PLJ 1990 Judgments

PLJ 1990 AJK 1 PLJ 1990 AJK 1 Present: ABDUL MAJEED MALLICK, CJ WALAYAT HUSSAIN-Appellant versus JALAL DIX and 3 others—Respondents Civil Appeal No.23 of 19S9, partly accepted on 22.11.1989. (i) Civil Procedure Code, 1908 (V of 1908) —O Mil R.lO-Failure to file written statement-Judgment-Pronouncement of-Challenge to-Facts of this case lead to position that alleged claim of plaintiff was sought to be supported by oral evidence—Oral evidence was still to be recorded—At time of pronouncement of judgment, trial Judge was not in possession of any other material except pleadings and judgments appended therewith-Held: Decision is not valid but defendants having failed to assign any sufficient cause justifying their failure to present written statement despite various opportunities given to them, cannot claim as a matter of right to present written state~er.t e>-en on payment of costs-Order of District Judge modified. [P. 7]D, E&F (ii) Civil Procedure Code, 1908 (V of 1908)-- —O. Mil R. 10—Failure to file written statement—Judgment—Pronouncement of- -Chaiienge to-Operative part of Rule 10 empowers court to pronounce judgment against defendant when he fails to present his written statement as directed by Court—Held: Court is vested with discretion to pronounce judgment against defendant who fails to present his written statement when so required by court. [P. 3]A (iii) Civil Procedure Code, 1908 (V of 1908)-- —- O. Mil R.10 read with Order XVII R.3-Failure to file written statement-­ Judgment—Pronouncement of—Challenge to—Provisions of Rule 3 contemplate that court shall decide case at once—There should be some material before court to enable it to pronounce a legal decision-Language of Rule 10 is directory in nature and not mandatory-Held: Scheme of law suggests that court may pronounce judgment only on satisfaction that material necessary for pronouncement of judgment is already before it. [P. 4]B&C PLJ 1987 SC 537 and PLJ 1986 Lahore 1 relied. PLD 1967 Lahore 779, PLD 1970 AJ7K 21, AIR (32) 1945 Madras 299 and PLD1987SC22/-ef. Ch. All Muhammad, Advocate for Appellant Agha Ashiq Hussain, Advocate for Respondents. Date of hearing: 22-11-1989. order The appeal is addressed against the order of the District Judge, Mirpur, passed on April 26, 1989, whereby the order of Sub Judge, Dadyal passed on February 18, 1989, decreeing the suit for specific performance of agreement in respect of the suit land, was set aside and the case was remanded for fresh decision. 2, Walayat Hussain, plaintiff-appellant brought a suit for declaration and specific performance of agreement allegedly executed by defendants No.2 to 5 on October 20, 1985, in respect of the suit land measuring 23 kanals 6 marlas out of 130 kanals 19 marlas, Khewat No.36, situate in village Rajoa, Tehsil Dadyp.1. The suit was instituted on October 6, 1986. The defendants were proceeded exparte However, on the application of the defendants, exparte order was set aside to the extent of defendant No.l on payment of Rs.500/- and other defendants on ayment of Rs.200/- as costs. This order was passed on October 31,1988. Despite availing 4 opportunities they failed to submit written statement, as such decree was passed in favour of the plaintiff against defendants 1 to 5, on February 18, 1989, under Order 8, Rule 10, CPC and suit was adjourned with respect to defendants No.6, 7 and 8. This order was challenged in appeal before the District Judge. The learned District Judge set aside the order and remanded the case for its decision after getting written statement of the aforesaid defendantrespondents. 3. Ch. Ali Muhammad, the learned Counsel for the appellant assailed the order of the District Judge on two counts:- (i) That under Rule 10, Order 8, CPC, the Sub Judge was vested with discretion to pronounce the judgment against the defendants No.l to 5 who, despite direction of the Court, failed to produce their written statement; and (ii) that the District Judge fell in error in allowing the defendant-respondents to file their written statement on remand of the case. Agha Ashiq Hussain, the learned Counsel for the contesting defendant-respondents, supported the impugned order of the District Judge. It was emphasised that the provisions of Rule 10, Order 8,-CPC were discretionary. The Court was competent to pronounce the judgment by applying its mind to the pleadings and evidence on record, on the satisfaction that there was ample proof in support of the claim of the plaintiff. In absence of satisfactory evidence, the judgment could not be pronounced against the defendants and the Court had to fall back upon the second part of the Rule and had to pass an order to meet the ends of justice. The learned Counsel relied on the following authorities:- (i) PLD 1970 AJK 21, (ii) PLJ 1987 S.C. 537, (iii) PLD 1987 S.C 22, (iv) 1981 C.L.C 1184, (v) PLJ 1981 Lah. 511, (vi) AIR 1945 Mad. 299, (vii) 1986 N.L.R 154, (viii) PLJ 1986 Lah. 1, (ix) PLJ 1987 Lah. 92, (x) N.L.R 1980 Civil 86. Mr. Agha also raised objection to the jurisdiction of the trial Court relying on the judgment of this Court recorded in Raja Dil Muhammad's case, on May 14, 1983. It was argued that the price of the land being more than Rs.25,000/, the Sub Judge was not vested with jurisdiction to try the suit. 4. The order of Sub Judge was passed under Rule 10, Order 8, CPC. It is,' therefore, permissible to construe the provisions, in order to find out the intended I object of the legislature. It is (in R.10) postulated that where any party from! whom a written statement is so required, fails to present the same within the time j fixed by the Court, the Court may pronounce the judgment against him, or make \ such order in relation to the suit as it thinks fit. The operative part of the Rule j empowers the Court to pronounce the judgment against the defendant when he I fails to present his written statement as directed by the Court. The word "so", j obviously, refers to provisions of Rules 1 and 9. Rule 1 provides that the' defendant may and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Here, it is relevant to state that the proviso to this Rule is not in force in Azad Jammu and Kashmir as this provision was added under Law Reforms Ordinance, 1972 in force in Pakistan. Thus, a defendant, as a matter of right, mayj file written statement on the first hearing or on the subsequent date. In case the; defendant is directed by the Court to furnish written statement and specific time is | fixed by the Court, then he is under obligation to present the written statement) otherwise he has to face the consequences as contemplated under Rule 10. Thej next situation warranting for filing the written statement is controlled by the) provisions of Rule 9. Under Rule 9, the defendant has to present his written statement with the permission of the Court. Thus, the scheme of law postulated under Rule 1 and 10 is to be construed conjunctively. Be that as it may, the defendant who fails to present the written statement when so required by the Court, the Court is vested with discretion to pronounce the judgment against him. 5. The introduction of word "may" is deliberate. This is so as the Court has to pronounce the judgment against the defendant on the satisfaction: - (i) that the omission to present the written statement was uncondonable; and (ii) that there was no option except to pronounce the judgment against the failing defendant. This construction is permissible particularly in view of the concluding part of the language whereby the Court is empowered to pass any other it thought fit. The failure of the defendant to comply with the order of the Court by presenting written statement has to be considered in the light of any sufficient cause resulting in obstruction or difficulty in the way of the defendant to present his written statement. For, when the defendant satisfied the Court that the omission to present written statement was beyond his control, it was within the discretion of the Court to condone the omission. In order to pronounce the judgment, again, it was enjoined upon the Court to ensure as to whether it was able to pronounce the judgment on the basis of material placed before it. For, in case the suit was timebarred, suffered from want of cause of action or territorial or pecuniary jurisdiction, it was not obligatory for the Court to pronounce judgment in presence of either of the aforesaid disqualifications. Thus, in absence of objection of limitation, cause of action or jurisdiction, it was desired that some tangible material helpful to form an opinion, must be before the Court to pronounce the judgment. 1 This provision of Rule 10 is to be construed in juxtaposition to the provisions i of Order 17, Rule 3 of the Code. The provisions of Rule 3 contemplate that the j Court shall decide the case at once. While construing the provisions of Rule 3, the | consensus is that there should be some material before the Court to enable it to I pronounce a legal decision. On that premises, it is permissible to hold that while "| pronouncing judgment in compliance of the provisions of Rule 10, the Court must I be in possession of some material to form an opinion to pronounce the judgment. I In case of absence of either of the grounds listed above, when the Court considers I that it is unable to pronounce the judgment, it has to fall back upon the provisions jof the concluding part of the Rule and to pass an order in exercise of its i discretion, as it thought fit. 6. The language used in the Rule is directory in nature and not mandatory. JThis is so as the legislature purposely omitted penalty likely to be imposed on the j defendant failing to present his written statement and used the word "may", so that _ i a just and equitable order may be passed by the Court. The scheme of law, i therefore, suggests that the Court may pronounce the judgment only on the \ satisfaction that the material necessary for pronouncing the judgment, was already ' before it. This view finds support from Sardar Sakhawatuddin's case (P.L.J. 1987 ! S.C. 537). MrJustice Muhammad Afzal Zullah, the learned Acting Chief Justice i who spoke for the Court, recorded the following observations:- "It is clear from the combined reading of Rules 1 and 9 that amongst others, three types of written statement can be filed by a defendant: (1) As of right without any formal permission of the Court. (Rule 1). (2) When it is so required by the Court to file a written statement. (Rule 1 and Rule 9). (3) When under some circumstances it is by the leave of the Court (Rule 9). It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items No.l and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required" as is indicated in item No.2 above, would follow. As it is a penal provision it will have to be strictly construed. Hence whenever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII Rule 3 which is similarly penal in nature." In Malik Muhammad Saeed's case (P.LJ. 1986 Lahore 1), a Division Bench arrived at an identical conclusion. Mr. Justice Fazal-i-Mahmood who recorded the order of the Court, observed as: "We have already noticed on perusal of the record that with plaint the plaintiff-respondent had filed photo stat copies of the alleged agreement to sell and the receipts of payment. They were not even exhibited on the record nor the plaintiff examined in support of the case set up by him in the plaint. The learned Supreme Court in the case of Khan Muhammad YusuffOian Klwttak v. S.M. Ayub and 2 others (PLD 1973 S.C. 160) had ruled that the documents which are not copies of judicial record, should not be received in evidence without any proof of signatures and hand­ writing of persons alleged to have signed or written then, even if such documents were brought on the record and exhibited without objection. In the case under disposal photostat copies of private documents had been filed with the plaint and at no stage they were tendered in evidence or exhibited. We, therefore, fail to appreciate how the learned trial Court was competent to rely upon photostat copies of private documents which were begging for proof. The analysis of the factual position obtaining on the record has led us to the conclusion that the judgment of the trial Court is not based on legal evidence. There are no features to be found in this case either of a defendant making admissions in written statement or confessing judgment. The provisions of Order VIII Rule 10 on careful reading also bring out that the Court is not specifically empowered to pass a decree without recording evidence." In Sheikh Abdul Saboor's case (PLD 1967 Lahore 779), Mr. Justice Sardar Muhammad Iqbal (as he then was) examined the proposition, among others, in the following position:-- "The failure of the defendant to file the written statement when "so required", however, is not necessarily to result into a judgment against him under Order VIII, rule 10, C.P.C. The power given to the Court by this Rule to pronounce the judgment is to be exercised only in its discretion. It may or may not pronounce the judgment. Since the Courts are performing judicial functions, they are to exercise discretion also judiciously. They have to take into consideration the facts and circumstances of each case. It is for this reason that an appeal is provided under Order XLIII. Rule 1 against the decision taken under rule 10 of Order VIII. In a case where a power is exercised arbitrarily or without any substantial basis, the appellate Court can always intervene." In Abdul Qadoos's case (P.L.D. 1970 AJ&K 21),Mr. Justice Rahim Dad Khan construed the provisions of Rule 10 in identical fashion, though on different grounds. The observation is as:- "Rule 10 of Order VIII also gives discretion to the Court either to pronounce judgment against the defendant or to make such orders in relation to the suit as it thinks fit. The question may arise; when the Court is to pronounce judgment under Rule 10 and when to make order in relation to the suit it deems fit? The discretion in such cases must not be exercised in an arbitrary and capricious manner but on judicial principles keeping in view the facts and circumstances of each case. It was not proper, for the trial Court, when there was no evidence before it, in support of the claim of the plaintiff, to proceed under the first part of Rule 10 of Order VIII, to pronounce judgment. The discretion would have been well exercised if the Court had proceeded under second part of Rule 10 which is less stringent in nature and does not deprive the defendant of the remedy." In Nagaratnam's case (A.I.R. (32) 1945 Madras 299), the provisions of Rule 10 of Order VIII, were construed in the following manner:- "Rule 10 relates only to R.9 and cannot be taken to relate to R.I; the word "so" occurring in R.10 cannot possibly be related back to R.I. It must refer to something which is in close juxtaposition to itself and that can only be the provision of R.9. A Court has therefore, no jurisdiction to pronounce judgment under R.10 against the defendant who has failed to file his written statement." The Supreme Court of Pakistan, however, took a divergent view in Mst. Hakumat Bibi's case (P.L.D. 1987 S.C. 22). Mr. Justice Nasim Hasan Shah, the learned Judge who recorded verdict of the Court, observed:- "It was also explained that if in the judgment so pronounced the reason given by the Court is that the defendant had failed to file the written statement then it becomes a judgment contemplated by Rule 10. It is true that the power given to the Court by this Rule to pronounce the judgment against the defendant is discretionary and it may or may not pronounce the judgment against the defendant where the written statement has not been filed. Undoubtedly while exercising its discretion the Court will take into consideration all the facts and circumstances of each case. But where the discretion has been exercised and judgment pronounced, the same is not normally to be interfered with. But where it is exercised arbitrarily, the appellate Court can always intervene. However, where the discretion has been exercised judiciously and judgment pronounced, the same will be a valid and legal judgment even though it has been passed without recording any evidence whatsoever." In the aforesaid case, the defendant who failed to present his written statement despite the direction of the Court, was declared to have admitted the suit of the plaintiff. This finding was challenged at various levels including the Supreme Court: The learned Judge, on going through the interim orders whereby the defendant was required by the Court to present written statement, arrived at the conclusion that the judgement was pronounced correctly though it was pronounced in absence of evidence. An identical view was expressed in Muhammad Munshi's case (P.L.J 1981 Lahore 511) by Mr. Justice Muhammad Ilyas. This view rests on broad and liberal construction of the provision. It leaves no chance to escape the liability. It deserves a second thought. I say so with due respect. 7. In the present case, defendants No.l to 5 were originally proceeded exparte. The exparte order was set aside on payment of costs and they were asked to present their written statement. They availed Tour opportunities but on their failure to present their written statement, the trial Judge 'proceeded by pronouncing judgment against them. It is noticed that there were more than five defendants. This is how the suit was adjourned for framing of issues with respect to the case against defendants No. 6, 7 and 8. This is how the learned District Judge disagreed with the learned Sub Judge as in his view, the suit was still at early stage of framing of issues. In the circumstances, instead of pronouncing judgment against defendants No.l to 5, the Sub Judge should have given more opportunity to them for filing their written statement. 8. In order to record a final conclusion, the leading facts of the case are to be kept in mind. The plaintiff brought a suit for specific performance of agreement. It was averred that defendants No. 2 to 5, owners of the suit land, made an oral agreement with the plaintiff whereby they agreed to sell the land to him in consideration of the price in the sum of Rs. 41,423.00. By collusion, defendant No. 1 brought a suit against defendants No. 2 to 5 before the same Court where they admitted the claim of defendant No 1. The plaintiff in the present case was also arrayed as one of the defendants. He contested the claim of defendant No.l in the counter suit. The counter suit was still in progress when the present suit was instituted. The aforesaid facts lead to the position that the alleged D claim of the plaintiff was sought to be supported by oral evidence. The oral evidence was still to be recorded. At the relevant stage when the judgment was pronounced, the trial judge was not in possession of any other material except the pleadings of the plaintiff and judgments of the courts referred in such pleadings. The aforesaid judgments appended with the pleadings, admittedly, were not supportive of the alleged agreement to sell the suit land. In the circumstances, it has to be accepted that the judgment was pronounced against the defendants in absence of any supportive evidence. The decision, in my view, was not a valid one. \ For the judgment could be pronounced against the defendants only on the basis of j some tangible evidence lending support to the claim of the plaintiff. To hold; otherwise, was likely to lead to disastrous results, by collusive and fictitious litigation. 9. The defendant-respondents against whom judgment was pronounced) have failed to assign any sufficient cause justifying their failure to present their written statement before the Sub Judge despite availing various opportunities given to them. Agha Ashiq Hussain, the learned Counsel for the defendantrespondents frankly agreed that no convincing or satisfactory explanation was available to condone the negligence of the defendants. In the circumstances, the. defendants cannot claim, as a matter of right, to present written .statement evenj on payment of the costs. They are, obviously deprived of their defence. 10. The order of Sub Judge is, therefore, not sustained. However, the order of District Judge is equally modified. Defendants cannot at this stage present their written statement even on payment of costs. The suit shall have to be proceeded in the light of the aforesaid observation. 11. Agha Ashiq Hussain, the learned Counsel for the respondents, invited my attention to the decision of this Court recorded in Raja Dil Muhammad's case, wherein objection on the jurisdiction was sustained on the plea that the suit for specific performance of agreement was to be triable by the Court which had pecuniary jurisdiction upto the amount of subject of dispute. In that case, the plot in question was sold for Rs. 45,000/-. The plaintiff brought a suit for declaration and specific performance of agreement. It was held that the suit was primarily in the nature of specific performance of agreement and value of the suit for jurisdiction of the Court and payment of Court-fee was to be determined in the light of the price of the plot shown in the alleged agreement between the parties. It is not considered advisable to express any opinion on the objection of jurisdiction. For an expression of opinion by this Court in either way was likely to deprive the lower Court of its jurisdiction to decide the point. However, I leave this point for the decision of the learned Sub Judge. In view of the aforesaid findings, the appeal partly succeeds. The order of Sub Judge is set aside. The order of District Judge is partly modified and the case is remanded to the Sub Judge for its disposal accordingly. No order as to costs. (MBC) Appeal partly allowed

PLJ 1990 AJK 8 PLJ 1990 AJK 8 Present: abdul majid mallick, CJ SAID MUHAMMAD-Appellant versus KARAM DAD and another-Respondents Civil Appeal No.43 of 1988, accepted on 26.11.1989 Right of Prior Purchase Act- —S. 6(2)--Mangla Dam effectee-Right of prior purchase of-Whether sale exempted from pre-emption-Question of-Case of vendee is that he was a Mangla Dam affected and displaced person—Certificate from Commissioner has been produced-His house in old Mirpur City was acquired by Collector for construction of Mangla Dam—Held: Vendee has discharged onus of proof to bring his case within exception of concession made available to Mangla Dam affected and displaced persons-Appeal accepted. [Pp. 10 & 11JA&B PLD 1971 AJ&K 68, PLD 1982 AJ&K 31 and PLD 1981 AJ&K 79 relied. Ch. Muhammad Taj, Advocate for Appellant. Mr. A.ICAnsari, Advocate for Respondents Date of hearing: 26-11-1989. order Both the appeals arise out of a common order passed by learned District Judge, Mirpur on November 29,1988. These are, therefore, disposed of together. 2. Karam Dad preempted the sale of suit land measuring 2 kanals out of survey numbers 544 and 549, situate in village Bhalot, Tehsil Mirpur. It was averred that the preemptor was related to the vendor and a co-sharer in the suit land. 3. The suit land was alienated by Fateh Muhammad to Said Muhammad through a registered sale-deed executed on July 12,1977 for a consideration of Rs. 20.000,'-. The vendee resisted the suit, among others, on the ground of his being a Manda Dam affected and displaced person. The trial Court dismissed the suit on sustaining the aforesaid objection. However, on appeal, the learned District Judge disagreed with the finding of the trial Court and decreed the suit. It view of the learned District Judge, there was no evidence of the fact that the vendee was a displaced person as contemplated under the provisions of notification issued under Section 6(2) of the Right of Prior Purchase Act (exempting from preemption, sales of land made in favour of Mangla Dam affected and displaced persons i. 3. At the time of construction of Mangla Dam, keeping in view the hardship faced bv Mangla Dam affected persons and to enable their rehabilitation without inconvenience, the Government in exercise of its powers under Section 6(2) of the Right of Prior Purchase Act, issued a notification whereby the sales of agricultural lands and built up property made in favour of Mangla Dam affected and displaced persons, were exempted from operation of the law of preemption. In order to avail :he aforesaid concession, it was enjoined that the vendee shall protect the sale of the -rcperty in his favour from the mischief of the provisions of preemption law, by production of a certificate issued by the Commissioner Mangla Dam certifying him to be a person affected and displaced by the construction of Mangla Dam. 4. The proposition of interpretation of the provisions of Section 6(2) of the Right of Prior Purchase Act and the language of the notification issued under the aforesaid section, received attention of the Full Bench of this Court in Gliulam Rabbani's ess:. (P.L.D. 1-J~1 AJc^K 6S). Per majority, it was held that in order to avail the concession to protect the sale from the mischief of preemption, it was enjoined upon the vendee to prove that he was a Mangla Dam affected and displaced person. For. in view of this Court, a person who was not displaced but only altered on account of acquisition of part of his property, was not entitled to the aforesaid concession. Therefore, in order to defeat the preemption suit, the onus was on the vendee to prove that he was not only an affected but a displaced person as well. The relevant observation is: There is no doubt as to the authority that can certify that certain persons fall within the category of the specified class of the affected persons. Commissioner. Mangla Dam obviously has been authorised to issue a certificate but the question arises: a) What the certificate should contain? b) Whether the initial presumption of correctness of the contents of the certificate can be challenged by the aggrieved party? No particular form has been prescribed under the Notification. The material portion of the Notification reads: "to be so certified by the Commissioner, Mangla Dam." This shows that Commissioner, Mangla Dam had been authorised to issue a certificate declaring a person to be so affected. The word 'so' has many meanings. Webster's New International Dictionary defines the word 'so' when used as thus: 'used as a prefix to mean in the aforesaid manner or in accordance with the aforesaid, as, the so-formed, crystle. Aforesaid manner in the Notification as discussed above is that the affected person must be a displaced person. Consequently the certificate must specify two things, (a) that the incumbent is a displaced person (b) he is affected by the construction of Mangla Dam. If the certificate does not disclose that the person is a displaced person affected by the construction of Mangla Dam and only states that he is affected by the construction of Mangla Dam that would not be sufficient to non-suit a pre-emptor on the basis of this notification. A certificate issued by the Commissioner, Mangla Dam Affairs raised an initial presumption of correctness of its contents but the accuracy of the recital can be questioned in a civil court because such certificate is issued without hearing the other party. A party being affected by mischief of such an ex pane order has a right to challenge its accuracy and the civil Court, when such a situation arises, must provide an opportunity for rebuttal." An identical view was expressed in Sattar Muhammad's case, (P.L.D. 1982 AJ&K 31) and in Raj Wall's case, (P.L.D. 1981 AJ&K 79). In Raj Wall's case, an analytical examination of the scope of the term "affected and displaced" was construed in the following manner"- "It is presumed that no word was used by the Legislature without purpose or meaning. By introduction of words "certified to be so displaced", have a definite meaning and a purpose behind it. In my view, the intention of the Legislature by introduction of aforesaid words, was to protect sale in favour of such persons who were Mangla Dam affected and displaced persons. This benefit was not available to the category of persons who though affected but were not displaced. It was wrong to suggest that the words "affected by the construction of Mangla Dam" being operative, controlled the words "so displaced" so much so the words "so displaced" lost their purpose and meaning. Both the phrases had independent meanings except that unless a person was affected by the construction of Mangla Dam, he could not be deemed to be displaced in the eye of the Notification. The word "so" was used to show that displacement must occur on account of construction of Mangla Dam. Therefore, use of word "displaced" was dependent upon the term "affected by the construction of Mangla Dam". 5. In present case, the claim of the vendee is that he was a Mangla Dam affected and displaced person. In support of his claim, he produced certificate Ex.D.A issued by Commissioner, Mangla Dam Affairs on August 3, 1986. The language of the certificate fulfilled the requisite conditions of the Notification. This part of the proposition is undisputed. 6. However, the learned District Judge recorded his difference of opinion with the trial Court as the vendee, in his evidence as a witness, admitted that part of agricultural land belonging to him was left out from acquisition where a house was jointly built by him and his brothers. Factually, that is correct. But the fact of the matter is that the vendee, as stated by him and corroborated by the certificate Ex.DA. resided in old Mirpur city, His house was acquired by the Collector for the construction of Mangla Dam. By virtue of that acquisition, he was displaced B from old Mirpur city and he settled in new Mirpur city on securing allotment of a plot. This state of facts has not been challenged by the preemptor. In my estimation, the vendee has discharged the onus of proof to bring his case within the exception of concession made available to Mangla Dam affected and displaced persons bv the Notification of the Government issued under Section 6(2) of the Right of P'ri'.T Purchase Act. '. The vecend appeal pertains to the price of the land. Mr. A.K. Ansari, learned counsel irankly accepted that the price of the land settled was not disputed. Therefore, the appeal was not pressed. On acceptance of the appeal of the vendee, the order of the learned District Judge is hereby set aside and the prccmptor's suit stands dismissed for want of cause of action. (MBC) Appeal accepted

PLJ 1990AJK11 PLJ 1990AJK11 Present: ABDUL MAJEKD MALLICK, CJ MUHAMMAD SHARIF and 3 others-Appellants Versus ABDUL RAZZAQ BAIG and 7 others-Respondents Civil Appeal No. 43 of 1986, accepted on 27-9-1989. m Civil Procedure Code. 190S (V of 1908)-- —O.VI R.l"--Pieaciings-Amendment of-Prayer for-Proposed amendment neither changes character or nature of suit nor cause of action-It also does not alfect any accrued right of defendant-appellants—Held: Relevant restrictions to refuse an amendment, do not stand in way of request for amendment of plaint-Amendment allowed subject to costs. [P.14JB&C lii.p Civil Procedure Code, 1908 (Vofl908)-- —O.YI R.17—Pleadings—Amendment of—Prayer for—Whether amendment can be allowed at level of second appeal—Question of—Procedure enshrined in OAT rule 17 empowers court to allow amendment of pleadings at any stage of proceedings—Rules of procedure are framed to advance cause of administration of justice—Held: It is wrong to suggest that an amendment relevant to issues in controversy cannot be allowed at stage of second appeal. [P.13JA PLD 1985 SC (AJK) 1 & PLD 1987 AJK 170 rel. Agha Ashiq Hussain, Advocate for Appellants. Raja Muhammad Siddique KJian, Advocate for Respondents. Date of hearing: 27-9-1989. order This is an application for amendment of pleadings of plaintiffs. Plaintiffs brought a suit for declaration claiming exclusive title by alienation, in the suit land, and prayed for issuing a perpetual injunction to restrain the defendants from interfering in their possession and further asked for specific performance of the agreement by executing regular sale-deed by the defendants in their favour, in respect of the suit property. 2. It was averred that Mst. Fakhra Begum, Last owner of the property, transferred the suit land to plaintiffs for a sum of Rs. 16,000/- and executed an agreement to sell on December 1, 1977. Regular sale-deed was not executed as at the relevant time, the local Deputy Commissioner had issued an order restraining the owners of land from selling it to any person. On execution of the aforesaid deed, possession of the land passed on to the plaintiffs. Mst. Fakhra Begum alienated the same land to defendants No. 1 to 4 through a registered sale-deed on September 27, 1979 for a sum of Rs. 80.000/-.Plaintiffs challenged the aforesaid alienation for want of authority and title of the vendor. The trial Court upheld the claim of the plaintiffs relating to execution of agreement to sell and passing of consideration, but dismissed the suit for want of proof on other issues. On appeal before the District Judge, the finding of trial Court was reversed and the suit was decreed. The order of the District Judge was assailed in appeal before this Court. 3. During pendency of the appeal, an application for amendment of pleadings of plaintiffs was moved. The plaintiff-respondents want to add in their pleadings that the agreement to sell was in fact a sale-deed and relevant part of the body of the pleadings was desired to be modified accordingly. The application was opposed by the defendant-appellants. 4. Raja Muhammad Siddique Khan, the learned Counsel for the respondents argued that by introduction of proposed amendment, the nature of the suit and the cause of action would remain the same and that the proposed amendment was necessary so that the real controversy between the parties was finally settled. It was agreed that no further evidence was to be led for or against the proposition. Agha Ashiq Hussain, the learned Counsel for the opposite side contended that no new plea could be raised at the stage of second appeal. It was emphasised that the suit of the plaintiffs primarily rested on their claim of acquiring the land through an agreement to sell. Now, therefore, they are debarred from raising a fresh plea to make believe that the deed of agreement was in fact a sale-deed. In support of his contention, the learned Counsel cited. 1. AIR 1976 Orissa 216; 2. AIR 1927 Allahabad 791(2); 3. AIR 1927 Madras 791; 4. AIR 1929 Madras 349; 5. AIR 1929 Bombay 114; 6. AIR 1926 Calcutta 665; 7. AIR 1921 Lahore 284; 8. AIR 1921 Madras 636; 9. AIR 1921 Oudh 248; 10. 1909 I.C. 618; and 11. 1916 I.C. 740. 5. The proposition in hand pertains to amendment of pleadings at the level of second appeal. It is undenied that the procedure enshrined in Rule 17, Order 6, C.P.C., empowers the court to allow amendment of pleadings of the parties at any stage of the proceedings on such terms as it considers just. The spirit of law appears to be that actual controversy between the parties is decided finally so that litigation is put to an and. The rules of procedure arc framed to advance the cause of administration of justice. Moreover, the consensus is that justice should not be denied to a party by adhering to technicalities of rules of procedure; rather, the technicalities of procedure must clear the passage for advancement of justice. It is with this object that no definite stage of proceedings, for allowing amendment of pleadings, has been proscribed in Rule 17. It is, therefore, wrong to suggest thatl an amendment relevant to the issue in controversy cannot be allowed at the stage of second appeal. This Court as well as the Supreme Court adhered to a liberal policy of allowing amendment of pleadings provided it was satisfied that such amendment was necessary for decision of real issues in controversy. The obvious restrictions on allowing an amendment are that the proposed amendment may not change the nature or character of the suit or cause of action or it may not hamper the accrued rights of the opposite party. In absence of either of those conditions, the consensus is in favour of liberal attitude in allowing amendment of pleadings. The aforesaid principle finds complete support from the authority in Muhammad Sulaiman's case. P.L.D. 1985 SC (AJK) 1 and Muhammad Iqbal's case decided by this Court, P.L.D. 1987 AJK 170. 6. As noticed earlier, the plaintiffs asserted their title in the property by virtue of the document called agreement to sell executed on December 1, 1977. Primarily, the point of construction of the document is involved in the controversy. The apprehension of the plaintiffs' Counsel is that unless necessary amendment is not made in the pleadings, plaintiffs would be unable to convass that the transaction in question amounted to sale. This is why it was agreed that on permission to amend the pleadings, plaintiffs would not lead any evidence. Agha Ashiq Hussain, the learned Counsel emphasized that the proposed amendment was in fact a new plea of attack sought to be raised at the level of second appeal. This is how the learned Counsel dceemed it essential to oppose the proposed amendment as in his view, it was not permissible in law to raise a new plea in second appeal. The authorities cited by the learned Counsel also support the view that it was against the practice to allow a new plea in second appeal. 7. In my view, raising a new plea in second appeal is different from seeking amendment of pleadings to include alternate claim or relief in the pleadings. The difference is very subtle. The rules of procedure authorise the parties to the proceedings to assert alternate facts in support of the claim or to seek alternate relief. The present case is not squarely a case of setting up alternate claim or relief. The plaintiffs have already asserted their title of ownership in the suit land. They relied on the decument executed in support of their title. The contents and nature of the document remaining the same, only its construction is sought to be made to bring it within the purview of sale-deed. The question of construction of document is a question of law. Therefore, such a question ordinarily can be raised even in the Supreme Court. It is, therefore, not purely a case of new plea raised for the first time in second appeal. The authorities from Indian jurisdiction cited to oppose the proposed amendment do not directly apply to the proposition under consideration. Some authorities relate to interpretation of Section 54 of Transfer of Property Act. It is premature stage to go into the scope of Section 54 of Transfer of Property Act as here only the point of grant or refusal of proposed amendment is to be settled. 8. As mentioned earlier, the proposed amendment neither changes the character or nature of the suit nor the cause of action. It also does not affect any accrued right of defendant-appellants. The relevant restrictions, to refuse an amendment, do not stand in the way of the request for amendment of the plaint. It is explained that the application for amendment is moved in the light of the observations of this Court during arguments on merits. Nevertheless, it cannot be ignored that the application for amendment is moved at the stage of second appeal; the delay, if any, can be compensated by costs. It is, therefore, held that the proposed amendment is permitted subject to payment of Rs. 500, - as costs. (MBC) Amendment allowed.

