order These are objections under Section 30 of the Arbitration Act for set­ ting aside an award which has been given in a dispute between the plaintiff and the defendants in connection with a building contract. Fact of the case briefly stated are that the plaintiff Haji Abdullah (now deceased), under a contract dated 4 10-1978, engaged the defendant for constructing a first Class Resturant for a lump sum of 3 lacs. The con­ struction was to be carried out according to the plan and was to be complet­ ed within a specified time. Hereafter 1 will call the plaintiff as 'owner' and the defendant as 'contractor', The admitted position is that the contractor completed fhc work according to the plans. Some additional work was also awarded by the owner to the contractor .4. This agreement between the partie-, contained an arbitration clause wherebj disputes and difference were to be referred to arbitration of u named Arbitrator, nainelv on;- Mr. Miih.immad Anwar, who was to act as a Sole-Arbitrator 4A, Diputes and dilference-aro-.e-between 'lit parlies and tnev were referred to the Sole-Arbitrator for adjudication. The Arbitrator gave his award on 18-3-1985 (sic). This award was filed in Court for being made a rule of the Court Objections were fiied and were heard by my brother Mr K. A. Ghani, .!. The learned Judge after hearing both the parties set aside the award and remitted the matter back to the same Sole- Arbitrator for a fresh decision by order dated !5-10-i984 In this very order date of appearance before the Arbitrator was also iixed as 10 th November, 1984 On IO-11-19K4 parties appeared but the papers had not yet reached the Arbitrator, therefore, the cast was adjourned The order of the Court alonszwitb tiie tile reached th<- Arbitrator on 22-12-1984. The Arbitrator issued-notices to the pvirties for appearance on 29-12-1984, Thereafter the case proi-e-edeci un different dates which were fixed by the Arbitrator keeping in view tut tuns Inmt of four months which was prescribed in the order for giving his award The Arbitrator directed the parties to file thesr statement c,f claim which was doi.e Having received statement of claim from both the parties, the Arbitrator directed them to file Affidavit in evidence. The plaintiff tiled Affidavit in evidence on 5-2-1985. The Contractor was allowed to ^ross-examine the owner on Ibis Affidavit in evidence. This cros^-cxamination was done op 9-2-1985 and the case '\vas put oil" for iunl-er cross-examination. The crossexamination was returned and concluded o«i 21-2-1985 and the case was adjourned to 26-2-1985. On 26-2- i9»5 the Advocate t'oi the contractor moved an application t'ot the appointment of an Architect, lor report on the work. This application v, is granted and the Sole-Arbitrator appointed h licensed Architect. oq 26-2-i98i the ca>e, owever, did not proceeed as the son of the Arbitrator bad expired. Tht Contractor tailed to file any Affidavit in evidence til! the date of hearing which was 33-1985 On 3-3-1985 the Advocate of she owuei appeared but the Advocate of the contractor remained absent and the case was adjourned to 5-3-1985. On 5-3-1985 the owner remained present '.mi none appeared for the contractor and the case was adjourned So V ? 1985 tor filing the Aiiidavit m evidence by the contraaoi 'Before 9- - U lS Mbe Advocate >•'.' the contractor sought further adjournment and the Arbitrator acceded tu his requert and adjourned the case to 14-4-1985- On ,4-3-1985 an application was moved before the Arbitrator by the Adv-x.itc jf the uontraci-. i informing him that the contractor was dissatisfied with the proceedings and had moved an application under Section 5 oi' tlv..- Arbitration Act in the High Court prayiog for revoking the refeien.ee. Oo sh;> attitude she Sole Arbitrator was convinced that the contractor was -.Joptiog delaying tactics and the adjournment sought by the Advocate of the party were merely motivated to prolong the proceedings.. He, therefore, proceeded t^ examine the ( case uti mrc'its. In the meant-me the Architect who was appomsrd at the request of the contractor, bad submitted liis report, and recommendations to the Arbitrator. The ArUiirator at'tei exannnsng the merits '«f the case and report and recorurneiKlaUons of the Architect gave 31 Award on 18-3-198S.. He has filed this award alongwtth ins application dated. 4-8-1985, Notices wr? issued of this Award to the partie, -jjni uk oT has filed s'n?-^.: objections fr-r ^tumg a^i?!e the 3i«.ar;l Ths aru is a detailed u\sard spread on 10 page-;. In this award the learned Arbitrator has examined the contentions raised before him by the two parties and has also thoroughlv examined the report of the Architect and Engineer dated 16-3-1984 marked ek. P/2. He has disagreed with this report on certain paints and using his own discretion and independent judgment awarded a sum of Rs 69,000/ to the owner to be payable by the defendant contractor He lias struck this figure after taking into consi­ deration the over payments made to the contractor b\ the owner/plaintiff to the extent of Rs, 2,12.iK)0/- and readjustment of the amount of the additional work done by she contractor. 5. The learned counsel for ths defendant/contractor has argued the following objections and has urged that the award .should be set aside. These contentions are as follows . - That the award has not been filed within the time prescribed under Article 178 of the Limitation Act, That the award has been given after a period of four months. As such it is invalid, (3) That the defendant had moved an application under section 5 of the Arbitration Act on 14 3-1985 and informed the Arbitrator of this development b. a telegram and the Arbitrator ought to have staved the proceedings. (4) That the Engineer Architect had inspected the site and taken measurements of the construction without notice to the defendants/ Contractor. 6, [ now proceed to dispose of these objections. The award was signed on 18-3-1985 and il has been filed on 6-81985, It would appear that the Award has been filed by the Arbitrator after four months and 22 days. The learned counsel has argued that the time prescribed under Article 178 of the Limitation Act is 90 days from the notice of making of the award. But this contention is not well founded because the period of 90 days would be applicable only in such cases where a party to the Arbitration Agreement moves the Court for the filing of the award. This article will have no application if (he Arbitrator himself files the award in Court, Such is the case in baud None of the parties has applied to the Court for a direction to the Arbitrator for riling the Award in Court. The Arbitrator has on hi> own filed the A ward with a covering letter dated 4-M985 This action of (he Arbitrtor has been held to be a ministerial act U'which Article 178 of the Limitation Act has no application. This objection, therefore. Fail-. ". The ne.M objection raised by the learned counsel is that the award ought to have been given ^.thio four months from the reference. In this case the order was communicated to the Arbitrator on 20-12-1984 and the Award w-a> announced go i !•"•?•! 985. The learned counsel has argued that persod of 4 months should be calculated from 10-11-1984 which was the date fixed by the Court f-., appearance of parties before the Arbitrator. of the time h calculate i fioni JO-!! • ;Qg4, the award aiven on. IS.3-1985 would be late by ar-out $ da>-, ! could allow extension of 8 days under Section 2 of the Arbitration Acs read with Sec, S43 CPC. But In myi opmioti it is not necessary, because time must be calculated from 20-J2-1984IB -her. ch« Arbitrator rftcer.-l the file from ths High Court aod by issuing! notices to parties entered on the reference. Any other approach would be "f simply unrealistic; Suppose the file was further delayed and had reached the Arbitrator some time after expiry of 4 months. Could it be argued that the award should have been given before the order and papers were delivered to the Arbitrator. Moreover the order-sheet would show that delay in the award is attributable to the defendant himself and he should be the last person to turn round and object for this delay. This objection also fails. 8. The third objection argued by the learned counsel is that he had moved an application under Section 5 of the Arbitration Act on 14-3-1985 asJ.M No. 16/1985 and informed the Arbitrator to stay the proceedings, Ibut still the Arbitrator has given his aw.trd on 15-3-198>. There seems to Jbe no merit in this contention a> w,'!i, bsca'jsc the Arbitrator had to jcomplete his work within four months and without an order from the Court {he could not keep the whole case pending after having heard the parties and after having completed his work. Even now 1 have asked the learned counsel to show on what gDunJs hs waited the revocation but the learned counsel has failed to make out any case of partiality against ths Arbitrator. His only grievance is that he was not allowed proper accomm idation to file his Affidavit in evidence. But this allegation is belied by the facts of the case. It appears that the Arbitrator had adjourned the case on a number of occasions only to accommodate the Advocate for the defendant/ contractor and at the risk of running out of limitation for giving the Award. I agree with the Arbitrator when in his Award he answers this contention in the following words :— "From the contents of the remarks of the Advocate for the 2nd party on notice dated 5-3 85 and also the conversation on tele­ phone by the said Advocate I was convinced that the party No. 2 was determined to frustrate the proceedings before me, by making false allegations and by use of dilatory tactics Much prior to 14-3-1985 the Advocate for the party No. 2 stopped attending the proceedings and simply talked on telephone. 1 have not seen Syed Iqbal Naseem, party No. 2 during the whole proceedings except on a single occasion on 10-11-1984. The Advocate for the party No. 2 spoke to me on telephone that he and his party would not participate in the proceedings." 9. The last contention of the learned counsel for the defendant is that the Architect did not give him notice of inspection of the premises. This contention is also flimsy and not maintainable, for the reasons that if the defendant had any objsction on the report or recommendations of the Architect, he could raise those objections bsfore the Arbitrator and those objections could be examined. The very fact that the defendant chose to keep away from the proceedings and after cross-examining the plaintiff at length, did not care to appear before the Arbitrator, shows that there was not much to be said on their behalf Neither he filed any statement or affidavit in evidence nor offerred himself for cross-examination, nor indeed he came to question or criticise the report submitted by the Architect, which shows that his only endeavour was to prolong the tnattter and again time. The award is a speaking award. The learned Sole-Arbitrator has ^ exercised his best judgment-on the points, he has disagreed with the opinion of the Architect and allowed the defendant additional amounts which were not recommended by the Architect, All this shoui that the objections raised to this Award are merely to justify the with-holding of the excess payments which have been pocketed by the defendant and which he does not now want to return. No other point was argued by the learned counsel for the defendant. I would, therefore, reject these objections. The award should be made a rule of the Court and a decree be passed in terras of the award. (MIQ) (Objections rejected).

PLJ 1987 Karachi 459 PLJ 1987 Karachi 459 Present : saeeduz/aman siddqui, J Dr. (Mrs) NASIM QURESHI-Petitioner. versus DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY, Karachi and Another—Respondents Const. Petition No. S. 136 of 1984 (also No. 134 of 1984), accepted on 16-IO-1986 (i) Constitution of Pakistan, 1973—

Art. 199-Illegal order—Writ against—Alternate remedy—Failure to avail—Effect of—Actions taken by authorities concerned found to be suffering from illegality on their face— Held : Existence of purely discretionary remedy of revision not to be treated as bar for exercise of jurisdiction by High Court under Art. 199 of constitution. [P, 463JC (ii) Evacuee Trust Properties (Management & Disposal) Act, 1975 (XIII of 1975)-

S. 25—Evacuee trust properties—Ejectment from—Notice for—­ Requirement of—Functionaries deciding to eject person in occupa­ tion of evacuee trust property in accordance with provisioni of'S. 25 of Act —Held : Service of notice on such person to be must before ejectment takes place. [P. 461JA (Hi) Evacuee Trust Properties (Management & Disposal) Act, 1975 (XIII of 1975)— S. 25—Evacuee trust property—Person in occupation of—Eject­ ment of—Notice for—Object of—Held : Object of giving notice under S. 25 of Act to affected party being to give him opportunity of placing his view point before authority concerned with regard to proposed action, such authority not to procerd further unless it considers and rejects representation made by affected party— Held further : Giving of notice not only to provide person in occupation opportunity to defend himself against proposed action but also to be necessary for authorities deciding any representation filed against proposed action in accordance with law before finally ejecting him from premises. [P. 462JB (ir) Eracuee Trust Properties (Management & Disposal) Act, 1973( XIII of 1975)—

Ss. 25, 16 & 17 read with Constitution of Pakistan, 1973—Art. 199 Provisional Constitution Order, 1981 (CMLA's Order I of I981)—Art, 9 —Evacuee truit property—Ejectment from-Challenge to — Notice for ejectment issued and order passed in appeal in mechanical manner without application of mind—Concerned authorities even not following procedure prescribed under statute — Held Impugned notice and orders to be without lawful authority, fP. 463]D (v) Writ jurisdiction -

Relief in—Specific prayer-Omission ti> make—Effect of—Specific grounds challenging validity of order of respondent No. 2 raised in memo of writ petition—Graot of such relief against respondents as may be found necessary and- expedient alio prayed for in petition- Held : Mere omission on part of petitioner to make specific prayer in prayer clause not to disentitle him to relief if otherwise he be found entitled to it on facti and circumstances of case. (P. 464]E Mr. K. A. Wahab Advocate for Petitioner. Mr. S. H. Fani, Advocate for Respondents. Date of hearing : 16-10-1986. judgment This order will govern the disposal of the above noted two constitution petitions filed by the two different tenants of the same building. The petitioners in the above petitions are the tenants of premises No. G 1 and G 2 in the building bearing No. RB-9/7. In petition No. 134 of 1984 the tenant was, sened with an ejectment notice on 18-4-1984 by respondent No. 1 requiring him to vacate the premises within 7 days of the service of the notice. The notice was set aside in appeal by the Administrator, Evacuee Trust Board (respondent No. 2) on 9-5-1984 on the ground that the requirements of law were not fulfilled. Thereafter the petitioner was served with a show-cause notice dated 22-5-1984 calling t upon him to show-cause within 7 days of the service of the notice as to why be should not be evicted from the premises in hii occupation.In response to the above notice the petitioner submitted a detailed explanation dated 9-6- 1984 and it n alleged that without bearing the petitioners and without consi dering tht above representative of petitioner he was directed by notice dated 16-12-1984 to vacate the premisei within 7 days of the service of the notice. The petitioner filed appeal under Section 16 of Act XIII of 1975 before respondent No. 2 against the notice dated 16-12- 1984 but the same was rejected on the sole ground that notice dated 16-12-1984 was issued by the respondent No. 1 after complying the legal formalities In Petition No. 136 of 1984 the petitioner has been served with an ejectment notice dated 16-12-1984 asking him to vacate the premises within 7 days of the service of the notice. Against this notice the petitioner filed an appeal under Section 16 of the Act before respondent No 2 who rejected the same on the ground that all legal formalities were complied with by the respondent No. 1 before issuance of that notice. It is not disputed by the learned counsel for the respondent that the petitioner in Petiton No. 136 of 1984 was not given any notice to show-cause against the proposed ejectment '<? before service of ejectment notice dated 16-12-19J<4 ai was done in the case of petitioner in Petition No. 134 of 1984. The learned counsel for the petitioner in the above petitions jointly contended that the orders of ejectment were passed against them against the principles of natural , justice as they were condemned unheard. It is also contended that there is nothing on record to sbjw that the premises occupied by the petitioners were required by the Federal Government for any public purpose which is a condition precedent for passing of an order under section 25 of the Act. , Learned counsel for the respondent on the other hand contended that there is no provisions in the above Act for hearing the affected party before passing an order under section 2? of the Act. It is alternatively contended that the present petitions are not maintainable as the petitioners failed to exhaust the alternate remedy available to them under the Act. After hearing the learned counsel for the parties, I am of the view that these pennons must succeed It is an admitted position that petitioners are tenants of respondents and there are no allegations against them that they ha\e contravened any of the terms and conditions of tenancy. It is also tn admitted position that the petitioners are being ejected from the premises on the allegations that the premises is required by th«> Federal Government for public purposes. Section 25 of the Act which empowers the respondents to eject a person in occupation of a evacuee property reads as follows :— "25. Ejectment. - The Chairman, an Administrator, a Deputy Administrator, or an Assistant Administrator may eject or cause to be ejected any person in possession or occupation of any evacuee trust property whose possession or occupation is not authorised by or under any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who has failed to pay public dues, or has wilfully caused damage to any such property or any person in occupation or possession of any evacuee trust property which is required for an object which is considered to be public purpose by the Federal Government, after giving him notice, and for the purposes of such ejectment may use or cause to be used such force as may be considered necessary." A carefui reading of the above provisions will show that a person in possession of an evacuee trust property could be ejected therefrom either by the Chairman, the Administrator or Deputy Admi­ nistrator or Assistant Administrator if h's possession or occupation is not authorised by or under the provisions of the Act; has contravened or may have contravened any of the terms and conditions under which the property is held by him ; has failed to pay public dues or has wilfully caused to damage to the property. Persons in occupation of evacuee trust property can also be evicted under Section 25 of the Act by these function­ aries on the ground that the property is required for an object which is considered to be a public purpose by the Federal Government. It is com­ mon ground between the parties that the cases of the above petitioners fall under the last mentioned category of Section 25. It is significant that in all cases where the functionaries decide to eject a person in occupation of a evacuee trust property in accordance with the provisions of Section 2~ of the Act, service of notice on such person is a must before the ejectment takes place. The learned counsel for the petitioners jointly contended that the object of service of notice mentioned in Section 25 of the Act on the occupant is to afford him an opportunity to defend himself against the proposed action and as the petitioners were never afforded such an opportunity the action contemplated by the respondents is wholly without jurisdiction. It is furtner contended by the petitioners jointly that as they are , being ejected from the premises on the ground that premises occupied by them is required for a public purpose by the Federal Government they are entitled to at least know about the order of the Federal Government under which it was decided to utilize these premises for an object which the government considered to be a public purpose. Learned counsel for the respondent on the other hand contended that the notices issued to the petitioners in the above cases by the Dy. Administrator, Evacuee Trust oard, did indicate that the property was required for public purpose which according to the learned counsel substantially complied with the requirement of Section 25 of the Act. With regard to the provision which required the authorities to serve a notice the efferted person before his ejectment from the property/premises, it is contended by the learned counsel that the object of giving such notice is fulfilled if the petitioner is notified about the intention of the authorities to evict him from the premises. After hearing the learned counsel for the parties at length I am unable to agree with the contentions of learned counsel for the respondent. The provisions regarding service of notice on the affected party before his eviction, in my humble opinion, re aot illusory in nature. There cannot be any doubt that the bject of giving notice under Section 25 of the Act to the affected party is o give him an opportunity of placing his view point before tbe authority concerned with regard to the proposed action and if such representation S made "by the affected party, the authority cannot proceed further unless I considers the representation of affected party and rejects the same. The 'act that an order passed under section 25 of the Act is appealable lends support to the conclusion that the object of giving notice to the affected party is not only to provide him an opportunity to defend himself against f proposed action but it will also be necessary for tbe authorities to decide any such representation which may be filed by tbe affected party Igainst the proposed action in accordance with the law before finally ejecting him from the premises. If the argument of learned counsel for tie respondent, that the object of notice under section 25 of the Act to the affected party is only to make him aware about the proposed action and that the authority is neither bond to hear nor decide the representation of affected party if filed, is accepted then the provision for appeal against the order passed under Section 25 of the Act will be rendered nugatory awt' illusory. In petition No. 134 of 1984 in reply to show cause notice served on the petitioner a detailed explanation was submitted to the respondent No. 1 by the petitioner but from the impugned notice it does not appear that this representations of the petitioner was ever considered by the authority concerned. The impugned notice is in cyclostyted form on which number of grounds are mentioned and some of them are scored off. This hardly shpws application of mind on the part of authorities concerned before passing the orders of ejectment against the petitioner. Tbe appellate order in this case only confirmed tbe original notice without assigning any reason or without adverting to the contentions of the petitioner. In the second case namely Petition No. 136 of 1984 without issuing any show-cause notice to the petitioner, an order Of ejectment has been passed straightaway against him which on its face is contrary to the provision of Section 25 of the Act. Mr. Fani, learned counsel for the respondent very vehemently contended that there existed an alternate remedy by way of revision under the Act against the impugned actions which the petitioners have not exhausted bffore invoking constitutional jurisdiction of this Court and as such these petitions are not maintainable. Learned counsel in support of his contention referred to the cas of Abdul Rashid and two others v. Member Board of Revenue Baluchistan (PLD 1986 Quetta 280). The case relied by the learned counsel is of no assistance to him in the circumstances of the present case. On the contrary the observations by the Supreme Court in the case of Frontier Cloth Mills v. Sales Tax Officer (1972 SCMR 257) that where illegality appears on the face of tns record, the writ jurisdiction may be invoked and exercised ia favour of the party despite availability of statutory right of appeal supports the contention of the petitioners that they were entitled to maintain the present petition Similarly in the case of Mwree Brewery Co. Lid. v. Pakistan through the Secretary to Government of Pakistan, Works Z);v/j; 7-: and 2 others (PLD 1972 SC 279) the Court held that inspite of existance of alternate remedy the Courts have exercised jurisdiction under the constitution where it is complained to the Court that the order was a nullity m the eye of law or wholly without jurisdiction The fol­ lowing observations appearing at page 287 of report may be reproduced here with advantage : — It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the CDA) to make the impugned acquisition under the Ordinance If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt. Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD 1961 SC !19), that the rule that the High Court will entertain a writ petition when other appropriate remedy is yet available is uot a rait of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the v.ell recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority/' In view of above legal position I am of the view that in the circumstance of the present cases as the impugned actions taken by the authorities concerned suffered from illegality on their face and the statutory remedy by way of appeal having been resorted to by the parties without any effect, the existence of a further remedy by way of the revision under the statute which was purely discretionary in nature, could not be treated as a bar for exercise of jurisdiction by this Court under Article 199 of the Constitution specially where imminent threat of eviction was looming over the heads of the petitioners. A reading of the impugned notices and orders ia appeal will show that they were passed in a mechanical manner without application of mind of the concerned authorities and without fol lowing the procedure prescribed under the statute. I accordingly accept both tbe petitions and declare the two impugned notices and the orders passed by the respondent in appeal as without lawful authority. Before parting with the cases I may state here that Mr. S. H. Fani, the learned counsel for the respondent also made a submission that in Petitioo No. 134 of 1984 the petitioner did not challenge the order of respondent n°- 2

Q ttie Pfayci clause. It is accordingly contended by the learned counsel that in these circumstances, the order of respondent No. 2 passed in his case cannot be declared as without lawful author! ty. This contention of the learned counsel ha no substance As many as 3 specific grounds are raised in the memo of petition challenging the validity of the order of respondent No. 2. Respondent No.'_»js a party in this petition and in the counter affidavit filed en behalt of respondent no such grievance was made. There is also alternate prayer in the petition for grant of such other relief against the respondents as may be found necessary and expe­ dient in the circumstances of the case. In these circumstances, mere omission on the part of the petitioner to make a specific prayer in the prayer in the prayer clause could not disentitle him to the relief if other­ wise, he, is entitled to it on the facts and circumstances of the case. There will, however, be no order as to costs. (TQM) Petition accepted.

PLJ 1987 Karachi 464 PLJ 1987 Karachi 464 Present : saeeduzzaman siddiquj. J MONTRES ROLEX S.A., GENEVA, SWITZERLAND -Appellant versus ASSISTANT REGISTRAR OF TRADE MARKS, Muslimabad, Karachi and Another—Respondents Misc. Appeal No 68 of 1979, dismissed on 20-12-1986 (i) Trade Marks Act, 1940 (V of 1940)-

Ss. 5, 6, 14, 15, 16 & 76—Trade Mark— Registration of— Challenge to—Discretion exercised by Registrar in accepting application of respondent tNo. 2) for registration of mark '-RolJi" under class 34 in respect of tobacco, (raw or manufactured) not found to be arbit­ rary cr offending against any settled principle of law or provision of Act—Held : No interference to be called for in appeal. [Pp. 466&470JA& D (ii) Tnde Marks Act, 1940 (V of 1940)-

Ss. 5, 8 & 10—Trade mark—Registration of—Prohibition of— Held : Person acquiring right by virtue of registration of mark in respect of particular class of goods not to claim right to prohibit use of same mark by other person in connection with goods of totally different character as such use not to be construed as causing inter­ference with acquired right of registered proprietor. ,Pp. 469 & 470]C ( iii) Trade Marks Act, 1940 (V of 1940) -

Ss. 6, 7. 10 & 21—Trade mark—Registration of—Held: Mere advertisement of products (of appellant) in periodical and newspapers available in country not to be sufficient to establish any disuiictiveness of mark of appellant in absence of evidence of actual sale of products with mark in local market. [P. 469jB Mr. Caughtai M. Jamiluddin, Advocate for Appellant. Kh. Mansoor, Advocate for Respondent No. 1 Date of hearing : 24-11-1986. judgment The appellant ha» challenged the decision of ami. Registrar of Trade Marks dated 18-&-I9.Q passed in opposition proceedings No. 29/77 6led by the Appellant The Appellants arc the manufacturer ot 'Role\ \utches and they are also the registered proprietor of the word "Rolex" with a crown device in class 14. The respondent No 2 who are manufacturer of cigarettes, on l2-i i-1976 applied lor registration ot trade mark "Rolex" proposed to be used in respect of tobacco, raw or manufactured including cigarettes. After due scrutiny of the application by the office of Registrar, the mark was advertised before acceptance in the Trade Marks Journal No. 313 of February, 1977. The appellants who are the registered proprietor of the mark "Rolex'' in respect of all kirtJs of horo'ogical instruments and parts thereof, jewellery, filed opposition to the registration of the trade mark "Rolex" in favour of respondent No 2. It was urged by the appellants before the Registrar that the word "Rolex" is a symbol of high quality and is identical to appellant's mark "Rolex" both visually and phonetically and as such it is likely to cause confusion and deception among the general public It appears from the order of Registrar that the appellants relied on sections 6, 8 and 10 of the Trade Mark-, Act to oppose the application of respondent No. 2 In the counter statertunt filed by re^pjnjiat N>. 2 in reply to opposition application, it was urged that the mark - : Rolex" was proposed to be used by the appellant on the goods of totally different description which fall in class 34 while the mark -Rolex" registered id favour of the appellant is in respect ot" goods in class 14 It was also urged by respondent Mo 2 in the counter statement that oniy part of the mark of the appellant was identical to their mark when examined as a whole. With regard to the allegation of confusion likely to be caused as a result of use of the mark "Rolex" by the respondent No. 2 in relation to their goods it was firstly contended that the allegation is far fetched as tbe goods of the appellant and that of the respondent are of totally different descrip­ tion having not the rernjtest connection with each other, and secondly, the goods of appellant have no goodwill or reputation m Pakistan as they are neither sold nor available in open market in Pakistan. It wan additionally urged before the Registrar that the mark 'Rolex' is already registered underclass 12 as a trade mark in respect of vehicle spring by a local company namely Sattar & Company of Gujrat and as such the appellant cannot claim exclusive use of mark "Rolex" by them. In support of their opposition, the appellant submitted before the Registrar are affidavit sworn by Mr. Gasel Harmau, the director of the appellant's firm and another affidavit of one Hassan All Moolji, a local trader while respondent No 2 in support of his application filed affidavit of its General Manager, Asiam. The tribunal after considering the evidence produced before him reached the conclusion that in so far section 1U of the Trade Marks Act was concerned it was not applicable us the goods of the respondent No. 2 and th^t _•:' the appellant belong to different description and classes. With regarj to the protection of the mark of the appellant under section 8(a) of the Act the Registrar held that no evidence was led by the appellant to prove th.it the mark ; Rolex" K being used in Pakistan by them on their goods so that !t had acquired any reputation and goodwill in this country. Number of reported cases were cite^l before the Registrar by the parties •h«cn are referred ;:> the iu.lament und after analysing ratio decidendi of these cases the tribunal reached the conclusion that the initial onus of v proving that the registration of the mark "Rolex ' in favour of respondent No 1 2 is likely to cause conclusion and deception was on the appellants which they filled to discharge and accordingly it dismissed the opposition of appellants. Learned counsel for the appellant in this appeal has mainly contended that the mark "Rolex" registered in favour of their client was not only the marie but also a part of the trading style of the appellant and as such the same could not be registered in favour of the respondent No. 2 as it would certainly cause confusion in the minds of an average purchasers that the goods marketed by the repondent No. 2 under mark "Rolex ' have some connection with the appellants. It was urged by the learned counsel that the mark "Rolex" is so well known in Pakistan with regard to watches manufactured by the appellant that it has become a household word and if it is allowed to be used by the respondent No. 2 it may create an impression in the mind of general public that the goods produced by respondent No. 2 have some connection with the appellants. With regard to use of trade mark "Rolex" in Pakistan by appellant, the learned counsel contended that the mark of the appellant is registered all over the world including Pakistan and is advertised in journals and newspapers which have considerable circulation in Pakistan. It is accordingly contended that the general public in Pakistan is well conversant with the appellant's mark "Rolex". To suoport his above contentions the learned counsel specifically relied on Caltex case reported in AIR 1969 Bombay 24, Bata case reported in 1986 CLC 1636 in addition to several other cases. Learned counsel for the respondent on the other hand relied on Jeep case reported in PLD 1969 Karachi 376 'Nabisco' Biscuit case reported in PLD 1962 Karachi 355, and Sony's case reported in PLJ 1978 Karachi 61. After hearing the learned counsel for the parties at length and carefully considering the case laws cited at the bar I am of the view that the discretion exercised by the Registrar in accepting the application of the respondent No. 2 for registration of the mark "Rolex" is neither arbitrary nor offends against any of the provisions of the Act and as such no interference is called for in the appeal. It may be stated here that section 10 of the Trade Marks Act relied by the appellant before the tribunal prohibits registration of a trade mark which is identical with another marks belonging to a different proprietor in respect of the same goods or description of goods or which so nearly resemble to such trade mark as is likely to deceive or cause confusion. A careful reading of section 10 ibid will show that in order to attract the application of this section it is necessary to establish firstly, that the mark applied for registration is identical to another registered mark of a different proprietor and secondly, the goods in respect of which the registration of the mark is applied for is of the same class and description in respect whereof an identical mark or a mark so nearly resembling chat mark as is likely to cauie confusion, is already registered in favour of another person. In the case before me the appellants arc the manufacturer of watches and their mark "Rolex" is registered in class 14 in respect of horological instruments of all kinds and parts thereof and jewellary whereas the respondents No. 2 had applied for registration of the mark "Rolex" in respect of tobacco raw or manufactured and cigarettes which are goods of totally different clus a&d description. Learned counsel for the appellant contends that both cigarettes and watches are articles of daily use by a person and as such there is likelihood of deception. The argument of the learned counsel has not impressed me. The fact that several goods can be described as items of daily use does not mean that ail such goods will belong to the same ciass or description of goods. It cannot be disputed that watches and jewellery are comparatively costly items which are used by only a particular class of people whereas cigarettes are consumed by people belonging to all walkes of life. It also cannot be disputed that shops and estalishments dealing in watches and jewellary, normally do not sell cigarettes as well. Articles like watches and jewellery are sold g:nerally in high class commercial establishments in posh areas while cigarettes are usually avail­ able in small cabins as well run on road sides. The tribunal was therefore, justified in holding that section 10 of the Trade Marks Act had no appli­cation in the present case. With regard to the contention of appellant that the mark "Rolex" could not be registered in view of provision of sec­ tion 8(a) of the Trade Marks Act it is urged by the learued counsel for the Respondent No. 2 that in order to substantiate that the registration of the mark "Rolex" in favour of the respondent No. / was likely to cause deception and confusion the initial onus lay on the appellants to establish first that the mark registered in their favour had acquired reputation and goodwill in the local market of Pakistan The contention of the learned counsel for the respondent is not without force. In the case of 5 M. Tofiq v National Biscuit Company (PLD J962 Karachi 335) the appellant in that case in the year 1951 applied for registration of trade mark "Nabisco" proposed to be used in respect of Cakes, Biscuit products under class 30. On 3rd March, 1954 National Biscuit Company (a foreign Company) al»o applied for registration of the mark 'Nabisco' in class 30 and they also opposed simultaneously the registration of the mark "Nabisco" in favour of appellant. The Registrar after considering the registration of the mark "Nabisco" in the territory of India before partition and further taken into consideration the marketing of the products by National Biscuit Company then under the above mark in the territory now part of Pakistan refused to register the trade mark Nabisco in favour of appellant and allowed registration of the trade mark in favour of the respondent. In appeal the High Court reversed the decision of Registrar on the ground tbat there was no evidence to establish that the public or common man in Pakistan could be confused or deceived while purchasing goods under the mark "Nabisco" manufactured by the appellant as National Biscuit Company had no market in respect of their goods in Pakistan. It was observed that as the National Biscuit Company bad no reputation in respect of their goods in this country there was no possibility of any deception or confusion in the mind of the person while purchasing the goods manu­ factured by the appellant. The following observations of Tomlin J, from the decision in the case of Impex Electrical Ltd. v. Weinbaum (44 RPC 405) was quoted with approval in the above case :— "It seems to me that the whole contention rests on a misap­ prehension. For the purpose of seeing whether the mark is distinc­ tive, it is to the market of this country alone that one has to have regard. For tbat purpose foreign markets are wholly irrelevant un­ less it be shown by evidence that in fact goods have been sold in this country with a foreign mark on them, and tbat the mark so used has thereby become identified with the manufacturer of the goods. If a manufacturer having a mark abroad has made goods and imported them into this country with the foreign mark on them, the foreign mark may acquire in this country this charac­ teristic, that it is distinctive of the goods of the manufacturer abroad. If that be shown, it is not afterwards open to somebody else to register in this country that mark, either as an importer of the goods ot the manufacturer or for any other purpose. The reason of that i< not that the mark is a foreign mark registered in a foreign country, hut that it is something which has been used in the market of this country in such a way as to be identified with a manufacturer who manufactures in a foreign country. That, I venture to think, is the basis of the decision in the Appollinaris' case." After quoting the above passage the learned Judges observed as follows :— "It therefore appears to me that for the purposes of registra- " tion under the Act. the Tribunal should ordinarily consider the user in this country to. which the Act applies if the case of the appellant is considered on this view of the law, there is not a shred of evidence on the record to establish that the public or a common man in this country will in any way be deceived or con­ fused while purchasing goods under the trade mark "Nabisco"' manufactured by the appellants. The respondents have no market of this trade mark in respect of any goods in this country. They have no reputation and as such there can possibly be no deception or confusion in the mind of the public of this country that the goods manufatured by the appellants belonged to the respondents. In these circumstances the respondents had not established a reputation for their mark upon which an opposition could be founded The learned Deputy Registrar therefore was not justified in refusing registration of "Nabisco trade mark in favour of the appellant." A reading of above passages will show that when a mark is opposed for registration by a foreign company on the ground that the mark is distinc­ tive of his goods the registration of that mark and sale of such goods with that mark in foreign countries are not relevant. What is relevant in such circumstances, is the fact that the goods have been sold by the foreign com­ pany with foreign mark thereon in the local market. In the case before me there is no evidence on record to show that the appellant has any market of this trade mark in respect of any goods in Pakistan. Neither any sale figures were produced before the Registrar to establish the sale of "Rolex" watches by the appellant in Pakistan nor any other material was placed before the tribunal to establish that the "Rolex" mark of the appellant was otherwise so well known among the general public in Pakistan that it had become a household word. Learned counsel for the appellant relied on Caltex case reported in AIR 1969 Bombay 24 but a careful reading of the above case will show that in that case there was volumoneous evidence available before the court to reach the conclusion that the Caltex company is in existence since longtime in India and their products are being marketed even in the remotest corners of India under the mark Caltex. Similarly, in the Bat a case reported in CLC 1986 page 1636 relied by the learned counsel for the appellant it was held that Bata is in existence anddoing business in Pakirtan for a long time and that the products manu­ factured by them are available all over Pakistan including the remotest places of the country. No such evidence is available in the present case to sha-v tnat R3l;x watches produced/manufactured by the appellants are sold aad marketed in Pakistan. Learned counsel for the appellants contended that she appellants have advertised Rolex watches in the journals as well as in the local newspapers which show that their product is well known in the territory of Pakistan. Mere advertisement of a product in newspaper and journals without evidence of actual sale of such produce in the local market is not sufficient to hold that the product has acquired goodwill m the local market. Reference in this connection may be made to the case of Care Zeiss v. Stiflung of Jena (PLD 1968 Karachi 276) where­ in it is observed as follows : — '42. The above criticism is in addition to the proposition of law that use of a trade mark in advertisements does not in itself become user in the sense in which the law of trade mark contemplates it. A connection between advertisement and the origin of goods should be shown to exist before the reputation gained by such advertisement may be said to cause deception or confusion. Such connection cannot ordinarily exist unless the advertised mark accompanies the actual goods (See Notes of Official Rulings (3). No such connection is traceable in Pakistan. The conclusion, therefore, is that the handbills and the brochures have no evidentiary value in this case." In view of the above discussion I am of the view that mere advertisement by the appellant in periodicals and newspapers which were available in Pakistan was not sufficient to establish any distinctiveness of the mark of appellant in the absence of evidence of the actual sale of products with the mark in the local market. In the Kaiser Jeep Corporation v. Sabir Saleem Textile Mills (PLD 1969 Karachi 376) popularly known as Jeep's case, the following observa­ tion from Somervilla v. Schembri [(1887) 12 AC 435)] were quoted by the learned Judge with approval :— "The acquisition of an exclusive right to mark or name in connection with a particular article of commerce cannot entitle the owner of that right to prohibit the use by others of such mark or name in connection with goods of a totally different character, and that such use by others can as little interfere with his acquisi­ tion of the right". The several points of view from which the question of the likelihood of deception or confusion being caused in trade mark cases has been considered in various judicial decisions, may, in my opinion be conveniently reduced to two tests only, that is :— (i) Whether there is identity of, or close resemblance between, the two competing marks ; and (ii) whether there is some kind of trade connection between the goods marketed under the two marks, so as to lead the members of the public to attribute the origin of both the goods to the same source." A reading of the above observations will make it clear that a person whui has acquired a right by virtue of registration of a mark in respect of parti-| cular class of goods cannot claim the right to prohibit the use of same [mark by other person in connection with the goods of totally different Clcharacter as such use cannot be construed as causing interference with the Jacquired right of the registered proprietor. The above principle is re­ affirmed in the case of Sony Kabushki Kaisha v. Registrar of Trade Marks (PLD 1978 Karachi 161 = PLJ 1978 Karachi 61). In addition to these facts the Registrar also reached the conclusion that it had already register­ ed another mark "Rolex" in respect of the vehicle spring and therefore there was no jurisdiction in refusing the mark applied for by respondent No 2. After considering the overall aspect of this case it cannot be said that the discretion exercised by the Registrar in accepting the application of respondent No. 3 for registration of the mark "Rolex" under class 34 in respect of Tobacco, raw or manufactured including cigarettes was either arbitrary or o! r> nded any settled principle of law. There is no substance in this appeal which is accordingly dismissed but the parties are left to bear their respective costs. (TQM) Appeaj dismissed.

PLJ 1987 Karachi 470 PLJ 1987 Karachi 470 Present : nasir A. zahid, J MINOCHER N. KHARAS (deceased) represented by legal heirs—Applicants versus ALI HASSAN MANGHI and 6 Others—Respondents Revision Application No. 205 of 1982, dismissed on 27-2-1986 (i) Civil Procedure Code, 1908 (V of 1908) -

O. XXI, Rr 99, 100 & 103 read with Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)-Ss. 13 & 17 — Eviction order—Execution of—Resistance to—Held : Necessary parties not ira« pleaded as such by respondents in their ejectment application to competently resist execution of decree in respect of premises in their occupation— Application under O. XXI, Rr. 99, 100 & 103 CPC, on other hand, to be rejected by executing court in case of objectors having acquired no right to remain in occupation of their respective premises independent of right of tenant. [P. 476]B (ii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)—

S. 2 (i)—Tenant—Definition of—Person placed in occupation— Consent in writing of landlord—Meaning of—Held : Words '-consent in writing" not to be deemed to mean or include consent which is not in writing. [P. 47b]A (iii) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)-

S. 1"' read with Civil Procedure Code, 1908 (V of 1908)—O. XXI, Rr. 99, 100 & 103—Eviction order—Execution of — Objection to— Aoplicant establishing no independent right to remain on property after termination of interest of tenant by ejectment order passed by Rent Controller—Held : No privity of contract between landlord and tenants having been established, application under O. XXI, Rr. 99. 10Q, & 103 rightly rejected by trial court—Held further : Mere fact of applicants having remained in premises for very long periods by itself not to be sufficient to make out case that applicants have any independent right in property or that there is privity of contract between them and landlord. [Pp 477 & 478]C Mr. NooruddinN. Ramzan, Mr. Khalid Habibullah & Mi: Salahuddin Malik, Advocates for Applicants (in various petitions). Mr. Muhammad Sharif & Mr. Abdul Ghafoor Advocates for Respondents. Dates of hearing s 4 & 5-2-1986. judgment This judgment will dispose of the following revision applications :— (i) RA No. 205/82—filed by Minocher N. Kharas ; (/O RA No. 206/82—filed by Iftikhar Ali Khan ; (Hi) RA No. 207/82—filed by Taj Muhammad ; (/v) RA No, 208/82—filed by A. Mammi ; (v) RA No. 209,82—filed by Shamsher Qadir ; (v/) RA No. 277/82—filed by Mst. Anita Pervez ; and (vii) RA No. 258/82—filed by Muhammad Yousuf. The respondents in all these revision applications are A. H. Manghi and others The tenements involved in all these revision applications are located in property bearing No. 28 F. T 2, McLean Road, Karachi. Diffe­ rent persons have been in occupation of the various tenements in this building. The owners landlords, who are respondents in these revision applications, filed Ejectment Case No. 1179/68 under 1959 Rent Ordinance against the tenant Mrs. Khurshid F. Minwala on the ground of default, subletting and illegal construction. All the applicants in these revision applications claim to be sub-lessees of the tenant Mrs. Khurshid F. Minwala. The respondents did not join the applicants (foe sub-lessees) in the said ejectment case filed against the tenant. By order dated 19-8-1974, the ejectment application filed by the respondents was granted and eject­ment of the tenant was ordered. It may be mentioned here that the tenant Mrs, Khurshid. F. Minwala had filed written statement contesting the eject­ ment application, pleading that there was no default and that it was the landlords, who had refused to accept the rent though tendered by cheques, that she had paid huge amounts of taxes to KMC, In the written state­ ment, the tenant admitted that there were sub-lessees in the premises but submitted that they were for years and were there even prior to the pur­ chase of the property by the respondents from the previous owners and that the tenancy of the tenant was with the right to sublet without the permission of the landlords and, tnerefore, the sub-tenants were authorized occupants. However, she did not appear at the evidence stage and the evidence of the respondents remained unchallenged. However against ejectment order dated 19-8-1974, the tenant filed an appeal being First Appeal No. 449/74 but the same was dismissed for non-prosecution by the learned Second Additional District Judge Karachi, by order dated 30-JO-1975. No further proceedings wers taken up by the tenant. The respondents riled execution application being No. 1 of 1976 and writ was issued and it was in fact executed against the tenant Mrs. Khurshid F, Minwala, who was residing in one of the flat in the said building of the respondents and possession of that flat was taken over by the respondents. Writ could not be executed in respect of other premises in the said building, as the present applicants filed applications under Order 21 Rules 99, 101 and 103 read with section 151 CPC. The learned Civil judge who was dealing with the aforesaid execution application, recorded evidence of such intervenors, who came forward, and by order dated 205-1979, he dismissed all the applications filed by the present applicants/intervenors holding that the intervenors were bound by the decree passed against the judgment debtor /. e. the tenant, as the intervenors were claiming their rights of tenancy through judgment debtor/tenant. Being aggrieved, civil miscellaneous appeals were filed by the applicants but by order dated 2-8-1982, the learned Vth Additional District Judge, Karachi, dismissed all the appeals. The intervenors, there­fore, have approached this Court through the present revision applications. I have heard Messrs Nooruddin N. Ramzan, Khalid Habibullah and Salahuddin Malik, learned counsel for the applicants and Mr. Muhammad Sharif, advocate, who appeared for respondents in all these revision appli­ cations. 2. The main arguments on behalf of the applicants were addressed by Mr. Nooruddin N. Ramzan, learned counsel for the applicants. He raised the following contentions in support of the present revision applicants : — (a) The applicants/intervenors were necessary parties to the ejectment application and as the applicants were not made parties, the ejectment order cannot be executed agatnst the applicants. It was submitted that the landlords were aware of the fact that various premises in the building were occupied by sub-tenants namely the applicants. According to the learned counsel, the respondents had purchased the property in 1963 from the previous owners and had filed ejectment case against the tenant in 1968, It was further submitted that the applicants have been irt occupation of the various premises in the building for 20 or 30 years or even more and in any case before the purchase of the property by the respondents in 1963, and from 1963 to 68, when the ejectment application was filed by the respondents, they must have become aware of the various premies being occupied ry the applicants. Learned counsel cited the case of Mehraj Din v. Muhammad Yasin (PLD 1968 Lah. 20) for the proposition that sublessees are proper parties in an ejectment case filed by the laadlord, wherein he alleges subletting of the premises by the tenant Reliance was placed on the following observations of the Lahore High Court made in the cited judgment after referring to section 13 (2) (n) (a) of the 19D9 Rent Ordi­ nance :— "A perusal of the above provision of law show that a decision ha? to be recorded by the Rent Controller before passing an order for putting the landlord in possession that the tenant has sublet the building or the rented land. Since this issue directly concerns the sub-tenant, in our opinion, it is just fair and proper that he should be impleaded as a party by the landlord in the ejectment appli­ cation. The reasons are manifold. Firstly, if he is not iroplcaded then complications are likely to arise subsequently, whereas if he is impleaded the matter will remain simple and convenient for all concerned. Secondly, if he is not impleaded in the main case, then during the course of execution proceedings, a difficulty will arise if he pleads that he is bound by the decree, because he was not a party in the main case. Thirdly, in that situation, the executing Court will have still to determine as to whether he is bound by the decree or not within the meaning of Order XXI, rule 35, CPC. It means that when this issue will have to be decided and there can be no escape from it, it is better to get it adjudicated through a better procedure of the trial of the main case rather lhan the more summary proceedings of the execution. Fourthly, if the aim of the Ordinance is to provide a speedy and expedient remedy to the landlords than that purpose will better be achieved by impleading the alleged sub-tenant in the main case rather than leave over this issue till a late stage of the execution of the decr;e. Fifthly, according to the provisions of the Ordi­ nance, where eviction is claimed on ground of illegal sub-tenancy then a rinding about the same will have to bs recorded by the Rent Controller. If once this finding is recorded though in the absence of the sub-tenant and the executing Court is again asked to go into the same, that will simply mean duplication of work, time and labour and at the same time embarrass the position of the executing Court as well in urging it to go beyond the finding of the trial Court and record a different note—a task which even otherwise will be very difficult rather well-nigh impossible to be achieved from the executing Court. For all these reasons and looked at from whatever point of view, the conclusion is inescap­able that a sub lessee in such a situation is a proper party to be impleaded in an ejectment application. When he is so ousted simply because the sub-tenancy is unauthorized Rather the un­ authorized sub-tenancy will give jurisdiction to the Rent Control­ ler to pass an order directing the landlord to be put in possession of the building or the rented land. Nor the argument that such an illegal sub-lessee is not a tenant under the Ordinance, can affect on the jurisdiction of the Rent Controller ; because though not a tenant, but still being a person bound or to be bound by the order of eviction against the main lessee the jurisdiction does not undergo any impairment. The fact that a sub-lessee is not a tenant within the meaning of the Ordinance, instead of helping such a sub-lessee will go against him and he will not be eligible to claim such amenities which other tenants may have. This is but logical. The intention of the Ordinance could not be to bestow on unauthorized under-lessee greater rights than available to the main lessee through whom he is engrafted on the main building. The main lessee under the Ordinance cannot be evicted except under the strict conditions laid down therein. Once those condi­ tions are fulfilled and the main lease is statutorily forfeited than the under-tenures also lapse with the same." (fc) The second contention of Mr. Nooruddin N. Ramzan, the learned counsel for the applicants, was .that on account of the appellants remain­ ing io occupation in the various premises in the building in question, certain rights were acquired by them in the property and the decree passed against the tenant cannot be executed against them, as they were neither made parties ncr given any opportunity of placing their case before the Rent Controllf r. It was contended that if they had been granted opportunity in the ejectment case, there was a distinct possibility that the ejectment order would not have been passed. In support of this proposition, learned counsel relied upon the following reported judgments :— (/) Haji Dawood v. Rahima Bai (PLD 1980 Kar. 126) (ii) Ghu/am Bahauddin Qureshi v. Hawa Bai (PLJ 1979 Kar 181) (Hi) Najmuddin v. Zamir Ahmad (PU 1982 Kar 365) (iv) Agha Muhammad v. Maula Dad (PLD 1971 Quet 10) (c) The next contention of the Yearned counsel for the applicants was that the sub-tenancies were admittedly created prior to the enforcement of 1939 Rent Ordinance and under the Rent Restriction Laws applicable in Karachi prior to the enforcement of the 1959 Rent Ordinance, creation of a sub-tenancy by the tenant without the permission of the landlord was not a ground for ejectment and in this connection learned counsel referred to the decision in the case of Zahida Begum v. Nadri Bakery (PLD 1983 Kar 618). (d) The last contention of Mr. Nooruddin N. Ramzan was that vidence of the intervenor/applicants before the executing Court has gone unchallenged, as no evidence was led before the executing Court by the respondents/landlord. 3. Mr. Khalid Habibullah, Advocate, who appeared for the applicant in Revision Application No. 227/82, adopted the arguments of Mr. Noor­ uddin N. Ramzan and raised the additional point that in the defintion of tenant given in the Rent Ordinance, 1959 tenant is defined to include a sub-tenant, whose sub-tenancy has been created with the consent in writing of the landlord and although the word "writing" has been used in the definition, it should b3 interpreted to mean "implied" also. According to the learned counsel in tha cases of the various applicants/intervenors, on account of the fact that they have been in occupation as sub-tenants for a very long period, it has to be assumed that the landlords gave their consent to the creation of such sub tenancies. 4. Mr. Salahuddin Malik, learned counsel, who appeared for the applicant in RA No. 258/82, adopted the arguments of Mr. Nooruddin N. Ramzan. 5. Mr. Muhammad Sharif, learned counsel for the respondents in all these revision applications, submitted that a perusal of the order dated 19-8-1974 of the Rent Controller shows that all the sub-lettings in favour of the intervenors were un-authorized and that although the tenant had filed an appeal against the ejectment order, the same was dismissed and the finding of the Rent Controller that the intervenors are unauthorized sub-lessees attained finality and such finding cannot be set aside in pro­ ceedings in execution. Learned counsel submitted that there was a dis­ tinction between subletting and assignment but under the 1959 Rent Res­ trictions Ordinance, subletting included assignment. It was further con­ tended that the sub-lessees were not necessary parties to the ejectment cases filed by the landlord against the tenant on account of unauthorized subletting, It was submitted that the sublessees had no independent right and they are bound by the decree passed against the tenant. It was also argued that the scope in an appeal is much wider and these are revision applications against an order passed in execution and the scope of these That application was rejected and the defence of the tenant was struck off > and ejectment ordered by the Rent Controller. The employee, intervenor filed an appeal but the same dismissed and the employee then filed a second appeal before the High Court, which was also dismissed by a learn­ ed Single Judge of this Court It was observed in this judgment that the landlord was justified in refusing the rent directly from tbe intervenor as she did not recognize the intervenor as a tenant because he was in occupa­ tion of tbe premises through the tenant company. It was also observed that ejectment of the tenant company automatically includes ejectment of the intervenor who was not direct tenant of the landlord. 6. I may first refer to the argument of Mr. Khalid Habibullah, learned counsel for the applicant in RA No. 227/82. He had made ref­ erence to the definition of tenant given in section 2 (i) of 1959 Rent Ordi­ nance. In this definition it is provided that tenant "does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord. The words "consent in writing" cannot be deemed to mean or include consent which is not in writing. The argument .of the learned counsel that implied consent is included in the words "consent in writing" cannot, therefore be accepted. 6A. The argument of Mr. Nooruddin N. Ramzan that prior to the enforcement of 1959 Rent Ordinance, under the Karachi Rent Restrictions Act, 1953 creation of subtenancy without the permission of the landlord was not a ground for ejectment of a tenant has no substance. A plain reading of the grounds, on which tenant could be ejected under the Karachi Rent Restrictions Act, 1953, shows that a creation of sub-tenancy without consent of the landlord was a specific ground available to a landlord, Relliancc on PLD 1983 Kar. M8 is also misconceived. In the Head Notes of this reported judgment it is incorrectly stated that in the judgment it was observed that prior to the enforcement of 1959 Rent Ordinance sub letting was not a ground of eviction. A reading of the judgment reported in PLD 1983 Kar. 618 shows that this was not observed by the learned Judge, who decided that case. 7. In my view, tbe decision of the revision application depends on the question whether the applicants/intervenors were necessary parties to the ejectment application and whether the applicants have any independent rights to remain in occupation of their respective premises i. e. independent of the tenant's rights. If the applicants were necessary parties and they were not impleaded as such by the respondents in their ejectment applica­ tion, they can resist the execution of the decree in respect of the premises m their occupation. Answer to this question depends on whether the applicants had acquired any right to remain in occupation of their respec­ tive premises independent of the right of the tenant, Mrs. Khurshid F. Minwala. If they have ho independent right and if whatever right they aave is through the tenant, their applications under Order 21 rules 99, 100 & 103 CPC were rightly rejected by the executing Court. The judgments cited by Mr. Mohammad Sharif, learned counsel for the respondents, support tbe proposition advanced by the learned counsel that a sub-tenant must have some independent right that is independent of the tenant to "" continue in occupation of the premises after the termination of the right of the tenant to remain in occupation or there must be some privity of contract between the landlord and the sub-tenapt. 8. Mr. Nooruddin N. Ramzanhad relied upon PLD 1968 Lab. 20 for the proposition that the sub-tenant is a necessary party to the ejectment application. A perusal of the judgment shows that this was not the principle laid down in this Lahore case. What was observed was that the sub-tenants \sert proper parties for convenience and for avoidance of complication at the stage of execution. The decision of Lahore case does not hold that sub-tenants, who have been inducted by the tenant without the consent of the landlord are necessary parties to an ejectment case filed by the landlord. On the contrary, the decision goes against the case of the applicants. In this Lahore case it was observed that the intention of the 1959 Rent Ordinance could not be to bestow on unauthorised under-lessec greater rights than available to the main lessee, through whom he is engrafted on the building. 9, The other authorities relied upon by Mr. Nooruddin N. Ramzan namely PLD 1980 Kar, 126 ; PLJ (979 Kar. 181 ; PLJ 1982 Kar. 365 and PLD 1971 Qta 10 are all judgments, in which the controversy was between the landlord and the tenant and the question, inter alia was whether the tenant was liable to be ejected on the ground of subletting. Mr. Mohammad Sharif, learned counsel for the respondents, has correctly pointed out that none of these four authorities relied upon by Mr, Noorud­ din N. Ramzan, holds that sub-tenants in those cases had become tenants or that any of the sub tenants in those cases had acquired any right independent of the tenant. In the aforesaid four cases what was decided was that on the facts and circumstances of those cases the tenant was not liable to be ejected on the ground of creation of sub-tenancies. The ques­ tion whether sub-tenants were necessary parties or not in ejectment cases was neither in issue nor was decided in any of these four cases. The afore­ said four judgments reiied upon by Mr. Nooruddin N. Ramzao, therefore, do not support the proposition advanced by him that the applicants, were necessary parties to the ejectment application filed by the respondents or that the applicants have acquired an> right independent of the tenant or they have any privity of contract with the respondents. 10. The other point raised by Mr. Nooruddin N. Ramzan was that the evidence of the applicants before the executing Court has gone unchal­ lenged It has been pointed that none of the respondents appeared in the witness-box during the enquiry in the execution proceedings nor any other evidence led by them. The evidence of such applicants, who chose to give evidence in execution proceedings, however, shows that no attempt was made to make out a case that any of the applicants had any right indepen­ dent of the tenant or that there was any privity of contract between the respondent and the applicants The consistent stand of all the applicants/ their witnesses in the execution proceedings was that they had been induct­ ed by the tenant. In the circumstances, the fact that none of the respon­ dents gave evidence, does not help the case of the applicants. 11, The main thrust of the argument of Mr. Nooruddin N. Rarazan appears to be that the applicants had been in the premises for a very long period and this fact by itself created rights in them independent of the judg­ ment debtor/tenant. The proceedings in execution taken up by the execut­ ing Court on the applications filed by the various applicants/intervenors was an enquiry into their rights to remain on the property. As observed. earlier, the applicants were not able to establish any independent right to'a remain on the property after the termination of the interest of the tenantj by the ejectment order passed by the Rent Controller. It was not shown that under the law they were necessary parties to the ejectment application. No privity of contract between the landlord and the applicants was established. In fact this was not even attempted by the applicants in the proceedings before the executing Court. The applications under Order 21 rules 99, 100 & 103 CPC of the applicants were therefore rightly rejected and no case in law had been made out for setting aside the orders passed in execution. 1 am conscious of the fact that the applicants have remained in the premises for very long periods but this by itself is not sufficient to make out a case that the applicants have any independent n^ht in the property or there is any privity of contract between them and the landlord. 12. These revision applications are accordingly dismissed but with no order as to costs. The applicants have remained in the premises for a very long period and accordingly the applicants are granted time till 31-8-1986 to vacate the premises. ' (MIQ) Application sdismissed.