PLJ 1990 AJK 14 PLJ 1990 AJK 14 Present: abdul mated mallick, CJ MUHAMMAD MUNSHI and another-Appellants versus Mst. RAKIYA BI-Respondent Civil Appeal No. 41 of 1986 (also 45 of 1986) dismissed on 30-11-1989. (i) Civil Procedure Code, 1908 (V of 1908)-- —-O.VI Rr. 14 & 15--Pleadings--Non-signing of-Effect of-Whether irregularity curable—Question of—Objection that Wakalat Nama was not signed by plaintiff or that thumb impression on it was not that of pre-emptor plaintiff—Counsel designed pleadings, signed and verified it—Counsel can sign pleadings on account of absence of party or for other good cause under Rule 14 of Order VI-Held: It is well accepted rule of procedure that an omission to sign and verify pleadings was only an irregularity curable at any stage of proceedings and not an illegality likely to result in dismissal of suit—Held further: Court, in exercise of its discretion, may call plaintiff to sign and verify pleadings at subsequent stage. [Pp.l6,17]A&B (ii) Forgery- —Forgery of thumb-impression-Proof of-Even and balanced evidence of experts-Whether onus discharged-Question of-It was enjoined upon vendeedefendants to prove allegation of forgery of thumb-impression of plaintiff-preemptor-Evidence of handwriting expert led by defendants was rebutted by evidence of another handwriting expert—Held:. In presence of even and balanced evidence of experts, onus of proof is not discharged—Held further: District Judge rightly construed evidence of parties. [P.17JC PLD 1982 SC (AJ&K) 89 & PLD 1984 SC (AJ&K) 13 dist. (iii) Pre-emption-- —Pre-emption—Suit for-Price of land—Proof of—Price of land settled by District Judge finds support from certificate of Sub-Registrar-Initial presumption is in favour of claim of vendees—Copies of sale-deeds executed by different persons in respect of different lands, produced by pre-emptor, are not helpful unless it is satisfied that quality of land transferred through such sale-deeds, was identical to land in dispute-Held: There is no force in objection that actual price of land in dispute was Rs. 2,70,000/- and not Rs. 4,00,000/- as claimed by vendees-Both appeals dismissed. [Pp.21&22]F, G&H (iv) Principal and agent-- —Principal and agent—Relationship of—Whether relation between a client and counsel is that of principal and agent—Question of—Held: Relationship of a client and a counsel is recognised in law at the level of relations'of principal and agent—Held further: When an agent acts on behalf of principal even though he is not authorised in prescribed manner for acting as such, principal has authority to ratify act of his agent retrospectively. [Pp.l8&21]D&E PLJ 1987 AJK 76, 1983 CLC 2923, PLD 1988 SC (AJ&K) 42, 1980 CLC 946, NLR 1984 (Civil) 554, 1982 CLC 1275, PLD 1983 Karachi 154, AIR 1958 AP 652, AIR 1953 Bom. 28 and AIR 1960 Calcutta 61 rel. M/s Aleein-ud-Din Chaudhry and Muhammad Basliir Inquilani, Advocates for Appellants. Mr. Muhammad Yousuf Malik, Advocate for Respondent. Date of hearing: 30-11-1989. judgment Mst. Rakiya Bi preempted the sale of land measuring 14 kanal 4 marlas out of land measuring 28 kanal 9 marlas from survey number 1086, situate in village Khor, Tehsil Kotli. The land was sold by Muhammad Sultan in favour of Muhammad Munshi and Muhammad Bashir. The preemptor asserted her superior right of purchase by virtue of:— (/) her relationship with the vendor; and (//) as co-sharer in the suit land. It was averred that the price of the land was settled as Rs. 2,70,000/- and a sum of Rs. 4,00,000/- was fictitious. The same was entered in the sale-deed to defeat her right of prior purchase. The defendant-vendees resisted the suit. Subsequently, by amendment, an objection was raised in the written statement that 'Vakalatnama' purported to be signed by the preemptor, was fake. It was alleged that the purported thumb impression of the plaintiff was forged one, as such the suit was liable to be dismissed on that score. The trial Court sustained the objection and dismissed the suit. On appeal, the learned District Judge, nevertheless, disagreed with the finding of the trial Court and decreed the suit on payment of Rs. 4,00,000/-, the price of the land, in addition to the expenses suffered on the execution of the sale-deed. Both the parties being dissatisfied with the order of the learned District Judge, preferred counter appeals. As both the appeals arise out of common order, these are disposed of together. 2. Chaudhry Aleem-ud-Din, the learned Counsel for the vendees, contended that the learned District Judge was wrong to hold that the thumb impression of the plaintiff-respondent on 'Vakalatnama' Ex.PA, was genuine. It was argued that the evidence was misconstrued on the point. Malik Muhammad Yusuf, the learned Counsel controverted the proposition by supporting the impugned order of the learned District Judge to the extent of acceptance of the superior right of the preemptor. The learned Counsel, in support of the counter appeal filed by the preemptor, challenging the price of the land, argued that the actual price of the land was settled as Rs. 2,70,000/- and the same was paid. The excessive price in the sum of Rs. 4,00,000/- was fictitious and the same was entered in the sale-deed to defeat the right of preemption. 3. The appointment of Counsel to prosecute the suit is contemplated under order 3 Rule 4 of the Code of Civil Procedure. The provisions of Rule 4 postulate that no pleader shall act for any person in the Court, unless he has been appointed for the purpose by a document in writing, signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. It further lays down that the document appointing a Counsel shall be filed in the Court and shall be presumed to be in force until revoked or death of the client or Counsel. It is this condition recognised by law which requires that a Counsel appearing on behalf of a party has to submit 'Vakalatnama' duly signed by the party to whom he represented. 4. In this case, the 'Vakalatnama' as postulated under Rule 4 of Order 3 of the Code of Civil Procedure is accepted to have been filed in the Court.The only objection of the defendants is that the document was not signed by the plaintiff or that the thumb impression on it, was not that of the preemptor-plaintiff. The proposition deserves its examination from various angles. 5. The first act of the Counsel in the case is that he designed the pleadings of the plaintiff, signed and verified it. Rule 14 of Order 6 postulates that every pleading shall be signed by the party and his pleader. Provided that a Counsel may sign the pleading on account of absence of party or for other good cause. Rule 15 further provides that every pleading shall be verified by the party or by some other person acquainted with the facts of the case. It is well accepted rule of procedure applicable to the signing and verification of pleadings that an omission to sign and verify was only an irregularity curable at any stage of the proceedings and not an illegality likely to result in dismissal of the suit. In this case, in the alternative, if it is believed that Counsel was not duly engaged, on account of absence of signatures of the plaintiff, the inference would be that the signatures and verification of the pleadings was not that of an authorised person. In other words, it shall be deemed that the pleadings was neither signed nor verified. Therefore, at the best, in such a situation, the Court has to exercise its discretion and may call the plaintiff to sign and verify the pleadings at subsequent stage for, such a formal defect is rectifiable at any stage. Therefore, even on acceptance of the proposition raised by the defendants, the suit is not liable to be dismissed on account of such defect. C 6. Another aspect of the proposition pertains to the institution of the suit. Rule 1 of Order 4, C.P.C. provides that every suit shall be instituted by presenting the plaint to the Court or such officer as it appoints in this behalf; on presentation of the plaint, the suit is registered with the Court. The law does not provide that the suit has to be presented essentially by party or the Counsel. It only refers to the presentation of the plaint to the Court or officer concerned. Once a suit is presented and registered with the Court, the Court has to issue summons to the defendants to appear and answer the claim on a day fixed for the purpose. The omission in both the cases is merely an irregularity and not an illegality. 7. In order to prove that allegation of forgery of thumb impression, it was enjoined upon the vendee-defendants to prove the allegation satisfactorily. This has not been done in the present case. Evidence of hand-writing and finger print expert led by the defendants was rebutted by the evidence of another hand-writing and finger print expert. In presence of even and balanced evidence of the experts, the onus of proof is not seen to have been discharged. Moreover, the plaintiff who appeared in the Court, made a statement on solemn affirmation in support of afllxini: the thumb impression on 'Vakalatnama' Ex.PA in order to engage Chaudhry Muhammad Hanif as Counsel to institute the suit and to prosecute it on her behalf. Fazal Hussain has also appeared as a witness on behalf of the preemptor. He was not an eye-witness of execution of 'Vakalatnama'. However, he testified that the form of 'Vakalatnama' was sent to England and after its execution, it was received back by him and that he engaged the Counsel to institute the suit or, behall of Ms:. Rakiya Bi. There are some inconsistencies in the statement of this witness but such inconsistencies are not material so much so to outrightly discard his evidence. The learned District Judge rightly construed the evidence of the parties. S. Another factual aspect of the proposition is that power of attorney was completed in a single hand on April 12, 1981. The digit "1" is tampered with as the date of completion of "Vakalatnama' is shown as April 28, but I am convinced to construe it is April 12, instead of April 28. Power of attorney was accepted by the Counsel on May 6, the date when the suit was instituted. Thus, there was an interval of 24 days between the completion of 'Vakalatnama' and its acceptance and institution of the suit. The explanation rendered in the evidence is that •Vakalatnama' on its completion, was sent to England through husband of the plaintiff. She put her thumb impression in England and sent back the •Vakalatnama' through another person who delivered it to Fazal Hussain at Kotli. Fazal Hussain, on receiving the 'Vakalatnama' duly signed by the plaintiff gave it to the Counsel who accepted the same and initiated the civil action. The claim of the plaintiff finds support from the chain of facts resting on time interval, the completion of 'Vakalatnama' in single hand in black ink, supported by the statement of Mst. Rakiya Bi, plaintiff. 9. The relationship of a client and a Counsel is recognised in law at the level! of relations of principal and an agent. In such a situation, when an agent acts on behalf of the principal, even though he is not authorised in the prescribed manner for acting as such at the relevant time, the principal is vested with the authority to ratify the act of his agent with retrospectivity. On this principle, it is permissible to hold that action of Chaudhry Muhammad Hanif, Advocate by signing and verifying the pleadings and institution of the suit, could be ratified by the plaintiff with retrospective effect. 10. A very close proposition to the case in hand was raised in Ghulam Mohiud-Din's case, P.L.D. 1988 S.C. (AJ&K) 42. In that case, the suit was instituted by Counsel who signed and verified the plaint. The 'Vakalatnama' was not signed by the plaintiffs at the time of framing of the suit and its institution. This omission was discovered at subsequent stage when an application was moved for permission to secure the signatures of the plaintiffs on 'Vakalatnama'. The plaintiffs were permitted to sign the 'Vakalatnama' at subsequent stage as in view of the Supreme Court, it was just a formal defect. Moreover, the plaintiff (the principal), under law, was empowered to ratify the act of his Counsel (agent) with retrospective effect. The principle was laid down as under:-- "In the present case, the objection is to the effect that the absence of signatures of the plaintiff on 'Vakalatnama' the pleadings of plaintiff could not be signed by the Advocate nor the same could be presented in the Court. In other words, it was emphasised that in absence of due authority in form of signatures on 'Vakalatnama', it shall be deemed that the plaint was neither signed by the plaintiffs and verified nor it was presented in due course of law. Therefore, there was no suit of plaintiffs before the Court. The answer to the objection is that the rules of procedure contained under Rules 1 and 4 of Order 3 are directory in nature and not mandatory as suggested by the learned Counsel for the appellants. This is so as no public policy is involved nor the provisions are accompanied by a penal clause for its non-compliance. The object of rules is to ensure that facts stated in the pleadings are duly owned by the parties presenting the same and that the pleadings are presented by parties personally or through an authorised person. This check is laid down to avoid fraudulent and fictitious litigation. The interpretation of these provisions received attention of superior Courts frequently. There is no denying fact that the omission to sign 'Vakalatnama' was considered as a formal defect rectifiable at any stage of the proceedings. Moreover, the rectification of the defect was given effect back from the date of institution of the suit. Here, it is relevant to state that omission to sign 'Vakalatnama' on the part of the Counsel or party, is not differernt in degree. Therefore, irrespective of the fact that 'Vakalatnama' was not signed by the party or the Counsel, the formal defect shall have the same effect. In present case, in the application moved at the earliest stage of the proceedings to remove the defect, it was frankly accepted that the omission to sign 'Vakalatnama' was by an inadvertance. On the date of hearing, when the application was moved by the Counsel for removal of defect, Noor Dad, plaintiff was present in the Court as the same is borne out from the interim order of the trial Court. This leads to an inference that the application for removal of defect was made under the instruction and consent of Noor Dad plaintiff who was also attorney of other plaintiffs. The bona fide of the case of the plaintiffs is clearly established from the aforesaid facts. We are, therefore, of the opinion that the absence of signatures of the plaintiffs on 'Vakalatnama' is not an illegality but an irregularity. Such an irregularity is curable at any stage of proceedings." 11. The proposition in question received attention of this Court in Muhammad Khaliq's case, P.LJ. 1987 AJK 76. The relevant observation is:- "At this stage, the obvious question is as to whether in absence of specific authority to institute the suit, the ratification of the actions of attorney can validate the institution of the suit or not. When a person is authorised by principal to act as his attorney or agent in respect of particular property, the scope of such authority is described in instrument, any incidental action to the property of such attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. In absence of ratification of such an action constituting transgression of authority, the principal cannot be held responsible for such an action. On this premises, it is always deemed expedient to uphold even an unauthorised action of attorney in a suit or proceedings, when it is so ratified by the principal." 12. In Nargis Begum's case, 1983 C.L.C. 2923 S.C. (AJ&K), in a petition for leave lo appeal, at the conclusion of arguments, it was discovered that 'Vakalatnama' contained no name of the Counsel nor it was signed by the Counsel. The learned Chief Justice held that the absence of name of the Counsel and signatures of Counsel on 'Vakalatnama' was an irregularity curable under law. The relevant observation is at paras 3 and 5 of the judgment as under:- "3. The arguments on the above stated points were concluded at Mirpur on 7th April, 1981. However, before writing the judgment, it was brought to my notice that Mr. B.A. Sheikh, Advocate who appeared and argued the case on behalf of the petitioners, does not seem to have been validly appointed as the body of 'Vakalatnama' neither enters his name nor the Vakaiatnama' is signed by him to show his acceptance. 5. After giving my considered thought to the issue, 1 have formed the view that the above noted defects in the 'Vakalatnama' do not invalidate the petition for leave to appeal. My conclusion is based on the following grounds:- (1) The omission to enter Mr. Sheikh's name in the body of the 'Vakalatnama' appears to be through mistake. No deep thought is required to trace out the reasons. The 'Vakalatnama' bears the signatures of the petitioners which show that the petitioners have engaged the Counsel. Who is that Counsel? There is and was no allegation that the signatures on the 'Vakalatnama' were not those of the petitioners. The fact which it is not disputed that Mr. B.A. Sheikh had signed the petition for leave to appeal coupled with the fact that the 'Vakalatnama' is signed by the petitioners conveys a clear impression that it was Mr. Sheikh who was appointed by the petitioners as their Counsel. (ii) It is well-recognised principle of law that accidental omission of the name of a pleader from the body of 'Vakalatnama' (a technical defect), is mere an irregularity and cannot invalidate the 'Vakalatnama'. (iii) I may quote rule 4 Order 3 of the Code of Civil procedure. It provides:-"No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such preson by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney." The close reading of this rule would show that the only requirement under the aforementioned provision is that a pleader shall be appointed by a person. It is not visualised that the pleader must formally accept the appointment. Such acceptance, however, can be gathered from the acts performed by the pleader. In the present case, as elsewhere said, there is no allegation that the petitioners had not engaged Mr. B.A. Sheikh as their Counsel nor it is disputed that the petition for leave to appeal does not bear his signatures. In these circumstances, it is only an irregularity which could be remedied by getting the entry of the name of the Counsel in the body of the 'Vakalatnama' and also getting his signatures. This was got done by me in the open Court." 13. The aforesaid view was approved in Muhammad Sarwar's case, 1980 C.L.C.946 (Lahore). In that case, the 'Vakalatnama' and memorandum of appeal were not signed by the appellant. The respondents raised an objection seeking dismissal of the appeal. The learned Judges constituting Division Bench, repelled the objection by holding that the absence of signatures on memorandum of appeal and 'Vakalatnama' was mere an irregularity rectifiable under law. 14. In Muhammad Bibi's case, N.L.R.1984 (Civil) 554. and objection was taken that 'Vakalatnama' of Counsel who instituted the suit by signing and verifying the plaint was not signed by the preemptor. It was urged that the suit may be dismissed. The objection was accepted by the trial Court; however, in appeal before the High Court, the order of the trial Court was reversed. It was observed that non-signing of plaint and 'Vakalatnama' was purely an irregularity and not an illegality. It is relevant to state here that it was a preemption suit like the present one and the defect of absence of signatures was pointed out after the expiry of limitation applicable to preemption suits. 15. In Khayam Film's case, 1982 C.L.C.1275, the learned judge who spoke for the Court, held an extreme view, even ahead of aforesaid consensus. It was held that the authority for institution of the suit by counsel, was questionable only by the client on whose behalf the suit was instituted and not by the opposite party. This principle was illustrated on the premises that when a counsel who instituted the suit and prosecuted it throughout and his performance of functions as counsel was not questioned by the client, it was permissible to be presumed that the action of the counsel on behalf of his client, tantamount to ratification by the client. 16. In Ibrahim Ismail's case, P.L.D.1983 karachi 154, Mr. Justice Naeem-ud- Din observed that the presence of signatures of Counsel or client on 'Vakalatnama', was in token of acceptance of appointment of Counsel. Despite absence of signatures, when the Counsel appeared in the case and prosecuted it throughout, it was a sufficient proof of his acceptance of brief. An objection relating to the absence of signatures, was declared as technical fault. 17. In Hyderabad Import Export Company's case, A.I.R.1958 A.P.652, an application was made for execution of the suit. It was preferred by counsel without 'Vakalatnama'. The opposite party sought dismissal of the application for want of proper authority. The objection was turned down by presentation of 'Vakalatnama' of the Counsel at subsequent stage, after the lapse of the period of limitation for execution. Similar view was recorded in Dahyabhai Girdhasdas V. Bobaji Dahyaji, A.I.R.1953 Bom. 28 and in A.I.R.1960 Calcutta 61. The consensus is that when a counsel acts in a case even in absence of 'Vakalatnama' or signature on 'Vakalatnama', unless his authority is denied by the client (principal), the omission of filing the 'Vakalatnama' or securing signatures on it was considered merely an irregularity and not an illegality. In present case, Mst. Rakiya Bi who appeared in the Court, expressly stated on solemn affirmation that she put her thumb impression on ' Vakalatnama' and engaged Chaudhry Muhammad Hanif, Advocate to institute the preemption suit and prosecute it on her behalf. Chaudhry Muhammad Hanif died somewhere in 1984. He prosecuted the suit of preemption throughout. His authority was not questioned by the plaintiff. In the circumstances, it has to be accepted that Chaudhry Muhammad Hanif was authorised to frame the plaint, sign and verily it and to institute the suit on behalf of Mst. Rakiya Bi. The presumption was obviously in favour of engaging him as counsel by the plaintiff. 18. The proposition of forgery of signatures on 'Vakalatnama' ascribed in Fazal Hussain's case. P.L.D. 1982 "S.C. (AJ&K) 89, was decided in a different context. The attention of the court was not invited to the legal aspect of the proposition so as to accept that even if the signatures were forged one, it would tantamount to absence of signatures. In addition to that, when a counsel prosecuted the action on behalf of his client and his authority was not challenged by the plaintiff, the presumption was in favour of engaging the counsel to act on behalf of the party. Likewise, the decision of the Supreme Court recorded in Azad Jammu and Kashmir Government's case, P.L.D. 1984 S.C. (AJ&K). 13, was distinguishable from this case. The objection of the learned counsel of the vendees is, therefore, repelled. 19. Mr. Muhammad Yusuf Malik, learned counsel argued that the learned District Judge was wrong to fix the price of the land as Rs.4,00,000/-. He invited my attention to different sale-deeds produced on behalf of the preemptor to satisfy that the actual price of the land was Rs.2,70,000/- and not Rs.4,00,000/- as claimed by the vendees. 20. The price of the land settled by the learned District Judge finds support from the certificate of sub-Registrar who registered the sale-deed. It is evident from the endorsement of Sub-Registrar that a sum of Rs.4,00,000/- was admitted and paid as price of the land. The initial presumption is, therefore, in favour of the claim of the vendees. In rebuttal, the preemptor produced various copies of sale- deeds executed by different persons in respect of the different lands. These sale- deeds are not helpful, unless it is satisfied that the quality of the land transferred vide such sale-deeds, was identical to the land in dispute. Mr. Muhammad Yusuf Malik, agreed that the preemptor failed to adduce evidence to satisfy that the quality of the land in dispute was similar to the kind of the land transferred through the sale-deeds produced by the plaintiff. There was no other evidence on record to record disagreement with the learned District Judge. No force is found in the objection. It is, therefore, not sustained. In the light of the above discussion, both the appeals are devoid of any force. These are, therefore, dismissed. No order as to costs. The decretal amount shall be deposited with the trial Court upto February 25, 1990, otherwise the plaintiffs suit shall stand dismissed. (MBC) Both appeals dismissed.

PLJ 1990 AJK 22 PLJ 1990 AJK 22 Present: abdul majeed mallick, CJ HABIB BANK LTD. and 3 others-Appellants versus Mst. RAJ BEGUM-Respondent Civil Appeal No. 33 of 1988, dismissed on 20-1-1990. (i) Document-- —Document—Production in evidence of—Procedure for—Whether order of Magistrate, not duly proved, could be considered in evidence—Question of— Rules of procedure and provisions of Evidence Act postulate that a document desired to be produced in evidence, must be duly proved in compliance with conditions laid down in procedure and Evidence .Act-But this is not absolute rule—Held: It is permissible to read a document in evidence when its genuineness is unquestionable and undisputed-Held further: Order of Magistrate recorded on complaint of Appellant No.4 can. be examined under said principle. [P.24]A PLD 1989 SC (AJ&K) 45 rel (ii) Recovery-- —Recovery of amount—Suit for—Decree in—Challenge to—It is clear from order of Magistrate that Appellant No. 4 instituted a complaint against one Habibur Rehman for withdrawing amount by deception from account of respondent—Held: Institution of complaint tantamounts to admission of claim of respondent (Plaintiff)~Held further: Bank Manager and his staff, in derogation to their duty, allowed withdrawal which is a clear case of their negligence—Appeal dismissed. [P.24JB&C Mr. Abdul LatifDutt, Advocate for Appellants. Mr. Muhammad Sharif Tariq, Advocate for Respondent. Date of hearing: 20-1-1990. ordi-r The appeal is addressed against the order of learned Additional Sub Judge, Mirpur passed on August 30, 1988, whereby decree for payment of Rs.9800/- in addition to Counsel fee in the sum of Rs.550/- was passed in favour of Mst. Raj Begum, plaintiff-respondent and against defendant-appellants. 2. Defendant-appellant No.l is Habib Bank Ltd. Jalalan Branch and Khadim Hussain, defendant-appellant No.4 is the Manager of the Bank. Mst. Raj Begum opened her account in Habib Bank Ltd. Jatalan Branch in September, 1974 under account No.1133. She deposited the amount in the Bank from time to time. A sum of Rs.9800/- was withdrawn from her account on August 4,25,Seplember 16, November 1, 1975 and January 3, 1976. In 1976, she approached the Manager of the Bank for payment of the amount to her when she learnt thai the aforesaid amount was withdrawn from her account previously. She denied to have withdrawn the amount on which she was apprised that the amount was withdrawn by a woman on the identification of Habibur Rehman son of Fazal Khan Chib Rajput of Ghazi-Gorah Tchsil Bhimber. Khadim Hussain, the Manager of the Bank Jatalan Branch, on apprehending foul play approached Habibur Rehman who accepted the liability by giving undertaking in writing for refund of the amount. On his failure to remit the amount, the Bank Manager instituted criminal proceedings against said Habibur Rehman under Sections 419 and 420, Penal Code. As the amount was not accounted for. Mst.Raj Begum instituted a civil suit for recovery of the amount on March 5.1977. She raised the aforesaid facts in her pleadings. The suit was contested by the Habib Bank Authorities and Khadim Hussain, the Manager of the Bank. The learned Additional Sub Judge decreed the suit. 3. Mr. Abdul Latif Dutt, the learned Counsel for the appellants assailed the finding of the learned Additional Sub Judge. It was emphasised that the impugned decree was passed without any evidence and proof of the claim of tlje plaintiffrespondent. The learned Counsel urged that plaintiff herself received the amount.In the alternative, it was suggested that unless impersonation was established by evidence, the Bank was not responsible to account for the amount in dispute. The contention was opposed by Mr.M.S Tariq, the learned Counsel for the respondents who supported the impugned order. 4. It is admitted that Mst. Raj Begum is the holder of account No.1133 in Habib Bank Branch Jatalan. It is also admitted that the amount in dispute was withdrawn from the Bank on different occasions. It is averred by Khadim Hussain, in his written statement that a complaint under Sections 419 and 420, Penal Code was instituted before the Magistrate on September 5, 1976, wherein Habibur Rehman was ascribed impersonation and deception. 5. Mst. Raj Begum has not appeared as a witness. She produced Subedar (retd.) Muhammad Shafi and Muhammad Rafique. Both these witnesses deposed in support of execution of an agreement Ex. PA, whereby Habibur Rehman, on acceptance of the liability of the amount, agreed to repay it. In rebuttal, Abdul Khalique, Manger of the Bank, Habib Bank Ltd, Jatalan Branch appeared as a witness.He produced record of the account No.1133 and statement of account, in addition to forms issued from time to time in respect of the aforesaid transaction of withdrawal of the amount. 6. The oral evidence produced in support of execution of document Ex. PA, is an indirect support of the claim of the plaintiff.However, copy of the order of the Magistrate passed on February 17,1977, directly lends support to the claim of the plaintiff. Mr. Abdul Latif Dutt, the learnced Counsel argued that the order of the learned Magistrate cannot be read in evidence as the same was neither tendered in evidence nor proved as such. 7. It is correct that the rules of procedure and the provisions of the Evidence Act postulate that a document, desired to be produced in evidence, must be uly proved as such, in compliance with the conditions laid down under the procedure and the Evidence Act. But this is not an absolute rule. It is permissible to read a document in evidence when its genuineness is unquestionable and not disputed. This view finds support from Maqsood Hussain Shah's case, P.L.D. 1989 S.C. AJ&K 45, wherein it was held that an undisputed public document, the A genuineness of which is not questioned, though not received and proved in evidence under the rules of procedure, can be considered in evidence. On the basis of the aforesaid authority, it is permissible to examine the order of the learned Magistrate, recorded on the complaint of Khadim Hussain against Habibur Rehman, under Sections 419 and 420, Penal Code. The objection is, therefore, not sustained. 8. It is quite clear from the copy of the order of the Magistrate that Khadim Hussain instituted a complaint against Habibur Rehman for withdrawing the amount by deception, at various times. The complaint was dismissed for want of proof. Be that as it may, the fact remains that the Bank himself was satisfied that the amount was not withdrawn by the account holder but by a third person by impersonation and deception. Institution of the complaint tantamounts to admission of the claim of the plaintiff. 9. A Bank is the trustee of the account holder. It is enjoined upon the Bank to ensure that no withdrawal is made by a thrid person to the detriment of the true account holder. The rules of procedure applicable to Bank transactions, equally enjoined upon the Bank authorities to satisfy themselves before making payments on a cheque or otherwise. In this case, it appears that the Bank Manager and his staff, in derogation to their duty, allowed withdrawal from the amount of the plaintiff-respondent. Thus, it is a clear case of negligence of the Bank staff and the Manager. The Habib Bank is the principal and its employees act as its agents. The principal is equally responsible for the negligence, omission and commission of its agents. Therefore, the liability when not suffered by the Manager of the Bank, its agent, then the liability has to be statisfied by the Bank itself. The order of the learned Additional Sub Judge suffers from no defect. It is, therefore, maintaned. 10. There is no force in the appeal. It is accordingly dismissed with costs. (MBC) Appeal dismissed.

PLJ 1990 AJK 25 PLJ 1990 AJK 25 Present: ABDUL MAJEED MALLICK., CJ REHMAT ALI-Appellant versus FAZAL HUSSAIN and 8 others-Respondents Civil Appeal No. 39 of 1988, accepted on 27.1.1990 Civil Procedure Code, 1908 (V of 1908)-- —O.XVII R.3 read with O.IX R.2-Non-depc.sit of proclamation expenses- Pre-emption suit-Dismissal of-Challenge to-Suit was at initial stage when vendee defendants had already appeared and vendors were being summoned- In dismissing suit, provisions of O.XVII R.3 were wrongly applied-For this purpose O.IX R.2 was available-Contesting defendants whose presence was necessary for decision of case w'ere already before Court-Presence of vendor defendants was not essential for decision of suit-Imposition of penalty under O.IX R.2 rests on discretion of Court v/hich is to be exercised sparingly-Held: Omission on part ot plaintiff to pay expenses for substituted service on vendordeL-ndams. does not warrant penalVy

.n shape of dismissal of suit-Appeal remanded for decision on merits. [Pp.26&27]A,B,C,D&E AIR 1920 Patna 820 and AIR 1921 Patna 422 (1) rel. Raja Muhammad Siddique, Advocate for Appellant. Adia Ashiq Hussuin. Advocate for Respondents. Date of hearing: 2~. 1.1990. order The second appeal is addressed against the order of Additional District Judge. Bhimber. passed on August 30, 1988 whereby the order of Sub Judge, Bhimber. passed on August 30, 1987, resulting in dismissal of the suit of the piamtiir'-appct'ant, was maintained. 2. Rehmat Ali brought a suit for declaration and possession by pree

-, 1 p t i on of the suit land measuring 48 Kanal 15 marlas and 1 1/2 sars.ais out bi Khewn Nos. 53/10. 109 and 113, situate in village Kot, Tehsil Bhimber. On payment of Rs.XUiOO/-. its price. It was alleged that Muhammad Alam, M/uhammad Hashim Begum Bibi and Rani, defendants, alienated the suit land thvough a registered sale-deed executed on July 7, 1986 in favour of Fazal F lUS sain and others defendants No.5 to 9, in excess of their prescribed share ir, the suit land In the alternative, it was alleged that the plaintiff was a co-sharer and 'yak jaddi' of the vendors, as such he enjoined a superior right of purchase in respect of the suit land. He offered to pay Rs.50,000/- as price of the land and alleged that Rs.2.20,000/- were entered in the sale-deed fictitiously in order to defeat the superior right of the-preemptor. Fazal Hussain and others, vendees appeared through Counsel. Mst.Rani, one of the vendors, failed to appear despite service She was proceeded against exparte. Muhammad Alam, Muhammad Hashim and Mst. Begum Bibi were reported to be residing in Pakistan. On May 6 1987 it was ordered that the aforesaid vendee-defendants could not be served ordinarily, therefore, substituted service be effected by issuing a proclamation in newspaper. The plaintiff was directed to deposit the requisite expenses within fortnight from the date of the order. The plaintiff-preemptor failed to deposit the necessary expenses, on which his suit was dismissed on August 30, 1987 under Order 17, Rules 3 of the Civil Procedure Code. The appeal before the Additional District Judge failed. 3. Raja Muhammad Siddique, the learned Counsel for the appellant, argued that the provisions of Order 17. Rule 3 of the Code were not attracted in the case for failure to deposit the process fee. Agha Ashiq Hussain, the learned Counsel for the opposite side, controverted the contention by supporting the impugned order. 4. Order 9, Rule 2 of the Civil Procedure Code postulates that where on the day fixed by the Court for the defendant to appear and answer, it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges chargeable for such service, the Court may make an order that the suit be dismissed. Nevertheless, such order is not to be passed when the defendant attends the Court in person or by agent on such day. It is an express provision of law applicable to the proposition relating to failure of plaintiff to pay expenses or cost for effecting service on the defendant. Order 17, Rule 3 of the Code, next, postulates an eventuality where any party to a suit to whom time has been granted, tails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court is empowered, notwithstanding such default, to proceed to decide the suit forthwith. The language used in rule 3 explicitly provides for action of the Court resulting in a decision on failure of either of the parties to the proceedings to perform any of the functions listed above. 5. The present suit was at the initial stage when the vendee-defendants had already appeared and vendors were being summoned. The learned Sub Judge was wrong in applying the provisions of Rule 3, Order 17 of the Code in dismissing the suit. However, this power was available to him under Rule 2 of Order 9 of the [Code. 6. The order of dismissal of the suit was subject to an exception in the present case as the contesting defendants whose presence was necessary for the decision of the case were already before the Court. The defendants sought to be served were vendors. They had no interest, whatsoever, in the suit property as the same was already transferred by them through sale. Their successors-in-interest, however, were iri a position to defend their title. But at ihe same time, they were a proper party. Their presence was not essential for decision of the suit. 7. In his pleadings, the plaintiff-appellant has described as to how much of the land was alienated in excess to the share of the vendors. The pleading is very vague. Prima facie, it suggests that the plaintiff had no cause of action on that score. However, the pleadings, when examined as a whole, do reveal that the plaintiff actually instituted the suit for possession by preemption. He raised express grounds constituting his prior right of purchase as: (/) a co-sharer in the suit land; and (ii) collateral of the vendors. When the case is considered from this angle, it has to be accepted that it is definitely a preemption suit. Thus, the presence of the vendors is not essential for an effective and conclusive adjudication of the points at issue. Therefore, the omission to pay the process fee or necessary expenses for effecting service on the vendors, is not fatal warranting dismissal of the suit. 8. The rules of procedure are framed for advancing the cause of justice. These rules do provide a channel of procedure for effectual and expeditious trial of suit. The imposition of penalty listed under Rule 2 of Order 9 of the Code, rests on the discretion of the Court. This discretion is to be exercised sparingly only, in a case of grave negligence, and not in routine. Therefore, the omission on the part D of the plaintiff, in this case, to pay the expenses for effecting substituted service on vendor-defendants, does not warrant penalty in the shape of dismissal of his suit, particularly including those defendants who were already served and present before the Court. The order is defective. It necessitates interference of this Court, i 9. In an identical situation, in B. Surendra Mohan's case, A.I.R. 1920 Palna 820, the order of dismissal of suit for failure of the plaintiff to file an affidavit of service of summons upon the guardians of two minor defendants, was reversed at least to the extent of the defendants present before the Court. The relevant observation is reproduccd:- "We can find nothing in the Code to justify the learned Munsif in dismissing the suit as against the major defendants. What he should have done was 10 direct the plaintiff to proceed with his case-as against the other defendants, making a note in the order sheet that the decree would not be binding upon the minor defendants. This course was not taken. The order as passed by the Munsif was clearly without jurisdiction and must be set aside. The order dismissing the suit for default is set aside." In Ramanand Singli's case. A.I.R. 1921 Patna 422(1) (D.B). a mortgage-suit dismissed as a whole, for default of the plaintiff to pay process fee for service on the guardian of a minor, one of the defendants, was restored as against all the defendants. The learned Judge, who spoke for the Court, held: "It is clear to me that the order of the Court was not correct. The 28th February had been fixed only for the payment of process-fees in respect of one of the defendants who was a minor, and the rest of the defendants who were adults had appeared and filed written statements. The default of plaintiff to pay process-fees on the date fixed for the payment in respect of one of the defendants could be no justification for dismissal of the suit as against the adult defendants." . In view of the aforesaid aspect of the proposition, the appeal succeeds. The order of tbe learned Additional District Judge and that of the Sub Judge are hereby set aside and the case is restored to the file of Sub Judge, Bhimber, for its decision on merits. The parties are directed to appear before the trial Court on February 17, 1990. (MBC) Appeal accepted

PLJ 1990 AJK 28 PLJ 1990 AJK 28 Present: ABDUL MAJEED MALLICK, C.J SAIDA and others—Appellants versus KALA and 2 others-Respondents Civil Appeal No. 50 of 1987, accepted on 1S-3-1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XLI R. 1-First appeal-Failure to append copy of decree-Admission of appeal—Whether appeal was incompetent—Question of—Rule 1 of Order XLI postulates that appeal shall be accompanied by a copy of decree appealed from—However, court can dispense with copy of decree for sufficient cause- After admission of appeal, proper and equitable course was to allow filing of copy of decree sheet—Held: First appeal being defective, second appeal is also incompetent—Held further: In order to eliminate effect of mischief resulting in injustice, revisional jurisdiction is invokable—Case remanded. (Pp.29&32]A,B,C&D AIR 1961 SC 832, PLD 1983 Peshawar 215, PLD 1959 AJK 31. PLD 1984 AJ&K 61 and 1980 CLC (SC (AJK)) 530 ref. Malik Muhammad Yousuf, Advocate for Appellants. Mr. Aleemuddin, Advocate for Respondents. Date of hearing: 18-3-1990. order The second appeal is addressed against the order of learned District Judge, Kotli, passed on June 27, 1987, whereby the appeal preferred against the order and decree of Sub Judge, Kotli, passed on November 30, 1982, was dismissed. 2. Kala Khan brought a suit for possession in respect of land measuring 4 kanal 5 marlas out of 15 kanal 19 marlas, comprising survey number 236/48, situate in village Narali, Tehsil Kotli, against Faiz Muhammad and others, in the Court of Sub Judge, Kotli. It was averred that the plaintiff had purchased land measuring 19 kanal 15 marlas vide registered sale-deed executed on Jeth 14, 1994 Bk. Out of the land purchased by the plaintiff, the suit land remained in possession of the defendants on account of relationship. On demand of possession, the defendants repudiated the claim of the plaintiff, as such he felt constrained to bring action against them. The suit was instituted on February 4, 1971. The defendants resisted the suit, among others, on the ground of adverse possession as well. On April 19,1980, Saida, Muhammad Iqbal, Rehmat Jan, Said Bi and Karamat All instituted a counter suit for declaration on the basis of title in respect of land comprising survey numbers 115/1, 113, 118 and 119, situate in village Narali, against Kala and others. It was averred that the suit land was in the ownership and possession of the plaintiffs but during the recent settlement, by collusion, Kala defendant acquired entries of ownership in the settlement record in his favour, to the detriment of the plaintiffs. Kala resisted the suit by denying all the averments made by the plaintiffs. Both the suits were consolidated and disposed of together. The suit of Kala was decreed whereas the counter suit was dismissed for want of proof. Saida and others went in appeal before the District Judge, wherein the decision of the Sub Judge on both counts was assailed. The learned District Judge dismissed the appeal in respect of decree passed in the suit of Kala against Faiz Muhammad and others as the memorandum of appeal was unaccompanied by the decree sheet in the light of provisions of Order 41, Rule 1, Civil Procedure Code. On second count, the appeal was dismissed for want of sufficient evidence. These orders are assailed in the present appeal. 3. Mr. Aleem-ud-Din has raised a preliminary objection that the second appeal is not entertainable as the memorandum of first appeal was naccompanied by copy of the decree passed by the trial Court. As the first appeal was not competent, the second appeal, obviously, was unentertainable. Malik Muhammad Yusuf, the learned Counsel for the appellants controverted the aforesaid objection. It was emphasised that both the suits were tried and disposed of together, as such a single copy of the decree was to be appended with the memorandum of appeal. The learned Counsel made reference to A.I.R. 1940 Patna 176, A.I.R. 1953 S.C. India 419, A.I.R. 1927 Lahore 289, A.I.R. 1922 Lahore 390, PLD 1986 AJK 73 and 1986 C.L.C. (Lahore) 1033. 4. The immediate proposition inviting attention of the Court pertains to the effect of failure to append copy of the decree appealed against in the Court of District Judge. The proposition is to be resolved in the purview of Rule 1 of Order 41, Civil Procedure Code. 5. Rule 1 postulates that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader. Such memorandum shall be accompanied by a copy of the decree appealed from and copy of the judgment on which the decree is founded unless it is dispensed with by the appellate Court. The language used in the Rule reflects that this provision is mandatory. However, the rule is not absolute as the Court is empowered to dispense with copy of the decree and judgment for sufficient cause. 6. It is imperative that on presentation of memorandum of appeal, the officer entrusted with receiving the memorandum is enjoined upon to ensure that the appeal was validly presented. On finding any defect at the time of presentation of the memorandum, it was desirable that such defect may be brought to the notice of the appellant so that it was removed in due course of time. Once an appeal was admitted for regular hearing and notice was issued and subsequently it was discovered that the appeal was defective for being not accompanied by the decree-sheet, the proper and equitable course, firstly, was to allow the filing of tli copy of the decree-sheet. In presence of satisfactory explanation for omission lo file copy of the decree, the Court could condone the delay on filing the copy thereafter. In an identical situation, the Supreme Court of India in Jagat Dhish Bhargava's case, A.I.R. 1961 Supreme Court 832, observed: " The requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. No hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under O. 41, R.I. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the iniiial stage soon after they are filed and the appellant required to remedy the defects. If at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. In such a case, if the office of the High Court examines the appeal carefully and discovers the defect the appeal may be returned to the appellant for presentation with the certified copy of the decree after it is obtained. If the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearint: of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. In such a case it would be open to the High Court, and it would be its duty, to direct the subordinate Court to draw up the decree forthwith without any delay. On the other hand, if a decree has been drawn up and an application for its certified copy has been made by the appellant after the decree was drawn up, the office of the appellate Court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits." InHajiJchanzcb's case P.L.D. 1983 Peshawar 215, it was held: "Reverting to the facts of the case one finds that the office of the District Judge had been negligent in handling the appeal as it was found to be in order when checked on 2-2-1977 and later the same day heard in limine and admitted to regular hearing by the appellate Court too. The learned counsel for the petitioner is not far wrong to contend that had the office pointed out that the appeal was not accompanied by the copy of the decree sheet and returned it to the appellant, the error would have been rectified as there was still time available for filing of the appeal till 13-2- 1977. The requirement of Order XL.I, rule 1, C.P.C. that certified copy of the decree is to be filed along with the memorandum of appeal is .mandatory and in the absence of the decree the appeal would be incomplete, defective and incompetent, but then the most important step that is to be taken in case of defective presentation of the appeals is that they should be carefully scrutini/ed at the initial stage soon after they are filed and the appellant be directed to remedy the defecis. After the appeal has passed through the stage of admission through oversight of the office then the fair and rational course to adopt was to adjourn the hearing of the appeal with the direction that the appellant should produce the certified copy of the decree as soon as it is obtained. If it was not so done the litigant deserved lo be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As the office of the District Judge was equally negligent in not pointing out that the appeal was defective being not accompanied by a decree sheet, with the result that it was admitted to regular hearing, the proper and equitable course for the District Judge was to have passed an order condoning the delay in filing the copy of the decree sheet and thereafter decided the appeal on merits." The other course open to the Court is that on finding the appeal defective for its being unaccompanied by a copy of the decree, it can dismiss the appeal on account of that defect. This view was expressed in Suleman KJian's case, P.L.D. 1959 AJ&K 31; Ali Zaman's case, P.L.D. 1984 AJ&K 61 and Imam Gal's case, 1980 C.L.C. (SC AJ&K) 530. 7. In present case, an explanation is advanced in the memorandum of appeal presented in this Court wherein it is stated that the appellants secured the copies of the separate decree of the trial Court and delivered the same to their Counsel who unfortunately failed to append the same with the memorandum of appeal, as such the defect, if any, was not due to omission on the part of the appellants. The learned Counsel who represented the appellants before the District Judge, has died, as such an assurance in the form of an affidavit from him could not be secured. This explanation finds support from the record of the trial Court as in his application of December 6, 1982, the appellant applied for issue of copies of judgments and decrees passed in both the suits. The copies are shown to have been issued to the clerk of the Counsel. Thereafter, it is not known as to why the copy of the decree in the counter suit was not appended with the memorandum of appeal. Be that as it may, the fact remains that the memorandum was unaccompanied by the copy of the decree passed in the second suit. 8. An important distinct aspect of the proposition is that suits instituted by both the parties are of quite different and independent character. The parties partly are the same in both the suits but the property is different. For, in the suit of Kala, the dispute pertains to land measuring 4 kanals 5 marlas out of 15 kanal 19 marlas; the suit land comprised survey number 236/48 whereas in the counter suit, Saida and others alleged their claim in respect of land comprising survey numbers 115/1, 113, 118 and 119. These survey numbers were neither part of survey number 236/48 nor, in any manner, the claim of the plaintiffs in the counter suit was identical with the counter claim of Kala. The suits, therefore, should not have been consolidated, rather decided independently. Thus, consolidation of the suits on February 24, 1981 and framing of additional issues in fact created a confusion vis-a-vis the respective rights of the parties. Such a state of confusion is supported by the fact that the memorandum of appeal before the District Judge was accompanied by the copy of the decree prepared in the suit of Saida and others against Kala and others and the judgment passed in the suit of Kala against Faiz Muhammad and others. Thus, the order of consolidation of suits, was the cause of the whole mischief. 9. Next, it is noticed that the learned District Judge misdirected himself by dismissing the appeal, as a whole, on both counts. Once it was satisfied that the memorandum of appeal was accompanied by a copy of the decree prepared in the case "Saida and others Versus Kala and others," the learned District Judge should have decided the appeal to that extent on merits. This has not been done. The order of the learned District Judge is, therefore, patently defective, as such nsustainable. 10. One of the objections raised against the order of the trial Court before the District Judge was that the decree passed in the suit of Kala was defective. It was emphasised that Kala brought the suit for possession of land measuring 4 kanal 5-marias out of 15 kanal 19 marlas. His claim was that out of the land purchased by him, land measuring 4 kanal 5 marlas remained in possession of the defendants. The evidence led by the parties discloses a different position. The sale-deed by virtue of which kala acquired title in the suit land described that the area of survey number 48 was 49 kanal 19 marlas, out of which 15 kanal 19 marlas was purchased by Kala from Boota. On this premises, the learned Sub Judge should have passed decree for joint possession and not for exclusive possession. The learned District Judge over-ruled the objection as in his view this proposition could have been resolved by the executing Court. This is not correct. The fact of the matter is that the executing Court is to execute a decree strictly in accordance with the terms and conditions of the decree passed by a competent court. Therefore, the decree being of exclusive possession was absolutely not executable. It was manifestly an incorrect decree. 11. The propositions listed above are to be resolved in exercise of revisional jurisdiction. For the first appeal being defective, this second appeal is also incompetent. In order to eliminate the effect of the mischief resulting in injustice, revisional jurisdiction vested in this Court is invokable in this case. Therefore, in exercise of the powers of revision contemplated under Section 115 of the Code of Civil Procedure read with Section 35 of the Courts and Laws Code, 1949, both the orders are hereby set aside and the cases are remanded to the Court of Sub Judge, Kotli for their separate trials and decision on merits. (M.B.C) Revision accepted.

PLJ 1990 AJK 32 PLJ 1990 AJK 32 Present: ABDUL MAJEED MALLICK, C.J JAHANGIR AKHTAR-Petitioner versus INAYAT AHMAD and 2 others-Respondents Civil Appeal No. 04 of 1990, accepted on 28-2-1990 Civil Procedure Code, 1908 (V of 1908)-- —O. VII R. ll(a)--Plaint~Rejection of-No cause of action-Ground of - Challenge to-Plaintiff invoked jurisdiction of civil court for securing perpetual injunction-Averments made in plaint, piima facie constituted a cause of action by showing interest and right of plaintiff to use and occupy premises and site unless evicted in due course of law—Plaint was rejected by Sub Judge on appraisal of receipts appended wilh plaint and site plan-Rule 11 does not conceive of evidence proposed to be produced in support of respective claims of parties-Held: Both impugned orders are quite derogatory to scheme of law postulated under O. VII R. 11 of CPC—Petition accepted and case remanded. [P.35]A,B&C Ag/ia Ashiq Hussain, Advocate for Petitioner. Mr. M. Azeem Dull, Advocate for Respondents. Date of hearing: 28-2-1990 order The petition is addressed against the order of the learned District Judge, Mirpur, passed on November 25, 1989, whereby order of Sub Judge, Mirpur, passed on July 30. 1989, resulting in rejection of plaint of the petitioner, was maintained, 2. Jahangir Akhtar brought a suit for perpetual injunction in respect of a shop constructed over an area measuring 19" x 6' in Sector B-l, Shopping Centre. Nangi. Sarafa Ba/ar. Mirpur cily. in the Court of Sub Judge, Mirpur. on October 16. 19SS. It 'Aas a r .err:-d that the plaintiff-petitioner acquired open sile measuring 19' x '•'' on payment of rent and uith the permission of the Municipal Committee, the owner of the iand. raised a shop. He regularly paid the rent for the use and occupation of the site in the shape of the shop. Plot No. 236 owned 'by the defendants was situate on the eastern side of the said shop. The defendants having no right or authority were determined to demolish the shop and cover the area under it in jxtendini: their construction. He also applied for grant of interim injunction. The Lamed Sub Judge initially allowed the interim injunction on the da\ ol institution of tiie suit. The defendant-respondents, in their written statement, repudiated the claim of the plaintiff and averred that the land in question was. in fact, part of plot No. 236 which was acquired by them in their own name It u.is further averred that there being no cause of action, the suit of the pl,i;ii!;,l was liabL to be turned down. They also applied for vacation of the in; ur :.T: injunction. On July 30. 1989, on presentation of written statement, the lea.-n^d Sub Judge rejected the plaint. This order was maintained by the District Judge. Thus, the findings of the subordinate Courts are assailed in the present 3. Agha Ashiq Hussain, the learned Counsel for the petitioner, argued that both the Courts misdirected themselves by rejecting the plaint of the plaintiff for '«an;. ol cause ol action. It was emphasised that the allegations entered in the plaint, prima facie, constituted a cause of action, as such the plaint was not liable to be rejected. Reference was made to PLD 1954 Sind 70, PLD 1971 Karachi 250 and PLD 1983 Lahore 278. Mr. M. A/eem Dull, the learned Counsel for the opposite side, controverted the aforesaid contentions and argued that the plaintiff hau no locus standi to institute the present suit in the present form. It was argued that the site in dispute according to the plaintiff, was in the ownership of Municipal Committee, as such the Municipal Committee was competent to bring the action. The learned Counsel argued further that in fact, the site in dispute was part of plot No. 236 which was in the ownership and possession of defendants. Thus, the orders passed by the subordinate Courts were quite legal, as such sustainable. He cited 1984 C.L.C. 726. 4. The impugned orders have been passed in the manner of rejection of plaint as contemplated under Order 7, Rule 11, CPC. Rule 11 postulates four conditions under which a plaint has to be rejected by the Court. These conditions arc:- («) where the plaint does not disclose a cause of action; (/;) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be Fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law. Condition (a) applies to the present case. It pertains to disclosing of a cause of action. It is, therefore, relevant to appraise the term "cause of action". Ordinarily, the expression "cause of action" relates to averments of facts constituting the claim or right of the plaintiff, against the defendant, necessitating an action in the Court of Saw. Thus, the statement of main facts alleged in the body of the plaint referring to infringement of rights, constitutes a cause of action. The expression "cause of action" was examined»by this Court in Mst. Resham Jan's case (PLD 1981AJK-16) as: " The expression "cause of action" used in the Code in its general sense, refers to and signifies averment of fact or state of facts, giving rise to a claim or right of the plaintiff, against the defendants, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim or right and infringement of a right. In order to ascertain the cause of action, it is incumbent upon the Court to apply its mind to the averment of facts, made in the plaint and conclude as to whether presuming the averments to be true, it can grant the relief to the plaintiff or not. In case it is satisfied that on such presumption or on proving the allegations, relief can be allowed, it shall not reject the plaint by invoking provisions of rule 11. The Supreme Court of Az.ad Jammu and Kashmir reviewed the expression "cause of action" in this very case, on appeal of Muhammad Fazil (1983 C.L.C. 1165) as: "For the purpose of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true. Therefore, the power to reject a plaint under this Rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever." The learned Chief Justice of the Supreme Court approved the aforesaid analysis of the expression "cause of action" recorded by this Court. The authorities cited by the learned Counsel for the petitioners were examined in Mst.Resham Jan 'x case (PLD 1981 AJK 16), in order to arrive at an ultimate conclusion. Therefore, these authorities may not be reproduced here. The authority cited by Mr. M. Azeem Dutt, the learned Counsel for the respondents, is not relevant to the proposition under consideration. As a matter of fact, in that authority, it was emphasised that all facts necessary to establish the existence of cause of action or defence were required to be introduced in the pleadings of the parties. The plaint was entertainable only when it disclosed a cause of action in favour of plaintiff, against the defendant. That proposition is very well accepted and there is no second view about the same, fn the present case, the proposition is quite difierent. 5. In this case, the plaintiff invoked the jurisdiction of civil Court for) securing perpetual injunction against the defendants in respect of the site ofj Municipal Committee secured by him on rent, along with the structure raised by him at his own costs. It was averred that the shop was raised on the site let out on rent by the Municipal Committee, the true owner of the land. He was in possession of the same for the last more than 5 years. The defendants having no title or interest in the same, were interfering in possession of the plaintiff. It was, therefore, expedient to direct them to refrain from encroaching upon the premises of the plaintiff. The averments made in the plaint, prinia facie, constituted a cause of action by showing interest and right of plaintiff to use and occupy the premises and the site unless he was evicted from the same in due course of law. 6. The learned Sub Judge rejected the plaint on appraisal of the receipts appended with the plaint alongwith the site plan of plot No. 236, duly attested by the Municipal Committee. It was held that the receipts of payment of rent created no right in plaintiff for the suit land and as against that, certified copy of plan suggested that the suit land was part of plot No. 236. In the circumstances, the plaint was rejected under Order 7, Rule 11, CPC. The aforesaid finding, prima facie, indicates that the learned Sub Judge rejected the plaint of the plaintiff on the basis of evidence appended with the pleadings of the parlies. !; was, therefore, not a case of rejection of plaint for want of cause of action but for want of proof. Rule 11, as discussed earlier, does not conceive of evidence proposed to be produced in support of respective claims of the parlies. It only contemplates rejection of plaint, among others, for want of cause fo action. Thus, the learned Sub Judge obviously misdirected himself by rejecting the plaint for want of proof in support of the alleged claim of the plaintiff. An identical view was expressed by the learned District Judge. The learned District Judge went further and held that in case of breach of right of plaintiff, he should approach the Municipal Committee, the actual owner of Jie land. 7. Next, it was emphasised thai the site plan produced by the defendants disclosed thai the sile in dispule was, in fact, plot No. 236 and not open site as claimed by the plaintiff. It was quite clear that the appeal was dismissed on merits for want of proof, proposed to be led in support of the claim of the plaintiff. Both orders are quite derogatory to the scheme of law postulated under Rule 11 of Order 7, CPC. The petition is, therefore, accepted. Both the orders are set aside and the case is sent back to the file of Sub Judge, Mirpur for its disposal on merits. Before parting with the case, it may be mentioned that the interim injunction is issued on the satisfaction that necessary conditions contemplated under Order 39, Rule 1 and 2, CPC, are fulfilled. In case one of the conditions is lacking, the Court is free to decline the interim relief. This observation is made only as a precaution so that on remand of the case, the learned Sub Judge may not be influenced to presume that the interim relief sought by the plaintiff may be given irrespective of the presence of other conditions in addition to &prima facie case. The parties are directed to appear before the learned Sub Judge, Mirpur, on March 3,1990. (MBC) Petition accepted.

PLJ 1990 AJK 36 (DB) PLJ 1990 AJK 36 (DB) Present: abdul majeed mallick CJ and siier zaman chaudiiry, J KH. NOORUL AMIN-Petitioner Versus Col. (Retd.) MUHAMMAD NAQI KHAN-Respondent Writ Petition No. 15 of 1988, accepted on 21.4.1990 (i) Azad Janimu and Kashmir Interim Constitution Act, 1974— —Art.25 read with Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987, Section 3—Member of Assembly—Disqualifications of —Desertion of or dissociation from party—Consequences of—Article 25(1) carries various disqualifications on incurring of which, a member of Assembly, loses his seat-Sub-section (2) of Section 3 of Act. 1987 adds further disqualifications for being elected and for being a member of Assembly—Held: For a successful democracy, it is always desired that members of Assembly of each political party, must run business of Assembly in line and direction of policy of party [Pp.45&46]H,J&K (ii) Azad Jammu and Kashmir Interim Constitution Act, 1974- —Art .44(2) (/>)(/;)— Quo wairanto—'Wnt of—Issuance of—Prayer for—It is well accepted that respondent is holding a public office-In case it is found that he incurred disqualification and could not continue as a member or ceased to be member of Assembly, its obvious consequence would result in vacation of office of Minister-Held: Under Constitution only a member of Legislative Assembly can be appointed as Minister. [P.40JB (iii) Azad Jammu and Kashmir Interim Constitution Act, 1974— —Art.44(2) (b)(ii) read with Art. 25(2)-Quo wanwito-'Wnt of-Issuance of- Prayer for—Objection that Chief Election Commissioner alone is competent to declare that a person has ceased to be a member of Assembly under Art. 25(2) of Constitution—Under Art. 25(2) Speaker is empowered to refer question of disqualification of a member, to Chief Election Commissioner who has to give his finding about it-Constitution does not contain procedure or a method of reference by Speaker—Speaker very well knew that respondent was elected as nominee of Tchrik-e-Amal Party, an opposition parly in Assembly, but he took no step even on assumption of office of Ministcrship by respondent, to refer matter to Chief Election Commissioner—Held: Failure of Speaker to refer mailer lo Chief Election Commissioner, does not disqualify petitioner to invoke jurisdiction of High Court—Held further: In such a situation, superior judiciary is patently authorised to lay its hands to set legal controversies at rest-Held further: Only High Court is competent lo decide whether a member of Assembly has incurred disqualification. (Pp.40,41ife42]C,D&E PLD 1%3 SC 486 rcl. (iv) Azad Jammu and Kashmir Interim Constitution Act, 1974-- —Art. ^(2)(b)(ii)-Quo wanunto--\Vrli of--Issuancc of-Prayer for-Whelhcr only a.i aggrieved person can file such writ petition—Question of—Under Article 44(2)(d)(;/), High Court may, on application of any person, make an order requiring a person holding or purporting to hold a public office, in connection with affairs of A/ad Jammu and Kashmir, to show under what authority of law, he claims to hold that office-Held: Objection thai only an aggrieved party may invoke jurisdiction of court in such a situation, is unsustainable. [P.39JA PLD 1963 SC 203, PLD 1962 Lahore 230 and PLD 1957 Karachi 387 rcl. (v) Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987-- —S.3(3)—Member of opposition parly-Joining Cabinel-Whether he practically withdrew himself from his parly and incurred disqualification—Question of— Respondent freely made a choice of joining Government by deserting his own political parly-Respondent made a declaration in a public gathering, of his joining Muslim Conference parly and his declaration appeared in press reports—Held: Respondent incurred disqualification on day of his assumption of office of Ministership by virtue of Section 3(3)-HeId further: As he ceased to be member of Assembly, he was not qualified to conlinue as Minister and all his actions, orders, funclions as Minister, were without force of law— Pelilion accepted. [Pp.48&49]M,N,O,P&Q (vi) Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987-- —S.3(3)-Political party-Commitment of-Nominee of a political party-Return of—Disqualification incurred after return of a member—Consequences of—A political party which enters field of elections declares its programme and manifesto for future action keeping in view welfare and promotion of national objectives in line with its basic principles and electorates in consideration of such manifesto, vote for candidate—It is not individual or personal commitment but a collective and party commitment to electorates—By an act of separation, desertion and dissociation from party during term of membership, member negates whole commitment-In order to sustain a fair, honest and healthy political party system, restrictions are imposed by legislature on members of Assembly—Held: Once a member of Assembly incurs disqualification, he has to lose his seat forthwith. [P.45JG (vii) Political Parties— —Political parties—Importance of—Azad Jammu and Kashmir Interim Constitution does not contain any direct provision relating to formation, functions and structure of Political parties in polity of State—However, Fundamental Right No. 7 postulates that every State-subject shall have right to form association or union subject to reasonable restrictions imposed by law in interest of morality or public order [P.42JF PLD 1985 A.IK 95. PLD 1%4 SC 673 PLJ 1988 SC 306 = PLD 1988 SC 416 rd. (viii) Words and Phrases- —Word "wilhdraw"--Used in Section 3(3) of A/ad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987—Meanings of—It calls for its interpretation in ordinary dictionary meaning—It means "to take away what has been enjoyed; to lake form; to remove as deposits from bank, or oneself from competition, candidacy etc." [P.47]L Black's Law ^Dictionary, V-Edition by \Vcst, Shorter Oxford English Dictionary, West's l.c)(;Y) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, postulates that the High Court may, on the application of any person, make an order requiring a person holding or purporting to hold a public office, in connection with the affairs of the A/ad Jammu and Kashmir, to show under what authority of law he claims to hold that office. The Constitution provides that any person may move the High Court to challenge the unauthorised occupation of public office by any person. It does not require that the person seeking redress of grievance against usurpation of public office must be directly a beneficiary of that public office, so much so to bring him within the scope of an aggrieved person as required in other provisions of this Article. The petition may be addressed under these provisions only in the case where a public office, franchise or liberty was usurped. Therefore, the objection that only an aggrieved party may invoke the jurisdiction of the Court, in such situation is unsustainable. These provisions of the Constitution in fact, deal with the power of High Court to issue writ of quo warranto. A writ of quo warranto is issued on the satisfaction that a public office is occupied without lawful authority or it is usurped by a person. Therefore, in order to invoke the jurisdiction, it is least relevant to say that only an aggrieved person may address the Court for issuing the writ of quo warranto. This view finds! support from Masdditl Hassan's case (PLD 1963 S.C. 203) wherein Mr. Justice Cornelius, the learned Chief Justice of the lime, examined the scope of quol warranto at page 204 as: "--The now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office." In Muhammad All's case (PLD 1962 Lahore 230), Mr. Justice Anwarul Haq who spoke for the Court, analysed the meaning and scope of Quo-warranto as:— "—Quo-warranto is the remedy or proceeding whereby the Court inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, to have the same forfeited, and to recover it, if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser. Generally speaking, the proceedings will not lie where there is another adequate remedy available, but the existence of alternative remedy by way of an election petition does not exclude the jurisdiction of the High Court to issue a writ of quo-warranto in suitable cases, particularly in case of continuing disqualification or a disqualification incurred alter the election. The decision where the High Court will interfere, or not, in quo warranto proceedings shall depend on the facts and circumstances of each case, and the discretion of the Court cannot be fettered by laying down any hard and fast rule in this behalf." In this case, legality of election to the membership of Town Council and Union Committee was challenged for want of qualifications of the members or candidates of the Local Council. It was claimed that the respondents were disqualified to be elected as members of the Local Bodies, as such they were not entitled to retain the membership. The petitioner moved for issue of writ of quo warranto. The learned Judge examined the proposition under consideration by accepting the writ petition and directing the respondents to vacate their seats in Union Council and Town Council respectively. 3. In Muhammad Akbar's case (PLD 1957 Karachi 387), Mr Justice Lari, the learned Judge, in answer to an objection similar to one in this case, observed that any person may invoke the Court's aid in respect of a wrongful act of a public nature not affecting prejudicially any real or special interest of the petitioner. The relevant observation is reproduced as:— "--The rule that no person may invoke the Court's aid in respect of a wrongful act of a public nature not affecting prejudicially the real and special interest or a specific legal right of the relator is true only so far as the issue of writs of mandamus and certiorari are concerned. In respect of writ of quo-warranto there is no such restriction and member of the public may challenge a public act of the State provided that he does not do so mala fide as an instrument of others. The leading case on the point is Rex v. Speyer and Rex v. Cassel (1916 KB (Vol. I) 595). It was alleged that the petitioner is a mere stooge to substantiate this allegation. There is therefore, no force in the first objection." In the present case, it is well accepted that the respondent is holding a public office. In case it is found that he has incurred the disqualification and could not continue as a member or ceased to be member of the Assembly, its obvious consequences would result in vacation of the office of the Minister. This is so as under the Constitution, only a member of the Legislative Assembly can be appointed as Minister. 4.. The next preliminary objection is that the Chief Election Commissioner .ilonc is competent to declare that a person has ceased to be a member of the Assembly. This provision finds place in Article 25(2) of the Constitution. It is reproduced as:— "25(2) If any question arises whether a member of the Assembly has, after his election become disqualified from being member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is ol the opinion that the member has become disqualified the member shall cease to be a member and his seat shall become vacant." It is evident from the aforesaid provisions that when a question is raised that a member of the Assembly, after his election, has become disqualified from being a member of the Assembly, the Speaker is empowered to refer the question to the Chief Election Commissioner who has to give his finding as to whether the member has incurred the alleged disqualification or not. On finding that the member incurred disqualification, such member has to cease to be a member of the Assembly and his seat shall become vacant. Prima facie, it is enjoined upon the Speaker to refer !he matter to the Chief Election Commissioner. On reference by the Speaker alone the Chief Election Commissioner has to decide whether the member has incurred disqualification or not. The Constitution docs not contain procedure or a method of reference by the Speaker. It provides no alternative de\ice for the redress of the grievance in case the Speaker fails to make reference i to the Chief Election Commissioner. In the present case, the respondent assumed i the olfice of MinNterUiip in June 1988, ihe Speaker of the Assembly very well knew that the respondent was elected as member of the Assembly as nominee of jf) Tehrik-e-Amal Parly, an opposition party in the Assembly. The Leader of that j party was the leader of the Opposition. Despite having knowledge ol (hat position I of the party of the respondent and u!m> on assumption of office of Ministcrship by '• the respondent, the Speaker took no steps like referring the matter lo I he Chief j Election Commissioner. \Ve are not in possession of any relevant material for such an omission. For there is no specific allegation against ihe Speaker on thai point. Be that as it may. the fact remains that failure of the Speaker to refer the matter to the Chief Election Commissioner, docs not disqualify the petitioner lo invoke the jurisdiction of (his Court for requiring the respondent to explain his position as such. Ordinarily, it is the duty of the Court to construe the provisions of the Constitution or subordinate leizislation to resolve the controversy. In the like manner, it is the superior judiciary alone which is conferred with jurisdiction lo ascertain the vires of law. The Chief Election Commissioner not being a Court, is not empowered to decide the vires of statutes. Thus, the superior judiciary vested with inherent and special jurisdiction is quite competent lo examine ihe vires of law. In such situation, ihe superior judiciary is patently authorised to lavits hands lo set the legal controversies at rest. In Fazhil Quuilcr ('lif>\'i//ia>y\ case (PLD 1%3 S.C. 4M6), ihe order of ihe President removing disqualification of the member of the Assembly lo become Minister was assailed by invoking writ jurisdiction of the Court. An objection was raised lhal the question of incurring disqualification was to be ascerlainable by the Chief Election Commissioner alone as provided under Article 104(2) of the Constitution of Islamic Republic ol Pakistan of 1962. The objection was repelled. It was observed dial the Chief Election Commissioner was not a Court and it would obviously be inapt for an isstK ol constitutional importance lo be referred lo him lor decision. Mr. Juslkc Fa/le Akbar recorded his opinion:-- "--It was next contended lhal the dispute really relates to the disqualification ol three members ol the National Assembly and hence the remedy provided in Article 104(2) of the Constitution should have been availed ol. Disqualification of the said members may be ihe ultimate result ol |he decision but the main question for our consideration reallv is: whether the impugned order under which they continue to be such members violated the fundamentals of the Constitution. Under the Constitution the Chief Election Commissioner has no power to challenge the validity of an order made by the President. Hence so long as the Order stands, no question of disqualification of a member would arise. This fully explains why the Speaker of the National Assembly did not refer the question of their disqualification to the Chief Election Commissioner in accordance with the provisions of clause (2) of Article 104. In the view I have taken, it is not, therefore, necessary to discuss whether I can accept as sound the contention of the learned Attorney- General as regards the exclusive jurisdiction of Chief Election Commissioner to decide whether a member has become disqualified or not." 5. In the present case, the Speaker has failed to refer the matter to the Chief Election Commissioner. Moreover, no definite scheme of law is available to meet the situation where the Speaker omits to refer the matter to the Chief Election Commissioner. Therefore, in such a situation, it is only the High Court which is competent to lay its hands on the proposition, to ascertain whether a member of the Assembly, in fact, has incurred a disqualification, as such he is deprived of the authority to continue to hold the public office. The objection is, therefore, unsustainable. 6. Before coming direct to the proposition under consideration, next, it appears imperative to review the importance of political parties in a modern democratic State. The A/ad Jammu and Kashmir Interim Constitution docs not contain any direct provision relating to formation, functions and structure of political parlies in the polity of the State. However, reference to formation of political parlies finds its place in fundamental rights. Fundamental Right No. 7 deals with the freedom of association. It postulates thai every Slate-Subject shall have the right to form association or union, subject to reasonable rcstriclions imposed by law in the interest of morality or public order. The meaning, scope and importance of political parties was conslrued in Tchrik-c-Anwl Party's case (PLD 1985 A.I K 95) as under: - "-Thc expression "political parly" has been defined under Section 2(d) of the Ordinance as under:— "-'Political party' includes a group or combination of the persons which are operating for the purpose of propagating any political opinion or indulging in any other polilical activity." The use of the word "includes" suggests that the definition described by the legislature is not exhaustive and here, for the purposes of the Ordinance, it is confined to: (/) Propagating any political opinion: or (/'(") indulging in any other political activities. Before examining the scope of the expression "propagating any political opinion" or "indulging in any other polilical activity", il will be useful to sec as to what political parties are, how they are organised and with what objective. In Words & Phrases, Vol. 32 by West Publishing Company, the expression "political party" is defined as:— "A political party is a voluntary association of voters who are desirous of promoting a common political end, or carrying out a certain line of public policy. Sc/iafcr v. WJiipple 55, pp. 180, 181 25 Colo 400." A "political party" is an association of voters believing in certain principles of Government,, formed to urge the adoption and execution of such principles in Governmental affairs through officers of like beliefs, and as rivals of popular favour they strive at general elections for the control of the agencies of the Government as a means of providing a course for the Government in accordance with their political principles and the administration of those agencies by their own adherents." Encyclopaedia Britannica describes the expression "Political Parties" as:-- "Political parties are group organized for the purpose of achieving and exercising power within a political system. They originated in their modern form in Europe and the United States in the 19lh century, alongwith the electoral and parliamentary system whose development is reflected in their own evolution. The term 'party' has since come to be applied to all organized groups seeking political powers, whether by democratic elections or by resolution, p. 677. Mr. Justice A.R. Cornelius, C.J. in Maiilana Maudoodi's case (PLD ]964 SC 673), observed at page 692:-- "The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organisation and being all available channels of mass communication, to propagate its views in relation to whole complex of the administrative machine including the legislatures, in respect of matters which appeared to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself." Bruke in "Thoughts on the Causes of the Present Discontents", describcd:-Political party is a body of men united for promoting the national interest on some particular principles in which they are all agreed." From the above, it reflects that political parties are primarily engaged in promoting common political end and to achieve that, they strive at general elections for the control of the Government as a means of providing a course to achieve their political principles. In popular term, political parties generally seek political powers by democratic methods to enforce their own political philosophies among the electorates. In brief, the common function among the political parlies throughout the world is to. exert to secure political power in order to form a Government or to function as opposition. Historically, therefore, political parties are an old affair. They are inevitable psychologically. According to James Madison, the most common source of parties has been the "various unequal distributions of property". The "Haves" and the "have-nots" tend to form distinct political groups. Immediate cause for modern political parties is the interest in properties, for instance, a landed interest, a manufacturing interest, a mercantile interest with many lesser interests tend to divide people into different parties actuated by their own feelings and sentiments. But in the general sense, parties confront each other by virtue of their difference in political philosophies. In nutshell, political parties supply a motive power in governmental organisation in all democratic states." In Benazir Bhutto's case (PLD 1988 S.C. 416 = PLJ 1988 SC3U6)Mr. Justice Muhammad Haleem, the learned Chief Justice, as he then was, reviewed the' meaning and importance ol "political parties" in the following manncr:-- "—rA political parly has iis significance in the context of the political system provided by the Constitution. Our constitution is of the pattern of Parliamentary democracy depends for its success on the organisation of political parties and its disciplined support of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a parly which is in majority. Bagehot called it "a hyphen that joins, a bukle that fastens, the executive and legislative together". It formulates the general policy of the Government and is collectively responsible to the Parliament for that. Apart from this general function of coordination and leadership, it exercises actual executive and legislative functions. (Basu's Commentary on the Constitution of India, Third Edn., Volume I, page 459). Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It was its foundation in representation; it is not a system of self-government, but a system of control and the limitation of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy, the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote. Fundamentally democracy rests upon the idea of freedom. Parliamentary Government is a government of the party and a parly government is a vital principle of a representative government. The political party is a connecting link between the executive and legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a Parliamentary democracy. They arc important because the group victorious a! a general election becomes the government. In a nutshell a Parliamentary democracy depends for its success on the organisation of political parties and its disciplined support of Parliamentary majority is sine quo non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They thus provide leadership to public offices through the elections. Thcv are now necessary part of a democratic government. Rival parlies make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parlies thai are out of power serve as a "loyal opposition" :is understood in Parliamentary democracy. Thai is. tliev criticise pol'ck^ and aclinic