PLJ 1987 Karachi 478 [DB] PLJ 1987 Karachi 478 [DB] Present: abdul hayee kui»eshi, CJ & abdul razak A. thahim, J MEHTABUR REHMAN –Petitioner versus CONTROLLER No. 16, District Courts Karachi and 3 Others —Respondents Constitution Petition No, D-638 of 1984, dismissed on 1-10-1984 (i) Constitution of Pakistan, 1973—

Art, 199 (5) & Provisional Constitution Order, 1981 (CMLA's 1 of 1981)~Art. 9 (9)—High Court—Issuance of writ to itself—Compe­ tency of—Held : High Court being not competent to issue writ to itself, no declaration in constitutional jurisdiction to be made nor any direction relating to order of Judge of H'gh Court to be passed (under Art. 199 of Constitution cf Pakistan). ' L P.4iO]A (ii) Sind Rent€d Premises Ordinance, 1979 (XVII of 1979)

S. 4—Rent Controller — Jurisdiction of—Change in—Territorial jurisdiction of Rent Controller changed by order passed by District Judge—Held : Such order being nothing more than transfer of cases individually or collestively, Rent Controller not to try such cases as arise in jurisdiction of portion of province where he was posted. [P. 481]C (Hi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— ——S. 4 & Notification No. VII! (3) SOJ/75 dated 14-10-1980—Rent Controller—Appointment of—Held : Person once appointed Senior Civil Judge to continue to enjoy powers of Controller vesting in him under S. 4 of Ordinance unless he be divested of powers of Senior Civil Judge—Such Judge exercising civil jurisdiction in any part or portion of province to competently exercise powers of Controller also within that part or portion of province. [P. 481]B (iv) Sind Rented Premises Ordinance, 1979 (XVII of 19/9)—

S. 4 (-')—Case—Transfer of—Powers of—Power to transfer any case-Conferred upon District Judge under S. 4 (3) of Ordinance- Held: Power to transfer case having been conferred on District Judge, repealed exercise of such power to bs permitted. (P. 4 81JD Mr. Faizuddin, Advocate for Petitioner, Mr. Nasrullah Awar, Advocate for Respondents 1 No. 4. Date of hearing : 18-9-1984. order Abdul Hayee Kureshi, CJ—The present petition has been filed by Mehtabur Rehman to challenge some proceedings under the Sind Rented Premises Ordinance before the Controller-cww-Civil Judge, Court No. 16, Karachi. The District and Sessions Judge, Karachi, The Government of Sind and the landlady Mst. Sarwar Begum have been impleaded as the respondents. We had issued pre-admission notice and Mr. Nairullah Awan has appeared on behalf of respondent No. 4. The brief facts are that the petitioner is a tenant in respect of a residential premises belonging to Mst. Sarwar Begum who for the sake of convenience is hereinafter referred to as the landlady. We are informed that the case for ejectment was filed by the landlady against the petitioner ia 19~9 which was decided by the XV11I Senior Civil Judge/Controller on 15 2-1982. The petitioner was ordered to be evicted. An appeal was filed before this Court which was registered as FRA No 494/82 and this appeal also did not succeed. We are informed that no petition for special leave to appeal bad been filed against this decision. The only point that has been raised before us by Mr. Faizuddin is in regard to jurisdiction of Mr. Ali Sher Habibani the XVI Senior Civil Judge, Karachi. His contention as far as we have been able to understand is that by virtue of Section 4 of the Sind Rented Premises Ordinance, territorial jurisdiction of the Coatrollers is to be regulated and conferred by an order or notification of the Government and the Government had not designated Mr. Ali Sher as a Rent Controller to exercise jurisdiction within the city of Karachi where the premises in dispute are situated and for such reason the order of eviction that has been passed is nullity in law. It seems such a point was raised before Mr. Justice Zahoorul Haq when he was hearing the Rent Appeal bearing FRA No. 482/82. The point did not find favour with the learned Judge who has dealt with the point in he following words : — "Thereafter Mr. Moinuddin submitted that the Rent Controller who decided the case has no jurisdiction in this matter. I failed to understand the logic of this argument. No such plea had been raised by the appellant before the Rent Controller and no such plea has been raised in this appeal and therefore, I do not find any justification for allowing this argument at this stage. The same would otherwise be misconceived as the Rent Controller who decided this case was a Civil Judge functioning at Karachi. In any case the question, whether the Rent Controller who was seized of a matter, had been invested with such power by the Government under Section 4 is always a question of fact which has to be pleaded and controverted and no decision can be given without pleading of the same as it involves an investigation into question of fact. This plea is therefore, completely unjustified and afterthought merely to avoid the effect of the ejectment more particularly so when the ejectment of the other tenant Jamil Ahmed has been upheld by the Supreme Court of Pakistan in CPSLA No. 8-K/84 decided on 2-2-1984, Consequently I do not find any force in this appeal which is hereby dismissed .' At this stage we would also mention that there was an identical case relating to another portion of the same premises which is id occupation of the petitioner and Jamil Ahmed was the tenant in respect of such remaining premises. The said Jamil Ahmed had also filed a petition before the Supreme Court which was registered as CPSLA No. 8 K/84, We are informed that this petition has been dismissed. Now if ths point in regard to lack of jurisdiction has been urged before Mr. Justice Zahoorul Haq then the only remedy available to the petitioner was to move the Supreme Court by way of a petition which admittedly has not been done. On the other hand in this petition the petitioner has necessarily got to challenge such portion in the order of Mr Justice Zahoorul Haq as related to jounsdiction of the Controller who tried this case. We ca.nnot even entertain such a question because Mr. Justice Z'ihoorul Haq being a Judge of this Court we cannot issue a writ or pass an order relating to his order or even grant a declaration in the constitutional jurisdiction on the sound principle that the High Court cannot issue a writ to itself. Since we had permitted Mr. Faizuddin to raise this point we find it necessary to make a brief referer ce to some enactments and notifications which are relevant. Section 4 of the Rented Premises Ordinance is perti­ nent to the controversy and it is better to reproduce the same. It reads as follows :— "(4) Controlers. —(1) Government may appoint one or more Con­ trollers in any district and if more than one Controller is appointed in the same district, Government shall define the local limits within which each of such Controllers shall exercise jurisdiction ; Provided that the Controllers working immediately before coming into force of this Ordinance snail continue to exercise their respective territorial jurisdiction until it has been altered by Government, (2) No person shall be appointed as a Controller unless he has worked or, has been working, as a Civil Judge or First Class Magistrate, for not less than three years. (3) Government may authorize the District Judge or Deputy Commissioner, to transfer eases from one Controller to another within the District." In the scheme of Section 4 it would appear that the power of appoint­ ment vests in the Government and the Government has to appoint Con­ trollers in all Districts. Such Controllers if they are to be more than one in a single District shall be conferred the jurisdiction to try cases under the Sind Rented Premises Ordinance. Qualifications of the Controller are stated in sub-section (2). Sub section (3) of the said Section again gives powers to the District Judge to transfer cases frbm one controller to another within District. In pursuance of the powers under Section 4 the Government of Sind issued a notification bearing No, VIII (3) SOJ/75 on 14th October, 1980. This notification reads as follows —No. VIII (3) SOJ/75.—In exercise of the powers conferred by Section 4 of the Sind Rented Premises Ordinance, 1979 the Government of Sind are pleased to appoint all Senior Civil Judges in the Province and Civil Judge, Badin and Joint Civil Judge, Shikarpur with not less than three years service as Civil Judge, to act as Controllers within their respective jurisdiction." Shorn of the detail which are not relevant to the instant case this noti­ fication can be read as follows :—• "In exercise of the powers conferred by Section 4 of the Sind Rented Premises Ordinance, 1979 the Government of Sind are pleased to appoint all Senior Civil Judges in the Provice to act as Controllers withm their respective jurisdiction." A bare reading of this notification would bring it out with clarity that all such persons who are holding the post of Senior Civil Judges have by virtue of this notification issued under Section 4 of the Sind Rensed Premises Ordinance, 1979, the jurisdiction to act as Controllers within their respective jurisdiction. The words "respective jurisdiction" would mean and imply that area within which the Senior Civil Judge exercises his power under the Code of Civil Procedure. The argument taken to its logical conclusion can bear no other result except that if a person can exercise civil jurisdiction in any part or portion of the province he can exercise the powers of a Controller also within that part or portion of the province. The second necessary significance of this notification is that if a person is once appointed a Senior Civil Judge the powers of Controller under the Sind Rented Premises Ordinance would be vested in him. He shall continue to enjoy those powers unless he is divested of the powers of a Senior Civil Judge. In these circumstances the argument of Mr. Faizuddin that because Mr. Ali Sher Habibani was the Senior Civil Judge ..it Shikarpur and when he came to Karachi he bad to be reinvested with powers is completely fallacious and has not impressed us. Mr. Faizuddin has also placed before us on office order passed by the District Judge, Karachi on 29-11-1982 whereby territorial jurisdiction has been changed in respect of some Controllers including Mr. Habibani. Without doubt these powers of change of jurisdiction is in essence transfer a case, for when the territorial jurisdiction of a judicial officer is changed the effect which is aimed at is that the Judge should not try such cases as arise in the jurisdiction of the portion of the province where he is posted. This is nothing more than transfer of cases individually or collectively. There can be no two opinions that sub-section (3) of Section 4 of the Rented Premises Ordinance gives a power to the District Judge to transfere any case and when a power to do an act is conferred on a functionary the repetative exercise of power in pursuance of such powers are also permitted. By this notification the District Judge has transferred cases collectively and this power does flow from sub-section (3) of Section 4 of" the Sind Rented Premises Ordinance. Even this contention has not impressed us. We therefore see no substance in this petition which we dismiss in limine. By consent the petitioner is granted 15 days time as from the signing of this order to vacate the premises. (TQM) Petition dismissed.

PLJ 1987 Karachi 482 PLJ 1987 Karachi 482 Present: saeeduzzaman siddiqui, J FAROOQ ALl-PlaintirT versus BANQUE INDOSUEZ, I. I. Chundrigar Road, Karachi and 3 Others-Defendants CMA Nos. 2992, 2993, 3125 & 3.26 of 1983 in Suit No. 553 of 1983, decided on 18-10-1984 (i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)—

S. 6—Special court—Jurisdiction of—Controversy raised in suit of plaintiff relating to loan which defendant (No, 1) allegedly to have advanced to plaintiff while plaintiff contending that it was for bcnefiit of defendants 2 & 3 -Held : Such controversy to be dealt with and decided by "special court" under provisions of Ordinance XIX of 1979. [P. 484]A (ii) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)—

S. 6 (4)—Special court—Suit triable by — Other courts—Bar of jurisdiction of—Suit (found to be) triable by special court under Ordinance XIX of 1979—Held : Jurisdiction of all other courts in respect thereof to be barred. (P. 485 JB (Hi) Civil Procedure Code, 1908 (V of 1908)—

O. VII, R. U (d)—Plaint—Rejection of — Held : In order to vest court with jurisdiction to reject plaint under clause (d) of rule 11 of O. VII, CPC, court must possess initial jurisdiction to entertain suit —Held further : Rejection of plaint under O. VH, r, 11 CPC involv­ ing adjudication in some manner with regard to claims in suit, plaint not to be rejected by court which inherently lacked jurisdiction in case. [P. 486]C Mr. I. H. Zaidi, Advocate for Plaintiff. Mr. S. A. Sarwana, Advocate for Defendants 1 &2. Mr. Khalid M. Ishaq, Advocate for other defendants. Date of hearing : 18-10-1984. order The office has fixed the following applications for hearing in court today : (1) CMA No. 2992/83 (under Order 39, Rules 1 and 2). (2) CMA No. 2993/83 (under Order 11 Rule 14). (3) CMA No. 3125/83 (under section 10) and (4) CMA No. 3126/83, (under Order 7 Rules 10 end 11 r/w, section 151 CPC.). The first two applications are filed by the plaintiff while the last mentioned two applications are filed by defendant 1. Apart from these applications defendant 2 has filed an application under Order 19 Rule 2 read with section 151 CPC (CMA No. 3327/83) which is fixed for orders. The learned counsel for the defendants I and 2 Mr. S.A. Sarwana, at the hearing of the above applications stated that he does not press his application under Order 19 Rule 2 read with section 151 CPC (CMA No. 3327/83) which is accordingly dismissed as withdrawn with no order as to costs. Out of above stated 4 applications fixed for hearing today, I will first take up CMA No 3126/83 filed by defendant 1 under Order 7 Rules 10 and 11 r/w section 151 CPC for rejection of the plaint. The learned counsel for the defendants 1 to 3 jointly contend that the juris­ diction of this court to entertain the present suit is barred under section 6(4) of the Banking Companies (Recovery of Loans) Ordinance, i979, as the suit is between 'borrower' and a 'banking company and it relates to a Moan' advanced by a banking company to a borrower. The learned counsel for the plaintiff on the other hand contends that the subject matter of the present suit is outside the scope of the Ordinance XIX of 1979 as the reliefs claimed in the suit can not b: granted by a special court created under the Ordinance of 1979. In order to appreciate the respective contentions of the learned counsel for the parties I will examine here in detail various provisions of Ordinance XIX of 1979. The expres­ sion''borrower" and "loan" respectively are defined in section 2(b) and (d) of the Ordinance XIX of 1979 as amended uptodate as follows:— "2. (&) "borrower'' means a person who has obtained a loan from a banking company and includes a surety or an indcmnifier ; (c) ........................ ...... (d)''loan" means .loan advances and credit as defined in the Banking Companies Ordinance 1962 and includes — (i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other (Inancui accommoda­ tion provided by a banking company to a borrower ; (ii) a guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower ; (in) a benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted ; (iv) any amount due from any borrower to a banking company under a decree passed by a civil court or :m award given by an arbitrator ; and (v) any loan due from any borrower to a banking company which is the subject matter of any pending suit, appeal or revision before any Court ;" From reading of the definitions of "borrower" and "loan" reproduced above it is quite clear that a "benami loan" is that in which the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted. Therefore in a case relating to a "loan" if it is alleged by the person in whose name the loan is taken, that the real recipient or beneficiary of the loan is some one else the special court will have the jurisdiction to decide this plea. In the present suit the plaintiff has implead^d as defendants a banking company (Deft. 1) and officer of the banking company (Deft. 2) and a limited company (Deft. 3) and a private person (Deft, 4). The allegation of the plaintiff against the defendant No. 1 is that it obtained promissory note, letter or gurantee, letter of continuity, memorandum of deposit and title deed and power of attorney from the plaintiff in connection with a loan of which defendants 2 and 3 wore the real beneficiaries and recipient. It is also al­ leged in the plaint that the amount of loan agains t which the documents executed by the plaintiff are being utilized by defendant 1 in fact relates to a transaction of loan which defendant 2 had obtained for his own benefit and for the benefit of defendant 3. O.) the basis of thess allega­ tions the plaintiff has claimed the following reliefs in the suit :— "(1) A declaration that the documents obtained in blank by the defendants 1 & 2 from the plaintiff (nure specifically stated in para 46 hereinabove) were and are in relation to the liability of the defendant No. 3 and the plaintiff is not liable to any amount, if any, due against the said documents ; (2) A declaration that the defendant No 3 and not the plaintiff, is liable to liquidiate its liability payable and/or recoverable under and on the basis of the said documents. (3) A declaration that the defendant No. 2 being the ostensible and real beneficiary of the defendant No. 3 is equally liable to the debts and dues outstanding against the defendant No, 3 with reference to the documents in suit ; (4) A permanent injunction restraining the defendants 1, 2 & 3, their officers, agents, Directors, beneficiaries and any person/persons claiming through or under them from makiag use, utilizing and/ or filing the documents encumbering or burdenning the plaintiffs personal account No. 10048 or recovering any amount on the strength of the said documents; (5) Costs of the suit ; (6) Any other relief/reliefs that this Hon'ble court may deem fit and proper under circumstances of the case against all and/or any of the defendants.' I may mention here that although defendant No. 4 is also impleaded in the suit but neither any allegation is made against him concerning the loan nor any relief is claimed against him. Upon reading of the plaint as a whole there is no doubt that the controversy raised in suit by the plaintiff relates to a loan which the defendant No. 1 alleges to have advanced to the plaintiff while plaintiff contends that it was for the benefit of defendants 2 and 3. Such a controversy, in my opinion, is to be dealt with and decided by a "special court" under the provisions of Ordinance XIX of 1979. Mr. Zaidi, the learned counsel for the plaintiff conteqd? that the reliefs of declaration claimed by the plaintiff are of general nature which can 'only be granted by a civil court and not by a "special court" exercising limited jurisdiction. I will now examine relevant portion of the provisions of section 6 of the Ordinance XIX of 1979 to find out if the reliefs claimed in the suit could be granted by the special court. It reads as under : — "6. (1) ................... (a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908). () ..................... (c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance. (2)

...................

(3) ......................................... (4) No Court other than a Special Court shall have or exercise, any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court; and all proceed­ ings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commenc­ ing day shall stand transferred to the Special Court. (5) ........................................ " i may mention here that Section 6 of the Ordinance has been amended by Ordinance 2 of 1983 but the relevant sub-sections namely sub­ section 6(!)(a) and (4) reproduced above are retained in their original form. A reading of Section 6 (1)O) will show that a Special Court while exercising civil jurisdiction in respect of a claim filed before it by Banking Company against the borrower or by a borrower against Banking Company in respect of or arising out of a loan shall have all powers vested in a civil Court under the Code of Civil Procedure 1908. Section 9 of the CPC confers jurisdiction on Civil Court to try all suits of civil nature except those cognizance whereof is either expressly or impliedly barred. Therefore, I fail to see why a Special Court while dealing with a case which is cognizable by it under the provision of Ordinante XIX of 1979, cannot grant a relief which a civil court could grant under section 9 of the CPC. I am, therefore, of the view that the present suit is triable by a Special Court under Ordinance XIX of 1979. As the suit is cognizable by a Special Court the jurisdiction of all other Courts in respect thereof is barred under sub-section (4) of Section 6 of the Ordinance, XIX of 1979, Mr. I. H. Zahdi, th<? learned counsel for the plaintiff referred to the case of M\s. National Motors Limited v. Muslim Commercial Bank Limited (1982 CLC 236) and Rehmat Bibi and another v. Hafiz Shamsuddin (1983 CLC 2336) in support of this contention that the special court under Ordinance XIX of 1979 has no jurisdiction in respect of the present suit. The facts of the above cited cases are quite distinguishable and has no application in so far the facts of the present case are concerned. After having reached the conclusion that the jurisdiction of this court is barred under section 6(4) of the Ordinance XIX of 1984, I asked the learned counsel for defendants 1 to 3, if I could reject the plaint in the suit under Order 7 Rule 11 CPC. Both Mr. S. A. Sarwana and Mr. Khalid M. Ishaque, jointly contended that this court is competent to reject the plaint under Order 7 Rule 11 CPC. Mr. Khalid Ishaque specially contended that inspite of the fact that this court has no jurisdiction to entertain the present suit it could reject the plaint under Order 7 Rule 11 CPC as rejection of the plaint does not amount to adjudication of the case on merits. In supporr of his contention the learned conusel referred to the following cases:— Phalomal Moti Ram v. Abdul Qud-us-Behari (PLD 1971 Karachi 250). Seven Stars Goods Transport v. Administrator of Karachi Munici­pal Karachi (PLD 1976 Karachi 21 and) Kaniz Fatima v. Board of Revenue (PLD 1973 Lahore 495). I have examined each one of the above cases referred by Mr. Kbalid Ishaque and found that in none of these cases the point in issue has been dealt with. The question before me is whether a court could reject a plaint under Order 7 Rule 11 CPC after it found that its jurisdiction to entertain the suit is barred under any law. In my humble view it is quite different to say that the suit is barred under some law than to contend that the jurisdiction of the court to entertain the suit is barred under the law. In the first case the jurisdiction of the court to entertain the proceedings may not be in question whereas in the latter case, even filing of the case before the court is under challenge. Upon careful reading of Order 7 Rule 11 CPC I am of the view that in order to vest the court with the jurisdiction to reject a plaint under clause (d) of Rule 11 of Order 7 CPC, the court must possess initial jurisdiction to entertain the suit. If the Jurisdiction of Court to entertain the proceeding is lacking inherently, then in my humble opinion, it could not reject the plaint and the only order which it could pass in these circumstances, is to return the plaint to plaintiff for presentation to the proper Court. 1 am quite clear in my mind that rejection of a plaint under Order 7 Rule 11 CPC involves ad­ judication in some manner with regard to the claim in suit which cannot be done by a court which inherently lacked jurisdiction in the case. This conclusion of mine is also supported by the definition of "decree" as given in Section 2(2) of the CPC, which includes rejection of a plaint. I accord­ ingly direct that the plaint be returned to the plaintiff for presentation before the Special Court constituted under Ordinance XIX of 1979. In view of above order, CMAs No. 2992, 2993 and 3125 of 1983 have become infructuous. There will be no order as to costs- (TQM) Order accordingly.

PLJ 1987 Lahore 1 PLJ 1987 Lahore 1 ( Multan Beach ] Prtxtni : mohammad munir khan, .1 KHAN MUHAMMAD and 3 Others—Appellants versus GHULAM RASOOL and 4 Others—Respondents Regular Second Appeal No. 100 of 1986, heard on 1-12-1986 (i) Civil Procedure Code. 1908 (V of 1908}--

S l(;0-~Second appeal—•interference in—Courts below applying con­ scious rr.ir.ci to teic-v;<r.t evidence by giving cogent reasons in support of .oiK.iusion^ ai rjvcd at by them—Findings on various issues also not suffering from non-reading or misreading of any material evidence — Evident:; led on issues appreciated by lower courts in accordance with law and case-law laid down by superior Courts—Held : No exception to be taken to impugned judgment and decrees. [Pp. 17 & igjX (ii) Civil Procedure Code, 1908 (V of 1908)--

0. VII, R. 11---Plaint -• Rejection of—Extraneous material — Relevancy of—Held : Material foreign to plaint not to be taken into account for application of O. VII, R. 11, CPC, [P. 16]S (Hi) Cifi! P/ocedure Code, 1908 (V of 1908} —

O. V|], R. i! --Plaint ...... Rejection of~Grounds of-Held : Rule 11 of O. VIi, CPC not to be stretched to include therein grounds of non-maintainability of suit on pica of right having ceased to exist during pendency of suit. [P. 17JU Civil Procedure Code, 1908 (V of 1908) — O. Vll, R, 11 — Plaint — Rejection of—Pre-emption case—Ground in-- RiglH of pre-emptor becoming extinct during pendency of suit— Held : Term.s "barred hy law", -'bad in law'' "unenforceable under law" and "mefiertive under !aw' : being not synonymous, plaint cogni.zancc of which not specifically bailed by law not to be rejected ob grcuod of right of pre-emptor having become extinct during pendency of suit—Such suit pending or crucial day, however, to be competently dismissed on ground of its non-maintainability or (on ground of) pre emptor having lost his preferential pre-emptive right before passing of decree in his favour. [P. 17jV (v) Civil Procedure Code, 1908 (V of 1908)—

O. VII, R. IS (d) Plaint—Rejection of—Suit "barred by law"— Effect of—Held : Words "suit appears to be barred by law" used in rule 1! of O. VII, CPC to contemplate only those suits cognizance or trial whereof already specifically barred by law cr provisions of law —Held further : Fact of right having been taken away during pendency of suit not to be operate as legal bar to cognizance or trial of suit. [P, HJT (vi) Constitution of Pakistan , 1973 —

Arts. 203A, 203D, z03F, 203GG & 264 —Law repugnant to Injunc­ tions of Islam—Declaration regarding Pending proceedings —Effect on—Provisions of Chapter 3A of Constitution overriding other pro­ visions of Constitution—Held : Art. 264 of Constitution not to apply to judgment of Shariat Appellate Bench of Supreme Court to give life to pending proceedings. [P. 13]G (tii) Constitution of Pakistan , 1973—

Arts. 20.-D— Pre-emption law — Repugnancy of to Injunctions of Islam—Declaration regarding—Effect of—Judgment pronounced by Sbariat Appellate Bench of supreme Court under jurisdiction con­ ferred by Constitution declaring certain provisions of Pre emption Act and Land Reforms Regulations repugnant to Injunctions of Islam—Such provisions of law, however, not repealed through legislation—Held : Provisions of law declared to be repugnant to Injunctions of Islam (though remaining on statute book, same) to become ineffective and unenforceable on crucial date. [P. 14]K. (viii) Constitution of Pakistan , 1973—

Art. 203D—Pre-emption law— Repugnancy of Injunctions of Islam—Declaration regarding—Effect of—Shariat Appellate Bench of Supreme Court finding certain provisions of Land Reforms Regulation, 1972 and Punjab Pre-emption Act, 1913 repugnant to Injunctions of Islam—Held : Such provisions having become void and ineffective (on crucial date), superior pre-emptive right declared as repugnant to Injunctions of Islam not to be enforced by grant­ ing decree in favour of pre-emptors claiming superior right on basis of those provisions of law in pending suits and appeals filed by unsuccessful pre-emptors against dismissal of their suits — Cases in which decree already obtained by pre-emptor prior to crucial date, however, to be exception to such rule, [P. 14]O (ix) Constitution of Pakistan , 1973—

Art. 203D—Pre-emption law—Repugnancy of to Injunctions of Islam—Declaration regarding—Effect of—Preferential pre-emptive right possessed by certain categories of pre-emptors becoming void, ineffective and extinct on crucial date fixed by Shariat Appellate Bench of Supreme Court—Held ; Plaintiffs whose suits not decreed before such date to be non-suited while institution of suits to enforce right of pre-emption on basis of provisions of law declared to be repugnant to Injunctions of Islam to be barred. [P. 15JQ PLJ 1985 SC 380 ; PLJ 1984 SC 320 ; PLD 1961 SC 69 ; 1982 CLC 2663 & NLR 1980 Civil (Lah.) 61 rel. (x) Constitution of Pakistan , 1973— Art. 203D—Shariat Appellate Bench of Supreme Court—Judgment (reported as PLJ I9»6 SC 5'/6)—Effect of—Held : Judgment of Shariat Appellate Bench having become effective, provisions of para. 25 (3) (d) of Land Reforms Regulation 1972 as well as provisions of S. 15 [except clause (b) fourthly] of Punjab Pre-emption Act 19t3 to cease to have effect from 31-7-1986—Such judgment to be binding on all courts in Pakistan and to affect suits and appeals filed by unsuccessful pre-emptors against dismissal of suits—Decree granted before crucial date, however, to be immuned subject to merits of case—Law of limitation to extent of its having been found and declared repugnant to Injunctions of Islam also ccaie to have effect on crucial date—Additional preferential pre-emptory rights declared by judgment being not codified law same not to be enforced—Trial Court also not to reject plaint under O. VII, R. 11 CPC by reason of judgment. [P. 17 ]W (xi) Constitution of Pakistan , 1973 —

Arts. 203D & 2G3F—Sbariat Appellate Bench of Supreme Court- Decision of—Nature of—Held : Decision of Shariat Appellate Bench of Supreme Court (in declaring nature of provisions of Pre­ emption Act and Land Reforms Regulation, 1972 as void owing to their repugnancy to Injunctions of Islam) to be obviously declaratory (in natire) [P. 14JL PLJ 1981 Lah, 519 rel. (xii) Constitution of Pakistan , 1973—

Arts 203D, 203F, 203DD & 189-Pre-emption law—Repugnancy of to Injunctions of Islam—Declaration regarding—Effect of—Right to pre-empt conferred on certain categories of persons by Shariat Appillate Bench of Supreme Court not (so far) brought on statute book through legislation—Held : Declaration of right in such cases not to be regarded as codifiled law of country, so as to be enforcible under law. [P. I6]R (xiii) Constitution of Pakistan , 1973— Arts, 203D, 203F, 203GG & 189-Pre-emption law—Repugnancy of to Injunctions of Islam—Declaration regarding—Effect of—Held: Right of repeal being inherent in legislation alone, any change of law otherwise than by legislation not to constitute "repeal" so as to protect any right, privilege, obligaeion or liability acquired, accrued or incurred under Punjab Pre-emption Act, 1913 or previous opera­ tion of provisions of law declared as repugnant to Injunctions of Islam or anything duly done or suffered ihereundcr before crucial date and also continuation of suit pending on that date. [P. 12JF PLD 1964 SC 673 ; PLD 1964 Dae, 795 : PLD 195? Lab. 853 : PLD 1959 SC (Pik.) 387 & PLJ 1974 Lah. 565 ref. (xi?) Constitution of Pakistan , 1973—

Arts. 203GG & 189—Sharial Appellate Bench of Supreme Court- Judgment of—Binding nature of—Held : Judgment of Sharist Appeilate Bench of Supreme Gnat being very much binding not onhon High Court and all courts subodiM&re to it but alt.? en all oxhtr courts in Pakistan by virtue of Articles 203GG & 189 of Constitution, consequences ensuing therefrom to be accepted Without questioning judgment in any manner, [P. 12]A PLJ 1986 SC 220 fe j. (xv) Constitution of Pakistan , 1973— •

Arts, 263 & 203D —L»ws~-Coiitinuauce in fores of—Frinciplf regarding—Departure from— Wno'ie of Statute Book ('existing at time of enforcement of Constitution) preserved and allowed t :• hold field until repealed or amended by due process of legislation—Held: Clear departure from manner recognised by Art. 268 having been made under Art. 203D of Constitution, Federal Shanat Court and Shariat Appellate Bench of Supreme Court to be empowered to declare any law or provisions of law as repugnant to Injunctions of Islam, [P. 14]J (xfi) Law— •

Effect of— Held : Law unless recalled by legislation to remain on statute book but sometimes cease to have effect for various reaions. [P. 13]H PLD 1965 Dae. 348 & PLD 1980 Pssb. 154 ref. (xvli) Pre-emption— Law of—Peculiar feature of— Held: Preferential right to be required to be possessed by pre-emptor not only at time of sale but also both on date of suit and date of decree in bis favour. [P. 14]N (xfiii) Pre-emption—

Right of—Right (already) successfully asserted (before civil court) —Held: Pre-cmptor having become full owner superior right not to be required by him to be retained after decree in his favour or during pendency of appeal, second appeal and revision filed by vendee/ defendant. [P. U]P PLD 1961 SC 69 ref. (xvir) Words & Phrases—

"Cease"—Meaning of—Held : Meaning of words "cease" most often to suggest abrupt stopping. [P. 12]E (xx) Words & Phrases— •

"Cease"—Meaning of—Held : Word cease to carry specific interpretation of total extinction. [P. 14]M (xxi) Wordi & Phrtset—

"Ex pott facto' 1 — Meaning of. [P. 12JC Words & Phrases— ——"Effect"—Meaning of. [P. 12'ji-> (win) Wards & Phrasei— — —"Repeai"—Meaning of. [P. 12J8 Sh. Ziauddin Ahmad Qamar, Advocate for Appellant. Ch, Muhammad Jehangir Arshad, Advocate for Respondents. Pfr Rafiuddin Shah, Mirza Manzoor Ahmed & Mr. Kiaz Anvar, Advo­ cates as amici-curioe, Dates of hearirg : 4. 1;' 22 to 2&-U-i936 & 1-12-19S6. Ji.'PGMlN'l Muhamad Rafiq and others, Sold agricultural land measuring 19 kanah and 12 mar lax situated in vi'Jage Qabula I'ehsil Pakpattan, Distr.'ct Sahiwal, to K,han Muhammad, Muhamo^.j Din aad Muhammad Ibrahim, defen­ dants/appellants for ostensible price of Rs. 22, 050;- and mutation of sale was attested on 29-4-1974. On 24-4-1975, NazarDm deceased, father of Ghulam Rasoo! and 4 others respondents filed suit for possession by pre­ emption against (Chin Muhammad and others, vendees, in the court of Civil Judge, Pakpattan, claiming superior right on the basis of being real uncle of the vendors and co-sharer in the estate as well. It was also averred in the plaint that a sum of Rs. 9800;- only was bonafide fixed and actually paid as sale price of the suit land hat to defeat the pre-emptive right it was fictitiously shown as Rs. 22.050/- in the mutation. The suit was resisted whereon 6 issue., were framed The trisl Court vide judgment tnd decree dated 20 7-1978 w.iile deciding issues other than issue No 4 against the vendees/appellants, decreed the suit subject to tha payment of Rs. 22.050/-. Feeling aggrieved thereby, the defend.Uits/appdlaats filed appeal which was entrusted to learned Admnonai Diiirict Judge who vide his judgment and decree dated 10-3-1980 remanded back the case to the trial Court directing that ; "an issue in terms of preliminary objection pt'u? I contained in the written statement be framed and the same bs decided after affording opportunities to produce their respective evidence. The findings of the learned trial Judge oa issues No. 1 to 6 are maintained for the time being:. The learned trial Judge shall give fresh finding on issue No. 7 according to his findings on the issue of court-fee. It is made clear that the parties caa agitate and contest issues No. 1 to 6 if desires in the appeal preferred after fresh decision of the suit/' On remand, the learned trial Judge framed additions! issue No. 1.4, » follows :— "whether the suit is under valued for the purpose of Court fee and jurisdiction, if so, what is its correct valuation and to what effect ?" On 17-10-1984, the learned trial Judge decided this issue against the defeadants/appellants and again decreed the s»?l The appeal filed by the defendants/appellants against this judgment and decree failed on 3l-?-l!'8<, hence this Regular Second Appeal. 2. Sh. Zia-ud-Din Ahmad Qamar, the learned counsel for the appellant has challenged the findings of the courts below on issues No. 1, 2, 3 & 6, which are as under :— Issues : — (1) "Is the suit barred by time ? OPD. (1A) Whether the suit is under valued for the purposes of court fee and jurisdiction, if so what is its correct valuation and to what effect ? (2) Hai the plaintiff waived his right ? OPP. (3) Have the defendants incurred Rs, 10,410;'- on the improve­ ments of the suit land ? OPD, (4) Is the plaintiff equipped with superior title to pre-emption? OPP. Challenging the findings of the Courts below on issues No. 1, 2, & 3, the learned counsel submitted that the same surfer from mia-r:adiag and mis-appreciation of relevant evidence in that on 21-4-1974 not only the receipt Ex. D 1 with regard to the payment of sale price was executed by the vendors and report with regard to the transaction of sale of the suit land in favour of vendees/appellants was entered in 'Roznamcha WaqiatV but also the physical possession of the suit land was delivered to them and as such, the suit which was filed on 24-4-1974 was barred by time ; that in the same set of circumstances another suit filed by the same pre-emptor against Riaz Ahmad and others, pre-empting different sales made on 21-4-1974. mutation whereof was attested on 29-41974, was dismissed by the trial judge ; that the evidence led on issues relating to waiver and impovements was not appreciated in its trus perspective and that the reasons given by the courts below in support of their findings on the aforesaid issues are flimsy, farfetched and unconvincing. As far issue No, 6 relating to the superior right of Nazar Din plaintiff to pre-empt the sale attested on 29-4-1974 on the grounds of being Yakjaddi and co-owner in the estate, the learned counsel referred to the judgment of the Shariat Aooellate Bench of the Supreme Court reported as 'Government of NWF P v. Said Kama! Shah" (PLJ 1986 SC 576), herinafter to be referred as "the judgment', to contend that the alleged superior right of plamtiff/pre-emptor has been lost and taken away through the judgment before the action initiated on the basis of sale, the subject matter of the suit, could attain finality, the respondent/pre-emptor could not claim superior right of pre­ emption and his suit meritted dismissal on 31-7-1986 when the appeal was decided by the laarned District Judge ; that in any case, the preferential right of plaintiff having been lost and taken away pursuant to the judgment during the pendency of appeal/second appeal, the decree granted by the trial Court on the basis of being Yakjaddi was do more sustainable. Coatrarily the learned counsel for the respondent maintained that since the pre-emptor had successfully obtained the decree for possession by pre­emption before the judgment became effective on 31-7-19&6 (hereinafter called "the crucial date"), therefore, his preferential right having been merged in the decree of the Court it would henceforth be regarded as a source of right for the decree holder, such a decree, therefore, calls for no interference on the ground that the judgment had taken away the right of the plaintiff to pre-empt the sale. 3. Since the question posed for determination before this Court relates to the assessment of legal effect of the judgment on sales, suits, appeals, second appeals, revisions and writ petitions affected/filed/pending before, on or after the crucial date and is not only of public importance but also involves interpretation of constitution and statutory law, so I requested Pir Rafi-ud-Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar, the learned Senior Advocates to assist the Court as ami cm curias in resolving following questions : (i) Whether or not the judgment has rendered clause (iii) (d) of para No. 25 of MLR-115 and section 15 (except clause (b) fourthly relating to the right of co-sharers) of the Punjab Pre-emption Act as inoperative after 31-7-198& ? (//) What is the legal status of the judgment ? (iii) Whether or not the judgment is repeal/implied repeal of clause (iii) (d) of para No. 25 of MLR-J15 and section 15 (except clause (b) fourthly) of the Punjab Pre-emption Act within the meaning of sections 6 and 4 of General Clauses Acts aod Article 264 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter called as "the Constitution" ? (/v) Whether or not the judgment is retrospective in effect so as to hit the sale completed before the crucial date and also of right of pre-emption claimed on the basis of para No. 25 of clause (iii) (d) of MLR-115 and section 15 (except clause (b) fourthly) of the Punjab Pre-emption Act, although no amendment in the Pre­ emption Act so as to apply the tuie laid therein with retrospective effect has been made so far ? (v) What is the effect of the judgment on the continuity of the suit as a result of right having accrued earlier ? (v/) What is the effect of the judgment on appeal filed by vendee/ defendant against the judgment and decree in favour of pre emptor pending decision on the crucial date ? (v//) What is the effect of the judgment on appeal filed by the plaintiff/ pre-emptor against dismissal of his suit pending decision on the crucial date ? (viii) Whether the judgment has the effect of conferring right to pre­ empt on the basis of being ' Moheef and neighbour, if so whether the same is enforceable under the law although it has not been brought on the Punjab Pre-emption Act through proper legislation ? (ix) What is the effect of the judgment on the question of limitation for filing Pre-emption suit ? (x) Whether the plaint of the pending suits could/can be rejected on the basis of judgment ? Pir Rafi-ud-Din Shah, the learned counsel argued for the proposition that the judgment was retrospective in effect. He maintained that the judgment enjoys a declaratory status ; that it is not repeal/implied repeal of the provisions of law declared therein as repugnant to the injunction of Islam ; that the appellate as well as a Court exercising the revisional powers can take into consideration subsequent events including any change in the law because on filing appeal, the entire matter becomes re-opened and sub judice and has to be decided according to law prevailing at the time of appeal and that ones revision petition is admitted, the entire procjedings subject to the scope and limitation prescribed in Section 115 of the Civil Procedure Code are re-opaned for examination and the new aspect of law will date back to the in:eptioa of the Punjab Pre-emption Act. Mir/a Manzoor Ahmad, the learned counsel is of the view that since no specific date qn which the decision of the Couri would become effective has been state'd in the judgment, therefore, the provisions of law declared as repugnant to the Injunction of Islam hav; not become in­ effective and the lavv remains as it was before 31-7-1986. Kaawar Akhtar AH, the learned counsel adopted the arguments addressed by Pir RaiiMid- Din Shah. Mr. M Jehangir Arshad, the learned counsel for the respon­ dents argued for ths propositions taut unless the Punjab Pre-emption Act is amended so as to apply the rul; hid do.vn in the judgment war; retrospective sifsct, it will noi .'lil:^-. the a.tii •.•. r aich was complete bifop ths cruciajdate and will also n ot a V;;t rr- fnjim i!sMllid oy pre-emptor o;! till?" ffa 1 sTs' '6" (' "'t h o s • provisions of i.iw hi piiijing case, inasmuch as, the judgment being a "repeal" of th>s; provisions of law, does not affect the previous operation of aiv enic'.rn j.u or repiii ••:' anything duly done or sniferecl thereunder and -.vill ais.« not a!f-;ct auy right, privilege, obligation or I;a'>iiity a-cjuired, accrued yr incurred unjc-f thoii provisions of law, 4. For the p:irpj>c of proper ,:;•>, .^'-3 ;;.!hon of th; argurairus addre^ssvi 'it bar, the oo?ervation inid^ ny Hi-; i. .-rJship Mr, Justice laqi Ustnaiii, in p.tra M.>. 105 of his jaigrn:,tl, order oi the Court, relevant provisions of the Constitution, West Pakistan General Clauses Acts, Martial Law Regulation and Punjab Pre-emption Act, may be reproduced advantaaeouslv : — Os-iier of the Court ''We whiie afitefin;.' wit!? she reasoning in the judgment of Shaft- •or Rehuian, j,, that Uie Fcder;:'' Shan^t Court bad the jurisdic­ tion, to enic-rtai:), adiudicate an;; decide the petitions out ef which these appeals 'uu; arisen, t-rder accordingly. On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed, and ali other appeals arc allowed in terms of the formal last part of judgment of Mauiana Muhammad Taqi Usmanj, J. If possible a consolidated law of pre-emption be enacted accordingly till 31-7-1986. There shall be no order as to costs". The Constitution of Islamic Republic of Pakistan , 1973 Art. 203A, "The provisions of this Chapter shall have effect not­ withstanding anything contained in the Constitution," Art, 203D Uj "The Court may, either of its own motion or on the petition of a cilizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the injunctions of Islam". (2) If the Court decides that any law or provision of law is repug­ nant to the injunctions of Islam, it shall set out in its decision : — (a) the reasons for its holding that opinion ; and (b) the extent to which such law or provision is so repgunant ; and specify the day on which the decision shall take effect. (3) If any law or provision of law is held by the Court to be repug­ nant to the Injunctions of Islam :— (a) the President in the case of a law with reSpeet to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enu­ merated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam ; and (b) such law or provision shall, to tha extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect." Art. 203F () Any party to any proceedings before the Court under Article 203D aggrieved by the fiaal decision of the Court in such proceed­ ings may, within sixty days of such decision, prefer an appeal to the Supreme Court. Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision." Art. 203GG. "Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Cnapter shall be binding on a High Court and on all courts subordinate to a High Court " Art. 264. "Where a law is repealed, or is deemed to have been repealed by, under or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution ;— (a) revive anything not in force or existing at the time at which the repeal takes effect ; (b) affect the previous operation of the law or anything duly done or suffered under the law ; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment, may be imposed, as if the law had not been repealed. West Pakistan General Clauses Act, 1956 Sec, 4 (1) "Where this Act or any other West Pakistan Act repeals any enactment then unless a different intention appears, the repeal, shall not :— (a) revive anything not in force or existing at the time at which the repeal takes effect. (b) affect the previous operation of atsy enactment so repealed or anything duly done or suffered there-under : or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (<) ............ - ............................................... () ................................... - ......... (2) The provisions of sub-section (!) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act." Martial Law Regulation 115 Para 25. (3) (d} "Subject to the other provisions of this Regulation, a tenant shall have the first rignt of pre-emption in respect of the land comprised in tenancy". Punjab Pre-emption Act, 1913 Section 15, "Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest :— (a) Where the sale is by a sole owner or occupancy tenant or, ia the case of land or property jointly owned or held, is by all the co-sharers iointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or veadors, to inherit the land or property sold ; (b) where the sale i of a share out of joint land or property, and is aot made by all the co-sharers jointly,™ firstly, In the lineal descendants of the vendor in orders of succes­ sion. ; secondly t in the co-sharers, if any, who are agnates, ic order of succession ; thirdly, in the persons, not included uc<3er firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold : Provided that in case where the sale ss by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall rsad as follows :— thirdly, in the persons in order of succetsion, who but for such sale would be entitled, on the death of the vendor to inherit the Sand or property sold. fourthly, in the co-sharers ; if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it,— ; firstly, when the sals affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors ; secondly, in the owners of Patti or other sub-division of the estate within the limits of which such land or property is situate. thirdly, in the owners of the estate ; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy is such land or property : fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situate. Explanation. —In the case of sals by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother, or father, the word 'agnates in this section shall mean the agnates of the person through whom she has so succeeded". 5. An examination of the provisions of iaw and the operative parts of the judgment makes it crystal clear that Shariat Appellate Bench of the Honourable Supreme Court has declared that the provisions of para 253 (d) of MLR 115 as weil as the provisions of Section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab Pre-emption Act, are repugnant to the Injunctions of Islam ; that he Honourable Court had given 3I-7-1986 by which date the President in case of MLR 113 and Limitation Act and the Governor of the Punjab in case of Pre-emption Act, 1913, were required to take steps to amend the law so as to bring such provisions of iaw in conformity with the Injunctions of Islam ; that no steps apparently have been taken by the President a- well as the Governor to amend the prevision of law so as to bring such provision in conformity with the Injunctions of Islam, by the specified day on which the judgment would become effective rendering the aforesaid provisions of law as 'k'jladam' i.e. void and that as a consequence of the failure on the part of President and the Governor to amend the law as required by Article 203D (3) (a) of the Constitution, those provisions of law have, ipso facie, become ineffective, in-operative and have ceased to have effect w.e.f, 31-7-1986, It has been laid down in case 'Pakistan v. Public at large" report as PLJ 1986 SC 220 at page 231 ; "When fixing the date sufficient margin will have to be allowed to the Government and the Legislature concerned to take steps and then to make the law in accordance wiia the Injunctions of Islam (Article 203D (3) (a) ; because if due to paucity of time it is not done, there being no scope for condonation of delay tx post facto the impugned law shali in any event become ineffective (Article 203D (3) (b). The ensuing consequences can be well imagined including those of hardship to the public". Tbe judgment which has taken effect on 31-7-1986 is very much binding Ainot oniy on this Court, on all Courts subordinate to it but also on ail other Courts in Pakistan by virtue of Article 203GG and 189 of the Constitution and cannot be questioned in any manner So there is no option but to accept consequences ensuing therefrom. This brings me to the most important question for determination i.e.. whether the judgment tantamounts to repealing the provisions of law declared as repugnant. The dictionary meaning of the relevant terms may be quoted with advantage : In dictionary of legal words and phrases by William C. Cochran,-"Repeal" is to annul, or set aside, a law by a legislative act". In Webster's dictio­ nary, the meanings of word "Repeal" is, "to recall law, or statute, to ° revoke, to abrogate by authority". Its noun is "revocation or abrogation". n Concise Law Dictionary by P. G. Osborn, the meaning of the word "Repeal" is "abrogation of a statute or part of a statute by a subsequent statute". In the same dictionary, the meaning of the word " Ex post facto" c is "by a subsequent act". In Legal Maxims Foreign Words Terms and Phrases by Ommanuel Zafar, "Ex post facto" is, (From a law made after) ; i.e., the law is retrospective, being passed only after the thing prohibited was done ; Every law that takes or impairs a vested right is retro­ spective. In 'A Modern Guide of Synonyms and Related Words' the word "effect" is that it can refer to the successful accomplishment of an intended Jaction. The eanings of the word "cease" most often suggests an abrupt (stopping. It appears to me that the judgment is not "repeal" of those provisions of law declared as repugnant to the Injunctions of Islam within the meaning of Section 4 of West Pakistan General Clauses Act, 1956, Section 6 of the General Clauses Act, 1897 and Article 264 of the Constitution. The words "whether this Act or any other West Pakistan Act repeals any enactment" and the word "Whether this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment made or hereinafter to be made-" used in section 4 of the West Pakistan General Clauses Act, 1956, and Section 6 of the General Clauses Act, 1897, respectively, are of great significance and tend to show that the right of repeal is inherent in legislation alone, therefore, any change of law otherwise than by legislation will not constitute "repeal"' so as to protect any right, privilige, obligation or liability acquired, accrued or incurred under the Punjab Pre-emption Act or previous opera­tion of the provisions of law declared as repugnant to the Injunctions of Islam or anything duly done or suffered thereunder before the crucial date and also the continuation of the suit pending on that date. The Supreme Conrt in a case reported as PLD 1954 SG 673 has held that whe» unconstitutional statute is declared by the Court to be void, the court doe not thereby repeal the statute but merely holds it to be ineffective or inoperative. The expression "void law" does not mean that it was effected f r otn the statute book. The contention that a law declared as void should entail consequences similar to those of repeal of statute was repelled and it was categorically enunciated that the word "void" as regards law clearly implies that its provisions have become totally unenfor­ ceable. In case reported as PLD 1964 Dacca 795, it was held that the expression "repeal", "deemed to have been repealed" and "void" used id different articles of the Constitution of 1962 cannot be taken to have been intended to convey the satne meaning and nor can the con­ sequences that flow such happening be taken identical and that the courts function is not to legislate. Had it been the intention of the Framer of Chapter 3A of the Constitution to repeal/deemed to have been repealed, the law or provisions of law declared as repugnant to the Injunctions of Islam by reason of the judgment then nothing stood ia its way to include the words "repeal" or ' deemed to have been rep;aled' in Article 203D (3) (b) and would not have used the words" ceased to have effect on the day on which the decision of the Court takes effect". In case reported as PLD 1958 Lahore 853, it was held that invalidity was not equivalent to repeal of provision. Ths Court canaot give relief under an invalid law, In case reported as PLD 1959 SC (Pak.) 38? at 446 the meaning of the word -'void" was explained as being "not in operation", "not enforceable or "in abeyance" and these expressions do not have effect of a repeal or abrogation of any law The case reported as PLJ 1974 Lafa. 565 is mn authority on all fours with the principle of Saw involved in the instant case. Some writ petitions were pending in the High Court pertaining to terms and condition of service when the Service Tribunals Act, 1973 ia consonance with the provisions of Article 2!2 of the Constitution came into force and thereby the said petitions abated. It was contended that provisions of Article 264 on the subject of repeal would become applicable enabling the continuation of the said writ petitions in the High Court despite the change in law. The contention was repelled as in Article 264 of the Constitution, there was a clause to the effect that the said article is to operate "except as otherwise provided in the Constitution". Article 212 of the said con­ stitution contained such provisions of exception. So, Article 264 on the subject of repeal could not be applied for the continuation of the said writ petitions. In the instant case also the over riding aspect of provision, of Chapter 3A of the Constitution is much in evidence as per Article 203A which is to the effect that "the provisions of this Chapter shall have the effect notwithstanding anything contained in the Constitution", hence, Article 264 of the Constitution does not apply to the judgment to give life to the pending proceedings. The law unless recalled by Legislation remains on the Statute Book but it may some times cease to have effect for various reasons. For instance, the offence of section 153B was created in 1962 but for this offence no corresponding amendment was mads in Schedule II of Cr. PC to provide the procedure for the srial, etc, for the said offence, thus this offence remained oo the Statute Book but the same was ineffective in the terms as was beid in case reported as PLD 1965 Dacca 348. It was held in case reported as PLD 1980 Peshawar 154 that the law or provision declared as repugnant ceases to have effect aad the provisions of law so declared as repugnant get extinct but that would not amount to removal of law from Statute Book. Although the constitution under Article 268 accords protection to all the laws existing at the time of 'its enforcement in that whole of the Statute Book is preserved and is {allowed to hold field until it is repealed or amended by due process of Legislation, yet a clear departure has been made under Article 203D from that manner which is recognised by the rest of the Constitution inasmuch las, a body foreign to the field of Legislation i.e. Federal Shariat Court/ Shariai Appellate Bench of the Supreme Court, have been empowered to declare Saw or provisions of law out of not only those which were preserved and recognised as valid by the Constitution but also from that •orpus-juris which has to coma into being after the enforcement of the Constitution and this departure is not without wisdom and significance. The judgment has been given under the jurisdiction conferred by the Constitution, /.«. by virtue of Article 203D (l}(2)(3)(6). So the same to he extent it has declared the provisions of the Pre-emption Act and V1LR 115 as repugnant to the Injuuctions of Islam has on the crucial day effective without intervention of the Legislature with the result hat those provisions have become in-effective and unenforceable although he same will remain on Statute Book unless repealed through Legislaion. 6, As far, legal status of the judgment I am of the view that the jdecisioa of the Shariat Appellate Beach of the Supreme Court in declaring [the nature of the provisions of the Pre-emption Act and MLR 115 as void owing to their repugnancy to the Injunctions of Islam is obviously declaratory. The authority in support of the principle is case reported as PLJ 1981 Lahore 519. 7. It may be noted that the word "cease" carries specific interpreta- Ition of total extinction. Whether the judgment is prospective or retros- Jpective in its effect and whether an amendment in the Pre-emption Act so as to apply the rule laid down in the judgment with retrospective effect is necessary or not, to my mind, in all eventualities, the fact remains that in -dew of the distinguished features and peculiar nature of Law of Pre­emption that the pre-emptor sh?li not only possess his preferential right at the tifflirnr sal? but shall also carry and retain the lams bottT on the decree had been passed in favour of the pre-emptor/plaintiff. In thit connection the entire law was examined and discussed. Tbs observations of their Lordships at page 75 may be quoted convenieutly :— "The reported cases in which a decree had been obtained by the pre-emptor in the Court of first instance before notification under section 8 (2) of the Punjab Pre-emption Act, 191?, was issued, are easily distinguishable from those in which the right to pre­ empt had not yet beea incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the source of rights, for the decree holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre-emption in similar cases. The real difficulty arises in the cases of the second type, of which Kaju Mai v. Salig Ram (91 PR 1919) and Mohlndar Singh v.Arur Singh (ILR 3 Lah. 26?) may be cited as representative. With all respect, it seems to us that the learned Judges in those cases, interpreted the words of ihe notification too narrowly in their anxiety to save, vested rights. The words of the notification appear to us to be plain and to be fairly suspectible of the inter­ pretation that with the promulgation of the notification, all rights of pre-emption would cease to exist ia the area mentioned in the notification, whether they pertained to sales that bad already taken place or to those which were to be held thereafter. The only exception that could be recognised ta this proposition would be in favour of cases in which decrees Bad already been obtained by the pre-emptors, prior to the notification. In the case of such an existing deecree, it could not be said that the pre-emptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should sot be given to the comprehensive words of the notification so as to non-saSt plaintiffs who tnay have filed suits for pre-emption before the date of the notification as well as debar aS! pre-emptors from instituting suits to enforce their right of pre-emption ia the area in question subsequent to the date of the notification". On the same analogy it seems that in the absence of any such adjudication by a Court, there is no reason why full effect should not be giveo Co the plain and comprehensive words used in the judgment as well as Article 203D (b), i. e. "such iaw or provision shall to the extent to which it is held to be repugnant cease to have effect on the day on which the decision of the Court takes effect", so as to non salt the plaintiffs whose suits have not been decreed before the crucial date, as well as to debar all preemptors from instituting suits to enforce right of pre-emptios or, the basis of the provisions of law declared as repugnant to the Injunctions of Isiami because the preferential pre-emptive right possessed by them has become! void, ineffective and extiact on the crucial date. This rule would bsf equally applicable to the appeal filed by unsuccessful pre-emptor because} by reason of the judgment, be having lost his right to pre-empt before tit? crucial day, is no more entitled to the grant of decree in his favour. I am fortified in this view of the matter by judgment of the Supreme Court reported as PLD 1961 SC 69. NLR 1980 (Civil) Lab. 61, PLJ 1984 SC 320 ; PLJ 1985 SC 380 and 1982 CLC 2663. In these cases the effect of taking away the right to pre-empt during the pendency of suit/appeal was con­ sidered, discussed and determined. The observations made in para, 7 of the last quoted judgment may be reproduced with advantage : "Undoubtedly the notification in question would be operative from the date of its publication in the official Gazette and not retrospectively but the appellants are required to shosv that they had superior right of pre-emption not only at the time of sale, the institution of the suit but also till the passing of decree by the competent Court. The notification in question extinguishes the right of pre-emption in respect of the sale of the suit land and there­ fore, the appellant obviously could not maintain h;s superior right of pre-emption till the date of decree. The case relied and cited by learned counsel for the appellants is distinguishable inasmuch as that the learned Judges m that case did not address themselves Jo the question whether the plaintiff lost his right of pre-emption before the date of decree. The notification issued in that case hit alienation of the properties in genera! effected through public auction under the orders of the Court of Wards as distinguishable from the facts of the instant case wherein the notification in question specifically relates to the sale of the land in dispute. The impugned judgment/order of the learned trial Court holding the suit of the plaintiff having become infructuous from the date of operation of the notification is un-exceptionable". The principles with regard to the consequences of extinction of the right of pre-emption during the pendency of suits laid down in the aforementioned authorities can safely be applied to the judgment by reason whereof the right of pre-emption claimed on the basis of the provision of para. 25 clause (3) (d) of MLR 115 as well as the provision of Section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab Pre­ emption Act have been taken away on the crucial date. There the right to pre-empt had extinguished by the force of a notification and here the right to pre-empt has become extinct by reason of the judgment passed under the powers conferred by Chapter 3A of the Constitution 8. Coming now to the question whether the judgment has conferred right to pre-empt on feel that since. the rights have oot been brought on the Statute Book through Legisla­ tion so far, therefore, the same cannot be regarded as a codified law of the country so as to be enfcrcible under the law. 9. Dealing with the last question whether the plaint of a pending suit can be rejected under Order VII, Rule 11. CPC on the ground that the pre-emptor having lost his right during pendency of the suit, the plaint ither does not disclose cause of action or the suit has become barred by Ilaw, my answer is in the negative, in that for the application of Order VII, Jrule 11 CPC, material foreign to the plaint cannot be taken into account ; ^that the plaint when filed, it did disclose the cause of action and if averments in the plaint were accepted as true, the plaint did not suffer froa infirmity envisaged by Order VII, rule 11, CPC. Furthermore, the words "suit appears to be barred by law" used in rule 1 i of Order VII CPC,, are of great significance and contemplate only those suits, the cognizance or trial whereof has specifically been barred by law or provisions of law The fact of the right having been taken away during the pendency of the suit does not operate as legal bar to the cognizance or the trial of the suit. Rule IS cannot be stretched to include therein grounds of aoo-mamtain-ability of suit on the ground that rights have ceased to exist during the pendency of suit, I am afraid, it may tantamount to adding more grounds for the rejection of plaint. The terms "barred by Saw", "bad in law" "unenforceable under law" and "ineffective under the law" are not synonymous, so a plaint, cognizance of which was not specifically barred, by law or provisions of law cannot be rejected on the ground that the right of pre-emptor has become extinct during the pendency of the sun although the suit pending on crucial day may-be dismissed on the ground of its non-maintainability, or that the plaintiff/pre-emptor has lost his preferential pre-emptive right before a decree in his favour could be passed, by treating issue relating to the superior right as preliminary one, 10. The above discussion leads to the conclusions that the judgment of the Shariat Appellate Bench of the Honourable Supreme Court having become effective, the provisions of para. 25 clause (3) (d) of MLR 115 as well as provisions of Section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab Pre-emption Act, ceased to have effic't with effect from 31-7-1936 ; tbat the judgment of the Shariat Appellate Bench of the Honourable Supreme Court is binding not only on the High Court tad the Courts subordinate to it but also on ail courts in Pakistan that the judgement enjoys a declaratory status ; that the judgment is not a repeal implied repeal of provisions of law declared as repugnant to the Injunctions of Islam, within the meanings of Sections 6 and 4 of the General Clauses Act, 1897 and West Pakistan General Clauses Act, 1956. respectively and Article 264 of the Constitution as well ; that the judgment being as declaratory afi'ects the suits and appeal filed by the unsuccessful pre-emptors against the dismissal of suits, jn the sense that the preferential pre-emptory rights having become ineffective and extinct on 11-7-1986, it is not possible, under the law, to enforce those rights and grant decree in favour of the pre-emptors in suits, appeals, revisions or writ petitions that since the pre-emptor is not required to retain his preferential right after decree in his favour and the right having already been successfully asserted before the crucial date, the pre-emptor had become full owner,, so the decree in favour of pre-emptor granted before the crucial date will! be immune subject to the merits of the case ; that the two additional' preferential pre-emptory rights of " w »jjj" and "t-^!^ .^ijl -3y^- <"£•!> ' cannot be regarded as codified law 01 the country, so the same are not enforceable ; that ths law of Limitation to the extent it has been examined and declared repugnant to the Injunctions of Islam also ceased to havs effect on the crucial date and that a plaint cannot be rejected by the trial Court or the Appellate Court under Order VH, rule 11 CPC by reasons of 'the judgment. 11. As far the merits of the case, I have not been able to persuade myself to agree with the learned counsel for the appellant, I find that the courts below have applied conscious tiind to the relevant evidence and! have given sound and cogent reasons in support of the conclusions arrived! at by them. The findings of the Courts below on issues No. 1, 2 & 3 doj not suffer from non-reading or mis-reading of any material evidence. Th« learned counsel has not pointed out any mis-reading or non-reading of material evidence by the courts below. The mutation was attested on 29-4-1974, so, the suit wh'ch was filed on 24-4-1972 was well within time. There is no cogent evidence to the effect that the vendee had taken under the sale, the physical possession of the suit land on 21-4-1974 or that the suit land was capable of admitting physical possession. The Courts below have appreciated evidence led on the issues in accordance with law and the case law laid down by the Superior Courts. For all these reasons, I am of the view that no exception can be taken to the impugned judgments and decrees. There being no merit, the appeal is dismissed, leaving the parties to bear their own costs. 12. Before parting with the judgment I want to bring on record my appreciation of the valuable assistance rendered by Pir Rafi-ud-Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar Advocates. They have ably assisted the Court with hard-work in this case as amicus-curiae. (TQM) Appeal dismisied.

PLJ 1987 Lahore 18 PLJ 1987 Lahore 18 Present: muhammad afzal lone, J MUHAMMAD SHARIF—Petitioner versus MEMBER BOARD OF REVENUE and Others—Respondents Writ Petition No. 1670 of 1986, dismissed on 21-10-1986 (i) Constitution of Pakistan , 1973—

Art. 2A [as added by Revival of Constitution Order, 1985 (P.O. 14 of 1985)—S. 2]—Objectives Resolution —Addition of as substantive part of Constitution—Effect of—Objective Resolution made substan­ tive part of Constitution by addition of Art. 2A to Constitution— Held: State now to be under obligation to carry forward establ s'nrnent of Islamic Society and to exercise its authority to enable Mubhmi to order their lives in individual and collectives spheres in accordance with Injunctions of Islam as set out in Holy Quran and Sunnah. [P. 22]E (ii) Constitution of Pakistan , 1973—

Art. 2A [as added by Revival of Constitution Order, 1985 (P.O. 14 of 1983)—S. 2]—Objectives Resolution — Principles and provisions set out in—Held : Objectives Resolution not only to provide guide­ line for expounding Constitution and for true understanding thereof, same also to occupy pivotal position and to become substantive source of power. [P. 22]D (iii) Constitution of Pakistan , 1973—

Arts. 199 & 203D (3) (b) — Law repugnant to injunctions of Islam -Enforcement of—Writ—Competency of—Law already ceas­ ing to have effect by virtue of Art. 203D (3) (b) of Constitution — Petitioner, however, seeking enforcement of such law by invocation of writ jurisdiction — Held : Writ in such circumstances not to be issused by Court. [P. 23]L (ir) Constitution of Pakistan , 1973 —

Arts. 203A, 203D & 264—Law—Repugnancy of to Injunctions of Islam—Declaration regarding — Effect of— Held : Chapter 3A of Constitution overriding anything contained in Constitution, Art. 264 not to be applied to case hit by point decided by Shariat Court under Art. 203D. [P. 1]B (v) Constitution of Pakistan , 1973—

Art. 203D—Law—Repugnancy of to Injunctions of fslam—Decla­ ration regarding—Effect of—Held : Repeal being purely legislative function, (mere) declaration by. Federal Shariat Court or for that matter by Shariat Appellate Bench of Supreme Court that (in con­ templation of Art. 203D of Constitution) particular law to be repugnant to Injunctions of Islam as laid down in Holy Quran and Sunnah not to repeal law. [P. 21 \A (vi) Constitution of Pakistan . 1973—

Art. 2U3D—Law repugnant to Injunctions of Islam — Declaration regarding—Effect of—Court specifying date on which its decision to take effect—President or Governor, however, taking no steps to bring relevant law in conformity with Injunctions of Islam— Held : Law to cease to have effect on date court's decision becomes effective. [P. 22JG (yii) Constitution of Pakistan , 1973—

Art. 203D—Law repugnant to Injunctions of Islam—Decision re­ garding — Government not shown to be faced with situation making it unreasonable to expect from it to arcend law within time limit fixed by court—Held : Event of judgment of Shariat Appellate Bench of Supreme Court becoming effective from date fixed by court not to be post poned— Held further : Government having not cared to amend law, decision to become effective from date fixed by Court. [Pp. 22 & 23]7 (?iii) Constitution of Pakistan , 1973—

Arts. 203D, 203GG & 2A—Law repugnant to Injunctions of Islam —Enforcement of—Effect of — Laws adjured to be repugnant to Injunctions of Islam—Held : Enforcement of such laws to have effect of thwarting development of socio-juridical system having its ultimate basis in Will of God and thus to defeat principles enshrined in Objectives Resolution. [P. 22]F (ix) Constitution of Pakistan , 1973—

Arts. 203D, 203GG & 203H—Law—Repugnancy of to Injunctions of Islam—Declaration regarding—Binding value of—Pending procee­ dings—Effect on—Held : Decision rendered under Art 203D to be binding on High Court and on all courts subordinate to that court- Decision declaring provisions of (certain) law as repugnant to (Injunctions of) Islam becoming effective under Art. 203D (3) (b) of Constitution —Held : Word» "decide in accordance with law for the time being in force" not to be construed to permit enforcement of (such) law (already declared repugnant to Islam). [P. 21 & 22JC (x) Words & Phrases—

"If possible"—Meaning of, [P. 22]H Stroud's Judicial Dictionary & 2 CPD 582 re'f, (si) Writ Jurisdiction—

Appea! and writ petition — Distinction — Held ; Appeal being continuation of same proceedings and step in suit, writ petition not to be analogous to it. ]P. 23]K Mr. C. A Rehman Warraich, Advocate for Petitioner. Date of hearing : 21-10-1986, order Muhammad Sharif petitioner Sled a suit against respondent No. 3 for possession of the land ia dispuie,-.ihrough exercise of right of pre-emption, on the ground that the iand comprised in his tenancy. The Assistant Commissioner Hafizabad with powers as Collector, by his judgment dated 26-2-1983 decreed the suit but on vendee's appeal, the Appellate Authority maintained that the petitioner cultivated the iand as a mortgagee and not as a tenant, The judgment aud decree of the Collector were, 'thus, set aside and the suit dismissed. The Appellate Court's judgment is dated 24-6-1984. The petitioner then preferred a revision but the learned Member, Board of Revenue, did cot differ with the Appellate Court and dismissed the petitioner's revision en 31-10-1985. The unsuccessful preemptor has dow come to this Court under Article 199 of the Con­ stitution. 2, It seems that during the pendency of the suit before the Collector, the questioa of repugnancy of law granting right of pre-emption to a tenant of the agricultural land, fell for determination before the Shariat Appellate Bench of the Supreme Court, in the case of Government of NWFP v. Malik Said Kamci S/icAand other onnected appeals. The judgment has been nnounced and reported as PLJ 1986 SC 576. According to the majority point of View, the iaw conferring right of pre-emption, on the tenant, is, repugnant to the injunctions of Islam. In the judgment in terms of clauses (2) & (3) of Article 203D, read with claute"(2) of Article 203F of the Constitution, a direction is given that : — s 'If possible a consolidated law of pre-emption be enacted accordingly till 31-7-1986". This time limit has expired but the relevant law has not been amended. 3. The learned counsel has deen confronted with the decision of the Supreme Court, He has heavily relied upon Section 6 of the General Clauses Act which lays down that unless a contrary intention is exhibited, the repeal of a statute does not affect the rights already in existance and the pending legal proceedings can continue. In other words, according to the learned counsel the Supreme Court's judgment has the effect of repealing Para 25 (3) (d) of the Land Reforms Regulation, 197:-.. which confers the first right of pre-emption on the tenant in the iand comprised in his tenancy. He also referred to Article 203K which ordains that during the pendency of a petition for decision, as to whether or not a law or provision of law, is, repugnant to injurretons of Islam, any legal proceedings pending in any Court relevant to the point in issue, in such petition, shall continue and be decided in accordance with law for the time being in force. 4. Before proceeding further at the outset it may be stated that the learned counsel's reliance on Article 203H is in-apt. This Article merely permits the continuaiion of the legal proceedings commenced before or after the institution of the petition under Article 203D, and decision thereof until such law is held to be repugnant to the injunctions of Islam. However, the other point needs examination but the learned counsel seems to be oblivious of Article 264 of the Constitution which is para-materia with section 6 ibid. It is reproduced be!e>w :— "Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,— (a) revive anything not in force or existing at the time at which the repeal takes effect ; (b) affect the previous operation of the Saw or anything duly done or suffered under the Saw ; (c) affect any right,. privilege, obligation or liability acquired, accrued or incurred under the law ; (d) affect any penaity, forfeiture or punishment incurred in respect of any offence committed against, the law ; or (t) affect any investigation, legal proceedings or remedy in. respect of any such, right, privilege, obligation, liability, penalty, forefeitute or punishment ; and any such Investigation, legal proceedings or remedy may b; instituted, continued of enforced, and any such penalty, forei'eicure or punishment may be imposed, as if the law had not been repealed." 5. Even Article 264 cannot be extended to the instant case. There are two weighty reasons for this. Firstly, the declaration by the Shanat Court or for that matter "by the Shariat Appellate Bench of the Supreme Court, that in contemplation of Article 203D a particular law is repugnant to in­ junctions of Islam as laid down in Holy Quran and Sunnah, does no repeal the law, for, the repeal is not a judicial function but purely legislative. Secondly, Articles 203D and 203F are part and parcel of Chapter 3A of the Constitution. Article 203A is also included therein and provides :— "The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution," The effect of Article 203 A thus, is that the provisions of -Chapter 3A over­ ride Article 264 and it therefore, cannot be applied to a case, hit by the point decided by the Shariat Court , under Article 203D. Even otherwise the intention of Article 203H appears to be to allow the continuation of the pending proceedings, to be dealt with according to the law, then in force, until the law in question is pronounced upon by the Shariat Court, as repugnant to Injunctions of Islam. According to their context, the words "decide in accordance with law for the time being in force", figuring in Article 203H cannot be construed to permit enforcement of the iaw, after the decision of the Shariat Court, declaring th« same as repugnant to Mara, had become effective under sub-clauie (b) of clause (3) of Article 203D. Seedless to mention that Article 203G ordains that a decision rendered uuder Article ?03D in binding on the High Court and on all the Courts subordinate to the High Court. 6. There is another important aspect of the issue under discussion. Under the Presidential Order No. 14 of 1985, Article 2\ has been added to the Constitution and thereunder the Objectives Resolution, made a substantive part thereof. Due to this amendment, the position has radically changed. The Resolution not only provides a guide-line for expounding the Constitution and true understanding thereof, but occupies a pivotal position in the Constitution and has become a substantive source of power. It is now the obligation of the State to carry forward the establish­ ment of an Islamic society and exercise its authority to enable the Muslims to order their lives in individual and collective spheres, in accordance with the Injunctions of Islam, as set out in the Holy Quran and Sunnah The enforcement of the laws even after these have been adjudged to be repugnant to the Injunctions of Islam, may have the effect of thwartins he development of a sccio juridical system, having its ultimate basis n the Will of God and thus, defeat the principles enshrined in the Objectives Resolution. 7. Under Article 203D (2), in its decision, the Court has to specify the day on which it shall take effect and under sub article (3) the President or the Governor, as the case may be, to whom the relevant law G relates, has to take steps to bring it in conformity with the Injunctions of Islam. Of course, such steps are to be taken and the law amended before the specified day, failing which, it shall cease to have effect on the date the Court's decision becomes effective It is to be noticed that in the direction of the Court, quoted in the earlier part of thii order, the date of 31-7-1986 specified for the purposes of Article 203D (2) is preceded by the words '-if possible". A superficial examination of these words, perhaps may convey the impression that the date on which the decision shall be effectua­ ted has not been firmly specified and in the matter of amendment of the law, a latitude has been extended to the government But in my humble opinion, the expression "if possible" needs to be construed, in the light of the constitutional obligation, requiring the President, or for that matter the government concerned to amend the law. According to the Strouds' Judicial Dictionary, Vol. 4. (1974 Ed.), page 2067 : "A duty to do a thing 'if possible'means generally if reasonably possible in a business sense". The observation of Cotton LJ. in Shepherd and others v. Kottgen & others H (2 C.P.D. 582) may also be usefully quoted here :> "In the language of every-day life a thing is impossible when, according to the ordinary course of human events, no expectation can be entertained that it will happen" ............................ " Thus, the event of the Supreme Court's judgment becoming effective, from 31-7-1986, could not have been postponed unless the government, was, shown to be facsd with a situation, that it would be unreasonable to ixpect from it to amend the law, within the time limit fixed by the Court. Conceivably, such a situation didI not aris:, I am, therefore, of the view that since the government did not amend the law, the Supreme Court'si decision become effective from 31-7-1986. 7. The case can also be examined from another angle. The peti­ tioner's suit has already been decided by the forums envisaged by the law under which the right of pre-emption is claimed by him. The writ petition! is not analogous to appeal which is considered as a continuation of the K same proceedings and a step in the suit. Through invocation of writ jurisdiction, the petitioner seeks enforcement of law which by virtue of Article 203D(3)(d) ceased to have effect and is no longer a valid enactment. Such a writ cannot be issued. 8. As the petitioner stands denuded of the right of pre-emption this writ petition is dismissed in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 23 [DB] PLJ 1987 Lahore 23 [DB] Present : muhammad aslam mian & amjad khan, JJ TALIB HUSSAIN—Petitioner versus Babu MUHAMMAD SHAFFI and 12 Others-Respondents Civil Revision No. 13-D of 1986, dismissed on 8-10-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

S ' 15— High Court—Revisional jurisdiction of—Exercise of— District Judge not shown to have committed any jurisdictional error of nature of misreading or non reading of evidence—Held : Case really getting concluded on basis of facts found by lower appellate court, no case for exercise of revisional jurisdiction to emerge at all. [P. 251-4 & C (ii) Transfer of Properly Act, 1882 (IV of 1882)-

S 54—Sale—Definition of—Mutation obtained for consideration— Effect of—Sale allegedly made through mutation in revenue estate situated within municipal limits of Sialkot— Held : S. 54 of Transfer of Property Act having (already) been made applicable to all Municipalities in Punjab (since 6-5 1935), mutation of sale (obtainsd for consideration) not to be regarded to have conferred valid title on him regarding suit land. [P. 25]B Mr. Zafarullah Checma, Advocate for Petitioner. Date of hearing : 13-9-1986. oider On 21-10 1968, respondents No. 1 to 4 filed a suit for possession of land on the basis of their title acquired through the registered sale deed dated 15-9-64, executed by its owner M,uhammad Hussain who had died in the year 1965 and his legal heirs, respondents 5 to I 3 herein, were impleaded as defendants No. 1 to 9 in the suit ; whereas the present petitioner was joined as defendant No. 10 for the reason that the aforementioned heirs of Muhammad Hussain were stated to have sold the land to him after the sanctioning in their favour of a mutation on 30-8-1966 with regard to Muhammad Hussain's inheritance. Defendants No. 3 to 9 did not contest the suit which was resisted by the petitioner alone by pleading title in himself since 9-4-1954 on account of sale in his favour made by his brother Muhammad Hussain so that thereafter he had not been left with any right to transfer it to the plaintiffs . In the trial Court, only two issues, relating to the rival titles claimed by the plaintiffs and defendant No. 10, on the basis of the sales pleaded by them, were set down for trial. Under the first issue, learned Civil Judge found that Muhammad Hussain had duly executed the sale deed Exh. P. 1 in favour of the plaintiffs therefore there had not been left any title for Muhammad Hussain in the land to devolve upon his heirs through inheritance. Under the second issue, he held that defendant No. 10 had not been able to prove the sale in his favour and had not produced even the receipt relating to the alleged payment of consideration. The suit was consequently decreed in favour of the plaintiffs on 4-12-1969. 2. Petitioner (defendant No, 10) filed an appeal thereagainst in the Court of District Judge, Sialkot which was at one stage dismissed in default and the order of refusal to res'ore it, was assailed in FAO No. 64 of 1971 which was accepted on 3-5-1984 to remit the appeal for being heard and decided on merits. Pursuant thereto, learned District Judge took uo the appeal and came to the conclusion that it was a fit case wherein trial Court may have obtained a replication and thereupon he himself obtained the replication from the plaintiffs and by his order dated 24-7-l<>84, framed an additional issue No. 2A for determining the question whether the plaintiffs are bonafide purchasers of the disputed land for value and without notice and sent it down to be tried by the learned Civil Judge who, by his order dated 10-9-1984, answered it in favour of the plaintiffs and defendantpetiitioner filed objections thereagainst in his appeal. After hearing the appeal, learned District Judge found that the entries made in mutation No. 1177 (Ex. D. :) which was rejected on 29-4-1959, showed that defen­ dant No. 10 and his vendor brother Muhammad Hussain had both appeared before the Patwari on 7-5-1957 to admit the payment of consideration of Rs. 600/- and held that the sale had in fact been made in favour of defendant No. 10 in thus getting the mutation entered." On the basis of this entry, coupled with the orther evidence on the point led by the petitioner, learned District Judge held that the sale in favour of defendant N-o. 10 (the present petitioner) had been proved. He also concluded that the subsequent mutation bearing No. 162f> (Ex D 2) sanctioned in favour of the petitioner was not a fresh transaction entered into by the heirs of Muhammad Hussain but was in fact only an acknowledgement of the sale made earlier through mutation bearing No, 1177 (Ex. D. 1). On this basis, learned District Judge held that the petitioner had in fact purchased the disputed land from his brother Muhammad Hussain some time before 7-5-1957. However, by affirming the trial Court's findings under issue No. 2-A, he proceeded to dismiss the appeal on -9-10-1984 with the con­ clusion that the plaintiffs had acted in good faith by taking all reasonable care to ascertain the title of their vendor who had continued to be shown in the revenue record to be the owner of the land and hence their transation was protected under section 41 of the Transfer of Property Act. Trial Court's decree for possession of land in favour of ths plaintiffs having thus been upheld by the learned District Judge, defendant No. 10 has now come up 1987 to this Court below. 2. On 7-1-1985, learned counsel was provided an opportunity to examine the question as to whether the sale made through a mutation in the revenue estate of PaKka Garha, admittedly situated within the Municipal limits of Sialkot, could confer a valid title in view of section 54 of the Transfer of Property Act. He has today argued merely that this plea was not taken by the plaintiffs in either of the Courts below and, therefore, it may not be considered in this revision as well. He has, however, referred to Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 4l 1) and Muhammad Sarfraz Khan and another v Farid Khan and 22 others (PLD 1972 Peshawar 109). The former pre-emption case with regard to a sale made by means of a mutation contrary to the requirements as to form of sale contain­ ed in section 54 of the Transfer of Property Act and was decided on the main consideration that pre-emption is a right of substitution and a successful preemptor is entitled to claim to be substituted into the transaction, whatever good or bad, al had been secured by the vendee but it was not held that such a transaction by itself, creates a valid title in the property. Hence, the aforecited judgment of the Supreme Court is of no avail to the petitioner. The other case, from Peshawar, rather than helping the petitioner, goes against him on the facts found by the learned District Judge, whose Court is a final Court of facts. In this precedent case, title of a purchaser, who may have entered into the transaction after being vigilant and making diligent inquiries on the basis of entries appearing in the Jamabandi, was held protected and learned District Judge has invoiced this very rule in favour of the plaintiff-rsspondents on the basis of facts found by him, whereupon this case really gets concluded because therein '.tamed District Judge is not shown to have committed any jurisdictional error of the nature of misreading or non-reading of evidence. Moreover. the mutation of the alleged sale obtained by the petitioner for a coAsidsra tion of Rs. 600/- cannot be regarded to have conferred a valid title in him B regarding the suit land for its being opposed to the provisions of section 54 of the Transfer of Property Act which has been made applicable to all Municipalities in the Punjab since 6-5-1935. 3. Decrees of the two Courts below, in favour of the plaintiff-I respondents, are unexceptionable and there does not emerge any casej c at all for exercise of revisional jurisdiction. Hence, dismissed in linine. 4. (TQM) ——

Petition dismissed.

PLJ 1987 Lahore 25 PLJ 1987 Lahore 25 Present : amjad khan, J MUHAMMAD BOOTA—Appellant versus MUHAMMAD SARWAR—Respondent Regular Second Appeal No. 13/1986, dismissed on 9-9-1986 (i) Civil Procedure Code, 1908 (V of 1908) —

S. 100—Fact—Question of—Raising of in second appeal—Question of fact not raised in appeal before lower appellate court — KfeW : Such contention not to be entertained at stag? pf second appeal [P. 27]C (ii) Co-sharer—

Sale of land by—Effect of—Overall share of appellant in Khata exceeding area contracted by him to be sold—Held : Appellant not to be disabled from selling land in suit (merely) because of his mother and sister being also co-sharers therein. [Pp. 27 & 28]D PLD 1959 SC 9 rel. (iii) Possession—

Khasra girdawari —Entry regarding possession—Effect of—Held: Mere fact of possession having been recorded in relevant khasra girdawari to be held by owners not necessarily to lead to conclusion that all co-owners in fact held actual possession of land. [P. 21]A (iv) Possession—

Co-owner—Possession of—Held : Possession of one co-owner in law to be regarded as possession of all— Female relations in case other co-sharers of appellant—Held: Appellant not to be believed to be not in exclusive possession of property without any reason. [P. 21}B Ch. Mushtaq Ahmed Khan, Advocate for Appellant. Date of hearing : 9-9-1986. order Respondent filed a suit for specific performance of agreement dated 28-11-1974 regarding sale to him of i H Kanals 17 Marias of land situated in village Kbambranwala Tehsil and District Sialkot for a consideration of Rs. 13,OuO/-, whereof Rs. i2,4i7/- had already been received by the defen­ dant to whom he was willing to pay the balance Rs. 583,'-. Defendant contested the suit by denying execution of the agreement and taking up the pleas also of fraud and inadequacy of consideration. He claimed also that he could not have undertaken to sell the land because he is not the sole owner thereof Necessary issues were set down for trial and after recording the evidence of the parties learned trial Judge held that the agreement Exh. P, 1 was in fact executed by the defendant and no fraud bad been proved to be committed thereabout. He, however, upheld the contention of the defendant that be is not the sole-owner of the land and, finding that his mother and sister were also the co-sharers therein so that the defendant was an owner therein of only 14/24 share, by his judgment dated 26-1-1978 decreed the suit for 14/24 share of the land against a propor­ tionate price worked out to be Rs. 7.600/- and dismissed tbe suit with regard to the remaining land but, despite tbe finding that a sum of Rs. 12.417/-, out of the contracted amount of Rs. 13,000;-, had already been received by the defendant, there was no order passed with regard to the remaining sum paid to the defendant, 2. Two appeals were thereagainst filed by the parties in the district Court which were beard by a learned Additional District Judge who affirmed tbe trial Court's findings with regard to due execution of the agreement of sale and failure to prove any fraud thereabout, to hold also that the defendant's share in the entire Khata was more than 18 Kanals 17 Marias and the mere fact that he is a co-sharer in the land with his mother and sister could not be a disability about his alienating the land within the extent of his overall share in the entire Khata in the form even of specific Khasra numbers. He referred to Muhammad Shaft and others v. Mirza and others (PLD 1959 Lahore 398) and Mustafa Khan and 3 others v. Muhnmmad Khan and another [PLD 1978 SC (AJK.) 75], in support of his view and by his consolidated judgment dated 4-1-1986 accepted the appea-1 of the plaintiff to decree his suit in full by requiring him to deposit within 30 days the sum of Rs. 583/- which remained to be paid out of the conside­ ration agreed upon between the parties and dismissed the appeal of the defendant who has now come up to this Court in second appeal. 3. While'conceding that the defendant-appellant's overall share in the entire khata exceeds 18 kanals 17 marlas, learned counsel has attempted to argue that the defendant-appellant was not in exclusive possession of the land which is shown in the Khasra Girdawari to be jointly possessed by all three co-owners, therefore, he alone could not either have contracted for the sale of the specific Khasra numbers in suit or be compelled to transfer them in the name of the respondent. There was no plea on the point at all raised by the appellant either in his written statement or even in his appeal below, therefore, he cannot take^t up at this stage. Even otherwise, the argument of the learned counsel is only assumptive in character because the mere fact that possession may be recorded in the relevant Khasra Girdawari to be held by tfye owners would not necessarily lead to the conclusion that all the co-owners are in fact holding the actual possession of the land. In law, possession of one co-owner is regarded the possession of all and since the other two co-sharers of the appellant are his female relations, therefore, there would not be any reason to believe that he may not be in exclusive possession of the land in dispute. Contention of the learned counsel is repelled for all the foregoing reasons. 4. Next argument of the learned counsel is that the agreement for sale of 18 Kanals 17 Marias for a meagre Sum of Rs. 13.000/-is, on the very face of it, unconscionable and deserved to be refused to be specifically enforced for the discretion in that behalf vesting in the courts who have not attended to this aspect of the case. Tbis contention relates to a question of fact and does not appear to have been raised in the appeal below and cannot, therefore, be entertained at this stage. However,' there is no evidence or material brought on the record for proving that 1 such a price agreed to in the year 1974 may be inadequate. To support his argument, learned counsel has himself invited attention to a Division Bench judgment in All Muhammad Khan v. Riazuddin Khera, (PLJ 1981 Karachi 244), which rather than supporting his case goes against him inasmuch as similar argument raised therein was repelled in paragraph 11 of the judgment with the observation that the inadequacy of price can hardly be a ground for refusing specific performance. 5. In the end, learned counsel has also half-heartedly repeated the defendant-appellant's argument raised in the courts below with regard to his mother and sister being the co-sharers of the land in suit and conse­ quent disability in him to sell the land in suit. It has been rightly rejected by the learned Additional District Judge on the conclusion that his overall share in the Khata exceeds the area contracted by him to be sold. Muhummad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9) furnisbes a complete answer to the contention which is repelled as being (simply untenable. 6. The decree passed in the appeal below is unexceptionable. There is no case made out for interference. Hence, dismissed in limine. (TQM) Appeal dismissed.

PLJ 1987 Lahore 28 PLJ 1987 Lahore 28 [Multan Bench] Present: muhammad munir kban, 3 CHUHAR KHAN—Petitioner versus Mst. GHULAM FATIMA and Another—Respondents Civil Revision No. 631-D of 1982, beard on 23-11-1983. (i) Muslim Family Laws Ordinance, 1961 (VIII of 1961)— ——S. 7— Talaq —Notice of— Talaq pronounced with full determina­ tion (and mutual consent) never revoked expressly, impliedly or otherwise by first husband — Held : Non-giving of notice under S. 7 (1) of Ordinance not to render Talaq ineffective. [P. 33]£> 1983 SCMR 942 ; 1983 PSC 194 ; PLJ 1981 Lah. 638 ; PLD 1982 FSC 229 ; 1970 SCMR 845 ; PLD 1963 SC 51; PLD 1960 Lah. 466; 1968 P Cr. LJ 170 ; PLD 1964 Kar. 306; AIR 1929 Lah. 372 & 15A11. 397 distinguished. (ii) Muslim Family Laws Ordinance, 1961 (VIII of 1961)—

S. 7 (1) —Talaq— Notice — Omission to give — Effect of — Talaq pronounced 15 to 18 years ago never revoked expressly or otherwise by first husband—Held : Question of revocation not to arise in such case of determined Talaq— Held further: Main object of S 7 of Ordinance being to prevent hasty dissolution of marriage by talaq pronounced by husband unilaterally, non-giving of notice not to defeat such object (in circumstances of case). [P, 33]C (iii) Muslim Family Laws Ordinance, 1961 (VIII of 1961) — '

S. 7 (1)— Talaq —Notice of—Omission to give — Presumption re­ garding—Rebuttal of—Held: Omission to give notices in some cases though giving rise to irresistible presumption regarding Talaq having been revoked impliedly, such presumption (being reburable) to stand sufficiently rebutted by subsequent conduct (of first husband) and his subsequent statement made in court. [P. 3l]B PLJ 1981 SC 812 ref. (iv) Marriage— —-Validity of—Challenge to- Invalidity—Onus of—Hfld : Evidence to be appreciated, assessed and weighed very carefully in cases relating to validity of marriage and legitimacy of child — Held further : Heavy onus to lie on party pleading invalidity of marriage and illegitimacy of child to prove same through unambiguous and convincing evidence. [P. 30]^ Sardar Asif Saeed Khan Khosa, Advocate for Petitioner. Mr. Muhammad Anwarul Haq Gilani, Advocate for Respondents. Date of hearing : 23-11-1983. judgment On 27-1-1976 Chubar petitioner filed suit against Mst. Ghulam Fatima, respondent No. 1 and Faqir Hussain respondent No. 2 for declaration to the effect that he is owner in occupation of the suit land at a sole heir of Jagga deceased. It was averred in the plaint that Jagga had died bachelor and as such, the respondents No. 1 & / not being wife and son respectively of the deceased, mutation No. 256 dated 24-10-1975 which was got sanctioned through collusion and fraud, was void and ineffective against his rights. The suit was resisted by raising preliminary objections and denying averments made in the plaint. The respondents asserted that they being wife and son of Jagga deceased, the mutation of inheritance was validly sanctioned in their favour. 2. On the pleadings the trial Court framed 9 issues. The petitioner/ plaintiff examined PVV 1 Lai, PW 2 Muhammad Boota s/o Peru, PW 3 Bashir Ahmad and himself appeared as PW 4. He tendered in evidence document Ex. P 1, copy of Nikahnama dated 14-71963 of Mst. Ghulam Fatima respondent No. 1 with Muhammad Boota s/o Imam Bakhsh CW 1, Ex. PW. 2, copy of Record of Rights of years 1972-73, Ex. P 3 copy of mutation No. 256, Ex. P 4, copy of entry from birth register showing that Faqir Hussain respondent No. 2 was born on 2-1-1975. In rebuttal, respon­ dents/defendants produced DW 1 Abdul Aziz DW 2 Rashid Ahmad, DW 3 Muhammad Ramzan DW 4 Wali Muhammad and DW 5 Nawab Din Mst. Ghulam Fatima respondent No. 1 entered in witness box as DW 6. She was examined twice, The respondent tendered in evidence documents Ex. D 1 and D 2, copies of statement of respondent No. 1 and petitioner/plaintiff before the Assistant Collector, Ex. D 3, copy of entry from death register indicating that Muhammad Ramzan alias Jagga, the predecessor-in-interest had died on 21-10-1974, Ex. D 4 copy of certificate issued by the Adminis­ trator Union Council that the name of Mst. Ghulam Fatima wife of Muhammad Ramzan is mentioned at serial No. 28 of the Voters List. 3. The trial Court decreed the suit on 26-10-1981. Feeling aggrieved, the respondents/defendants filed appeal which was entrusted to the learned Additional District Judge who vide judgment and decree dated 23-11-1982 while accepting the appeal, dismissed the suit of the petitioner/plaintiff, hence this revision. 4. Before me, the findings of the learned Additional District Judge on issues No. 7 & 8 have been challenged. The issues are as under :— Issues : (7) Whether the plaintiff is owner in possession of the suit property as heir of Jagga deceased ? OPP (8) Whether mutation No. 256 dated 24-19-1975 is illegal, void and based on fraud, if so, its effect ? OPP Mr. Asif Saeed Khan Khosa, the learned counsel for the petitioner who has argued the case admirably, has raised following contentions : CO That petitioner Mo. 1 is the first cousin of Jagga deceased, and there being no legal and eliable proof of Mst. Ghulam Fatima's marriage with Jagga deceased on the record, there was no legal justification at all to reverse the findings of the trial Court on issues No. 7 & 8. (ii) Assuming that the marriage of Mst. Ghularn Fatima with Jagga deceased is proved then her marriage with her first husband namely Boota s/o Imam Bakhsh CW 1, having not been terminated due to non-g-iving of notice by first husband to Mst. Ohulam Fatima respondent No. 1 as required by Section 7 (1) and (3) of the Muslim Family Laws Ordinance, (hereinafter to be referred as, the Ordinance) she could not validly marry with Jagga and consequently Faqir Hussam respondent is not a legitimate child. To support this contention, the learned counsel has relied on cases 'Ghulam Shabbir Shah v. The State" reported as 1983 SCMR 942, ' Noor Khan v. Haq Nawaz and others 1983 PSC 194; Dr. Masood Khan v. Chair­man, Arbitration Council, Wah and 2 others' PLJ 1981 Lahore 638 'Shera and another v. The State 1 PLD 1982 FSC 229, 'Abdul Mannan v. Safuran Nessa" 1970 SCMR 845, 'Syed Alt Nawaz Gardezi v. Lt. Col. Muhammad Yousaf PLD 1963 SC 51, 'Inamul Islam v. Mst. Hussain Bano and 4 others" PLD 1976 Lah. 1466, 'Muhammad Siddiq v. Mst. Mehrnnissa and 6 others' 1968 P Cr. LJ HOI, 'The State v. Mst. Tauqir Fatima and another' PLD 1964 (W.P.) Karachi 336, 'Mubarik All v. Tahir Jan and others' AIR. 1929 Lah. 372 'Mst. Ghulam Fatima v. Abdul Qayyum and others' PLJ 1981 SC 812 and 'Liaqat Afi and others v. Karim-un-Nista ond others' 1LR 15 All. 397. On the other hand, the learned counsel for the respondents has supported the judgment of the learned Appellate Court and relied on ' Muhammad Rafiq v. Ahmad Yar and another reported as PLJ 1982 Lahore 493 and 'Aman Vllah Khan v. ladat Shaft reported as NLR 1981 Criminal 164, to contend that failure to give notice under section 7 (1) of the Ordinance does not render ineffective a 'Talaq' pronounced by husband and omission to give notice is only an offence punishable under the Ordinance. 5. I have considered the arguments advanced by the learned counsel for the parties in the light of law enunciated by the superior Courts. In the peculiar circumstances of the case, 1 have not been able to persuade myself to agree with the learned counsel for th; petitioner. The question whether the petitioner is the sole heir of the deceased and whether respondents No. 1 & 2 are the wife and son respectively of Jagga deceased are the questions of fact. The learned Appellate Court has applied its conscious mind to the rele­ vant evidence and circumstances and has given cogent reasons to reverse the findings of the trial Court on issues No. 7 & 8 Since in our country there is no conception of adultery and illsgitimacy and a woman living in adultery and an illegitimate child are looked upon with great disapproval and resentment and the findings given, by the Courts have important bearing on the feelings of the people, therefore I am of the view that in cases relating to the validity of marriage and legitimacy of a child, the evidence should be appreciated, assessed and weighed very carefully. A heavy onus would lie on the party pleading invalidity of the marriage and illegitimacy jf a child to prove the same through un-ambiguous and convincing ividence. In this case in the larger interest of justice, I have re-appraised the evidence. I have been impressed by the statement of Abdul Aziz DW 1, Muhammad Ramzan DW 3, Wali Muhammad DW 4 and Nawab Din DW 5. They have stood the test of cross-examination and have given evidence in straight-forward manner. Wali Muhammad and Nawab Din are closely related to the petitioner/plaintiff. These witnesses have no ill-will against him, Abdul Aziz DW 1 and Muhammad Ramzan DW 3 have stated that the Nikah of Mst. Ghulam Fatima respondent No, 1 with Muhammad Ramzan alias Jagga was performed in their presence and that respondent No. 2 was born out of this wediock. The witnesses have been seeing Mst. Ghulam Fatima living as wife with the deceased till his death. My assessment is that the defendant's evidence is confidence-inspiring. On the other hand, there was criminal litigation between Mst Ghulam Fatima respondent No. 1 and DWs 1 & 2 namely Lai and Boota. They have given a negative type of evidence. If is worth notice that the truth had slipped out of the month of Chuhar PW 4, the petitioner, when be stated : It is remarkable that Ramzan is also known as Jagga. The learned counsel has also failed to point out any material mis-reading/non-reading affecting the decision of the Appellate Court. To my mind, the learned Appellate Court his rightly relied the defendant's evidence and has correctly dis­carded the plaintiff's evidence. I am fully convinced that Mst. Ghulam Fatima respondent No 1 was married with Jagga and Faqir Hussain respondent No. 2 was born out of this wed-lock. 6. Coming to this contention at No. ii, I may point out that the same is centred round one smali but most important point i e. the effect of non-giving of notice of Talaq to the Chairman of Union Council concerned viz-a-viz, the validity of divorce by first husband to Mst. Ghulam Fatima respondent No. 1 and the legitimacy of respondent No. 2. I am of the view that each case has to be decided on its own facts. In the case in hand, the facts that Muhammad Ramzan deceased was also known as Jagga ; that Chuhar petitioner 1 plaintiff is cousin of Jagga deceased; that Ms:. Ghulam Fatima was married with Boota s/o Imam Bakhsh CW l ; that the sister of CW 1 was married to the brother of A/,?;. Ghulam Fatima respondent No 1 in 'Watta' ; that Muhammad Boota pronounced Talaq to respondent No. 1 and the brother of respondent No 1 gave Talaq to the sister of the first husband namely Boota CW 1 ; that CW 1 did not give notice of Talaq to the Chairman Union Council as required by section 7 of the Ordinance and consequently no arbitration council could be constitu­ ted ; that Mst . Ghulam Fatima contracted second .marriage with Ramzan alias Jagga much after the expiry of 'Iddat' and that Boota CW 1 never revoked Talaq expressly or otherwise, are the admitted, undisputed anr proved facts of the case. Now I proceed to examine whether the instant case falls within the purview of section 7 (I) & (3) of the Ordinance or not. Fdr that I would like to reproduce the statement of CW 1 with advantage : 7. The plain reading of the statement indicates that it was a 'watta marriage'. Boota CW 1, the first husband gave Talaq to respondent No. 1 and the sister of the first'husband was also released from the wedlock of the brother of Mst. Ghulam Fatima. The first husband has exphcitely stated ; In cross-examination he stated It was, therefore, a case of considered and determined Ta/ac//seperation by mutual consent. It is well settled that if the husband abstain from giving a notice to Chairman Union Council, he could perhaps be deemed to have revoked the pconouncement. No doubt, the omission to give notices in some cases may give rise to irresistible presumption that Talaq has been revoked imprledly but the presumption is always rebutable which stands sufficiently rebutted by the subsequent conduct of the first husband and his statement reproduced above. The observation made by his lordship Mr. Justice Muhammad Haleem-J in paras No 10 and 13 of the case 'Mst, Ghulam Fatima v. Abdul Qay yum and others, reported ai PLJ 1981 SC 812 are instructive and may be usefully reproduced : Para No. 10. — "On the facts of the present case, there was no evidence of mutual consent of the parties as would appear from the above discussion. In fact the husband had disputed the right of the wife to obtain divorce on the basis of Talaq pronounced by him and it was nobody's case that she had Sled the suit to obtain seperation by Khula. As Muhammad Sadiq had died, the question of exercising her right to obtain seperation by Khula did not arise. Therefore, the respondents could have succeeded only on the ground of mutual consents of the spouses which they have failed to establish. The High Court, without examining th« evidence as a whole, has erroneously hdd that it w^s a

; r-r of divorce by Mubarat." Para No. 13.— "In the result and for the reasons given above, I hold tbar the Talaq had npt become effective but stood revoked as no notice under sub-section (1) of section 7 was given t>v Muhammad Sadiq. The appeal is allowed with cost?, ths order of the High Court is set set aside and the order of tiitrial Court, dismissing the suit, is restored." It m^y be noted that the Honourable learned Judge has not declared Ta'aq ineffective for want of notice but in his wisdom has stated thai Talaq Kid not become effective but stood revoked. The words "stood revoked" arc of great significance. The case in hand is, however, a case of determined la/asseveration by mutual consent where the question of revocation doe not arise. Although the Talaq was pronounced 15 to 18 years back, yet the first husband never revoked it expressly or qtherwise. In the:, circumstances, 1 am convinced 'that the main object oC section 7 of fie Ordinance to prevent hasty dissolution of marriage by Talaq pronounce,; by the husband unilaterally, has not bsen defeated by non-giving of the notice. Section 7 of the Ordinance is obviously for the benefit of female and if section 7 (1) of the Ordinance is interpreted in a manner as desired by the learned counsel, it may create many mischiefs and ruin lives of the respondents. To my mind, in the case in bund, the nou-giving of notice under section 7 (1) of the Ordinance does not render Talaq ineffectiv:; The decisions relied on by the learned counsel are quite distinguishable, inasmuch as, in those cases either Talaq was revoked expres^ty/imJIie. ' otherwise or the fact urn of Talaq was denied ; disp 1 Jtea whereas ths situa'r '. herein is altogether different, inasmuch as. the Titlaq am-; ff^f witn t'ui! determination and mutual consent and tha sarns vansv.i! f;.vok;d excressiy/impliedly or otherwise by first husband. For all these reasons I bold that Mst. Ghulam Fatima after having been validly divorced, contracted marriage with Jagga deceased and respon dent No. 2 having been born out of this wedlock is legitimate son of the deceased and in the presence of these heirs, the petitioner cannot clainran. share from the inheritance of the deceased. The mutation was, therefor-. not void and illegal. 8. For what has been stated above, th;re being no merit in revision, the same is dismissed, leaving the parties to bear their ovvr, costs.

PLJ 1987 Lahore 33 PLJ 1987 Lahore 33 Present : gul zarsn kiani, J QADIR BAKHSH—Petitioner Versus DISTRICT JUDGE, SARGODHA and 3 Others—ResponJsnfs Writ Petition No. 3781 of 1984, heard on 21-10-1936 (i) Cifil Procedure Code, 1908 (V of 1908)—

-S. 115—Discretion—Exercise of—Revision—Interfetsnce in—Held : Exercise of discretion unless arbitrary or perverse, no -interference ordinarily to be made-with it in revisional jurisdiction, [P. 4I]K (ii) Civil Procedure Code, 1908 (V of 1908)—

O. VII, R. 11 (b)—Plaint—Rejection of—Court fee—Determination regarding— Composite order—Effect of—Amount of court-fee exigible on plaint not determined with exactitude—Court leaving matter of calculation of court-fee to pre-emptor—Held : Course adopted by court to be obviously incorrect—Held further : Court being not competent to pass composite order, non-compliance of such order not to entail penalty of rejection of plaint. [P. 38]A (iii) Civil rrocedurc Code, 1908 (V of 1908)—

1. VII, R. ll(b)~Plaint—Rejection of—Court-fee -Payment of— Order regarding - Held : Court to be obliged to determine amount of court-fee payable on plaint, and to direct plaintiff to make good deficit within given time failing which plaint to be (competently) re­ jected by it (provided no ground for further extension of time be found by court), [P. 3»]B (i?) Civil Procedure Code, 1908 (V of 1908)— •

O. VII, R, 11 (b)—Court-fee—Deficiency in payment of—Court— Composite order by—Effect of—Court directing plaintiff to pay court-fee in accordance with schedule of net profits—Held : Com­ posite otder of nature passed by trial court not to provide proper • legal basis for invoking O, VII, R. 1,, CPC to reject plaint—Held further : Proper procedure in case to be to call on plaintiff to cor­ rect valuation within given time and to pay court-fee in accordance therein and in default to apply O VII, R. 11 to case-Court finding court-fee paid still, deficient—Held : Direction for payment of additional court-fee to be competently made by court after its proper determination. [Pp. 38& 39jD AIR 1957 All. 337 ref. (v) Civil Procedure Code, 1908 (V of 1908)—

O. VII, R. 11 (b)—Plaint—Rjection of—Court-fee—Payment of—­ Composite order—Non-compliance of—Effect of -Rejection of plaint made by court on basis of composite order—Held : Court acted totally against settled law in applying O. VII, R. 11 CPC against plaintiff. [P. 39; E (vi) Civil Procedure Code, 1908 (V of 1908)— —O, XXXII, R. 1 read with Punjab Pre-emptien Act, 1913 (I of 1913) —Ss. 4 & 22 (4)—Minor— Pre-emption suit by—Zar-e-panjum — Deposit of in—Delayin condonation of—Court—Power—Exercise of — Held : Courts to be prone to be less rigid in enforcing rigours of law and to be somewhat liberal in exercising powers to condone delay (in such case; [P. 40]H AIR 1955 Mysore 133 ref. (vii) Punjab Pre-emption Act, 1V13 (I of 191^)— ——S, 22 (4)— Zar-e-panjum— deposit of—Time for—Extension of— Held : Extension of time to make deposit or to furnish security being in discretion of Court, time to be competently extended by Court on oral or written application on proper case being made out or even suo motu where justice so demands. [P. 40]F (viii) Punjab Pre-emption Act, 1913 (I of 1913)—

S. 22 (4)— Zar-e panjum— Deposit of—Ti-me for—Extension of — Sufficient cause for—Held: Time for making deposit to be extended only for sufficient cause — Sufficient cause, held further, being not susceptible of exact definition, capable of being applied to ail sets of circumstances, each case to depend on its own facts and circumstances. [P. 40]G AIR 192? Lah. 776 (2) ref. (ii) Punjab Pre-emption Act, 1913 (I of 1913)-

S. 22 (4) read with Civil Procedure Code, 1908 (V of 1908)— S. 115 and Constitution of Pakistan, 1973 — Art i99 Za'-e-panjam —Deposit of—Time for—Extension of—Discretion—Exercise of— Interference with —Discretion exercised by trial Court in extending time for deposit of zar-e-panjam for couple of days (found to be) not fanciful, arbitrary or capricious—Held : Such order not to be revised by District Judge so as to order rejection of plaint in revision leaving plaintiff without any remedy of appeal etc. —Held further : District Judge having proceeded on wholly untenable grounds in ordering rejection of plaint for oon payment of courtfee in time as also in finding fault with extension of time for deposit of 'zar-e-panjum such view not to be endorsed by High Court. [P. 41]L (x) Affidavit—

Failure to file counter affidavit—Effect of—Averment as to serious illness supported by affidavit (of next friend of minor^—Held : There being no rebuttal, that stated in application and supported by affidavit to be taken as correct statement of facts. [P.41JJ (xi) Precedents—

Superior courts—Judgments of—Binding nature of—Court failing to act in accordance with decisions of superior courts—Held : Judgment of glower) court to be certainly illegal and without lawful authority. [P. 38]C Malik Allah Yar Khan, Advocate for Petitioner. Ch. A Waheed Saleem, Advocate for Respondents 2, 3 & 4. Date of hearing ; 21-10-1986. judgment Writ Petitions No. 3781/84 and 5713/84, which raise common issues of facts and law and arise out of a suit for pre-emption, are proposed to be disposed of by a single order. Facts are :— Through a deed of sale registered on 11-12-1982 one Fazal Hussam sold 174 kanals 10 marias of land situate at Mauza Dhrema, District Sargodha, to Ahmad Khan son of Muzaffar 1/2, Ghulam Raza, Ghulam Jafar sons of Muhammad Khan remaining 1/2, for Rs, 6,ou,000. Qadir Bakhsh as owner of the estate pre-empted the sale sir..j brought a suit on 10-12-1983, in the Court of Civil Judge, Sargodha. v the pre-eraptor was minor, he sued through Maula Bakhsh, his father, •'•';• - acted a :j his next friend in the Civil Suit. From the order recorded on the order sheet an 11-12-1983, it appears that the Court ordered that the m:>; K e registered, summonses be issued to the defendants for l2 2-1984, .ivectec! the preamptor to deposit Rs. i, 20,00j.00 as 1'5th of the probable •,i;!i pri'je (Zar-t-Punjum) till ll-2-19b4 and also observed that the statement ' ! anniu-J net profits be obtained and deficit court-fee be made-up before :i next date of hearing viz. 12-2-1984. On 121-2-1984, the Presiding Officer "<•<--• on ieavs and the case file was placed before Senior Civil Judge, 8a-godi-,a, who noted that Zar-e-Panjum had not been deposited and that in application seeking extension of time was put in and postponed the suit for firther proceedings to 13-2-1984. On 13-2-184, copy of the application slicing extension of tinae was given to the opponents and :hc suit was adjourned to lb-2-1984 for receiving reply and hearing arguments On this date, the Court accepted the application and extended the time for deposit of Zar e-Panjum till 16-2-1984 and postponed the suit to the aforesaid date for compliance. On extension, learned Civil Judge observed :— "•The pet,tloner is admittedly a minor and has sued through his father, who is conducting the proceedings on his behalf. It is made on the basis of affidavit that his fattier became ill, hence he c--uld not get the price of sugaicane so he could not deposit the 7.at ••€ Panjam before 12-2-1984. He immediately moved the Court lor -..xtension of time. The copy of the application was given to the iespondents, who filed their written reply and they also have bean heard through their counsel. The extension of time for depositing Zar-e-Panjum is the discretion pf the Court and no doubt it is to be exercised judiciously. In^the instant case the petitioner being minor and due to illness of his father could not deposit the Zar-e-Panjum within due date. 1 found it a fit case for extension of time for depositing the Zar-e-Panjum, The application is, therefore, accepted subject to payment of Rs. 100.00 as costs and the petitioner is directed to deposit the Zar-e-Panjum in- tomorrow." u ii not in dispute that Zar-e-Panjum viz. Rs. 1,20,000 was put in deposit vit;,in the extended time by the petitioner. Treasury challan is on the file uie trial Court. On 18-2-1984, Ahmad Khan defendant, through his counsel, put in an application under Order VII, Rule 11 CPC and prayed'that as the requisite •vaiount of court-fee had not been paid as ordered by the Court, the plaint in the pre-emption suit be rejected. The Court entertained the application, itceived reply from the pre-emptor, and vide order dated 5-3-1984 did /;.n accept the plea of the defendant and rejected his application. The Court observed ,—• "Arguments heard. The contention of the defendant that the plaintiff has paid the court-fee of Rs. 1"5,000.00 on 18-2-1984 instead of 12-2-1984, as such his plaint should be rejected is not sustainable as full amount of court-fee was paid by the plaintiff on 18-2-1984 i.e. only six days after the date fixed by the Court, because of non availability of the Naqsha Jhar Pedawar. There seems no mala fide or contumacy oa the part of the plaintiff. The application filed by the defendant is, therefore, rejected. The delay of 6 days for late 'filing of the court-fee by the plaintiff is con­ doned." and adjourned the suit to 27-3-1984 for filing written statement by the defendants. It may be noticed that in opposition to the application for rejection of plaint, plaintiff had averred that after obtaining statement of net profits, Rs. 15,000.00, the amount of court-fee payable on the plaint, was deposited in the treasury on 15-2-1984 (Challan shows 16-2-1984) and court-fee stamps were provided to him on 18-2-1984, and were, accordingly, filed in Court on the same day. Vendees took exception- to the afore-noted two orders of the trial Court, canvassed their correctness in two separate Civil Revisions No. 26 and 27 of 19«4, and succeeded to have the plaint rejected under the orders of learned District Judge passed on 23-5-i984. Aggrieved of the orders passed in revisional jurisdiction, rejecting the plaint by learned District Judge, petitioner, who was plaintiff before the trial Court, has preferred two applications in constitutional jurisdiction. Counsel have been heard and with their assistance record has been examined, It was contended for the petitioner that in the absence of a proper determination of the court-fee payable and a direction from the Court to make good the deficit court-fee within a given time plaint could not have been rejected under Order VII Rule 11, clauses (b).(c) Civil Procedure Code. In the instant case, counsel argued the order made was that the statement O f net profits be obtained and the deficit court-fee paid in accordance therewith. On the basis of such a composite order, learned counsel urged, penalty for rejection of the plaint was not earned by the petitioner. Referred to Limbaji v. Ahmed Bin Sayed and another (AIR 195t> Hyderabad 49), Malik Jan Muhammad v. Shukar-ud-Din and 6 otherrs (PLJ 1980 Lahore 694), Ms!. Parveen v. Ms/. Jamsheda Begum and another PLJ 1983 SC 150), Shahna Khan v. Aulia Khan and others (PLJ i984 SC 94), Siddiq Khan and 2 others v. Abdul Shakoor Khan and another (PLJ 1984 SC 262), IIam Din and another v. Abdul Majid and 2 others (1986 SCMR 1439). Relying on the aforenoticed decisions, counsel contended, that the order of learned District Judge holding that non-payment of courtfee in time entitled rejection of the plaint was wholly illegal. As for Zar-e-Panjum and extension of time, Malik Allah Yar Khan argued that the matter rested in the discretion of trial Court and that having been properly exercised was not revisable by District Court under Section 115(2) of the Civil Procedure Code. Ch. A. Waheed Saleem, learned counsel for the respondents, spoke in defence of the impugned orders and argued that the pre-emptor failed to pay the court-fee in accordance with the direction of the trial Court and in the absence of a proper explanation for the late deposit the court-fee, learned District Judge was right in ordering rejection of the plaint. As for the extension of time for deposit of Zar-e-Panjum, learned counsel urged that though the grant of time was in the discretion of the Court yet the discretion was neither naked nor arbitrary and the Court while consider­ ing the issue is obliged to apply its miad to the ground advanced and then find whether it constituted a sufficient cause within the contemplation of Section 22 (4) of Punjab Pre-emption Act !913. Also urged that extension is not to be granted in the routine and mechanically. It was also argued that the minority of the pre-emptor in itself was hardly a good ground to give him extension of time. To support the contentions, learned counsel referred to number of decisions both on issues of court-fee and the extension of time. Twot points arise for consideration, first is as to the non-payment of court-fee in time and the second is whether extension of time in the circum­ stances alleged could be granted to the pre-emptor and the discretion exercised was revisable. I propose to take up the issue ot court-fee first. Admittedly, while issuing a direction to obtain statement of annual net profits and paying the deficient court-fee in accordance therewith, th'e Court had not determined with exactitude the amount of court-fee exigible on the plaint. The matter for calculation of court-fee was left to the pre-emptor A The course adopted was obviously incorrect as found by this Court in Malik Jan Muhammad's case (PLJ 19SO Lah, 694), a division bench authority, which is clearly binding on me. Such a composite order, in my opinion, could not have been passed, non-compliance whereof could entail the penalty of rejection of plaint. It is an established principle of law admitting )f no doubt now that before a plaint is rejected en this score Court is oblig­ es ed to determine the amount of court-fee payable on the plaint, direct the jlaintiff to make good the deficit within a given time, failing which if the 3ourt finds no grounds for further extension of time, then only the plaint could be rejected View taken by me receives ample strength from the deci­ sions of Supreme Court relied upon by the counsel for the petitioner Impu­ gned order has not take notice of the latest pronouncements of the-Supreme Court on the question of court-fee and when a Court fails xo act in accor- 'dance with the decision of the superior Courts its judgment is certainly c .illegal and without lawful authority, it is not disputed that the sum of IRs. 15,000.00, the amount of court-fee payable in accordance with the 'schedule of profits, was deposited in the Government Treasury on Jo-2-1984. Stamps from the treasury were provided to the petitioner on 18-2-1984 and the same day these were filed before the trial Court. Plaint has been rejected under Order VII Rule 11 CPC for late payment of court-fee in disregard of the order of the trial Court, In para. 8 of the plaint, valuation for purposes of court-fee and jurisdiction both were postponed to a date after the statement .of annual net profits was available, Plaintiff had affixed only two rupees court-fee stamps on the plaint. However, after the schedule of net profits was obtained by the plaintiff, he filed an amended plaint on court-fee stamps of Rs. 15,000 00. Under Order VII Rule 1 CPC, th! plaintiff has to state the valuation for purpose of court-fee nd jurisdiction. ^here statement as to the valuation, which is an important part of the plaint, has been omitted or the proposed valuation not given in the plaint, ii may be permitted to be inserted in the plaint by way of its amendment. In such circumstances, the Court was obliged, first to have the valuation corrected ia the plaint and call on the plaintiff to pay additional court-fee on the corrected valuation. Requiring the plaintiff to pay court-fee in accordance with the schedule of net profits are two distinct orders entailing 'different legal consequences arising out of their not [being complied with. Proper procedure is the case was, therefore, to call on nhe plaintiff to correct the valuation within a given time, pay court-fee in D iaeeordaaee therewith and in default apply Order VI! Rule 11 CPC to the lease. If the Court found that the court-fee paid was still deficient, •direction for payment of additional court-fee could have been made after its proper determination. Composite order of the nature passed by th trial Judge could not provide a proper legal basis for invoking Order VII Rule 11 CPC to reject the plaint. id somewhat similar circumstenees," Allahabad High Court in Abdul Ghani v. Vishunath (AIR 1957 Allahabad 337) remarked that a composite order requiring the valuation of the subject matter in the plaint to be corrected and additional court-fee to be paid on the corrected valuation could not be made. Learned Judges on this aspect had thus to say : — "The learned Munsif ought not to have passed a composite order requring the valuation of the subject matter in the plaint to be corrected and additional court-fee to be paid on the corrected valuation. Requiring a plaintiff to increase the valuation and requiring him to pay additional court-fee are two distinct orders .with different consequences arising out of their being not complied with and roust be kept separate and should never be passed simultaneously. An order requiring additional court-fee to be paid can be passed only if the valuation is increased in compliance with the other order ; on the valuation originally stated on the plaint, the court-fee is (presumably) sufficient If the valuation is not increased as directed by the Court the plaint must be rejected ; vide Order VII R. 11 (b) CPC, and the Court has no occasion to pass the other ordsr. It is only when the valuation is increased in compliance wish the order that the question of paying additional court-fee can arise ; the proper procedure in such a case is to call for a report from the office about additional courtfee payable, if any, on the increased valuation, and to pass an order requiring the plaintiff to pay additional court-fee specifying its amount A vague order like "the plaintiff shall pay additional court-fee within ...days" is not a good order, the plaintiff has right to be informed of the exact amount of the additional court-fee to be paid by him. The words used in Order VII Rule 11 (c) are, "to supply the requisite stamp paper". If the additional court-fee is not paid within time allowed, the plaint must be rejected under this rule. The opening words of the rule ate highly significant ; "where the relief claimed is properly valued but the plaint is written upon a paper insufficiently stamped" means that the plaintiff can be ordered to pay the additional court-fee only after he has increased the valuation." Therefore, learned District Judge was clearly erroneoui in proceeding order rejection of plaint on the basis of a composite order referred to ..,. the earlier paragraph of the judgment, and I have no hesitation to say "-~-' 8 learned District Judge acted totally against settled law in applying VII Rule 11 CPC against the plaintiff. However, this does not end the matter and there is yet another issue as to the extension of time, which needs consideration. Suit was instituted on 10-12-1983. On 11-12-1983, the Court directed the plaintiff to deposit Zar-e-Panjum (Rs. ! ,20,000-00) till 11-2-1984. Admittedly, the amount was not deposited within the time fixed by the Court. Instead, an application for extension of time was made on 12-2-1984. In it, it was averred that the fatrjcr of the pre-emptor, who was also his next friend, fel! seriously iil and the amount for deposit could not be arranged. Defendants objected to the extension and prayed that in the non-deposit of Zar-e-Panjum in time, plaintiff had earned the penalty of rejection of plaint under Section 22(4) of the Punjab Pre­ emption Act 1973, Learned Judge of the trial Court accepted the plea of the pre-emptor and extended the time till 16-2-1984 and the necessary amount, as stated above, was deposited within time. It is seen from the trial Court's record that application for extension of time was also supported by affidavit of Maula Bakhsh, father and next friend of the minor plaintiff. On record, there appears to be no counter affidavit from the opponents to controvert what was said in the affidavit of Maula Bakhsh. Mr. Saleem argued that inability to arrange for funds or illness of the next friend do not constitue sufficient cause for extension of time. Section 22 of the Punjab Pre-emption Act in so far as it is relevant provides :— "......the Court shall at, or ai any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for th: payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order." Sub-section (4) provides that if the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security, his plaint shall be rejected. Unjisputcdly, the extension of time is in the discretion of the Court and on a proper case made out the Court is competent to extend time either on application oral or written or even suo molu, where the justice so demands. Jurisdiction to extend time, therefore, exists, but it is only for a sufficient cause that a time .for making the deposit can be extended. What is the sufficient cause is not susceptible of exact definition capable of being applied to all sets of circumstances. Each ease, therefore, depends on its own facts and circumstances. In Gian Chand v. Hem Raj and another (AIR 1927 Lahore 776 (2)] Addison, J relying on two earlier decisions of this Court, took the view that the minority in itself was no reason for allowing extension of time. Speaking with respects, this is the correct statement of law. But the decision proceeds on distinguish­ able facts also. However, while dealing with minors, who are placed under disability in the matters of suing and being sued except with the assistance of the next friends or the guardians-ad-/;r<?m, as the case may be, the Courts are prone to be less rigid in enforcing rigours of law and somewhat liberal in exercising powers to condone the delay. In Devaralinga [Gowda and another v. Puttaswamy Gowda and oihers (AIR 1955 Mysore 133) Venkataramaiya C. J. on Section 5 of the Limitation Act had thus to say "It is, however, necessary to bear in mind that when the delay affects the minors the penalty imposed is vicarious as the person in default is not the sufferer but the consequences of default is jnflicted on the minors. For this reason Courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone delay when interests of minors are involved. This does not mean that such cases are exempt from the operation of law of limitation but does indicate the need to make a difference in considering delay which affects minors and adults." In the aforenoted observations, the Court was considering whether minority was a sufficient cause for the condonation of delay under Section 5 of the Limitation Act yet these observations help the decision for extension of time for deposit of Z ar-e-Panjum also and 1 have no hestitation to rely on these observations to hold that the trial Judge had properly exercised his discretion in allowing the extension. Plaintiff was a minor and sued through his next friend. Averment as to serious illness was supported by the affidavit of his next friend. There is no rebuttal, and necessary consequence is that what was stated in the application supported, as it was. by an affidavit, was rightly taken as correct statement of facts, and '.his. in rny opinion, did constitute sufficient cause. The next question, which arises is whether the discretion exercised by the trial Judge was revisable. In Malik Hidayalullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69) their Lordships of the Supreme Court observed :— "In the circumstances, we are cieariy of the view that the High Court grievously erred in holding that the Civil Judge had no juris­ diction at all to grant the extension of time. At worst, all that could be said was that perhaps the Civil judge had not exercised bis discretion in a proper manner in granting the extension but then the matter would not have been revisable by the High Court under section 115 of the Civil Procedure Code. Before the High Court could interfere under this latter section, it had to be satisfied that the Court below had acted illegally or with material irregularity in the exercise of its jurisdiction or exercised a jurisdiction not vested in it by law or failed to exercise a jurisdic­tion so vested. Obviously, the learned Judge in the High Court was conscious ot this difficulty and hence it appears to us, unnecessarily went out of his way to hold that in the present case the Civil Judge had no jurisdiction.to extend the time, notwithstanding the provisions of subsection (4) of section 22 of the Punjab Pre-emption Act." Exercise of discretion unless arbitrary or perverse is not ordinarily interfered in revisionary jurisdiction. In my view, when the facts of the case are examined in their correct and true perspective, it can be safely held that the discretion exercised b\ the trial Court in extending the time for a couple of days was neither fanciful, arbitrary or capricious, and therefore, could not have been revised so as to order rejection of the plaint in rsvision leaving the plaintiff without the remedy of appeal etc Learned District Judge, to speak with respects to him, had proceeded on wholly untenable grounds in ordering rejection of the plaint for non­payment of court-fee in time as also finding fault with the extension of time for deposit of 7-ar-e-Panjum. 1 confess. I am unable to endorse) his view. For the foregoing reasons I would accept, the petitions, set aside the impugned orders and declare them to have been passed without lawful authority. Obvious consequence of the declaration is that the pre-emption suit shall proceed to its trial on its merits in accordance with law. Costs to be borne as incurred. Records summoned from the Courts below be returned to them. (TQM) Petitions accepted.