l I he party in power In this wav. the parly in power is c.illed ' >n in |iis|iU ik .ulions and is made responsible to the pcopL Keeping hi \ k w [!k structu e. luiulions .in. I impoiiaiiec ol a |» hlica! |',irl\ as enunciated abo\e. we have to keep in mnul 'ii •• a political parl\ v\|ik!i enters the held ol elections, declares i(s protiiaimnc and niamlesio In Us luiuie actions, keeping in view llie welfare and prumotion of national objectives in line with its basic principles. The nominees of a political party when approach electorates to gain their support in elections obviously give a call to the electorates to support them for achievement of their future programme lister in such manifesto. The electorates, in consideration of such election programme and man.lesto, vote for the candidate. In other words, a candidate or a nominee of a political party in elections in th. shape of party manifesto makes a virtuous commitment with the electorates .that in case of his success in the elections, he would honour such commitment by its fulfilment during the lerm of his membership. It is not an individual or personal commitment but a collective and parly commitment to the electorates. Thus, a candidate who is nominee of a political party is bound down by the collective and mutual commitment of the members of the parly given to the electorates during the elections. By an act of separation, desertion or dissociation from the party during the term of membership, obviously, the member negates the whole commitment. Therefore, in order to sustain a fair, honest and healthy political party system in a Slate, it is enjoined to control the activities of ihe members of the Assembly returned as nominees of political parties. With this objective, restrictions or limitations framed in the shape of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987 are imposed by the legislature on members of the Assembly The penalty is, of course, very heavy as on incurring disqualification, the member has to lose his seat fo the rest of the term. Be that as it may, the fact remains that once a member of the Assembly incurs disqualification, he has to lose his seat forthwith. ' 8. Article 24(2) of the Constitution prescribes disqualifications of a person from his being elected as member of the Assembly. The disqualifications listed herein are not attracted in the present case. Article 25(1) carries various H disqualifications on incurring of which a member of the Assembly loses his seat. This article postulates that the scat in the Assembly shall become vacant under either of the circumstances listed below. The Article is reproduced:- "25(1) The seat of a member of the Assembly shall become vacant if:-- (a) he resigns his seat by notice in writing under his hand addressed to the Speaker, in his absence, to the Secretary of the Assembly; or (b) he is absent from the Assembly without the leave of the Assembly for thirty consecutive sitting days of the Assembly; or (c) he fails to make the oath referred to in Section 23 within a period of ninety days alter the date of his election unless the Speaker for good cause shown extends the period; or (d) he is elected as a member of the Council; or (e) lie ceases to be qualified for being a member under any provision of this Act or any oilier law." Clause (e) provides that the scat of the member of the Assembly shall become vacant if he ceases to be qualified for being a member under any provisions of the Acl or any other law. The disqualifications listed under Section 3 of the Azad jJammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987 emanate from the provisions of clause (e) of Article 25(1) of the Constitution. 'Sub-section (2) of Section 3 adds further disqualifications for being elected and/0/' \hcini> a member of the Assembly. Sub-Section (3) which is relevant to the {proposition under consideration, is reproduced:-- (3) If a person having been elected to the Azad Jammu and Kashmir Legislative Assembly as a candidate or nominee of a poli:ical party, withdraws himself from that pa'iv, he shall, front the date of such withdrawal, be disc/ualified from being a member of the Assembly for the unexpired period of his term unless he has been re-elected at a byeelection held alter his disqualification." Under this provision of law, a disqualification is attached to the membership of the Assembly to his future actions. It conceives of a scheme of law to maintain harmony, cohesion and unity among the elected members of a polilical party, within Assembly. For a successful democracy, it is always desired that the members of the Assembly of each political party, must run the business of Assembly in line and direction of policy of the party. It is also a demand of polilical ethic that the Assembly members must maintain discipline by demonstrating unity among themselves, to accomplish the desired objectives of their party. 9. The disqualification is introduced as a positive check and safeguard against defection, departure and leaving of parly, on ihe floor of ihe Assembly. Il appears lhai the legislature, in view of the past experience in sub-continent, deemed it advisable to introduce the disqualifications, so that no anarchy or chaotic conditions by changing loyalty and shifting on ihe floor of the Assembly, look place. It is relevant to stale here lhal during late fifties, a polilical party emerged over-night in the Assembly of Wcsl Pakistan. It is well known that the Republican Party came on the horizon of Ihe Assembly, wilhin a very short span of lime as various members of ihe Assembly defected their party, in order to form a new political party. In Azad Kashmir, there was a bitter experience in 1975 when on the floor of the Assembly, majority members changed their loyally by shifting their interest and defecting to organise a new political party on ihe floor of the Assembly. The Speaker who was elected by the majorily party, also shared ihe defection. This was a common phenomena in third world countries. Keeping in view the past experience, it seems thul it was deemed expedient to introduce additional disqualifications, to control future attitude and action ol the Assembly members, 10. In order to declare disqualification of a member, it has to be satisfied that the member withdraws himself from his party, by his actions, behaviour, treatment, design, expression, sign, omission or visible demonstration. The teim| "withdraw" used in sub-section (3) is, therefore, warranted to be construed, li calls! for its interpretation in ordinary dictionary meaning. In Black's Law Diclionary.i V-Edilion by West, the word "withdraw" is defined as:— "To lake away what has been enjoyed; to take from. To remove, as deposits from bank, or oneself from competition, candidacy, etc." According to Shorter Oxford English Dictionary, the word "withdraw" means:-- II. 1. To remove oneself from a place or position. 2. To remove oneself from a condition, sphere, society, etc. III. 1. To go away, depart, or retire from a place or position, from some one's presence, to another room or a private place, etc. b. Of combatants, troops, etc.: To retire from the field or battle or any contest, or from an advanced position. 2. to draw away Irom a person; to remove oneself or retire from society or community, etc.; to retire from participation in or pursuit of something." According to West's Legal Treasures/Dictionary, the word" withdraw" mcans:- "To retreat (withdraw from the conference). To cancel (he withdraws the last statement)." Webster Comprehensive Dictionary defines the word "withdraw" as:— "To draw or take away; remove. To take back, as an assertion or a promise; recall. To keep or abstract from use. To draw back; retire." In Reader's Digest Great Encyclopaedic Dictionary, the word "withdraw" is defined as:~ "Pull aside or back; take away, remove; retract. Retire from presence or place, go aside or apart." According to the Chambers Twentieth Century Dictionary, the word "withdraw" means:-- "To draw back or away; to take back or away; to take from deposit or investment, as money; to remove (with from); to deflect, turn aside; to recall, retract, unsay.-v.i. to retire; to go away; to lake back what one has said, or to recall a motion one has proposed." The obvious meaning of the word "withdraw" is to remove oneself from a place or position previously occupied, to a new position. The language connotes that when it is ascribed io member thai he has withdrawn from a political party, in support of such allegation the only proof required thereby is to satisfy thai the member by any overt act, action, omission, sign, declaration, expression and demonstration, dissociated himself from his political party. The law does not lay down a definite course of action lo construe the action of withdrawal of a member of a political parly. Therefore, in absence of dcfinile course of aclion, the word "withdraw" is lo be construed in its ordinary meaning as analysed above. 11. The substance of allegation ascribed to the respondent is that he ceased lo be a member of the Assembly on the day he became Minister of the Cabinet of j the Ruling Parly. According to the petilioner. by joining the Cabinet, the I respondent practically withdrew himself from his party, as such incurred , ; disqualification under Section 3(3) of ihe A/ad Jammu and Kashmir Legislalive ! Assembly (Elections) (Amendment) Act, 1987. Therefore, we have to construe the action of the respondent lo find out whether he is hit by the mischief of the aforesaid disqualification or not. ' It is already noticed that Tchrik-e-Amal Party is an Opposition Party whereas respondent has joined ihc Cabinet headed by all Jammu and Kashmir Muslim Conference. The Constitution of A/ad Jammu and Kashmir State, in fact, provides the structure of the Government as parliamentary form of government. In the parliamentary form of government, it goes without saying thai there is a collective and joint responsibility of the Cabinet. An aclion or omission of either member of the Cabinet is deemed as collective action or omission. Therefore, by joining the Cabinet, the respondent chose the course to accept collective responsibility of the Cabinet. In this view of the matter, the respondent freely made a choice of joining the Government by deserting his own polilical party. The Tehrik-e-Amal Parly being an Opposition party, the decisions, policies and actions of ihe ruling party arc not necessarily to be followed by it. Ordinarily, its policies " may be ralher otherwise. In this view of the mailer, the respondent has, obviously chosen a different direction lo his political and administrative actions in the administration of affairs of A/ad Jammu and Kashmir . I 12. During ihe pendency of the petition, it was brought to our notice that the respondent made a declaration, in a public gathering, of his joining the All Jammu and Kashmir Mus;im Conference Parly. His declaration also appeared in press reports. By his emphatical declaration, the respondenl positively proved that he dissociated himself from Tehrik-e-Amal party. No further proof in this regard is required lo uphold the allegation of incurring disqualification ascribed to the espondent. 1.3. It was suggested in the wrillen .statement thai under Arlicle 14 of ihc Constitution, the Prime Minister was empowered to appoint any member of the Assembly as Minisler. In presence of ihe aforesaid provision of law, it was suggested, the respondent by joining the Cabinet, incurred no disqualification. The explanation is unsustainable. Article 14(1), in fact, lays down qualifications for appointment of'Minister, ll provides that the Prime Minisler shall appoint Ministers from amongst the members of the Assembly. The authority oi the Prime Minister to appoint Ministers was restricted and confined to the members of the Assembly and not outside that. The Prime Minister being Party Leader, was, of course, authorised to appoint his Ministers but this by itself does not eliminate the mischief of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987. The restriction though does not operate against the authority of the Prime Minister but at the same time, the power of the Prime Minister under Article 14 of the Constitution does not save a member of the Assembly of the Opposition political party from incurring a disqualification by joining the Cabinet headed by his adverse political party. No other point was canvassed before us. 14. Next, we come to the relief. When writ of quo warranto is issued, the Court is competent to give relief:-- (i) by issuing injunction to a person holding office, to refrain froiu acting as such p'ublic office-holder; and (a) by declaring the office to be vacant. In this case, the respondent incurred disqualification on the day of his assumption of office of Ministership, i.e. June 9,1988. By virtue of provision of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987, the respondent by his act of withdrawal from his political party, ceased to be a member of Assembly forthwith, for the rest of period of his term. As he ceased to be a member of the Assembly he was not qualified to continue as Minister of the Government. Thus, all actions, orders, functions, performed by the respondent as Minister were without force of law. We, therefore, hold that the respondent ceased to be member of the Assembly with affect from June 9, 1988, as such he enjoyed no authority to act as Minister of the Government with effect from that day. Thus, the seat of the Assembly, previously earned by the respondent, thereby immediately fell vacant. The petition is, therefore, accepted accordingly, No order as to costs. 15. Before parting with the case, we consider it expedient to bring on record that it is expected of the Bar to render valuable legal assistance to resolve important points of law. In present case, we record it with regret that no adequate legal assistance was rendered. It is questionable that the vires of the disqualification enforced in the present case, may have been assailable for its being violative of Fundamental Rights, viz, (/) right of equality before law and equal protection of law, as this disqualification does not apply to an Assembly member who contested elections as an independent candidate, (if) right to freedom of expression and (Hi) right to dissociate from a political party when such party departed from its cherished political programme pronounced at the time of general elections in the shape of its manifesto. As none of these objections was raised in the pleadings of the parlies nor was attended to at the time of arguments; we therefore, propose to attend to this aspect of the proposition, in some other case if and when brought before us. (MBC) Petition accepted.

PLJ 1990 AJK 49 PLJ 1990 AJK 49 Present: ABDUL MAJEED MALLICK, CJ MUHAMMAD FAROOQ-Petitioner versus VICE CHANCELLOR, UNIVERSITY OF AZAD JAMMU AND KASHMIR and 2 others—Respondents Writ Petition No. 10 of 1990, accepted on 2.4.1990 (i) Azad Jammu & Kashmir Interim Constitution Act 1974 (VIII of 1974)- —Art. 44—Writ petition—Maintainability of—Challenge to—Non-impleadment of other students who got admission-Objection of~Petitioner does not want to disturb admission of other students as he has not asked for substituting himself for any of them—His case is that he is also eligible and entitled to admission— In fact, petitioner has challenged action of respondents whereby they refused him admission-Held: Only necessary parties are respondents and not students and Chancellor. [Pp. 52&53JB 1986 SCMR 805,1986 SCMR 680 and PLD 1985 SC(AJK) 102 distinguished (ii) Azad Jammu & Kashmir Interim Constitution Act 1974 (VIII of 1974)-- —Art. 44(2)-Admission to University-Refusal of-Challenge to-Whether fixation of number of seats by Dean of University College was lawful-­ Question of—Dean was not authorised to act as such by syndicates or Academic Council-Authority of Dean in fixing number of seals finds no support from decision/minutes of meeting of Academic council or any other relevant rules/rcgulations—Held: Action of fixing of number of seats in each department is without lawful authority—Held further: There hardly remains any argument available to respondents to suggest that admission of students is made on basis of a definite criterion in consideration of limited number of scats. [Pp. 54, 55&56]C,D&E (iii) Azad Jammu & Kashmir Interim Constitution Act 1974 (VIII of 1974)- —Art. 44(2)(fl)-Writ petition-Maintainability of--Challenge to-Whether petitioner is aggrieved person—Question of—There is no denying fact that petitioner who is denied admission in University, is in fact an aggrieved party by all standards conceived by law—Held: Objection on this score is illconceived and as such is not sustained. [P.52]A (iv) Fundamental Rights- —Fundamental Rights 12(3) & 15-Equal treatment-Fundamental right of- Violation of-Consequences of-Fundamental Right 12 provides Safeguard in respect of religious educational institutions-Its clause 3 is of general character-Strictly speaking, provisions of this Right are not squarely attracted in this case-Rule of equality of State subjects before law and equal protection of law, is fairly enforceable in this case-Held: Petitioner being a State subject, deserves equal and fair treatment in matter of admission-Held further: Rule of equality before law and equal protection of law has been violated-Petition accepted. [Pp. 56,57&60]F,G&H AIR 1968 Patna 3, PLD 1957 Karachi 740, PLD 1990 SC 295,1979 SCMR 529 and AIR 1963 Rajasthan 172 ref. Mr. Rafique Mahmood KJian, Advocate for Petitioner. Mr. Abdur Raslrid Abbasi, Advocate for Respondents. Date of hearing: 2.4.1990. judgment Muhammad Farooq, admittedly, is a State subject. He is resident of District Kotli. He passed his B.Sc. Examination having double Maths course with Physics, in the year 1989 and obtained 425 marks. On invitation of applications for admission in M.Sc. Mathematics and Physics, he applied in both the departments for his admission. Respondents No. 2 and 3 declined to allow him admission as he was not found eligible. The petitioner explored all the avenues for seeking his admission, but on failure to achieve the object he preferred the present petition. 2. It is alleged that the respondents refused admission to the petitioner in an unlawful manner by acting arbitrarily. Thus, the petitioner was deprived of higher education which, as a free citizen, was his basic need. It was alleged that refusal of the respondents to allow admission to the petitioner, was violative of the fundamental rights illustrated in Article 4(4) 12(3) and 15 of the Azad Jammu and Kashmir Interim Constitution Act. It was further stated that some of the students who were far below the petitioner on the merit list, were allowed admission. Thus, the whole action of the respondents was discriminatory, arbitrary, as such violative of the fundamental riehts. The respondents admitted that the petitioner was a State subject and that he applied for his admission in due course of time and he was declined admission for his being below the required standard. The petition was contested on merits. Some of the preliminary objections were raised seeking dismissal of the petition on the fallowing grounds:— (/) that the petitioner is not an aggrieved person: (ii) that the petitioner has been guilty of suppression of material facts, as on January 13, 1990, the petitioner had withdrawn his application for admission in M.Sc. Mathematics; (Hi) that the seats reserved for study in Mathematics were 20 and in Physics 10. The serial number of the petitioner in the merit list being 56 among the candidates for admission to M.Sc. Mathematics and 25 among the candidates for admission to M.Sc. Physics, the petitioner was not entitled to admission. Moreover, the candidates who were admitted in both the subjects, were necessary party. The omission to implead them as party, was fatal to the petition; (/v) that the two students, one male and one female, who were below in merit to the petitioner, were given admission on the recommendation of the Chancellor of the University. In case their admission was challenged, both of them and the Chancellor were necessary party; and (v) that no right of admission vests in the petitioner as the number of seats in each subject is limited. Admission in subject depended on various circumstances including number of teaching staff, accommodation, laboratory equipment facilities. Thus, the writ was unwarranted. 3. Article 44(2)(a) of the Constitution postulates that the High Court may, when no other adequate remedy is provided by law, on the application of any aggrieved party, make an order-- (/) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (//) declaring that any act done or proceedings taken by a person performing ^ functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) ................................. (c) giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by the Constitution. The first test for entertaining a petition under these provisions is that the Court must be satisfied that no other adequate remedy is available to the party and that the petitioner who invokes the jurisdiction of the Court, is an aggrieved party. In this case, there is no denying the fact that the petitioner, who is denied admission in the University, is in fact an aggrieved party by all standards conceived by law. It is not elaborated by the respondents as to how the petitioner is not an aggrieved person. The objection on this score is ill-conceived, as such not sustained. 4. The next preliminary objection pertains to suppression of a material fact relating to withdrawal of application by the petitioner for admission to M.Sc. Mathematics. The petitioner frankly accepted that on refusal of the respondents to allow him admission and by exhausting other avenues, he fell advised to pursue his admission in Physics only. It was in this course of action that he applied for withdrawal of his application. This factual aspect of the allegation is not wellfounded as the application was withdrawn about 10 to 11 days before the presentation of the writ petition. The fact of the matter is that the petitioner was already refused admission by the respondents. Therefore, withdrawal of the application at a very late stage would not amount to suppression of a material fact, as suggested by the respondents. Be that as it may, withdrawal of the application does not affect the constitutional points raised in the petition. 5. The next preliminary objection, in fact, deals with the substance relating to merit. This point shall be considered at the proper stage. 6. An answer to next preliminary objection is that the petitioner does not want to disturb the admission of other students as he has not asked for substituting him for any one of them. His case in very simple terms, is that he is also eligible and entitled to admission in M.Sc. Mathematics or Physics. The objection could be of weight provided the petitioner had challenged the order of admission of students, those who were placed higher on merit and others who were at bottom in merit to the petitioner. The petitioner, in fact, challenged the action of the respondents whereby they refused him admission. In this view of the proposition, the only necessary party in the case are the respondents and not the students and the Chancellor. Reference to admission of male and female students, lower in merit to the petitioner, was made to elaborate the arbitrary scheme of admission in the classes of the University. Moreover, no action is defeated by reason of mis-joineder or non-joinedcr of parties as the Court is enjoined, in every action, to deal with the matter in controversy, so far it concerns the rights and interests of the parties who are actually before it. As the controversy in question confines to admission of the petitioner, the only necessary parties in the case are the heads of the Departments and the Vice-Chancellor. They are already before the Court as such it is not considered conducive to direct the petitioner to add all others as respondents in the petition. The case of University of the Punjab , 1986 S.C.M.R. 805, is distinguishable from the present case, in view of different facts of that case . In that case, the petitioner applied for admission against eight reserved seats which were to be filled on merits. On his failure to get admission against one of the reserved seats, he challenged the admission of other students who despite having lesser marks, were admitted. It was in the light of the facts of that case that it was observed that the ajfected persons unless made party to the proceedings, the petition could not proceed. Likewise, in Muhammad Iqbal Rafi's case, 1986 S.C.M.R. 680, it was observed that unless these students who were to be affected, on acceptance of the petition, were impleadcd, the petitioners were not entitled to seek relief without impleading them. On this view of the matter, it was held that unless the students likely to be affected by the decision of the Court, were impleaded, their admission was not to be disturbed. In that case, leave was refused in view of different facts. An identical view was expressed in Government of Punjab (Health Department's case, P.L.D. 1987 Lahore 336. It was held that the persons sought to be affected by an order of the Court or even an administrative authority, must be given an opportunity of being heard. The principle of law laid down in that authority is well accepted and there is no cavil with the same. In Muhammad Ashrafs case, P.L.D. 1985 SC (AJ&K) 102, again, the proposition settled by the Court pertained to impleading of necessary parties. It was held that all parties who derive any benefit of the orders are necessary parlies. In absence of necessary parties, no order could be passed, as such no effective writ could be issued. In this case, the order of admission of other students is not directly assailed and the order challenged in the petition, in fact, confines to refusal of admission to the petitioner. In the circumstances, only such authorities who refused admission to the petitioner or who are competent to allow admission to the petitioner, alone are the necessary parly. As such authorities are already before the Court, the objection finds no support. It is, therefore, over-ruled. 7. The last preliminary objection, in fact, relates to mcrils of the case. This shall also be settled along with objection No. (///) at the proper stage. 8. Fundamental Right No. 12(3) contemplates that no State subject shall be denied admission to any educational institution receiving aid from public revenues on the groundonly of race, religion, caste or place of birth. It is explained that the case of the petitioner is covered by these provisions coupled with the provisions described inFundamental Right No. 15. Fundamcnlal Right No. 15 provides that all Stale Subjects are equal befor At this stage, it is relevant to state that the petitioner is not denied admission on the ground of race, religion, caste or place of birth. In fact, he is denied admission as, according to the authorities, the marks obtained by the petitioner in B.Sc. examination were much less than the required standard fixed for the admission. In order to appreciate the proposition raised in the petition, first of all, we have to appraise the defence taken by the respondents to countenance the allegation of the petitioner. In the written statement, in para 5, it was stated that the seats available in M.Sc. Mathematics were twenty and in Physics ten. The seats in the subject of Physics were subsequently increased to sixteen. In presence of limited number of seats, the petitioner was not found suitable for his admission in either of the above subjects. In support of the aforesaid position, reference was made to the minutes of the 2nd meeting of the Academic Council of the University of Azad Jammu and Kashmir held on January 8, 1985. Admission Regulations, appearing at page 54 of the agenda, provide that candidates who have passed B.A/ B.Sc. with Mathematics 'A' and 'B' Courses or Mathematics General with Physics or equivalent Courses, will be eligible for admission after passing a pre­ admission entrance Examination according to the criterion as determined by the Departmental Admission Committee. This Regulation is enforceable in case of admission for Master of Science Degree in Mathematics alone. The only condition laid down in the Regulation pre-conceives eligibility for admission after passing the pre-admission entrance examination and nothing else. Of course, the criterion is to be determined by the Departmental Admission Committee. The Regulation does not speak of the number of seats fixed by the Board of Studies in Mathematics and Physics. It only contemplates a condition precedent and that too relates to entrance examination. In this view of the scheme of Admission Regulations, it is not understandable as to how the respondents claim to have fixed a definite number of seats for admission in Mathematics and Physics classes. Attention of the Court was invited to Annexure 'R/B'. This is a letter addressed by Dean of the University College, Muzaffarabad to the Chairman Department of Physics wherein it is explained that in the departments of English, Mathematics, Economics and Geology, there shall be 20 seats each, out of which one seat shall be reserved for children of defence personnels and two seats for children of University employees. It was further explained that there shall be ten seats each in the departments of Physics. Chemistry, Botany and Zoology. This decision seems to have been taken on June 12, 1988. The Dean of the University alone has fixed the aforesaid number of seats. It is not explained by the respondents, as to how the Dean of the University College, Muzaffarabad, was competent to fix the number of the seats. He was not authorized to act as such by the syndicates or the Academic Council. The authority of the Dean in fixing the number of seats in the aforesaid departments finds no support from the decision/minutes of meeting of the Academic Council or any other relevant rules/regulations. Thus, the action of fixing of number of the seats in each department is without lawful authority. In case it is considered that the number of seats was fixed as an administrative decision, in that case too, the Board of Studies being the recognised authority alone was in a position to fix the number of the seats. The Board of Studies, as is apparent from the minutes of meeting of the Academic Council, is constituted by the Head of the University Teaching Department, two teachers from affiliated colleges to be nominated by the Syndicate and two teachers preferably one Lecturer and one Assistant Professor, to be appointed by rotation in order of seniority from the concerned department. Thus, the fixation of number of seats, primarily, is an action without lawful authority. Therefore, it cannot be said that the fixation of number of seats by the Dean of the University College, was an absolute lawful rule not open to exception. 9. It is admitted by the respondents that the number of seats previously fixed in M.Sc. Physics, was increased from ten to sixteen. It is not brought on record as to what were the lawful factors which influenced the authority to enhance the number of seats. The respondents failed to place on record the decision of the Syndicate, the Academic Council or the Board of Studies or the Departmental Admission Committees, if any, in this regard. This suggests that the authorities fixed and enhanced the seats in Physics department in hypothetical manner to serve their own convenience. The course of action adopted by the respondents in fixing the number of seats and enhancing it, according to their own pleasure, choice and convenience, negates the claim of the respondents. In this view of the position, there hardly remains any argument available to the respondents to suggest that the admission of the students is made on the basis of a definite criterion, in consideration of limited number of seals. 10. It is quite relevant to mention here that it is admitted in para 4 of the preliminary objections that one male and one female candidate, who had lesser marks than the petitioner, were given admission in M.Sc. Physics. The exception pleaded in the matter is that such admission was given under ihe order of the Chancellor. The explanation rendered by the respondents may be correct but the fact remains that it is admitted by the respondents that two students who had obtained lesser marks than the petitioner, were given admission. The authority of the Chancellor in recommending admission to students is unrecognized by the rules and regulations relied upon by the respondents. The Admission Regulations, referred to above conceive only of pre-admission entrance examination and no other exception. May be that directions of the Chancellor, for his being Head of the State, were complied with, despite the position that such direction was derogatory to the regulations. 11. The Admission Regulation referred to above, in fact, is enforceable in case of students or candidates who seek admission in M.Sc. Mathematics. So far as admission in M.Sc. Physics is concerned, no hard and fast regulation is provided in the minutes of the Academic Council. It may be argued that the standard or criteria laid down for admission in M.Sc. Mathematics may, by analogy, be applied to admission in Physics as well. Such an analogy is not acknowledgeable as the minutes of meeting of the Academic Council do not provide identical admission regulations for any of the subjects including Economics, Applied Geology, Business Administration, etc. 12. The rational or criterion fixed for admission again, is quite arbitrary. The rational nexus desirable for admission at master's level may be on the basis of marks obtained in that particular subject in B.A/B.Sc. examination. In present case, the respondents prepared the merit list on the basis of aggregate marks secured in all the subjects in B.Sc. examination. The petitioner secured 425 out of 900 marks. In Mathematics Course 'A' he secured 90 marks and in Course 'B' 66. Thus, he secured 156 marks out of 400 in Mathematics, Courses 'A' and 'B'. On securing such number of marks, he was placed at No. 56. On the other hand, he secured 113 out of 200 marks in Physics. In the merit list, Muhammad Sohail Rafique, Mukhtar Ahmad, Altaf Hussain, Tariq Mahmood Ansari, Zulfiqar Ali Khan, Jamil Hussain, Shaikh Abdul Hafiz, Muhammad Habib Khan and Muhammad Asghar, who secured 106,101, 86,105, 112,108, 95, 86 and 104 out of 200 marks, were placed higher in merit to the petitioner, were admitted in M.Sc. Physics. It is correct that in aggregate, their marks were more than those of the petitioner but in the particular subject of Physics, in which admission was desired to be secured, the marks obtained by these students were much less. Therefore, on rational nexus, the petitioner enjoyed far better position than the students listed above, who were given admission by merit. 13. An orthodox mechanical system of examination is no definite criterion to test the aptitude and skill of students. The loop-holes and lapses in current education system, violence in educational institutions and malpractices in examinations, have further obscured the true measure of intelligence and aptitude in learning. All such factors which evidently influence the society, warrant a rational nexus for achievement of objectives of education in the State. 14. The reasons cited above go a long way to suggest that all actions of the respondents in fixing the number of seats and enlarging the same from time to time and fixing the criterion of merit for admission, are quite arbitrary, discriminatory and unwarranted by the scheme approved by the Academic Council. 15. On examining the case on merits, next we proceed to the constitutional aspect of the proposition. It is already mentioned elsewhere that the petitioner has invoked the special jurisdiction of this Court on the ground of violation of fundamental rights No. 12(3) and 15. Fundamental right No.12 provides safeguard in respect of religious educational institutions. Its clause (3) is of general character but that again deals with a case of safeguard of the right irrespective of race, religion, caste or place of birth. Strictly speaking, the provisions of this Right are not squarely attracted in the present case. However, the rule of equality of State subjects before law and equal protection of law, is fairly enforceable in the case. The petitioner being a State subject, deserves equal and fair treatment in the matter of admission in higher class of M.Sc. Physics. The so-called criterion fixed by the Departmental Admission Committee, despite being irrational, arbitrary and discriminatory, yet was not applied equally to all the candidates. It is admitted by the respondents that two students who obtained lesser marks than the petitioner, were admitted in Physics. The exception pleaded by the respondents is that the said admission was given under the orders of the Chancellor. May be that the admission was given on the order of the Chancellor, but the scheme of law prepared by the authorities themselves, does not conceive of such a situation where the number of scats fixed by the authorities may be enlarged to accommodate the recommendation of the Chancellor. It is accepted by the learned Counsel for the respondents that the Chancellor enjoyed no special quota for admission in M.Sc. Mathematics or Physics. In such an unrecognised and unacknowledgeable position, the rule of equality before law and equal protection of law has been violated.. 16. This may give rise to further discussion as to what "law" is. This is so as the terms 'equality before law' and 'equal protection of law' refer to law. The Constitution itself gives a comprehensive definition of term "law" in Article 51. It is explained in Article 51 as: "1 Laws includes Ordinances, Orders rules, by-laws, regulations and other legal instruments having the force of law." The institution of the University is run by the Government in a lawful manner. Its establishment, structure, administration and regulation of different departments of studies and classes are regulated by a definite law. Therefore, the scheme of admission in University classes is to be considered as a scheme of law. Any derogaiion or violation of such scheme is to be accepted as violation of law. When admission in a particular course or class is granted or refused, it has to be considered as grant or refusal of admission according to law. In other words, when an admission is granted in violation of the scheme, it is an illegal admission. Likewise, when an admission is refused in derogation to the scheme, it is an illegal refusal to admission. Thus, all actions, omissions and decisions which are derogatory to the acknowledged scheme of rules, regulations of the University Calendar or decision of the Academic Council or the Board of Studies or other Committee as recognised by law, are to be construed as actions without lawful authority. On this premises, it is expedient to hold that refusal of admission to a student in derogation to the acknowledged scheme of admissions, is an illegal action and violalive of the aforesaid fundamental rule. n. Here a question may be raised to the effect that reasonable classification or reasonable restrictions in a particular scheme of things arc permissible under the Constitution. First of all, reasonable classification or reasonable restriction in any scheme of the things, is to be framed in the shape of legislation. For, unless such classification is made by legislation, it shall not be accepted that a particular action or omission fell within the purview of reasonable classification or reasonable restriction. In this case, as no reasonable classification or reasonable restriction was introduced by legislation, the impugned order resulting in refusal of admission, would not be construed to fall within the exception of reasonable classification or reasonable restriction. The provisions relating to the aforesaid right, as provided in the Constitution of Azad Jammu and Kashmir, are also provided in the Constitution of Pakistan as Right No. 25(1). In the Indian Constii-iior.. this right is described as Right No. 14. The language used in the Indian Ccnstiiuiion is comparatively different but the substance and spirit of the right is the same. In Umeah Chandra Sinha's case, A.I.R. 1968 Patna 3, the provisions of the Ordinance of Patna University were assailed an the ground of discrimination. The petitioner, who had applied for admission in Medical College, was declined admission despite his having higher marks. He challenged the vires of the Ordinance whereby certain seats were reserved for the children of the University employees on the ground of their extreme pecuniary difficulties and for rendering meritorious services to the University. The Full Bench considered the proposition in a very comprehensive manner. Mr. Justice Narasimham, the learned Chief Justice who spoke for the Court, answered various propositions raised before the Court. Upholding the principle of equality before law and equal "rouciion oi law. the provision of reservation of seats for children of the University employees, being discriminatory, was struck down and the petitioner •.'-. js granted relief in the manner of admission in the Medical College . In that case, an identical proposition was raised wherein it was urged that all the students who were admitted in the class, including the University, .were necessary party. The learned Chief Justice disagreed with the proposition. Another allied proposition raised before the Full Bench was that there were some other students who had secured higher marks than the petitioner and that there might be a possibility that they also press their claim for admission in the event of success of the petitioner. In that case, the number of seats would not be increased. An identical proposition has been raised in the present case by the respondents showing thereby that there were other students who had secured higher marks than the petitioner and in case the petitioner is given admission, they would come forward and claim admission as a matter of right. In that case, large number of seats would have to be increased. First of all, it is not the concern of the Court to ensure that the other students, by this time, are waiting for admission in M.Sc. physics or not. This is purely a hypothetical proposition. For, unless they come to the Court, and it is undcnied that they have not come so far, they may not get legal relief. Well when they invoke for the relief, only in that condition, such a proposition would arise. In the reported case referred above, the learned Chief Justice, when faced with such a proposition, dismissed the objection in the following manner:- "It will not, therefore, be proper to reject this petition merely because there are some candidates who have secured higher marks than him and there is a possibility that they may press their claim for admission in the event of the petitioner's success in this litigation. I cannot also ignore the fact that at the end of the academic session the probability that these candidates might.have joined other educational institutions and may not agree to seek admission in the Medical College cannot be wholly excluded, as urged by learned counsel for the petitioner. Mr. Baidyanaih Prasad made ii absolutely clear that he was willing to take the risk that is involved if even after his success in this petition and the due consideration of his application along with that of other deserving candidates preference is given to candidates who have obtained higher marks." The aforesaid observation is classically distinguishable in the sense that in that case, the petition was addressed against reserved seats. In present case, we are not dealing with a case of reserved seats; rather, here the position is otherwise. The claim of the petitioner, in fact, is against free seat. By and large, the petitioner seeks admission in M.Sc. Physics. He does not want disturbance of the students already admitted despite the fact that they secured lesser marks than him. Therefore, no such difficulty is faced here as in the aforesaid case. In Syed Abdul Wadood's case, P.L.D. 1957 Karachi 740, Mr, Justice Lari, who spoke for the Court, observed that directions in the matter of admission must not contravene the provisions of Article 5 of the Constitution (of 1956) which lays down that all citizens are equal before law and are entitled to equal protection of law. In that case, the proposition in fact pertained to reserved seats in Dow Medical College. The Ministry of Health had issued two circulars whereby 65 seats out of 130 were reserved for various units and classes. The circulars having been found violative of Article 5 of the Constitution (Article 25 of the present Constitution of Pakistan), were struck down. In Shrin Munir's case, P.L.D. 1990 Supreme Court 295 = PLJ 1990 SC 159, the proposition of reservation of seats for male students on the basis of reasonable classification, received attention of the Court. In that case, girl students who obtained higher marks than the male students, sought admission in one of the Medical Colleges where out of 1085 seats, 858 seats were open seats, of which 677 were allocated to boys and 181 to girls. Girls were supposed to compete within their own quotas. The marks obtained by girl students falling at the bottom being much higher than the boy students, the scheme of reservation of seats was challenged by invoking Fundamental Right No. 25 read with Right No. 22 of the Constitution of Islamic Republic of Pakistan. The learned Single Judge of the High Court struck down the scheme of allocation of seats on the principle of equality before law and equal protection of law. In Inter-Court appeal, the Division Bench, however, reversed the finding. In the Supreme Court, the finding of the learned Single Judge prevailed. Mr. Justice Shafiur Rehman, the learned Judge who spoke for the Court, observed that by virtue of Fundamental Right No. 25, admission to Medical Colleges must be made available on merits irrespective of reservation and allocation of seats for each sex. In this case, though the question of admission on the basis of sex is not directly involved, but at the same time, the proposition emerges on the basis of right of equality before law and equal protection of law. IS. The learned Counsel for the respondents argued that the High Court is not competent to issue directions to the respondents to increase the number of seats for giving admission to the petitioner. In support of this contention, reliance was placed on Chairman Selection Committee, Bolan Medical College, Quetta's case, 1979 S.C.M.R. 529. It was also a case of admission in Bolan Medical College. In that case, the learned Judge of Baluchistan High Court, on accepting the constitutional petition, issued a direction to the authorities to increase the number of scats lor admission of the petitioner. Mr. Justice Muhammad Akram, the learned Judge of the Supreme Court who recorded the verdict of the Court, disagreed with the manner of direction but at the same time, refused to interfere in the order of the High Court. It was also a case of admission in a Medical College where the petitioner was denied admission on account of domicile certificate. The number of scats having been fixed, students having lesser marks were gKen udrnis^on instead of the petitioner. In such circumstances, the Court came to the conclusion that the respondents who secured admission -instead of the petitioner, were not at fault, as actually the admission was denied to the petitioner on account of wrong decision of the Selection Committee. In present case, such a situation does not arise, as in fact the number of scats is not fixed. The respondents have, in their defence, conceded that the number of seats fixed originally, was later on increased to accommodate students including those who were admitted on the recommendation of the Chancellor. The respondents have only to pros ide admission to the petitioner irrespective of the fact that one seat shall h: ; ve to be added in routine. In Banshidhcr's case, A.I.R. 1963 Rajasthan 172, a stuJ^r.t svas denied admission in L.L.B. class. He invoked the jurisdiction of the High Court. The petitioner claimed that he was a graduate from the Gujrat U. ''iv..r'sity as a private candidate. He was denied admission on account of having graduated a> a private candidate. The learned Judge arrived at the conclusion that such a condition was violative of law, as such the authorities were directed to grant mission to the petitioner. An objection was raised on behalf of the University thorities that admission in LL.B. classes being discretionary, the High Court uid not intervene in the same. The learned Judge over-ruled the objection and "That the matter of admission was not discretionary. Being the head of a public institution it was the duty of the Principal to act according to law in the matter of admission and he could not ignore the rules and refuse admission at his sweet will. The petition was maintainable." 19. The aforesaid reasons lead to the conclusion that the action of the respondents in denying admission to the petitioner is purely arbitrary, discriminatory and violatiye of right of equality before law and equal protection of law. The petition is, therefore, accepted. Ttie respondents are directed to provide admission to the petitioner in M.Sc. Pliysics within three days from this order. (MBC) Petition accepted.