PLJ 1987 Lahore 42 [DB] PLJ 1987 Lahore 42 [DB] Present : muhammad afzal lone & zia mahmood mjsza, JJ Mian GHULAM DASTGIR BAR1—Petitioner versus Rai SALAHUDDIN and 3 other—Respondents Writ Petition No. 4485/86, dismissed on 13-10-1986 (i) Constitution of Pakistan, 1973—

Arts, 199 & 225 read with Representation of the People Act. 1976 (LXXXV of 1976)—S. 67—Election Tribunal—Interlocutory order of —Challenge to—Writ petition—Competency of—Interlocutory order of Election Tribunal not made appealable by law—Held : Mere fact of such order being not appealable to be no ground to render it amenable to writ jurisdiction—Held further : Interference with interlocutory order through judicial review to be circumvention of provisions of law and to amount to defeating purpose of law. [P. 47]E PLJ 1986 SC (AJK) 99 & PLD 1986 Quetta 280 distinguished. (ii) Constitution of Pakistan, 1973—

Art, 225—Election dispute—Determination of—Art. 225 comple­ tely prohibiting calling in question of election except through determination of Election Tribunal—Held : No ground of attack in election to be urged at intermediate stage before any court but should be raised and adjudicated upon in manner prescribed by Art. 225. [P. 46]B (iii) Constitution of Pakistan, 1973—

Arts. 225 & 199—Election—Validity of—Challenge to

Writ jurisdiction—Exercise of—Held : Prohibition envisaged by Art. 225 of Constitution being absolute, election not to be called in question except in manner prescribed thereby—Jurisdiction conferred on High Court under Art. 199, on other hand, being subject to other provi­ sions of Constitution, such jurisdiction not to be exercised in deroga­ tion of Art. 225. [P. 47]D (iv) Representation of the People Act, 1976 (LXXXV of 1976)—

S. 67 (3)—Election Tribunal-Decision of—Appeal against—Held : Right of appeal having been provided under S. 67 (3) of Repre­ sentation of People Act, proceedings before Election Tribunal to continue uninterrupted and any error in its interlocutory order to be (competently) assailed in appeal against final order. [P. 46]C AIR 1959 SC 422 & AIR 1964 Rajasthan 99 ref. (v) Election dispute—

Right of vote—Enforcement of—HeM : Right of vote or to take part in election being statutory right, same to be competently enforced subject to limitation imposed by statute—Such right, on principle, to be exercisable in manner laid down in statute creating same— Redress of grievance concerning exercise of right, therefore, must be sought from machinery provided by statute and not other­ wise, [P. 45JA PLD 1966 SC 1 ref. Raja Muhammad Anwar & Ch. Muhammad AshrafAzim, Advocates for Petitioner. Date of hearing : 13-10-1986, order Muhammad Afzal Lone, J.— In the last general Ejections Rai Salahud-Did respondent No. 1 was elected as Member National Assembly from seat No. N'A-72, Faisalabad. The petitioner who lost in the Election, filed an Election Petition under section 52 of the Representation of People Act 1976, against the respondents, which is still pending before the Election Tribunal, comprising a Judge of this Court. During the course of its hearing, for adjudication of one of the issues, covering the controversy as to the recount of the votes, the Tribunal by its order dated 18th February, 1986 appointed a Committee of two Officers, headed by the Provincial Election Commissioner, to inspect the votes in question and submit its report. 2. The petitioner also moved an application, Annexure 'C', before the Tribunal for grant of permission to inspect the electoral rolls of issued ballot papers and packets containing the ballot papers account relating to 34 poi!ing Stations, and further electoral rolls and the packets containing counter-foils of 28 polling Stations. He filed another application Annexure 'D', for obtaining certified copies of the ballot papers, account Forms nd the marked lists of the electoral rolls of the 34 polling Stations. The learned Tribunal disposed of these matters, by means of its order dated 4 th June, 1986, under challenge in this writ petition. 3, On consideration of the Committee's report the Tribunal found that 1152 voters had put the prescribed marks in the horizontal compart­ ment immediately below the chamber wherein the name and symbol of the petitioner figured. The Tribunal treated these votes as having been polled in favour of the petitioner and credited the same to him but rejected his claim for other votes, 335, 929 and 341 in number ; vote's marks in respect whereof, existed in second, third and fourth horizontal compartments respectively, below the first compartment. As regards the petitioners's other two prayers the learned Tribunal maintained that. "It is too late in the day now for the petitioner to inspect the election records so as to obtain or secure certified copies of the Ballot Papers Accounts Forms and the marked lists of the electoral rolls of 34 polling stations, so as to file the said certified copies with the present petition, in order to support his case. On behalf of the petitioner it is submitted that no application was made earlier to the Punjab Election Commission for the examination of the electoral records, as the Commission did not permit such inspection, due to a policy letter received from the Chief Election Commission which directed them not to permit such inspection, unless an order was obtained from an Election Tribunal. Be that as it may, the petitioner should have tiled his petition for inspection of the records, before filing of the present ejection petition, and obtained the order of Punjab Election Commission refusing such permission. Against such a refusal, he should have made a representation to the Chief Election Com­ mission or sought a mandamus from the High Court. In fact, it appears that the petitioner did not want to inspect the election records and, therefore, did not take any further steps in that behalf, but that finding himself in some predicament now, be wants to inspect the same and to secure some certified copies, for supporting his case. Even assuming, for a matter of argument. that I were to permit the petitioner to lodge certified copies of the Ballot Papers, Account Forms or the certified copies of the marked lists of the electoral rolls of the 34 polling stations, refer­ red to in the petition, the lists of the dead voters, non-resident voters, fictitious voters, absent voters, bogus voters and double voters, filed by the petitioner, obviously have no reference to persons who cast their votes at the instance of the contesting respondent, or his agents and servants, if they were so, that lists would be with the contesting respondent and not with the petitioner. But even assuming that these are the names of the persons who cast their votes at the instance of the contesting respondent No. i, or his agents and servants, the petitioner would have been the first person to have raised objection in respect of each one of them before the Presiding Officers at the relevant polling stations concerned and before the Returning Officer, during the final count. Since there is no affidavits of any person filed with the election petition showing that the petitioner, through his agents and servants objected to the votes of the persons whose names are given in the annexures, before the Presiding Officers concern­ ed or before the Returning Officer, at the time of final counting 1 would not be able to permit any such certified copies being brought on the record to substantiate a case not adver­ ted to by any of the witnesses in their affidavits filed with the election petition." 3. We have heard the learned counsel at some length. He assailed the Tribunal's refusal to award the said votes to the petitioner and argued that intention of the voters, who cas,t these votes, was, to poll the same for the petitioner but the Election Tribunal illegally deprived him of these votes. On the authority of Chief Election Commissioner, Azad Jammu & Kashmir and another v. Abdul Majid and 2 others [PLJ 1986 ^C (AJK) 99] it was argued that when cbe findings of a special Tribunal are patently wrong or based on inadmissible evidence or gross non-reading or mis-reading of evidence, such an error assumes the character of "error of law" which can be rectified in exercise of writ jurisdiction. As regards the inspection of the record and issue of copies of the document, the learned counsel heavily relied oq section 43 of the Representation of People Act 1976. This section provides that the documents placed in the custody of the Election Commission under Section 44, except the ballot papers, are open to public inspection and further on payment of prescribed fee copies the extract of such documents can also be obtained from the Commission. It has been pointed out that the Commission delegated its powers regarding inspection of record and issue of copies, to the Election Tribunal. The learned counsel agitates that the impugned order is an affront to Section 45 and displays a patent illegality, liable to be corrected through judicial review. In the submission of the learned counsel it is a case of failure to exercise jurisdiction lawfully vesting in the Election Tribunal. Reliance is placed on Abdur Rashid and 2 others v. Member Board of Revenue Baluchistan &3 others (PLD 1986 Quetta 280) for the proposition that despite the availability of remedy in the form of appeal or revision, under special law, to correct errors committed by the Tribunal, the High Court's constitutional jurisdiction can be passed into service if the Tribunal fails to exercise jurisdiction. 4. Since the writ petition is directed against an interlocutory order, we have asked the learned counsel as to how the writ jurisdiction can be extended to such an order, particularly, when it can be challenged in appeal against the final decision of the Tribunal. His contention, is, that the error committed by the Tribunal goes to its jurisdiction ; oo appeal is provided against the impugned order. The petitioner is, thus, left with no remedy except under Article 199 of the Constitution. 5. Part VIII of the Constitution deals with the election and provides three measures to ensure free and a fair election. Firstly, there is appointment of Chief Election Commissioner and the con­ stitution of Election Commission for each general election, charged with the duties of organising and conducting elections honestly, fairly and in accordance with law. The independence of Election Commission has been ensured in the Constitution (Article 216, 219). Secondly there is the enactment of laws for preparation of electoral rolls ; conduct of Elections and Election Petition and other matters necessary for con­ stitution of Majlis-e-Shoora and Provincial Assemblies (Article 222). Thirdly, the appointment of an independent judicial Tribunal for decision of the election dispute (Articles 219 & 225). To facilitate the reference, Article 225 is reproduced below— 225. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora." The Tribunal seized of the petitioner's Election petition has been appointed by the Chief Election Commissioner in contemplation of Art. 225 and in exercise of the powers vesting in him under Article 219(c)of the Constitution and Section 57 of the Representation of People Act, 1976. Section 52 of the Act prohibits questioning of election, except by an election petition, to be adjudicated upon by the Election Tribunal. Under Section 67 (3) of the Act, an appeal from the decision of the Tribunal lies to the Supreme Court. It may be observed that the right of vote or to take part in election is a statutory right and therefore, can be enforced subject to the limitation imposed by the Statute. On principle, such a right is exercisable in the manner, as laid in the Statute which creates the same. A redress of grievance concerning the exercise of such right, therefore, must be sought through the machinery provided by the Statute and not otherwise. Reference here may usefully be made to Jamal Shah v. Election Commission (PLD 1906 SC 1). In that case the question before the Supreme Court was whether the rejection of a ballot-paper by the Member Election Commission, could be subjected to judicial review. A Full Bench of the High Court chose to interlerc with the determination made by the Election Commission but the Supreme Court, reversed the orders of the High Court and restored the decision of the Election Commision. It would be profitable to reproduce here the concluding part of the judgment rendered by the then Chief Justice. ". .................................. I am clear in my view that on a true construc­ tion of the term of Article 171(1) of the Constitution giving them their full effect when regarded against the background of the past history of the law on the subject, under which election disputes have always been treated as being outside the purview of the Courts in the territories included in Pakistan, except for the short period that the Constitution of 1956 was in force, the power of final determination by the Authorities specified under that Article, must be allowed to prevail as against the general power of correction given to the High Court und.T Article 98. I conceive that the provision in section 112 of the Act of 1964, namely, that no Court shall question the legality of any action taken by or under the authority of the Commission is available to the ful'l in relation to legal decisions, regarded as acts of a Member of the Commission exercising the authority of the Commission duly delegated to him under the appellate powers given by section 53 of the Act." 6. Article 171 of 1962 Constitution which fell for consideration before the Supreme Court in Jamal Shah's case, is parameteria with Article 225 of 1973 Constitution. The scheme of Part V11I of the Constitution read with Chapter VIII of the Representation of People Act, 1976, in which sections 52 and 67 ibid, are included, appears to be that whatever the ground of attack on the election, it should not be urged at an intermediate stage before any Court but should be raised and adjudicated upon in the tianner prescribed by Article 225. This article completely prohibits call­ ing in question of election except through the determination of Election Tribunal. The provision of right of appeal under Section 67(3), is a manifestation of the intention of law maker that the proceedings before the Election Tribunal are continued uninterrupted and any error in its nterlocutory orders, may be assailed in appeal against the final order. 7. There arc precedents from Indian Jurisdiction, which support the view. In N. T. Veluswami Thevar v. G. Raja Nainar and others (AIR 1959 SC 422), the Supreme Court of India despite expressing the opinion that the order of Election Tribunal is open to judicial review, declined td uphold the High Court's interference under Article 226 of the Indian Constitution with an interlocutory order of the Election Tribunal, and maintained that :— "As the question has also been raised as to the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted ; but then, it is well settled that where there is another remedy provided, the Court may properly exercised its discretion in declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on prelimi­ nary grounds and correctness of the decision was challenged in applications under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislature for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous — ... It is to remedy this deflect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the H-gh Court under S. 116A, and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders." This dicta was followed in B-ij Sundar Sharma v. Sri Ram Dot and others (AIR 1964 Rajasthan 99) and the High Court of Rajasthan, in exercise of its extraordinary jurisdiction refused to disturb an interlocutory order of the Election Tribunal for recount of the votes, as such an order could be challenged in appeal against the final order. 8. We have also examined the precedents cited by the learned counsel. In the ruling from the Azad Jammu & Kashmir jurisdiction, the rejection of the nomination papers of the petitioner therein, was interfered with by the High Court on the ground that the Chief Election Commis­sioner relied upon inadmissible material. The case was then taken to the Supreme Court. The learned counsel has drawn our attention to the observation of the Supreme Court at page 109 of the report, that even findings of » Tribunal of special jurisdiction can be disturbed if the same are based on inadmissible evidence, gross misreading or non-reading of evidence. As regards the ruling of Baluchistan High Court, in that case, the petitioners were being tried under the Criminal Law (Special Provisions) Ordinance, 1968 and bail was refused to them by the Tribunal. The Court maintained that denial of the bail to the accused, without reverting to the material on the record and on the sole ground that the case has been referred to a Tribunal, under Ordinance of 1968 am mnted to refusal to exercise jurisdiction. It is to be noticed that in none of these two cases, any constitutional impediment, as posed by Article 225 was present. The prohibition envisaged by this Article that the validity of election cannot be called in question except in the manner prescribed thereby, is absolute. The jurisdiction conferred on the High Court under Article 19 ) is subject to other provisions of the Constitution and thus, cannot be exercised in derogation of Article 225. Exercise of such powers against an interlocutory order would amount to defeating the purpose of law. Merely because an interlocutory order is not appealable, is, ground to render it amendable to writ jurisdiction. An interferenc with, the interlocutory order through judicial review would be circumvention of the provisions of law. For all these reasons this writ petition is dismissed in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 48 PLJ 1987 Lahore 48 Present : mahboob ahmed, J NATIONAL BANK OF PAKISTAN , I.I. Chundrigar Road , Karachi —Plaintiff Versus MUHAMMAD ASHRAF SANIK and Another—Defendants C.O.S. No. 129/83, heard on 3-6-1986 (i) Cifil Procedure Code, 1908 (V of 1908)—

O. XXXVII, Rr. 2 & 3—Cheque—Institution of summary suit upon—Defence in—Intention and knowledge of defendants to obtain overdraft/loan from plaintiff Bank to extent of overdrawn cheques clearly established in case—No objection to encashment of cheques in question raised at any point of time—D;fendants even continuing to acknowledge as loan payment made against them as also interest charged thereon by signing number of confirming slips—Held : There being express intention of defendants to obtain loan and that of plaintiff Bank to advance same to them through payments against overdrawn cheques on basis of security already held by Bank for loan sanctioned, defendants to stand precluded and estopped by their conduct also in law to deny their liability. [P. 55]H & J (ii) Cifil Procedure Code, 1908 (V of 1908)— c O. XXXVII, R. 3—Leave to appear and defend suit—Application for—Dismissal of-—Effect of— A ppiication for leave to appear and defend suit dismisied is case—Held : Contents of plaint to be deemed to be admitted. [P. 56]L (Hi) Cifil Procedure Code, 1908 (V of 1908)—

O, XXXVII, R 3—Leave to appear and defend suit—Grant of— Defendant^ not showing any genuine or even plausible defence to suit -Held : Bald allegations of alleged fraud by ex-Manager of plaintiff Bank on defendants without any details and particulars thereof n>'>t to he made basis to grant of leave to appear and defend suit -Held further - Flea of fraud as basis of defence (also) not to he entertained in absence of particulars thereof. [P. 53] A (iv) Civil Procedure Code, 1968 (V of 1908)— .O. XXXVII, R. 3 —Leave to appear and defend—Grant of—No plausible and genuine defence disclosed—Held : Defendants not to be entitled to grant of permission to appear and defend $uit. [P. 5«]K (t) Negotiable Instruments Act, 1881 (XXVI of 1881)- —Ss. 6&5—Cheque—Definition of—Cheques generally drawn to be met out of funds in hands of Bankers—Such condition as to existence fo funds with Hank as fore-requisite for issuance of cheque, however, not to be imposed—Held : Customer drawing cheque for larger amount than what he has to his credit in Bank obviously makes request to Bank to pay amount in spite of insufficiency of funds. [P. 54]C Pagct on Law of Banking (8th Edn.) ref. i. vi) Negotiable Instruments Act, 1881 (XXVI of 1881)-—

Ss. 6 & 10—Cheque—Payment in due course on presentation of— Effect of—Banker after issuing cheque keeping quiet and taking no step to inform Bank in time not to honour cheque — Banker making payment in due course— Field : Such payment being in accordance with apparent tenor of instrument in good faith, liability for drawn cheque to absolutely and squarely fall on drawer. [P. 55]F (?ii) Cheque—

Encashment of — Effect of— Overdraft—Request for—Cheque dr­ awn by customer for amount in excess of balance to his credit—Bank paying amount by treating cheque as request for overdraft — Payment not even objected to by drawer before or soon after encashment of cheque—Drawn amount also acknowledged as loan through subse­ quent confirmation of loan— Held: Drawer in such circumstances to be estopped to take plea and assert that encashment of cheque beyond amount available to his credit not to be held as his liability. [Pp. 54 & 55]E (viii) Fraud—

Particulars of—Held : Fraud when basis of action or defence, its particulars to be invariably furnished, [P. 53]B PLJ 1977 SC 299 : 1968 SCMR 983 ; AIR 193? PC 146 ; AIR 1915 PC 7 & PLJ 1979 Lah. 328 ref. (ix) Loan —

Liability for—Overdraft—Request for —Customer drawing cheque on Bank for amount in excess of balance to his credit in Bank Account—Bank encashing cheque in due course—Held : Transaction of loan to arise in law —Drawer in such case to be deemed to have asked for loan/overdraft while Bank to be deemed to have advanced same to extent of excess- Held further : All considerations of justice, equity and good consience to prevail to preclude drawer from denying his liability in respect of such loan, [P. 54jD (x) Overdraft—

-Interest on—Claim of—Held : Claim of interest on overdraft to find support on ground of universal custom of bankers and also on basis of implied agreement (e.g. in case of customer acquiescing in system under which interest be charged), | P. SsjG Mr. Muhammad Yaqoob Khan, Advocate for Plaintiff. Kh. Han's Ahmad, Advocate for ; Defendants. Date of hearing . 3-6-1986. judgment This suit under the Banking Companies (Recovery of Loans) Ordi­ nance, 1979 for recovery of Rs. 12,28,s95.38 by sale of mortgaged property and hypothecated goods has been instituted by National Bank of Pakistan, the plaintiff, against Muhammad Asbraf Sanik and another, defendants. 2. It has been asserted by the plaintiff that cm the request of ths defendants, the plaintiff initially sanctioned a loan limit of Rs, 75,000 for them which on. further requests was enhanced to Rs. !,23,OlO/~ on 19-5-1976 and to Us. 2,00,000/-on 252-1978. The defendants were also accommodated to draw a farther sum of Rs. 4,35,8jO/- which they drew through cheques between the period 14-7-1979 io 27-12-1979. The above loan was secured through mortgage of tin property y/z bouse No S-Ss-R- 16(i. Link McLeod Road, Lahore and through hypothecation of stocks o[ watches, ornaments etc. The defendants executed the following documents from time to tiov; f J avail of the loan facilities :•— (i) D-P. Note dated 27-22-19?4 of the vaiue of Rs, 75,000 ; (ii) Undertaking by the defendants for the payment of 'can and irsterest thereon : (iii) Agreement for Cash Credit (hypothecation of watches, gold, gold ornaments etc-) dated 27-12-1974 : (iv) Registered Deed of simple mortgage dated 27-12-19/4 ; (v) Registered Genera) Irrevocable Power of Attorney dated 27-12-174 ; (vi) D,P, Note dated 19-5-1975 cf tiie value of Rs, 1,25,000 ; (vii) Agreement for Cash Credit hypothecation of goods etc., dated 19-5-1976 ; (viii) Undertaking by ihs defcodants to pay the loan v»;tb interest and a!S other charges : (ix) Registered deed of simple n^rtg-ps date! SS-5-1976 • (x) Affidavit dated 19-5-^76, b;- c;:'vnd: ; -> N-. • : (xi) D,P. Note dated 2i.2.l97i of tht valu- c: Rs l.CO.U.'O ; (xii) Agreamsnt for Cash Crcutt b/potUicwtioa of gcod3, dated 25-2-1978; (xiii) Undertaking by tbe defendants for payment of loan with interest and other charges ; t'xiv) Undertaking by the defendants ; and (xv) Registered Deed of Additional Simple Mortgage dated 5-4-1978. Further averment in the plaint is that on the mortgaged site, the defendants wanted to construct a Plaza by demolishing the existing struc­ ture and for the purpose entered into an agreement dated 4-6-1980 with the plaintiff-Bank for re-payment of tbe loan amount. On the said date the defendants admitted their liability in the sum of Rs. 7,52.018.06. The increased liability as on 31-12-198U amounting to Rs. 8,33,158.29 was also subsequently acknowledged by the defendants. Through letter dated 25-2-1981 of the plaintiff the defendants were asked to clear their liability and pay the sum of Rs. 3.00,001) as had been agreed upon vide clause 1 of the aforesaid agreement dated 4.6 1980, The defendants in reply reacknowledged the loan liability through thsir letter dined 8,3.1981 and explaining their difficulties gave a frssh proposal for repayment of the amount. This revised programme for repayment of loan was also not adhered to by the defendants and as on 63 1983 the amount due from the defendants to the plaintiff accumulated to Rs. 12,28,895.38 which having net been paid the plaintiff has filed the present suit for its recovery with interest at the rate of 4% above the Bank rate with a minimum of 14% ptr annum with quarterly rests. The suit amount is sought to be recovered tbrough sale of the mortgaged property and hypothecated goods. 3. The defendants filed an application. (C.M.. No, 5779/C-1983) for leave to appear and defend the suit. This application of the defendants was dismissed for non-prosecution or; 22~12-i s ?84 and ttie sun 01" ibe plaintiff was decreed on the same date. Th: defendants then made an application (C.M No. '. 14/B-19S4) for recalling the preliminary decree passed as aforementioned. This application itself was dismissed for nonprosecution, whereafter the defendants rnaUe yet another application (C M. No. 54/B-'985) under Order IX, rule 9 read -.vita Order XXXVH, rule 4 and section 151 CPC for r..'$tonUr->n of the first application viz. t.M. No. 114/3 o-f {934. This subsequent application (CM.. No, 54 8- 1985} was allowed by rny oiJer dated l5-i->9So and op the same ''ate allovs ing the ether application v'.:. C.M. No, i!4/B-;9s4 the prclsra/nsry decree ',vas set ;- ths mj 10 of Rs 4. to, £50 wir^cJrs'.'AR th">ugh cheques hetwc-';t< the ptr-nd 14-7- 1 -}"'9 and 2"/-S/!.L9'V as trie said amount was in. fact drawn by the <•#• Manager of the piamtiff'-Baok Mahtnood Yasn;. MifUa, whose wife h&rt euiered ir:»o partnership business w»th the son of defendant No. I, It was urged triat the aforementioned ^..v- Manager by ;ir«ctising fraud on the defendants got the cheques signed from them and wi'hdrew the amount frurt. the Bank for his own benefit and that otherwise ais r

the said withdiawai by cheques being in excess of the sanctioned limit of defendants they are not liable to pay the same, In the same context the learned counsel for the applicants-defendants contended that a corn plaint was made against the afore-mentioned Manager of the Bank and the institution of the present sun is only a counter bust to frustrate tbe aforementioned complaint of the defendants which may give rise to important questions of lav, and fact, leave to appear and defend the suit may be granted. 5. The learned counsel for the plaintiff vehemently opposing the application for leave to appear and defend the suit submitted that the liability to the extent of sanctioned limit having beer, admitted and it also having been admitted that the cheques io excess of the sanctioned limit were drawn by the defendants there is no occasion for grant of leave to appear and defend the suit. 6. Ibe learned counsel for the piaintjlf also contended that the alleged fraud practised on the defendants b> the e- Manager of tbe Bank is only imaginary and that this plea appears to have been concocted by them on learning that serious steps are being taken for recovery of the due amount. It was urged by him that in the face of periodical acknowledgments by the defendants of the amount due from them to the plaintiff without any reservation, there is no justification for advancing the plea thai the loan amounts were not availed of by the defendants Hs in 'his connection referred to confirmation slips dated 31-32-1979 and 3M2-l u bO and agree­ ment dated 4-6-1980 executed by the defendants and which respectively acknowledged the liability as on the aforementioned dates to be Rs. 7,31.249.42, Rs. 8,33,158.29 and Rs. 7,52,018.06. 7. The learned counsel for the plaintiff next submitted that all the documents annexed with the plaint in original have been admittedly signed by She defendants which fact leaves no room for denial of any portion of tbe claim of the plaintiff against them. 3. As regards the contention raised on behalf of the defendants that they are not liable to pay any amount in excess of the sanctioned limit, the learned counsel for the plaintiff submitted that there being admission that the amount of Rs. 4,85,850/« had been withdrawn through cheques drawn by the defendants on their account with the plaintiff-Bank, when no funds were available therein, the issuing of each such cheque was a request for overdraft which facility was afforded to tbe defendants by the plaintiff and now after having availed of tbe amount of loan through over­ draft as mentioned above, the defendants cannot be allowed to turn around and take the plea that there being no sanctioned limit beyond Rs. ?00,000/- the defendants are not liable to pay the amount in excess thereof. In support of the above contention reliance has been placed on National Bank of Pakistan v. Messrs Ch. Islam Din & Co. and others reported as PLD 1985 Lahore 117. 9. The learned counsel for the plaintiff further urged that no plausible and genuine defence having been disclosed by the defendants and only vague allegations of fraud having been levelled without any material on record in support oi the allegations there is no case made out by them for grant of permission to appear and defend the suit. The learned counsel cited faqir Muhammad and 5 others v. Shiekh Nasim Ahmad reported as PLJ 1979 Lahore 328. 10. Lastly, relying on Khayam Films and another v. Bank of Bahawalpw Ltd. reported as 1982 CLC 1275 and Gul Habib v. Habib Bank Ltd. reported as PLJ 1983 Peshawar 54 the learned counsel tor the plaintiff contended that the certified copy of the Power-of-Attorney in favour of the signatory of the plaint has been placed on record as the original was not traceable which inter alia confers power on the attorney to institute and file any suit on behalf of the plaintiff and thus there is no scope for submitting that the suit has been incompetently filed. He also submitted that in any case the institution of the suit by the signatories has been categorically ratified by the plaintiff, which is a complete answer to the objection raised on behalf of the defendants. 11. I have given anxious consideration to the contentions raised on behalf of the parties. J am inclined to agree with the learned counsel for the plaintiff that the defendants have not been able to show any genuine 01 even plausible defence which they can set up to the suit or which max give rise to triable issues. It has been correctly pointed out that bale allegations of alleged fraud by the ex-Manager of the plaintiff-Bank on tru defendants without any details and particulars thereof which allegations 01 the face of it are only illusory cannot be made the basis to grant leave u appear and defend the suit. More over a plea of fraud as the basis ol defence cannot be entertained in the absence of particulars thereof as pro­ vided under Order VI, rule 4 O J C. It is well settled that when fiaud ^ B the basis of action or defence the particulars have to be invariably furnish ed. Reference in support of the above view may usefully be made to Ghulam Shabbir v Mst. Noor Begum and others reported as PLJ 197? SC 299, Muhammad Umar v. Muqarab Khan etc. reported as 1968 SCMR 9s3, Bharat Dharma Syndicate Lid. v. Herish Chandrt reported as AIR 1937 Privy Council 146, Bal Gangadhar Tilak and others v. Shrinivas Pandit and others reported as AIR 1915 Privy Council 7 and Faqir Muhammad and 5 others v. Sheikh Nasim Ahmad reported as PLJ 1979 Lahore 328. 12. Otherwise also I find that a conjunctive reading of the applica­ tion for leave to appear and defend the suit and in particular the contents of grounds (i), (c) and (d) thereof in fact tend to show that the amounts through cheques in question were withdrawn by the defendants with full knowledge of the manner of withdrawal and the use to which the amounts were to be put. The cheques it may pertinently be observed were admittedly issued by the defendants. The averments in the application for leave to appear and defend the suit also clearly show that the son of defendant No. 1 and the wife of the then Manager of the Bank were running a partnership business and it appears that on the basis of that business connection the defendants were being accommodated even out of the way. That being so the defendants cannot be permitted to allege fraud against the plaintiff-Bank. 13. Before dealing with the contentions raised on behalf of the defendants that the payment against cheques being in excess of the sanctioned limit of advance, no liability in respect thereof devolves upon the defendants, it appears appropriate to refer to some provisions of the Negotiable Instruments Act (XXVI of 1881). The said provisions are reproduced hereunder for facility of reference : — Section 5 defines a "bill of exchange" as under :— "A'bill of exchange' is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a ixed or determinable future time a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument," "where the payee is a fictitious or non-existing person tbe bill of exchange may be treated as payable to bearer," Section 6 defines the 'cheque' as under : "A 'cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand." Section 7 defines the drawer, the drawee and the payee respectively as the maker of a 'bill of exchange' or 'cheque, the person who is directed to pay the bill of exchange or cheque and the person named in the instrument to whom or to whose order the money is by the instrument directed to be paid. 14. A conjunctive reading of the above provisions, therefore, shows that a 'cheque' is a 'bill of exchange" which if drawn unconditionally on dn account is to be honoured by the 'drawee', it is correct that cheques are generally drawn to be met out of foods in the hands or" the Bankers yet in •errns of the definition of cheque and bill of exchange such a limitation :<s to existence of funds with the bank as a fore-requisite for issuance of a cheque cannot be imposed. It ears be safely inferred that when a Customer draws the cheque for a larger amount than what he has to his credit in the Bank he obviously makes ;i request to the Bank to pay the amount in spite of insufficiency of fund? as he knows or is presumed to now the amount to his credit in the account Refer Pagei's Law ://" Banking,, Eighth Edition, wherein at page 132 this proposition has been discussed in the following words :— "The drawing a cheque or accenting a bi!; payable at the bank, when there are not funds sufficient to meet it, is presumably a request for an overdraft." The rule may thus be summed up that where a person draws a cheque on a Bank for an amount in excess of the balance to his credit in his Bank •\ccouat and the Bank encashes the cheque iu Uoe course^ a transaction of loan arises in law that is to say, the drawer shali be deemed \<> have tsk for the loan/overdraft and the Bank shall be deemed f<:> fuve adviocj.l inc same to the extent of excess. As such all consideration of just'cc, cquuy and good conscience shall prevail So preclude the drawer from denying his liability in respect of such a loan. 15. I may also observe that if the Bank believjug t ! 5l 2 ••.hequt has been issued by a customer who docs not have to his credit :\n amount equal to the amount drawn through th-s cheque treats the re-quest a- «r,- for overdraft and pays the amount., the customers hts bouasveJ :te rrscnt;- especially where the payment is sot objected to oy the drawer before or toon ofter eacathment of the cheque, arsd <•» the contrary ise cr«%o amount is acknowledged as loan through subsequent confirmation of loan The drawer in such circumstances shall be estopped to take a plea and assert that the encashment of the cheque beyond the amounj available to the credit of the drawer cannot be held as his liability as the Bank should have refused to honour the cheque, there being no amount to his credit. 16, I may also hold as a general principle that if after issuing a cheque the drawer keeps quiet and takes no steps to inform the Bank in timt i.e. before the cheque is encashed that the cheque should not be honoured and the Bankers honour the same and make payment in due course, which according to section 10 of the Negotiable Instruments Act, means payment in accordance with the apparent tenor of the instrument in good faith, the liability for the drawn cheque $ha!i absolutely and squarely fall on the drawer, 17, Before parting with the above aspect of the matter it would br pertinent to further observe that the claim of interest on an overdraft finds support on the ground of universal custom of bankers and also o» the ba>is of implied agreement for example where the customer ha; acquiesced in the system under which the interest is charged, 18, In the light of the above principles I would now advert to the case ia hand. It would be seen that even from the contents of the appli­ cation for leave to appear and defend the suit, it is manifest that at the ime of issuing the cheques in dispute the defendants fully knew that the funds in their account with the plaintiff were not sufficient to meet them. This fact alone clearly establishes the knowledge and intention of the defendants to obtain overdraft/loan from the plaintiff to the extent of the everdnwn cheques. Toe matter does not en.d at that, the defendants at no p-!'.nt of time not only did not raise any objection to the encashment of the cheques in question, but continued to acknowledge as loan the payments made against them as also the interest charged thereon by sign­ ing a number of confirmation slips. 19. The case of the defendants becomes ali the more flimsy in view of the established position that the cheques in question which have beea placed on record in original were issued by tne defendants under signatures of defendant No. 1 who also received the amount ia cash against them as the cheques being bearer have his signatures on the reverse thereof in token of receipt of the amount. The cash against the cheques having been received by defendant No I it can be justifiably deemed that the said amounts were appropriated by the defendants so their own use. 20. From the afore-mentioned attendant circumstances and the material on record, it is clear that there was an express intention of the defendants to obtain a loan and that of the plaintiff-Bank to advance the same to them through payments against the overdrawn cheques on the basis of security already held by the Bank for the loan sanctioned to the defendants and, therefore, the defendants shall stand precluded and estopped by their conduct and also in law to deny their liability and that they are under a legal and moral obligation to pay the total amount claimed in the suit. 21. The only other contention raised on behalf of the "defendants which is left to be considered is the objection as to the competence of the signatory of the plaint to institute the suit on behalf of the plaintiff, Suffice it to lay that the certified copy of the registered Power-of-Attorney in favour of Mr. Zia-ud-Din on; of the signatories of the plaint has been placed on record which clearly authorises him (refer recital 13) to institute/ defend etc., any action or other proceedings relating to the affairs of the Bank and it squarely meets this objection. Otherwise also the objection in the light of the case law cited by the learned counsel for the plaintiff does not appear to have force. 22. In view of the foregoing discussion I find that no plausible and jgenuine defence having been disclosed by the defendants they are not Klentitled to the grant of permission to appear and defend the suit and Iconsequently their application is dismissed. 23. The application for leave to appear and defend the suit having been dismissed, the contents of the plaint shall be deemed to be admitted. Resultantly a preliminary decree with costs for recovery of Rs. 12,28,895-38 is hereby passed in favour of the plaintiff and against the defendants. The plaintiff shall also be entitled to recover interest at the rate of 14% per annum from the date of institution of the suit till realization of the decretal amount. 24. The defendants are given six months time to pay the decretal amount, failing which the plaintiff may apply for passing of a final decree. (TQM) Preliminary decree passed.

PLJ 1987 Lahore 56 [DBj PLJ 1987 Lahore 56 [DBj Present : muhammad aslam mian & qurban sadiq ikram, JJ GRINDLAYS BANK LIMITED through Senior Manager Grindlays Bank Ltd. Main Branch Shahra-e-Quaid-e-Azam, Lahore—Appellant versus DELITE HOUSE LIM1TFD, YMCA Busldsng, Shahra-e-Quaidi-Azam, Lahore and 4 Others—Respondents Regular First Appeal No. 202 of 1981, decided on 29-11-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

S. 34—Interest—Rate of—Court — Discretion of— Suit decided within two months of its institution—Held : Rate of intsrest being within discretion of trial Court grant of interest at rate of 6 per cent only for two months period during which suit remained pending in Court nor to be illegal. [P. (Oj£ (ii) Civil Procedure Code, 1908 (V of 1908)-

S. 35—Costs—Award of — Court — Exercise of discretion by- Held : Discretion to allow (or refuse) costs to be exercised keeping in view particular circumstances of individual case and in accor­ dance with well established principles of reason and justice— Conduct of party in actual litigation also to be relevant consideration for allowing or refusing to allow costs in case. [P. 61]F (iii) Civil Procedure Code, 1908 (V of 1908)—

S. 35—Costs—Entitlement to —Defendants accepting claim of plain­ tiff within two months of institution of suit—Such acceptance of claim by Defendants saving parties from prolonged litigation in trial and appellate courts— Held : Plaintiff not to be entitled to costs of suit. [P. (iv) Civil Procedure Code, 1908 (V of -- O.XX, R. 11— Decree — Payment of money by instalment under — plaintiff at time of passing of decree taking no exception to mode of payment or form of decree — Payment of decretal amount by instalments also accepted by plaintiff/decree-holder— Even counsel appearing on behalf of plaintiff before trial Judge by conduct accepting mode of payment of due amount by instalments — Held : Decreebolder to be subsequently estopped from urging that amount should have been ordered to be recovered and should be recovered by sale of mortgaged property. [P. 59]C (v) Chril Procedure Code, 1908 (V of 1908)- -- OXX, R. 11 &O.XXI, Rr. 1 & 2— Decree— Mode of payment of money under — Instalments — Acceptance of — Effect of — Appellant Bank accepting most of instalments towards decreed amount with result that sum of Rs. 1,35,725 only remaining outstanding under decree for Rs. 7,09, 1 15.70— Held : Acceptance of decreed money by instalments to amount to waiver of protection afforded to decreeholder in procedural law — Held further: Mode of payment of money by instalments having become binding, appeal seeking modification of decree to become infructuous. [P. 59]B (?i) CiTil Procedure Code, 1908 (V of 1908)— -- 0 XXXIV. Rr. 4 & 5 — Mortgage of immovable property — Suit relating to — Held : Normal course in suit for recovery of money by sale of mortgaged property to be to proceed under O.XXX1V, CPC and rules framed thereunder. [P. 59]A (Tii) Civil Procedure Code, 1908 (V of 1908) — -- O. XXXIV, Rr. 4 & 5, O.XX, R. 11 & O.XXI1I, R. 3— Sale— Suit for— Money— Payment of by instalment — Held : Payment of decreed amount not to be ordered by instalments in suit for recovery of money by sa'le of property — Decree, however, to be competently passed on compromise between parties providing for payment by instalments and for sale of mortgaged property in default. [P. 60]£> Mr. Hamid Khan, Advocate for Appellant. Mr. Azam Rasool, Advocate for Respondents. Date of hearing : 29-9- 1 986. judgment Qurban Sadiq Ikram, J. — Grindlays Bank Limited, a banking company incorporated in U. K. and carrying on business in Pakistan, on 21-9-81 filed a suit against M/s Deiite House (Private) Limited and four others before Special Judge (Banking), Lahore under Order 37 rule 2 CPC for the recovery of Rs. 5,30, 326.44 with interest pendentc lite and further interest at 14% per annum till realisation by the sale of mortgaged property described in plaint and sale of hypothecated stocks. The defendants were ittrrjmoned to appear in Court pn 19-10-81. They catered appearance and 58 I ah, grinblays bank ltd. v, deliti house ltd. PLJ (Qnrban Sadiq Ikram. J) applied for leave to defend the suit which was adjourned to 16 : 11-81 for reply and arguments on tbe said application, On that date, the learned counsel for defendants expressed "a desire to make statement regarding the acceptance of claim of the plaintiff with certain conditions". The suit was adjourned to 19-11-81 for recording of the statement. Mr. In»m Elahi Sheikh defendant No. 2 who was Managing Director of Delite House Limited {defendant No. I), on his own behalf and on his behalf of other defendar.ts msde statement in Court. He accepted the claim of the plain­ tiff and pra>ed for permission to make the payment by instalments. He requested that the defendants be not burdened with costs and interest. The learned Special Judge on that very day, decreed the suit of the plaintiff The prayer for "deduction of insurance premium" and "remiision of interest in tola" was not uranted. The court directed firstly that ' 'She decreed amount vuth interest will be paid by quarterly instalment of Rs 30.(00.'- by the defendants til! complete realisation of outstanding amount" ; secondly, that the defendants "shall also be liable- to pay simple interest at the rate of 6 C 0 frcm the date of suit to this date /. e. 19-11-81". thirdly, the defendants "shall als-> be liable to pay simple interest at 14 % P. A. from this date (19-11-81) to the complete satisfac­ tion of the decree on the decretal amount or the reducing balance together with accumulated interest at the above rate" ; fourthly, "in all circum­ stances, the liability shall be cleared by the defendants within a period of five years as requested by them" ; fifthly, that "the first instalment shall be payable on or before 31-12-81; the second instalment on or before 31-3-82 ; the third on or before 30-6-82 so on and so fourth ; and sixthly, "id case any instalment is not paid io time, the whole unpaid balance shall be recoverable in lump sum with interest and costs." There was no order as to costs. 2. We have been informed by the learned counsel for tbe parties that through regular instalments, defendants have paid upto 29-6-86 a sum of Rs. 5,73,900.50 towards satisfaction of the decree and only a sum of Rs 135,725 20 remains outstanding which the learned counsel for the defendants undertake to pay within due time, The plaintiff-bank has come up in appeal seeking modification of the decree dated 19-1 1-81. It was contended on behalf of tbe appellant firstly that the payment of the decretal amount by instalments could not have been allowed in the instant case ; secondly, the interest pendente lite should have been 14% instead of 6% allowed by the trial court ; thirdly the learned trial judg^ did not record any reason for not allowing costs to tbe plaintiff ; and finally that the terms of decree were lenient and favourable to the defendant-respondents and harsh towards the plaintiff-appellant. The learned counsel for the respondents controverted these contentions. It was argued by him that the learned trial Judge rightly did not allow costs to the plaintiff because the defendants did not prolong the proceed­ ings of the trial and accepted the claim of the plaintiff at the earliest occasion. It was contended by him that the impugned order was not lenient or favourable to defendants and that the learned trial Judge had the jurisdiction to allow payment of decreed amount by instalments. 3. We have considered (he respective contentions on bealf of tht parties. (z) The.suit of appellant was for recovery of Rs. 5,30.326-44 with interest etc. by sale of mortgaged property and hypothcticated stocks The learned counsel, therefore, argued that after admission of claim of plaintiff by the defendants, it was obligatory for trial court to proceed under Order 34 CPC. There being no other alternative, the court should have passed a preliminary decree to allow six months time to defendants to pay the entire decreed amount failing which the decree should have been made final and the same should have been realised by sale of mortgaged property. We have considered this argument in the light of facts of this case. We agree with the learned counsel that normal course in a suit for recovery of money by sale of mortgaged property is to proceed under Order 34 CPC and Rules f, :med thereunder. We, but for the conduct of the appellant (plaintiff), would have remanded the suit to the trial court with a direction that proceedings be held in accordance with provisions of Order 34 CPC. It will be observed that the present appeal was filed in this Court on 16-12-1981. Alongwith this appeal the bank filed C. M No. 6492-C of 1981 under Order 41 Rule 5 read with Section 151 CPC seek­ ing suspension of facility of the instalment during pendency of appeal. This petition came up for hearing on 22-1 i-82. The learned counsel for the appellant did not press this petition which was accordingly disposed of. At the same iime the appellant bank went on accepting instalment^ towards payment of decreed amount with the result that a sum of Rs. 5,73,990-50 has already been received byit. The total amount due] under the decree with interest etc , was Rs 7,09,715-70. In this way only' a sum of Rs. 1,35,725-20 remains outstanding under the impugned decree. This act of the appellant bank, in fact, renders this appeal infructuousbecause the decree by this time is close to its accord and satisfaction. Tht 3cceptancJ of decreed nuney by instalments amounts to waiver of protection afforded in the procedural law. As a result of this, {he mode, of payment of amoun't by instalments becomes binding on the appellant. There is another consideration a> well for which no weight can be given to the arguments on behalf of the appellant, if we analyse properly, apart from the opinion already expressed that nurtgageand hypothecation was by­ way of collateral security. The suit, in substance was for recovery of loan as advanced, The trial court, therefore, appears to have prescribed mode of payment by instalments virtually taking it as basically a money suit. The impugned judgment and decree appear:, to have been passed in presence of the parties. There is nothing to show that the plaintiff at the time of passing of the decree took any exception to the mode of payment or form of decree. It, is, therefore, surprising to note that the appellant is srill insisting for sale of the mortgaged property when only a meagre amount remains outstanding which as assured by the learned counsel for the respondents will be paid duly. The plaintiff-appellant accepted the payment of the decreed amount by instalments which, as stated above, amounts to the acceptance by the appellant of the mode of payment of the decreed amount, It appears to us that the learned counsel appearing on behalf of the plaintiff before the learned trial Judge byconduct accepted the mode of payment of the due amount by instalments The appellant, therefore, is estopped now to urge that the decreed amount should have been ordered to be recovered and should be recovered by sale of mortgaged property. From all these facts it clearly appears that parties did not agree at the time when the trial court passed the decree and directed payment of the decretal amount by instalments. The bank authorities after passing of the decree might have decided to back out from the said verbal and implied consent given by their learned pounsel before their trial Judge when after decreeing the suit, order of payment by instalments was recorded. The conduct of the bank during this –appeal also is a circumstance which supports this view. As such, in view of the waiver of the plaintiff-appellant, the present appeal becomes infructuous. There appears no fun now in passing a preliminary decree under Order 34 CPC and then allowing six months' time to the judgment-debtor to pay the ecreed amount specially, as stated above, major par 1 - of the decree has lready been satisfied. There is no denying of the fact that payment of decreed amount could not have been ordered by instalments in a suit for recovery of money by sale of property, but independently of this rule, a decree may, in a suit on a mortgage, be passed on a compromise between the parties providing for payment by instalments and for sale of the mortgaged property in default. In the instant case, n'.wil: be observed that the claim of plaintiff was accepted by the defendants without contesting the suit - the debt due to the bank was admitted by the defendants on account of which there was no occasion for framing of issues or recording of evidence. The decree was passed within a period of two months of the institution of the suit. These facts lend support to the view that in fact the learned counsel for the plaintiff, at the time of passing of the ecree, agreed to the mode of payment of the decretal amount. Thit inference further stands fortified by the conduct of the bank whereby the bank started accepting the decretal amount in instalments and did not press its application civil miscellaneous No. 6492/C of 1981. However, on a perusal of the impugned judgment, we are of the view that the latter part of the decree can be regularised by substituting the default clause with a direction -that in case of default of payment of any installment, the due balance will be recoverable forthwith by sale of the mortgaged property. (;'/) The learned trial Judge in the impugned decree allowed simple interest at the rate of 14% per annum to the plaintiff on the decreed amount from the date of decree to the date till final payment. It was contended on behalf of the appellant that the simple interest at the raie of 6% pendente lite per annum was meagre and it should also have been 14% per annum. It will be noticed that the suit was decided within two months of its institution. The rate of interest was within the discretion of the trial court and that there was nothing illegal if interest at the rate of 6% only was allowed for two months period during which the suit remained pending in court. The contention on behalf of the appellant iis, therefore, repelled. (Hi) The third contention that the impugned decree was lenient and favourable to the defendant-respondents is without any substance. Although the learned trial Judge did not record the statement of the plaintiff, it appears that the decree was passed with \erbal and implied consent of the plaintiff on the terms stated in the impugned judgment and decree. The total amount to be received by the defendants from plaintiff was Rs, 5,30,326.44 and the amount due under the decree was Rs. 7,09,715-70. The plaintiff-bank, therefore, hm not suffered in an> manner and it cannot be said that the decree was in any way lenient or favourable to defendants. The learned counsel for the appellant did not ress the civil miscellaneous petition before this Court on 22-12-1981 meaning thereby that the payment oC the decreed amount by instalments was accepted and the objection regarding the mode of satisfaction of the decree was waived. (iV) The last contention on behalf of the appellant pertains to absence of reasons of the trial court and for not recording any order as to costs of the cause. In a suit costs under section 35 CPC are awardable by court either as compensatory or actual costs. It is discretionary with court to allow costs. This discretion is to be exercised keeping in view the particular circumstances of an individual cast and in accordance with the well established principles of reason and justice. One of the considerations to allow or refuse to allow costs in a case is the conduct of the party in actual litigation. In the instant case, it will be observed that the suit by Grindlays Bank was instituted on 21-9-1981. The defendant-respon­dents for the first time appeared in court on 19-10-1981 and filed an application for leave to defend the suit. This application was adjourned to 16-11-1981 for reply and arguments. On that day, i.e. within a period of two months of the institution of the suit, the learned counsel for the defendants expressed a desire to make statement regarding acceptance of the claim of the plaintiff. The proceedings in suit were adjourned for three days only. It was fixed for hearing on 19-11-1981 wnen Mr. Inam Elahi Sheikh defendant No. 2 on his own behalf and on behalf of othet defendants made statement accepting the claim of the plaintiff and praying that» permission to make payment by instalments be accorded. It is.j :herefore, cleaj that the suit was finally disposed of within a period of two months without framing of issues and recording of evidence on behalf ofj the parties. The acceptance of the claim of plaintiff by the defendants saved the parties from prolonged litigation in the trial and appellate courts. It is correct that the learned trial Judge should have given reasons for not allowing costs of the cause to the plaintiff but this omission does not mean that the plaintiff was entitled to costs In view of the fact that the defendants accepted the claim of the plaintiff within two months of the, institution of the suit and that the defendants did not commit any mis- ! conduct, we are of the view that the plaintiff was not entitled to costs of the suit. 4. In view of the above discussion, this appeal stands disposed of subject to above modification leaving the parties to bear their own costs throughout. (TQM) Order accordingly.