PLJ 1990 AJK 60 PLJ 1990 AJK 60 Present: ABDUL MAJEED MALLICK CJ MUHAMMAD SHAFI-Petitioner versus ALAM DIN and another—Respondents Civil Revision No.2 of 1990, dismissed on 5.5.1990 (i) Limitation Act, 1908 (IX of 1908)-- —--Art 10 read with Civil Procedure Code, 1908, O.Vl'R. 17-Pre-cmption-Suit for—Limitation for—Whether amendment of plaint could be allowed after expiry of limitation-Question of--Limitation applicable to a pre-emption suit is one year from date of delivery of possession of property under alienation or dale of registration of instrument of sale-Held: When a portion of property under sale is left out and it is sought to be included such inclusion by amendment must be sought within limitation otherwise suit has to fail by rule of partial pre-emption. [P.63JB PLD 1987 AJ&K 170 rel . (ii) Partial Pre-emption— —Pre-emption-Suit for-Dismissa! of-Challcnge to-Whether amendment of plaint has rightly been refused-Question of—It is accepted that in addition to Shamilat Dch, vendor alienated his built-up property as well which were left out of suit-In such a situation, unless application for amendment was moved within statutory period, it was not permissible to allow amendment- Application for amendment before lower court is not supported by any affidavit of petition-writer who allegedly drafted plaint—Despite objection of partial pre-emption having been raised al very early stage, in written statement, application for amendment was moved after pre-cmptor produced evidence-Held: Prc-emplor was not diligent in prosecution of his case-Held further: Impuuned order does not suffer from legal delect—Petition dismissed. IP.G3JQD&E PLD 1979 SC (AJ&K) 123 rel. (iii) Partial Pre-emption-- —Pre-emption—Suit for—Dismissal of—Challenge to—Whether suit was hit by principle of partial pre-emption—Question of—In a suit for possession by pre­ emption, it is enjoined upon pre-emptor to sue for whole of property under alienation-Pre-emptor is not given right of pick and choose-Held: It is accepted by counsel for petitioner that pre-emptor brought suit for part of property though it was done by mistake. [Pp.61&62]A PLD 1973 SC 444 rel. Mr. M. Y. Aivi, Advocate for Petitioner. Raja Imdad All KJian, Advocate for Respondents. Date of hearing: 5.5.1990. order The petition is addressed against the order of the learned Sub Judge, Bhimber, passed on December 31, 1989. whereby an application for amendment of the pieadinsi of plaintiff-petitioner, was dismissed. 2. Alam Din respondent alienated the land measuring 16 kanals 18 marlas out of khewat No.83, khatas No.419 and 429, alongwith built-up property consisting of his residential house etc. and Shamlat-deh, situate in village Kaschanatar. Tehsil Bhimber, for a consideration of Rs.1,50,000/-, in favour of Muhammad Saleem. through a registered sale deed executed on July 25, 1984. Muhammad Shafi pre-empted the sale on account of his relationship with the vendor. The suit was instituted on August 10,1986. The pre-emptor brought the suit in respect of the suit land to the exclusion of built-up property as well as the proportionate share in the Shamlat. In his written statement, the vendee raised the preliminary objection on March 15, 1987, wherein it was alleged that the suit was hit by partial pre-emption, as such it was not maintainable. An application was moved by the plaintiff for amendment of his pleadings on November 30, 1989. It was opposed by the vendee-defendant, among others, on the ground of limitation. In view of the provisions of limitation Act applicable to a suit for possession by pre-emption, the application was turned down. 3. Mr.Muhammad Yunus And, the learned Counsel for the petitioner raised the following objections:- (;") That the plaint was drafted by the petition-writer who by inadvertence omitted to include the entire property under alienation. The plaint was not signed by the plaintiff, as such, the plaintiff-petitioner was entitled to the concession of amendment in question; and (ii) that the pre-emptor is prepared to pay full price of the property including the property which was left out of the suit. The contentions were opposed by the learned Counsel for the opposite side. 4. In a suit for possession by pre-emption, it is enjoined upon the preemptor to sue for whole of the property under alienation. The pre-emptor is not given the option of pick and choose. The principle underlying therein is that if a endee is to be excluded by virtue of his being a stranger, he has to be kept ousted from the entire property. Otherwise, the object of the provisions of the Pieemption Act is likely to be defeated. It is by virtue of this rule of law that a preemptor who seeks to substitute the vendee in a properly under alienation, is enjoined to opt for the entire property under sale or transfer. Whenever a departure is made, the consensus is that such a suit is unsustainable by virtue of rule of partial pre-emption. In the present case, it is accepted to the learned Counsel for the petitioner that the pre-emptor brought the suit for part of the property though in his view, it was done by mistake. This proposition was settled in Ghulam Muhammad's case (PLD 1973 S.C. 444). 5. The proposition of amendment of pleadings, in pre-emption suit received attention of Division Bench of this Court, in Muhammad Iqbal's case (PLD 1987 AJ&K 170) wherein it was held as:- "—The general principle of amendment described above is applicable to all pleadings in civil actions. Ordinarily, no pleadings are excepted to the rule postulated in the Code. This is what has been observed throughout by superior Courts in the Sub-Continent. But the principle of amendment is, of course, susceptible to be construed strictly in pre-emption matter. This is so as the superior Courts have frequently held that law of pre­ emption being predatory, piratical and threat to free transactions, is to be applied strictly. On this premises, the rule of amendment of pleadings in a pre-emption suit is construed in the same line and direction. The right of pre-emption is, in fact, a right of substitution. The pre-emptor, therefore, is enjoined to offer for taking over whole of the property irrespective of difference in quality on payment of whole price. He is not left to make choice by a division of the bargain. The right of pre-emption is defeated when pre-emptor leaves out part of the property or fails to pre-empt the whole transaction. This restriction, of course, is not enforceable in other transactions. It is for this reason that a vendee may defeat a pre-emptor seeking per-emption of part of property. The proposition of amendment of pleadings in a pre-emption suit, to include the property left out at the time of institution of the suit, is to be determined keeping in view the effect of partial pre-emption. The essential controlling element to partial pre-emption, again, is the period of limitation. An amendment to include whole of property desired within period of limitation, may be allowed liberally as at the time opposite party is not placed in an advantageous position. Covnersely, once the limitation under law expires, the Court is not empowered to allow amendment of plaintiffs pleadings, to include the property left out at the time of institution of the suit, in routine. The bona fide and genuineness of the amendment has to be ascertained from the circumstances under which plaintiff omitted to pre-empt whole of the property, and reasons for constituting negligence or omission, if any, to bring forth the case of plaintiff within the ambit of exception. By referring to the aforesaid grounds, it is not meant to propose that amendment in pleadings in a pre­ emption suit after the expiry of limitation cannot be allowed at all. Refusal to amendment after limitation is, of course, not absolute but at the same time, heavy onus is placed on plaintiff to satisfy the bona fide of his action." 6. The limitation applicable to a suit for possession by pre-emption is one year from the date of delivery of possession of property under alienation or the date of registration of the instrument of sale as contemplated under Section 29 of the Right of Prior Purchase Act, and Article 10 of the Limitation Act. Therefore, ordinarily, the suit has to be instituted within limitation as described above. When a portion of a property under sale is left out and it is sought to be included in the suit, such inclusion by amendment must be sought within the limitation, otherwise the suit has to fail by virtue of rule of partial pre-emption. 7. It is well accepted that in Shamlat-deh of the village each proprietor enjoys proportionate share. Therefore, every member of proprietary class carries a right in the Shamlat-deh of the village. In the preset case, in addition to Shamlat-deh. it is accepted that the vendor alienated his built-up property as well. The built-up property as well as Shamlat-deh was left out of the suit. In such a , situation, unless the application for amendment was moved within statutory ^ period, it was not permissible to allow amendment after the lapse of the limitation. The importance of inclusion of Shamlat-deh in the suit for possession b% pre-emption was considered in Muhammad Latifs case (PLD 1979 S.C. AJ&K 125) b> the Supreme Court, in the following mannen- ---\Ve are. therefore, of the view that 'Shamilat Deh' is a property for all practical purposes and intent. The 'share' or 'right' in Shamilat Deh land aN ••aid earlier being synonymous has a separate entity and it is not a 'right' attached with some land or with some individual." The learned Counsel for the petitioner argued that the plaintiff failed to include "-.hole property under alienation, on account of mistake committed by the .lition-writer who dratted the plaint. The application for amendment moved before the lower Court carries the aforesaid explanation, but it is not supported by an;, ,:!T.Li:i\it of the petition-writer who allegedly drafted the plaint and the Cou"s/. und^r who-^ instructions the plaint was drafted, verified and signed. In this \i-e-w ,-i ihe portion, thr statement of facts, in absence of definite proof, finds no fa\our of the Court. It is interesting that the application for amendment was moved on v: ."> . ':' ; s-- JeMMte the (act that the objection of partial pre-emption was I '.ei;. eetrK -UtiZw. in the written statement of the vendee. Alter filing of the wntun -i.:um.:ii. >--ues were raised and evidence of the parties was also led. The piv-cniptor produced his evidence on October 17, 1988. and August 29, 1.989. During all this period, no need was realised to move for amendment of the pieaiLr.gs. This suggests that the pre-emptor was not diligent in prosecution of his case. Be that as it may, the fact remains that the impugned order docs not suffer from legal defect. There is no force in the petition. It is, therefore, dismissed with costs. i MBC) Petition dismissed.

PLJ 1990 AJK 63(FB) PLJ 1990 AJK 63(FB) !: ABDUL MAJliED MA1.LICK CJ, S.Z. CHAUDHRI AND KHAWAJA muhammad saeed, JJ Ch. AKHTAR HUSSAIN and another-Petitioners versus ELECTION COMMISSION OF AZAD JAMMU AND KASHMIR, and 4 others-Respondents. Writ Petitions Nos. 45 and 46 of 1990, accepted on 20.5.1990 (i) Azad Jammu & Kashmir Interim Constitution Act, 1974— —S. 44 read with Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, Section 64~Assembly-Election to-Nomination papers- Challenge to—Whether nomination of a candidate is not open to challenge except through election petition-Question of--Contention that respondent (Sardar Sikandar Hayat Khan) be allowed to contest election as law provided adequate remedy against an illegality committed during process of election, in shape of election petition before Election Tribunal—Held: -By Amendment Act of 1985, such questions were excluded from jurisdiction of Election Tribunal. [Pp.67&68]A&B PLD 1961 SC 145, PLD 1962 (WP) Lahore 421, PLD 1965 (WP) Karachi 625, PLD 1967 SC 569, PLD 1970 Lahore 596, PLD 1971 Lahore 737, PLJ 1984 Quetta 123, PL! 1985 SC (AJK) 1 and 1985 SCMR 729 not relevant. (ii) Azad Jammu & Kashmir Interim Constitution Act, 1974— —S. 44-Assembly-Election to-Whether respondent No. 5 was not qualified to contest election-Question of-Contention that allowing respondent to contest election despite fact that he was disqualified to do so, would amount to allow multiplicity of illegalities to be committed till elections were held void by Election Tribunal-Held: Once it is satisfied that a person is not qualified or is disqualified, he cannot exercise right to contest election. [Pp.68&69]C (iii) Azad Jammu & Kashmir Electoral Rolls Ordinance, 1970- —Ss. 12 & 13 read with Manual of Instructions issued by Chief Election Commissioner, Azad Government of the State of Jammu & Kashmir, in 1990, Instruction No. 4--Assembly--Election to—Whether respondent No. 5 could contest election from Constituency LA-34 Jammu and others VI-Question of- -A person may have more than one ordinary residence in different cities of parts of a country and may claim to be resident of all places or either of them or more than one of such places—Under Sections 12 & 13 of Ordinance, such claimant would have to make choice only for one place—It is undenied that respondent No.5 resided and his name appeared in electoral roll of constituency LA-9 Kotli-2 from where he was elected in 1970 and 1985 and where he is still a candidate-Held: Ordinary place of residence of respondent No.5. is in constituency Kotli-2—Held further: Appearance of name of respondent in four different electoral areas was violative of provisions of Section 13. [Pp.76&77]D,E,F&G (iv) Azad Jammu & Kashmir Electoral Rolls Ordinance, 1970- —Ss. 12&13-Assembly-Election to-Whether respondent No. 5 was disqualified to contest election from Constituency LA-34-Question of-It is quite clear from verdict of Supreme Court in application for stay order, that respondent No. 5 was not entitled to be enrolled as an elector more than once or in more than one electoral area-Held: Ordinary place of residence of respondent being in Constituency LA-9 Kotli-2 whereirom he is also cotcsting election, it shall be deemed that he was disqualified lo be a candidate in Constituency LA-34 Jammu & others-VI. [P.80]J (v) Azad Jammu & Kashmir Electoral Rolls Ordinance, 1970 (1 of 1970)-- —Ss. 12&13—Assembly—Election to—Whether respondent No.5 was disqualified to contest election from LA-34 Jammu and olhcrs-VI—Question of-Returning Officer appears to have not attended to objection about disqualification of respondent No. 5 at time of scrutiny ol nomination papers- Chief Election Commissioner, before whom appeal was preferred, by-passed controversy relating lo registration of name of respondent in different electoral areas—Held: Impugned orders of Returning Officer and Chief Election Commissioner, having been passed in derogation to provisions of law, are without lawful authority and of no legal effect-Held further: Respondent No. 5 is disqualified to contest or be a member of Legislative Assembly against seat LA-34 Jammu A: othcrs-VI. " [Pp.82&83|K&L (vi) Azad Jammu & Kashmir Electoral Rolls Ordinance, 1970 (I of 1970)-- —Ss 12, 13 & 66—Assembly—Election to—Whether violation of Sections 12& 13 renders whole election void—Question of—Section (>(> postulated that Tribunal shall declare election as a whole to be void if it is satisfied that result of election was materially affected-by reason of failure ol any person to comply with provisions of Ordinance or Rules—Held: It is quite understandable that violation of provisions of Section 12&13 which are interconnected, would obviously render election void as a whole. [P.78JH Agha Ashiq Hnssain, Advocate for Petitioners (in both Petitioners). M/S S.Al. Zafar, Miilik Muhammad Adam Khan, and Ch. Riaz Akhtar, Advocates for Respondent No. 5 (in Petition No. 45 and for Respondent No. 1 in Petition No. 46). Raja Muhammad Hanif Khan, Advocate for Respondents Nos. 1 and 2 (in Petition No. 45 and for Respondent No. 2) (in Petition No. 46) M/S M.S. Farooifi, Advocate and M. Nisar Mirza, Additional Advocate General, amicus citric. Date of hearing: 20.5.1 WO. Abdul Majeed Mallick, CJ.--.Sycd Ghulam Mujtaba Bukhari, petitioner claims to be a refuge from Tehsil Mchndar, District Poonch (Indian occupied part of the State), presently settled in village khorakka, Tehsil Sohawa, District Jhelum. His name appears in the electoral roll of Constituency L.A. 34, Jammu and Others- VI. He has filed his nomination papers lo contest the elections to the aforesaid seat. Sardar Sikandar Hayat Khan, respondent No.l is also one of the candidates in the elections for the aforesaid A/ad Jammu and Kashmir Legislative Assembly seat. The name of Sardar Sikandar Hayal Khan appears on the electoral roll of Municipal Ward No.4 of Rawalpindi. The petitioner has challenged the candidature of respondent No.l by invoking extra ordinary jurisdiction of this Court. 2. It was alleged thai Sardar Sikandar Hayat Khan, respondent No.l was permanent resident of village Karcla Majhan, Tehsil Nakial, where his name appeared as an elector on the electoral roll of the area. The respondent contested the elections to the Assembly and was returned as such from the constituency L.A.9, Kotli-Il in 1970 and in 1985. He was a silting member of the Assembly and was also elected as Prime Minister. Thus, in view of the petitioner, the respondent, for all practical purposes, was a resident of village karcla Majhan. 3. In the on-coming elections, the respondent filed his nomination papers, to contest elections to L.A.34, Jammu and others-VI. An objection to his nomination was raised before the Returning Officer by one Ghulam Sabir (petitioner in other writ petition) but the same was turned down on April 11. 1990. An appeal against the order of acceptance of nomination papers of the respondent before ihe Chief Election Commissioner, was dismissed on April 19, 1990. The petitioner having no other adequate remedy, -fell constrained to invoke extra ordinary jurisdiction ol this Court, as contemplated under Section 44 of the A/.ad Jammu and Kashmir Interim Constitution Act, 1 (