PLJ 1987 Lahore 61 PLJ 1987 Lahore 61 [Rawalpindi Bench] Present : gul zarin kiani, J ABDUL RAZZAQ—Appellant versus SALEEM HIDAYAT and 4 Others—Respondents FAO No. 10 of 1985, dismissed on 1-11-1986 (i) Cantonments Rent Restriction Act, 1963 (XI of 1963) —

S, 1? (2) (i)—Eviction—Default—Ground of— Discretion - hxercis: »f—Palte pie—Effect of—Held : Discretion always being exercise! on cquitabJt and judicious considerations, tenant raising taisv plea to certainly disentitle himself to e\ercise of discretion in his fa\cur— Held further : Tendency to put false pleas and then to support them with adduction of false evidence being circumstance sericusiv affecting of administration of justice, exercise of discretion in favour of person raising false plea to provide encouragement to take false pleas and commit perjury in courts. [P. 66]H PLD 1963 Lahore 20 ref. (if) Cantonments Rent Restriction Act, 1963 (XI of 1963) —

S. 17 (1) (i)— Eviction—Default—Ground of—Rent—Payment of— Proof of—Tenant—Statement of—Held : Tenant being interested party his statement to be read with great deal of caution—Held : farther : Convincing evidence being required to prove payment of rent, (mere) statement of tenant by itself not to be sufficient to prove payment as alleged by him. [P. r-4]A PLD 1982 SC 465 ref. (iii) Cantonments Rent Restriction Act. 1963 'XI of 1963) —

S. 17 (2) (i)—Eviction—Default—Ground of—Security—Adjust­ ment of — Parties not agreeing to adjust rent due paid from security deposit — Such security agreed to be refunded at time of eviction—Tenant failing to pay or tender rent in accordance with provisions of S. 17 (2) (i) of Act—Held : Tenant not to be safely said to be not rent-defaulter (merely because of some amount of security lying in deposit of landlord). [P. 65]C & D PLD 1952 Dae. 279 ref. (iv) Cantonments Rent Restriction Act, 1963 (XI of 1963)— ——S 17 (2) (i)— Rent—Payment of—Tenant—Statement regarding— Held : Bald statement of tenant to support payment of renc in absence of anything in writing to be wholly insufficient evidence. [P. 64]B (v) Cantonments Rent Restriction Act, 1963 (XI of 1963)—

Ss. 17 (2) (i) & 24—Eviction—Default—Ground of—Terms of tenancy not put in writing—Held : Tenant to be obliged to pay rent within sixty days following period for which rent be due—Rent for period in dispute not shown and proved to have been tendered or actually paid—Held : Tenant being clearly rent-defaulter, Rent Controller not to be erroneous in holding him so. fP. 65jE & F (vi) Cantonments Rent Restriction Act, 1963 (XI of 1963)-

Ss. 17_ (2) (i) & 24—Rent Controller—Exercise of discretion by- Interference with—Rent Controller finding against tenant and directing his ejectment—Held : Discretion judiciously exercised by lower court normally not to be interfered with by court of appeal — Discretion, however, when found to have been exercised arbitrarily or on wrong conception of law, appellate court to be duty bound to interfere with it and pass order in consonance with justice and require ment of law. [P. 65JG Mr. Kowkab Iqbal, Advocate for Appellant. Mirza Anwar Baig, Advocate for Respondents. Date of hearing : 15-10-1986. judgment This appeal under section 24 of Act XI of 1963 is directed against order dated 17-3-1985 of Rent Controller, Rawalpindi, Cantonment, and arises out of the facts given below. Appellant is the tenant of shops 2-A, 3-A in Green Super Market (53/1) Kashmir Road , Rawalpindi Cantt. of which respondents are the landlords. Rate of monthly rent as also the relationship are not in dispute. Respondents applied for ejectment of the appellant from the shops in dispute on the ground of default in payment of rent. Application was filed before learned Rent Controller on 23-9-1984. It was averred that rent since the month of January, 1984 till the date of filing of eviction application had neither been tendered for payment nor actually paid. Averment as to default was made in para. 3 of the eviction petition. In the written statement, filed by the appellant aver­ ment as to default was denied and it was pleaded that the appellant waj not a rent defaulter. However, in para. 2 of the written statement, it was pheaded that the rent in default could be adjusted from the security amount of Rs. 7840/- still lying in deposit with the respondents. On 17-10-1984 a direction under section 17(8} was issued by the Rent Controler and the tenant was directed to deposit ths arrears from the month of January, 1984 to September, 1984 amounting to Rs. 7776 before 4-11-1984. Admittedly, this amount had been deposited by the tenant in the treasury. After issuing the afore-noted direction, Rent Controller proceeded to formulate an issue on default,'recorded evidence of the parties, and, vide order impugned in appeal, found deiuult established, ordered ejectment of the appellant and directed him to vacate and hand over the possession of the shops within 30 days of the da'.e of order. Aggrieved of the decision, tenant has come up in appeal to this Court. For the appellant, three points have been raised. First, there i no default antl the rent for the period in dispute had been paid. Second, default if proved was condonable and the rent arrears could be adjusted from the amount of security lying in deposit with the respondents. Third, appellant was^entitlcd to exercise of discretion in his favour. In regard to the first contention, I find that it has no real substance. Vide Ext. R. 1, a sum of Rs. 10000/- was given as security to late Kh. Hiyadat Ullah, to be refunded at the time of vacation of the shops. Rent from December, 1980 to December, was paid on the agreed rate without claiming any adjustment from the security. Receipts Exts. R. 2 to R, 7 reveal that Rs. 460 was paid as rent per month to the respondents for the months of January, 1983 to June, and appellant claimed adjustment from the security amount as to he other half of the monthly rent. At that time, the agreed monthly rent as Rs. 720 per month. After adjustment, the amount of security was reduced to Rs. 7840/-. In July, 1983, rent was raised to 864/- per mensem, and there is no dispute about this enhancement. From July, 1983, to December, 1983 rent was either paid through money orders or paid in cash and receipts obtained. This mode of payment was supported by Ext. P. 1 to P. 6. Plea as to the payment of rent for the months of January, 1984 to tne date of the filing of the rent application it not supported b> anything in writing. Except for an oral state­ ment of the tenant himself, there is no evidence to support payment of rent for the period in dispute. Tenant-appellant is interested party and his statement has to be read with a great deal of caution and certainly standing by itself it is not sufficient to prove the payment of rent as alleged by him. Onus as to payment lay on him and it was for him to prove it by convincing evidence. Having regard to the statement made by the appellant, it is extremely doubtful whether a Court of justice can hold that he has proved paymentt of rent satisfactorily. View taken by me receives ample strength from the decision of their Lordships of the Supreme Court in Allah Din v. Huhib; PLD 1982 SC 465. Their Lordships observed" Applying the principls to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged' the burden of proof and the onus was shifted to the respondent. If, there­ fore, the evidence of the two parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in Second appeal. The conclusion is that the appellant has successfully established that th: respondent had committed default in the payment of rent and is liable to be evicted from the premises. In this view of ilie matter, I have no hesitation to say that bald statement of the tenant to "support payment of rent in the absence of anything in writing was wholly insufficient evidence to find for him. As to the adjustment of arrears from security to condone the default committed, the issue has been examined in several decisions to which learned counsel for the parties have made reference in support of their "respective contentions. In AH Muhammad . Sardar Ghulam Ahmad, etc. ; NLR 1980 Civil Lahore 503, this Court took the view that the security by its very nature is the deposit to ensure specific performance of the covenants of an agreement of tenancy and in the absence of an express agreement between the parties to that effect, rent arrears could not be adjusted from the security so as to condone default. In reaching the decisoin reliance was placed on decision, to be found in PLD 1975 Lahore 1504 PLD 1978 Karachi 149. Similar view prevailed in Syed Sharifuddin v. Abdul Hakim Khan ; 1978 NLR 106, Shahid Hussain v. Muhammad Ziauddin Khan 1982 CLC 2648. However, in some later decisions from Karachi jurisdiction, relying on the Supreme Court judgment in Muhammad Yousafv. Abdullah, PLD 1980 SC 298 it was found that the amount of security could be adjusted against the rent arrears and the effect of rent-default minimized to make out a case for exercise discretion in favour of the tenant. Refer Munawar Begum and 9 others v. msi. Alqab Begum, 1984 CLC 1979. Material issue of adjustment of rent from security deposit can more appropriately be resolved m the light of the decision of their Lordships of the Supreme Court in Muhammad Yousaf v. Abdullah, PLD 1980 SC 298. Relevant observations which elucidate the point are found on pag 306 of the Report, for facility of reference an extract may be quoted. It reads" It is true that the appellant had not demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the creditor, therefore, he should have informed tht respondent to adjust the arrears of rent against his deposit with the respondent. This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section li of the said Ordinance, it was a very techaical default and it would reduce the law to a farce if the respondent was evicted for being in debt to the respondent (on accounj of his failure to pay rent) when it fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour." Two points require consideration. First, whether the tenant bad failed to pay the agreed rent and earn the penalty of eviction. Second, whether it was a case for exercise of discretion in hit favour.j As for the security, it was expressly stated in Ext, R. 1 that it shall beL, refunded at the time of eviction. There is no agreement between the partiesF « that rent due and not paid could be adjusted from the security deposits [ In Munshi Emamuddin Ahmad through Muhammad Abdur Rahman and other v. Province of East Bangal and other's (PLD 1952 Dacca 279), It was ruled that : "Where the money has been expressly paid for a specified object and it was received and acknowledged on that account, there is no power on the part of either of the parties to the transaction without the assent of the other, to ifary the effect of the transaction by altering the appropriation in which both originally concurred, In the circumstances, it cannot be safely said that the tenant he failed toj pay or tender the rent in accordance with the provisions of section 17(2»D clause (i) of the Rent Act, he was not a rent-defaulter. Section 17(2) (ijl of the Act reads "the tenant has not paid or tendered the real to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is doe." It wasj not the case of either party that terms of tenancy were put in writing J Therefore, the payment of monthly rent shall be regulated in accordance! with later part of clause (i) and the tenant shall be obliged to pay the rent within sixty days following the period for which the rent was due. On record, as I have said above, there is no convincing material to show and prove that the rent for the period in dispute had either been tendered or actually paid. In my view, therefore, tenant was clearly a rent defaulter and the Rent Controller was not erroneous in holding him so. This brings me to the last limb of the issue whether appellant m the facts and circumstances of thi case was entitled to claim exercise of discretion in his favour so as to condone the effects of default and save him from the penalty of ejectment. Rent Controller found against the appellant and directed his ejectment. Normally, a Court of appeal would not interfere with the exercise of discretion by the lower Court if the discretion, which is a judicial act has been judiciously exercised by it. However, if it is found to have been exercised arbitrarily or on a wrong conception of law.it becomes the duty of appellate Court to interfere with it and pass an order which would in the circumstances of the case be in consonance with justice and the requirements of law. The question of exercise of discretion anxiously engaged my attention. Had it not been for the false plea of payment, I was readily inclined to exercise discretion in favour of the appellant and treat the default as not wilful in accordance with the principles of law laid down by their Lordships of the Supreme Court in Muhammad Yousafv. Abdullah, (PLD 1980 SC 29). Payment of rent was pleaded in written statement as also in evidence. Plea has been found to be false. A tenant who raises a false plea runs a grave risk and certainly disentitles himself to the exercise of discretion in his favour because discretion is always exercised on equitable and judicious conside­ rations. To exercise discretion in favour of such a person tantamounts to provide encouragement to take up false pleas and commit perjury in Courts. Tendency to put up false pleas and then to support them with adduction of false evidence is a circumstance which seriously affects the efficacy of the admin.stration of justice. Late Manzur Qadir, the Honour­ able Chief Justice of the Lahore High Court in Manzoor Hussein v. The State. [PLD 1963 (W P) Lahore 20] observed :— "Administration of justice is a solemn and sacred duty. The Courts are not there to be trifled with. If it appears to a Court that forgery or perjury has been commuted in relation to any proceedings before it, it is its duty to consider why the person concerned should not be prosecuted and if thsre is no good reason why he should not be prosecuted, to take prompt and adequate action so that an impression is not created that anyone can divert or abuse the process of law by falsehood or fabrication and still run no risk of coming to harm." Refer also to Jan Muhammad v. M. Muhammad Ashraf and another (1980 CLC 698). It is for this reason that I have felt declined to exercise discre­ tion in favour of the appellant. The result is that I agree with the conclu­ sion of the Rent Controller, uphold his decision and dismiss the appeal but leave the parties to bear their own costs. Appellant is allowed one month's time to vacate and hand over possession of the shop to the respondents. Records summoned from the Rent Controller be sent back. (TQM) Appeal dismissed.

PLJ 1987 Lahore 66 PLJ 1987 Lahore 66 fMultan Bench] Present : sh. muhammad asadullah, J MUHAMMAD HUSSAIN—Petitioner versus DISTRICT COUNCIL MUZAFFARGARH through its CHAIRMAN and Another—Respondents Civil Revision No. 7Q9 of 1986, dismissed on 10-11-1986 (I) CIVIL Procedure Code, 1908 (V of 1908)—

S. 92 & O. VII, R. II (d)-Trust created for public purpose- Suit in respect of—Consent of Advocate-General—Failure to obtain Effect of—Suit relating to breach of trust created for public purpose not instituted by two persons with consent of Held : Suit filed without complying with mandatory provisions of law being barred by law, plaint to merit rejection under O. VII, rule 11 (d)CPC. [P. 6S]fl (ii) Civil Procedure Code, 908 (V of 1908)—

S. 115— High Court— Revisional jurisdiction of— Exercise of— Application for temporary injunction dismisssed by Civil Judge- Plaint, on other hand, also rejected by District Judge while dismis­ sing appeal against impugned order—High Court finding case barred undnrS 17 of West Pakistan Waqf—Properties Ordinance, 1961 (XXVIII of 1961) as well as under S. 92 of CPC—Held : Case not to be remanded to Civil Judge merely for rejection of plaint. [P. b8]C (Hi) Civil rrocedure Code, 1908 (V of 1908)-

O VII, R. 11 (d) read with Puniab Waqf Properties Ordinance, 1979 (Pb. Ord. IV of 1979)-S S. 21 and Waqf Properties Ordinance, 1961 (W. P. Ord. XXV1U of 1961) — S. 17 — Plaint — Rejection of Notification under West Pakistan Waqf Properties Ordinance, 1^61 challenged before civil court — Held : Jurisdiction of civil court having been expressly barred under S. 17 of Ordinance, case to fall under rule 11 (d) of O. VII CPC. [P. 61 ]A Syed Murtaza All Zaidi, Advccate for Petitioner. Date of hearing : 10-11-1986. order This order will dispose of this revision petition (C. R. 709/86) as also revision petition No. 710/86 as the factual and legal points involved in the same are exactly similar. 2. A Waqf in respect of the property in dispute was created by Sardar Kauray Khan through a Will dated 5-10-1894. The property in dispute was taken over bv the Auqaf Department through Notification dated 17-12-1973. The said notification was rescinded (withdrawn) by a subseq jent notification dated 26-4-1983. The petitioners of both the cases claimed that they had obtained their respective parts of the property from respondent No. 2, the Auqaf Department, on lease for 2 years from 1981. They challenged the withdrawal of the earlier notification dated 17 12-1973 through the subsequent notification dated 26-4-1983 through the present suit alleging that the said latter notification was illegal Alongwith the suit they filed applications for issuance of temporary injunction restraining the resoondents from interfering in their possession. The said applications were dismissed by the learned Civil Judge Muzatfargarb vide order dated 16-7-1984. They filed appeals which were dismissed by the learned District Judge, Muzaffargarh vide order dated 1-11-1986 Through the same order he also rejected the plaints of both the cases obviously under Order VII rule 11 CPC. The revision petitions have been filed against the said orders. 2. I have perused the record and have heard arguments. Section 17 of the Waqf Properties Ordinance, 1961 bars the jurisdiction of a Civil Court in cases where the legality of anything done under the said Ordinance is questioned. The notification dated 2(3-4-1983 withdrawing the earlier notification dated 12-7-1973 was issued under the said Ordinance arid the legality of the said notification of 1983 could not be questioned before a civil court. This would mean, that the case was expressly barred by the said Ordinance of 1961 and the case would, therefore, fall under rule ll(dj of Order VII CPC. Io;this respect I would refer to Muhammad Din andothen v. Administrator-General of Auqaf, Pakistan &2 others (1979 CLC 551), In a similar case governed by a similar Federal law i.e. the Auqaf (Federal Control) Act, 1976 it was held that the jurisdiction of the civil courts in a case where such a notification was challenged was barred under the provision of that law. The present case as pointed out just now is quite similar to the same and the law laid down in the said ruling, is therefore, applicable on all four. 3. Again the suit relates to an alleged breach of trust (Waqf) created for public purpose by Sardar Kauray Khan.- Section 92 of the Code of Civil Procedure, 1908 provides that if some persons other than the Advocate- General have to file a suit in respect of such property the same is to be filed by at least 2 persons and that too with the consent of the Advocate-General. The present suits have not (sic) been filed without complying with the said mandatory provision of law. On that account also the cases were barred by law and the plaints merited rejection under Order Vll ru>e ll(d) CPC. 4. Learned counsel for the petitioner has argued that under the law laid down in Mst. Khurshid Begum and 7 others v. Inam Rabbani and another (1979 CLC 570) and Suleman Khan and 2 others v. Nazar Khan and another (1983 CLC 1502) an appellate court is not competent to reject the plaint when the appeal before him is only in regard to a miscellaneous applica­ tion. A perusal of the said two cases will show that the same are quite differeat. In the first case temporary injuction had been allowed by the Administrative Civil Judge, Falsalabad and the appeal had been dismissed. The question of rejection of plaint did not arise at all in that case and the law laid down therein is that while deciding such application merits of the case need not be discussed as that will amount to decision of the whole case. The second case reiaies to the making up of the deficiency in the court fee on the memorandum of appeal It was held that the appellate court was not bound to go through the formalities of giving opportunity etc for making up the deficiency in court fee under Order VII rule 11 CPC, meaning that the appellate court could right-away dismiss the appeal on that ground and in fact the appeal was so dismissed. In this connection I will refer to Syed Zahid Hussain and another v. Capital Development Authority, Islamabad (1979 CLC 502). The facts of that case are quite similar to the cases in hand In that case temporary injunction had been issued by the learned trial Court and the learned Additional District Judge while hearing the appeal against the same rejected the plaint on the ground that the plaintiff of that case had no locus standi for the case. It was held that even the trial court was bound to do what had already been done by the appellate court and, therefore, no useful purpose was likely to be served by remanding the case to the trial court merely for its rejection. It was further held that the exercise of jurisdiction under section 115 CPC being discretionary with the High Court, it was not a fit case for exercise of discretion in favour of the •petitioner of that case. Similarly, it will be an exercise iu futiiity if the leases are remanded to the learned trial court merely for rejection of the Cjplaints because as held above the cases are barred not only under the Waqf (Properties Ordinance, 1961 but also under section 92 CPC. The revision petition is, therefore, ismissed in limine. TQM) Petition dismissed.

PLJ 198 PLJ 198? Lahore 69 [Rawalpindi Bench] Present: GuL zarin k.ianj, j MANZOOR ELAHI-Petitioner versus TAHIR MASOOD-Respondcnt Civil Revision No, 491-D of 1986, dismissed on 1-12-1986 f i) Punjab Pre-emption Act, 1913 (1 of 1913)— — — Ss. 4 & 15 (b) thirdly read with Muslim Family Laws Ordinance, 1961 (VIII of 1961)—S. 4 and Civil Procedure Code , 1908 (V of 1908)—S. 115—Pre-emption right in agricultural land — Superiority of claim regarding—Vendee entitled to take share in inheritance of his grand father (vendor) alongwith prc-emptor—Held : Pre-emptor not totally excluding vendee from inheritance of vendor, dismissal of suit (to extent of land sold by such vendor) to be absolutely correct. [P. 70J5 (ii) Punjab Pre-emption Act, 1913 (I of 1913)—

S. 15 (b) thirdly-—Agricultural land—Right of pre-emption in — Pre-smptors— Superiority of claims of — Succession — Order of— Held : While deciding competitive claims in regard to superiority of right of pre-emption under S. 15 (b) thirdly, courts to keep in view only plaintiff and vendee and no other relation of vendor — Courts, in such cases, to find out as to which of parties before them to be entitled to inherit property of vendor to exclusion of other—Person so entitled to have superior right — In case of both parties being entitled to inherit equally, their right to pre-empt to be declared to be equal and pre-emptor (thus) to fail. [P. 70J/4 AIR 1942 Pesh. 22 & NLR 1979 Civil 754 ref. Mr. Muhammd Munir Piracha, Advocate for Petitioner. Date of hearing : 1-12-1986. order This Civil Revision by the vendee arises out of a suit brought by Manzoor Elahi petitioner to pre-empt sale of some property made by Sher Muhammad son, Ghulab Jan daughter of Muwwaz to Tahir Masood, for Rs. 9,000,'- vide deed of sale registered on 19-2-1984. Manzoor Elahi as paternal cousin of the vendors and co-sharer in the property in suit pre­ empted the sale and brought a civil suit against the vendee in the Court of Civil Judge, Attock. on 18-2-1985. Price paid for the property was also disputed and it was alleged that, in fact, it was sold for Rs. 4,000/- only and the rest was a false show. Pre-emption suit was resisted. Contest gave rise to as many as three issues which covered the dispute as to the superior right of pre-emption, fixation and payment of sale price and the market value of the property. On examination of the evidence, learned Civil Judge found for the plaintiff and gave him decree for the land sold, on payment of Rs. 96'/5/-to be deposited in Court till 29-61986. In regard to the superior right of pre-emption, Court found that the plaintiff as a nearer relation, had better right. The vendee preferred an appeal. Learned Additional District Judge relying on section 4 of the Muslim Family Laws Ordinance, 1961, found that the right of Tahir Masood vendee ; son's daughter of Sher Muhammad vendor was at par with the pre-emptor and to the extent of land sold by Sher Muhammad, dismissed the pre-emption suit. With the aforenoted modification, appeal Court gave decree to the pre-emptor for the land sold by Mst. Ghulab Jan only subject to payment of proportionate price i-:;, Rs 3,^25/-. Aggrieved of the decision given in appeal, pre-emptor hi- preferred this Civil Revision It was contended for him that appeal Ouri was erroneous in relying on section 4 of the Muslim Family Laws Ordinance, 1°61 to determine the order of succession between the pre-emptor and the grand son of Sher Muhammad vendor, particularly when vendee's mother was alive. After having heard the learned counsel at some length and examina­tion of the evidence available on record, I find that the contention raised has no substance. It is correct that the point raised is not covered by any authority and appears to be case of first impression. However, when, deciding the competitive claims in regard to the superiority of right of pre-emption under section 15 (b) thirdly—the Courts have only to keep in view the plaintiff and the vendee and no other relation of the vendor. Thf y have to take it that the vendor died and have to find out as to who A of the parties before them—the pre-emptor and the vendee—is entitled to inherit his property to the exclusion of the other. The person who is so entitled has a superior right of pre-emption. If he is a pre-emptor he gets a decree ; and if he is a vendee, the pre-emptor's suit is dismissed. On the <tber hand, if it is discovered that they are entitled to inherit equally, their right to pre-empt is declared to be equal and the pre-emptor fails. It was so held in Khan v. Mst. Zawar Nisa and another [AIR (29) 1942 Pesh. 22] and since then in series of judgments has be=:n accepted as correct statement of lav/. Refer Jalal Din v. Saeed Ahmad and others [NLR 1979 (Civil) SC 754]. Relationship inter se parties is not in dispute. Rather, it was conceded, that Tahir Masood was ^rand son of Sher Muhammad vendor. Section 4 of the Muslim Family Laws Ordinance, 1961 provides for the inheritance to grand children. It states that in the event of death any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as toe case may be, would have received if alive. Section 4 when applied to the facts of the case under .consideration, visibly shows that Tahir Masood vendee was entitled to [take a share in the inheritance of his grand father along with pre-emptor [and the latter could not totally exclude the former from the inheritance of •aforesaid Sher Muhammad, The view of law taken by the learned Additional District Judge, therefore, appears to be absolutely correct. This Civil Revision has, therefore, no force and is accordingly, dismissed in limine, (TQM) Petition dismissed.

PLJ 1987 Lahore 71 PLJ 1987 Lahore 71 [Rawalpindi Bench] Present : gul zarin kiani, J Qazi MUSHTAQ HUSSAIN-Petitioner versus Mst FAZAL JAN and 2 Others—Respondents Civil Revision No. 65D of 1986, heard on 21-4-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

O. XLI, R. 27—Additional evidence—Admission of—Court — Dis­ cretion of—Exercise of—Held : Discretion given to appellate court by O XLI, R. 27 to receive and admit additional evidence to be judicial one circumscribed by limitations specified in rule—Inherent lacuna or defect hindering doing of complete justice between parties discovered by court—Held : Court to readily rely on its power under rule 27 of O. XLI, CPC. [P 77]D (ii) Civil Procedure Code. 1908 (V of 1908)—

O XX, R. 5—Judgment—Contents of-Court— Duty of-— Held : Court to be obliged to consider evidence present on record, judge its value in light of legal principles applicable thereto and then pro­ nounce its final opinion—Held further : Result of cumulative effect of evidence on mind of court (only) to find expression in its final opinion. [P. 75]B (iii) Civil Procedure Code, 190f (V of 1908)—

O. XX, R. 5—Court—Judgment .by—Important document not-re­ ceiving adequate attention of court — Held : Court to be obliged to consider such document while deciding case. [P. 75]A (iv) Jurisdiction—

Exercise of—Court or tribunal vested with jurisdiction — Held : Exercise of that jurisdiction by higher court or tribunal without al­ lowing former to exercise it not to be permissible course in law. tP. 77]E (v) Pre-emption—

Right of—Held : Pre-emption being like any other right, same not to be discriminated on artificial grounds—Held further : Such right having blessings of legislature, courts not to invent ways and means to defeat its enforcement. [P. 75]C PLJ 1976 SC 493 ref. Mr. Muhamad Younus Bhatti, Advocate for Petitioner. Maulvi Sirajul Haq, Advocate for Respondent No. 1. Nemo for Respondents No. 2 & 3. Date of hearing : 21-4-1986. judgment The plaintiff broughi a suit for pre-emption on the ground that he was collateral of the vendor, co-sharer in the suit property as also owner of the estate and that his right of pre-emption was superior to that of the vendee. Court of first instance believed his evidence and decreed the suit in his favour on 30-5-1985. On appeal by the vendee, learned Additional District Judge, on re-appraisal of evidence found against the pre-emptor and dismissed the suit. Plaintiff-pre-emptor has come up in revision to this Court. Facts necessary and relevant for the decision of this applica­ tion in brief are : Suit property consisting of Kls 3 Mis. 17, comprised in Khewat No. t and 22 situated at Mouza Marri Danish-Mandan, Tehsil and District Rawalpindi, was purchased by Mat. Fazal laa from Barkat Hussain, its previous owner, for Rs. 16.000/- on 6-12-1981, through a registered sale deed. Qazi Mushtaq Hussain, pre-empted the sale on the grounds enumerated above. Vendee appeared, submitted written state­ ment and contested the suit. It was pleaded that vendee was a dis­ placed person from Islamabad, and sale in his favour was exempted from the law of pre-emption ; that the plaintiff by his words and conduct was estopped to sue ; that the suit was barred by lime. On merits, it was alleged that the suit property was purchased for Rs. 16,000 -. Right to pre-empt was also denied. Pleadings gave rise to the following issues. (1) Whether the suit is not maintainable against the defendant on the ground of being Islamabad aflfectee ? OPD. (2) Whether the plaintiff is estopped by his own act and conduct from filing this suit ? OPD. (3) Whether the suit is bajred by time ? OPD. (4) Whether plaintiff has superior right of pre-emption ? OPP (5) Whether Rs. 16.000/- was fixed and paid in good faith as a sale price of the suit land ? OPP. (6) Relief. Plaintiff, apart from himself, relied on the statement of Subedar All Ahmed, PW 1, produced 'Naqsha Jhar Padawar, Exh P 1, Gazette Noti­ fication dated 15-6-1976, Mark «A', copy of pedigree table Exh. P 2, khasra extract Exh. P 3, copy of Register 'Haqdaran Zamin\ for the year 1979-80, Exh. P 4 and closed his affirmative evidence. In defence, along-with Muhammad Razaq, Mukhtar-e-Aam of the vendee, Barkat Hussain, vendor also appeared as witness. On this evidence, learned Judge of the trial Court found for the pre-emptor and decreed bis suit. Issues 1 to 3 were not pressed before the trial Court and were accordingly, found against the defendant. On issue No. 4, which was a pivotal issue in the civil suit, Court found that the grandfather of plaintiff and that of the vendor Barkat Hussain, were first cousins, and, plaintiff, in order of succession was found to have superior right of pre eruption. Sale price paid for the suit property was not disputed. In these circumstances, suit was decreed on payment of Rs. 16,OUO as the price paid for the suit property. Vendee appealed and succeeded. On 15-12-1985, learned Additional District Judge found that evidence on record did not prove the relationship pkaded in support of right and after allowing the appeal dismissed the pre-ecaptor's suit. It appears, in course of the hearing of the first appeal, an application " for leave to lead additional evidence in the shape of pedigree table was also moved by Qazi Mushtaq Hussain, but it was not allowed. Against dismissal order of the pre-emption suit, plaintiff has come up to this Court in revision It is contended for the petitioner that the Court of appeal did not read the record in its correct and true perspectives inasmuch as not only the plaintiff's evidence but that adduced by the defendant himself ' proved the relationship alleged by the plaintiff. Learned counsel referred to the testimony of Subedar Ali Ahmed, PW 1, statement of Qazi Mushtaq Hussain PW 2, Barkat Hussain vendor DW 1, to submit that the pleaded relationship was adequately proved. Learned counsel invited the Court to the statement of DW 2 to point out that in his statement relationship was neither expressly denied nor even by implication. Defendant's attorney did not even think it proper to advert to the admission or denial of the superior right. His statement on the right of pre-emption is absolutely silent. It was also argued that apart from relationship, plaintiff had succeeded to establish that he was the co-sharer in the suit property and was also owner of the estate. Both these pleas were established but courts below altogether omitted them from their consideration. Vendee being a total stranger, plaintiff was entitled to succeed and pre-emptor's defeat, on appeal, cannot be justified with reference to the record. Learn­ ed counsel also argued that the Court of appeal was erroneous in refusing leave for additional evidence. Proposed additional evidence consisted of certified copy of pedigree table. Learned counsel submitted that the additional evidence was not only relevant but was also necessary for proper, correct and satisfactory decision of the controversy arising between the parties. Maulvi Sirajul Haq, learned counsel for the respondent addressed he Court, in defence of the impugned order, and argued that plaintiff in the absence of creditable evidence of an unimpeachable character had failed to prove his superior right. It was urged that very heavy onus was placed upon the pre-emptor which he had not succeeded to discharge. Mere oral statements of few witnesses, to support the alleged relationship, coupled with an admission of Barket Hussain, vendor was quite inadequate material to find for the pre-emptor. As regards plaintiff being co-sharer, learned counsel argued, that as the plaintiff in his own statement had not referred to it, the Courts below were justified in ignoring it. In the absence of an express statement by the plaintiff in this behalf, entry in Exh. P 4 could not be found to have been connected with the plaintiff. As for the ownership of the estate, learned counsel argued that no evidence wai led in support thereof. After hearing learned counsel and the examination of record, 1 find that this case requires a remit. Assertion of superior right proceeded on three grounds ; (1) plaintiff was related to the vendor ; (2) he was a cosharer ; (3) and was owner of the estate- Vendee denied the plaintiff's right to pre-empt. In this state of pleadings, it was for the plaintiff to prove the grounds taken and it was then only that he could succeed. Plaintiff has adduced oral as well as documentary evidence. Subedar Ali Ahmed, deposed that Qazi Musbtaq Hussain was a close relation of Barkat Hussain vendor and that their grandfathers were cousins. In cross-exami- - nation, witness deposed that Niaz Ali was grandfather of Barkat Hussain vendor and name of the plaintiff's grandfather was Qazi Nadir. However, be confessed his ignorance about the names of grandfather of Qazi Nadar as also Niaz Ali. Witness lurther stated that he was a 7th degree collateral f the plaintiff. Plaintiff himself as PW 2 stated that vendor was his cousin (lA».j <£_^)- Hi was, however, unable to tell the name of his great grandfather but deposed that the name of his grandfather was Niaz Khan. He also confessed his ignorance about the name of great grandfather of Barkat Hussain vendor. It may here be observed that plaintiff did not depose about his other two grounds which he had taken in the plaint i.e. that he was a co-sharer and owner of the estate. Apart from the oral evidence, plaintiff placed reliance on Exh. P 1 to P 4. As against this, defence consisted of statements of two witnesses i.e. Barkat Hussain, vendor DW 1, Muhammad Razaak son of the vendee and her general attorney, DW 2. As observed above, Barkat Hussain conceded that grand­ father of the plaintiff was cousin of his own grandfather. Words spoken did not bother even to formally deny what had already come on record. As regards pedigree table Exh. P 2, it does not heip the plaintiff. In the table, Barkat Hussain vendor is shown to be son of Said Hussain, whereas, Mushtaq Hussain was recorded as son of Fazal Hussain. Both Said Hussain and Fazal Hussain. are not inter-se connected. Exh P 3 is khasra extract and is not relevant to the issue. In Exh. P 4, copy o? jamabandi pertaining to suit property, khewat No. 1 & 22 are recorded as jointly owned by Barkat Hussain aiongwith others. In column 4 of the jambandi against kha?auni No. 48 of khewat No. 22, Mushtaq Hussain, Safdar Hussain, As! ' iq Hussain, Ikhtiar Hussain aiongwith some others are shown to be in po; ssion as co-sharers. In Exh. P 2, Mushtaq Hussain, Safdar Hussain, Ash q Hussain and Ikhtiar Hussain are shown to be brothers and are sons 01 razal Hussain. In this state of evidence, Court of first instance found that plaintiff was related to the vendor, and, in order of succession, was sntitled to succeed and acquire suit property. Trial Judge, however, did not refer to the other pleas taken in support of superior right On appeal, learned Additional District Judge found against the pre-emptor. Reading of the impugned judgment shows that learned appellate Judge did not take into consideration the admission of Barkat Hussain vendor wherein he had clearly conceded that plaintiff was related to him. Discussion was confined only to the statements of two PWs as also Exh. P 2. As regards additional evidence, learned appellate Judge observed "The learned counsel for the respondent has made the applicatiou today under Order XLI Rule 27 CPC and has sought the permission to produce the additional evidence. It is strange that the decree is in favour of the respondent and the respondent himself feels that the evidence was not sufficient to decree the suit in his favour and so. he has sought the permission for the production of the pedigree table under Order XLI Rule 27 CPC. In fact the respondent wants to fill up the lacunas of his suit. The pre-emption right is a very weak right and the pre-emptor cannot be allowed to deprive the vendee from his right that accrued to him on account of his laches. There is no question of allowing the additional evidence to the respondent". I have carefully examined the facts of this case as also the evidence ied by the parties. It is correct that the plaintiff m his own statement had not deposed that he was co-sharer in the suit property or that he was the owner of the estate. How­ ever, copy of jamahadi pertaining^to the suit property Exh. P 4 shows Mushtaq Hussain aiongwith Safdar.. Hussain, Ashfaq Hussain, Ikhtiar Hussain and some others as co-shars- This entry is recorded in culti­ vation column of the jamabandi. Column 3 which relates to ownership does not give the names of all the owners except Barkat Hussain, in khewat No. 1 and Barkat Hussain alongwith Zamir Hussain in khewat No. 22. Entries in annual record of rights attract presumption of truth and are an important piece of evidence. Plaintiff, in my opinion, was right in urging that despite omission in his statement, Court was obliged to consider the entries of jamabandi and give its decision as to whether the plaintiff in the light of entries in revenue papers was a co-sharer or owner of the estate Exh. P 4, an important document did not receive adequate attention of the Courts below. It is well established proposition of law that the Court is obliged to consider the evidence present on record, judge its value in the light of legal principles applicable thereto and then pronounce its final opinion, ft is the result of the cumulative effect of evidence on the mind of the Court that finds expression in its final opinion. What effect Exh. P 4 may have produced on the mind of the learned Judge, was a matter of guess only. One thing is cettain that the Court was to consider it, apply its mind and then find either way. I may also observe that the learned appellate Judge has not addressed himself correctly to the prayer of addi­ tional evidence, In declining the prayer, in my opinion, the mind of the learned appellate Judge was to a large extent influenced by fhe nature of the right sought to be enforced. This impression is available from the order of learned Judge when he says that pre-emption is a weak right. With respects, I do not subscribe to his view. It is not in dispute that in numer­ ous decisions, pre-emption has been described as a right which created serious inroads on the right to a free disposition of immovable property In my opinion ^ight is after all a right and so long as it has the blessings of the legislature Courts have not to invent ways and means to defeat its enforcement Pre-emption is like any other right and cannot be di<,crirr.i nated, on artificial grounds. Nature of pre-emptive right was examined .by Mr Justice Mohammad Afzal Chtetna, as his Lordship then was, in Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others (PLJ 1976 Supreme Court 493). Relevant observations are available at page 499 of the Report. An extract from the judgment of his Lordship shall surely help in understanding the nature of the right. It was observed :— "Before coming to the interpretation of the word "sues", it may be observed with respect that onr- a right has been created or conferred by the statute, a good ^eal of sanctity attaches to its protection, preservation and er icement, of course it has to be given effect strictly within the prescribed statutory limitations. With the utmost respect I find myself unable to endorse the view that it is a weak right which could be readily defeated on grounds of technicalities as held in Allahabad authorities including AIR 1954 All. 94. Therefore, the enforcement of right of pre-emption as that of any other legal right is not to be frustrated on flimsy pretexts or untenable grounds and in my humble opinion, it would be absolutely wrong to draw any legal distinction between the right of pre-emption and any other legal right so as to relegate the former to an inferior position. I am fully conscious of the phraseology employed in certain authorities describing the right of pre-emption as piratical or predatory. But this apparently dero­ gatory characterization is merely intended to highlight its rather unique feature of placing a crub on the freedom to sell one s property to party of one's choice. The restriction as stated earlier R based on salutory considerations of public policy and once re­ cognised by law has to be fully respected. Once this invidious distinction between the right of pre­ emption and other legal rights is ignored bringing it completely at par with the latter, with this changed frame of mind the Courts would no longer be prone to seek pretext to frustrate the right of pre-emption on flimsy technicalities including the absolute condem­ nation and irremediable penalization of a plaintiff for the initial errors of joining a stranger on the basis of a bonafide mistake which under the C. P. C. has been made curable even at the last stage of appeal. But as stated earlier this argument would be only collaterally helpful, the crux of the matter being the correct interpretation of the word "sues". In the earlier part of the judgment, his Lorpship also observed that right of pre-emption had its genesis in Islam. Following observations of their Lordships of Supreme Court in Siddique Khan and 2 others v. Abdul Skakur Khan and another (PLJ 1984 Supreme Court 262), at pages 282 — 283, as regards right of pre-emption, are pertinent. "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre-emption so as to have re­ course to section 3 of Limitation Act instead of proper application of Order VII, rule 11 (b) and (c) or for that matter, sections 148 and 1^9 CPC and section 28 of Court Fees Act, was the then prevailing notion that right of pre-emption was predatory. This view suffered considerable charge in post-partition period in Pakis­ tan . One reason being that it was against Islamic jurisprudence wherein this is a right as much enforceable as any other right and further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. in Gobind Dayal v. Inayatullah [ILR 7 All (1885) 775 at p. 782 (FB)] as follows :— "Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious us­ age or institution" within the meaning of section 24. I am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that pre-emption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe ." This Court has also adopted the rule that a pre-empt or cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad AH (PLD 1972 SC 59), and Hadayat Ullah v. Murad AH Khan (PLD 1972 SC 69i. Similarly, the approach in this behalf in a recent case Jan Muhammad v, Shukerudain (PLJ 1980 Lahore 694), is to the same effect. Thui, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter. The law as it is, has to be applied without any such consideration. Otherwise, it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitu­ tion, which is not permissible." Judged in the light of the afore-noticed statement of law, in my opinion, the approach of learned Judge to the prayer for additional evi­ dence was not correct. Had the true nature and import of pre-emption right been properly appreciated the decision of the Court may have been different. As 1 propose to remand the case, I may not like to burden this judgment with decided cases to show as to what are the eventualities in which the Court of appeal can invoke its powers and grant leave for addi­ tional evidence under Order XLI Rule 27 Civil P. C. However, in passing, it may be observed that if on examination of the record as it stands, some inherent lacuna or defect, is discovered by the Court which hinder doing of complete justice between the parties, the Court may readily rely on its powers under Rule 27 of Order XLI Civil P. C. The discretion given to the appellate Court by Order XLI Rule /7, to receive and admit additional evidence is not an arbitrary one but is judicial one circumscribed by the limitations specified in the rule. To my mind, first appeal has not been properly disposed of. In making the impugned decision, the learned Judge had altogether omitted from his consideration admission of Barkat Hussam DW 1 as also the statement of DW 2 wherein he had not denied plaintiff's superior right either expressly or by implication. With respects, the learned Court of appeal has not intelligently perused the record and in giving its decision had omitted from consideration some items of evidence possessed of probative value which may have affected the ultimate decision. One course open to this Court was to examine the evidence and decide the matter finally. Other course equally open was to direct a remit. I have decided to adopt the latter course which had its. own advantages for the parties. District Court in hearing first appeal, was a final Court of fact It is well established that when a Court or tribunal,, was vested with a iurisdiction, it is that Court or tribunal which has to exercise its jurisdic­ tion and exercise of that jurisdiction by a higher Court or tribunal without allowing the former to exercise it, may not be a permissible course in law For the above various reasons, I was inclined to disturb the impugned decision. Accordingly, decision uader appeal dated 15-121985, is set aside and the case is remitted to learned Distrist Judge Rawalpindi, who may either hear the appeal himself or entrust the same to any other competent Court to hear it. Court of appeal is directed to record its fresh findings on issue No. 4 only and in so doing, it shall consider whether in the facts and circumstances of the case, appellant can be allowed to lead additional evidence. Costs of this appeal shall be borne by the parties as incurred, (MIQ) Case remanded.

PLJ 1987 Lahore 78 PLJ 1987 Lahore 78 Present : muhammd ilyas, J pakistan day memorial committee through commissioner LAHORE DIVISION/CHAIRMAN PAKISTAN DAY MEMORIAL COMMITTEE and Another-Appellants versus Mian ABDUL KHALIQ & Co., CIVIL ENGINEER & CONTRACTORS, Lahore—Respondent C. M. No. 4874-C of 1984 (in FAO No. 23 of 1981), decided on 13-10-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

S. 152—Error arising from accidental omission — Correction of— Order called for (in circumstances of case) not passed due to in­ advertent omission on part of Court —Held : No party to be punished due to short-coming of court. [P 82iC (ii) Chril Procedure Code, 1J08 (V of 1908)—

S. 152—"Error"—Meaning of—Word "error" not defined in Code of Civil Procedure or in General Clauses Act, 1897 (X of 1897) which deals with interpretation of laws like said Code- Held: Courts to go by dictionary meaning of such words. (P. 82] A Shorter Oxford English Dictionary (Vol I, 3rd. Edn.) ref (iii) Civil Procedure Code, 1908 (V of 1908)-

-S. 152—Judgment—Amendment in—Delay in applying for—Effect of—Judgment of High Court containing no direction as to disposal of amount withheld by it —Petitioner, however, not sleeping over matter and taking steps to recover amount due to him — Held : Plea of negligence raised by other party to have do force. [P, 83]D (iv) Civil Procedure Code, 1908"(V of 1908)—

S. 152—Judgment of High Court—Amendment in—Judgment of High Court containing no direction for disposal of amount (of Rs. 11,97,215) withheld by it and profit payable thereon—Held : Such error in judgment having occurred due to accidental omission , High Court to competently make amendment in its judgment so as to give direction in respect of payment of sum and profit due thereon. [P. 82]B PLD 1961 Lah. 579 ; PLD 1973 Pesh. 182 ; AIR 1938 Oudh. 7 & AIR 1937 Oudh 191 ref. (v) Civil Procedure Code, 1908 (V of 1908)—

O. XLI, R, 5 — Appellate Court—Stay by—Security—Furnishing of—Order regarding—Effect of — Appeal — Decision of—Security furnished — Decision regarding — Sum of Rs. 11,97,215 and profit occurring thereon withheld by High Court so as to serve as security for execution of decree passed against appellant—Held: High Court to competently pass order regarding paynjent of sum withheld and profit payable thereon even after dismissal of appeal. [P. 83JE Mr. Hakam Qureshi & Mr Farook Zaman, Advocates for Appellants. Sardar Sami Hayat, Advocate for Respondent. Date of hearing : 13-10-1986. order This petition (C. M. No. 4874-C of 1984) has arisen out of arbitration proceedings initiated by the petitioner, Mian Abdul Khaliq and Co., resulting in the passing of a decree in its favour and against the respon­ dents, Pakistan Day Memorial Committee and another. The said decree was challenged by the respondents before this Court, by means of an appeal fFAO No. 23/81). They also submitted C. M. No. 484-C of 1981, under Order XL1, rule 5, read with section 151, of the Code of Civil Procedure, praying that the decree may not be executed during the pendency of the appeal. 2, While dealing with the stay, matter involved in C. M. No. 484-C of 1981, I made the following order on llth February, 1981 :— "Let the record be obtained for 15-3-1981. 2. The impugned decree shall not be executed for one month. If during that period the decretal sum is deposited by the appellant, the same shall not be paid to the decree-holder till further orders. If the decretal sum is not deposited as aforesaid and is recovered from the appellant by co-ercive process even then the samt shall not be paid to the decree holder till further orders. This order is subject to notice to the opposite side which shall issue for the above date''. 3. Subsequently, the respondents made C M. No. 922-C of 1981 seeking modification of stay order issued on llth February, 1981. It was pointed out by them that the respondents' deposit in the Post Office Saving Bank Account was far more than the decretal sum and that this deposit may be made use of for the purpose of the stay of execution instead of obliging the respondents to deposit the decretal sum. The precise prayer of the respondents was to the following effect :— "Under the circumstances, it is respectfully prayed that the order dated 11-2-1981 be suitably amended and the appellants be absolved from the responsibility of depositing the decretal amount in the executing Court and instead thereof a direction be issued to the Saving Bank, General Post Office, Lahore Account No. AD-5370 that the appellants would not withdraw the amount from its said account to the tune of decretal amount except with the orders of this Honourable Court. Likewise no amount out of the said account of the appellants would be drawn by the decree holder except with the permission of the Honourable Court". On this, 1 passed the following order on 14th March, 1981 :— "In view of the prayer made by the petitioners (appellants) a sum of rupees eleven lacs, ninety-seven thousand, two hundred and fifteen (Rs. 11,97,215/-) out of the amount desposited by the petitioners in Account No. AD-J370 with the Post Office Saving Bank, General Post Office, Lahore, shall not be paid to the peti­ tioners without the orders of this ourt. The interest payable to the petitioners on the said amount of rupees eleven lacs, ninetyseven thousnd, two hundred and fifteen (Rs. 11,97.215/-) shall also not be paid to the petitioners without the orders of this Court. Final order relating to the payment of the said amount and the interest accruing thereon by the time of the decision of this appeal will be made at the time of the disposal of the appeal. A report shall be obtained from the General Post Office for 12th April, 1981 in which it shall be stated whether an amount exceeding the aforesaid amount is lying in the aforementioned account of the petitioners and whether there is any legal hitch in the carrying out of the above orders by the Post Office. The decree under challenge shall not be executed till 12th April, 1981. This order is subject to notice to the respondents which shall issue for that date". Further order on the subject was made by me on 20th April, 1981 and it makes the following readings :— "Mirza Riffat Ali, Postmaster Saving, General Post Office, Lahore, has appeared and filed a report in which it has been stated that the appellant had deposited Rs. 30.00.000/- in Post Office Saving Bank Account No. AD-5370. Out of the above mentioned amount Rs. 11,97,215/- .including the profit accruing thereon by the time of decision of the appeal will not be paid to the appellant without the order of this Court". I may clarify here that in the above orders I used the word "interest" and •'profit" interchangeably. 4. n 2nd June. 1984, the appeal was dismissed in default in the presence of learned counsel for the petitioner (respondent in the appeal). On the same day, the respondents made a petition (C.M. No. 2814-C of 1984) for restoration of the appeal but that too was dismissed by me on 20th June, 1984, on merits. 5. Thereafter, on 10th July, 1984 the petitioner submitted C.M No. 3417-C of 1984 praying that "the Postmaster Savings, General Post Office, Lahore, may be directed to pay a sum of Rs. 11,97,215/- along witt the profit accrued thereon till date of actual payment" to the peti­ tioner. This petition was withdrawn by the petitioner on 11th July, 1984 stating that it "would first like to approach the authorities concerned to get the amount due to the petitioner". The petitioner then took out execution proceedings. In view of my order, dated the 14th March, 1981, the learned executing Court difl not touch the amount of Rs. ll,97,215/- in respect of v "aich that order had been passed. Another sum of R. ll.y 7,21.•)/-, lying in the account of the respondents was, however, ordered to be paid to the petitioner and it was accordingly paid. No order was made by tne learned executing Court in respect of the profit accruing on the sum withheld by m: saying that an order in regard thereto could be passed by this Court only. It was then that the petition in hand was submitted. The prayer made herein reads as under :— "In view of the submissions made above, it is respectfully prayed that the Post Master Savings, General Post Office, Lahore, may very kindly be directed to pay to the applicant a sum of Rs. 14.72.740/-as per details shown in Annex. B from out of the deposit of judgment-debtors lying in Account No. KD-5370 maintained with the Post Master Savings, General Post Office, Lahore. The future interest at the said rate from 1 11-1984 to the date of actual payment thereof may also be allowed from out of the said depo sit. The costs of these proceedings m»y also be awarded". 6. Petition before me was filed under section 151 of the Code of Civil Procedure. Besides issuing notice of this petition to the respondents, I gave them suo motu notice of looking into the matter under sections 152 and 153 of the said Code also. In this connection, I have heard learned counsel for the parties at great length, 7, It was contended by learned counsel for the respondents that with the dismissal of the appeal as well as the petition for restoration thereof, this Court has become functus officio and, therefore, it has no jurisdiction to entertain the present petition They relied on Order XX, rule 3, of the Code of Civil Procedure to support their argument. It was also their plea that the petitioner was negligent in the matter of obtaining order regarding payment of the sum withheld by this Court and the profit payable thereon and, therefore, it was nol entitled to the relief sought by it. Additionally, it was submitted by learned counsel for the respondents that the petitioner could not be awarded the whole of the said profit especially due to the rtason that the prayer made in the instant petition was for payment of interest at the rate of 7 per annum only, 8. Contention of learned counsel for "the respondents that provisions of section 151 of the Code of Civil Procedure were not available to this Court for allowing desired relief to the petitioner was not seriously contested by learned counsel for the petitioner It was, however, urged by him that this Court has power to amend its judgment, dated the 20th June, 1984, in the appeal, under sections 152 and 15j of the said Code, so as to give direction regarding payment of the sum of Rs. Il,97,2i5/- withheld by it and the profit accrued thereon. It was stressed by him that the petitioner was not negligent in seeking the above relief. He abandoned prayer for payment of interest in addition to the profit in dispute. It was further stated by him that the petitioner would ask for profit only for the period from 14th March, 1981 (the date of order relating to withholding payment of the sum of Rs. 11.97.2I5/-) till the date of the dismissal of the appeal. He also gave up all other prayers made ia the present petition. 9. Provisions of Order XX, rule 3, of the Code of Civil Procedure. relied upon by learned counsel for the respondents for the proposition thjudgment, dated the 2nd June, 1984, by which the appeal was dism;;, c: default, cannot be altered or added to, read as follows : — 3. Judgment to he signed. —The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing r, and, when once signed, shall not afterwards be altered or addca to, save as provided by section 152 or on review" Since Order XX, rule 3, itself permits amendment of a judgment under section 152, I will first proceed to see if I can amend the said judgment of mine under section 152 so as to allow the relief sought by the petitioner. 10. Section 152 reads as under :— "152. Amendment of judgments, decrees or orders. —Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties". 11. What is lacking in my judgment is that it does not contain order for payment of the sum of Rs. ll,97,215/- withheld by me, vide order dated the 14th March, 1981, and the profit accrued thereon. I do not think that the said deficiency in my judgment can be termed as clerical or arithmeticai mistake. I am, however, very clear in my mind that it was due to accidental omission that no direction with regard to the said sum or profit was given by him while passing the above judgment. Question which arises here is whether the said flaw or deficiency in my judgment can be treated as an error for the purposes of section 152. The word 'error has Jnot been defined in the Code of Civil Procedure or in the General Clauses JAct, 1897, which deals with interpretation of laws like the said Code. So, |we have to go by dictionary meaning of the said word. According to the Shcrter Oxford English Dictionary, Vol I, 3rd Edition, 1944, one of the me iings of error is 'flaw'. Undoubtedly, there is a flaw in my judgment inasmuch as it does not contain direction for disposal of the sum of Rs. 11.97.215/- and the profit payable thereon. There i», thus, an error in B my judgment. As noted above, this error occurred due to an accidental omission. I am, therefore, of the view that under section 152, I can make amendment in my judgment so as to give direction in respect of payment of the sum withheld by me and the profit due thereon. Similar amend­ ments in the judgments were allowed in Sher Muhammad and others v. Khuda Bux and another [PLD i961 (W.P.) Lahore 579]; Fazal Gul v. Mst .Farosha and 35 others (PLD 1973 Peshawar 18'), Puttoo Lai v. Sahu and others (AIR 1938 Oudh 7) and Maharaj Puttu Lai v. Sripal Singh and others (MR 1937 Oudh 191). 12. Since it has been held just above that necessary amendment in my judgment can be made under section 152, I would not like to go into the question whether that amendment can be allowed under section 151 or 153 also. 13. This brings me to the respondents' plea that since the petitioner was negligent in securing from me an order relating to payment of the said sum and the profit, it is not now entitled to an order in this behalf. It is true that learned counsel for the petitioner was present when the appeal was dismissed by me and he did not then ask roe to pass an order in the matter but it is also a fact that at that time it did not occur to me that such an order was called for. It was an inadvertent omission on my part. There is well-known rtiaxim of law that no party should suffer due to the act of Cour. The ostitioner shoirld, therefore, not be punished for my short-coming. As for delay in making the instant petition by the petitioner, it was explained by its learned counsel that since petition for restoration of the appeal was filed soon after its dismissal in default, the petitioner did not make the present petition immediately after the dismissal of the appeal. After the dismissal of petition for restoration of appeal, the petitioner filed CM. No. 3417-C/1984 seeking payment of Rs. 11.97.215/- and the profit payable thereon but withdrew it in the hope of getting the desired relief from the executing Court. The petitioner approached the learned executing Court and was able to recover the decretal sum under the orders of that Court. Learned executing Court, however, expressed its inability to pass any order in regard to the profit and, therefore, the petitioner came up with the instant petition. All thisj would demonstrate that the petitioner has not slept over the matter andJD has been taking steps to recover what was due to him. There is thus litiicj force in the plea of negligence raised by learned counsel for the res­ pondents. 14. There is yet another approach to the matter under consideration. As explained earlier, orders dated the 14th March, 1981 and 20th April, 1981. were made by me in consequence of C M. No. 484-C of 1981 filed by the respondents, under Order XLI, rule 5, read with section 151 of the Code of Civil Procedure, The said rule 5 reads as under :— "5. Stay by Appellate Court.— (I) AP appeal shall not opperate as a stay of proceedings under a deciee or order appealed from except so far as Court may order, nor shall execution of a decree be stayed by reason ,',y of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. Stay by Court \hich passed the decree. —(2) Where an appli­ cation is made for stay of execution of an appealable decree be­ fore the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (!) or sub-rule (2) unless the Court making it is satisfied ; (a) that substantial loss may result to the party applying for stay of execution unless the order is made ; (b) that the application has been made without unreasonable delay ; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be bind­ing upon him. (4) Notwithstanding anything contained in sub-rule (3), the Court may make an ex-pane order for stay of execution pending the hearing of the application.'' The sum of Rs. 11,97,215 and the profit accruing thereon were with­ held by me so that they may serve as security for execution of decree passed against the respondents. It was not disputed by learned counsel; for the respondents that if any sum is deposited by way of security, order regarding its disposal can bs made even after the disposal of the mattei in which the security is obtained. Looked from this angle also. I can pass order regarding payment of the sum withheld by me and the profit payable thereon, even after the dismissal of the appeal. 15. It may also be pointed out that if this Court declines to give direction with regard to disposal of the sum of Rs, 11,97,215 withheld by it and the profit due thereon, it will not only result in anomalous situation but would also be of no benefit to the respondent. According to orders, dated the 14th March. 1981 and the 20th April, 1981, the said sum and the profit cannot be paid to any of the parties without the orders of this Court. This means that if no order is passed in this behalf none of the parties will be able to withdraw the same. Further, in all fairness, the sum of Rs. 11,97,215 withheld by me should now be paid to the respon­ dents because a sum equal thereto has been paid to the petitioner, from the respondents account, in execution of the decree. It will, therefore, be in the interest of both sides if an order for disposal of the sum and the profit withheld by me is passed by this Court. 16. Lastly, 1 have to deal with the respondents' argument that the petitioner cannot be allowed to have the whole of the profit in question because it simply claimed interest at the rate of 7 x per annum in th instant petition. A careful perusal of the prayer of the petitioner, as reproduced above, would reveal that the petitioner asked for interest in addtion to the profit payable on the sum withheld by me and not in lieu of such profit, Now, before me, learned counsel for the petitioner has given up prayer in regard to the interest. The sum of Rs. li,97,215 was withheld b.y me by way of security. If the petitioner, which is a business concern, has been allowed to recover that sum after the passing of the decree, it might have earned much more than the profit which has accrued thereon due to its deposit in the Post Office Savings Account. I, therefore, see to cogent reason to refuse the whole of the profit to the petitioner. 17. It has already been mentioned that the decretal sum amounting to Rs. 11,97,215 has been recovered by the petitioner through the execut­ ing Court, without making use of the sum of Rs. 11,97,215 withheld by me. The sum of Rs. 11,97 /IS withheld by me, is therefore, released for payment to the respondedts. As regards the profit payable thereon the, whole of it, for the period intervening 14th March, 1981 (when the above amount was withheld) till 20th June, 1984 (when the appeal was dis­ missed), shall be paid to the petitioner. Judgment, dated the 22tb June 1984, is amended, under section 152 of the Code of Civil Procedure, so as to add the above direction thereto. Since learaed counsel for the petitioner has abandoned all other reliefs claimed in this petition, no order is made in respect thereofr The petition is disposed of accordingly with no order as to costs, (TQM) Order accordingly.