1. Respondent No.l and Chief Election Commissioner, respondent No.2, in their written statements repudiated the allegations made by the petitioner and alleged that the writ petition was incompetent: ((') on account of acquiescence ol (he petitioner: (//) that the points raised in the petition required detailed investigation, including recording of evidence: (Hi) thai no violation ol law was involved in the case: and (/!•) that the pciitioner \sas vested with a right to agilate all (he poinls raised in the pelilion, before the Election Tribunal. 4. Ch. Muhammad Akhlar and Ghulam Sabir. petitioners in the second petition, also challenged the candidature of Sardar Sikandar Hayat Khan, respondent No.5 in that petition, and alleged that the petitioners were registered as electors in the electoral roll for the constituency LA.
2. Jammu and others. VI. Originally. lhe\'\crc residents of village Gulpcra. Tehsil Mirpur and presently they resided in villasjc New Gulpera Dakhli Sanjote. Tehsil Gujar Khan. Their names appeared at Serial Nos. I and 2 in the electoral roll of the area. They were contesting candidates for L.A.34. Jammu and others-VI. 5. Sardar Sikandai Ma\al Khan was a resident of village Karela Majhan. Tehsil Nakial, where his name appeared on the electoral roll at Serial No.387. The respondent contested the previous elections of the Assembly lor L.AA'. Kolli-II, being resident ol that constituency. In the on-coming elections, the respondent was auam a conlcsinm candidate lor L.A.y, Kotli-Il. In presence rtl the aloresaid factual position, the respondent, in violation to the election laws, filed his nomination papers lor L.A.34, Jammu and others-VI. The respondenl. in exercise ol his undue influence, gol entry ol his name at Serial No.I5(> ol the electoral roll of L.A.34, Jammu and others-VI. Under law, he could be enrolled as an elector in the electoral roll of (he electoral area where he actually resided. As he was not a resident of the constituency L.A.34, Jammu and others-VI, registration of his name in the electoral roll, acceptance of his nomination papers and dismissal of appeal by the Chief Election Commissioner, were illegal, unlawful and without jurisdiction. 6. (jhulam Sabir, one of the petitioners objected to the nomination of the respondent before the Returning Officer but the objection was turned down on April 11. I'WU. An appeal preferred by him before the Chief Election Commissioner was also dismissed. The petitioners having no other adequate remedy, preferred the writ petition bv invoking extra ordinary writ jurisdiction ot this C'ourl. 7. The Registration Officer, respondent No.4 submitted his written statement throuuh the Registrar of the Court. Respondents No.2 and 5 contested the petition by repudiating all the averments made therein, in the preliminary objections, it was a\errecl that the writ petition was incompetent for: (/) lailuix ol the petitioners to object to the enrolment of the respondent before the Registration Officer; (//) the points raised in the petition deserve detailed investigation, including recording of evidence: (in) no point of law was involved in the case: and (;V) the petitioners had adequate remedy in the shape of election petition. Respondent No.5 reiterated his claim to contest elections to both the seats of the Assembly, viz. L.A.9. Kotli-II and L.A.34, Jammu and others-VI. The respondent alleged that he was a resident of Satellite Town, Rawalpindi Municipal Ward No.4. as such was not disqualified to contest the elections in dispute. S. In written statement of the Chief Election Commissioner, it was stated that Ghulam Sabir was a brother of Akhlar Hussain. Practically, he had withdrawn from the contest, as such he was not an aggrieved person. Akhtar Hussain. petitioner failed to object to the nomination of the respondent before the Returning Officer and Chief Election Commissioner, as such, he was also not an aggrieved person. Next, it was contended that the nomination of a candidate was not open to challenge except through the election petition before the Election Tribunal. Likewise, the electoral roll wherein the names of the petitioners and respondent No.5 appeared, became final after the notice of the elections, it could not be disturbed at this stage and that the Returning Officer and Chief Election Commissioner were incompetent to modify the electoral rolls, by excluding the name of the respondent. Thus, the orders of acceptance of nomination papers and dismissal of the appeal, were quite legal. . Agha Ashiq Hussain, the learned Counsel appeared on behalf of the petitioners in both the cases. Likewise. Mr. S.M.Zafar, a senior Counsel represented Sardar Sikandar Hayat Khan in both the petitions. The learned Counsel for the parlies addressed common arguments in both the petitions. It is, therefore, proposed to dispose of the petitions by common order.
3. The preliminary objections raised in the written statements of the contesting respondents, were not pressed into service except that this Court may refrain from exercising its extra ordinary jurisdiction at this stage by allowing the respondent (Sardar Sikandar Hayat Khan) to contest the elections as the law provided adequate remedy against an illegality committed during the process of election, in the shape of election petition before Election Tribunal. Mr. Muhammad Hanif Khan, the learned Counsel for Chief Election Commissioner, in support of his contention, cited P.L.D. 1.961 S.C. 145. P.L.D. 1962 (W.P) Lahore 421. P.L.D. 1965 (W.P) Karachi 625, P.L.D. 1967 S.C. 569, P.L.D. 1970 Lahore 596. P.L.D. 1971 Lahore 737, P.L.J. 1984 Quelta 123, P.L.J. 1985 S.C. (AJ&K) 1 and 1985 S.C'. M.R. 729. 11. We have examined the proposition raised by the learned Counsel for the respondents. It is undenied lhat the law provided a remedy of election petition before the Election Tribunal as contemplated under Section 64 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The Election Tribunal, initially, was competent to look into, among others, the validity of the nomination of a returned candidate and the qualifications and disqualifications of his being elected as a member as contemplated under sub­ section (1) (a) & (b). By an Amendment Act of 1985. the aforesaid questions were excluded from the jurisdiction of the Election Tribunal and the Election Tribunal was left with jurisdiction in the matters listed in clauses (c) and (d) 12. Besides that, this proposition was raised before the Supreme Court in an application for interim injunction by the learned Counsel for the respondent. The learned Acting Chief Justice of the Supreme Court attended the proposition at considerable length by going through the authorities cited on behalf of the respondent and arrived at the conclusion that the case law cited by the learned Counsel was of no help as, in the situation, the High Court was not debarred from exercising its extra ordinary jurisdiction in appropriate cases. 13. Mr. S.M.Zafar, however, made a suggestion that the Court may leave the proposition unresolved to enable the Election Tribunal to decide it at appropriate time. It was argued that in case the election of the respondent was found void on account of illegality committed by him, the whole election shall be set aside and in that case, all the contesting candidates, who presently, for one or the other consideration, have already withdrawn, shall have the opportunity to contest the election. In case the respondent was deprived of contesting the election on account of the alleged disqualification for his being non-resident of the Constituency in question, the political party to which the respondent belongs, would be deprived of the seat of the Assembly. Moreover, the candidates who have already withdrawn, shall also be deprived of their statutory right to contest | election to the seat of the Assembly. In reply to the aforesaid arguments, Mr. Muhammad Siddique Farooqi, who appeared as amiciis curie, explained that by allowing the respondent to contest election despite the fact that he was disqualified to do so, would amount to allow multiplicity of illegalities likely to be committed till the elections were held void by the Election Tribunal. It was elaborated that in case the respondent was returned from the seat, he will obviously be free to vote in the election of the Speaker, the Prime Minister and
4. the President and by the time the Election Tribunal decides the election petition, these stages will be over. He made a counter suggestion that the chance of perpetuating the illegality by allowing a person who, in the eye of law, was disqualified to put up his candidature, would comparatively be more harmful and unjust than by disallowing him to contest the election. We, in our earnest consideration, agree with the second view, irrespective of the fact whether some harm will be caused or not as, in our estimation, once it is satisfied that a person is not qualified or is disqualified, he cannot exercise the right to contest election. This Court, being a Court of law, has to adhere to the rules of law. irrespective of the consequences flowing therefrom. The objection is, therefore, not sustained. 14. The substance of the points agitated by Agha Ashiq Hussain. the learned Counsel for the petitioners, is that in presence of the admitted position that Sardar Sikandar Hayal Khan is resident of village Karela Majhan where his name appears on the electoral roll of electoral area LA-9. Kolli-2 and that he has also filed his nomination papers to contest the on-coming election lor the same seat and that he was a sitting Member Legislative Assembly against the said seat, obviously would suggest that entry of his name in the electoral roll for Constituency LA-34 Jammu and Others VI was in contravention of law. Moreover, keepine in view the provisions of Section 13 read with Section 12 of the Elections Ordinance I of 1970. he was disqualified to contest election for Constituency LA-34 Jammu and Others VI. 15. The chemc of constitution of Legislative Assembly, as contemplated in the Constitution and other laws, has to be kept in view while resolving the controversy under consideration. Article 22(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 postulates that the Legislature of A/ad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty-eight members of \vhom-- (a ! torts shall he elected directiv on the basis of adult franchise: ici one who shall be from amongst the Ulema-e-Din or Mushaikh and wellversed with the teachings of Islam, shall be elected by the directly elected members: id) one. who shall be from amongst the Jammu and Kashmir State subjects ''isidins; abroad, shall be elected bv the directiv elected members; Section 24(1} of she Act postulates the qualifications applicable to a person to be elected as a member of the Assembly. These are: (a) that he is a State subject; (b) that he is not less then twenty-five years of age; and (c) his name appears on the electoral roll of any constituency in Azad ammu and Kashmir or Pakistan . Sub-section (2) postulates that a person shall be disqualified from being so elected if- (c) (d) ... ... (/) he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law. The disqualifications referred to in clause (f) are available in other election laws. Among them, the A?.ad Jammu and Kashmir Legislative Assembly Ordinance, 1970 (Ordinance VI of 1970) is relevant to the proposition, its Section 2 is rcproduced:- "Composition of the Legislative Assembly.- As soon as may be after the promulgation of this Ordinance and notwithstanding anything contained m the A/ad Jammu and Kashmir Government Act. 1%H, there shall be constituted in the manner hereinafter appearing a Legislative Assembly consisting of-- (1) twenty-eight members to be elected by the Slate subjects residing in the territories now under the administration of the A/ad Government of the State of Jammu and Kashmir: (2) six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Mu/affarabad. Ananlnag (Islamabad) and Baramula as these existed on 14th day of August. 1947, who are now residing in any of the provinces of the Punjab, Baluchistan, Sind and North- West Frontier Province; (3) six members to be elected from amongst themselves by such of the State subjects from other parts of the Stale of Jammu and Kashmir . and State Subjects originally residing in territories under the administration of Azad Government of the State of Jammu and Kashmir , as are now residing in the Provinces referred to in clause ... 16. It is important to note that the composition of the Legislative Assembly, as contemplated under Section 2, rests on three categories of the members elected by the State subjects residing at different places. Such a composition is not available in any other State of world including India and Pakistan ft is, therefore. to be kept in mind that the aforesaid composition of the Legislative Assembly has been framed in view of the extra ordinary position of the Stale as its future status is yet to be determined. The State subjects are residing, in addition to A/ad Kashmir territory, in Pakistan and foreign countries. The framers of the scheme. under a well considered plan, thought it fit to provide representation to all sections of the State people to maintain and keep intact the unity and identity of the State to enable the State subjects to exercise their right of self-determination in the manner of plebiscite as recognised by the UNCIP and Security Council Resolutions, to determine their future status. 17. Here it would be canducivc to advert to the history of adult sufferage in the Stale, for facility of the proposition under consideralion: The people of the State right from usurpation of their sovereignty by Dogra ruier by virtue of Treaty of Lahore of March 9, 1846 and Treaty of Amritsar of March 16, 1846, never acknowledged the right of despot to rule them. They uprose against the despotic rule from time to time and lately the movement assumed agitational shape in July, and October, 1931. In consequence of the sacrifices made by ihc people, some of their rights were accepted, in lieu of which Praja Sabha, the Legislative Assembly, was constituted in Dogra regime. The Praja Sabha consisted of 75 members, out of whom forty were elected directly. Be thai as it may, in 1947, on emergence of free States of India and Pakistan , the people of the State of Jammu and Kashmir advised the ruler of the State to accede to Pakistan . On apprehending conspiracy between the Congress leaders and the ruler of the State, the people rose in revolt against the ruler and secured freedom of part of the areas of the State. On October 24, 1947, free revolutionary Government was formed. This Government was declared to be the Government of the whole of the State of Jammu and Kashmir representing all sections of population. On Cease-fire truce, the right of self-determination of the people was acknowledged in the Linked Nations in the shape of resolutions of August 13, 194S and January 5, 1949. As the future of the State was likely to be determined by free and impartial plebiscite, the provisional Government of Azad Jammu and Kashmir continued to be nominated by the working committee of All .Fammu and Kashmir Muslim Conference as recognised by the Kashmir Affairs Ministry. The constitution of the Government, exercising legislative, executive and other allied functions, was governed by the Rules of Business of 1950, 1956 and 1958. In 1960, the constitution of the Government received a new attention and approach, on account of which right of vote was given to the citi/ens to enable them to elect their representatives at the level of Union Councils, Town and Area committees. During this period, as a part of the scheme of franchise, the Azad Jammu and Kashmir Refugees Registration and Representation Act, 1960 was also enforced. It was deemed expedient to associate the refugees of Jammu and Kashmir State residing in Pakistan in the election of the President and members of the Council of A/ad (io\ernmcnt of the State of Jammu and Kashmir. Thus the representatives from amongst the refugees so elected under the aforesaid Act, along with the elected members of the Basic Democracies, constituted the electoral college for election to the office of the President of Azad Jammu and Kashmir as well as the Council of A/ad Government of the State of Jammu and Kashmir . IS. The Council was composed of twelve members, out of which six members were to be elected out of the elected members of the Basic Democracies within A/ad Jammu and Kashmir territory, three members were elected out of the representatives of refugees from the province of Kashmir and three members from the representatives of refugees from Jammu . The composition and constitution of the Council, later on known as the Slate Council, was modified and changed according to the circumstances in 1964, 1968 and 1970 when instead of State Council, Legislative Assembly was constituted. The provisions of Section 2 of the Ordinance described above, were framed so as to give representation to all sections ot the State subjects in the Legislative Assembly.
5. We have recorded the history of composition of the Council in order to highlight the object of the scheme of composition of the Legislative Assembly representing the State subjects residing within A/.ad Jammu and Kashmir territory, the State subjects from the occupied parts of districts Muzaffarabad, Baramula and Islamabad of Kashmir Province and other occupied parts of the State including the State subjects who originally resided in Azad Jammu and Kashmir but were presently residing in Pakistan.
6. Mr. S.M. Zal'ar, the learned Counsel, developed his argument in support of nomination of Sardar Sikandar Hayat Khan, respondent, by reference to clause (c), sub-section (1) of Section 24 of the Constitution to convince (?) that a person was qualified to be elected as a member of the Assembly if his name appeared on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan. It was elaborated that once the name of a person was brought on the electoral roll, whether that electoral roll was for a Constituency in Azad Jammu and Kashmir or a constituency in Pakistan, he was qualified to contest election. As the name of the respondent appeared on the electoral roll for the constituency LA-34 Jammu and Others VI, he was, in view of the learned Counsel, qualified to be elected as a member of the Assembly. It was emphasised that the respondent was protected by the operative part of category (3) of Section 2 of Ordinance VI of 1970 which referred to State subjects of other parts of the State, irrespective of the fact that they resided in Pakistan or not. Reference was made to a document showing thereby that late Sardar Fateh Muhammad, father of the respondent, secured a claim against his landed and some built-up property in a village of Tehsil Mehndar, showing thereby that the respondent was also a refugee from the occupied part of the Slate and by virtue of that, he was qualified to be elected as a member of the Assembly. Much effort was made to satisfy that reference to the words "residing in" used in categories (1) and (2) and concluding part of category (3) was deliberately avoided in the case of operative part of category (3). It was done to enable all the State subjects to exercise their right of franchise for being elected as member of the Assembly. The learned Counsel argued that irrespective of the fact that the respondent resided in Satellite Town, Rawalpindi or not, by virtue of the operative part of this provision, once his name appeared on the roll of the electoral area of either of the Constituencies, he was qualified to be elected as Member of the Assembly. Mr. Muhammad Siddique Farooqi, who appeared as amicus curie, interpreted the provision in a different manner and argued that the words "as are now residing" used in the concluding part of category (3) were applicable to both, the State subjects from other parts of the Slate of Jammu and Kashmir and Stale subjects originally residing in ihe lerritory of Az.ad Jammu and Kashmir. The learned Counsel pointed oul lhat if we omit to read ihe words "as are now residing" along wilh the operative part of category (3), the whole scheme becomes absurd and in that case all the Stale subjects including those now residing in the occupied part of ihe State shall be deemed to have a right to be elected as Member Legislative Assembly. . 21. We have given ihe summary of the development of conslitutional representation given' to the State subjects during the transitory period till such time the right of self-determination is achieved. Unless we keep in view the aforesaid constilulional development, it would be difficult to appreciale the scheme of composition of ihe present Azad Jammu and Kashmir Legislative Assembly.
7. It is undenied that the framers of the Constitution and scheme of composition of the Assembly, purposely gave representation to all sections of the State subjects residing at different places including those settled in Pakistan and abroad. In case of twenty-eight members to be elected by the State subjects residing in Azad Jammu and Kashmir territory, there was no restriction, whatsoever, except the qualifications and disqualifications listed under Section 24 of the Constitution and other allied laws applying to the election of members of the Assembly. It is permissible for a State subject from the occupied areas of the districts of Muzaffarabad, Islamabad and Baramula and other occupied parts of the State, to contest elections as member of the Assembly against any one or more than one seat. But this concession was not available to the State subjects residing in the territories now under the administration of the A/.ad Government of the State of Jammu and Kashmir to seek election against either of the seats reseved for the State subjects falling under categories (2) or (3). This interpretation finds support from the departmental interpretation listed in instruction No.4 of the Manual of Instructions issued by the Chief Election Commissioner, Azad Government of the Stale of Jammu and Kashmir, in 1990. It is reproduced: "Forty members falling under the following three categories are to be returned to the Assembly by direct vote, namely— (/) twenty eight members to be elected by the State subjects from twenty eight territorial constituencies comprising the territory of Azad Jammu and Kashmir; (//) six members to be elected by the Stale subjects "from amongst themselves" who being refugees from the occupied areas in the districts of Muzaffarabad, Anantnag (Islamabad) and Baramula, (hereinafter called the Valley) are now resident in Pakistan; these six seats which are non-lerritorial are called "ihe Valley Seats"; and (//'/) six members to be elected by the Slate subjects, "from amongst themselves" who being resident in Pakistan, are either refugees from the occupied areas of the former State not being "the Valley" or belong to the territory of the Azad Government of Jammu and Kashmir; these six seats are called "Jammu and others", and are also non-lerritorial. From this analysis, two things are noteworthy: First: A Slate subject enrolled as voter in a constituency falling under the second or third category would, on the basis of that enrollment, be eligible to contest election from a constituency falling under the first category also. Second: Election to any of the six seats falling under the second, or as the case may be, the third category can be contested by a State subject only if he is enrolled as voter in any of the six constituencies in that particular category.. This is the outcome of the limiting words, "from amongst themselves" in sub sections (2) and (3) of Section 2 of AJ&K Legislative Assembly (Elections) Ordinance 1970 (Ordinance III of 1970) in respect of membership falling under the second and third categories and the absence of similar limiting words in sub-section (1) ibid in respect of the twenty eight seats falling under the first category." The conditions precedent to candidature of members to be elected against the seals reserved for category (3) are: (/') that the members are to be elected from amongst the Stale subjects of other parts of the State of Jammu and Kashmir and State subjects originally residing in Azad Jammu and Kashmir territory; and (ii) thai such Stale subjects musl now be residing in Pakistan as describe;, in case of category (2). Thus firstly, members are to be elected from amongst the State subjects falling under category (3) and such State subjects are required to be residing in Pakistan. The suggestion that the words "as are now residing" used in sub-section (3) of Section 2 were not applicable to the operative part relating to Slate subjects from other parts of the State of Jammu and Kashmir, was incorrect. Such interpretation is not found reasonable and natural to the characteristic scheme of composition of the Legislative Assembly. Moreover, if the aforesaid words are not read conjunctively along with ihe operative part, that part of clause (3) conveys no meaning al all. The words "as arc now residing" used in the concluding part obviously refer to both sections of the State subjects enumerated in clause (3) of Section 2 of the Ordinance. It is, therefore, held lhal in order to seek election as member of the Legislative Assembly, the Slate subject claiming his position amongst the State subjects falling under clause (3), has to prove and satisfy that he was residing in Pakistan at the time of notification of the election schedule. The aforesaid restriction was applicable in case of all persons falling under clause (3) irrespective of the fact that their names were recorded in the electoral roll of any one of ihc conslilucncies in Pakistan.
8. Section 10 of the Electoral Rolls Ordinance, 1970 lays down the scheme including the conditions for preparation of electoral rolls. It provides that the electoral roll of an electoral area shall be prepared, containing the names of State subjects who, on the specific dale, were qualified to exercise their right of vote. The Registration Officer was enjoined to enter the name of a State subject in the electoral roll of an electoral area on the satisfaction lhal such Stale subject was resident in the electoral area. In order to determine the residence of a State subject, the conditions laid down in Section 12 of the Ordinance were to be kept in view. The other condition or restriction applicable to a State subject whose name was to be enrolled in the electoral roll of an electoral areas was that he was not entitled to be enrolled on the electoral roll for any electoral area more than once or on the electoral rolls for more than one elecloral areas. These restrictions were enumerated in Section 13. The controversy raised in the present case being confined to the proposition of ordinary residence of the respondent as well as appearance of his name in more than one electoral rolls of different electoral areas, it is thought conducive to reproduce the provisions: "12. Meaning of "resident".- (1) Save as hereinafter provided, a person shall be deemed lo be residenl in an electoral area if he— (a) Ordinarily resides in that area; or (/>) Owns or is in possession of dwelling house or immovable properly in an electoral area in I he territories administered by the Government; Provided that where any such person owns or possesses more than one dwelling house or other immovable property in more than one electoral area in .such territories, he, his wife and children ordinarily resident with him. if otherwise eligible tor enrollment, may at his option be enrolled in any one of such areas. (2) A person who for any reason resides in an electoral area other than electoral area in which he would have hut for such reason been resident shall, unless he otherwise indicates in writing 10 the Registration Officer, be deemed to be resident in the latter electoral area, (3) The wile ol anv such person as is reterrcd to in sub-section (2) shall, if she ordinarily resides with such person, be deemed to he resident in the electoral area in which her hir-kind is deemed to be resident under that sub-section. (4) A person who is defamed in prkon or other legal custody shall be deemed to be resident in the electoral area in which he would have been resident il he had not been so detained. (5) Where the residence of a State subject is in doubt, he may himself indicate the electoral area on the electoral roll of which he desires to be enrolled.
9. No person to be enrolled more than once or in more than one electoral area:-- No person shall be entitle-.! to be enrolled-- (a) on the electoral roll lor anv electoral area more lhan once: or (b) on the electoral rolls for more than one electoral area." 24. The Lccislalui'e has delmed the term "'vsklent" by reference to a parson when he ordinarily resided in a particular area or he \va.s owner or in possession of a dwelling house or other immovable propcrtv in an electoral area in the territories administered b\ the Government. In, present case, we are primarily concerned with the proposition relating to ordinary residence of the respondent, as alleged by him. in Pakistan . Therefore, we need not go into the other description listed under clause (b). In our view, clause (b) refers to the territories administered by the Government, meaniniz thereby the Government of A/ad Jammu and Kashmir. Thus, we are left only to construe the meaning and scope of the term "ordinary resident". In general terms, a person shall be deemed to be resident of a place where he lives along with his family, if any. showing his intention thereby that for all practical purposes, he resided therein. An occasional visit or stay due to some urgency, official visit or pleasure trip would not conceive the stay of that person in the premises as his ordinary residence. In other words, it requires actual physical use of the premises in the area for residential purposes of the person concerned. Any occupation or stay at a particular place, short of the aforesaid position, would not denote that place as place of his ordinary residence. 25. We are alive to the practical proposition that a person may have more than one ordinary residence in different cities or parts of a country and when faced with such a situation like the one now under consideration, may assert his claim to be resident of all the places or cither of them or more than one of such place. In that situation, Section 12 alone would not be sufficient to help in resolving the controversy. But when the provisions of Section 12 are to be construed along with the provisions of Section 13, the difficulty is obviously removed. In that case, the claimant of a particular place as his ordinary place of residence, would have to make a choice only for one place, where he would be enrolled as an elector for the purpose of preparation of electoral roll of an electoral area. 26. The provisions of the Electoral Rolls Ordinance and the Electoral Roll Rules provide thai once the ordinary residence of a person was registered in the electoral roll, he was not bound to remain attached to that particular place to maintain it as his ordinary place of residence, being a free person or in performance oS his official or other duties or for some other consideration, he may change his ordinary place of residence. In such a case, the law provided a mode as contemplated under Rule 4(1) of the Electoral Rolls Rules read with Section 12(2) of the Electoral Rolls Ordinance. The framers of law prescribed Form I! as page It.) of the Electoral Rolls Rules. 1970, whereby the person concerned had to make-a declaration of his previous place of residence and the place where he presently resided where he wanted to be enrolled on the electoral roll of that particular urea. 27. Now, we advert to the proposition relating to ordinary residence of the respondent, in the light of the aforesaid scheme of law to reach a conclusion as to whether the respondent in fact ordinarily resided in House No.F/877, Satellite Town, Municipal Ward No.4, Rawalpindi, Constituency LA-34 Jammu and others VI, as claimed by him. 28. It is undented that Sardar Sikandar Hayai Khan kLnt resided in village Karela Majhan, Tehsil Fatehpur Nakial, District K and tat his name appeared on the electoral roll of the area of Constituent. ' v A) Kotli-2 at serial number 387 along with the names of other members of In- family. A copy of the electoral roll of that area is on the file of this Court. It was also unequivocally admitted through Mr. Muhammad Hanif, Advocate who, in answer to a question of the Court, said that the respondent permanently resided in village Karela Majhan, but explained that now he was residing in Satellite Town, Rawalpindi. It is also undented that the respondent was elected as member of the Assembly in the general elections held in 1970 and 1985 from the said Constituency on the basis of appearance of his name on the electoral roll of that Constituency, showing his ordinary place of residence in village Karela Majhan. It is admitted by the respondent that he is a candidate in Constituency LA-9, Kotli-2 in the on-cotning elections scheduled to be held on May 21. It is also admitted that in his nomination papers, as a candidate in Constituency LA-9 Kotli-2, he made a declaration under his signature wherein his place of residence was described in village Karela Majhan, showing his name in the electoral roll at serial number 387 and claiming to be qualified and not disqualified to be elected as member of the Assembly. Another relevant factual proposition is that the respondent adhered to his claim to be resident of Satellite Town, Rawalpindi, but nowhere in the written statement or arguments, it was accepted that subsequently by shifting his ordinary place of residence from village Karela Majhan to Satellite Town, Rawalpindi, he fulfilled the conditions laid down under Rule 4(1), described in form II appended with the Electoral Rolls Rules, 1970. The aforesaid statement of facts leads us to the conclusion that the ordinary place of residence of the respondent was village Karela Majhan, Tehsil Falehpur Nakial. 29. Mr. S.M. Zafar, the learned Counsel for the respondent, at one stage, emphasised that the respondent was a refugee from Indian occupied part of the State and in support ol his alleged claim, reference was made to a copy of a claim purported to be verified in the name of his father. Irrespective of the evidentiary value of the document, once it is satisfied that the respondent ordinarily resided in village Karela Majhan, his status as a refugee was not going to help him to wriggle out of the difficulty, unless, of course, he satisfied that being a refugee, he. Now resided in Pakistan. In presence ot sufficient material on record, necessitating no lurlher investigation or recording of evidence, it is permissible to resolve the controversy in question, in the aforesaid manner. 30. It is interesting to note that the name ol I he respondent appears on the electoral rolls not only of Karela Majhan and Satellite Town. Rawalpindi but it appears also on the electoral roll of electoral areas Khander and Kolli city. Thus, the respondent is enrolled at one time at four places. In appeal before the Chief Election Commissioner, his attention was invited to the fact that the name of the respondent appeared on the electoral rolls of more than one electoral area, but the learned Chief Election Commissioner instead of attending to the point at issue, adverted to (he provisions ol the Electoral Rolls Ordinance and the Rules and by-passed the real objection of the petitioner. The lad of the matter is that the Chiel Election Commissioner and prior to him the Returning Officer, were enjoined to satisfy thai the respondent was not disqualified to be elected as member of the Assembly by making a summary enquiry into the allegations ascribed to him and on satisfaction that no disqualification was attracted in his case, they could have accepted his nomination. This has not been done in the present case. So. it is a case ol clear departure from the norms ol exercise of authority and jurisdiction. 31. As noticed earlier, the respondent could not be enrolled more than once or at more than one electoral area as contemplated under Section 13 of the Electoral Rolls Ordinance. Appearance of his name in four different electoral areas was violalive of the provisions of Section 13. It was argued that the provisions of Section 13 were directory and not mandatory as no penalty was attached to its violation. The proposition of directory and mandatory character of legal provisions is of wide import. In" some cases, the provisions of law were held directory even in absence of its penal aspect. The proposition also received attention of the Supreme Court in the present case on this aspect and the learned Acting Chief Justice made observation to that aspect by unsustaining the objection of the learned counsel for the respondent. 32. In present case, Section 66 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 197ft postulated thai the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election was materially affected by reason of failure of any person to comply with the provisions of the Ordinance or the Rules. Reference to the words "failure of any person" is of wide import. When an election is materially affected on account of any action or omission of any person, including the Registration Officer, the Returning Officer, the Chief Election Commissioner, the candidate or his agent and all others who were attached with holding of the election, the election as a whole would be rendered void. In presence of the aforesaid penal clause, it is quite understandable that violation of the provisions of Sections 12 and 13, which are inter-connected, would obviously render the election void as a whole. 33. Mr. S.M.Zafar, the learned Counsel argued that the electoral roll could not be modified or amended after issuing notice of the elections. Therefore, whether an entry in the electoral roll was correct or incorrect, irrespective of that, the electoral roll could not be disturbed by any authority or Court, including this Court, after announcement of the election schedule. The learned Counsel also made a reference to certain provisions of the Electoral Rolls Ordinance showing thereby that if a person, whose name appears in the electoral roll more than once or in more than one electoral areas, he would not be deprived of his right to cast vote on that count. On that premises, the respondent whose name appeared on the electoral roll of electoral area of Constituency LA-34 Jammu and Others VI, was entitled to cast his vote in that Constituency and when that was permissible, he could also contest election for the same seat of the Assembly. The learned Counsel ignored the other allied provisions relating to penal action against violation of the provisions of the Ordinance and the Rules as any person who was found casting his vote more than once or in more than one electoral areas, was guilty of an offence under the provisions of the Ordinance. Moreover, casting of a bogus vole in derogation and violation of provisions of Section 13, would not he relevant unless the number of such bogus votes was such that by virtue of that illegality and corrupt practice, the result of election in that Constituency was materially affected. Once it was satisfied that on account of casting of illegal votes by personation or otherwise, the result of the election was materially affected, it was available to the Election Tribunal to declare the election void as a whole. Here in this case, the position of the respondent was altogether different from a person who was enrolled more than once or in more than one electoral area as an elector merely to cast his vole. In this case, when the respondent was allowed to contest the election in presence of disqualification elaborated above, it is undcnied that the result of the election would be materially affected. Therefore, it was nol permissible to allow a person disqualified to be elected as a member, to contesl election of the Assembly. 34. Before concluding this aspect of the proposition, we would like to mention thai il is on record that house No.F/877. Satellite Town, Rawalpindi, was the residence of Mr. Hamecd Akhtar who resided there along wilh his family. The name of Mr. Hamecd Akhlar and his family was registered in the electoral roll ol Ward No.4. At no stage of the proceedings, the respondent claimed that he was the owner of the house or thai he was a member of the family or that Mr. Hamecd Akhlar and his family was not residing in thai house. This state ol lacts. clearly leads to the inference that the respondent was not a resident of Satellite Town , Rawalpindi and an effort was jnade to make use of the entry in the electoral roll to contest the election. Mr. S.M.Zafar, in the mid of his arguments, emphasised that may be that the respondent was not the person who arranged registration of his name in the'electoral roll of the area and it was his brother or a friend and for that he may not suffer. Factually, it may be the action ol some one else, but the fact remains that at no stage, the respondent volunteered to admit that the entry was not made at his instance or al least with his consent. The fact of the matter is that the respondent ultimately adhered to the position that he was resident of both the places, vi/... village Kcrcla Majhan and Satellite Town, Rawalpindi. 35. As an alternate argument, it was suggested by Mr. S.M. Zafar that in case of controversy regarding different places of residence of a person, sub-section (2) of Section 12 of the Electoral Rolls Ordinance provided him protection to claim the latter place of residence as his ordinary place of residence. Satellite Town , Rawalpindi , .where the respondent presently claims to be residing being latter place, it was suggested thai he was eligible to contest the election. We are unable to subscribe to the aforesaid interpretation of sub-section (2) of Section 12 of the Ordinance. Sub-section (2), as already recorded somewhere else, is to be construed along with rule 4(1) read with the appended Form II. On going through the description of appended Form II at page 10 of the Electoral Rolls Rules and the provisions of sub-rule (1) of Rule 4, it is safe to construe that reference to words "be deemed to be resident in the latter electoral area" mean the electoral area where the person previously resided and was enrolled as an elector. It does not mean the subsequent place or the present place of residence of the person. The scheme of law as described in the aforesaid provisions suggests that unless the person who presently resided in an electoral arfca other than the electoral area where his name appeared as an elector, unless he positively intimated in writing to the Registration Officer, he shall be deemed to be resident c.- r the previous electoral area. In other words, il was enjoined upon an elector who presently resided in a different electoral area, in case he wanted to be enrolled in the electoral roll ol that area, to apply to the Registration Officer intimating thereby the change of his place of residence as prescribed in Form II. Therefore, reference to "latter electoral area" .in sub-section (2) of Section 12 of the Ordinance shall be deemed as reference to electoral area where the name of the person was already enrolled as an elector. 36. When the matter was taken to the Supreme Court in the manner of application for stay order, the question of ordinary residence of the respondent was also raised before the Court. The learned Acting Chief Justice analysed the point by reference to documents relating to immovable property purchased in the name of the respondent within the limits of Constituency LA-34 Jammu and Others VI. The learned Chief Justice made the following obscrvations:- ' "By 1.30 p.m. on I4lh instant, a copy of the sale-deed executed in favour of the applicant has also been placed on the record which, piima facie, shows that the applicant is an owner of a house in the relevant electoral area, i.e. constituency LA-34 Jammu and Others-d. However, the question still remains as la whether if a person owns or possesses properly at two places, can he be enrolled as \oter twice despite bar contained in Section 13 ol the Electoral Rolls Ordinance 1970? When the proposition was raised before the learned Acting Chief Justice by the learned Counsel lor the applicant that the High Court had no jurisdiction in the matter because the applicant was resident ol the electoral area at Rawalpindi, the learned Chicl Justice posed a counter question to the learned Counsel in the following; words:- "When the learned Counsel was confronted with the situation as to how he would over-ride the hurdle created by Section 13 when a voter cannot be registered as such in two places, the learned Counsel maintained that it would not make any difference." The observation recorded previously was made in the context of the question posed in the subsequent observation ol the Court. Next, this suggests that the learned Actiim Chiel Justice ol the Supreme Court, as a matter ol fact, provided guidance in the matter that in view ol the provisions of Section 13. the respondent could not be enrolled twice as an elector in more than one electoral area. Mr. Justice Basharat Ahmad Sheikh, the learned Judge of the Supreme Court, while dealing with the point at is>ue, in his separate order, obsened: '\Ve drew the attention of the learned counsel lor the petitioner to sub­ section (3) of Section 13 of the A/ad Jammu and Kashmir Legislative Assembly (Elections) Ordinance and asked him whether the Returning Officer could reject the nominalion paper of the applicant if he reached the conclusion that the applicant was not qualified to be elected from constituency LA-34 Jammu and Others-6. Malik Muhammad Aslam Khan said that he had that power." 37. It is, therefore, quite clear from the aforesaid vardicl of the Supreme Court that the respondent was not entitled to be enrolled as an elector more than once or in more than one electoral area. His ordinary place of residence being village Karela Majhan from where he was also contesting election in constituency LA- ') Kolli-2. it shall be deemed that he was disqualified to be a candidate in the election in conslilucncv LA-34 Jammu \: Others-6. 38. Mr. M. Nisar Mir/a, the learned Additional Advocate General, who appeared as milieux curie, proposed that the proposition under consideration may be left out at this stage by allowing the respondent to contest the election so that the point at issue was resolved exhaustively in election petition by the Election Tribunal. In other words, it was suggested that in presence ol alternative adequate remedy contemplated under the A/ad Jammu and Kashmir Legislative Assembly (Elections) Ordinance contained in Section 64, this Court was incompetent to lay its hands on the proposition. It is already observed by us elsewhere that the objections relalinti to qualifications and disqualifications of a candidate were not within the competence of the Election Tribunal alter amendment of clauses (a) and (b) of Section 64 of the Ordinance. Therefore, in absence ol 'jurisdiction of the Election Tribunal, the aforesaid suggestion carried no weight. However, it may be brought on record that this point too received attention of the Supreme Court in the application of the respondent for interim injunction. Mr. Justice Basharat Ahmad Sheikh attended the point and observed as: "The piovision of ia\v extracted above shows lhai (he Eleelion Trihuiuii cannot m:( aside She election (>f a returned candid-ale !l hi.s nominj'ion paper had been illegally accepted or if he was not qualified to he elected as a member. It shows thai She petitioner cannol raise the present controversy before the Election Tribunal. It cannot, therefore, be said thai the non-petitioners had anv other remedv available io them, li we add io il the iact lhal no Election Tribunal is in existence today (lie matter assumes creaicr importance. Mr. Justice Sardar Said Muhammad Khan, the learned Acting Chief Justice. al page 25 of his order, resolved the proposition as: "ll is c.icicni that alter deleting (he aforesaid provisions by amendment, iiD remedy is a\ailable by resorting to election tribunal in case of r^. \clion or acceptance of the nomination paper and, thus, the aforesaid au;no;ii\ di'e-. ;;oi help the case oi ihe applicant; rather the amendment n-ciaU- •.iu .ajidiA ol the arguments oi the learned Counsel for she applieam thai where alternative remedy is available, writ jurisdiction caniu.it be imoked." 38. Mr. S.M. Zaffar. the leanud Counsel emphasised lhal in exercise of wrii jurisdiction, (his Court, v,-.^ not empowered ;o disturb he elcctoial roll relating io constituent. L--.->4 i,im;riu and Olhers-o currying the name ol the respondent at seiiai numr-_r i."' 1 . LUi^-- ii.c eleciora! roll was modilicd, the respondent was qualilied lo coiuot liu election. \'e are unable to subscribe to the aforesaid view ol the learned Ci'ii:;-.J. 1; is within the competence of this Court to modify or amend the >. Let oral roll at any stage once il was satisfied thai [he same was prepared in an illegal and unlawlul manner, in '.'.rone exercise o| jurisdiction bv the Rcgislration Officer under the direction of the Election Commissioner. The aulhoiiis kil lliis Courl us contemplaled under Section 44 ol the A/ad Jammu asul Kashmir Inieiim Coiisiituiuin Act i.-- ijuite comprehensive. Such authorilv was enlorceable in ail such cases unless it was precluded by an express provision oi the Constilulion ilseli. Il is admitted that there is no such piovision in she Constitution whereby I he authority of this Court is precluded So so! aside or modify an eniiA made in wrone exercise ol jurisdiction. Fherefore, ihe obie-ciion is nol sustainable. \'e may aKo make a reference io the obser\'ation Cif Mr. Justice Basharat Ahmad Sheikh, the learned Judsze ol the Supreme Court, in this context. in support oi our vic'.v. The relevant observation appears at pages 40 and -! I: "I now pass on Io the argument that finality attaches i.o elecloral "rolls and Ihe Reluming Officer was bound by ihe entries of the Electoral rolls. Bases.! on (ins argument the conlcniion is (ha! since (he Returnint: Officer has no aiithontv lo inquire into ihe correctness ol an entry in ihe electoral ioll. tin: High Court would not he compclcni lo declare his action as invalid because he had implemented the law ralher than '•'lolaling i(. This conlention ol ihe learned C'ounsel is no! concc? becaiise the Returning Olliccr is no! bound by ihe eniries »il'i.he clecloraj rolls in cases where there is a dispute about qualification or disqualification of a candidate. 1 he Supreme Courl o! Pakistan examined tins quesiion in Serajul Islam Khan's case (P.L.D. 19f>9 S.C. 5) and held (hat (he finality a!(aching lo die electoral rolls only relates lo a voter and does not extend to qualifications which are necessary lor a voter to become a candidate. In !hat case the qualification in dispute was age ot the candidate.' 39, The Returning Officer was competent to hold a summary inquiry to determine the objection relating to disqualification of the rcspondenl at the time ol scrutiny ol nomination papers ol the respondent, particularly so when an objection to ihat effect was raised by Ghulam Sabir. petitioner, one of the contesting candidates in the constituency. It appears from (he order of the Returning Officer that the objection was not attended in (he light of the provisions of law. and rather it was disposed ol in derogation to law. Likewise, the Chief Election Commissioner before whom appeal was preferred, by-passed the true controversy relating to registration ol the name ol the respondent in two different electoral rolls of different electoral areas. It was enjoined upon the Chief Election K Commissioner to decide the point in view of the provisions of Section 12 read with the provisions of Section 13 o! the Electoral Rolls Ordinance, 1970. An omission to exercise the jurisdiction in accordance with law. relieds non-exercise o! jurisdiction in the case. The impugned orders passed by the Returning Oliicer and the Chief Election Commissioner are shown to- have been passed in derogation to the provisions ;•! law. The vtmc are. therelore. held as without lawful aushfirilv and ol no legal eltecl. It is within the competence ol '.his C"Url to declare the j orders of the respondents, the Chief Election Commission^] ;:-,c; :.h> RcUrnini: Oiticer, as without lawful authority, in exercise ol powers conlcneu upon this Court under Section 44 of the A/ad Jammu and Kashmir Inienrn Constitution Act, 1974. This view finds support from the observation of the Supreme Court in this very ease appearing, at page 13 of the judgment of the Supreme Court recorded on 15th in.iu-.ni. The same is ; eproc.Ui.ed: "These arguments 'ail to take note of the tact that Section -14 ol the A/ad JainiTHi and Kashmir Interim Constitution Act embraces and conlers the jurisdiction on the High Court to issue writ petition, except the matters which are stated to be immune Irom the exercise ol writ jurisdiction by the Constitution itself. Expression "subject to this Act" used in Section 44 ol the Interim Constitution .Act. means that in ordci U-- iake uv\,jv the writ jurisdiction, the provisions must be in the Constitution itsell and not in the subordinate legislation such as ouster is tound in the Constitutions ol different countries. For instance, in the Constitution.;, ot India and Pakistan, as has already been pointed out in the earlier part ol this judgment; identical provisions pertaining to the election matters are contained in Article 225 of the Pakistan Constitution of 1973 and Article 329 ol the Indian Constitution. But there is no corresponding provision debamrm the High Court ot the A/ad Jammu and Kashmir to exercise the wiil jurisdiction in election matters. Besides, sub-section (3) ot 'section 44 specifically lays down that an order under sub-section (2) of this section ior issuance ot writ petition shall not be made on application moved by or in relation to a person m the Defence Service m respect ol his terms and conditions oi service. As has already been stated that as ihere is no provision analogous to Article 22.^ of the Pakistan (. (institution or Article 329 oi Indian Constitution, in the A/ad Jammu and Kashmir Interim Constitution Ac!, the jurisdiction ot the Hiuh Court to exercise writ jurisdiction in cases where the functionaries under the election laws act in liaerant disregard of the statutory provisions is not ousted. A reference mav be made to the case reported as Chief Election Commissioner, A/.acl Jammu and Kashmir v. Abdul \fajid (P.L.D. 1986 S.C. (AJ&K) 120) wherein \vril petition auainst the rejection of nomination paper was accepted; the appeal to the Supreme Court by the Chief Election Commissioner was dismissed with the observations that the judicial pronouncements made by the authorities in Pakistan and India are not relevant in the said, ease because there was no corresponding provision in the Interim Constitution Act. 1974 debarring the High Court from exercising wri' jurisdiction in case of election disputes. Initially when the learned coiin^i lor the applicant were confronted with the aforesaid .his Court, thev .submitted that thcv had not read the said .,subsequent da 1
10. 1 lhe\ maintained that despite the
11. Court the correct position ol law is election disptiles." 4u. In C'^s.c^ncc ol the analysis made above, we have reached the conclusion trial Sardar Sikandar Hayat Khan, respondent, is disqualified to contest or be a member of the Legislative Assembly against the seat LA-34 Jammu and Others-VI. tailing in category ('31 described in Section 2 ol the A/ad Jammu and Kashmir Lcc'-htivv A^jmNv Ordinance. 1970. The appearance of his name in the electoral roll of Satellite Town, ward No.4. Rawalpindi at serial number 156 is ol no k'Lia! died. Thus, the order o! acceptance ol his nomination (paper) by the Rcturnum Olhcer Rawalpindi ol April LI, 1990 and the order of dismissal of appeal prelerrcd b\ Giuliani Sabir before the Chief Election Commissioner of April 19. 1990 are set aside as being without lawful authority. These orders are of no legal effect in presence o! the disqualification attached to the respondent (Sardar Sikaiular Hayal Khani Kir Ivmu a candidate or member in Constituency LA-34 Jammu and U'heis-X 1. Costs shall !ollo\v the event. In the end. we would like to record our thanks for Mr. S.M. Zaiar, the learned senior Counsel, Agha Ashiq Hussain & Mr. Hani! Khan who represented the parlies and M/S Muhammad Siddique Farooqi and M. Nisar Mir/a. Additional Ad'>oi'aie deneral. who appeared tinin'ns curu . lor their valuable legal assistance. (MBC) Petition dismissed.

PLJ 1990 Karachi 1 (DB) PLJ 1990 Karachi 1 (DB) Present: SALEEM AKHTAR AND ABDUL RAHIM kazi, J Syed NOOR MUHAMMAD SHAH-Petitioner versus CHAIRMAN, K.D A--Respondent Constitution Petition No.D/999 of 1981, allowed on 24.4.1989 Natural Justice- —Cancellation of allotment of plot-Absence of show cause notice—Whether principle of natural justice violated-Question of~Case of petitioner that he or his father were not given personal hearing, has not been controverted— Held: Order of cancellation of allotment of plot is contrary to principles of natural justice (Audi alteram jpa/te/n)--Petition accepted and case remanded. [Pp. 5&6]A&B 1979 CLC 382, PLD 1975 Karachi 373 and PLD 1976 Karachi 830 rel. Mr. KamalAzfar, Advocate for Petitioner. Mr. Sabir Hussain Kizilbash, Advocate for Respondent. Date of hearing: 19.4.1989. judgment Abdul Rahim Kazi, J.-The facts giving rise to the present petition are that the petitioner was minor in the year 1974 when his father Syed Noor Ahmad Shah had made an application to the then Chief Minister of Sind for allotment of a residential plot to the petitioner in the Housing Scheme and consequently a plot bearing No. D-34 in Block D-4 of K.D A. Scheme No. 5 Kahkashan (hereinafter referred to as the plot) was allotted to the petitioner and a challan was issued to him whereunder the petitioner paid 50% of the price amounting to Rs. 25,000/- and ground rent for one year amounting to Rs.60/- only. The said challan bearing No. 272 issued on 22.3.1975 was paid hi the Habib Bank Ltd. K.DA. Branch0020 Karachi on 27.3.1975. The allotment order was issued on 7.4.1975 pertaining to the plot measuring about 1000 Sq. Yds. The site plan was issued on 15.4.1975. The possession of the plot was handed over on 7.5.1975. On measurement the actual area of the plot came to 993.75 Sq.Yds, which was duly acknowledged on 20.8.1975. The father of the petitioner then made an application on 23.2.1980 to the Additional Director (Lands) of the K.DA. intimating them that the plot stands allotted in the name of his son, the petitioner and that he should be issued the challan for the payment of arrears outstanding against the plot. By this application he also intimated the respondents that the original challan of the amount paid by him earlier was mis-placed and therefore he also submitted an indemnity bond on the stamp paper of Rs.30/- duly attested by Notary Public. The respondents K.DA. then issued challan No.F-257 on 20.2.1980 for a total sum of Rs.35,039.54 being the arrears of occupancy value, ground rent upto 30.6.1981. Transfer fee and interest which amount was paid in the Habib Bank Ltd. K.DA. Branch Karachi on 4.3.1980. However, thereafter the respondent No. 3 issued a show-cause notice to the petitioner on 17.2.1981 requiring him to give reply to a show-cause notice issued earlier on 8.2.1981, a copy of which was enclosed therewith. Under the said show-cause notice of 8.2.1981 the petitioner was required to show-cause within 15 days with regard to the following three irregularities committed in his allotment:- "1. There is no specific order of any competent authority for the allotment of the said plot. (2) You did not produce the original challan of first 25% occupancy value. (3) In the indemnity bond submitted by your father Syed Noor Ahmad Shah to issue the duplicate copy of challan of first 25% occupancy value, you have been shown a minor, whereas you have shown yourself a major of 38 years old in the application dated 7.4.1975 on the prescribed proforma at the time of allotment of plot." The father of the petitioner submitted his explanation on 2.3.1981, but the respondent issued the orders on 17.10.1981 whereby the allotment of the plot in favour of the petitioner was cancelled. The petitioner therefore filed the present petition with the prayer that the said cancellation of the plot be declared to be without lawful authority and of no legal effect and further that the respondent be restrained from giving effect to the said cancellation order and also from dispossessing the petitioner from the plot. In reply to the above petition Mr. Shamsul Arfin, Assistant Director, Clifton Division, K.DA. filed his counteraffidavit wherein it was specifically contended that the allotment of the plot was cancelled for the reasons mentioned in the said show-cause notice. It is also contended that there was no specific order of the allotment of the plot in favour of the petitioner by any competent authority and that the petition is not maintainable. In reply to the counter-affidavit the petitioner, who had attained majority by now has filed affidavit-in-rejoinder in March, 1989 wherein it has further been contended that no opportunity for hearing was given to the petitioner. We have heard learned counsel for the parties. Mr. Kamal Azfar, learned counsel for the petitioner has urged the following points:- (1) The grounds shown in show-cause notice are not valid grounds for cancellation of allotment. (2) The show-cause notice and cancellation order are in fact the orders passed by the Martial Law authorities and not the respondents and are malafide. (3) Martial Law authorities did not have jurisdiction to direct the respondents to pass such orders of cancellation. (4) The petitioner has acquired vested rights in the said plot having fulfilled all the requirements. (5) The order of cancellation is against the principle of natural justice as no personal hearing was given to the petitioner. Repelling the above contention of the learned counsel for the petitioner Mr. Sabir Hussain Kizilbash learned counsel appearing for the respondents has submitted as unden- (1) There was no proper and lawful order of allotment of the plot in favour of the petitioner. (2) That the application form contained false information about the age of the applicant-petitioner and that in consequence of the certificate given at the foot of the application form, the allotment was validly cancelled. (3) The cancellation of the allotment was by competent authority and not under the orders of Martial Law authorities. Taking up the first contention of the learned counsel for the petitioner, our attention has been drawn to the Allotment Regulations issued by the K.DA. Lands and Estates Department published in the gazette of West Pakistan of 27th August, 1965 which lays down the terms and conditions for allotment. Clause 6 of the said regulation provides for the procedure of allotment. Sub-clause (b) provides that G.B. may allot or authorise the Chief Minister and Director General to allot a fix number of such plots to individuals. It is also provided that such allotments shall be subjected to the terms and conditions at appendix A. From this the learned counsel has argued that the Chief Minister was quite competent to make allotment. He has then drawn our attention to the appendix A to the above regulation which provides for the mode of payment of instalment, taking over the possession and the penalities to be inflicted in case of default of payment etc. He has specially referred to condition No. 14 which reads:- "14. On payment of the full occupancy value and all arrears of lease together with one year's rent in advance in respect of the plot allotted to him the allottee will be entitled to a lease of the same for a period of 99 years upon the terms and conditions contained in the lease deed. The stamp duty and registration will be paid by the allottee." From this the learned counsel has submitted that having paid the entire consideration as per the copies of two challans submitted with the present petition, the petitioner has acquired vested right in the said plot which would not be cancelled for any reason other than those given in the terms and conditions as per above said appendix A. The petitioner accordingly has submitted that the copy of the petitioner's application for allotment of the plot which has been produced by the petitioner alongwith his counter-affidavit as annexure A, shows that there is an endorsement; "challan No .272" dated 22.3.1975" This challan No. 272 of 22.3.1975 is the one which the petitioner has produced with his memo of petition under which the amount of 50% of the occupancy value ' and one year's ground rent has been paid. He has contended that the respondents therefore cannot take the plea that there is no valid and lawful order of allotment in favour of the present petitioner, as this document comes from the record of the respondents and the obvious inference is that they had issued this challan consequence of the order of allotment which fact is further supported by the allotment order, site plan and possession order. Therefore the first two grounds taken in the show-cause notice are not tenable. With regard to the third ground taken in the show-cause notice, the learned counsel has contended that it was the I petitioner's father who had himself written to the respondents on 23.2.1980 stating therein that the plot stood allotted in the name of his minor son. He has also referred to copy of the indemnity bond produced by the respondent with their counter affidavit as annexure B wherein also he has stated that his son Noor Mohammad Shah (minor) is the owner of the plot. Therefore his contention is that the show cause issued on 8.2.1981 is not bonafide for the reasons that he has explained that the printed application form shows first three columns as name, father's name, age. It is his contention that the column of age is given below the column of father's name, and the petitioner's father was under the impression that it was his own age that was to be written and not the age of the minor, and under this misunderstanding he wrote his own age as 38 years and that this is a bonafide mistake for which he cannot be penalised. However, he has submitted that this is not a ground for cancellation of allotment as required under the above said regulation and the appendix. From the above submissions the learned counsel has contended that the petitioner has acquired vested right in the plot. Be that as it may, in our view these points involving factual aspects can best be determined by the respondent on the basis of the record. With regard to the second and third contention of the learned counsel for the petitioner, he has referred to the contents of para 15 of the counter affidavit filed

by the respondents wherein it has been specifically stated as under: "It is further submitted that the Martial Law Administrator, Headquarter MLA Zone 'C' under letter dated 29.1.1981 had also ordered to take action for cancellation of the said plot on the ground that there is no specific order of the^competent authority for allotment of the said plot, the allottee has failed to produce the original documents including the challan and that the plot was allotted to a minor on the misstatement of Syed Noor Ahmad Shah. On receipt of the order from the Martial Law Authorities the competent authority of the answering respondents after serving the Show Cause Notice ordered for cancellation of the plot. The order passed by the Martial Law Authorities as well by the competent authority of the answering respondents are just, legal and proper and fully warranted in law and passed in accordance with the rules and regulations in force." His submission therefore is that admittedly the action has been taken by the respondents under the orders of the Martial Law Authorities who were not the competent authority to order cancellation of the plot. In reply to the above contention, Mr. Sabir Hussain Kizilbash, learned counsel for the respondents, has stated that the order of cancellation was passed by the respondents of their own accord and not under the directions of the Martial Law Authorities as is apparent from the order itself which is passed by the competent authority on the basis of record. Lastly the learned counsel for the petitioner has urged that the impugned order was passed without giving any personal hearing to the petitioner which fact has been asserted in his affidavit-in-rejoinder. He has further argued that it was incumbent upon the respondent to have given personal hearing to the petitioner before ordering the cancellation of the allotment. The learned counsel has referred to the case of Pakistan Medical Association, Karachi vs. Government of Sind and 5 others (1979 C.L.C. 382), wherein it has been held, "furthermore the petitioner ought to have been heard before unilateral cancellation of the allotment of the plot in its favour as held by a Division Bench of this Court in the case of Haji Noor Mohammad and another v. K.DA.. and others". In the above case of Haji Noor Mohammad and another vs. K.D-A. and others (PLD 1975 Karachi 373) their lordships have held:- "This, however, does not mean that the K.DA. or the Chairman would act in an arbitrary, discriminating or in a capricious manner or that the allottee was not to be given a fair opportunity of representing his case or that any representation or cause shown by him was not to be examined or taken into consideration". The learned counsel for the petitioner has also placed reliance on the case of Yar Mohammad vs. K.DA.. (PLD 1976 Karachi 830), wherein it has been held that, "The mere fact that an allotment order could be cancelled without giving reason does not abrogate the rule of natural justice that the aggrieved party has to be heard before an order affecting his right is passed. The allotment order issued in favour of the petitioner's father conferred an important right upon him. In fact the reason given by respondent No.l, in its letter dated 17.10.1973, for cancelling the allotment in favour of petitioner's father was that the old allotment order in favour of Hidayatullah had been cancelled without notice to him, and such cancellation, according to the legal advice received by the K.DA., was illegal. We are of the opinion that the K.DA. while cancelling the allotment order in favour of the petitioner, should have given the petitioner a show cause notice, as was suggested by its Legal Adviser in respect of respondent Hidayatullah." The case of the petitioner that the petitioner or his father were not given the personal hearing has not been controverted by Mr. Kizilbash, learned counsel for the respondent which became an admitted position. We are inclined to follow the principles laid down in the above 3 Division Bench cases of this Court and hold that the order of cancellation of the allotment of the plot is contrary to the principles of natural justice (Audi alteram partem). We, therefore, set aside and quash the impugned order of 17.10.1981, whereby, the respondents cancelled the petitioner's allotment of the plot and remand the case to respondent No.3 with the directions to give an opportunity of being heard to the petitioner and pass a proper order after taking into consideration the submissions of the petitioner. The petition stands allowed in the above terms. However, there will be no order as to costs. (SHZ) Petition accepted