PLJ 1987 Lahore 84 PLJ 1987 Lahore 84 [Rawalpindi Bench] Present : gul zarin kiani, J MUHAMMAD AKRAM—Petitioner versus REHMAT KHAN and Another—Respondents Civil Revision No. 494 of 1986, dismissed on 3-12-1986 (i) Citil Procedure Code, 190S (V of 1908)—

S. 115—Discretionary jurisdiction—Orders in—Challenge to— Revision—Interference in—Action taken by Courts below result of proper and judicious exercise of discretionary jurisdiction—Held : Such orders not to call for further interference by High Court in its revisional jurisdiction. [P. 88]C (ii) Punjab Pre-emption Act, 1913 (I of 1913)—

Ss, 4 & 21—Pre-emption—Right of—Improvements effected by vendee—Compensation for—Held : Right of pre-emption being right of substitution, pre-emptor to take bargain as it stood at date of sale nothing more and nothing less—Pre-emptor, however, to compensate vendee for improvements bona fide effected by vendee on property purchased by him—Vendee going on to improve on property despite notice of claim by pre-emptor and protest raised— Held : Claim to compensation to become open to grave doubts (in such case). [P. t(>}A PLJ 1980 Lab. 388 & NLR 1979 Civil 352 considered (iii) Punjab Pre-emption Act, 1913 (I of 1913)-

Ss. 4 & 21—Pre-emption—Suit for—Vendee—Title of—Effect on- Held : Title to property remaining vested in him, vendee not to be deprived of user of his property unless pre-emptor succeeds in having his right established in court of law, complies with terms of decree and deposits decretal amount. (P. 87jfi Hafiz S. A. Rehman, Advocate for Petitioner. Date of hearing : 3-12-1986. order I am asked to take action on the revision side because the court below has allowed the vendee-defendant to raise construction on the property purchased by him from defendant No. 2. Facts which gave rise to the application in brief are :—One Fazal Rahim sold 1 kanal 5 mar I as of land to Rehmat Khan. Muhammad Akram, as a collateral, co-sharer and owner of the estate, pre-empted the sale and brought a civil suit in the Court of Civil Judge Jhelum. Alongwith the plaint, an application under Order 39 Rules 1 & 2 Civil P.C. for issue of a restraining order prohibiting the defendant-vendee from raising construction on the property as also from altering its character, was put in. Application was contested by the vendee. Grounds taken in opposition to the issue of a restraining order are available in application moved under Order 39 Rule 4 Civil P.C. which has been placed on the file of this Court. On 21-10-1986, Court accepted the application of the defendant and vacated the restraining order earlier issued by it. Reading of the order shows that the defendant's counsel bad given an undertaking that the proposed construction on the property in suit shall be raised on the risk and cost of the defendant, and, in case, Court found for the pre-emptor and decreed bis suit, defendant would lay no claim to compensation for improvements. Court relied on the statement of the counsel and vacated the restraining order as observed above. Pre-emptor was not satisfied by the action taken by the trial Court on his application for temporary injunction and took the matter in appeal before learned District Judge Jhelum. However, the appeal was heard by learned Additional District Judge, who, after examination of the merits of the cat as also the effects of undertaking given by the defendants did cot find much merit in the appeal and dismissed the same on 11-11-1986. This brings the plaintiff to this Court in an application under section 115 Civil P.C. Hafiz S. A. Rehmao, Advocate, on behalf of the petitioner referred to the decision in Arshad All and another v. Abdul Rashid & 2 others (PLJ 1980 Lahore 385), to contend that the vendee was not authorised to make permanent improvements on the property and to alter its character so as to affect eventual success of the pre-emotor. It was argued that till such time that the pre-emption suit was adjudicated upon on its merit! status-quo should be ordered to bs maintained so that neither party suffers any damage to his rights. Learned counsel also submitted that counsel for the defendants was not authorised to give an undertaking on behalf of his clients and the latter may not feel bound by what was said at the bar by their counsel. I am afraid, it is not possible for me to accept the conten­tions, for in my view, they are totally devoid of serious merit. It is well settled statement of law that right of pre-emption being a right of substitu­ tion, the pre-empt or is to take the bargain is it stood at the date of sale nothing more and nothing less. As to the improvements effected by the vendee, on the property purchased by him, pre-emptor is bound to compen­sate him only if they are made bona fide. But, where despite notice of claim by the pre-emptor, and protest raised, vendee still goes on to improve 'on the property, his claim to compensation may become open to grave doubts. The issue in regard to the right of vendee, to make improvements came up for consideration before this Court in Muhammad Shaft, etc. v. Kaneez Zohra Bibi ; [NLR 197>» Civil 352 (Lahore)] Mr. Justice Aftab Hussain, as his lordship then was, examined the issue and observed "In a suit for pre-emption, the defendant-vendee has an absolute right to enjoy his possession of the area in dispute for so long as the decree for pre-emption is not passed against him and is not executed. The reason is that he remains full owner of the property. If he makes any improvement before he comes to know about the pendency of a suit for pre-emption, the pre-emptor is bound to re-imburse him for the cost of improvement made before that time. If, however, any defendant persists in making improvements after attaining knowledge about the suit for pre-emption, he does so at his own risk. He cannot claim reimbursement, but can only be allowed to take away or remove the material which he has used in making the improvements provided it is separable. In either case an injunction order cannot be passed against him restraining him from making the improvements since it would interfere with his right to enjoy the property in dispute and the balance of convenience would be against the issuance of such injunction. Moreover, if the injunction is not issued, the plaintiff cannot suffer any loss or injury much less any irreparable loss or injury." However, in a later decision of this Court in Arshad All and anothar v. Abdul Raihid and 2 others (PLJ 1980 Lahore 388), a discor­ dant note was struck and the Court took the view that the pre-emptor was entitled to the restraining order prohibiting the vendee from altering the character of the property, subject-matter of the pre-emption suit, and, also from making any improvements thereon. Relevant observations of the Court are available in paras 7 to 9 of the Report. These read "There is much force in the contention of the learned counsel for the appellants. Obviously any improvement which tends to change the very nature and character of the suit land is not permissible. The principle of law laid down in Municipality of Tando Adam v. Khair Muhammad and others ; (AIR 1925 Sind 260) "It is true that Courts, as a general rule, refuse t» interfere by way of injunction to restrain a defendant from making such use as be may think fit of the property of which he is in possession. But in cer­ tain cases the Court would interfere with the rights of the defendant. It would certainly interfere when the defendant contemplates destruction of the corpus", is an established proposition and that I am in respectful agree­ ment thereof. On the question regulating the grant or otherwise of the temporary injunction the learned counsel for the resoondents relied upon Maharaja Bahadur Singh v. Seth Hukum Chand (AIR 1923 Pat. 209) and Ahmed Din v. Faiz All (PLD 1954 Lah. 414), and contended that the learned trial Court has rightly refused to grant the ad interim injunction to the appellants. I have, however, failed to understand how these decisions advance the case of the respondents any further. After bearing the learned counsel for the parties at some length, I have arrived at the irresistible conclusion that the appellants have established a good prima Jade case and any change in the nature and character of the suit land is bound to cause them great inconvenience in addition to causing irreparable loss and injury, whereas the respondents are not likely to suffer any inconvenience or irreparable loss, if such an injunction is granted. I, therefore, accept the appeal, set aside the order passed by the learned Civil Judge and direct that, during the pendency of the suit, the respondents shall not change the nature and character of the suit land either by them­selves or by selling it for building purposes." It appears that the earlier judgment of the Court in Muhammad Shaft's case was not brought to the no.ice of his lordship. It is not an appropriate occasion for me to examine as to which view is correct, the one expressed in Muhammad Shafi etc. v. Kaneez Zohra Bibi; NLR 1979 Civil 152 (Lahore) or that enunciated in Arshad AH and another v Abdul Rashidand others ; PLJ 1980 Lahore 388 and I leave its consideration to some other occasion. That notwithstanding, unless, the pre-emptor succeeds in having his right established in a Court of law, complies with the terms of decree and deposits the decretal amount, the title to the propertvl remains vested in the vendse and he cannot be deprived of the user of hisj property. No doubt the vendee cannot, by making improvements on the! property, make it impossible for a poor pre-emptor to pre-empt the) property. Bona fides of the vendee as also the laches oi the pre-emptor are the guiding principles in the matter. In this case, the defendantvendee appearing through a counsel has given an undertaking to the Court that improvements shall be made at his own risk and cost and that in case he was deprived of the proparty in the result of a Court decree, he shall not claim any compensation for the improvements made by him mean­ while. This undertaking on his part, should, in my opinion, be quite sufficient to safeguard the interests of the pre-emptor and to entitle the detendant-vendee to claim a discharge of the injunction. The pre-emptor would not in any way suffer by the injunction being withdrawn while the loss to the defendant if the injunction is allowed to remain in force would bs enormous and may not be repaired if the suit was eventually dismissed. Fears expressed in the course of hearing of the civil revision come out to be more imaginary than genuine. Applicant's interests have been amply safeguarded. After hearing the learned counsel at length and examination of the case law cited at the bar, 1 am of the firm opinion that the action taken by the two Courts below was surely the result of a proper and judicious exercise of discretionary jurisdiction and the impugned orders do not call for further interference by this Court in its revisionary jurisdiction. In result, revision fails and is dismissed summarily. (TQM) Revision dismissed.

PLJ 1987 Lahore 88 PLJ 1987 Lahore 88 Present: akhtar hassan, J Mst. MAJIDAH BEGUM—Applicant. Versus SA. ZULFIQAR ALI and Another—Respondents C. M. No. 5236-C/86 (in R. A. R, 12-C/85, in Civil Revision No. 1919 of 1984), dismissed in 2-12-1986. (i) Civil Procedure Code, 1908 (V of 1908)—

Ss. 114, 151 &O.XLVII, Rr. 1&9—Review application—Dismissal for non prosecution of—Application for restoration of—Dismissal of—Order of—Setting aside of—Application for—Competency of— Review application, dismissed for non-presecution, refused to be restored by High Court—Held • Applications for setting aside order (refusing to restore review application) appearing to have assumed shape of second review, such application under S. 151, CPC not to be sustainable fP. 90] A PLD 1972 Lah. 565 & PLJ 1977 Lah. 171 ref . (ii) Civil Procedure Code, 1908 (V of 1908)—

S. 115—Revision applications —Dismissal in default of—Restora­ tion of—Application for—Competency of— Revision application dismissed for non-prosecutions—Held : Revision being no remedy • of right, petitioner to have no right to ask for its restoration nor any application for such purpose to be competent. [P. 91JD PLD 1974 Kar. 339 & 1982—CLC 205 ref. (iii) Civil Procedure Code, 1908 (V of 1908)-

O. IX, R. 9—Dismissal in default—Setting aside of—Sufficient cause for—Court—Satisfaction of—Provisions of O.IX, R. 9 CPC talking only of satisfying court as to sufficiency of good cause for appearance—Held : Such satisfaction of court obviously to be subjective. [P, 90]B (iv) Civil Procedure Code, 1908 (V of 1908)—

O. XLVII, R, 9 — Review— Further application for — Com­ petency of—Exclusive reliance placed upon affidavit field in case— Un-inspiring nature of such affidavit, however, justifying limine dismissal of application— Held : Dismissal of application not to be dubbed to be error apparent on face of record to call for further review [P. 90JC Mr, Yusuf Ali Khan, Advocate for Applicant. Date of hearing : 2-12-1986. order This »misccilaneovs application has been brought under section 15! CPC for setting aside primarily an order of the 8tfa of November, 1986, by which I had refused to restore Review Application No, 12-C/ 85 earlier dismissed for non-prosecution on the 19th of October, 1986 at 1-10 p.m. 2. The main ground urged in support of this petition was that the impugned order was passed without lawful authority as also jurisdiction and was manifestly an attempt to cover up a fraud. 3. The background was that the petitioner fiisd Civil Revision No. 1919/84 which was dismissed in limine on 24-4-1985. Later be filed the aforesaid Review Application which, of course, was admitted by an order of the 8th of May, 1985 but ;vas dismissed for non-prosecu­ tion as indicated above. He then preferred C. M. No. 490I-C/86 for its restoration and the same too "was dismissed by me in limine by the impugned order, • 4. The ground taken up for restoration of the Review Application was that neither the petitioner nor his counsel Mr, Yusuf AH K.hao bad any notice of the date of hearing. The latter filed bis own affidavit ic support of vhe contention and relied upon decisions ,nad6 in bis own unreported cases, namely (1) Ghulam Yasin Khan etc, v. The Province Pi the Punjab etc.'(C. M. No. 73-C/86 in W. P, No. 1110/74), (2) Abdul -Axiz Khan v, C/,. Muhammad Ashraf etc. (C, M. No, 321/82 in I.CA, No. 59/7?) and another one no! specified, where hi affidavits urging the same ground of having rot received the Cause-list were accepted and the cases were restored. Unfortunately, I took the view that adopting the lame modus again rather made the matter sceptical and held thai the affidavit was not inspiring. Consequently, i refused io restore the Review Application. 5. Replying a question as to whether the present C M, Petition under section 151 CPC was tenable, Mr, Yusuf Ali Khan contended that t might be treated as a review application insofar as it sought so correct an error apparent on the record in the shape of relying upon wrong re­ ferences viz. Zulifqar Ali v. Lai Din etc. (19/4 SCMR 162) anr; Haji Ahmad Hassan v. Dr. Mi&n Aziz Ahmad etc. (1979 CLC 629} where re- his reading, notice had in fact been served on the party or counsel io confradisiioction to the present case in which its service was completely denied. Me observed that the correct law applicable was as enunciated in Mst. Baigan v. Abdul Hakeem etc. (PLJ 1982 SC 701 «= 1^82 SCMR 672), wrongly quoted as 620 in the Grounds of the C. M,) where despite notice neither the counsel nor the party appeared and yet the case was restored. He referred to Seth Shivrattan G. Mohatta etc. v. Messrs Muhammad Steamship Co. etc. (PLD 1965 SC 669} further maintaining that the law was not to punish the client for the fault of the lawyer and that avoidance to apply it to the case in hand really called for rectiOeation by review. 6. His third point to justify this aort of second review was that limine dismissal of the application for restoration without afford,ing him an opportunity to appear as a witness or to call the peon who allegedly failed to deliver him the Cause-list, was void and thai it had to be recalled suo motu by the Court according to the rule laid down in Muhammad Iqbal v. S.A.M. Khan etc. (PLD 1970 Lah. 614). 1 7. In my opinion, the present application does not lie. It appears to Aiassume the shape of a second review which in no manner could be sustain- 'ed, In Muhammad Yousafv.Tajammal Hussain etc. (PLD 1972 Lab. 565) it v,as held that the provisions of Order XLVII rule 1, CPC did not furnish a proper remedy for setting aside an order on the ground of fraud and further that section lal being a residuary section was also of no help. la Muhammad Hwssam etc. v. Fzrzand All etc. (PLJ 1977 Lah. 171) a Division Bench of this Court had laid down that "mere mistake of law or ircerrect exposition of law" was no ground for review. 1 bad rightly or wrongly held in the impugned order that there was negl ct on the part of the counsel in a't ieas.t not noting the case from the list displayed in the Bar Room; that it being either tbe third or fourth case in the series where he repeated precisely the same ground of failure to receive notice through the Peon, it appeared to be a "well considered modui of explaining non-appearance" on the part of the counsel and further that by reason of its frequent repetition, it bad lost efficacy. The conclusion was that the notice in fact was served upon the counsel and, therefore, both the cases relied upon were rightly invoked. . The contention that in Mst, Baigan's case, restoration was upheld by tie Supreme Court, is indeed not io tbe point, firstly because it was a ease of converse circumstances and secondly the affidavit there was not found to be false. No doubt the deponent of the affidavit there, being Clerk of the counsel, was examined at length, yet it was nowhere provided that such a statement be recorded obligatorily. Mr. Yusuf All Khan here relied only upon his own affidavit showing simultaneously that even earlier ha had been employing the same mode to explain his absence in other cases. This was the phenomenon which titled the impression against ihe veracity of the affidavit on its face value and, therefore, there was ample justification at least in my estimation to rule it out. ! had given Ibis reason, good or bad, and indeed reiterate it. 9. I was conscious of the fact that the stage to rebut this affidavit by tbe opposite partv had yet not reached and ordinarily 1 should have accept­ ed it. indeed its veracity was eroded by the learned counsel himself in poin­ting out that he had been doing it even earlier as a matter of course. Since reliance on the affidavit alone was placed, it was open to tbe Court to have scanned it without calling him or the Peon concerned as witnesses. The provisions of Order iX rule 9 CPC talk only of satisfying the Court as to sufficiency of good cause for non-appearance and obviously it has to be subjective. It was no stags to insist for recording formal evidence much less in a case where no intention was disclosed to rely upon it. If the petitioner or for that matter Mr. Yusuf Ali Khan rested content in placing exclusive reliance upon the affidavit, it could have been accepted or even rejected. They should have foreseen the consequences. In a way, this was all about from them and its un-inspirmg nature justified timing dismissal of the application. It could not be dubbed to be an error apparent on the face of the record to call for a further review. 10. Considerable stress was laid on sue mnu exercise of power by this Court for recalling the order as being void, I don think the deci­ sion in Muhammad Iqbar& case had any such import. It was given in the context of an objection of limitation. The rule laid down there was that no limitation applied to it and the Court could exercise its powers juo motu. The impression that a void order may be ignored or altered any time seems to have undergone a change In Mts$ r s Conferee Ltd. v. SyedAli Shah(PLD 1977 SC 399 = PLJ 1977 SC 479), it was ruled that even "a void order or an order without jurisdiction is only a type of an illegal order passed by a Court" and could not be "altered" under section 151 CPC I would, therefore, say that even suo motu power to tinker with any such order will be deemed to have been withdrawn as per the dictum of the Supreme Court. 11. The third error apparent on the record was said to be failure to apply the rule enunciated in the case of Seth Shivrattan G. Mohatta for not punishing the client for the fault of the counsel. This too is no more obtaining as lately after considering this very point in Mirza Muhammad Saeed v. Shahad-ud-Din etc (PLJ 1983 SC 563), it was observed that -'the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages". Thus, there was no idea of insisting for complying with the older view of the Supreme Court. 12. Last but not the least is the question of maintainability of not only the present C. M. Petition but also of the Review Application and its restoration. It is commoniy accepts i that a revision pitition is not a remedy of right and is conversely som^iim^ ex gratia. Tnerefore, if it is dismissed for non-prosecution, tKrs wi'.i b; no right to ask for its restoration, nor would any fornaol application for .he purpose be com petent Messrs Ganisons industries Ltd v. MiVra Akhlaque Ahmad (PLD 1974 K.ar. 339) and Afsl Mussarai Jehan v Mustafa AH Beg (19S2 CLC 205) may be referred to with advantage in support of this view. Obviously, if the revision itself could not be sought to be restored, how could a Review Application arising out of it, or for that matter, a second review of the order refusing restoration thereof be allowed ? The whole exercise on the part of Mr. Yusuf Ali Khan in this behalf was completely idle. 13. Some serious vitupreations have bsea made against me ia the petition under consideration. It appears that the learned counsel failed to convince the honourable Chief Justice to get this petition marked to any other Bench perhaps because of the compulsion that it had to be heard by me for the reason of having earlier disposed of not only the main revision but also the subsequint applications. Irs regard to the truth of the vituperation, the less said the bsttir because those aopear to be proverbial if not compulsive with the counsel. 14. As a result, I dismiss the application in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 92 PLJ 1987 Lahore 92 Present : riaz ahmed, J MUHAMMAD SAEED—Petitioner versus MUHAMMAD 1RFAN and Another—Respondents Civil Revision No.dismissed on 10-11-1986 (i) Ci?il Procedure Code, 1908 (V of 1908)—

O. XIV, R, I—Issues—Framiag of—Court—Duty of—Held: Judge to be duty bound to apply his mind and to understand facts before framing issues—Court onjitiiog to frame particular issue—Held : Parties to competently move court to get such issue framed—Held further : Refusal to frame issue amounting to ;! case decided", failure to frame same to be arssaabls to exercise of revisions! jurisdiction of High Court. [P. 95]A (ii) Civil Procedure Code, 1908 (V of 1908) —

-O, XIV, R. i & S. 99—Issues—Framing of—Failure to frame parti­ cular issue—Effect of—Omission to frame particular issue affecting dis­ posal of case on merits—Held : Case to be remanded for new trial — Si< -stantsal justice, on ether hand, when done in case and parties wHre not prejudiced by otaission to frame (particular issue), rkoision (of trial court) act to bs set aside nor case to be remanded tar new trial. [P. 95]B PLD 1951 Lab. 113 ; AIR 1941 Pesh. 59; PLD 1961 Lah. 35 ; AIR 1934 Lah. 300 ; 198 1C &90 & 20i 1C S38 ref, (Hi) Civil Procedars Code, 1908 (V of 1908) - ——O. XIV, Rr, 1 & 5—Issues—Framing of—Failure to raise objec­ tion—Effect of—Waiver — Principle of—Applicability of—Parties to suit well aware of points (requiring determination) leading evi­ dence case—Issue as to benami nature of suit, however, not agitated despite lapsing of period of three years between two stages of framiagof issues —Held : Petitioner to be deemed to have waived and abandoned agitation of such issue. [P. 96]C (i?) Punjab Pre-emption Act, 1913 (I of 1913)—

Si. 4 & 15—Pre-emption—Right of—Minor -— Suit by — Paternal aunt of minor in good faith attempting to secure property of her nephew by filing suit for pre-emption as next friend of minor—Held : Minor in case having superior right of pre-emption on account of his right to inherit property of his father (vendor), no exception to be taken to suit having decreed in his favour. [Pp. 96 & 97]D Mr, A, K. Dogar, Advocate for Petitioner, Date of hearing : 10-11-1986. order This civil revision has been filed to assail the orders dated 14-9-1981 delivered by Civil Judge at Faisalabad, whereby a suit for possession through pre-emption, instituted by respondent Muhammad Irfan against the petitioner was decreed, and also against the order dated 30-7-1986 passed by an Additional District Judge, at Faisalabad, whereby in appeal the judgment and decree passed by the Civil Judge was upheld. 2. The brief facts giving rise to the litigation between the parties are, that respondents No. 1 Muhammad Irfan a minor through his paternal aunt instituted a suit against the petitioner-vendee and respondent No. 2 Gbulam Mustafa the riva! pre-emptor for possession through pre-emption of the suit land. It was averred in the plaint that the suit land was alienated by Ghulam Hussain vendor in favour of respondent No. 1 in consideration of Rs. 10,000 vide registered sale deed dated 9-6-I9&Q. It was further pleaded that a fictitious price of Rs, 18,500 had been entered in the sale deed. The plaintiff Muhammad Irfan claimed that being son of the vendor Ohuiatn Hussain he had the superior right to pre-empt the aforessaid sale over all others. 3. Respondent No. 2 Ghulam Mustafa the rivai pre-emptor also instituted a suit for possession of the sust land through pre-emption claim­ ing that the suit property was his ancestral property and the vendor Ghularn Hussain was his real brother, and he being the co-sharer, had the right to pre-empt the sale, Ghulam Mustafa respondent 2-plaintiff further pleaded, that the suit instituted by respondent No. I Muhammad Irfan minor-pre-emptor was collusive and the tale was affecied secretly and no notice w&s given to him and a fietituious price of Rs. 18,500 had been entered in the sale deed. 4. The vendee-respondent No. i Muhammad S>)eed resisted the suit by maintaining, that he was tenant in possession of this suit iand at the time of sale, therefore, the plaintiff had no cause of action and since the suit property had not been partitioned therefore, the suit was not maintain­ able. It was further alleged by the vendee, that the suit was Buinami and was thus liable to be dismissed. The vendee-respondent No. 1 further pleaded, that the suit was collusive and the ciaim of the rival pre-emptor was not superior to his claiu. and respondent No. 1 minor Muhamma. Irfan and his next friend Parveen Akhtar has full knowledge of the same. The rival-pre-emptor respondent No 2 Ghulam Mustafa also resisted the suit alleging that it was collusive and was barred by time and bis right of pre-emption was superior to that of the plaintiff. 5. On 15-12-1981 the learned Administrative Civil Judge, Faisalabad framed the following issues out of the pleadings of the parties : — "(I) Whether the plaintiff has no cause of action and locus standi to file the suit ? OPD (Vendee). (2) Whether the suit is not maintainable in its present form ? OPD (Vendee) (3) Whether the suit is improperly valued for the purpose of court fee and jurisdiction, if so, what is tbe proper valuation ? OPD (Vendee) (4) Whether a sum of Rs. 18,500 was bonafide fixed or actually paid on sale consideration of the suit land ? OP (Parties) (5) If issue No. 4 is not proved, then what was the market pric of the suit land at the time of sale ? OP (Parties) (6) Whether the plaintiff is estopped to institute this suit by his con­ duct ? OPP (Vendee) (7) Whether the plaintiffs have superior right of pre-emption qua the defendants/vendees, and what is the order of priority inter-se the pre-emptors OPP- (8) Relief. 6 On 7-4-1983 the suits were consolidated and another Civil Judge, again framed the issues which were the same as cast before by his pre­ decessor the learned Administrative CivilJJudge on 15-12-1981. In the course of trial the parties were called upon to lead evidence for discharging the burden of issues. The counsel for the parties did not press issues No. 2, 3, 4 and 5. On issues No. 1 and 6 the learned Civil Judge discussed she evidence led by the parties at length. In support of his case on behalf of minor plaintiff respondent No. 1 Mst. Parveen Akhtar his paternal aunt entered the witness box. In cross-examination she ad­ mitted that she had no income, but stated that she will be raising the funds from the income of her husband. She also admitted io cross-examination that she had no ill-will towards Ghulam Hussain vendor. It was further stated by her that she was angry over the sale of the suit land. PW Subedar Insaf Ali alto appeared on behalf of the plaintiff who in cross-examination admitted thet Parveen Akhtar, the next friend of the minor plaintiff res­ pondent No. 1 was the wife of the brother of the vendor's wife. The witness further stated that the real mother of the plaintiff minor bad quarrelled with her husband and was living separately in Leiah. In crossexamination the witness further admitted that all the expenses were being borne by Mst. Parveen Akhtar. A suggestion was made to him that the suit was brought as a device by minor through Mat, Parveen Akhtar so that she can acquire the property but the suggestion was denied. 7. In the light of this evidence it was argued before the trial Court, that the suit was collusive and has been brought at the behest vendor Ghulam Hussain and since Parveen Alchtar paternal aunt of the minorplaintiff had no source of income or bad no money, therefore, the suit was malafide. These contentions were repelled by the learned trial Judge who came to the conclusion that no collusiveness had been proved on the record by the defendant side. The learned Civil Judge further observed that the plaintiff being minor aged 5 years had no wisdom to collude. Similarly, the record also indicates that defendants also failed to establish any collusiveness of Mst. Parveen Akhtar, the next friend of the minorplaintiff with Ghulam Hussain vendor. The witness produced by the defendant (DW 1) stated in his examination-in-chief that if the suit was de­ creed, the amount will be paid by Mst. Parveen Akhtar. The learned Civil Judge further observed that the suit of the minor-plaintiff for possession through pre-emption could not be defeated on mere inferences that Mst. Parveen Akhtar might be io league with the vendor, particularly when he had a legal right vesting in him under section IS of the Pre-emption Act. 8. On the question of estoppel the petitioner defendant-vendee Muhammad Saeed stated that before purchasing the land the plaintiff and the rival pre-emptor were asked to purchase it but they refused. The learned Civil Judge ignored the mere oral assertion and rightly so, because thtre was no corroboration of such assertion. The witness for the defendant DW 3 stated that they had no knowledge or information about the sale. 9. I have carefully gone through the evidence on the record and the pleadings of the parties and in my view the findings arrived at by the learned Civil Judge referred to above were justified on the record of the case. 10. Aggrieved by the judgment and decree delivered by the learned Civil Judge an appeal was taken and the same was dismissed vide impugned orders delivered by Additional District Judge Faisalabad. In course of the ar­ guments before the learned Additional District Judge the issues with regard to the estoppel, waiver and the sale price of the suit land were not pressed. The petitioner is aggrieved of the fact, that the learned appeliate Court did not consider the nature of the suit of the respondent being Benami. In this context, the learned Additional District Judge observed that since the issue, whether the suit is Benanti or not, had not been framed, nor the rival pre-emptor or the petitioner have moved the learned trial Court at any stage to frame such issue, therefore, it will be presumed that the issue had been given up. The learned counsel for the petitioner has taken serious exception to this observation and it is contended that the learned Additional District Judge was under obligation to give up finding on the Benami nature of the suit, because ample evidence existed on the record for the determination of the nature of the suit. 10. I have carefully considered the contention of the learned counsel and its determination depends upon the interpretation of Order XIV Rule 1 CPC, the relevant portion of the said provision reads as under :— "(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defen­ dant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue." 1 i. The above quoted provisions clearly show, that it is the boundea duty of a Judge to apply his mind and to understand the facts before farming the issues, but what about the situation, when a Judge omits to frame an issue. In my view, it is well settled law that in such eventuality, A it is up to the parties to move the Court to get the issues framed. It is further pertinent to mention that refusal to frame an issue is amenable to the exercise of revisional jurisdiction of this Court under section 115CtC because such refusal amounts to a'case decided'. The next crucial question is, that is it always fatal to the trial of the suit, if the Judge omits to frame an issue ? The answer to this question depends upon the consideration whether such irregularity is material one or not. If such omission has affected the disposal of the case on the merits, it will be a ground for re­ manding the case for a new trial, but if on the other hand, parties have opt been prejudiced by the omission and substantial justice has been done in the case, notwithstanding ttie omission to frame issues, the decision will not be set aside or remanded for a new trial. I am fortified in this view bv the judgment delivered by this Court in the case reported as Mehr Sakhsh and another v. Mania Dad and another (PLD 1951 Lahore 113) and Firm R. S Hira Singh Attar Singh v. Muhammad Afzal Khan etc. [AIR 194! Peshawar 58 (DB)]. The same view was expressed by this Court in the case reported as Sardamn and others v. The Municipality, Lyallpur [PLD 1961 (WP) Lahore 35], In another case reported as Mst. Alam Bibi and another v. Jawaya and others (AIR 1934 Lahore 300), Similar view was expressed, in another case reported as Dulhin Rajkishore Kuer v. Sheikh Muhammad Qayyum (198 1C 890), The same view was taken by Calcutta High Court in the case repoited as Hiranmoy Bhaduri v. Probat Kumar Pramanik {205 1C 138), it was observed that an irregularity which does not affect the merits of the case the appellate Court wiii not remand the case. The same rule of law has been laid down ia section 99 of the CPC which reads as under : — "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. 12. Applying the facts of the case on the touch-stone of law referred to above, 1 am of the view that in this case, the parties were aware of the points requiring determination and had led the evidence and the Court had decided the issues. It is farther pertinent to mention that twice the issues were framed during the trial, once on 15-12-1981 nd for the second time on 7 4-1983. It is thus, evident that in between these two stages of the framing of the issues, a period of three years has lapsed and if the parties had really been vigilent they could have agitated before the Court to frame an issue on the Benami nature of the suit. Not having done so, it is obvious that is will be deemed that the petitioner had waived and abandoned the agitation of the aforesaid issue. 13. It was vehemently contended by the learned counsel, for the peti­ tioner, that though specifically the issue was not framed on the Benami nature of the suit, yet the evidence existed on the record for its determina­ tion and the learned Additional District Judge not having discussed the said evidence had erred in exercise of jurisdiction. I have taken upon myself to go through the evidence. In examination-in-chief Mst, Parveen Akhtar the next friend of the minor defendant categorically asserted that she will pay the amount herself if the suit is decreed. The evidence also discloses, that Mst. Parvetn the next friend of the minor-defendant is also the land owner and the rival pre-emptor and the vendor are her real brothers. It is also on the record that the mother of the minor after quarrel, had left the house of her husband and Mst. Parveen was bringing up the minor child her nephew. No suggestion was given to her that the suit was Benami, On the contrary Jamal Dia DW 1 in examination-in-chief stated, that the suit if decreed the sale price will be paid by Mst. Parveen and it was Mst. Parveen who was instrumental in the institution of the suit. He has not even spoken a word about the suit being Benami. 14. Afttr careful consideration of the evidence on the record I am •of the view, that Mst. Parveen Akhtar be ; ng the paternal aunt has in good Djfaith attempted to secure the property of her minor nephew and the suit is |not at all Benami. No excepsion can b; taken to the suit being decreed in i favour of the respondent minor-defendant, inasmuch as under section 15| of the Pre-emption Act on account of his right to inherit the property ofl his father he had the superior right of pre-emption 15. While dismissing the appeal the decree was modified by the learned Additional District Judge to the effect that in case the respondent minor-defendant Irfan does not deposit the sale price, then the suit will be decreed in favour of respondent No. 2 the rival pre-emptor. In my view such {notification is also in accordance with law. For the foreging reasons, this revision petition has no substance and is diwmisicd in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 97 PLJ 1987 Lahore 97 ' Present: muhammad aslam mian, J Mtt. JHANDI—Petitioner versus Syed BAQIR ALL RIZVI and Another—Respondents Civil Revision No. 2128-D of 1986, dismissed on 22-11-1986 (i) Specific Relief Act, 1877 (I of 1877)- — —S. 27—Contract—Specific performance of—Suit for— Lis-pendens Principle of—Applicability of—Held : Principle of lis-pendens to be applicable (even) to suit for specific performance. [P. 102JB PLJ 1975 Lah. 262 ; AIR 1922 Cal. 421 ; 13 CWN 226 & PLD 1954 Dae. 158 ref. (ii) Specific Relief Act, 1877 (I of 1877)- S. 27 read with Transfer of Property Act, 1882 S. 52—Specific performance of contract — Suit for — Lis-pendens— Principle of Applicablity of—Suit for specific pcrformance^bejng not collusive one same rigorously contested by defendant No. 2—Held : Principle of lispendens having been rightly applied by District Judge, no exception to bs taken to it by High Court in revision. [P. 103JD (iii) Specific Relief Act, 1877 (I of 1877)— S. 27 (b)—Contract—Specific performance of—Transfer for value —Effect of—Transferee acquiring property in good faith without having notice of original contract before institution of suit for specific performance (and not durings its pendency) — Held : Provi­ sion of law contained clause (b) of S. 27 of Specific Relief Act to cater for such situation. [P. 100]A (iv) Transfer of Property Act, 1882 (IV of 1882)— S. 52— Lis-pendens— Principle of—Applicability of—Provisions of S. 52 of Transfer of Property Act, 1882 not specifically made applicable to Province of Punjab — Held . Principle enunciated by section being in consonance with principle of equity, good conscience and justice, same to be invoked (here also from time to time). (P. 102]C PLD 1957 Lah. 1054 & PLD 1973 Lah. 546 re/. Ch. Muhammad Rafiq Iqbal, A'dvocate for Petitioner. Date of hearing : 22-11-1986. order This Civil Revision arises out of a suit instituted on 23-6-76 by the petitioner against respondent No. 1 in the Civil Court at Lahore for a declaration that the petitioner was an owner of one half of House No. 7 Street No, 9 Dharampura, Lahore, along with a prayer for a permanent injunction restraining respondent No, 1 from dispossessing her alleging that she purchased the said house in consideration of Rs. 20.COO/- from Mst. Khurshid Begum respondent No. 2, widow of Safdar Hussain, through a Registered Sale Deed dated 1-1-76 respondent No. 1 had nothing to do with the property so vesting in her, as he had no right to the same. 2. Respondent No, 1 controverted the suit by claiming that he was an owner of one half ot the house in question while Mst. Khurshid Begum, respondent No. 2, was the owner of the other half. Respondent No. 2 executed an agreement dated 8 5-1974 to sell her share of the house in con­ sideration of Rs. 17250/- towards which respondent No. 1 had paid Rs 'iO.OOO/-. Since respondent No. 2 did not perform the agreement, resjv ndent No. 1 instituted a suit for specific performance of the agreement to s-sl which suit was decreed in his favour after a full contest by Malik Rwtam Ali, Civil Judge, Lahore, vide judgment dated 2ft-7-76. It was further maintained that during the pendency of the suit on his application for temporary injuction, the learned Civil Judge, seized of the matter, had issued on 5-3-19 5 an interim injunction restraining respondent No. 2 from alienating the property in question. As such respondent No. 2 was not competent to sell trie second half of the house on 1-1-1976 to the petitioner. After the written statement so made the petitioner filed an amended plaint i.e. on 3-10-1978. The petitioner in her amended plaint took up a ground that the decree dated 26th of July 1976 in favour of reipondcnt No. 1 and the Sale Deed executed and registered through the court under tke said decree in favour of respondent No, 1 were void ab initio being based on fraud, misrepresentation active concealment of facts, collusive, malafide without lawful authority and inoperative as such against the very rights of the petitioner. She also stated that ths decree obtained by res­ pondent No. 1 was not binding upon her as she was a bona fide purchaser for consideration without notice and in possession of tne suit property under the Registered Sale Deed dated 1-1-1976. Respondent No.2 who was joined at that stage as defendant admitted the claim of the petitioner in her written statement. Respondent No. 1 reiterated the defence as already taken by him and denied the allegations made by the petitioner as to fraud etc. He maintained that re­ spondent No. 2 was not competent to sell the other half of the house to the petitioner since she had been restrained through a temporary injunction from alienating the property during the pendency of the suit. 3. The learned Civil Judge was of the view that the sale by respon­ dent No. 2 of the property in question in favour of the petitioner stood proved and as the petitioner, and respondent No. 2 had denied, any knowledge as to the previous suit so respondent No. 1 ought to have put to them all the relevant documents, when they denied the facts, and proved the Sitne in accordance with law. According to him, the documents relied upon by respondent No. 1 could not be availed of against the petitioner and respondent No 2 Tha petitioner had been put into possession of the property in dispute by respondent No. 2 under the sale which was completed on 31-12-1975 in which circumstance that was for respondent No. I to implead her as a party to the suit with the result that the decree passed in favour of respondent No 1 had no legal effect against the petitioner. Respondent No. 1 could seek the cancellation of the sale deed in favour of the petitioner. The case was not covered by Section 47 CPC. The learned Civil Judge further entertained that Section 52 of the Transfer of Property Act as to the doctrine of Us pen dens has no application to the facts of the case. He decreed the suit of the petitioner vide his judgment dated 9-6-54. 4. The respondent No. 1 feeling aggrieved thereby filed an appeal in the court of the learoed District Judge, Lahore. The learned District Judge observed as to the observation of the learned Civil Judge that res­ pondent No. 1 should have sued for the cancellation of the deed of sale in favour of the petitioner, that the decision Syed Miihal Shah v. Kh. Rafi Ullah (PLD 1975 Karachi 930) upon which the learned Civil Judge had relied was not approved by the august Supreme Court in Muhammad Sharif v. Sughran Bano (1984 SCMR 1139). He was of the view that, that was not a case in which respondent No. 1 had merely set up a previous agreement to sell and had based his claim to the ownership of the property in question in preference to Afst. Jhandi piaintiff on that agreem;nt alone, but that was a case which took the support from the decree dated 26-7-76 having bsen passed for the specific performance of the said agreement against respondent No. 2 which suit had been duly contested by respondent No. 2 in which the temporary injunction had been issued on the assurance of Ch. Habib Ullah Advocate that his client Mst. Knurshid Begum was not minded to alienate the pro­ perty in dispute. The agreement to sell in favour of respondent No. 1 and merged into decree passed on 20-7-76 in favour of respondent No. 1 had as that was the case of the petitioner that the decree dated 26-7-76 had been obtained by fraud and misrepresendation, that was for her to have proved the facts which constituted fraud and mis-representation which was not done except that there was a bald assertion. The petitioner had step­ ped into the shoes of respondent No 2, so she could not escape the con­ sequence of the decree dated 26-7-76 merely by saying that she was not a party to the suit resulting in the decree. The failure of respondent No. 1 to confront her with the documents was not fatal since the on as to prove that the impugned decree dated 26-7-76 was a result of fraud and mis­ representation under issue No. 2 was on the petitioner because her claim was founded upon a deed of sale which had been executed during the pendency of respondent No. 1's suit. There was over-whelrcirjg evidence that the suit Sled by respondent No. 1 was hotly contested by respondent No. 2 which militated against the proceedings being in any way collusive. The petitioner had admitted that she had learnt of the suit instituted by respondent No. 1 from hsr mohalladars yet according to her she chose instead of becoming a party, to file her suit when the suit of respondent No. 1 was still pending which fact tended to support the case of respon­dent No, 1 that in point of fact thet petitioner not only knew of the suit .but had applied for being joined as a party and her application was reject­ ed by the learned Civil Judge's order dated 8-7-76. 5 The learned District Judge was also of the view that Section 47 CPC was a bar to the suit in so far as the asked the relief that respondent No. 1 " was not entitled to get possession of the suit property in pursuance of the impugned decree dated 26-7-76. As transferee from Mst. Khurshid Begum, the petitioner was her respresenrative and the decree was there­ fore, binding upon her, The relief then related to the execution and satis­ faction of the decree. Further the learned District Judge observed that that was of a little consequence that the petitioner was not a party to the previous suit for she had stepped into the shoes of respondent No 2 and as the latter during the pendency of the suit, was not competent to sell the house in question to the petitioner, the sale deed dated 1st January 1976 must have been held to be hit by the doctrine of lls-pendens and, therefore, of no legal effect as against respondent No. 1. Then in summing up the case, the learned District Judge was of opinion that, that was amply proved that respondent No. 2 had herself contested the suit through Ch. Habib Ullah Advocate and the petitioner having taken the risk of purchasing the property during the pendency of respondent No. 1's suit she must have beea held to be bound by the decree. The petitioner had learnt of the suit and hat implied that she had also learnt of the agreement dated 8th May 197", As to the assertion that the petitioner had been given the physical po<Cession of the house at the time of the sale in her favour, respondent No. 1 was not a party to the sale deed and the recital as to the possession therein was not binding on him so as to make it for respondent No 1 to implead the petitioner in his suit. The learned District Judge was not prepared in the circumstances of the case to take the words of the peti­ tioner and respondent No. 2 on the face value that the petitioner had been given possession by respondent No 2, The learned District Judge in accepting the appeal set aside the judgment and decree appealed from and dismissed the suit as brought by the petitioner with costs. This is vide judgment dated 12-10-1986, 6. The learned counsel for the petitioner has contended that the petitioner is a bonafide purchaser without notice of the agreement in favour of respondent No. 1 therefore, the said agreement cannot be enforced against her. The learned counsel has referred to the provision of Section il of the Specific Relief Act and has relied upon clause (b) to the section wherein it has been said that the specific performance of a contract may be enforced against "any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original •contract". This provision of law caters for the situation where the . [transferee acquires the property in good faith without having notice of the (original contract before the institution of a suit for specific performance }and not during its pendency, 7. The second contention of the learned counsel is that the sale made by respondent No. 2 to the petitioner even in violation of the temporary injunction does not impair the position of the petitioner as a bona fide transferee without notice. For this he has relied upon Saeeda Akhtar and others . Lai Din and others (PLJ 1981 Lahore 345) wherein it has been held that the violation of a prohibitory interim order preventing the sale of property merely entails penal consequences for the persons who violate the same but the order by itself does not detract from the validity of the sale. No benefit can be drawn from the decision so relied upon since, in the said decision the suits instituted were for the recovery of money on the basis of pronotes during the pendency of which an interim injunction restraining the defendant from alienating his land bad been passed but despite that he executed a sale deed transferring all his land to another, suffice it to note that there the land which was sold was not subject matter of the suit and there arose no implications as to the transaction having been hit on the principle of lis-pendens. As to the decision Belt Ram and Brothers v. Rain Lai and others [AIR 1925 Lahore 644(2)] next relied upon, the said observation holds true. This decision has also been referred to in Mst. Saetda Akhtar and others v. Lai Din and others (PLJ 1981 Lahore 345). 8. The next position taken up by the learned counsel for the petitioner is that the principle of lis-pendens is not applicable in a suit for possession through specific peformance, since a decree for specific performance declares the right of the decree-holder to have the property transferred in his favour covered by the decree and so long as the sale deed is not executed in favour of the decree-holder either by the judgment debtor or the court, the title of the property remains vested in the judg­ ment debtor. The reliance is placed on Muhammad Ishaq v. Muhammad Siddique (PLJ 1975 Lahore 262). In this case in an application filed for ejectment by one Muhammad Isbaq against Muhammad Siddique, the learned District Judge had accepted the appeal of Muhammad Siddique on the ground that since a decree for specific performance of the agree­ment with regard to sale of the property in question had been passed in favour of Muhammad Siddique, therefore, the question of occupying the shop in question by him as a tenant did not arise. He had further held that in view of the principle laid down in Section 53A of the Transfer of Property Act, the possession of the respondent over the shop would be that of an owner. It is in this regard that while disagreeing the learned Judge observed that "according to law a decree for spscific performance only declares the right of the decree-holder to have the property transfer­ red in his favour covered by the decree and so long as the sale deed is not executed in favour of the decree-holder by the judgment-debtor or by the Court, the title of thi property remains vested in the judgmentdebtor". As the application of the principle of ^lis-pendens is in issue in the present case, therefore, the said decision is not conclusive of the matter as nothing of the sort was in issue in it. In Jahar Lai Bhutra and others . Bhupendra Nath Basu and others [AIR 1922 Calcutta 421(2)], the plaintiff had sued Srinarayan Santra and others for specific performance of an agreement, the suit was decreed on the 25th of April, 1910. It was during the pendency of the suit instituted that the Santras sold away their interest to the defendants, it was held that the defendants were manifestly the purchasers ptmdente-Hte and the interest they purchased was bound by the decree in the suit for specific performance. The learned Division Bench in turn relied on Moti Lai Pal v. Priya Nath Ultra [(908) 13 CWN 226.(9) CLJ 9o)], in which it was held that a suit for specific performance of a contract for transfer of immovable property operated as iis-pendens. The said decision of the Calcutta High Court was relied upon in Atar Ali v. Abed AH and others (PLD 154 Dacca 158). In view of the above decisions, there is do force in the contention of Jthe learned counsel that the principle of lis-pendens is not applicable to a |suit/or specific peformance. 9. The last contention of the learned counsel is that the petitioner had no notice of the pendency of the suit, therefore, the sale to the petitioner remained un-affected, The finding of fact has been returned by the learned District Judge that the petitioner had the knowledge of the suit. As to the notice, reference can conveniently be made to Bellamy v. Sabine [( l857)l-De G & J 566)] in which Lord Cranworth, apart from the observation made as to the principle of lis-pendens by Turner, L.J. observed : — "It is scarcely correct to speak of lis-pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party". Maharaj Bahadur Singh v. Sh. Abdul Rahim (AIR 1922 Patna 394) where it has been held that no notice i? necessary in order to apply the principle of I is pendens which principle applies to immovable property. In Krishanji Pandharinath v. Anusayabai and another (AIR 1959 Bombay 475), it has been held that the application of the doctrine of lis-pendens does not depend upon the purchaser having notice of the suit, even if the transferee pendente-lite from a party has no notice of the suit, the rights of other party to a suit in which a right to immovable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer. 10- The idea behind the doctrine of lis-pendens has been expounded by Turner L J, in the above said case i.e. Bellamy v. Sabine |(1857) 1-De G. & J. 56b)] saying "it is as I think a doctrine common to the courts both of Law and Equity, and rests, as I apprehend, upon this foundation—that it would plainly be impossible thai any action or suit could be brought to a successful termination, if alienations, pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding". Though the provision of Section 52 of the Transfer of Property Act •has not been specifically made applicable to Punjab yet the principle c jcnunciated by the section ha? been invoked from time to time since it is in |;onsonaace with the principle of equity good conscience and justice. The said principle has been invoked in Pir Abdullah and 8 others v. Humayon and 5 others (PLD 1957 Lahore 1054) wherein it has been said that the principle underlying Section 52 of the Transer of Property Act is applicable to the case since no interest which is created during the pendency of the suit can effect any decree passed in the suit. To the same effect as to ths application of the principle there stands as an authority Haider Ali and another v. Akbar Ali and another (PLD 1973 Lahore 546) which has been relied upon by the learned District Judge. 11. The learned District Judge has rightly applied the principle of lis-pendens to which no exception cn be taken a$ the suit for specific peformance was not a collusive one, that was vigorously contested by respondent No.2. This civil revision is, therefore, dismissed in limine being without any substance. (TQM) Petition dismissed

PLJ 1987 Lahore 103 PLJ 1987 Lahore 103 Present : muhammad ilyas, J AZIZ DIN and Another--Petitioners versus QAD1R BAKHSH and 2 Others—Respondents Civil Revision No. 208-D of 1986, dismissed on 11-11-1986 (i) Cifil Procedure Code, 1904 (V of 1908)—

S. 115-Civil revision—Delay in filing of—Effect of—Earlier civil revision filed by petitioners dismissed for want of prosecution- Application for restoration of such petition also refused by High Court—Subsequently, petitioners filing another civil revision-Delay of about 18 months in filing such petition, however, not adequately explained—Held : Petitioners being negligent in prosecuting civil revision, subsequent petition (filed after 18 months of passing of impugned order) not to be entertained. [P. 106]D PLJ 1976 SC 159 rel. (il) Civil Procedure Code, 1908 (V of 1908)—

S. 115—-Civil revision—Dismissal in default of—Effect of—Second petition—Competency of - Petition for restoration of civil revision (dismissed in default) also dismissed by High Court — Held : Fresh revision to be competently filed within 90 days of passing of order sought to be revised—Filing of second civil revision delayed beyond 90 days—Held : Such delay not to be justified on ground of restora­ tion of earlier revision dismissed for want of prosecution having already been refused. [P. 106)8 (iii) Civil Procedure Code, 1908 (V of 1908)—

S. 115-Civil revision—Dismissal in default of—Restoration — Refusal of—Fresh petition—Limitation for — Second revision peti­ tion filed after about 18 months of passing of impugned order—No explanation for such delay except that petition for restoration of earlier civil revision (dismissed for want of prosecution) having also been refused—Held : Time spent by petitioners in regard to former civil revision and petition for restoration thereof not to be made use of by petitioners for getting over difficulty of delay. [P. 106]C (it) Civil Procedure Code, 1908 (V cf 1908)—

S. US—Revision petition—Limitation for filing of—Held : No period of limitation having been prescribed for tiling revision peti­ tion, civil revision should ordinarily be filed id High Court witfain ninety days). [P. 106JA PLJ 1976 SC 139 29 rel. 5A. Khalilur Relation, Advocate for Petitioners Mr. Athiq Husjam Malik, Advocate for Respondents. Date of hearing : 1 Ml-1986. order Before filing this civil revision, the petitioners filed Civil Revision No. 1057 of 1984 to challenge the order assalied herein. Civil Revision No. 1057 of 1984 was dismissed, on 28th November, 1984, for want of prosecution. On the next day, the petitioners made a petition (C.M. No. 5492-C of 1984) for restoration of the said civil revision but that petition was dismissed on 2nd December, 1984, on merits. Thereafter, the present civil revision was filed. When it came up before me, 1 asked learn­ ed counsel for the petitioners if it was maintainable despite the fact that the petitioners' application for restoration of the earlier civil revision was dismissed on merits. His reply was in the affirmative. He did not cite any authority to support his submission in this behalf. Since question relating to the competency of this civil revision was an important one, 1 thought of bearing the other side at pre-admission stage. The respon­ dents were, therefore, summoned. View expressed by learned counsel for the respondents was that the instant petition would have been com­petent if the petitioners had not sought restoration of their earlier civil revision without success. It was also urged by him that the present revi­ sion petition suffered from the defect cf laches and could, therefore, not be entertained. It was, however, maintained by learned counsel for the petitioners that this civil revision could be filed by the petitioners despite their failure to have their earlier civil revision restored. He cited British India Navigation Company and another v. National Security Insurance Company Ltd. (PLJ 1985 Karachi 298) to support hia argument. 2. In the case of British India Navigation Company and another, relied upon by learned counsel for the petitioners, it was observed by a learned Judge of the Sind High Court that after the dismissal of a civil revision in default, another civil revision could be filed. In this connection, reference was made by him to 1981 SCMR 940. Judgment relevant to the point in issue is, however, not at page 940 of the above report relating to Supreme Court cases. Learned counsel for the parties were unanimous that the judgment of the Supreme Court which was in the mind of the learned Single Judge was Municipal Committee, Jhelum v. Mau/vi Muhammad Shaft (1971 SCMR 740). In the case of Municipal Committee Jhthim, temporary injunction was issued by the trial Courts but it vacated by the appellate Court, in appeal. Order of the learned appellate Court was challenged before the High Court in civil revision. On this, ad interim injunction was issued by the High Court. Petitioner in the civil revision (respondent before the Supreme Court) however, did not deposit process fee for notice to the respondent in the civil revision (peti­ tioner before the Supreme Court) and also failed to enter appearance on the date fixsd before the Registrar of the High Court. Ad interim itay order was, therefore, re-called by the High Court. Therefore, be submitted another petition for grant of temporary injunction where upon injunc­ tion was granted by the High Court. 'Order passed in this behalf was challenged before the Supreme Court on the ground that the second peti­ tion for temporary injunction was barred by res judicata. This plea did not find favour with the Supreme Court. Observations of the Supreme Court in this regard read as follows : — "In this petition for special leave to appeal, the learned counselfor the petitioner has challenged the legality and the propriety of the order of the learned Single Judge on several grounds. The first is that the second application for a temporary injunction was incompetent after the dismissal of the first being barred by princi­ ple of res judicata and, alternatively, that if the second applica­tion is to be treated as one for the restoration of the first, it was barred by time. The first application was dismissed not on merits but on account of the default of the respondent to deposit the process for service of the petitioner, and, therefore, no ques­ tion arises of the applicability of the rule of res judicata or its principles. For his alternative submission, tke learned counsel for the petitioner relied on the provisions of rule 19 of Order XLI, CPC, which relate to restoration of appeals dismissed for non-prosecution, The contention of the learned counsel was that this provision will also apply to revision application under section 144, CPC, as there is n-o special procedure laid down in the Code for the revision petitions. It was submitted by him that the application for restoration of an appeal under Order XL!, rule 19, CPC, has to be made within 30 days of dismissal order, s provided by Article 168 of the Limitation Act, A reference to section i44 of the Code of Civil Procedure, which has been relied upon by the learned counsel, however, shows that if it is to be applied to the revision applications, the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to the revision petitions. Order IX, rules 3 and 4 of the Code, which will be attracted to the situation, would permit the institution of a fresh application as well as for the application for setting aside the dis­ missal order, leaving it to the plaintiff petitioner to choose hii remedy. We are of the view that there was no legal hurdle in the way of the petitioner to renew his application for a temporary injunction in the High Court in spite of the dismissal of the first for non-prosecution," The case ,of Municipal Committee, Jhelum, does not directly deal with the question' involved in th: instant case, Oae thing, however, is cletr therefrom that in view of the provisions of rules 3 and 4 of Order IX of the Cod» of Qvil Procedure just as a plaintiff whose suit is dismissed in default can either make an application of the suit or file a fresh suit, a person whose miscellaneous petition is dismissed for want of prosecution can either seek its restoration or make a fresh petition. It has, however, not been laid down in the said case that if a petition dismissed in default is not restored, a fresh petition would not be competent. 3. It has beeo held in Govind Prasad v. Har Kishe/i and others (AIR 1929 Allahabad 931). Daya Shankar and another v. Raj Kumar (AIR S91? Oudfa f-2 Tulshi Singh and another v. Sheosaran Rai and others (AIR 1926 Allahabad 678) and Bhudeo v. Muhammad Baikunthi (63 Indian Cases 239) that even if an application for restoraiion of a suit is dismissed under rule 3, a fre«h suit on the same cause of action is maintainable under rule 4, Similar view was expressed in Atta Muhammad v. Rehmat AH and others (PLD 1967 Lahore 372) in respect of a writ petition. It has, however, been ruled in Chintaman v. K\san and another (AIR 1929 Nagpur 2Sv) that in such cases period covered by restoration proceedings cannot be excluded under section 14 of the Limitation Act, 1V08 while computing for suit brought under Order IX, rule 4, of the Code of Civil Procedure. 4. No period of limitation has been prescribed for filing a revision petition. Jt has, however, been laid down in Manager. Jammu & Kashmir, State Property in Pakistan v Khuda Yar and another (PLJ 1976 Supreme Court 159 that a Civil revision should ordinarily be filed in the High Court within 90 days and if it is filed thereafter it should not be enter­ tained unless the Court is satisfied as to the reasons for delay, in view of the above quoted case-law relating'to different proceedings, I hold that if petition for restoration of a civii revision is dismissed, a fresh civil revision can be filed within 90 days of the passing of the order sought to be revised. However, if the filing of the second civil revision is delayed beyond 9t) days, it will not be open to the petitioner to justify such delay on the ground that he bad filed a civii revision earlier but the same was dismissed for want of presecution and its restoration was also refused. 4. As regards the second civil revision under consideration, it was filed after about l\ year of the passing of the impugned order. There is no explanation for this long delay except that previously ihe petitioners filed snosher civil revision against the said order but it was dismissed in default and petition for restoration thereof also did not meet with success. In view of pronouaeement made in the case of Chintaman, time spent by tbs petitioners in regard to the former civil revision and the petition for restoraiioa thereof cannot be made use of by the petitioners for getting over the difficulty of delay. Orders passed by this Court on their earlier civil revision and oa the application for restoration thereof indicate that they %ere negligent in prosecuting the civil revision. They cannot take advantage of their own wrong Since a long delay of above 1$ year in filing Ibis civil revisioa has not been adequately explained, it cannot be entertained in view of victuos in the csse of Manager, Jammu &, Kashmir, State Property in Pakistan and is, accordingly, dismissed in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 107 PLJ 1987 Lahore 107 Present: amjad khan, J KHUDA YAR and 4 Others—Petitioners Versus Rasaldar Malik NAWAB KHAN and 2 Others— Respondent Civil Revisios No. 1851-D of 1984, dismissed on 22-12-1986 (i) Civil Procedure Code, 1908 (V of 1908)— —-S. 99—Irregularity not affecting merits or jurisdiction -Reversal of decree on ground of—Bar of-—Dispute relating to court-fee not involving any question of jurisdiction—Such question also sot affecting litigation on its merits—Held : Decree passed in favour of respondents not to be interfered with by High Court [P. 110JC (ii) Civil Procedure Code, 1908 (V of 1908)—

O. VII, R. 1! (c) Plaint—Rejection of—Court fee—Deficiency of— Opportunity to make up—Failure to provide—Effect of—Opportunity to pay deficient court-fee not provided to plaintiffs—Held : Liability of suit to be taken off to follow only upon failure of plaintiffs to supply requisite stamp-paper on requisition from court to pay it within lime fixed for such purpose. [P. HQJX PLJ 1984 SC 262 rel, (ill) Court-Fees Act, 1870 (VII of 1870)— —.—Si. 6 & 28—Proper court-fee—Absence of payment of—-Effect of—­ Held : In absence of payment of proper court-fee, suit to remain incapable of being tried—Held further. Payment of court-fee being pre-condition to be fulfilled by plaintiff for having his suit tried, mere finding adverse to plaintiff recorded at end of trial or even dismissal of suit on that score not to achieve object of !»w. [P. 112V (iv) Punjab Pre-emption Act f 1913 (I of 1913)—

S. 30 and Limitation Act, 1908 (IX of 1908)—Art, 10—Pre­ emption suit—Limitation for—Date of taking of postesiion by vendee of property sold provided to be sine-qua non for limitation both, in Art. 10 (of Limitation Act) and S. 30 (of Pre-mption Act)—Held: Possession under such provisions should not merely to be "physical', but also to be "under sale" — Held further ; Taking of possession under Art. 10 to be " "of whole of property sold" while it be "of any part of such property" under S. 30 of Punjab Pre-emption Act. [P. I11J£ (?) Punjab Pre-emption Act, 191J (I of 1913)—

S. 30 read with Limitation Act, 1908 (IX of !908)—Art, 10—Preemptioa suit—Limitation—Objection about—Held : For purpose of sustaining objection about limitation on basis of possession, possession claimed by defending vendee to (be required to) stand two testi, first, that it should be 'physical possession' and second, that it should be 'under sale'. [P. Ill ]F (»I) Punjab Pre-emption Act, 1913 (I of 1913)—

S. 30 read with Limitation Act, 1908 (IX of 1908)-Arts. 10 & !2Q—Pre-emption—Suit for—Limitation V" Held : Limitation for filing suit to enforce right of pre-emption being contained in Art, 10 of Limitation Act, cases not coming under such Article to be governed by Art, 120 thereof— Held further : S. 30 of Punjab Pre­ emption Act to be provision supplementing those of Art, 10 of Limi­ tation Act. [P. 11C]D (til) Punjab Pre-emption Act, 1913 (I of 1913)—

S. 30 read with Limitation Act, 1908 (IX Of 1908)—Arts. 10 & 120—Oral sale—Pre-emption suit in case of—Limitation for—Salt not made by mutation in case when even physical possession not taken by vendee—Held : Oral sale of land not capable of physical possession not to fail under S, 30 of Pre-emption Act, 1913—Held farther : Art, 120 of Limitation Act, 1908 continuing to govern (such) suit, plaintiffs to have six years to file suit from date "right to sue accrued", (to them}- (P. UTjC (viii) Court-fee— —-Due court-fee—Recovery of—Order regarding — Trial court omit­ ting to have due court-fee paid—Held : Duty to do needful to rest upon higher court—Exchange, held further, in no case to be made to suffer for lapse of one court or other. [Pp. 112 & 113] AT (is) Court fee —