PLJ 1990 Karachi 6 PLJ 1990 Karachi 6 Present: Syed ABDUL REHMAN, J AFSAR ALI--Claimant/Plaintiff Versus M/S MEHBOOB SONS-Respondents/Defendants Suit No.870/88, disposed of on 26.4.1989 Arbitration Act, 1940 (X of 1940)-- —Ss.l4&9—Award—Making rule of court—Prayer for—Absence of notice to defendant for appointment of his arbitrator—Effect of—Plaintiff did not give notice to defendant for appointment of his arbitrator as required under Section 9 of Act-Held: Sole arbitrator appointed by plaintiff requires to be removed by Court—Award set aside, sole arbitrator removed and new Sole Arbitrator appointed. [Pp. 8&9JA Mr. BilalA.KIiawaja, Advocate for Plaintiff. Mr. Muhammad Anis, Advocate for Defendant. Date of hearing: 26.4.1989. judgment Arbitrator Mr. Khawar M. Hasan has filed this award under Section 14 of the Arbitration Act and has prayed that it may be made rule of the Court. 2. Usual notices were served on the parties. In pursuance thereof defendant M/s. Mahboob Sons have filed objections to the award. 3. The material objections are (1) that the plaintiff Afsar Ali had not served a notice of 15 days upon the defendant M/s. Mahboob Sons informing them that the Arbitrator appointed by them namely Mr. Quddos Ashraf had neglected or refused or was incapable to act and therefore they should appoint another Arbitrator within that period. As such the plaintiff was not entitled to appoint or treat Mr. Khawar M. Hasan as the Sole Arbitrator. (2) That the reference was restricted to the following terms: (1) The share of Mr. Afsar Ali in the future receipts from Pakistan Steel is whether limited to the receipts against "Extra Works" or whether it covers the refunds of electric charges also. (2) Whether the refund from Income Tax Department is also payable to Mr. Afsar Ali. (3) If the aforesaid document limits the payment to the extent of "Extra Work" only, then the refund of electric charges or refund of Income Tax whether can be classified as "Extra Work" items, but the arbitrator has exceeded his authority. 4. It was conceded by Mr. Bilal A.Khawaja that the plaintiff Afsar Ali had not given a notice of 15 days as required under Section 9 of the Arbitration Act to the defendant that his Arbitrator had neglected, refused or was incapable of acting and therefore he should appoint another Arbitrator. 5. In PLD 1964 Dacca 166-Abdnl KJialeq V/s. Province of East Pakistan, insimilar situation, it has been held as follows:- "Under this subsection this conditions precedent to the appointment by a party of his arbitrator as the sole arbitrator are (1) that the party proposing to exercise this power must have served notice on the other party calling upon him to appoint his arbitrator, (2) that a period of fifteen clear days must have elapsed after the service of the said notice and (3) that the other party must have failed to make an appointment within the aforementioned period. There are some other conditions laid down in other provisions, which, too, must be fulfilled, but there is no dispute raised before us regarding any of them. The controversy in the present case centres round the three requirements serialized above. It is not disputed that the appellant appointed his arbitrator as the sole arbitrator without serving the above-mentioned notice upon Government although he could do that only after service of such notice and failure of Government to nominate their arbitrator within a period of fifteen clear days thereafter. Mr. Khandkar, however, contends that the letter written by his client informing the District Controller, as asked for by him, of the appointment and name of his arbitrator along with the points to be referred to arbitration and the communication subsequently made by the sole arbitrator to Government notifying the date, time, place, etc., of his sitting taken together may be regarded as sufficient or substantial compliance with the aforementioned requirement of section 9(b). We are unable to accept this contention of the learned Advocate. The notice contemplated by the said section is one that has to be served prior and not subsequent to the appointment of the sole arbitrator and appears to be intended to give the other party an opportunity not only to make its own nomination but possibly also to give a second thought to its stand appointment of the sole arbitrator and as such the proceeding taken and the award made by him are without jurisdiction and void." In another case, which is from Indian jurisdiction, Shankar Lai Lachhmi Narain V/s. Phulchand Fathehchand reported in 126 Indian Cases 1930 a contract contained an arbitration clause under which each party was to nominate one arbitrator. Each party nominated an arbitrator but on the 14th October, 1925, the plaintiffs arbitrator refused to act. The remaining arbitrator, without giving time to the plaintiff to appoint a fresh arbitrator passed, on the 30th October, 1925, what he termed an award, as sole arbitrator, it was held:- "That the arbitration clause implied a power to nominate a fresh arbitrator if the original arbitrator refused to act and the award of the sole arbitrator without giving the plaintiff an opportunity to nominate fresh arbitrator was invalid." 6. Mr. Bilal Khawaja, however, pointed out that the conduct of the defendant was most unbecoming in that inspite of repeated requests by the plaintiffs Arbitrator neither he nor the Arbitrator nominated by him co-operated with him in the making of the award. With the result that the plaintiffs Arbitrator was compelled to give the award on being appointed as the Sole Arbitrator by the plaintiff. 7. Mr. Mohammad Anis next submitted that there is no reference to the Arbitrator to determine as to what was the amount due to plaintiff Afsar Ali from M/s. Mahboob Sons nor he was called upon to make an order for payment of money. All that he was required to do was to interpret the clauses of the compromise application and to declare as to whether the items of electricity charges refund and Income Tax refund were included in term "Extra Work" or not and that he should have stopped there. 8. I asked Mr. Mohammad Anis if the Arbitrator had stopped there, then how the plaintiff Afsar Ali could have recovered this amount because the application under Order 23 Rule 1 CPC was not apparently an executable decree not being one under Order 23 Rule 3 CPC but it was only for withdrawal of suit under Order 23 Rule 1 CPC. Mr. Mohammad Anis replied to this that the amount was already lying in Suit No. 455/83 filed by Ikram Sons against Afsar Ali and Mahboob Sons and the plaintiff could withdraw that amount from this Court in that suit after the clarification was given by the Arbitrator. 9. In the particular circumstances of this case whereas I agree that as the plaintiff did not give notice to the defendant for appointment of his Arbitrator as required under Section 9 of the Arbitration Act and therefore the Sole Arbitrator so appointed by the plaintiff requires to be removed by the Court but I feel that looking to the conduct of the defendant and the special circumstances of the case it is in the interest of justice that a Sole Arbitrator be appointed by the Court. Hence whereas I set aside the award and remove plaintiffs arbitrator I appoint Mr Justice (Rtd) Fakharuddin H.Shakih as Sole Arbitrator and refer these three issues enumerated above to him. I also direct the Sole Arbitrator so appointed to clarify as to how much amount would be due to the plaintiff as refund of electricity charges and refund of Income Tax dues so that the said amount may be claimed by the plaintiff from the Nazir, (if the finding is in his favour) from the amount lying in Suit No.455/83. Rs. 20,000/- shall be paid to the Sole Arbitrator! as fee, which will be shared by the parties in half and half. (SHZ) Order accordingly

PLJ 1990 Karachi 9 PLJ 1990 Karachi 9 Present: Syed ABDUL RAHMAN, J INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN-Decree-holder Versus M/S MAIDA LIMITED and 3 others-Judgment/Debtor Execution Petition No. 57 of 1986, decided on 4.4.1989 Civil Procedure Code, 1908 (V of 1908)- —O.XXI, Rule 66-Decree~Execution of~Sale of property in execution of decree-Sale proceeds of-Whether arrears of KDA, Karachi Water and Sewerage Board, and Excise and Taxation Department shall have first , preference-Question of—Said arrears are on this specific property (which is sold in execution of decree)~Held: Said arrears of claimant department shall have precedence over claim of mortgagee of property in dispute. [Pp. 10&11JA&B AIR 1932 Sind 121 and AIR 1935 Sind 232 distinguished. Mr. AJ.Chundrigar, Advocate for Decree-holder. - ' . Mr. Ismail Merchant, Advocate for Purchaser. Mr. Noorul Hassan, Advocate for KESC. Mr. U.Shah, Advocate for KWSB. Nemo for judgment-debtor Date of hearing: 4.4.1989. order Property in suit was sold in execution of this decree. Out of the sale proceeds s a sum of Rs. 3,36,173.86 was ordered to be retained by this Court by order dated 19.2.1989, which was the claim of the various departments namely Karachi Development Rs. 2,53,846, Karachi Water & Sewerage Board Rs. 31,629.42, Excise & Taxation Department Rs. 44,780/- and Karachi Development Authority ' Rs. 5,980/-. The balance amount was ordered to be paid to the Decree-Holder towards the decretal amount. It is contended by Mr. A.I.Chundrigar that the dues of K.E.S.C., K.W.S.B and Excise & Taxation Department on the property in question, cannot have preference over the claim of the Decree-Holder because these dues are agains( the occupants of the property or at the most against the person of the owner of the property and even if there are dues against the property then also these dues are not of such a nature that they may create an interest in the property in favour of their respective departments. As against this the property having been mortgaged by the Judgment-Debtor in favour of the Decree-Holder as early as 26.4.1965 will amount to a transfer of interest in favour of the Decree-Holder from that date. Hence the claim of the Decree-Holder shall have preference over the dues being claimed by the claimant departments. MrA.I.Chundrigar advocate placed reliance on AIR 1932 Sind 121-Ahmad Haji Esmail V/s. Parmanand Menghraj were it was held that arrears of abkari revenue are not due upon any specific land owned by the abkari renter. Hence a sale by Government of the land of the renter for recovery of abkari revenue is a sale subject to any prior mortgage on the land. This ruling does not apply to the facts of the present case because it is mentioned therein that the abkari renter is not of such nature that it can be treated as due upon any specified land though it may be recoverable as an arrear of land revenue. He then cited AIR 1935 Sind 232-People's Bank of Northern India Ltd V/^-Secretary of State for India. In this, case a person had taken an abkari license from Government for sale of liquor and subsequently created a valid mortgage in respect of his stock in favour of another person. The Government, it was held, in the event of default of an instalment could not claim precedence or share in respect of sale proceeds obtained frointte sale of the stock at the instance of the mortgage. The charge in favour of the • mortgagee had precedence over the claim of the Crown. This ruling also does not apply to this case for the reason that it pertains to abkari revenue and the property in the case in ruling is stock and not immovable property. MrA.I.Chundrigar then cited the latest judgment in this caseof IJ3.JB.P v. Hand Tools Limited & others (H.CA.No.85/87) in which it was held that income tax dues of an assessee shall have precedence over the claim of the Decree-Holder only to the extent of those dues which are prior to the creation of the mortgage. Those dues which pertain to the period after the creation of the mortgage cannot have precedence over the Decree-Holder's claim. This ruling is also distinguishable from the present case. Income tax dues are not dues against any specified property of the assessee, hence their position is not different from that of revenue of abkari and therefore they cannot have precedence over the claim of a Decree-Holder in a mortgage suit with respect to the period subsequent to the creation of the mortgage. But the dues of all the 4 claimants in the present case are dues on this specific property. The arrears of the Excise and Taxation Department and Karachi Development Authority are with respect to property tax and rent price of land and therefore there can be no doubt that these are on this specific property. Similarly the water charges and the charges of electricity were due against the occupants as well as the owner of this property and these connections are granted on the specific property and the dues thereof are also a charge on these properties. The offer of the purchaser of this property in execution of this decree was subject to the condition that it will be free from encumbrances thereon. The offer was accepted with the consent of Decree- Holder. Hence the Decree-Holder cannot now contend that the arrears which are an encumbrance on this property should not be paid out of the sale proceeds. It was also pointed out during the course of arguments that the plaintiff/Decree-Holder had in the execution application shown total decretal amount as Rs. 6,87,612.24. He enhanced the same in statement under Order 21 Rule 66 CPC tp s. 9,91,640/-. He has however, claimed a sum of Rs. 17,34,524.12 by C.MA, No.1569/88, which is much more than only one of the above two amounts. He has also mentioned in the affidavit that he is entitled to more amount on calculation. It is therefore not clear as to whether he has drawn from the Court more than what is due to him or still something is due to him towards decretal amount. Mr A.I.Chundrigar has placed reliance on the judgment of this case which is also reported in 1984 CLC 2987. The office is directed to calculate as to how much amount is due to the Decree-Holder in accordance with the above judgment and make necessary amendments in the decree and should also certify as to how much interest has become due to him upto date. I am satisfied that the arrears of the above 4 claimant departments shall have 1 precedence over the claim of mortgagee of property in dispute. I therefore direct the Nazir to pay the dues of the respective departments to them from the amount ordered to be detained by the Court with him, after one week of this order. (SHZ) Order accordingly

PLJ 1990 Karachi 11 (DB) PLJ 1990 Karachi 11 (DB) Present: ajmal mian, CJ and mukhtar ahmad junejo, J ; DIN MUHAMMAD-Petitioner versus THE PROVINCE OF SINDH and 2 others-Respondents. Const. Petition No. D-865 of 1989, allowed on 22-11-1989 Sindh Children Act, 1955 (XII of 1955)- —Ss.68 & 71-Juvenile offender—Detention in jail of—Challenge to~At time of commencement of trial, detenu was below age of 16 years-He was medically examined on 29-3-1984 and was opined to be aged 18 years-He could not have been kept in a certified school or recognised institution in terms of section 71-Additional Sessions Judge reported case under Section 71 to Provincial Government for orders under Section 68(2) of Act—Child was accused of serious offence namely murder and first ingredient of Section 68(2) was present but there is no finding about other two ingredients-Held: Detenue was admittedly more than 18 years on date of his conviction, therefore, no order of his detention could have been passed under Section 71(1) or section 68(2) of Act-Petition accepted and detenue released. [Pp. 13&14]A&B Mr. Muhammad Faridul Haq, Advocate for Petitioner Mr. A-A, Mohammadalfy, AA.G and Mr. Sabihuddin, Advocate for Respondents. Date of hearing: 22-11-1989. judgment Ajmal Mian, CJ.- (l) This petition is directed against the order dated 11-5- 12Kar. 1989, passed by respondent No. 1 ordering the detention of Mohammad Jamil Nakoo, the petitioner's son (hereinafter referred to as the detenue) for a period of 7 years starting from 1-4-1989 under sub-section (2) of Section 60 of the Sinclh Children Act, 1955 (hereinafter referred to as the Act). The brief facts leading to the filing of the above petition are that the detenue and one Mohammad Hanif s/o Syed Iqbal Hussain were accused of murdering one Khalid Beg on "12-2-1982 behind Jacob Line, Karachi. The detenue was tried by the learned II Additional Sessions Judge at Karachi (East) in Crl. Case No. 1651/1985 as at the time of the trial he was below 16 years of age. The learned Additional Sessions Judge by her judgment dated 1-4-1989 concluded that factually the murder was committed by the detenue but no sentence was imposed by her on the aforesaid ground, namely, that the detenue was below 16 years of age at the time of commencement of the trial. She accordingly reported the matter to the Provincial Government under Section 68(2) of the Act. In pursuance of the above reference the impugned order has been passed. The petitioner has filed the above petition to impugne the above order. In support of the above petition Mr. Mohummed Faridul Haq, learned counsel for the petitioner and Mr. Sabihuddin, learned counsel for the Human Rights Commission of Pakistan have submitted that in view of Section 71 of the Act the detenue could not have been detained by any authority beyond the age of 18 years. It has been further submitted by them that the medical board examined the detenue on 29.3.1984 and opined that the age of the detenu at that time was about 18 years. It has, therefore, been contended that on 1-4-1989 the impugned order for detaining the detenue for a period of 7 years, starting from 1-4-1989 could not have been passed. Reliance has been placed on the case of Sh. Muhammad Yousuf . Tlie State reported in 1971 P.Cr.LJ. 786, in which Mohammad Haleem, J. (as his Lordship then was) after referring to the corresponding provisions of the Bombay Children Act (VIII of 1924), namely, Section 27(l)(d) and Section 32, held that the detenue could not have been detained beyond the age of 18 years. The Criminal Revision Petition was allowed and the order of detention beyond the age of 18 was set aside and the detenu was set at liberty. The above case has been followed by a learned Single Judge of this Court in the case ofRajalMal v. Ttie State, reported in PLD 1977 Karachi 13. MrA.A. Mohammadally, learned A.A.G appearing for the State has candidly conceded the above legal position and has submitted that the detention of the detenue on the basis of the impugned order is illegal. We may refer to Sections 5, 68 and 71 of the Act. It may be observed that Section 5 defines a child as the person who has not attained the age of 16 years, whereas Section 68 deals with the sentence which can be imposed upon a child by providing that notwithstanding anything contained in any law no youthful offender shall be sentenced to death or transportation or imprisonment. Its sub-section (2) further provides that "When a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment, which under the provisions of this Act it is authorised to inflict, is sufficient or when the coiurt is satisfied that the child is of so unruly or of so depraved a character that he cannot be committed to a certified school or detained in a place of safety and that none of the other methods in which the case may be legally dealt with is suitable, the court shall order the offender to be kept in safe custody in such place or manner din muhammad v. tiie province of sinbh (AjmalMian, C7) as it thinks fit and shall report the case for the orders of the Provincial Government." Section 71 provides that where a child is "found to have committed an offence, the court, if satisfied, on enquiry that it is expedient to deal with the child, may order him to be committed to a certified school or recognised institution fpf such period of detention as will not, subject to the provision of Section 5, extend beyond the time when the child will attain the age of 18 years or in exceptional cases for a shorter period, the reasons for such shorter period to be recorded. In the instant case, as observed hereinabove, that at the time of the commencement of the trial the detenue was below the age of 16 years. The offence had taken place on 12-2-1982 the trial had commenced in the same year. He was medically examined, as stated hereinabove, on 29-3-1984 by a medical board which opined that the detenue was aged about 18 years. On the basis of the above admitted fact the detenue could not have been kept in a certified school or recognised institution in terms of Section 71 of the Act. The learned Additional Sessions " Judge instead of applying Section 71, which in the instant case might have not been applicable, for the reason that at the time of the judgment the child had already attained the age beyond 18 years, the learned Additional Sessions Judge , reported the case to Provincial Government for orders under sub-section (2) of / Section 68 of the Act which is attracted to (/) when the child is found to have committed an offence of so serious" nature that no punishment, which under the provisions of the Act, it is authorised to inflict is sufficient, or (//) the Court is satisfied that the child is of so unruly or (Hi) of so depraved character that he cannot be committed to a certified school or detained in the place of safety. In.the instant case the child was accused of a serious offence, namely, murder and, therefore, the first ingredient of sub-section (2) of Section 68 of the Act was. t present but there is no finding of the learned trial Court as to the other two ingredients which are to be read disjunctively and not conjunctively. In other words the Additional Sessions Judge could report to the Provincial Government under sub-section (2) of Section 68 of the Act because the child was charged with the murder which according to the findings of the learned trial Court, was proved but the above sub-section (2) of Section 68 does not spell out the nature of the order which can be passed by the Provincial Government after receiving reference from a trial court. The contention of the learned counsel for the petitioner and» Mr. Sabihuddin is that no order of detention in jail can be passed under the above provisions and the only orders, which can be passed, are:~ (/) movement of the offender can be restricted within certain areas; (//) the police may be directed to submit regular report about his behaviour and activities, and (Hi) direct the offender not to leave the limits of certain police stations without the permission. On this aspect Mr. A.A. Mohammedally, learned A.A.G has not been able to. t throw any light or to point out any relevant provision of the Act of any other law - or the rules. However, it is not necessary to adjudicate upon this point in this case i as admittedly the detenue was more than 18 years on the date of his convietfea I and, therefore, under sub-section (I)-of Section 71 of the Act, no orttef far >. detention could have been passed or under sub-section (2) of Section We would, therefore, allow the above petition and declare the impugned order as being without lawful authority. The detenu will be released forthwith unless he is required in any other case. (MBC) Petition accepted.

PLJ 1990 Karachi 14 (FB) PLJ 1990 Karachi 14 (FB) Present: ajmal mian, CJ, SAEEDUZZAMAN siddiqui, syed abdur rehman, mamoon kazi and allahdino memon, JJ. MR A. MUJEEB PlRZADA and others-Petitioners versus FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN and others-Respondents Const Petitions No. D-76, D-163 and D-168 of 1989, dismissed on 8-10-1989 (i) Constitution of Pakistan, 1973- -----Art. 41 read with Arts. 199 and 239-Constitution~Amendment of— Procedure for—Eighth Amendment—Whether immune from judicial review- Question of-Assuming that Revival of Constitution Order 1985 was a valid piece of legislation, assumption of office of President by General Ziaul Haq by virtue of clause (7) of Article 41 was by means of referendum which was a colourable legislation meant to achieve a desired result by means of deceit and was liable to be declared as void-He did not enjoy a de jure status as President of Pakistan-Held: His assent to Eighth Amendment cannot clothe it with validity-Held further: Revival of Constitution Order 1985 notwithstanding Article 270-A incorporated therein, is not immune from Judicial review under Article 199 of Constitution-Petitions allowed and Eighth Amendment Act 1985 declared null and void and of no legal effect (Per Mamoon Kazi J) [Pp. 129,130,132&134]AW, AX & AY PLD 1989 SC 29, and PLD 1988 Lahore 49 = PLJ 1987 Lahore 669, distinguished. (ii) Constitution of Pakistan, 1973- Art. 59 read with Art. 199—Amendment in Art. 59-Increase of seats of Senate-Challenge to-Whether amendment can be struck down—Question of- -As held that this court cannot strike down any amended provision of Constitution on any ground other than that it has been made in a manner different to prescribed by Constitution, no exception can be taken to this amendment-Senate is not subject to dissolution under clause 3«of Art. 59— Held: If declaration that present Senate has not been legally constituted, to granted and fresh election on party-basis is ordered, it will amount to" dissolution of Senate which is prohibited by clause 3 of Article 59. (Per Ajmal Mian CJ) [Pp. 58&S9] U, V, W&X (iii) Constitution of Pakistan, 1973-