-Issue relating to—Finding regarding—Civil courts—Tendency of —Tedency growing in Civil Judges to record findings about issues rela­ ting to court-fee in final judgments and to dismiss suits on ground of their being unstamped or uodcrstamped—Held : Payment of courtfee being pre-condition to be fulfilled by plaintiff for having his salt tried, mere finding adverse to plaintiff recorded at end of trial or even dismissal of his suit on that score not to achieve object of law. [P. I12JH& J (s) Court-fee-- ——Weapon of technicality—U»e of question of court-fee as—Held : Question of court-fee being matter between subject and State, litigant not to be allowed to use it as weapon of technicality against feis opponent. [P. l\Q]B AIR 1918 PC 188 fef. Mr Zulfiqar Ali Bhatti, Advocate for Petitioner. Date of hearing : 4-5-1986. order Respondents No. I and 2 filed a suit on 1-3-1979, for poisessioe through pre-emption, with regard to 118 kanals 17 mar las of land, being the 4l/l92nd share of a joiat Khata of 531 kanals 3 marlas, situated in village Attra Souths tehsil Khushab ; on the ground of their being tha collaterals of the vendors and also co-sharers in the iand in suit. Vendeedefendants, the petitioners herein, contested the suit by denying their claim and raising the pleas also of limitation and incorrect valuation of the suit, which had been mentioned in the plaint as Rs. 3.GOO/- (on the basis of nett-profits of Rs. 200/- stated to have accrued during the one year immediately preceding the presentation of the plaint) to claim exemp­tion from the payment of Court-fee and none was paid thereon. Necesiary issues were settled and evidence was led. The Civil Judge decreed the suit on 17-5-1980 by deciding ail the issues in favour of the piaintiffs. An appeal thereagainst filed by the vendees was, however, accepted by the learned District Judge by remanding the suit on 22-6-3983. Consequent thereto, learned CiviS Judge again decided the suit on 3-10-1983 and, though he decided the remains og'issues in favour of the plaintiffs by holdlag that they are co-sharers in the suit land and the vendee-defendants are strangers, yet, he dismissed their suit with th? findings adverse to them recorded ander the first two issues relating to the valuation and limita­ tion. He held thai according to the statement of nett-profits, Rs, 2,536 48 was the correct amount and there could not be any reason for deduction therefrom of Rs, 1,268,24 as the tenant's share because the land had remained under self-cultivation and the correct figure to be reached was ihe 15 times of the entire proiits, which far exceeded the limit of exemp­ tion. As regards the question of limitation, he found that the land was under cultivation of the vendees in Rabi 1978 which would have been sown somewhere in ihe months of September-October i97? and hence, the suit instituted on 1-3-1979, was barred by time under Article 10 of the Limitation Act. 2 Aa appeal thereagainst tiled by the said plaintiffs has been accept­ ed by Mr. Abdul Ghaffar K.han, learned Additional District Judge, Khushab on 24-10-1984 to reverss the findings of the trial Court oa both the issues and, setting its decree aside, he decreed their sail. The dispute about the valuation of the suit was disposed of by him with reference to his order passed on 10-10-1984 whereby he bad accepted the application filed, as under protest, by the plaintiff-appellants before bim to be permit­ ted to pay the Court-fee worth Rs. 2, 833,64 on the appeal, on the basis of the valuation assessed by the trial Court, who, however, had not pro­vided them an opportunity to pay the requisite Court-fee on their plaint, With reference to ths said order, the learned Additional District Judge observed that neither of the parties had advanced arguments thereabout and they were unanimous that the question of limitation alone had to be considered by him. Then he took up the issue about limitation and the sale in suit having besn made by means of a consent decree passed by the CiviS Court oa 5 3-1978, he observed that the vendees had not produced any documentary evidence to prove that the saie may have taken place at any time earlier than 5-3-1978, thersfore, he concluded that the possession of the vendees, admitted by the witness of the plaintiffs to be held by the vendees as tenants in the previous crops, could not be regarded to be proved to have been taken by them under the sale. Learned Additional District Judge considered the suit to be within time from the date of decree (5-3-S978) and accordingly reversed the trial Cours's findings about limitation. Vendees have now come up to this Court on revision, 3. Learned counsel has argued thas despite the liability of the plaint to bear the Court-fee of the value of Rs. 2,853,:4 on a correct valuation, the plaintiffs acted dishonestly in not paying any Court-fee on the plaint on account of an incorrect representation made to the effect that the valua­ tion had to be worked out on only the half of the nett-profits and that the ggure thus reached would be exempt from liability of payment of Courtfee. On this premises learned counsel maintain! that the suit of the respondent had been rightly dismissed by the trial Court and did not deserve to be decreed in their appeal. There is no merit in this contention. I have already upheld the appellate Court's order dated 10-10-1984, relat­ ing to the question of Court-fee, in Civil Revision No. 1662 of 1984, It is noticed aiso that learned trial Judge had not provided opportunity to the oSaintiffs to pay toe deficient Court-fee in accordance with his findings, ultimately upheld Such was the requirement of clause (c) of rule 11 of Order VH of the CPC and liability of the suit to be taken off could have followed only upon the failure of the plaintiffs to supply the requisite stamp-paper on a requisition from the Court, to pay it within such time as may have been fixed for the purpose. This course was not adopted by the trial Court who, after coming to the conclusion that the plaint was liable to be properly stamped, should have proceeded to pass an order under Section 10 of the Court-Fees Act, to direct the payment of requisite Courtfee. A similar power vested so the trial Court under Section 6 of the Court-Fees Act read with Section 149 of the CPC but even this was not adverted to and the straight-out dismissal of the suit was clearly wrong. To the above effect are aiso the views expressed by their lordships of the Supreme Court in Siddigue Khan and 2 oihu's v. Abdul Shakur Khan and another (PLJ 1984 SC 262). Question of Court fee is a matter between the subject and the State and a litigant cannot be allowed to use it as a BiA'eapon of technicality against his opponent, as has been held in Rachappa Subrao Jadhav Desai v, Shidappa Suhrao Jadhav Desoi (AIR 1918 PC 188). Since the dispute relating to Court-fee does not involve any question of junsdicdiction of the Court nor does it affect the litigation on its merits, which have not been assailed before me by the learned counsel, therefore, by virtue of Section 99 of the CPC, the decree passed in favour of the respondents cannot be interfered with. Contention of ths learned counsel is, hence, repelled. 4. Learned counsel has next argued that the suit of ths plaintiffs was barred by time under Section 30 of the Punjab Pre-emption Act in so far as it had aot been filed within one year of the delivery of possession to the endees, as had even been admitted by the witness of the plajntiffs. This icontention is clearly misconceived in the facts of this case and cannot be (sustained. Limitation for filing of suits to enforce the right of prejemptiott is contained in Article !0 of the Limitation Act and those cases DJwhtch do not come under this Article would have fallen to be governed 'by Article 120 thereof, which is a residuary provision but section 30 of the JFunjib Pre-emptios Act, 1913 was enacted as a provision supplementing Ithose of the said Article 10. For facility of reference, the relevant parts of these three provisions, so far as they are in point here, are reproduced aa under:— (i) Article 10 of the Limitation Act provides the limitation of one year to run from the date— "when the purchaser takes, under the sale sought to be impeach­ ed, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered," (ii) Article 120 of the Limitation Act provides a period of 6 yean for a "suit for which no period of limitation is provided eliewherc in this Schedule", to run from the date— "when the r»ght to sue accrues." (iii) Section 30 of the Punjab Pre-emption Act iays down:— "la any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act, shall notwithstanding any thing in Article 120 of the said Schedule, be one year— (!) in the case of a sale of agricultural land or of village immov­ able property, frouj the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier;" A conjuncted reading of the above provisions leads to the results as under :— (a) that Article 10 of the Limitation Act is the primary provision to apply in pre-emption suits ; b) that in cases whereto Article 10 may not apply, limitation would be liable to be governed by Article 120 thereof: and (c) that the application of Article !20 to such suits for pre-emption stands curtailed by the provisions of section 30 of the Punjab Pre-emption Act to the extent that a given case may fall thereunder, because it is a provision in the nature of an exception to Article 120 of the Limitation Act, The date of taking of possession by the vendee of the property sold is provided to be the sine-qua-nan for limitation, both in Article iO and Section 30 which has not merely to be 'physical' but has also to be -under g the sale.' The distribution, however, is that whereas under the former provision it has to be'of the whole of the property sold'; under the later one it may be 'of any part of such property. Hence, for the purpose of sustaining the objection about limitation! on the basis of possession, whether under one of the above provisions or! the other, the possession claimed by the defending vendee has to stand! two tests, first, that it should be "physical possession and' second, that' it should be 'under the sale". 5. More than one situation can be visualized where a property sold may aot be capable of being physically possessed by the vendee. For instance, it may be in the possession of a mortgagee or be in the occupa­ tion of a tenant. Another example thereof stands provided by this case wherein the land sold, as mentioned already, is the 4!/192od share.of a joint Khsta land measuring 5 52 kanals 3 marlas, amounting to 118 kanals 11 marlas which cannot be a perceptible entity to become a tangible property and be capable of being physically possessed. I have already considered this poiat in Wall Muhammad v. Boss Muhammad and another (FuJ 1986 Lftfa, 186) wherein a conclusion was reached that such a fractional share a property is incapable of physical possession. As such, in this ease, first part of the third column of Article 10 doe§ not apply and since this is not a case of sale by a registered deed, there­ fore, even the second part thereof does not get attracted and the ease will fall under Article 120, provided its application thereto is not excluded by the provisions of Section 30 of the Punjab Pre-emption Act, 1913 which, in relation to cases regarding agricultural land, provides the limitation to run from the date of attestation of mutation or from the date of taking by the vendees of physical possession under the sale of any part of the pro­ perty sold, whichever date be earlier. Neither of these conditions exists in this case because sale is not made by a mutation and, as has been held above, physical possession could not h'ave been taken and muchless so, under the sale. Hence, this case of oral sale, of such land as is incapable of physical possession, though confirmed by a Civil Court's decree, does not fall under Section 30 of the Act and, for this reason, it cannot be regarded to have been excluded from the perview of Article 120 of the Limitation Act which therefore will continue to govern the luit of the plaintiffs who. thereunder, had six years to file the suit from the date that .'the right to me accrued to them. Since no date other than the one of the passing of the consent decree (5-3-1978) bai even been tuggested as the one on which the sale in suit may have become known to the plaintiff! and it goes without saying that no one can be said to have had a Tight to sue' without his having known it, therefore, there could not be any question of this suit becoming barred by time. Hence, karned Additional District Judge has rightly reversed the trial Court's finding on the point by holding the suit of the plaintiffs to be within time and even though he has viewed the matter from a different angle which, of course, I do not find either complete or quite correct, yet, his ultimate conclusion is not wrong and the decree passed by him is correct. Contention of the learned counsel fails and is accordingly repelled. 6. However, before parting with this file, it must be observed that it has been frequently noticed that, of late, there has grown a tendency in the Civil Judges to record findings about the issues relating to Court-fee in the final judgments to, in the end, dismiss the suits op the ground of H f heir being unstamped or understamped, on the asiumptioii perhaps that the concerned plaintiff may have been adequately punished in his suit having been dismissed, whether on that ground or another. This is not the correct disposal of a suit. Policy of the law is that payment of proper Court-fee is a pre-conditton to be fulfilled by a plaintiff for having his suit tried and a mere finding adverse to a plaintiff recorded at the cod of a trial or even the dismissal of his suit on that score does not achieve the object because, as has been laid down in Sections 6 and 28 of the Court- Fees Act, in absence of payment of proper Court-fee the suit remains tncapitble of being tried and, still, in such a disposal, a trial in fact takes place. Hence, the concerned Judge hasnot to remain content merely with ihe decition of the relevant issue, one way or the other, but hai alio to enforce it under provisions referred to above which should be kept in view to hold up the decision of the relevant suit until after the requisite Court-fee is paid and where so is not done despite opportunity provided in accordance with law for its payment and the suit ha» per force to be dismissed on account of default even thea the obligation to direct that the due Court-fee will bj recovered from the concerned person still remains. Where, by mistake or inadvertence a trial Court omits to have the due Court fee paid, there the duty to do the needful rests upon the higher! Court but the exchequer cannot be made to suffer for the lapse of one| Court or the other. 7, Since the plaiat in this suit continues to be unstamped despite its liability to bear Court-fee of the value of Rs. 2.853.54, and neither of the two Courts below has passed any order for its payment, therefore, I am obliged to exercise power under Section 28 of the Court-Fees Act for recovery from the plaintiffs of the said Court-fee. Accordingly, it is directed that Collector, Khushab will immediately recover an amount of Rs. 2,853.5- from the plaintiffs on that count and since the earlier appeal filed in this case by the vendes in the Court of Syed Sibtain Raza Naqvi, District Judge, Khushab (decided on 22-6-1983) had also to bear the Courtfee of the same value which was not paid thereon, therefore, the learned Collector will also similarly recover an equivalent amount even from the present petitioners on that count- 8. There does not emerge any case for exercise of revisional jurisdic­ tion. Hence, dismissed in limine, (TQM) Petition dismissed.

PLJ 1987 Lahore 113 PLJ 1987 Lahore 113 Present : amjad khan, J Haji MUHAMMAD—Petitioner versus INAYAT—Respondent Civil Revision No. 2488-D/1986, dismissed on 28-12-1986 (i) Limitation Act, 1908 (IX of 1908)— Art. 10—Pre-emption—Suit for—-Limitation—Sale in case made by means of registered deed relating to fractional share of joint khata of holding—Held . Suit filed within one year of date of regis­ tration of sale deed to be within time under Art. 10 of Limitation Act, 1908. [P. 114}A PLJ 1986 Lahore 186 ref. (ii) Punjab Pre-emption Act, 1913 (I of 1913)-

Ss. 4, 19 & 21—Pre-emption—Right of—Suit for enforcement of— Waiver—Defence of-Held: Prospective pre-emptor being not expected to act in vacuum, conscious choice to reject proposal for sale to him not to be made by him without his being apprised of price he be required to pay for bargain. [P. 114J5 PLJ 1986 Lab. 150 ref. (iii) Punjab Pre-emption Act, 1913 (I of 1913)—

Ss. 4 & 21—Pre eruption—Right of—Suit for enforcement of— Expenses of litigation being borne by another person—Held : Suit itself not to be held to be benami merely because of such fact alone. [P. 115]C 1986 CLC 2176 & PLD 1967 Lab. 703 ref. Mr. Abdul Majid Khan, Advocate for Petitioner, Date of hearing : 28-12-1986. order A sale of 2 kanals 12 marlas of agricultural land, oui of a joint Khata, situated in village Ikhlasgarh, tehsil and district Gujrat was made in favour of the petitioner by means of a registered sale-deed dated 7-8-1979 for an ostensible sale price of Rs. 25,COO/-. It was sued out on 16-3-1980 by the respondent to be pre-empted od the grounds of his being a collateral heir of the vendor and also being a co-sharer ia the land in suit, Vendee denied bis claim and resisted the suit on a number of pleas including those of estoppel, collusion and limitation. Necessary issues were settled and on the basis of evidence led by the parties learned trial Judge decreed the suit on 9-3-1985 by repelling the objections. 2. An appeal thereagainst filed by the vendee having been dismissed by the learned District Judge on 9-12-1986 by affirming the decree of the trial Court, he has now come up to this Court on revision. 3. Learned counsel contends that the trial Court's findings under issues No. 2 to 4 had been duly assailed in the memorandum of appeal below but there is no finding thereabout recorded by the learned District Judge presumably because he had passed his judgment quite sometime after the hearing of arguments. There is no substance in this submission because it is recorded in the appellate judgment that no other issue had been argued. Learned counself did not himself represent the petitioner in the appeal below and has not furnished the affidavit of the concerned counsel. Hence, there is no reason to think that the said issues may in fact have been argued there, However, 1 have heard bis arguments on those issues. It is argued that the suit of the respondent was barred by time in so far as it had been filed more than one year after the petitioner's entry into possession of the land in suit and that the pre-emptor was acting Benami and was also estopped to file the suit on account of his conduct. 4. I do not find any merit in either of the above contentions. As observed already, sale in this case was made by means of a registered deed jdated 7-8-1979 and relates to a fractional share of a joiat Khata of holding [which, as has been found ia Wall Muhammad v. Dost Muhammad and "another (PLJ 1986 Lahore 186) cannot be a tangible property to become capable of being physically possessed. Hence, the suit filed on 16-3-1980, within one year of the date of registration of the sale deed, is undoubtedly within time under Article 10 of the Limitation Act To sustain the plea of estoppel learned counsel has invited attention to the statements of the two witnesses produced by the petitioner and also to his owe statement made as DW 3 wherein an assertion has been made to the mere effiiJ t'lat the plaintiff was asked to purchase the land but he declined. Neither of these witnesses has either mentioned the sa!e price nor asserted even that the alleged offer to the plaintiff may have been made for purchase at any plated price. It does not require any elaborate argument to show that a prospective pre-emptor cannot be expected to act in vacuum and before boosidering an offer of sale, he has a right to be apprised of the price which [he may have to pay for the bargain, Whthout bis being so informed the price, he cannot be expected to have made a conscious choice to reject the propoial for sale to him. ! have had the occasion to examine this from different angles io Hakam AH v. Fazla (PLJ 1986 Lahore 150. and conclusion to the above effect was reached. Hence, the said assertion made in the evidence of the defendant is not sufficient to sustain the plea of estoppel which has been rightly repelled by the trial Court. As regards the pka of Benami, the case of the petitioner is that this suit has been filed for the benefit of some Muhammad Yaqoob who is bearing the expenses of litigation. The mere fact that another person is bearing the expenses of litigation cannot suffice for a conclusion that the suit itself is Benami There is no reason why a pre-emptor may not be able to have financial support of bis relatives or well-wishers, like any other plaintiff. To this effect is Rehmat All and another v. Ghulam Nabi (1986 CLC 2176-D.B.). In Lai Din v. Allah Ditta am/others (PLD 1967 Lahore 703) it was held that plea of Benami can be sustained only upon the proof of the existence of some arrangement between the pre-emptor and another person where-under it may be possible for that other person to become vested with the decree to be ultimately passed so that he and not the plaintiff himself would be the real owner of the property. Such a suggestion has not even been made by either the vendee or his witnesses, therefore, the objection with regard to the suit being Benami fails as being only untenable. 5. In the end, learned counsel has half-heartedly contended also that the vendee-petitioner was entitled to be re-imbursed with regard to the expenses incurred by him in securing the sale. Even though a plea on the point was taken in the written-statement, yet, neither was an issue on the point claimed in the trial Court nor has any evidence been led to prove the details of expenditure so much so that the petitioner has not made any statement at all on point in his evidence as DW 3, Therefore, even this submission cannot be sustained. 6. Decree passed in favour of the respondent and uphe d in the appeal below is unexceptionable on the record. There does not emerge any case for exercise of revisionai jurisdiction. Hence, dismissed in limine, (TQM) Petition dismissed.

PLJ 1987 Lahore 115 PLJ 1987 Lahore 115 Rawalpindi Bench] Present : gul zarin, kiani,j DARVESH (deceased) represented by Abdul Rashid and Others—Appellants versus KHUDA DAD (deceased) represented by MUHAMMAD SHARIF and Others—Respondents Regular Second Appeal No. 270 of 1967, dismissed on l3-l2-198 f

(i> Civil Procedure Code, !908 (V of 1908)- — —S. 100—Second appeal—Interference in — View taken by courts. below not found to be wrong—Held : Appeal against concurrent finding of fact to fail [P !20jC (ii) Punjib Pre-emption Act, 1913 (I of 1913)—

S. 4 -Transaction—Character of—Determination of—Intention of parties—Relevancy of—Held : Relevant Circumstances to be looked into to find out true intention of parties in entering into transaction of mixed character—Held further ; Opinion on merits of case to be formed by court after examination of all material placed before it. [P. 119& 120JB (iii) Punjab Pre-emption Act, 1913 (I of 1913)—

S. 4—Transaction—Character of—Transaction of mixed character consisting of sale and exchange entered into between parties—Held : Property consideration being not negligible, such invisible transac­ tion not to be regarded as sale. [P. I19JA AIR 1930 AIL 426 ; AIR 1938 All. 229 & PLD 1968 Lah. 428 ref. Ch. Muhammad Yousuf, Advocate for Appellants. Mr. Abdul Aziz Bhatti, Advocate for Respondents. Datet of hearing : 7 & 8-12-'986. judgment This is a plaintiffs' second appeal and arises out of a pre-emption suit. Suit was dismisssd on 19-9-1966 and first -'ppeal on 13-12-1966 by Additional District Judge, Rawalpindi (Civil Appeal No. 91 of 1966). In second appeal, only legal point which arises for consideration, is, whether the two transactions were in essence one transaction of exchange or were two in­dependent sale transactions. The material facts are briefly as follows :— By mutation No. 70 entered on 4-7-1964, and, sanctioned on 17-7-1964, one Muhammad Akbar sold 44 kanals 19 mar las of land situate at Mouza Thakaryan, Tehsil Gujar Khan, to Khuda Dad for Rs. 9,250.00. By another mutation 334 entered on 3-7-1964. sanctioned on 17-7-1964, aforesaid Khuda Dad transferred his 19 kanals Is manias of land situate at Mouza Phimal Miana, Tehsil Gujar Khan, to Mubammad Akbar for Rs. 6.000.00. Plaintiffs Durvesh and Abdul Ghani, since deceased, and substituted by their legal heirs as collaterals, co-sharers in the property in suit, and owners of the estate, pre-empted the transaction evidenced by mutation 70 of village Thekaryan, brought a pre-emption suit against Khuda Dad, in the Court of Civil Judge, Gujar Khan, on 16-7-1965. Khuda Dad was made the sole defendant in the suit. It was alleged that property was sold for Rs 3,600,00 only and the rsst was a fictitious show of payment to evade the pre-emptors' rights to get the land. Suit was contested. It was submitted in defence that the two properties were exchanged and the transactions, though shown to be independent, were in essence really one transaction of exchange, and with regard to transfer of land (44 kanals 19 marlas) mutation 70, no suit for pre-emption could lie. Reasons for adopting such a course were given in para 1 of the written statement. Further, right to pre-empt was also denied, On 18-11-1966, trial Judge framed necessary issues in Urdu, which rendered in English are :— 1, Whether the transaction in dispute is not of sale ? If so, with what sffoet "^ OPD, 1. Whether the right of pre-emptioa of the plaintiffs is superior to that of the vendee ? 3, What is the market price of the suit land ? 4. Relief. After settlement cf issues, Court postponed the suit to 16-2-1966 for parties' evidence. On the date fixed for evidence v/:. !6-2-1966, plaintiffs' counsel produced copy of pedigreetable (Exht. P. I), copy of mutation (Exht. P. 2), copy of Jamabandi (Exht. P, 4) and closed affirmative evidence with right to record the plaintiffs' statement after close of defence evi­ dence, Thereafter, defendant entered upon his defence and produced Qadir Bakbsh, Fazai Ahmad, Muhammad Akbar, Waris Khan and al»o relied on copies of mutation 70 (Ex. D. 1) copy of mutation 334 (Ex. D. 2) and closed the defence. In rebuttal, Patwari Halqa (PW 1) proved saie averages Exh. P. 3) and Durvesh plaintiff appeared to depose that land in suit was sold by Muhammad Akbar and that the plaintiffs had better right. Trial Court examined the evidence, found that transactions though evidenced by two separate mutations of sale were in reality one transac­ tion of exchange in regard to which no suit for pre-emptioa could be filed. Right of pre-emption however, was found to exist for the plaintiffs. On appeal finding on the nature of transaction was affirmed. Learned counsel for the appellants contended that th? two ransactions were independent sales and the Courts were erroneous in hold ing that these were io reality one transaction of exchange, aod in recording the aforeinoted conclusion, not only ignored the material evidence but also over­ looked the apparent character of mutations, whereby different parcels of land for different sale price were sold by either party. Counsel also argued, that had the parties really intended to exchange their properties situate in two different, though adjacent, revenue estates, they could have easily, achieved their object in one mutation of exchange or a registered deed. Land Reforms or any other law did not provide a bar for the mutual exchange of properties by Muhammad Akbar and Khuda Dad. Learned counsel took me through the entire record to persuade me to take a different view in regard to the nature of transaction and to hold that Courts below had proceeded on circumstances not very much relevant to the crucial issue. It was also stressed that when the parties have chosen to give a particular form to the transaction concluded by them. Court muit hold them bound to it and should not allow them to take a different stand and also to plead differently so as to defeat a third party claim, who honestly believed the transaction as it looked. As against this, it was argued for the respondent, that the question that two transactions were in essence one was essentially a question of fact and had to be determined on the appreciation of the facts and circumstances of a particular case. Also argued that when deciding such an issue, Court must look to the intention of the parties, their conduct and the related circumstances to find who her they intended to conclude two independent transactions of sale or that the transactions though separate were part and parcel of one deal. It was also urged that concurrently concluded finding of fact based on apprecia­ tion of evidence is binding in second appeal and its correctness cannot be examined afresh, even if this Court were to hold a different opinion. For respondent, reliance wa placed on Kishan Lai v Ram Lai and others (AIR 1927 Allahabad 696), Fateh Sfnyh and anothnv. Prithi Singh and another [AIR 1930 Allahabad 26 (2)], Aaw ^flrfcm la/ awo 1 orfcew v, Kunvar Singh (AIR 1938 Allahabad 229). ^//afc Dad v 5ag/i ,4/z a«rf Ayub (PLD 1968 Lahore 428), Sher Azam v. Foz/e <4zi>?! Shah (1972 SCMR 649), Muhammad Zaman alias Mana v, A f lam and another (PLD N84 Pesh. 166), Fazal Rehman v ^wi> Haider and another (19^6 SCMR 1814). As against this, learned counsel for the appellants referred to All Muhammad v. Malik Sanwal and others [PLD 1961 (WP) Peshawar 62]. The crucial issue, whether the transactions were independent sales or were in essence one of exchange necessarily turns on the evidence brought on record by the contending parties. In this case, there is strong evidence, which, in my opinion, leave no manner of doubt that there was in reality one transaction by which both the parties agreed to exchange their res­ pective properties, 'hough the object was sought to be achieved by two apparent sale mutations. Qadi'r Bakhsh and Fazal Ahmad deposed that Muhammad Akbar was eager to get land situate at Pbimal Miana from Khuda Dad, which, the latter was not inclined to sell, but on their pur-suations agreed to exchange his land (19 kanals 18 mar/as), at Phimal Miana with Muhammnd Akbar, land at Thekaryan. In regard to the difference in value of the respective properties, witnesses deposed that Muhammad Akbar was paid Rs 11,500 to equalise the balance in the value of the two properties Muhammad Akbar himself also appeared in Court and stated that he gave his land in exchange to Khuda Dad for the latter' land at Phimal Miana and received Rs. 53,0000° in addition. to make up the balance of the market value. He also deposed that the value of his land was assessed at Rs. 11,50000 and that of Khuda Dad at Rs. 60.000. In this way a sum of Rs. 5,500 was paid to him by Khuda Did so that the value of the property was equalised. Kbuda Dad him­ self could not appear because of his stated old age and his son Waris Khan appeared to support the defence. Hs stated that Rs. 9,250 were paid by Khuda Dad to Muhammad Akbar in addition to the land given by him in exchange for th? land received. Market value of the property in suit, according to the sale averages, came to Rs. 7,398.77. Apart from oral statements, no material was brought on record to show the market value of property situate at Phimal Miana and at one time owned by Khuda Dad. Plaintiff does not claim to be a witness to the transaction but admits that some property was got mutated by Kbuda Dad in favour of Muhammad Akbar, whether it was a sale or exchange, he expressed his ignorance From the above, it emerges that certain facts are not in dispute. These are :—on 4-7-1964 Muhammad Akbar reported to village Patwari that he bad sold land (44 kanals 19 mar las) to Kbuda Dad for Rs. 9,250 and had also transferred possession to him. Patwari entered the mutation, got its contents verified from the Girdawar Halqa oc 10-7-1964, placed it before the Revenue Officer on 17-7-1964, when parties appeared and affirmed the transaction and the mutation was sanctioned. In regard to mutation J34 it was entered on 3-7-1964, its contents were verified by Girdawar on 10-7-1964 and on the basis of the affirming statetnents of parties, mutation was sanctioned on 17-7-1964, Both the mutations were taken up for attestation and Jatli and were sanctioned by the same Revenue Officer. However, prices, for which the properties were alleged to have been sold, were different, the one at Thekaryan was sold for Rs. 9250,00 and the other at Phimal Miana for Rs. 6,OOj.OO It is correct that there is discrepancy in the statements of witnessci in regard 10 payment of the additional price. Qadir Bakhsb and Fazal Ahmad deposed thai Muhammad Akbar was paid Rs. 11,500.00 Waris Khan asserted that Rs. 9,250.10 were paid by Khuda Dad to Muhammad Akbar, Muhammad Akbar deposed that he received Rs. 5,500 00 from Khuda Dad. In the written statement submitted by Khuda Dad, it was alleged that apart frcm the land he also paid Rs. 11,500.00. Question, that arises is, whether these discrepancies are so material as to find that the properties were not exchanged, but in fact were sold through two independent transactions as alleged by the plaintiffs It is true that the Courts below had not adverted to the discrepancies in regard to payment of additional amount. That notwithstanding, statement of Muhammad Akbar, who was a party to the transaction was not only relevant but also assisted the decision of the issue. His statement cannot be disregarded. It was deposed by him that apart from the land received by him from Khuda Dad latter also paid him additional amount of Rs. 5,500 00, and that the two transactions though evidenced by two separate mutations were in essence one transaction of exchange and the additional amount was paid to make up the difference in value of the respective properties. Jnl these circumstances, when a transaction is of a mixed character consisting! of two parts, that of sale and exchange and the property consideration is! not negligible and the transaction is also one invisible it cannot be regard-J ed as sale. Refer Fateh Singh and another v. Prithi Singh and another [AIR 1930 Allahabad 426 (2)], Ram Badan Lai and others v. Kunwar Singh (AIR S938 Allahabad 229), Allah Dad v. Bag/, All and Ayub (PLD 1968 Lahore 4.'8). From the facts emerging from the record, case made out was that against 44 kanals 19 mar/as of land, Khuda Dad gave 19 kanali 18 marlas and to make up the deficiency in price paid some additional amount. Property consideration, therefore, was a substantial part of con­ sideration, and, could not be taken as a negligible part, In regard to the contention, whether two transactions can be held to be one in essence, i have so far been discussing the issue without reference to decided cases. However, case law relied upon by learned counsel for the respondent from the Allahabad jurisdiction assisted the decision of the case materially. In Kishan Lai v. Ram La'and others (AIR 1927 Allahabad 696), their Lord­ ships, in somewhat identical circumstances observed : — "In our opinion extrinsic evidence was admissible for the purpose of showing that these two documents, though purporting to be separate sale-deeds, were in reality part and parcel of the same transaction, which was one of an exchange. We may refer to the case of Hanif-un-Nisa v. Faiz-un-Nisa (1911) 33 All. 340, decided by their Lordships of the Privy Council. Such evidence which shows that two documents executed and registered on the same date are part and parcel of one transaction and in fact represented only one transaction, does not amount to leading evidence so as to vary the terms of a docu­ ment. It was, therefore, opes to the learned Judge to take into account such evidence. It, therefore, follows that his finding that the transactions were not two separate sale transactions, but only one transaction of exchange must be accepted.'" The question, whether the two transactions were one, was in the last! analysis essentially a question of intention of the parties and the Courts} were not debarred to look into the relevant circumstance to find out their true intention, whether they \vanted to sell the property or enter into the transaction of exchange. Court, it is well settled, has to form an opinion on the merits of the case, after examination of all the material placed before it. Taking everything into account, I am not prepared to lay or hold that the view taken by the Courts below was wrong, both on the factual as also the legal plans. For the above various reasons, the appeal, 'which ii, concluded by concurrent finding of fact, fails and is dismissed. However, under the peculiar circumstances of the case, I will leave the parties to bear their own costs, (TQM) Appeal dismissed.

PLJ 1987 Lahore 120 PLJ 1987 Lahore 120 (B^banaipnr Bench] Present : amjad khan, J MUHAMMAD YOUSAF-Appellant versus ALLAH YAR—Respondent Regular First Appeal No. 58 of 1985/BWP, allowed on 5-1M9P6 (i) Cifil Procedure Code, 1908 (V of 1908) — —-O. XXXVIJ, Rr. 2 & 3—Leave to defend-Application for—Law not Providing for only true and unshakeanie defence being taken in application for leave to defend suit — Held : Inability of defendant to ultimately prove his defence to to provide no valid reason for refusal of leave, [P. 123]C (ii) Cifil Procedure Code, 1908.(V of 1908)— —O. XXXVII Rr. 2 & 3—Leave to defend suit—Refusal of—Held : Refusal of leave to defend suit by itself not to result in out right passing of decree against defendant. [P, 123JD (iii) CIVIL Procedure Code, 1908 (V of 1908)—

-O. XXXVII, Rr. 2 & 3-Leave to defend-Refusal of-Effect of— Held : There being no provision regarding refusal of grant of leave being equated with admission of suit, plaintiff not to be relieved of his normal obligation to prove his case and to continue to remain under duty to discharge satie even upon his opponeut in case having been disabled from defending suit—Held further: Suit of plaintiff (in no case) to be decreed in absence of any evidence adduced to sup­ port his claim, [P. 123JE (it) Civil Procedure Code, 1908 (V of 1908)—

O XXXVII, Rr. 2 & 3 and O. XX, R. 5—Negotiable instrument —Summary suit on—Leave to defend—Application of—Refusal of— Defendant's application for grant of leave receiving no judicious consideration of trial Judge—Such application disposed of and suit decreed by Additional District Judge with mere servation of defendant having not given any justification for grant of leave to defend suit—Held : Order XXXVII of CPC having not abrogated provi-

sions of O. XX with regard to contents of judgment, judgment falling short of requirements mentioned in rule 5 of O. XX not to be sustainable, [Pp. 121 & 123]A & F (?) Judge— —Conduct of—Additional District Judge (while disposing of applica­ tion for leave to defend under O. XXXVI), R. 3, CPC) acting not only illegally but also in haste without even acquainting himself of law applicable to situation — Held : Gross abuse of process of court having been made, order of trial Judge not to be sustainable. [P. 122JB Mr, Muhammad Akbar, Advocate for Appellant, Mr. M, M. A. Pirzada, Advocate for Respondent, Date of hearing : 5-11-1986, judgment A suit filed by the respondent under Order XXXVII of the CPC for recovery of Rs. 14,130 on the basis of a pronote claimed to have been executed by the appellant for the sum allegedly advanced to him as loan; -vas sought to be defended by him on the basis of an application filed on 1-4-1985 for grant of requisite leave, upon setting aside the order passed on 31-3-1985 to place him ex pane, on the plea that his address in the suit was wrong and that in fact no amount was ever lent to him by plaintiff and that the sum in suit represented the balance outstanding to she plaintiff as the price of his cotton supplied in the course of businest. Learned trial Judge, Syed Akhtar Naqi Naqvi, Additional District Judge, Babawalp'jr, dismissed the application by the order dated 8o-1985to simultaneously decree the suit against the defendant on a realization that, cd an inquiry made from him, he bad lied about his inability to sign and to support this assertion he had even defaced bis National Identity Card by super-imposing a clumsy impression of thumb, whereabout learned Judge even required a criminal case to be registered against him by the police on the basis of a complaint to be drawn up for this purpose. The cief'endaut has come up to this Court to challenge the decree thus passed against him. 2, It is manifest that ibe defendant's application for grant of leave! has not received judicious consideration of the learned trial Judge who! has disposed it of with the mere observation that he had not given any! justification for the grant of leave to defend the suit. In the earlier partj of his judgment, learned Additional District Judge dealt with the plea of the defendant, raised at his own initiative, that he could not sign and after referring to the dis-figuratiou of his National Identity Card, as was discovered by him, he came to the conclusion that therein the defendant had, apart from committing the offences of destroying evidence in his Court and also under the National Registration Act, 1973, tried even to play fraud upon his Court. 3. In such a treatment of the case, rather than judicially consider­ ing the matter, learned trial Judge appears to have been more obsessed with the idea of an attempt made by the defendant to defraud him, inas­ much as he has directed that a criminal case be got registered against him in the concerned Police Station for "destroying the evidence in this Coun' and "interpolating the document issued by the Centra! Government", This bespeaks of his desire to vindicate and therein he has erred on more than one count. He not oniy improperly set out to inquire into the execution of the pronote sued upon, which actually was a function to be performed by the concerned counsel, without even the stage for it having reached; but he also side-tracked the plea requiring his judicial considera­ tion of stretching too far the ancillary issue raised by himself. Therein he acted in oblivision also of the fact that the relevant National Identity Card had still not become 'evidence' in the suit and muchless had it been 'destroyed' and, 'in his Court'. Moreover, if his above-cited observations were to be taken to be correct in their entirety, even then the alleged offence would, depending on the circumstances, have either fall under section 193 of the PPC or come within the perview of section 204 thereof If it feli under the former section, then clause (b) of subsection (!) of section 195 of the Cr. PC got attracted to, in turn, attract the provisions of icction 476 and 4?6A thereof and if it came under section 204 of the PPC then its maximum punishment being two \ears, it would not be a cognizable offence so that in neither event may a case have been required to be registered by the Police. As regards the offence under the National Registration Act, LVI of 1973, the act mentioned by the learned Judge would fall under clause (d) of section 11 thereof which provides for a punishment not exceeding fifty rupees and, in default of payment of fine, a simple imprisonment for a period not exceeding fifteen days and section 12 thereof bars the cognizance of such an offence from being taken except upon a complaint ia writing made by the Registrar-General or a gazetted officer authorised by him. It is beyond comprehension as to how then did the learned Judge take it upon himself to make a complaint in the matter and that too to the Police? The unbridled exercise of power, even if one may have vested in the learned Additional District judge, as has been exhibited in this case, cannot be easily countenanced. He had himself raised the issue and whereas he was expected to have acted calmly and with restraint, it is deplorable that he has acted not only Illegally but also in haste, without even acquainting himself of the law applicable to the situa­ tion. The foregoing constitutes a gross abuse of process of Court and his order on the point cannot be sustained. 4. Turning now to his disposal of the matter in his hand, he has observed that the defendant has not produced any prima facie evidence to justify bis claim, about the outstanding being the price of cotton and has held :— "1, therefore, rind no merits in this application, hence, the same is rejected and the result of this order would be that since leave to defend at the suit has not been granted to the defendant, the suit is liable to be decreed in favour of the plaintiff and against the defendant. I, therefore, rejecting the application filed by the defendant, decree the suit with costs in favour of the plaintiff."' Therein, learned trial Judge lost sight not merely of the fact that the defendant's application was supported by his affidavit and he was not entitled to, at that stage, produce any evidence to prove his defence but also of the factor that a reason for calling upon the plaintiff to prove his case stood provided by the very figure of the sum sued for namely Rs, 14,UO/-, which rather than being a sam loaned in cash, appeared more 10 be an amount of some determinld liability- Even his conclusion, drawn from the absence of prima facie evidence looked for by him, to tbe effect that there was no merit in bis application, does not follow as a rational interference because absence of prima facie evidence could not, by itself, have led to a finding about absence of merit even in the application. He was called upon to consider tbe question simply of grant of leave tol defend the suit so that he could not have prejudged She case and since the! law does not provide for ouly a true and unshakable defence being taken.| therefore, even the undoubfablc inability of the defendant to ultimately) prove his defence could not have provided a valid reason for refusal of leave, Furthermore, refusal to leave to defend the suit could not by itself, have in law resulted in the outright passing of a decree against the defen-dant. Sub-rule (2) of Rule 2 of Order XXXVI! of the CPC, so far as it is relevant hereto, read as under ; "(2). ............................ in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree." It is clear that thereunder, the eventuality of straigbt-away decreeing the suit can follow either upon the failure of the defendant to put in appearance or upoa his omission to apply for grant of leave aad defend the suit in pursuance thereof but aot from the refusal by the Court to grant the leave, claimed by defendant. There is no provision for the refusal of grant of leave being equated with an admission of th: suit to result in relieving the plaintiff of nis normal obligation to prove his ease, which a plaintiff would undoubtedly continue to remain under a duty to discharge, even upon bis defendant having been disabled from defending the suit on account of refusal of leave and hence suit of the respondent could not E be decreed in absence (of any evidence adduced to support his claim The decree so passed by the learned Additional District Judge does not have support from the record. Moreover, Order XXXVII of the CPC does not abrogate the provisions! of Order XX thereof with regard to the contents of judgments and the one^F impugned in this case falls nor short of those respondents and, on anyj view, it is not sustainable, 5, In result, this appeal is allowed by setting aside the judgment and decree dated 8-5-1985 and tbe suit is remitted to the learned District Judge, Babawalpur, for trial in accordance with law, either by himself or by an Additional District Judge other than Syed Akhtar Naqi Naqvi, who dealt with Ibis suit earlier, A copy of this judgment will, however, be tent to biro as well, for future guidance, The sum in suit stands deposited in cash in this Court in pursuance of the order dated 5-7-1986, therefore, the defendant is also granted leave to defend the suit without any other condition. The sum so deposited will abide by the final result of the suit. With a view to achieving expeditious disposal of the suit, parties have been directed to put in appearance before the iearned District Judge. Bahawalpur on 29-11-1986 No order as to costs, Appti! allowed.

PLJ 1987 Lahore 124 [DB PLJ 1987 Lahore 124 [DB Present : sh. kbizar hayat & ch amjad khan, JJ REHMAT ALI and Another—Appellants versus GHULAM HABI—Respondent Regular First Appeal No. 40-86/BWP, dismissed oa 21-4-1986 (I) Punjab Pre-emption Act, 1913 (I of 1913) —

S. 4, 15 & 21 read with Civil Procedure Code, 1908 (V of 1908)— S. 96—Pre-emption suit—Decree in—Challenge to—Superior right of pre-emption of plaintiff standing established on basis of jamabandi in his being brother's son of vendor and also due to his being cosharer in khata of suit iand—Vendees not at all claiming such right for themselves — Held: Trial court's finding (fregarding plaintiff having superior right of pre-emption) being correct same to be con­ firmed by High Court in appeal. [P. 126]B (ii) Punjab Pre emption Act, 1913 (I of 1913)—

Ss. 4 & 21—Pre-emption—Right of— Enforcement of—Suit for— Held : There being no legal bar in litigant raising funds from his friends and well-wishers for purposes rf his suit, mere financing of litigation (by stranger to be too inadequate basis to conclude regard­ ing such stranger being actual beneficiary of litigation. [P. 125JA 19 PR 1898 & 7 PR 1912 ref. Mr. P. A. Farooqui, Advocate for Appellant. Date of hearing : 21-4-1986. order Respondent filed a suit for possession through pre-emption of 33 kanals and 64 marlas of land situated in Chak No. ISA, Liaqatpur, pur­ chased by the appellants, Rehtnat Ali and Ghulam Rasool, for an osten­ sible price of Rs. 70,000 by means of a registered deed dated 6-7-1978. Vendees denied his claim and contested the suit by raising the plea of waiver of right of pre-emption and also pleading that the suit had been filed for the benefit of Faiz Bakhsh and others. Suit was tet down to be tried on the following issues :— (1) Whether the suit has been filed for the benefit of some other per­ son ? If so, its effect 9 OPD (2) Whether the plaintiff has waived his right of pre-emption, if any ? OPD (3) Whether the plaintiff has got a superior right of pre-emption ? OPP. (4) Whether the sum of Rs. 70,000 was fixed in good faith or actually paid? OPD (5) If issue No. 4 is not proved, what was the market value of the suit land at the time of its impugned sale ? OPPs. (6) Whether the suit is incorrectly valued and the plaint is iosufficientH erased '' QPP. (7) Relief, Apart from documentary evidence ied for proving bis superior right of pre­ emption, the plaintiff examined Manzoor Ahmad as PW I and he himself appeared as PW 2 and the vendees examined Nazir Ahmad, a Bank Accountant, as DW i, Manzoor Ahmad as DW 2 and Ghulam Rasul, one of the vendees himself entered the witness-box as DW 3, 2 After considering the evidence of the parties, lesroed trial Judge found issues No, 1, 2 and 3 in favour of the plaintiff and whereas issue No. 6 was not pressed and was decided against the vendees, issue No, 5 was rendered redundant on account of finding under issue No. 4 recorded in favour of the vendees. Consequently, a decree was passed on 10-3-1^86 m favour of the plaintiff on payment of Rs. 70,000 oa or before 15-4-1986 3. Vendees have filed this First Appeal against the trial Court s decree to challenge its findings under the first three issues. Tria! Court's record has been summoned and perused, 4. Contention of the learned counsel is that first three issues have been decided wrongly, contrary to the evidence on the record. This broad proposition is not quite correct because so far as issue No. 2 is concerned, there is no evidence worth even the name led by the defendants and muchless has any fact or circumstance been brought on the record which may be capable of leading to the conclusion that the plaintiff may have waived bis right of pre-emption and even the vendee himself, while appearing as DW 3, has not made any statement whatever on the point. Therefore, trial Court has rightly held that burden of proof of issue No. 2 has not been discharged, 4. As regards issue No. 1, law laid down in Ashiq Ali Khan v, Shaffi Ali Khan and others [AIR 1927 Lahore 872 (2)] is that strong and clear evidence is required to prove that the object of the plaintiff was really to secure the land for some one else. To the same effect is also the view expressed in Gul Muhammad v. Mst. Iqbo! Jan (AIR 1942 Peshawar 94) that motive or intention of a pre-emptor has nothing to do with a i«it for pre-emption. Whereas the plea raised by the defendants in their written-statement in this case is that the suit has been filed by the plaintiff for the benefit of "Faiz Bakhsh and others", the only evidence tendered on the point is that of DW 1 and Ghulam Rasul, one of the vendees, who has appeared as DW 3. Both of them have stated that the suit has been filed for the benefit of Faiz Bakhsh Lambardar and have not named any other person in this behalf, The vendee has, in addition, stated also that Faiz Bakhsh provides the money and also does every thing else. Even if this feeble assertion about Faiz Bakhsh providing funds to the plaintiff for this suit, is accepted to have been proved, it is not enough for a conclusion that be is the real beneficiary of the suit and the plaintiff is acting as a mere figure-head There is no evidence at all led in this case to prove the existance of an arrangement between the plaintiff and Faiz Bakbsh whereby it may be possible for the later to become invested with the decree to be ultimately passed in this suit and his mere financing of this litigation is too inadequate a basis to conclude that he may be the actual beneificiary of the litigation because there is no legal bar in a litigant raising funds from his friends and wcil-wisbers for the purposes of his suit and there is no good reason to make an exception thereabout with regard to a pre-emptor in respect of his pre-emption suit so that nothing material for the purposes hereof comes out of Faiz Bakhsh having financed the plaintiff. In Ramsukh Das v. Fazal-ud-Din and others (19 PR 1898>, it was held :— " ...that when it is proved that a plaintiff in a pre-emption suit is acting benatni that is, that another person will, on the plea that he is the real purchaser, be entitled to take from piaintiff what­ ever may be decreed to him, the Court should refuse the nominal plaintiff a decree. But this is not an authority for holding that a plaintiff may not enter into any agreement wiih others as to what he wiil do with the land if be gets it, and thus raise funds for the maintenance of his suit. In such a case the plaintiff is entitled to his decree, and if after obtaining it he proceeds to transfer the land, a fresh cause of action wil! arise to other pre-emptors. It would obviously be most inconvenient and improper to try suit for pre-emption, not on the true issues of the case itself, but on side issues raised by pleas of the defendant as to agreements alleged to have been entered into by the plaintiff as to the future disposal of the property". To the same effect is also Shera v. Jawahir Singh (58 PR 1912) and, again, in Mahmud Bux v. Hassan Bakhsh and others (7 PR 1912) it was held :- "A man who has a right to pre-empt has merely to produce the money just as any other purchaser ; he can no more be asked what are you going to do with the land, or where did you raise the money, than any purchaser in a shop could be asked such ques­ tions by the shop-keeper. The pre-emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he has left to do is to produce the money within the time fixed by the Court. If in any such case the praemptor is buying the property for an outsider, and if after secur­ ing the property, he transfers it to the latter, it may be open to another pre-ernptor to challenge the second transfer and to claim pre-emp'ion in respect thereof, This right is, in our opinion sufficient safeguard against benami transactions of the kind." 6. In the above state of the evidence and the law, the finding of the trial Court under issue No. 1 is unexceptionable and is upheld. 7. Superior right of pre-emption of the plaintiff under issue No, 3. stands established on the basis of Jamabandi Exh. P. 1, in his being & brother's son of the vendor and also due to his being a co-sharer in the Khata of the suit Sand on account of a registered deed of gift dated 5-3-1978 (Exh P 5) made by his father, four months before the sale in suit. Vendees have not at all claimed such a right for themselves and the trial Court's finding under issue No. 3 is also correct and is accordingly confirmed. 8. No other point has been argued by the learned counsel. 9. There is 00 merit in this First Appeal which is accordingly dismiss­ ed in limine (TQM) Appeal dismissed,

PLJ 1987 Lahore 127 PLJ 1987 Lahore 127 [Bahawalpur Beach] Present : amjad khan. J MEHD1 HASAN—Petitioner versus PROVINCE OF THE PUNJAB through COLLECTOR, BahawaLpur —Respondent Civil Revision No. 1182-D-83/BWP, dismissed on 5-5-1986 (i) Colonization of the Government Lands (Punjab) Act, 1912 (V of 1911)—

Ss. 10 & 36 read with Civil Procedure Code, 1908 (V of 1908)- S, 9—Lease—Termination of—Order of—Challenge to—Civil court- Jurisdiction of—Held : Order under S. 10 of Colonization Act being within exclusive jurisdiction of Collector to pass (and Board of Revenue being ultimate authority in hierarchy), civil court not to substitute its views with regard to desirability of selecting particular person as tenant for any specified land—Impugned order of Member Board of Revenue not illegal, void or ineffective against petitioner- Such order also holding field in context of S. 10 of Colonization Act, 1912—Held : Petitioner not to have aid of Court to perpetuate his possession over land in dispute without any right or title vesting in him. [P. 128]A (ii) Limitation Act, 1908 (IX of 1908)-

S. 3—Limitation —Bar of—Failure to raise—Effect of—Objection as to suit being barred by time not taken in defence of suit—Held : Such ispect of case being not capable of being disregarded, order to dismiss suit to be simply unexceptionable. [P. 128JB Mr. M. Aftab Iqbal Chaudhry,] Advocate for Petitioner. Date of hearing : 5-5-1986. order On 9-5-1961, State land now in dispute, was allotted to the petitioner for a period of 10 years under the Pedigree Live Stock Breeding Scheme which was then renewed in the year 1971 for a further period of five years but not later and his lease terminated on 9-5-1976. Prior thereto, in the year 1969 proceedings bad been started at the instance of one Ghulam Muhammad to deprive the petitioner of the land. The litigation was taken upto the Board of Revenue by the said Ghulam Muhammad where order dated 11-3-1979 was ultimately passed by a learned Member to repel bis claim by simultaneously ordering even the petitioner to be evicted from the land in dispute for the main reason that the period of his lease had already expired. 2, Feeling aggrieved thereby, the petitioner, on 6-5-1980, filed a civil suit against the Province of Punjab to claim a declaration of invalidity about the order of the Board of Revenue The suit was contested by denying the claim of the petitioner and was set down to be tried on foiir issues whereof issue No, ! is with regard to the absence of cause of action in the plaintiff; issue No. 2 relates to the legality and effectiveness of the order of the Board of Revenue and issue No. 3 wai settled to deter­ mine the plea that the plaintiff cannot be ejected from the suit land without recourse to Msrtial Law Regulation No, 1!5, Issue No, 4, however, embodies the defendant's claim for special costs. The suit was ultimately decreed by the trial Court with the clarification that in case the lease in favour of the plaintiff was not extended and an ejectment order was passed against him then its decree would not stand in the way of his liability to be ejected from the suit land in due process of law. An appeal theresgainst filed by the respondent-Province has been accepted by the learned District Judge, Bahawalpur to dismiss the suit of the petitioner for the reason that the term of his iease has expired and the order directing him to vacate the suit iand was not illegal and also that he wai not entitled to the protection of the Martial Law Regulation No. 115, s had been held in Khushi Muhammad v. Government of Punjab, etc. (NLR 1981 Revenue 11). Plaintiff has come up to this Court on revision. 2. Record of the case, summoned ia pursuance of the order dated 10-7-1983, has been received and perused with the assistance of the learned counsel The determining factor in this case is that the petitioner's tenancy has come to an end already on 9-5-1976 and by virtue of Para (25) (xv) of the terms and conditions governing his lease, he is committed to thereupon peacefully surrender the possession of the Sand. Since the impugned order of the learned Member Board of Revenue proceed! upon this very premises and cannot be held to be illegal, void or ineffective against the plaintiffpetitioner, therefore, he is not left with any right or locus standi to claim the declaration prayed for in the suit. This order holds the field in the context of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, therefore, the petitioner cannot have the aid of a Court to perpetuate his possession over the land in dispute, without any right or title vesting in him. An order under Section !0 ibid is within the exclusive jurisdiction of the Collector to pass and Board of Revenue being the ultimate authority in the hierarchy, it is not open to a civil Court to substitute its views with regard to the desirability of selecting a particular person as a tenant for any specified land because it is explicitly prohi bited in Section 36 thereof 3. There is no illegality or error of jurisdiction involved in the trial Court's decree having been reversed by the learned District Judge. Petitioner's suit is also barred by time under Article 14 of the Limitation Act and even though an objection to that effect was not taken in defence of the suit, yet, by virtue of Section 3 therof, this aspect of the case is not capable of being disregarded and bence. the order to dismiss the suit is simply unexceptionable 4. There does not emerge any case for exercise of revisional jurisdic­ tion. Hence, dismissed in liming (TQM) Petition dismissed,

PLJ 1987 Lahore 129 PLJ 1987 Lahore 129 [Bahawalpur Bench] Present: amjad khan, J Mat. KHURSHID -Petitioner versus PROVINCE OF PUNJAB through COLLECTOR, Bahawalpur and Another—Respondents Civil Revision No. 214 of 1986/BWP, dismissed on 30-6-1986 (i) Civil Procedure Code. 1908 (V of 1908)- 0. XXXIX, Rr. 1 & 2—Temporary injunction—Grant of—Applica- , tion for—Laches—Effect of — Suit filetf after lapse of almost 18 months from passing of impugned order — Held : Prayer made by petitioner in her application for temporary injunction (also) suffer­ ing from laches, petitioner to be disentitled to exercise of discretion in her favour. fP. 131JC (ii) CiVIL Precedure Code, 1908 (V of 1908)—

1. XXXIX, Rr. I & 2, O. XLIII, R. i (r) & S. H5 – Temporary injunction — Application for>-Decision on — Two courts below exercising their discretion on sound principles in refusing to issue temporary injunction —Held: Such courts having not acted fancifully or arbitrarily, their orders not to be said to be amenable to exercise of revisional jurisdiction. [P.lSljD PLD 1970 SC 139 & PLJ 1983 SC 1 ref . (Hi) Civil Procedure Code, 1908 (V of IS08) ~

O XL1IJ, R. 3—Interlocut6ry order—Appeal against — Presenta­ tion of—Notice before—Failure to serve—Effect of— Requirements of rule 3 of O. XLIII of CPC iiot .-complied with by appellant (in , not serving notice upon respondent before filing of appeal against interlocutory order)—Held : Appeal to:be rendered not entertainable in law. [P. 131]E PLJ 1984 SCI ret, (i?) Natural Justice- -—Illegal order—Recall of—Order procured improperly subsequently recalled by concerned authority—Held : Such act being one of mere retracing of steps by nullifying proceedings already taken, no right of petitioner to be said to have been involved. [P. 130JA AIR 1944 Lab. 165 ref. (v) Natural Justice— — —Ordar without jurisdiction—Recall of--Natural justice—Principles of—Applicability of—Order passed without necessary jurisdiction vesting in concerned authority - Held : Recall of such order by same authority upon discovery made to that effect without hearing peti­tioner not to be termed as being violatire~ of principles of natural justice. [Pp. 130 & 131JB PLD 1964 Pesh. 114 ref. Mr. M. Akhtar SJiabbir, Advocate for Petitioner, Date of hearing : 30-6-1986. order On 18-11-1984, petitioner filed a suit to challenge the order, bearing No. 1183 and dated 26-5-183, passed by the Chief Engineer, Bahawalapur whereby supply of extra water for garden sanctioned in her favour since 18-6-1965 was cancelled. She challenged the said order on the ground that it was passed without prior notice and in absence of a hearing granted to her and was, therefore, a nullity. She also prayed for a decree for per­ manent injunction being passed to restrain it from being effectuated in any manner. Therein, she also applied for issuance of a temporary injunction to the same effect. Learned trial Judge found that the impugned order had been passed in the wake of a joint checking by the revenue and irri­ gation officials wherein it was discovered that there was no garden at all existing at the spot even after 18 years and, being unable to disbelieve the conclusion so reached on site inspection, be rejected the application by his order dated 6-1-1986. Petitioner's appeal thersagainst has also been dis­ missed by a learned Additional District Judge by afirming the approach and view of the trial Court and with the observation :— " ..................... in the present case the impugned order was passed on the allegation that basic order allowing the extra water for so-called garden to the plaintiff was obtained by misreprasentation and fraud and after conducting a thorough inquiry the case of the plaintiff alongwith similar type of matters was referred to the Chief Engineer who passed the impugned order. Thus, the basic order on the basis of which plaintiff has come in the Court is itself allegedly issued on misrepresentation of facts." Learned Judge in appeal below refused to give effect to the petitioner's contention that opportunity of hearing was denied to her before passing the impugned order and, apart from noticing that requirements of rule 3 of Order XLIII of the CPC had not been complied with due to her omis­ sion to give the required notice, he also took note of the fact that whereas the impugned order had been passed on 26-5-1983, challenge thereto was thrown by the petitioner after a lapse of more than a year and a half. 2. She has now come up to this Court on revision. Learned counsel contends that the order challenged in be suit was a mere nullity for its having been passed contrary to the requirements of law and principles of natural justice so that it was liable to the ultimately struck down and that in the event of its being implemented in the meanwhile petitioner is bound to surfer irreparable loss. I do not find any force in this contention Because it seems uncontrovertable that where an order to recall an earlier order is passed on a discovery made to the effect that the same was brocured improperly, there no right of a party can be said to have been involved because such an acr is one of mere retracing of steps by nullifying the proceedings already taken. Such is the view expressed in Alfred Zahir v. Sirpj-ud Din (AIR 1944 Lahore 165). Moreover, since the pre­ condition for sanction of extra water supply has been found to have never B in fact existed in this case, therefore, a jurisdictional factor for passing the earlier order would be missing and thus that order wjll be deemed to have been passed without the necessary jurisdiction vesting in the oncerned authority and its recall by the same authority upon a discovery! made to that effect, without hearing the petitioner cannot be termed asj being violative of the principles of natural justice. A direct authority on| the point is a Division Bench judgment in the case Mst. Shahzadi Asifa Sultana Begum y. The Chief Settlement and Rehabilitation Commissioner, Lahore and four others (PLD 1964 Peshawar 114). In the circumstances of this case, there was no legal formality in need of being observed for revoking such an order. 3. Even this is undeniable that the suit below was filed by the petitioner after a lapse of almost a year and a half since the closure of such water-supply and apart from its being hit by Article 14 of the Limitation Act, the prayer made by the petitioner therein also suffered from laches which itself «ufficed for dis-entitling her to the exercise of discretion in her favour. 4. The two Courts below have exercised their discretions on sound principles to refuse to issue the temporary injunction and they cannot be said to have acted either fancifully or arbitrarily within the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139), as re-affirmed in Kanwal Nain and 3 others v. Fateh Khan andothers (PLJ 1983 SC 1) and, hence, their orders cannot be held amenable to the exercise of revisional jurisdiction. More so,I because due to the petitioner's failure to comply with the requirements ofL rule 3 of Order XLlil of the CPC her appeal below was rendered not! entertainable in law, as held in Mrs. Dino Manekji Chinoy and 8 others v.| Muhammad Matin'(PLJ 1984 SC 1). Hence, dismissed in limine. (TQM) Petition dismissed.

PLJ 1987 Lahore 131 PLJ 1987 Lahore 131 [Bahawalpur Bench] Present: amjad khan, J MUHAMMAD KHALID and 5 Others-Petitioners versus MUNICIPAL CpMMlTTEE, RAHIM YAR KHAN through its Chairman and 10 Others—Respondents Civil Revision No. I-1985/BWF, heard on 18-3-1986 (i) Civil Procedure Code, 1908 (V cf 1908)-

-S. 12—Validity of judgment — Challenge to — Application for— Right to make—Held : Right of (filing) application under S. 12 (2) of CPC not to be restricted to parties to original suit. fP. 133]J5 PLD 1982 Pesh. 172 ref. (ii) Ciril Procedure Code, 1908 (V of 1908)— •

S. 115—Discretionary order — Challenge to — Revision — Inter­ ference in—Discretionary jurisdiction of two courts below exercised in keeping with guiding principles laid down by superior courts— Held : Such jurisdiction having not been exercised fancifully or arbitrarily, orders (issued by two courts below) not to become amenable to exercise of revisional jurisdiction. [P. 134]C PLD 1970 SC 139 & PLJ 1983 SC I rel. (Hi) Court —

Advice by — Held : Court not to advise litigants about their remedies. [P. 134]^ Mr. Muhammad J offer Hashmi, Advocate for Petitioners. Ch. Abdul Salam, Advocate for Respondents 2 to 4. Date of hearing : 18-3-1986. judgment The facts out of which, this revision petition, against refusal by the two Courts below to issue a temporary injunction arises, are that on 21-4-1955, the then Improvement Trust, Rahimyar Khan had auctioned building plots bearing Nos. 144 and 145 with an area of 20' x 80 : , which were auction-purchased by Faiz Hassain and his four brothers (respon­ dents No. 2 to 6 herein). They paid up the dues but were not able to get their possession. In the meauwhile, Municipal Committee, Rahimyar Khan took over the rights and liabilities of the Improvement Trust and they repeatedly applied to it for doing the needful but since the present respondents No,,7 to 11 had come to occupy the property, therefore, the auction purchasers were obliged on 23-6-1976 to file a suit for specific performance of agreement against the Municipal Committee whereto they also impleaded the said respondents No. 7 to II as defendants. Their claim was conceded by the Municipal Committee but the suit was contested by the other defendants (respondents No. 7 to 11 herein) and was ultima­ tely decreed in favour of the plaintiffs on 20-12-1982 and appeal and revision filed thereagainst ware also dismissed. The decree was thereafter sued out to be exscuted by them wherein the judgment-debtors (respon­ dents No. 7 to 11 herein) filed an objection petition against their ejectment on the ground that there had not been passed any decree with regard to their ejectment. Wdile the execution and the said objection petition were still pending, on 6-2-19S. the present petitioners put in an application in the trial Court under Section 12 (2) of th? CPC by impleading both the decree-holders and judgment-debtors as respondents therein, for the decree dated 20-12-1982 being set aside for the reason that in actual fact they, and not the judgment-debtors, are in possession of the relevant plots but had nut been impleaded as parties to the suit to be bound by the said decree. They also, prayed for their being impleaded as defendants in the suit upon setting aside of the decree. Along therewith, they also put in an application for grant of a temporary injunction to restrain their ejectment from the property pending the decision of their parent petition. 2. Learned trial Judge found that some of the applicants were related to the judgment-debtors and they appeared to have come up for perpetuat­ ing the possession of judgment-debtors because it could not be believed that if at all they were in possession of the property then they could have remained ignorant about the suit which had remained pending for almost seven years and even a commission had visited the site and still the matter may have cotne to their knowledge only after the decree had been sought to be executed He also observed that the alleged possession of the appli­ cants over the property was not by itself enough to assume any title in their favour and since they were still under an obligation to also prove fraud in th'eir present petition, therefore, they could not be said to have a good prima facie case in their favour. Consequently, he dismissed their application on 17-7-1984. 3. An appeal thercagainst filed by the said applicants has been dismissed by a learned Additional District Judge by affirming the view and conclusion of the trial Court. In his judgment, he has also noticed that if the applicants and not the judgment debtors may have been in possession of the property then it could not be expected that the judgment-debtors may have contested the case upto the High Court because they would rather have straight away taken the position that they are not in posses­ sion of the property. Keeping in view their failure to raise such an objection at any stage and, to the contrary hotly contesting the matter all along, coupled with the fact that some of the applicants were related to judgment-debtors, be concluded that their application was dishonestly motivated for perpetuating the possession of judgment-debtors. He also took notice of the fact that the relevant decree had been upheld upto the High Court and, as had been held in Muhammad Yaqoob . Mst. Nooran etc (1983 CLC 1948) an application under Section 12 (2) of the CPC could not be filed in the trial Court. They have now come up to this Court on revision. 4. Learned counsel appearing in support hereof has not denied the relatioDship of the applicants with the judgment-debtors, as has been mentioned by the two Courts below, and has stated that the litigation in the suit had not ended up in the High Court but had actually gone up to the Supreme Court, therefore, on the view prevailing with the learned Additional District Judge, it was wrong to suggest that the applicants may have sought their remedy in the High Court. It is not correct to assume that learned Additional District Judge may have advised the applicants to. take their remedy in any particular Court. It is not the function of aj A Court to advise the litigants about their remedies and learned Judge in thej appeal below has not even purported to do so. It is only in the context of considering the existance of a prima facie case for the applicants that he has observed that the parent petition of the applicants before the trial Court was not maintainable in law and this conclusion is not demolished by the foregoing contention of the learned counsel who has urged also that the precedent case relied upon by the learned Additional District Judge is distinguishable on the ground that the applicants in the present case were not parties to the suit but even this contention amounts to only begging the question and cannot carry the case of the petitioners any far because, as has been held in Abdur Rauf and others v. Abdul Rahim Khan, Advocaiei (PLD 1982 Peshawar 172), right of application under Section 12 (2) of thej CPC is not restricted to the parties to the original suit. The fact, however,! remains that in this case the petitioners have to show the existance in their favour of a prima facie case but so far they have not been able to furnish any tangible proof with regard tc? their possession of the property in dispute. On the contrary, their own stand of the petitioners in para. 7 of their parent-petition [under Section 12 (2) of the CPC] is that they are not in possession of the two plots whareabout decree has been secured by respondents No. 2 to 6 (the original plaintiffs). Obviously, they are not entitled to the interim relief claimed by them with regard to the plots in dispute. 5. Since the impugned orders relate to the- domain of the discretionary jurisdiction of the two Courts below which they have exercised in keeping I with the guiding ptinciples laid down by the Superior Courts, therefore, itheir jurisdictions cannot be said to have been exercised either fancifully 'or arbitrarily within the rule of law laid down in Shahzada Muhammad C Umar Beg . Sultan Mahmood Khan and another (PLD 1970 SC 139), as ire-affirmed ic Kanwal Nain and 3 others v. Fateh Khan and others (PLJ |1983 SC 1). Heace, their orders do not become amenable to the exercise of revisiooal jurisdiction. 6. There is no case made out for interference. Hence, dismissed with costs. (TQM) Petition dismissed

PLJ 1987 Lahore 134 PLJ 1987 Lahore 134 [Mnltan Bench] Present : zia. mahmood mirza, J ALLAH WASAYA-Appellant versus IRSHAD HUSSAIN and Another—Respondents Regular Sscond Appeal No. 107 of 1985, dismissed on 23-10-1985 (i) Civil Procedure Code, 1908 (V of 1908)-

S. 100 read with Punjab Pre-emption Act. 1913 (I of 1913)—S. 22 and Stamp Act, 1899 (II of 1899)—Art. 57 — Objection not raised before trial court—Agitation of before High Court—Objection (as to security bond having been insufficiently stamped) not raised before trial court for over five years—Application allegedly filed in this res­pect on date of final arguments also not pressed before Civil Judge— Held : Argument raised on behalf of appellant (regarding in­ sufficiency of stamp on security bond before lower appellate court and High Court to merit no serious consideration. [P. 138JB (ii) Civil Procedure Code, 1908 (V of 1908)— ——O. XIV, Rr. 1 & 5 and S. 100—Settlement of—Issues—Failure to claim particular issue—Effect of—No particular issue claimed by appellantduring pendency of suit for more than five years before trial court.—Held : Appellant to be precluded from agitating such point at stage of second appeal before High Court. [P. 138 & 139JB (iii) Punjab Pre-emption Act, 1913 (I of 1913)— ——S. 22—Security—Furnishing of—Object of — Held : Object of requiring pre-emptor to furnish security to be only to guard against vexatious and mala fide suits—Suit for pre-emption already decreed by court—Respondent also complying with terms of decree in their favour in depositing pre-emption amount — Held : Successful preemptor having already deposited pre-emption amount, objection as to security bond furnished under S. 22 of Act having been insufficiently stamped not to be looked into (by High Court in second appeal against decree). [P. 138]D (i?) Punjab Pre-emption Act, 1913 (I of 1913)-

S. 22 read with Stamp Act, 1899 (II of 1899)-Art. 57 [as amend­ ed by Stamp (West Pakistan Amendment) Act, 1964 (II of 1964)]— Security bond—Execution of—Stamp on—Held : Security bond filed under S. 22 of Punjab Pre-emption Act, 1913 clearly falling within amended Art. 57 of Stamp Act, 1899) such bond written on stamp paper of Rs. 30 not to be said to be insufficiently stamped. [P. 137JA AIR 1933 Lab. 1004 ; AIR 1936 Lah. 45 & PLD 1982 BJ 1 ref. PLD 1970 AJK 66 held not applicable. (v) Punjab Pre-emption Act, 1913 (I of 1913)—

Ss. 20 & 21 read with Stamp Act, 1899 (II of 1899)—S. 35 & Art. 57—Security bond—Stamp on — Insufficiency of — Effect of — Held: Insufficiency of stamp per se not to be fatal to suit—Deficiency, if any, to be allowed to be made up under S. 35 of Stamp Act in case of objection (in that behalf) having been raised at relevant time. [P. 138JC Mian Pervaiz Akhtar, Advocate for Appellant. Sahibzada Mahboob All Khan, Advocate for Respondents. order This regular second appeal has been filed by the vendee to challenge the judgments and decrees of the Courts below whereby the suit of the respondentSiplaintiffs has been decreed. 2. Facts necessary for the disposal of this appeal, briefly stated, are that the appellant purchased the suit land in consideration of Rs. 78000/- through registered sale deed dated 15-2-1978. Two suits were filed to pre-empt this sale, one by the respondents herein and the other by Mubanfc: Hussain etc, the rival pre-emptors (not. parties in the present appeal)... Both t.he suits were shown to have been filed on the same date i.e. 13-2-1979. Respondents claimed supsrior right of pre-emption on the ground that they were the real sons of the vendor. Claim of the rival pre-emptors, on the other hand, however, was that they were the collaterals of the vendor. It appears that the plaintiffs/respondents were, in the first instance, ordered to deposit '!ar-i-panjum'. On their application, however, learned trial Court on 6-3-1979 permitted them to submit the security bond. Respondents admittedly furnished the security bond on 13 3-1979 which was written on a stamp paper of Rs. 30/-. Both the suits were consolidated and following issues were framed on the basis of the pleadings of the parties. (1) Whether the preemptors in both the suits have got a superior right of preemption qua defendant-vendee ? OP preemptors. (2) Was Rs. 78.000/- fixed in good faith or actually paid as the sale price ? OPD, (3) What was the market value of suit land at that time of sale? OPD. (4) Whether the suit No. 155 is under valued for both purposes of court fee and jurisdiction ? OPD (5) Whether suit No. 152 is incorrectly valued for the purposes of court fee and jurisdiction ? OPD. (6) Relief. 3. Learned trial Court after recording the evidence of the parties found on issue No. I that the plaintiffs/respondents were the real sods of the vendor and the rival preemptors were his collaterals whereas the vendee was a stranger. Respondents were, thus, held to have superior right of preemption qua the vendee-appellant as also against the rivalpreemptors. On issues Nos. 2 and 3 it was found that the sale price of Rs. 78 OOo/- was bonafide paid. Issues Nos. 4 and 5 were not pressed. Consequently, decree for possession through preemption in respect of the suit land was passed in favour of the respondents on payment of R. 78.000/- with the direction to deposit preemption amount in Court till 22-12-1984. It was further directed that in case of respondents' failure to comply with the terms of the decree, a second decree be passed in the same terms in favour of Mubarik Hussain ttc., the rival-preemptors with the direction to deposit the preemption amount on or before 2-1-1955 failing which both the suits shall be treated as dismissed with costs. 4. Appellant filed an appeal to challenge the decree passed in favour of the respondents but he did not prefer any appeal against Mubarik Hussain etc., rival preemptors. Be that as it may, learned Additional District Judge by his judgment dated 25-6-85 dismissed the appeal and upheld the decree of the trial Court observing that the material issues have been framed keeping in view the pleadings of the parties and the superior right of the respondents was admitted. 5. I have heard the learned counsel for the appellant as also Sahibzada Mahboob Ali, Advocate who appeared on behalf of the respon­ dents at the limine stage in pursuance of a notice issued in the stay matter. Learned counsel for the appellant mainly addressed arguments on the question that the security bond furnished by the respondents was not pro­ perly stamped, and that as an insufficiently stamped bond cannot be acted upon, there has been no compliance with the order of the Court with the result that the plaint of the respondents was liable to be rejected in terms of Section 22 (4) of the Punjab Pre-emption Act. Submission of the learned counsel was, that the security bond executed in pursuance of order made under Section 22 (I) of the Punjab Preemption Act was not covered by Article 57 of the Stamp Act or any other article of the Stamp Act and as such it was chargablc with ad-valorem duty under residuary Article 15 of the Stamp Act. Learned counsel relied on Resham Jan v. Nawdb Khan (PLD 1970 Azad J & K 66). The view taken by the Azad Kashmir High Court proceeded on the language of Article 57 as it stood in force in Azad Jammu and Kashmir which is reproduced below :-— "Security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or-executed by a surety to secure the due performance of a contract It was observed in the cited case that the bond filed under Section 22 of the Preemption Act, was not one for due execution of an office or to account for money or property received nor for due performace of a contract. It was specifically held that the bond in question could not be termed as a contract within the meaning of Article 57 of the Stamp Act. 6. Learned counsel appearing for the respondents pointed out that the Stamp Act, 1899 in its applicability to the Province of the then West Pakistan, was amended by Stamp (West Pakistan Amendment) Act II of 1964. Amended Article 57 is as follows :— "Security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed in favour of a Court for the due discharge of a contingent liability or executed by a surety to secure the due performance of a contract". Amended provision of Article 57 shows that the words "executed in favour of a Court for the due discharge of a contingent liability" have been added in the said article. Keeping in view the purpose and object of the security required to be given under Section 22 (1) of the Punjab Preemption Act, namely to guarantee the payment of costs to the vendee, the securityi bond in question in my view clearly falls within the amended Article 57 I In this view of the matter, security bond written on a stamp paper ofj Rs. 3J/- cannot bs said to be insufficiently stamped. Even before the! amendment of 1964 referred to above, this Court has been taking the view that the security bond is to be stamped under Article 57 of the Stamp Act. In AIR 1933 Lahore page 1004, judgment-debtor filed an appeal and also mads an application under Order 41 rule 5 CPC. Their prayer for stay was declined but the decree-holders were directed to furnish security of urban iramoveable property for the refund of the money which might sc realised by them, with interest thereon, in the event of the success of the appeal. Decree-holders furnished the security bond in accordance with the order of the Court. Oa an objection taken by the judgment-debtors that the bond was insufficiently stamped, matter was referred to this Court and the view taken was that the bond was properly stamped under Article 57 of the Stamp Act, In AIR 1936 Lahore 45, a person who had applied to bs adjudged insolvent was asked by the Court to execute a security bond for Rs. 5QO/- with one surety to secure the insolvent's attendance in Court till the decision of th: application. Security bond was accordingly executed aid it was held by a Full Bench of this Court that th: bond had been executed to secure the dus perfor­ mance of a contract m ide by the insolvent to appear, and the surety to produce him in Court, under the provisions of Section 21, Provincial Insolvency Act. Article 57 of the Stamp Act was, therefore, heid to b: applicable to such a bond. It was noted ia the case that Article 15 of the Stamp Act was not applicable. In Mahtniod Akhtar v. Haji Aqil Muhammad and others (PLD 1982 BJ 1), plaintiff-pre-eraptor furnished a security bond under Section 22 (I) of the Punjab Pre-emption Act on a stamp pap:r valuing Rs. 30/-. Vendee-defendant took ths objection that the document was not sufficently stamped and as such asked for the rejection of ths plaint aider Section 22(4) of the Punjtb Pre-emption Act. Trial Court instead of rejecting the plaint, allowed ths pre-emptor to make up the deficiency by paying ad valorem duty including ten times penalty. The matter came before tnis Court in revision which was allowid with the observation that Article 57 of the Stamp Act is applicable to security bond, It was further observed that :— "The security bond was not being received in evidence and, therefore, the question of calculation of stamp duty and imposi­ tion of penalty by the trial Court was uncalled for. In such circumstances, action would have been taken under sub-section (2) of Section 38. It is then for the Collector to see whether or not the instrument is chargeable with duty and penalty". 7. Apart from what has been held above, it is also to be noted that the security bond in question was submitted by the respondents in the trial Court on iO-3-79. Suit remained pending in the trial Court for over five years but during all this period, the app;llant took no objection that the security bond in question was insufficiently stamped. No doubt, there is an application dated 18-10-1984 available on the record wherein it was alleged that there was some tampering in the security bond and a prayer was made that the plaint be rejected under Section 22 of the Pre-emtion Act on the B ground, inter-alia, that the proper duty leviable on the stamp had not been paid. There is nothing on the record to show that this application was properly filed. Even the Court fee stamp affixed on this application has not been cancelled. In any case, the application was filed/placed on record on 18-10-84 on which date, arguments in the mam case were concluded. It does not appear that the said application was pressed aefore the trial Court until ths judgment was announced three days later i.e. on 21-10-84. Argument raised on behalf of the apoellant regarding the insufficiency of the stamp or. the security bond before the lower Appellate Court and now before this Court does not therefore, merit any serious consideration. Even otherwise, it may be stated, that insufficiency of the stamp per-se could not be fatal to the suit. If the objection in that

ehalf had been taken at the relevant time, the respondent could be ermitted to make up the deficiency under Section 35 of the Stamp Act. 8. There is yet another aspect of the matter which may be noticed. The object of requiring the pre-emptor to furnish security was only to guard against the vaxatious and mala fide suits. That is why it is provided ;hat the Court shall require the plaintiffs at or at any time before the settlement of issues to furnish security to the satisfaction of the Court. Keeping the object of the provision in view, objection raised after the suit is decreed and the pre-emptor had deposited the pre-emption amount cannot be entertained. In the instant case, it is admitted by the appellant n the grounds of his appeal in this Court that the respondents had complied with the terms of the decree passed in their favour. Thus, the objection as raised could not be looked into after the successful pre-emptor iad deposited the pre-emption amount. 9. Learned counsel for the appellant also sought to argue that the respondents had not impleaded the rival pre-emptors as defendants in their suit and as such their suit was time barred. Learned counsel, however, could not refer to any law or judicial precedents to support his submission. The record shows that the rival pre-emptors had been impleaded as defendants in the suit of the respondents and vice-versa. This objection has, therefore, no substance. 10. It was also argued by the learned counsel that necessary issues jarising from the pleadings of the parties were not framed by the trial ElCourt. It is not the case of the appellant that he claimed any issue but the |same was not framed. The fact that the appellant did not claim any particular issue during more than five years that the suit remained pending! before the trial Court precludes him from agitating this point at tbisj stage. 11, As shown above, none of the contentions raised by the learned counsel has any force. Result, therefore, is that this appeal has no merit and the same is dismissed in limine: (TQM) Appeal dismissed.

PLJ 1987 Lahore 139 PLJ 1987 Lahore 139 Present : muhammad ilyas, J GHULAM HASSAN—Petitioner versus RUSTAM ALI and 3 Others—Respondents Civil Revision No. 910-D of 1986, accepted on 9-12-1986 (i) Civil Procedure Code, 1908 (V of 1908)—

O. XVII, R. 3 —Evidence—Failure to produce — ESect of— Peti­ tioner failing to produce evidence on date fixed by Reader of Civil Judge—Held : Adjournment (on immediately preceding date) having been granted due to nonavailability of Presiding Officer (and not at instance of petitioner), case of petitioner not to be closed on such date due to his failure to produce evidence. [P. !43]A PLJ 1986 SC 63 ; PLJ 1983 SC 368 ; PLD 1971 SC 63 ; 1985 SCMR 585 ; 1986 CLC 3321 & 1983 CLC 2437 distinguished. (ii) Civil Procedure Code, 1908 (V 6f 1908)—

O. XVII, R. 3 & S. 115-Evidenc" — Failure to produce—Suit- Dismissal of—Challenge to—Case though not adjourned at instance of petitioner, Civil Judge closing his evidence and dismissing suit for his failure to produce evidence—Subsequenly Additional District Judge also confirming such order in appeal—Held : Suit having not been adjourned for evidence of petitioner at his request, order closing his evidence or dismissing suit not to be (compenently) passed by Civil Judge—Held further : Judgments and decrees passed by two courts suffering from illegality, interference in revisional jurisdiction of High Court to be called for. [P. 143[B Mr. Ashter Ausaf AH, Advocate for Petitioner. Nemo for Respondents 1 & 2. Mr. A. W. Bun, Advocate for Respondents 3 & 4. Dates of hearing : 8 and 9-12-1986. judgment Facts giving rise to this civil revision are that a suit brought by the petitioner, Ohulam Hasan, against the respondents, Rustam Ali and others, was fixed for 2nd May, 1983, for evidence of the petitioner. On 2nd May, 1983, he requested for adjournment which was allowed and the case adjourned to 14th of June, 1983 for his evidence. On 14th June, 1983, the Presiding Officer was on leave and the case was adjourned by his Reader to 28th July, 1983 for evidence of the petitioner. On 28th July, 1983, petitioner's evidence was not there. His case was, therefore, closed and the suit dismissed, under Order XVII, rule 3, of the Code of Civil Procedure. The petitioner filed appeal before an Additional District Judge but in vain. He has, therefore, come up in revision to this Court. 2. It was contended by learned counsel for the petitioner that the case was not fixed for evidence for 28th July, 1983 at the request of the peti­ tioner and, therefore, the learned Civil Judge could not close his evidence on the said dats by having recourse to the provisions of Order XVII, rule 3, of the Code of Civil Procedure. He cited Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434), Haji Muhammad Ramzan Saifiv. Mian Abdul Majid and others (PLJ 1986 SC 63), Allied Bank of Pakistan Ltd. v. Abdur Rehman Khan and 2 others [1986 CLC 3021 (Peshawar)] and Syed Tasleem Ahmad Shah v. Sajawal Khan etc (1985 SCMR 585) to support his arguments, 3. On ihe other hand, it was urged by learned counsel for respondents Nos. 3 and 4, hereinafter referred to as the respondents, that in view of the provisions of rule 5 of Order XVII of the Code of Civil Procedure, the petitioner was required to produce evidence on 28th July, 1983 but as he did not do so, his suit merited dismissal under rule 3 thereof. In this connection, reliance was placed by him on a case-decided by me, namely, Zia-ul-Hassan Hashmi v. Faiz Ahmad and another (PLJ 1984 Lahore 284). 4. In the case of Maulvi Abdul Aziz Khan it was held by the Supreme Court that rule 3 of Order XVII of the Code of Civil Procedure applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted. 5. Above opinion was reiterated by the Supreme Court in Haji Muhammad Ramzan Saifi's case. In this case, adjournment was allowed to the plaintiff on 29th March, 1983, on payment of Rs. 200/- as costs for production of evidence on I8th April, 1983. On 18th April, 1983, the Presiding Officer was on leave and the case was put up before another learned (Duty) Judge, who further adjourned the case on account of the absence of the original learned trial Judge, on leave. This adjournment to 22nd June, 1983 was also for the production of evidence by the plaintiff. In order, dated the 18th April, 1983, it was noted that 22nd June, 1983 was the last date and further that the costs directed on 29th March, 1983 had already been paid. On the next date of hearing on 22nd June, 1983, the plaintiff did not produce evidence. He requested for further adjourn­ ment which was refused and by the application of provisions contained in Order XVII, rule 3, of the Code of Civil Procedure, his case was closed and the suit dismissed for lack of evidence. It was held that since the reason for adjournment on 18th April, 1983 was the absence of the Presiding Officer, who was on leave, the said adjournment was not at the instance of the plaintiff and, therefore, he could not be proceeded against under Order XVII, rule 3, of the Code of Civil Procedure. 6. In the case of Executive Engineer, Peshawar v. Mjs, Tour Muhammad & Sons and 4 others (PLJ 198 < SC 368; it was observed by the Supreme Court that for applying the provisions of rule 3, it is immaterial whether adjournment is granted at the instance of a party or for other reasons. While deciding the case of ffaji Muhammad Ramzan Saifi t the ease of Executive Engineer, Peshawar, was. however, distinguished by the Supreme Court in the following words : — "Learned counsel for the petitioner has raised three arguments in support of this petition. Firstly, that is not now necessary for the application of Order XVU. rule 3, that the time should have been granted by adjourning the case at the instance of the party concerned He has relied on the following observation by this Court in Executive Engineer, Peshawar v. Messrs Tour Muhammad & Sons and 4 others (PLJ 1983 SC 36< at page ^70). 'It is immaterial whether the adjournment was granted at the instance of the party cr for other reasons.' Learned counsel failed to appreciate the context in which the observation was made ; namely, that the party at whose instance the time was granted to perform a certain act was not only a defaulter in that behalf but had also absented himself In the circumstances of that case, the absence of the party was not to be ignored and this, it was noted that the fact that adjournment was not granted at its instance will not make any difference. The additional factor being the absence of the party itself, the case is thus clearly distinguishable. The law was laid down by this Court

n the question raised by the learned counsel more than a decade ago in Mattlvi ibc/ul Azi; Khan v. A/.". Shah Jahaii Begun' and ? rs |PLD 1971 SC 434} as follows .— -that this rule (rule 5 of Order XVII, CPC) applied to a case where time has been granted to a party at his instance, to produce evidence or to cause She attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.' This view has been reiterated in many other cases. There is mas s of case law from other superior Courts on the point, that is why, learned counsel ultimately agreed that the point he was raising was against the consensus for the last nearly 100 years

". ?. In Faiz Bakhsh v. District Judge, Mulian and others [(1983 CLC 2437) (Lahore)] it was opined by my learned brother Muhammad Munir Khan J. that if once the case is adjourned at the request or at the instance of a party, the Court will be legally competent to close his evidence. In Haji Muhammad Ramzan Saifi's case, the Supreme Court referred to the case of Faiz Bakhsh and observed as under : — "Secondly, he contended that on ^n occasion earlier than the last date of adjournment /. e. 18-4-1983 the case had in fact been adjourned at the instance of the respondent-plaintiff, therefore, relying on Faiz Bakhsh v. District Judge, Mulian and others (1983 CLC 2437), he contended that it did not make any difference that on the said .date i. v, 18-4- !983 the adjourntneqt was granted not at the instance cf the respondent but for another cause, namely, the absence of the Presiding Officer. It is not necessary to examine this point in detail because there is a factual distinction between two cases. If a case is being adjourned from time to time on account of an initial request made by a party for a certain purpose and each time that request is deemed to have been notionally included in the repeated order the case might be diffirent and it might require fuller examina­ tion. And in that eventuality the observations made by this Court in Syed Taslecm Ahmad Shah v, Sajawal Khan etc. (1985 SCMR 585) would be relevant, and in that case, the resolution of the controversy raised by the learned counsel for the petitioner might go against him. But in this case even if earlier the case was adjourned at the instance of the respondent-plaintiff, the adjourn­ment granted on 18-4-1983, it cannot be denied was on account of the absence of the Presiding Officer. Therefore, there is no force in the second contention either". 8. In the case of Syed Tasleem Ahmad Shah it was held that if adjournment is sought by a party and no objection to the adjournment is raised by the other party, it will not be an adjournment at the instance of the other party. In Syed Tasleem Ahmad Shah's case also the case of Executive Engineer, Peshawar was distinguished with the observation that "it was not a case of closure of the evidence as of proceedings ex-parate against the defendants who had failed to file the written statement". 9. In the case of Allied Bank of Pakistan Ltd, the suit was fixed for 28th November, 1982 for the recording of evidence. On the date, it was adjourned to 29th January, 1983 for the reason that the Record Clerk of he Allied Bank of Pakistan Ltd., which was plaintiff therein, was on leave on that date On 29th January, 1983 the presiding Officer of the Court had handed over the charge and, therefore, evidence could not be recorded and the case was adjourned for further proceedings as earlier ordered to 24 th March, 1983 by the Reader of the Court. This time, learned counsel for the plaintiff, in the presence of the learned counsel for the defendant, informed the Court that due to Bank audit the Manager was unable to bring the relevant record with him. The case was, therefore, adjourned with the observation that it would be the last chance for recording evidence of the plaintiff. On 23rd May, 19s3, the learned trial Court dismissed the suit after invoking the provisions of Order XVII rule 3 of the Code of Civil Procedure. View taken by the learned Division Bench of the Peshawar High Court, which decided the appeal arising out of the order of the learned trial Court, was that adjournment allowed on 24th March, 19-3 was macre io routine and the mere fact that in the end the learned trial Judge made an observation that it will be a last chance for recording of plaintiff's evidence would not change the character of the order. It was further held that since the said adjournment was not at the instance of the plaintiff, he could not be proceeded against under Order XVII, rule 3, of the Code of Civil Procedure. It was also observed by the learned Division Bench that the penal provisions of rule 3 cannot be applied unless it is proved on the record, in unambiguous terms, that adjournment was given to a party at its instance. 10. It is true that in view of interpretation placed by me on the provisions of Order XVfl. rule 5, of the Code of Civil Procedure, in the case of Zia-ul-Hassan Hashmi. the petitioner in the case in hand was required to produce evidence on 28th July, 1983 notwithstanding the fact that the said date was fixed by the Reader of the learned Civil Judge but his case could not be closed on that date due to his failure to produce evidence because on the immediately preceding date, namely, 14th June, 1983, the case was aot adjourned to 28th Jjly, 1983, at the instance of the petitioner but due to non-availability of the Presiding Officer. It has not been stated in the order made by the Reader that the p;titioner's evidence was not there on the date when the Presiding Officer was on leave. Facts of the case of Haji Muhammad Ramzart ~Saifi were similar to those of the present case ; and, as stated earlier, in the former, it was held by the Supreme Court that if a suit is adjourned due to the absence of the Presiding Officer, its adjournment cannot be attributed to any party. 11. Record of the instant case reveals that only one adjournment was allowed at the request of the petitioner before his case was adjourned for the absence of the Presiding Officer. It is, therefore, not a case attracting application of following observations made by the Supreme Court in the case of Haji Muhammad Ramzan Saifi : — "If a case is being adjourned from time to time on account of an initial request made by a party for a certain purpose and each time that request is deemed to have been notionaliy included in the repeated order the case might be different and it might require fuller examination". As against the case in hand, the case of Faiz Bakhsh was adjourned from time to time in consequence of repeated requets of a party before he was proceeded against under Order XVII, rule 3, of the Code of Civil Procedure. Faiz Bakhsfi's case is, therefore, distinguishable on facts. 12. The up shot of the above discussion is that the law laid down in the case of Maulvi Abdul Aziz Khan is still holding the field As already stated, it was ruled in the said case that the provisions of Order XVII, rule 3, of the Code of Civil Procedure cannot be applied to a party unless be has failed to do the needful on a date to which the case is adjourned a! his request. Since the suit of the petitioner was not adjourned to 28tb July, 1983, for his evidence, at his request, his evidence, could not be closed and the suit dismissed on the above date, under Order XVII, rule 3, of the Code of Civil Procedure. Judgtnants and decrees passed by the two C Courts below, therefore, suffer from an illegality and call for interference by this Court. 13. This civil revision is, accordingly, accepted, judgments and decrees of the learned lower Courts set aside and the suit remanded to the learned Civil Judge for fresh decision in accordance with law. Parties are however, left to bear their own costs. 14. Record of the trial Court shall be sent to it immediately. The parties shall appear before the said learned Court on 22nd January 1987. (TQM)

Revision allowed-

PLJ 1987 Lahore 144 PLJ 1987 Lahore 144 Present : amjad khan, J Mian BASHIR MUHAMMAD—Appellant versus C/,-, ABDUL REHMAN GILL and 7 Others—Respondents Second Arpeai aeamst Order No. 131 of 1979, dismissed on 27-1-1987 (i) Civil Procedure Code, 1908 (V of 1908)—

O. XLi, R. 31--Judgment in appeal—Contents of—Held: Judg­ ment of aspeiiatr. being required to contain points for determination," decision iiiffon and reasons therefor, appellate court not necessarily) So »];,-n?uii; ;,; its judgment ever-- piece of evidence considered by it. •> J . U-iO URBAN RENT RESTRICTION Ordinance, 1959 (W. P Ord. VI of 1959)— — S 13 — Shop— Fvicticn from—Personal use — Ground os—taculora in need of suitable shop for establishing business therein — Held Occupation of room in upper floor of building not tj d^quali! '•. hsm t'ro'O seeking eviction from shop. [P. 14ii[G ush Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)- ..... -Ss 13 (3) fa) (ii) & 15 —Eviction -- Order of — Challenge to — Persona! use —Ground of •-» Subjective satisfaction with regard to req-jfremer-t in good faith of landlord recorded in his favour by appdiate authority ob basis of consideration as (a) whole of case - Finding so reached not shown to be not justified on record — Held : No case for interference having been made out, order for eviction passed against appellant to be unexceptionable. [Pp. 147 & 148JF & H .iv) !Urban Real Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)— Ss 13 (3) (a) (ii) & 15—Eviction — Personal use — Ground of— Demand of heavy pugri allegedly made by landlord from son of tenant after decision made in favour of landlord—Held : Bona fide requirement of landlord having been independently proved in case, such demand (even if proved) to have no repurcussion on his bona fide. [P, 146]B . (v) Urban Rent Restriction Ordinance, 1959 (W. P. Ord. VI of 1959)— —S. 15—Question of pure fact—Conclusion regarding—Second aopeai —Interference in—Held : First appellate court being final court on questions of pure fact, conclusions reached on such questions by such court on basis of evidence on record not to be open to interference(in second appeal). [P, 147]C PLD 1955 Lahore 1S7 ref. (ii) Court-fee-

Deficiency of—Technical objection—Effect of—Deficiency in courtfee got made up as soon as pointed out—Held : Objection ab >ui deficiency to be no more alive—Held further : Court-fee being matter between subject and State, litigant not to be allowed to use it as weapon of technicality against adversary. [P. 146]A AIR J918 PC 188 rel. (vii) Presumption—

Counsel—Presumption regarding—Parties represented by counsel in appeal below—Held : Presumption regarding such counsel having duly drawn court's attention to relevant evidence to be legitimately drawn. [P. 147JE AIR 1937 Lah. 410 ref. Mian Nisar Ahmad, Advocate for Appellant. Mian Hidayat All Taib, Advocate for Respondents. Date of hearing : 11-4-1984. judgment In February, 1977, respondents filed a petition for ejectment of the appellant from a shop on the ground of bona fide personal need of respon­ dent No. 1, with whom respondent No. 3 also intended to join in the business to be set up therein. He resisted the application on a number of pleas and, in result, it was set down to be tried on the following issues :— (1) Whether the petition has not been signed by all the petitioners, if so, its effect ? OPR (2) Whether the petition has been filed by a duly authorised person ? OPP (3) Whether petitioner No. 1 in good faith requires the premises in dispute for personal use ? OPP (4) Relief. Necessary evidence was led by the parties wherein, apart from a number of documents produced on both the sides, six witnesses (including three applicants) were examined by the landlords and thirteen witnesses were produced by the tenant. After considering the evidence, for the stated reasons, learned Controller refused to accept the evidence of the petitioners and whereas he decided the first two issues in favour of the landlords, he reached a finding adverse to them under issue No. 3 and dismissed their petition on 4-3-1978. An appeal filed thereagainst by the landlords was heard by a learned Additional District Judge acting as Appellate Authority who, however, concluded that petitioners No. 1 and 3 did not have any suitable place for commercial purposes and thai one room on the first floor of the same building which is in possession of petitioner No. 1 where he is carrying on his business cannot be called suitable for his needs. In consequence, he i eversed the finding of the Controller under issue No 3 and upon accepting the appeal by his order dated 16-1-1979, directed the tenant to hand over vacant possession of the shop within three months. 2. In opposition of the appeal before the Appellate Authority, apart from reiterating the plea which had found favour with the Controller, namely, gradual enhancement of rent from Rs. 80/- to Rs. 200/- P. M. in a span of 22 years, emphasis was also laid on the eviction petitions filed in the year 1968 and 19o9 by the deceased father of the landlords which had ended in compromise but learned Appellate Authority did not regard either of them to be sufficient for casting doubt on the plea of the land­ lords regarding the need for setting up their own busiaess which was held to have been independently proved. There was yet another argument raised by the tenant that whereas in a notice (Exh. P- 3) assertion was made to the mere effect that the shop was required for the personal use and occupation of Ch. Abdur Rehraan Gill a new claim has been made in the petition that Ch. Abdur Rashid Gili had also to join in the business after giving up service at another shop. Learned Appellate Authority did not find any contradiction in the two stands and held that therein the landlords cannot be considered to have anywise deviated from the original stand that the shop was required for the personal use of respondent No. 1 whose admitted business of sale of fans and bulbs in only one room in the upper floor in July, 1976 was only unavailing in the context of their right to have a regular shop on the ground-floor suitable for their business. Another objection raised by the tenant with regard to deficiency of court-fee of the value of Rs. 5/- on the appeal could not prevail for the reason of the deficiency having been madi up by the landlords on the spot. After thus repelling all the contentions of the tenant, learned Additional District Judge felt convinced on the basis or the evidence led that the bona fide requirement of the'petitioners had been proved on the record and reversed the finding of the Controller under issue No. 3. Tenant has now come up to this Court in this Second Appeal. 3. Learned counsel for the appellant urged at the outset that since the respondents' appeal below was deficiently stamped by Rs. 5/-, therefore, it could neither be proceeded with nor may the learned Additional District Judge have got the deficiency made up at that point of time because limitation for filing the appeal had long run out, but when he was pointed out that the rate of monthly rent was mentioned in para. 1 of the petition for ejectment as Rs. ISO/- alongwith the figure Rs. 200/- which could have genuinely led to the mistake in calculation into paying a negligible deficiency of the value of Rs. 1.50, if calculated on the former figure and a shortage of the value of Rs 15/- only if worked on the later figure, learned counsel did not seriously press his plea with regard to the alleged contumaciousness and negligence in payment of court-fee which, there is no doubt, the court could have got made up under the provisions of Section 149 of the CPC Even otherwise, nothing material may come out of this contention because as has been held in Rachappa Subrao Jadhav Desai v. Shidappa Venkatrao Jadhav Desai (AIR 1918 PC 188) a matter of court-fee is between the subject and the State and a litigant cannot be allowed to use it as a weapon of technicaiity against the adversary and since the deficiency was got made up as soon as pointed out, thetefore, the objection about deficiency in court-fee is not anymore alive. 4. Next, learned counsel asserted that after the decision made in favour of the landlords by the Appellate Authority there was a demand made by the landlords from the son of the appellant for payment of heavy Pagri and this fact was intended to be proved by him on the basis of additional evidence sought to be led on the basis of C. M. No. 1760/C/ 1979. 1 do not see how such a plea, even if proved, may have any repurcussion on the bona fide requirement of the landlords which has been held to have been independently proved in this case. It has been held in Badruddin Hasan Farooqui through his 5 legal representatives v. Manghi Industrial Home (PLJ 1976 Karachi 403) that even a demand of higher rent does not, by itself, cast doubt on an independently proved plea of the landlord with regard to his bona fide requirement. It can well be possible that since the appellant was under an order of ejectment, therefore, his son may have had some concern for him to continue in possession of the property and it can be that in that context somebody may have mentioned Pagri only in some light vein but since such a demand is not claimed to have been made from the tenant himself, therefore, no importance can be attached to such a plea. C. M. No. 1760/C/1979 is accordingly rejected. 5. The only other argument raised by the learned counsel with regard to the case itself is that learned Additional District Judge has not specifi­ cally mentioned in h.s judgment the evidence which may have been consi­ dered by him to reacii the conclusion in favour of the landlords regarding their requirement for personal occupation and the bona fides thereof. It is urged that his judgment falls short of legal requirements which learned counsel has not specifically pointed out and has, in this behalf, merely mentioned Harmes and another v. Hinkson (AIR 1946 PC 136), wherein rule laid down, however, is that an appellate court ought to pay respect to the opinion which a Judge who has watched and listened to the witnesses has formed as to their credibility. There is no cavil with this basic rule which, however, is not to be understood to have laid down that an appel­ late court may not differ with the conclusions reached by the Court of first instance on questions of fact because to understand it thus would render the appellate power negatory despite the first appellate court being the final court on question? of pure fact so that its conclusions on such questions reached on the basis of evidence on the record are not open to inference. Suffice it to refer to VIst. Bhirawan and 8 others v. Ahmad Bakhsh and others (PLD 19:5 Lahore 187) wherein this rule has been considered and explained at Page 1»9 of the report ! have not been able to discover any reason for the learned counsel to have referred to the above authority because ia this case there b no disregard made of the rule laid down by the Privy Council, I am not aware of any rule of law) requiring an appellate court to mention in its judgment each and ever} pisce of evidence considered by it. All that Order XLI Rule 31 of the, CPC requires is that the appellate judgment shall contain the points for determination, the decision thereon and the reason therefor. The appel­ late judgment passed in this case fully satisfies these requirements and since the parties were represented by counsel in the appeal below, therefore, a presumption may legitimately be drawn that they had duly drawn ite attention to the relevant evidence and the presumption rather is, as is laid down in AIR 1937 Lahore 4lo, that where there is nothing to show that a c-rtain oral evidence may have been relied before the first appellate Court there it gets excluded from being considered in a second appeal. 1 am unable to contribute to the view of the learned counsel that even in rent cases the technical requirements relating to civil cases and the judg­ments recorded therein may bs in need of being enforced. In Khuda Bakhsh v. Fida Ffussain (PLD 1963 Karachi 446) which was followed in Punjab Hardware Machine Tools Ltd., Karachi v. Wazir All (PLD 1976 Karachi 233), it was observed that proceedings before a Rent Controller do not deserve to be judged strictly from the point of view of mere techni­ calities as observed in law Courts, Furthermore, since under the relevant provisions of Section 13 of the Punjab Urban Rent Restriction Ordinance,) 1959 subjective satisfaction of the authorities with regard to the require­ment in good faith of the applicant is the primary requirement which has been recorded in this case in favour of the respondent-landlords by the Appellate Authority on the basis of consideration as a whole of the case and it has not been shown that any one of the conditions provided for in the statute to deny relief on that score had been proved and muchless has it been shown that the finding so reached by the Appellate Authority was not justified on the record, therefore, contention of the learned counsel cannot prevail. 1 have myself perused the evidence with the assistance of the iearnead counsel. Need of the landlords stands admitted by the witnesses of the tenant and more particularly by Gbuiaca Rasool RW 2 who has admitted in cross-examination that Abdul Rehman has no permanent service and he just goes about from door to door, therefore, contention of the learned counsel is repelled. Case of the respondents is entitled to be considered in the light of their circumstances, as has been held in Muhammad Yasin Allahwala and another <•• , Menrban Shervan Irani .(PLJ 1982 Karachi 341). 1 am satisfied that respondent No, 1 is in need jof a suitable shop for establishing business therein and his occupation of G[a room in the upper-floor of the building does not disqualify him from Jseeking-eviction from this shop, as has been held in 4liah Dma v. Mst. Rasoolan Bibi and 7 others (1976 SCMR 459) and Punjab Hard.\a>e and Machine Tools Lid., Karachi v Wazir All (PLD 1976 Karachi 233). Muchless may an adverse inference tcliow from the eviction claimed more than a decade before which ultimately ended in compromise. Reference is invited to Allah Rakha v. Muhammad Shaft (1978 SCMR 437). : 6. The order for eviction passed against the appellant is unexcep- Htionable on the record and there is no case made out for interference. Hence, this appeal is dismissed with costs. (TQM) Appeal dismissed

PLJ 1987 Lahore 148 PLJ 1987 Lahore 148 Present : mahboob ahmhd, J -1xi. BASHIRAN BIBI anas BUSHRAN BIBI-Petitioner versus MAQBOOL ALI alias MAQBOOL AHMED-Respondent Transfer Application No. 11 C of I9s7, beard on 21-2-1987 Family Courts Act. 1964 (W. P. Act XXXV of 1964)— —S. 25A—Suit—Transfer of — Held : Suits arising under Family Courts Act between same parties should be tried by one and same court to avoid conflict of judgments—Held further : Better place for adjudication of such controversy to be place wn;re wife instituted her suit especially when her suit be earlier in time. [P. 149]A Mr. Muhammad Aqil Mirza, Advocate for Petitioner. Mr. Muhammad Amin Dai, Advocate for Respondent, Date of hearing : 2l-2-»9K7, order This petition urider Section 25A of the Family Courts Act seeks transfer of the suit for restitution of cosnugal rights titled "Maqboo! Ali alias Maqbool Ahmad v, A/.v/. Basinran Bibs" from the Court of Dr. Ali Sana Shakir Bokhari, Judge F..miK C>urt, Nankana Sahib, District Sheikhupura to the Court of !>. Mulu-innKid fkram, Judge Family Coun. Mandi Bahaud Din, District Ciujrat. The learned counsel foi the petinoner contends that the suit of the petitioner is earlier in the time and that the respondent instituted the suit as a counterblast to cause harassment to the petitioner. He also submits that the marriage of the parties was performed at Mandi Baha-ud-Dm to which place the petitioner had to revert to after falling out with her husband, the respondent. The next contention of the learned counsel for the petitioner is that the petitioner is a Pa"dah Neshin lady and it will be more inconvenient for her to go on each date of hearing to Nankana Sahib as compared to the respondent who in any case will have to come to Mandi Baha-ud Din he having not filed any petition for transfer of the suit of the petitioner against him. Lastly, it has been asserted in the petition that the petitioner apprehends danger to her life if she goes to Nankana Sahib to defend herself there. The learned counsel for the respondent, on the other hand, contends that the respondent apprehends danger to his life at the hands of the relatives of the petitioner and that he has already been threatened by them. Having given consideration to the controversy I am of the view thati the contentions raised on behalf of the petitioner have, force. It is well settled that the suits arising under the Family Courts Act between the same parties should be tried by one and the same Court to avoid conflict ot judgments and that the better place for adjudication of such controversy is a place where the wife has instituted the suit especially when her suit is earlier in time. As regards the contention of the learned counsel for the respondent that he apprehends danger to his life, 1 suffice by observing that the respon­ dent can apply to the Court before which the proceedings shall become pending and the said Court shall pass appropriate orders may be of asking for security from the petitioner to ensure that no harm is caused to respondent. In view of the foregoing, allowing this petition ! would direct that the suit for restitution of the conjugal rights titled "Maqbool Ali alias Maqbool Ahmad v. Mst. Bashiran Bibi"' he withdrawn from the Court of Dr. Ali Sana Shakir Bukhari, Judge Family Court, Nankana Sahib, District Sheikhupura and entrusted to the Court of Mr. Muhammad, Akram. Judge Family Court, Mandi Baha-ud-Din. District Oujrat, for adjudication in accordance with law. There will, however, be no order as to costs, The parties shall appiar before the Judge Family Court, Mandi Baha-ud-Din in the suit f.n restitution of conjugal rights as well 00 lu March, 5987, the date stated to be fixed before the said Court in the suit for dissolution of marriage. The Court at Nankana Sahib from which the suit has been withdrawn shall ensure the record of the case reaches the transferee Court at Mandi- Baha-ud-Din well in advance of the date fixed above. The transferee court shall also ensure that the two suits between the parties are fixed on the same dates of hearing so that no extra incon­ venience is caused to the respondent. < MI Q) Case transferred.

PLJ 1987 Lahore 150 PLJ 1987 Lahore 150 Present . A hmAd khan, J MEHRAJ DIN—Appellant versus KARAM DIN (deceased) represented by kgai heirs—Respondent Regular Second Appeal No. 681 of 1985 S dismissed on 27-1-198? (I) CIVIL Procedure Code, 1908 (V of 1908)— —-S. 100—Concurrent finding of facl — Interference with—Question of pure fact decided against appellant concurrently by both courts below upon consideration of evidence led in suit—No reason to differ from well-reasoned conclusions recorded in appeal below on evidence oa record established in appeal —Held : No ground having been mads out for interference with decree passed in favour of respondent, appeal before Hish Court to stand concluded by con­ current findings of fact. [Pp. 152 & »53]A & E Mi) Contract Act, Ib72 (IX of 1872)— ——S. 55—Failure to perform contract at fixed time—Effect of—Heid : Time consumed on accou >t of defendant's contest in litigation not to be utilized by him to his advantage to contend for being relieved of obligation to set; because of prices of immovable properties having nsen in meantime springiy. [P, !52]B PLD 1962 SC I n>f. (Ill) Contract Act, 1872 (IX of 1872) — .—s. 55—Immovable property—Tfansfer of—Contract regarding— Held , In contracts relating to transfer of immovable property time to be no essence of contract, fP, 1521C PLD 1965 SC 690 : PLD 196? SC i & PLD 1974 Qta, 36 re/. (iv) Specific Relief Act, 1877 (j. of 1877)—

S 22 read with Contract Act. 1872 (fX oi iS7Jj—S. 55—Specific performance—Suit tor—Delay in titeg of.~~Eff«t of—Suir iestituted on 4-9-195? as against target date of KVM936 fixed in agreement— Held . No unreasonable delay being snvclveci, relief of specific per­ formance not to be denied to plaintiff oa trcre ground of sis bHng Mr, Ehsanul Hag, Advocate for Appellant. Mr. M, Akhtar, Chughtai, Advocate for Respondent, Dates of hearing : 21 & 22-5-1985. judgment This Second Appeal filed by the defendant against the appellate decree dated 20-4-1965 arises out of a suit instituted on 4-9-1957 by the respon­ dent Karam Din for specific performance of agreement to sell dated 20-3-1954 regarding house No, S-E X1-V-63-S-14, Islarnpura Street, Dharampura, Lahore which had been decreeed by the trial Court on 9-5-1964 in favonr of the plaintiff-respondent Karam Dm by answering all the issues in his favour. 2. The suit is preceded by somewhat queer history of dealings between the parties. The house originally belonged to the plaintiff Karam Din who had mortgaged it on 6-10-1^5^ with possession id favour of the defendant Mehraj Din for a sum of ks l,?00/- and had, then, on 20-3-1954 sold it to him by iakiog more money. On the same da> (20-3-1934) Mehraj Din executed the agreement to sell the house to Kararo Din for Rs. 3.600/- and received Rs, 100/- as advance, she balance of Rs. 3.500/- being payable at the time of registration of the sale deed which was promised to be made by 30-9-1956, However, earlier thereto, on 27-2-1954 Karam Din had also executed a rent note in favour of Mehraj Din, undertaking to pay monthly rent of Rs. 2//- and as no rent had been paid from 1-9-1955 to 30-4 1957, therefore. Mehraj Din filed a suit on 7-5-1957 for recovery of Rs, 440;- as rent sod a decree (Ex. D 5) came to be passed un 1-7-1957 against Karam Dm and his son Sardar Muhammad by repelling their stand that Mehraj Din wa-. not entitled to the receipt of any rent as he had agreed to make the sale of {he house l,:> them and had not fulfilled his promise. Another suit relating to the rent for the period 1-5-1957 to 31-12-1958 was also similarly tiled by Mehraj Din and decreed on 23-6-1959 (Exb. D. 2) despite its having been resisted similarly on the basis of agreement to sell. Then, en 26-9-1959 Karam Dm and Sardar Muhammad filed a suit against Mehraj Din for the sale deed dated 20-3 1954 and also the rent" deed dated 27-2 1954 being cancelled which however, was subsequently withdrawn on 8-11 f960, after the present suit for specific performance of agreement to sell had been instituted on 4-9-1957, 3. In the above back-ground of the foregoing litigation, Mehraj Die contested the suit for specific performance by raising the picas of limitation, estoppel, and res-judicata and with reference to the decrees for payment of rent secured by him, he also contended that the plaintiff had not been ready and willing before 10-9-1956 to have the sale-deed executed. The suit was consequently set dc-wn to be tried on the following issues : — "(I) Whether the plaintiff's suit is within time V

V 2) Whether the plaintiff is estopped from filing the suit ? (3) Whether the matter in dispute is res-judicaui between the parties ? (4) Whether the plaintiff was ready and willing to have the sale deed of the house executed before 10-9-1956 ? B (5) Whether the defendant obtained a decree for the payment of rent of the house in dispute against the plaintiff. If so, what is effect ? (6) Relief." 4. As mentioned above, trial Court decreed the suit on 9-5-1964 by answering all the issues in favour of the plaintiff and appeal of the defen­ dant has also been dismissed by a learned Additional District Judge on 20-4-1965 by affirming the trial Court's findings on ail the issues. 5. Learned counsel has argued that the plaintiff has not been ready and willing to perform his pare of the contract and that the time deserved to be treated as of essence of the contract in this case. There is no merit in either of these contentions. As regards the first contention, it relates to a question of pare fact which has been decided against the defendant concurrently by both the Courts beiow upon the consideration of evidence led m the suit and there is no reason to differ from the well-reasoned conclusions recorded in the appeal below on the basis of the evidence on the record. As has been observed by tbe learned Additional District Judge, the defendant has himself prolonged the matter by seriously conten­ ding, taough not rightly, that the plaintiff had not been ready and willing to perform his part of the contract and this battle has consumed 8 years fen 1 the suit to be decided despite the clear fact that there could not be aaything more easy and sure for the defendant to have outright conceded tbe suit to establish his bona fides and put the plaintiff to the test of his financial stability which stands irrefutably established also by the fact he has duly deposited the amount in accordance with the direction of the trial Court to also have sale deed made through the Court on 25-9-1967, as is noticed in tbe order dated 3-9-1969 passed on the appellant's application for grant of interim relief. The time consumed as above oa account of the defendant's contest in this litigation cannot be utilizad by him to his ov»'n advantage to contend for being relieved of the obligation to sell because prices of immovable properties had in the meantime risen springiy. In the agreement, defendant had also undertaken to obtain clearance certificates from the Income Tax Department and the Property Tax Department before executing the sale-deed upto 10-9-i956. A similer case stands reported as Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala (PLD 1962 SC 1) wherein, while dealing with this particular aspect of the matter, their lordships of the Supreme Court have laid down :— "Where rhe vendor must procure Income-tax, clearance certificate acd Custodian's certificate before a sale could be registered, the date when the vendee is informed by vendor that such certificates had been procured is the relevant date with reference to which tbe conduct of the parties has to be judged in respect of their willing ness or otheswise of proceeding with ! ,he contract. The previous correspondence exchanged between the parties can be of no avail in this behalf.' It is well established that in contracts relating to transfer of immovable property time is not .of essence of the contract and ffaji Abdullah Khan and others v. Nisar Muhammad Khan and atlwis (Pf.D i'/65 Supreme Court 690) is another authority on the point. A Division Bench of the Sind and Baluchistan High Court has held ia Haji Bahaw<wen. .(./'. Ot-souza {PLD 1974 Quetta 36) as under :.., "The presumption that time is not of the essence of the contract is much stronger and will be readily inferred by the Court in the case of sales or leases of lands or of residential premises simpliciter than in the case of transfer of commercial premises, as for example, of a shop with vacant possession." In the above.cited case of Abdul Hamid, their Lordships of the Supreme Court have also held :— "Section 55 of the Contract Act, 1872, does not lay down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contract of that nature will ba granted although there has been a failure to keep the dates assigned by it. if justice can be done between the parties and if nothing in, (a) the express stipulation of the parties, (b) the surrounding circumstances, make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakable language it may be inferred from what passed between the parties before, but not after, the contract is made. Equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time." In the above view of the law, there is no need to deal with the argu­ments of the learned counsel for appellant regarding the notice (Ex. P. 2) and its purported refusal of acceptance as aiso about the effect thereof. At any rate, there is not such an unreasonable delay involved .« suit having been instituted on 4-9-1957. as against the target date 10-9-fixed in the agreement, that it may have led to the relief of s~ performance being denied to the plaintiff on the mere ground of its discretionary. 5. This appeal stands concluded by the concurrent findings of fact! justified on the record and there is no ground made out for interferencejE with the decree passed in favour of the respondent. | 7. The appeal has no force and is accordingly dismissed. Parties are, however, l«ft to bear their own costs. (TQM) Appeal dismissed.