Art. 199 read with Art. 239—Amendment Bill-Passing of~Assent of President-Whether a de facto President can give assent-Question of— Assuming that General Ziaul Haq was not a Constitutional President, yet he was de facto President-Question is whether his acts are saved by de facto doctrine when he introduced amendments in Constitution which have drastically altered its main features-Article 239 of Constitution requires assent by President to every amendment in Constitution passed by Parliament-Held: Reference to President in Article 239 read with Article 75 does not mean to a person who is President de facto but to constitutional president—Held further: Question cannot be determined by merely calling in aid de facto doctrine (Per Mamoon Kazi J) [Pp. 124&127JAS, AT, AU PLD 1970 SC 98, PLD 1984 Karachi 462 and PLD 1979 Lahore 564 ref. (iv) Constitution of Pakistan, 1973-- —Art. 199 read with Art. 2-A~Amendment in Constitution—Striking down of-Prayer for~Whether High Court has jurisdiction-Question of— Controversy is a sensitive political issue arid generally court declines to entangle itself into sensitive political issues in exercise of constitutional jurisdiction-Held: If High Court has no jurisdiction to strike down a constitutional provision on ground of its being violative of Objectives Resolution or of basic structure of constitution, question whether court can adjudicate upon sensitive political issues loses its significance (Per Ajmal Mian CJ) [P. 50]P (v) Constitution of Pakistan, 1973- —Art. 199—Eighth Amendment-Assent to~Contention that General was not competent to give his assent as he was not duly elected President-General was acting as a de facto President-Held: Alleged irregularity in assumption of office of President by General would not render his official act of giving assent to 8th Amendment Bill illegal but would be protected by doctrine of . de facto (Per Ajmal Mian CJ) [Pp. 44&45]K&L PLD 1970 SC 98, AIR 1981 SC 1473, PLD 1984 Karachi 462, (1787) 2 TR 81, (1851) 3 LHC 418, (1886) 118 US 425 and PLD 1989 SC 26 relied. (vi) Constitution of Pakistan, 1973- —Art. 199-Eighth Amendment-Enactment of-Challenge to—Whether Parliament was not competent to pass 8th amendment—Question of— Supreme Court had accorded recognition to Martial Law regime on conditions contained in Begum Nusrat Bhutto's case-8th amendment was not only passed by Parliament but it was also assented to by General who was acting in dual capacity as President and CMLA--Held: Exercise of legislative power by parliament which was even envisaged by Constitution, cannot be said to be without jurisdiction—Held further: Mala fide cannot be attributed to legislature (Per Ajmal Mian CJ) [P. 43]J (vii) Constitution of Pakistan, 1973- —Art. 199-Eighth Amendment-Passing of-Contention that 1985 Parliament which came into existence as a result of party-less elections, cotild not act as Constituent Assembly and pass eighth amendment bill-Eighth amendment bill was passed by National Assembly and Senate as per procedure under Constitution for its amendment-Held: No irregularity in procedure adopted by National Assembly and Senate. (Per Ajmal Mian CJ) [Pp. 45&46JM&N (viii) Constitution of Pakistan, 1973-- —Art. 199-Eighth Amendment-Passing of-Whether brdught about rJy force and coercion by Chief of Army Staff-Question of~No material on basis of which it can be concluded that members of National Assembly and Senate were pressurized and that they voted against their wishes—Held: Submission is based on surmises and conjectures (Per Ajmal Mian CJ) [P. 46]O (ix) Constitution of Pakistan, 1973- —Art. 199-Eighth Amendment-Validity of-Challenge to—Contention; that by virtue of decision in Begum Nusrat Bhutto's case, power to amend constitution vested in CMLA and this power could not be delegated by CMLA to any other body, as such Eighth Amendment passed by Parliament while Martial Law was still in force, was wholly invalid-Effect of decision in Begum Nusrat Bhutto's case was displaced by PCO validity whereof was recognized by all courts including Supreme Court-Held: From 24-3-1981, all powers were derived by CMLA/President under PCO of 1981-HeM further: All Judges had taken oath under Constitution as amended by Eighth Amendment and as such they cannot declare any part of this Constitution 4s invalid after having taken oath to defend it (Per Saeeduzzaman Siddiqui J) [Pp. 97&98]AM & AN PLD1973SC49/v?//ed. (x) Constitution of Pakistan, 1973- —Art. 199—Eighth Amendment-Validity of- L Challenge to~Controversies of political nature-Whether can be resolved by Court-Question of— Objection to validity of these amendments rests mainly on ground that same have concentrated powers in hands of an individual or balance of power has tilted in favour of President—From President upto Members of Provincial Assemblies and Judges of superior courts all have taken oath under Constitution as amended by Eighth Amendment-Held: These controversies are more of a political nature than to be treated as a legal ones—Held further: Constitutional amendment cannot be brought under challenge before High Court under Article 199 of Constitution on ground that it had effect of changing/altering basic structure of Constitution (P«sr Saeeduzzaman Siddiqui, J). [Pp. 92&96]AK & AL AIR 1967 SC 1643, AIR 1973 SC 1461, AIR 1980 SC 1789, PUM973 SC 49, PLD 1976 SC 57, PLD 1977 SC 397 and PLD 1983 SC 457 ref. (\i) Constitution of Pakistan, 1973-- —-Art. 199-Eighth Amendment-Validity of-Challenge to-Political case and political question—Distinction between—A political case may be subject to adjudication by court but a sensitive political question may not be subject matter of adjudication—Held: Challenge to Eighth Amendment on ground that it was not passed according to Constitution is not a political question- Held further: What should be balance of power inter se President and Prime Minister is a sensitive political question which is not suited for adjudication by Court (Per Ajmal Mian, CJ). IP.,63] AB (xii) Constitution of Pakistan, 1973— —Art. 199-Eighth Amendment-Validity of~Challenge to-1988 elections on party basis were held on basis of amended Constitution-Oath was taken by every one after lifting of Martial Law, under amended Constitution—Held: If certain: amended provisions of Constitution are declared as violative of Objectives Resolution or of basic structure of Constitution, it would disturb basis on which present structure of democracy is grounded-Held further: This is highly sensitive and politicized controversy which has unfortunately assumed great significance in view of polarized and charged political climate obtaining in country-Questions raised in petitions should be resolved by consensus of people through Parliament or by other mechanism provided under Constitution—Petitions dismissed.(Per Ajmal Mian, CJ). , [Pp. 64&65JAC, AD & AE (xili) Constitution of Pakistan, 1973- —Art. 199-Elcctions of 1985-Hcld on party-less basis-whether elections can be declared as illegal-Question of-Eficacy and importance of political parties observed in Miss Benazir Bhutto's case by Supreme Court-It cannot be held that political parties have no par| to, play—Held: It is too late to declare that National and Provincial Assemblies of 1985 on partyless basis had no legal status or that they were illegal bodies—Held further: Important role played by 1985 parliament in getting Martial Law lifted, cannot be denied (Per Ajmal Mian CJ). [Pp. 37&38JC, D&E (xiy) Constitution of Pakistan, |973- —-Art. 199-Elections of BBS-Validity of-Chaltenge to-Whether held by usurper-Question of-Events between 5th July, 1977 uplo holding of general elections of 1988 were tested and upheld by superior courts in various cases-­ Held: It is no more open to argument that late General Ziaul Haq was usurper or that his acts and legislative measures should be looked upon as acts of usurper and tested and condoned on principles laid down in Asma Jillani's case-Held further: It cannot be said that general elections of 1985 were held under rule of a usurper (Per Saeeduzzaman Si<Jdiqui, J). [Pp. 80&81]AFAG & AH (xv) Constitution of Pakistan, 1973- —-Art. 199-Elections of 1985-Validity of--Challenge to-Whether same can be declared invalid being on partyless basis-'Question of—In Benazir Bhutto's case, Supreme Court was examining sub-constitutional legislation (Political Parties Act) in juxtaposition with provisions of Art. 17 of Constitution which guaranteed right of association after restoration of Fundamental Rights-Held: Observations in Benazir Bhutto's case cannot be used as authority for declaring partyless elections of 1985 as invalid (Per Saeeduzzaman Siddiqui, J). [P. 82]AJ. PLD 1988 SC 416 ref. (xvi) Constitution of Pakistan, 1973- —Art. 199-National Assembly of 1985-Brought in by partyless elections— Whcther can be declared as illegal-Question of-No constitutional deviation was involved in holding elections on partyless basis in 1985 as same were held under President Order No. 5 of 1977 which allowed such elections-­President Order No. 5 of 1977 is protected under Art. 270-A which has been held to be competently enacted-Held: Declaration that Assembly was illegal, cannot be-given (Per Ajmal Mian, CJ). [P.42JH (xvii) Constitution of Pakistan, 1973- —Art. 199-Powers of High Court—Referendum Order-Mala /?/<?--Whether High Court can go behind motive of legislature-Question of-Refcrendum Order was promulgated by General Ziaul Haq in exercise of powers under PCO-He was same individual who was exercising both executive as well as legislative functions-Held: His legislative functions cannot be outside pale of judicial scrutiny-Held further: High Court is competent to go into question of mala fide raised by petitioners (Per Mamoon Kazi, J). [Pp. 120,123&124] AO, AP, AQ & AR PLD 1959 (WP) Lah. 76 and PLJ 1987 Lah. 669 rel. (xviii) Constitution of Pakistan, 1973— —Art. 199 read with Art. 2-A-Provisions of Constitution—Whether can be struck down being violative of Objectives Resolution-Question of~ Consistent view of Supreme Court has been that a constitutional provision cannot be struck down on a ground other than that it was passed in a manner other than provided under Constitution-Held: In presence of unambiguous dictums of Supreme Court, it is not open to this court to hold that a provision of Constitution can be struck down on ground of its being violative of Objectives Resolution or of national aspiration or of higher ethical notions or philosophical concepts of law or of basic structure (Per Ajmal Mian, CJ). [Pp. 53&57J Q, R, S & T PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 57, AIR 1967 SC 1943, AIR 1973 SC 1461, AIR 1951 SC 458, AIR 1965 SC 845, PLD 1975 SC 507, PLD 1977 SC 397, PLD 1983 SC 457, PLD 1988 Lah. 725, PLD 1989 Kar. 404 and PLD 1966 SC 1 ref. (xix) Constitution of Pakistan, 1973- —Art. 199~Provisions of Art. 270-A-Competently enacted-Whether 1985 Parliament can be declared as illegally constituted—Question of—Judicial pronouncements of superior courts in various cases that Article 270-A was competently enacted—Held: In presence of judicial pronouncements of superior courts, it is not open to this court to hold that Parliament of 1985 was not legally constituted (Per Ajmal Mian, CJ). [Pp. 39&42]F&G PLD 1989 SC 26, PLD 1986 Kar. 516, PLD 1987 Kar. 296 and PLD 1988 Lah. 49=PLJ 1987 Lah. 669 rcf. (xx) Constitution of Pakistan, 1973- —Art. 199-Referendum Order-Legislation of-Whether Mala fide-Question of--Question referred to referendum was clearly misleading and even if majority of votes casts were "yes" voles, yet by no measure of reason, it could be inferred that General Ziaul Haq had been elected as President of Pakistan-There was no nexus between votes cast in favour of answer "yes" and election of General Ziaul Haq as President-Held: Referendum Order was a legislation in bad faith and mala fide because in reality it was not what it ostensibly appeared to be (Per Mamoon Kazi, J). [P.128]AV PLD 1974 SC 151 rcl. (xxi) Constitution of Pakistan, 1973- —Art. 199--Scnate--Legality of-Challenge to-Whether petitioners have locus slandi-Qmstion of-Legality of Senate has been challenged by petitioners on ground that they wanted to be candidates for Senate-Held: Except writ of habeas corpus or a writ of quo warranto which can be invoked by any person, other writs can be prayed for only by an aggrieved party (Per Ajmal Mian, CJ). [Pp. 59&60] Y&Z (xxii) Constitution of Pakistan, 1973- —Art. 270-A-Breaches of conditions by General Ziaul Haq-Whether had become usurper-Question of—In Begum Nusrat Bhutto's case, Supreme Court had accorded recognition to Martial Law regime on conditions which inter alia included holding of free and fair elections at earliest possible time and Superior Courts would have power of judicial review—Conditions were flouted first by incorporation of Article 212-A which was followed by PCO providing blanket immunity from scrutiny of all past and present acts/actions, orders, proceedings of Martial Law Authorities-Held: It could be urged that his position had become somewhat similar to that of General Yahya Khan and ratio decidendi of judgment in miss Asma Jillani's case would be applicable-Held further: But Article 270-A having been held by superior courts as validily enacted, above controversy has become academic and no useful purpose would be served in going into same in detail (Per Ajmal Mian, CJ). [Pp. 31&32JA&B PLD 1972 SC 139, PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 476, PLD 1983 SC 457 and PLD 1988 SC 416 ref. (xxiii) Laches- —Senate—Challenge to-Whether petition is hit by principle of laches-­ Question of—Senate came into existence in 1985 and half of its members retired in March, 1988, in whose place, new members were elected—Petitions. have been filed in April, 1989—ileld: Petitions suffer from .-laches—Ik-Id further: However, a petition which involves questions of public importance • as to interpretation of Constitution, cannot be dismissed on ground of laches -.-• alone. (Per Ajmal Mian, CJ.) [Pp. 60&61JAA PLD 1989 SC1G6 relied Mr. A Mujccb Pirzada, Advocate in person (in CP-76/89). Mr. Muzaffawl- Haq, Advocate in person (CP-163/89). Mr. Rasheed A. Akhund, Advocate for Petitioners (in CP-168/89). Mr. Yahya Bakhtiar, Attorney General on court notice, Mr. S^4. Wadood, Deputy Attorney General for Federation. Af/S A~A. Fuzed, Klialid M. Ishaque, S.M.Zafar, Aijaz Ahmad, S.Zahid Hussain, Makhdooin AH KJian, Obaidur Rahman, N^A.Farooqui, Hassan A. Shaikh, Sabiliuddin Ahmad and Afa/z/ooz Yar KJian, Advocates for Respondents. Mr. A.H.Labho, Advocate General, Sindh. Dates of hearing: 25,26,27 and 28-9-1989 and 1,2 and 8-10-1989. judgment Ajmal Mian, CJ.--(l) By this judgment, I intend to dispose of the above three constitutional petitions, as they involve common questions of facts and law. In-C.P. No. D-76/1989, the petitioner is an advocate of the Supreme Court of Pakistan and of the High Court of Sindh, and belongs to a political family, and wanted to contest for a Senate seat, has impugned Eighth Amendment Act of 1985 (hereinafter referred to as the Eighth Amendment) as ultra vires the Constitution of 1973 (hereinafter referred to as the Constitution) and has sought declaration that the election to the Senate be declared to be in violation of the provisions of the Constitution. He also sought direction to hold fresh election to the Senate under the provisions of the Constitution. A declaration is also sought that the Parliament under a constitutional system is not competent to change the basic structure of the Constitution. In C.P. No. D-163/1989, the petitioner is also a practising adovcate and has also impugned the Eighth Amendment and has sought a declaration that it is unconstitutional, invalid and colourable exercise of power and cannot be treated as part of the Constitution and is fraud with the Constitution. Whereas, in C.P. No. D-168/1989, the petitioner claims to be a voter enrolled in Nawababad Lyari, in the city of Karachi, from where it is alleged that he wanted to seek membership of the Senate, has sought declaration that the extension of the term of the members of the Senate from four years to six years as amended in Article 59(3) with all consequential amendments made therein by the Revival of the Constitution of 1973 Order 1985 (hereinafter referred to as P.O. No. 14/1985) and the Constitution (Eighth Amendment) Act, 198& are unconstitutional, null and void. He has also sought declaration that the elections to the present Senate having not been held in March, 1987 in accordance with the provisions of un-amendment Article 59, its present composition and existence is null and void and that the continuation of the Senate and its functioning beyond 20th March, 1989, would be null and void and ultra vires. Direction has also been sought .against rhc Election Commission of Pakistan to arrange to hold fresh elections to elect the members of the Senate before th 20lh March, 1989. It may be observed that further declarations have been sought to the- effect that t the Parliament being the creature of the Constitution and noticing the .constituent assembly, is not competent to alter the basic structure of the Constitution, that the CM LA being usurper of the will and sovereignty of the people all his acts and laws are, to be judged on the criterion of "condontion" and riot on the principle of "legitimacy", that the Referendum of 1984 was ab inilio void, mala fide and fraud upon the Constitution and the people of Pakistan and that the CM LA was not a duly elected President and, therefore, had no authority to assent to,the Eighth Amendment under Article 75. Further declaration has been sought to the effect that the Eighth Amendment pursuant to P.O. Nos. 14, 20 and 24 effecting the basic structure, is unconstitutional and that the Constitution of 1973 in its^original from unamcndcd by the Constitution Fifth Amendment Act, 1976 and. Seventh Amendment alongwith Article 2(a) is liable to be restored. In C.P. No. D-168/1989 inter alia the Chairman Senate has filed a detailed Written Statement verified on solemn affirmation, wherein various factual and legal averments contained in the memo of petition have been denied and the maintainability of the petition has also been challenged. 2. (a) Mr. Abdul Mujeeb Pirzada, in support of his petition, has urged following contentions:— (/') That in the case of Begum Nusrat Bhutto vs. Tire Federation of Pakistan reported in PLD 1977 SC 657 the Honourable Supreme Court' had granted conditional recognition to the Martial Law with the object to facilitate holding of free and fair elections and subject to the review of the actions of the Martial Law Authorities and/or by the Superior Courts and that the power to amend the Constitution was restricted for achieving the above objective, namely, to hold free and fair elections. (//) That the PCO, which was enforced in March, 1981 in fact substituted the Constitution of 1973 and the elections to the National and the Provincial Assemblies, which were held in February, 1985 were hot the elections in terms of the provisions of 1973 Constitution but were held under the PCO. (Hi) That the elections of the Members of the Senate by the Members of the Provincial Assemblies, who were not elected in terms of 1973 Constitution, were not legal. (/V) That the amendments in the Constitution in the form @f Eighth Amendment have been made by the National Assembly and the Senate which were not competent in law to amend the 1973 Constitution. (v) That in any case even if it is to be presumed that the elections to the National Assembly were legal, it could not have changed the basic Structure of the Constitution. (v/) That since the elections to the National and the Provincial Assemblies have been held in November, 1988 on party basis, fresh election to the Senate should have also been held on party basis arrd the Senate should have been elected by the Members of (he Provincial Assemblies, who were elected on party basis. (»'//) That the doctrine of State necessity is a doctrine of condonation and not of validation and, therefore, the past and future acts/actions are to be judged on that basis. (yiii) That in fact the PCO, issued on 24-3-1981 amounted to abrogation of the Constitution. (a) That the act of abrogation of Constitution is punishable under Article 6 of the Constitution and, therefore, no court can condone the acts of a usurper abrogating the Constitution. (/)) Mr. Muxaffarul Haq, in furtherance of his petition, has contended as undcr:-- (/) That since the CMLA at the relevant lime had the power to amend the Constitution, the Parliament was not competent to pass the Eighth Amendment. (ii) That the CMLA had no power to delegate his power to amend the Constitution to the Parliament. (iii) That the Conduct of the CMLA is relevant for interpreting the provisions of the Constitution. (iv) That the Constitution docs not admit/permit sweeping changes in its frame-work through amendments. (v) That the Eighth Amendment is colourable exercise of the legislative power. (c) Mr. Rashccd A. Akhund, in support of his petition, has made following submissions:- (i) That upon the issuance of P.O.No.14 of 1985, which came into force on 2nd March, 1985, General Mohammad Ziaul Haq (hereinafter referred to as the General) had ceased to have any power to amend the Constitution and, therefore, President Order 20 of 1985 issued on 17th March, 1985 purporting to restore original Article 239 was of no legal effect. (ii) That since under the amended Article 239 in terms P.O.No. 14 of 1985, all amendments to the Constitution, were to be referred to the Provincial Assemblies and as the Eighth Amendment was not referred to the Provincial Assemblies, it was not legally passed. (iii) That since the CMLA was accorded recognition by the Supreme Court in the case of Begum Nusrat Bhutto for limited purpose for holding of free and fair elections and for restoring democracy in orderly manner in the shortest possible time inter alia subject to review of the Martial Law Authorities/Courts acts, actions and orders by the Superior Courts, he became usurper when he enacted Article 212-A in 1979 or upon issuance of the PCO which purported to deprive the Superior Courts, its jurisdiction to scrutinise llie acls/action/ordcrs of the Martial Law Authorities or Courts. (iv) That a referendum implies choice/option but the questions for the Referendum held by the ficncral were so framed, thai they did not give any choice/option to the voters and hence in fact it was not a referendum but was a fraud committed upon the people and, therefore, its result was nullity in law. (v) That the CMLA was given the mandate within the doctrine of necessity and that he was not soverign legislature, which could amend the Constitution in any manner, which he liked. (vi) That since the Constitution envisages British Parliamentary Form of Government, the party-less elections to the National and Provincial Assemblies in February, 1985 were violalivc of the provisions of the. Constitution, and, therefore, were not legal and valid. (vii) That there was a marked distinction between the Parliament which had passed 1973 Constitution and that which came into existence on account of 1985 elections inasmuch as the former was to act as a constituent assembly, whereas, the latter was not to act as such, therefore, it could not have passed the Eighth Amendment. (viii) That the impugned Eighth Amendment is violalivc of the basic structure of the Constitution and, therefore, is liable to be struck down. (be) That the Parliament being a creature of the Constitution could not have passed Article 270-A affirming the Rule of the Martial Law. (x) That increase in the number of scats of the Senate and its duration are also illegal and violative of the Constitution and, therefore, present Senate has no legal sanctity. 3. (a) Mr.Yahya Bakhtiar, learned Attorney General, who has appeared in response to the Court notice, has urged as follows:- (i) That the General having failed to hold fair elections in terms of Begum Nusrat Bhutto's case, had ceased to have mandate to rule the country or to prolong his rule and to amend the Constitution according to his whims or liking. (ii) That P.O.No. 14 of 1985 was issued by the General when the Parliament existed and, therefore, he had no power to issue the same. (iii) That some of the provisions of the Eighth Amendment are violative of the Objectives Resolution and of the basic structure of the Constitution (iv) That since the elections of the National and Provincial Assemblies in 1985 were held on non-party basis under constraints, they were violative of the Objectives Resolution and of the basic structure of the Constitution which envisages a parliamentary form of the Government. (v) That since the Senate has been elected by the National and Provincial Assemblies of which elections were held on partyless basis, it has no legal (b) Mr.S.A.Wadood, learned Deputy Attorney General appearing for the Federation adopted the arguments of. Mr. Yahya Bakhtiar, learned Attorney General and has submitted as follows: the power to amend the Constitution is subject to built-in constraints and that sonYc of the provisions of the Eighth 'Amendment are violative of the above built in constraints and of the basic structure of the Constitution. (ii) That the amcndenls made in the Constitution were for the beticfit of an individual and, therefore, the same cannot be sustained. ,(c), Mr.Abdul Hafee/ Lakhb. learned Advocate General Siridh, adopted the submissions, made by the learned Attorney General and the learned Dy. Attorney General. (a) Mr.S.M.Zafar, Advocate, who appeared on behalf of, a number of respondents/senators, has urged as under:- (/) That since the elections of the National and Provincial-Assemblies were ; held in Feburary, 1985 prior to the restoration of the Fundamental Rights including Article 17, on 30lh December, 1983, the same wcs&notiviolative of above. Article 17 of the Constitution or of any other prpvisipn of law and, therefore, the members of the National and Provincial Asscmblfcs were properly elected. (//) That since .thc ( /National and Provincial .Assemblies were properly constituted, the election of the Senate was also legal. (///), That the jfaet that the Honourable Supreme Court m the case of Haji Muhammad Saifullah Khan, declined to restore the. National Assembly inter alia for the reason that it was an assembly of which elections were : held on non-party basis does not imply that the NaUanal«&$ssanbty;wa$ not legally constituted, on the contrary, the factura that 5l was heWsbyjltw Supreme Court that its dissolution was illegal implies that it was legally and properly constituted. (<>) That if it is to be held that Article 270-A has been legally, incorporated in the Constitution, it must follow that the alleged illegal acts and- deeds on the part of the CM-LA, would not be relevant for the purpose of deciding the legal issues involved in the present cases. (v) That since the Eighth , Amendment has been passed by the Parliament, ,. which was legally and properly constituted, no exception can be taken to the same. -.(v/) That the doctrine of basic Structure has not yet been accorded any recognition by the Superior Courts in Pakistan and, therefore^ the same cannot be pressed into service. (yii) That the fact that Eighth Amendment was passed before lifting of the Martial Law docs not affect its 'sanctity or legality as even the Interim Constitution of 1972 was passed while the MartialLaw was still then in (yui) That the question of balance of power inter se between the President and the Prune Minister and as to the number of seats in the Senate or Its duration or the increase in the number of seats of National Assembly ara political questions which are to be resolved in the Parliament and not through the Court. (iv) That since clause (3) of Article 59 of the Constitution prohibits dissolution of the Senate, this Court cannot grant a relief in violation of the above provision. (x) That the writ jurisdiction is a discretionary jurisdiction, this court wifl not grant any relief which may create chaos and uncertainty in the country as striking down of the Eighth Amendment would adversely affect the incumbents of the offices of the President, the Prime Minister, the Chairman and the Vice Chairman of Senate, the Members of National Assembly and the Senate, -Federal Shariat Court and the High Court Benches, etc. (ft) Mr. All Ahmed Fazeel, Advocate, assisted by Mr. Makhdoom AM Khan, Advocate, has submitted as follows:- (i) That the jurisdiction of this Court under Article 199 read with Article 175 is subject to Constitution, whereas, under Article 226 of the Indian, Constitution Act, there is no such qualification and hence this Court cannot act against the provisions of the Constitution. (//) That any changes made in laws during the suspension of the Fundamental Rights cannot be tested on the ground of its being violative of the Fundamental Rights at the time when the said changes were made. (ih) That the petitioners in C.P. No. D-76/1989 and D-168/1989 have no locus standi to file the above petitions for challenging the legality of the Senate on the ground that they wanted to contest the Senate election. (/v) That the writ being a discretionary relief, it cannot be granted as the petitions involve political issues, for which there are no judicially manageable standards available to resolve the same. (v) That even otherwise, this Court should decline writ as the grant would result into chaos and disaster. (w) That the extension of term of the Senate from four years to six years is not violative of any principle. (wi) That no provision of Constitution can be struck down on the ground that the same is violative of the bask structure of the Constitution or of the Objectives Resolution. (viii) That all laws including the Eighth Amendment in the Constitution are protected under Article 270-A. (a) That C.P. No. D-76/1989 and D-168/1989 suffer from laches inasmuch as the election of the Senate was held in February, 1985, whereas the petitions have been filed in 1989. (c) Mr. Khalid M. Ishaque, learned counsel appearing for some of the respondents/senators has adopted the arguments of M/s S.M. Zafar and Afi Ahmed Fazeel, and has urged as under:-- (i) That though the learned Attorney General has submitted that this Court can scrutinise each of the amendments made in the Constitution and can declare it valid or invalid but has not pointed out any objective standard, on the basis of which the above exercise can be taken by this Court. ((7) That though the learned Attorney General has made repreated reference to the Objectives Resolution but has not referred to Article 2-A of the Constitution, which was enacted by the Eighth Amendment and that the Objectives Resolution itself without being part of the Constitution cannot furnish basis for striking down any of the provisions of the Constitution. (Hi) That for the transition from the Martial Law to Democracy some methodology was to be evolved, and as the said situation was not covered by the provisions of the Constitution, Article 270-A on the pattern of Article 281 of the Interim Constitution 1972 and 269 of the W%& Constitution had to be incorporated. (iv) That even in Western Countries there has been rethinking about the efficacy of political parties and, therefore, the factum that the elections of 1985 were on the basis of non-party would not affect its legality basides the fact that Article 17 of the Constitution was under suspension. (if) Mr. Nasim A. Faruqui, learned counsel appearing for some respoondents/senators, has adopted the arguments of M/s S. M. Zafar, Ali Ahmed Fazeel and Khalid M. Ishaque and submitted as under:-- (/) That the controversy raised as to the power of amendment of the Constitution under Articles 238 and 239 of the Constitution involves political issues, which are not suitable for adjudication by this Court in exercise of its constitutional jurisdiction. (//) That the sitting members of the Provincial and National though have already held a number of sittings during last about 10 months since the time they were elected but they have not taken any exception to the Eighth Amendment and have not even moved a bill and, therefore, people's representatives have acquiesced to the same, and that the petitioner cannot challenge the same through collateral proceedings/side wind. (Hi) That the observation in par a- 16 of the judgment in the case of Ac Federation of Pakistan vs. Malik Ghulam Mustafa Khar that die plea that the parliament was not competent to enact Article 270-A was left open relates to the Supreme Court and that as far as the High Courts ate concerned, the above question stood concluded by a number of judgments. (iv) That this court is not competent to strike down an; Constitution on the ground of its being violative of the (v) That if the Eighth Amendment is to be declared ultra vires and besides adverse consequences highlighted by M/s S. M. Za£tf-4ad-^3i-'-Vi Ahmed Fazeel, even Vth Schedule to the Constitution relating to •£& emoluments of the Superior Court's Judges will be knocked out. (e) Mr. Sabihuddin Ahmed, learned counsel appearing for respondent No. 3t in C.P. No. D-168/1989, has urged as under:-- (i) That the elections were held in 1985 on non-party basis because of President Order No. 5 of 1977 and not because of any amendment in the Constitution and, therefore, there was no constitutional deviation. («) That since under clause 1 of Article 233 the declaration of emergency' made on 3-12-1971 and that declaration was not withdrawn by the P.O. No. 5 of 1977 was issued and was amended, the same was valid ta view of the express provision contained in clause 1 of Article 233. (Hi) That upon the withdrawal of the proclamation of the emergency, the law providing elections on non-party basis because of Article 17 would stand repealed but the past transactions would not be affected because of saving provided in Article 264 of the Constitution. (fv) That this Court has power to strike down a provision of the Constitution ,-: on the ground of its being violative of the basic structure of the Constitution but the extension of the period of the Senate from four years to six years or the increase in number of seats does not violate the base . structure of the Constitution. Q) Mr. Obaidur Rehman, learned counsel, who has appeared on behalf Of '-. the intervenor in C.P. No. D-76 of 1989, has also adopted the arguments of the - ^ learned counsel for the respondents and has contended as under:-- (/) Since the Senate is a permanent institution under Article 59 of the Constitution, ordering of its fresh elections will amount to its dissolution ' and since this Court's power under Article 199 is subject to Constitution, 5 '- it cannot grant the above relief. (ii) That as the National Assembly of which elections were held on party basis, is in existence, the same is the appropriate forum to agitate the controversy in issue and not the Court. % (Hi) That the Court will have to take into consideration regard of public •' welfare before granting any relief. (iv) That the petition suffers from laches. 5. Before taking up the contentions of the learned counsel for the parties, it may be pertinent to state briefly the relevant facts and to refer to the operative portion of the judgment in the case of Begum Nusrat Bhutto and as to the contents of the Eighth Amendment. It may be abserved that on 5th July, 1977, thft General, who was the then Chief, of the Army Staff proclaimed Martial Law throughout Pakistan and assumed the office of the CMLA. On the same day, he issued the Laws (Continuance in Force) Order 1977, (hereinafter referred to the CMLA Order 1 of 1977). The imposition.of the Martial Law was impugae41 Begum Nusrat Bhutto before the Supreme Court through a petition under Article 184 of the Constitution which was decided on 10-11-1977, of whkh the judgment is reported in PLD 1977 SC 657. In the concluding portion of the judgment He Supreme Court summarised the final position, which emerged for the reasons recorded therein in the following terms:— (/) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pore theory of taw. Not only has this theory not been universally accepted, or applied, it fa also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, k excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, lie determined by a consideration of the total milieu in which the change i& brought about, including the motivation of those respoaaSb^e for the change, and the extent to which the old Legal Order is sought te be preserved or suppressed; (u) That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for a specified Kn^-4 purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution; (///) That examined in this light, the Proclamotion of Martial Law on, the 5lfc of July, 1977, appears to be an extra-Constitutional step "^"""ffrat^f H the complete break-down and erosion of the constitutional and moot authority of the Government of Mr. Z. A, Bhutto, as a restdt of the unprecedented protest movement launched by the Pakistan Natneaf Affiance against the alleged massive rigging of elections to tbe National Assembly, held on the 7th of March, 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed; to safeguard its integrity and sovereignty and to separate the warriag factions which had brought the country to the brink of disaster; (iv) That the imposition of Martial Law, therefore, stands validated ob the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures have been consistently recognised by judicial authorities as falling' the scope of the law of necessity, (v) That it has also become clear from a review of the events • culmination of Martial Law, and the declaration of intent Chief Martial Law Administrator, that the 1973 Constitution the supreme law, subject to the condition that certain parts been held in abeyance on account of State necessity; and the Pakistan as well as the Superior Courts continue to function Constitution. In other words, this is not a case where the old has been completely suppressed or destroyed, but merely a case of -constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purposes of the restoration of democratic institutions under the 1973 Constitution; (vz) That, accordingly the superior Courts continue to have the power o€ judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, President Order or Ordinance; and (vw) That the provisions contained in clause (3) of Article 2 of the ,LW| (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature a& to amount to aa Emergency contemplated by clause (1) of Article 232 of the Constitution and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution." It may also be stated that on 28th July 1977, Houses of Parliament Provincial Assemblies (Election) Order, 1977, was issued (hereinafter referred to, : as the President Order 5 of 1977) for holding elections of the National and Provincial Assemblies. After that, on 15th September 1978, President Succession Order No. 13 of 1978, was issued under which upon resignation of Chottdhry e-Illahi, the then Presdient, the General assumed the office of the President as' well. On 24th March 1981, the Provisional Constitution Order, 1981 (CMLA Order 1 of 1981), (hereinafter referred to as the PCO) was issued, which inter alia under Article 15 provided protection to all President's Orders and of the CMLA including Orders made amending the Constitution by the President or the CMLA, Martial Law Regulations, Martial Law Orders and all other laws made on or after 5th July 1977 and so also to all orders made, proceedings taken and acts doae 6y~ any authority or by any person after the above date or in future in exercise of the power derived from any President's Orders or the Chief Martial Law' Administrator, Martial Law Regulation, Martial Law Orders, enactment, notification, etc. It also barred the jurisdiction of the Court from entertaining any - proceedings or granting any injunction in respect of the above matters. The effect of the above provision of the PCO inter alia was considered by the Honourable Supreme Court inter alia in the following cases on the assumption that the same was valid:— . t (/) Abdul Aziz v. Additional Settlement Commissioner, Lahore Divwoik Lahore and Another, reported in 1982 SCMR 372. («) Dr. Muhammad Elias Dubash v. Punjab Service Jtrbunal and others, reported in 1982 SCMR 562. (Hi) The Province of the Punjab and Others v. Syed Muhammad Akr^m Shal^ • reported in PLD 1984 SC 409 (iv) Government of Punjab and Others v. Saleem Hussion Gardea, reported Hi 1985 SCMR 443. It may further be stated that on 1st December, 1984, Referendum Order, i.e. President Order No. 11 of 1984, was issued, under which a referendum was held. The effect of which was to make the General, the President of Pakistan, for a period of 5 years from the specified event. It may also be mentioned that P.O. No. 14 of 1985 was issued on 2nd March, 1985 incorporating a number of amendments in the Constitution. After that in exercise of the power conferred; by Article 4 of above P.O. No. 14 of 1985, the President appointed 10th day of March, 1985 to be a day on which the provisions of the Constitution as amended by the said Order were to come into force except Articles 6, 8 to 28 (both inclusive), clause (2) and (2) (a) of Article 101, Articles 199, 213 to 216 (both inclusive) and Article 270-A. It may also be stated that on 17th March 1985, President Order No. 20 of 1985 was issued for restoring Article 239 in its original unamended form prior to its amendment by P.O. No. 14 of 1985. It may be pertinent to mention here' that prior -, to the issuance of P.O. No. 14 of 1984, elections of the National and Provincial Assemblies were held on 7th February, 1985 and 9th February, 1985, respectively and of the Senate on 1st March, 1985. The National Assembly and the Senate had their first joint Session on 23rd March 1985. After that on 8th September, 1985, a bill containing the Eighth Amendment Act was introduced in the National Assembly, but it was withdrawn as there was no consensus among the members of the National Assembly. However, a fresh bill in the amended form was submitted on 30th September, 1985, which was passed on 16th October, 1985 and 28th October, 1985 by the National Assembly and the Senate respectively. The President gave his assent to the above bill on 9th November 1985. It was gazetted, on llth Novmber, 1985. It may further be mentioned that on 29th December,^ 1985 MLR-107 was issued by the CMLA inter alia for providing for the camfc» which were disposed of by the Military Courts or Special Military Courts ap£) which were pending before them and for providing protection to the Martial Lawg Orders, etc mentioned in the schedule thereto. The scope and the legality of v^wftr! was examined by the Supreme Court in the case of Federation of Pakistan Ghutam Mustafa Khar, reported in PLD 1989 SC 26. It may also be stated i" proclamation for withdrawing of Martial Law was issued by the CMLA on: December, 1985 and on the same day the Fundamental Rights were restored. 6. Adverting to the contents of the Eighth Amendment, it may be c that it has made amendments in articles 48, 51, 56, 60, 75, 90, 101, 105, 116 and 130. It omitted clause (2) of Article 144 and Article 152-A. substituted Article 270-A in place of the Article which was incorporated' President Order No. 14 of 1985. It has also added Vllth Schedule to Constitution providing that the laws mentioned therein were to be amended tatifef manner provided for amendment of the Constitution. The above Amendments through Eighth Amendment can be categorised into three categories, namely, formal, democratic and controversial. Under the ahqw first category Articles 6(3), 7, 50, 62, 63, 64, 66 and 69 fall, whereia inter alia tteword 'Majlis-e-Shoora' has been added. The example of the second category is the 4 amendment in Article 41(3) read with the Second Sechedule to the Constitutions, whereby electoral college for the Presidential election has been made more representative by including Provincial Assemblies in it and the amendment m Article 101, wherein the words "after consultation with the Prime Minister" have been substituted in place of the words, "in his discretion" which were added by P.O. No. 14 of 1985 and prior to that originally the words employed were that the "Governor was to hold office during the pleasure of the President" and the third category of.the Amendments can be said to cover Articles about which there is : n controversy as to the balance of power between the Presdient and the Prime Minister, some of which have been highlighted by Mr. Yahya Bakhtiar, learned Attorney General in his submissions referred to hereinbelow. 7. That it has been vehemently contended by the petitioners in C.P. No, D- 76/1989 and D-163/1989 and Mr. Rashid A. Akhund, learned counsel for the petitioner in the third petition that since the General had committed the breaches of the conditions on which the Supreme court accorded its recognition to the Martial Law, he had become usurper and that he had no legal backing to rule the country. They have invited our attention to the fact that he promised to hoH elections within 90 days, then within six months and thereafter he took about eight years to hold party-less elections. They have also invited pur attention to the fact that Article 212-A was incorporated in October, 1979 in order to deprive the Superior Courts of their power to scrutinize the acts/actions, orders passed by the Martial Law Authorities and/or by the Martial Law Courts, which was one of the conditions laid down in the above Begum Nusrat Bhutto's case by the Supreme Court. After that, on 24-3-1981, the PCO was issued which in fact amounted to abrogation of the Constitution. They have further invited our attention to tlie, factum that so-called Referendum was held on 1-12-1984 under the P.O. No. 11 $ 1984, which in fact was a fraud on the Constitution and the people of Pakistan as the questions were so framed that no option or choice was given to the people and that the manner of holding the referendum was also questionable. Mr. Yahya Bakhtiar, learned Attorney General, who appeared in response to the Court notice, has invited our attention to the interview given by the General published in Kayhan International Iran of 10th September, 1977, reproduced in the da% newspaper 'Masawat' of 28th September, 1977, wherein he reiterated his promise to hold elections within 90 days. He has also invited our attention to another interview given by him to the Time New Delhi Bureau Chief Dean Brelis, after the party-less elections in 1985. He further invited our attention to the atrocities committed by the Martial Law regime. In this connection, he referred to an article about the hanging of Abdul Hamid Baluch published in Sunday Times of iTtii January, 1982, a report of International Commission of Jurists on Pakistan Human Rights after Martial Law, and his own article on Human Rights and the Constitution of 1985, published in The Frontier Post of 30th June, 1987. On the basis of the above documents, it was urged by him that factually from the very inception, the General had no intention to fulfil his commitment of holding the elections within 90 days, as his acts and deeds were not in conformity with what he had promised at the time of taking over the power on 5th July, 1977. There is no doubt that the Supreme Court in the above Begum Nusrat Bhutto's case had accorded recognition to the Martial Law regime oft, A " conditions contained in the above quoted portion of the judgment which inter included holding of free and fair elections for the purpose of democratic institutions under the Constitution at the earliest pos subject to the condition that the Superior courts would continue to function the Constitution and would have power of judicial review to check the any act or action of the Martial Law Authorities, if challenged in the I principles underlying the law of necessity as were set out in the said judgment.lt -JJ was also made clear that power under Article 199 of the Constitution available to their full extent which could be exercised by the Superior Cowls j notwithstanding anything to the contrary contained in any Martial Law Regulation or Order or President Order or Ordinance. The above conditions were floated inasmuch as first above Artical 212-A was incorporated in the Constitution en 18- j 10-1979 in order to deprive the Superior Courts of their jurisdiction to review and to judge the validity of any act or action or order of the Martial Law Authorities 1 or of any order of Martial Law Courts. This was followed by the PCO which purported to reinforce the above Article 212-A by providing blanket immunity from the scurtiny of all the past and present acts/actions, Orders, proceedings of i the Martial Law Authorities and of the persons acting on their behalf and of the i Martial Law Courts, nor the Referendum held, by the General was wkhai the | ambit of the above judgment given in the case of Begum Nusrat Bhutto. On the i basis of the above facts, one could urge that the position of the General had I become somewhat similar to that of General Yahya Khan upon his commission of I the breaches of the conditions on which the Supreme Court had accorded its recognition to his Martial Law regime in the case of Begum Nusrat Bhutto and I that the ratio deddendi of the judgment in the case of Miss Asma Jilani v. the \ Government of the Punjab and Another, reported in PLD 1972 SC 139, would tie applicable and the Court would have to scrutinize all the acts and actions of the Martial Law regime on the touch stone of the above judgment and the doctrine of necessity. This might have been the legal position if Article 270-A would not have been enacted by the Parliament. I may point out that at the time when the above case of Miss Asma Jilani was decided by the Supreme Court, Article 281 of the I«te>B«> Constitution or Article 268 of the 1973 Constitution was not enacted. The reason for incorporation of the above Articles in the Interim Constitution of 1972 a&d tihe permanent Constitution of 1973 was to meet the situation which had arisen because of the above judgment of the Supreme Court in the case of Miss A«na Jilani. The effect of the above Article was considered inter alia in the case 0f The State v. Ziaur Rahman, reported in PLD 1973 SC 49, the case of The Federation of Pakistan Through the Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others, reported in PLD 1974 SC }£!, the case of Sh. Karamat Ali v. The State, PLD 1976 SC 476, the case of Fay Foudation v. Shamim-ur-Rahman, PLD 1983 SC 457 and the recent case of Afiw Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416 and it was held .flat the same was validly made and that it protected the law referred to therein. In tjbe latter case, it has also been held with reference to Article 270-A, that any Jaw which is violative of the Fundamental Rights can be struck down on the aforesaid ground after the enforcement of the same. Since Article 270-A of the Constitution has been held to have been validly enacted by the Superior Courts in the cases referred to hereinbelow and for the other reasons referred to in later part of Mis opinion, in may humble view the above controversy has become acadmte and no useful purpose would be served in going into the same hi detail. 8. (a) In my view, the basic questions which require consideration in the instant case, are:- (i) Whether the elections held on non-party basis in 1985 were valid? («') Whether the Parliament had the power to pass the Eighth Amendment ? and (hi) Whether any of the provisions of the Constitution, which have been incorporated by virtue of any Presidential Order or by Eighth Amendment, can be struck down on the ground of being violative to the Objectives Resolution or of the basic structure of the Constitution? (b) It was vehemently urged by the petitioners in the first two petitions and the learned counsel for the petitioner in the third petition and so also by Mr. Yahya Bakhtiar, learned Attorney General, who appeared on Court notice as observed hereinabove and Mr. S. A Wadood, learned Deputy Attorney General for the Federation, that party-less elections were violative of the Constitution and, therefore, the Parliament and the Provincial Assemblies which came into existence because of 1985 party-less elections had no legal status. It was further urged by them that the Constitution envisages the West Minister form Parliament/Government, of which pre-requisite is the party system. In this regard, they have heavily relied upon the certain portions of the opinion delivered by Shafiur Rahman, J, in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah KJian and others, reported in PLD 1989 SC 166, by which a judgment of a Full Bench of the Lahore High Court was maintained in which it was declared that the dissolution of the National Assembly by the President was without lawful authority. Shafiur Rahman, J. in his opinion, while declining the prayer for restoration of the dissolved National Assembly, observed, "that the restoration of a National Assembly and Provincial Assemblies which were brought into the existence by materially departing from the essential features of our own Constitutional set up cannot be allowed to take place." His lordship has also quoted the observations made by the Hon'able Chief Justice of Pakistan and by the other learned Judges as to the importance of the party system in a parliamentary form of Government, in the case of Miss Benazir Bhutto v. Federation of Pakistan and another, reported in PLD 1988 SC 416. It may be advantageous to reproduce the above observations quoted from the case of Miss Benazir Bhutto :- "(i) "Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority It is a party system that converts the results of a Parliamentary election into a Government." (Muhammad Haleem, CJ.) (ii) "It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governings of Pakistan through political activity relating thereto." ( MA.Zullah. J.) (iii) "Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and wihtout a destination. It is only when they band themselves into a group, as a party, that they become a force exercising some influence by their activities . It is only as members of a political party and not as individual members of the legislature; can they achieve their objectives." (Nasim Hasan Shah, J.) (iv) "The right to form, and be member of, a political party, is an indispensable political tool for the effective use of the process of a democratic Government. Besides, the right is vital for the maintenance of other democratic rights like the right to practice one's profession etc. It is often said that Government by public opinion involves the right to create and organise opinion with a view to influence the conduct of Government, or to bring about a change in the Government." ( Abdul Kadir Shaikh, J.) (v) It is conceded on all hands and is so recognized in the Constitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself." Shafiur Rahman, J-) (vi) "The expression 'political justice ' is very significant and it has been placed in the category of fundamental rights. Political Parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even othesrwise, speaking broadly our Constitution is a Federal Constitution based on the model of Parliamentary form of representative Government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government." ( Zaffar Hussain Mirza,J.)." After quoting the above observations from the case of Miss Benzair Bhutto, ! Shafiur Rahman, J. further observed that, "It will be clear from the foregoing observations that Partyless elections are not in consonance with the Scheme of our Constitution and when this Court is possessed of a discretion, or a choice whether to revive, restore, or perpetuate by'resusciating such Assemblies, the Court vnfl stand for constitutionalism rather than departures and deviations from it and refuse to restore them." (c) On the other hand, Messrs S.M. Zafar and Ali Ahmad Fazeel have submitted that from the above qouted observations, it cannot be inferred that the Supreme Court has held that Assemblies which came into existence on account of so-called partyless elections of 1985 were not legal. They have pointed out that the very fact that the Supreme Court had maintained the judgment of the Lahore Hight Court declaring the dissolution of the National Assembly as illegal on the contrary manifests that the Lahore High Court and the Supreme Court proceeded on the assumption that the above Assemblies were lawfully constituted. They have also submitted that Article 17 of the Constitution which guarantees freedom of association was not operative in February or March, 1985 when the elections of | the National and Provincial Assemblies and the Senate had taken place and, therefore there had not been any violation of the above Article. They have further submitted that Article 51 of the Constitution does not provide any condition that the National Assembly was to be elected on party basis but it contemplates that the members to be elected by direct and free votes in accordance with law and since at the relevant time the law contemplated election on non-party basis, there was no violation of any law. Mr. S. M. Zafar, has referred to the cases of :- (i) Alain Sher and Others v. Tlie State and others reported in PLD 1966 (W.P.) Peshawar 19, (ii) Chowdhury Tanvir Ahmad Siddiky and others v. The Province of East Pakistan and others, reported in PLD 1968 SC 185, and (iii) Keshavan Madhava Menon v. Hie State of Bombay, reported in AIR (38) J 1951 SC 128, in support of his further contention that the Fundamental Rights cannot be enforced retrospectively. Mr. Ali Ahmad Fazeel, in addition to placing of reliance on the above cited cases, has further relied upon the cases of - (i) Lachamandas Kewalram and others v. State of Bombay, reported in AIR 1952 SC 235; relevant at pages 237 and 238; (ii) Shree Meenakshi Mills Ltd, Madurai and others v. A v. Visvanatha Sastri and another, reported in AIR 1955 SC 13; relevant at page 18; (iii) Mrs. Habiba Jilani v. Federation of Pakistan Tlirough the Secretary, Ministry of Interior, Government of Pakistan, Islamabad, reported in PLD 1974 Lahore 153, relevant at page 168; and (iv) Gulzar Hasan, Advocate and 8 others v. Islamic Republic of Pakistan Tlirough Secretary, Ministry of Interior and Kashmir Affairs, States of Frontier, Government of Pakistan Islamabad and 3 others, reported in PLD 1975 Lahore 219, relevant at page 1229. The ratio of the above cases inter alia seems to be that the laws or the past and closed actions/transactions cannot be declared as void retrospectively prior to the date of the enforcement of fundamental rights. In the instant case the elections were held under the Houses of Parliament and Provincial Assemblies (Election) Order,1977 (President Order No.5 of 1977) which was issued on 28th July, 1977, by the CMLA within the promised period of 90 days within which the elections were to be held, though it was subsequently amended. (d) The two petitioners in first two petitions and the learned counsel for the petitioner in C. P. No. D-168/1989, were unable to point out any provision of law which was in force in February or March, 1985.which enjoined the holding of elections on party basis. However, Mr. Yahya Bakhtiar, learned Attorney General, has invited our attention to the Objectives Resolution which inter alia provides that the State shall exercise its power and authority thorugh the chosen representatives of the people and that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed. He has also invited our attention to the speeches of the father of nation, Quaid-e-Azam Muhammad Ali Jinnah, particularly delivered by him on 26th March, 1948 at the public reception at Chittagong and of 14th June, 1948 addressed by him-to the Officers of the Staff College, Quetta. In the former, he highlighted the type of the Government which Pakistan would have by observing that the Pakistan should be based on sure foundation of social justice and Islamic Socialism which emphasize equality and brotherhood of men and in the latter speech the father of nation reminded the Army Officers the Oath which they had taken for allegiance to the Constitution and for faithfully and honestly serving Pakistan. He has also invited our attention to the Allama Muhammad Iqbal's book "The Reconstruction of Religious Thought In Islam" and 'The Process of Islamic Revolution" by Sayyid Abulala Muadudi. In the former, Allama Muhammad Iqbal emphasized the importance of 'Ijtihad' and pointed out that in Turkey in place of 'Khilafat' vesting in a single person was vested in a body of persons or an elected assembly in the following words :-- "Let us now see how the Grand National Assembly has exercised this power of Ijtihad in regard to the institution of Khilafat. According to Sunni Law, the appointment of an Imam or Khalifah is absolutely indispensable. The first question that arises in this-connexion is this— Should the Caliphate be vested in a single person ? Turkey's Ijtihad is that according to the spirit of Islam the Caliphate or Imamate can be vested in a body of persons, or an elected Assembly. The religious doctors of Islam in Egypt and India, as far as I know, have not yet expressed themselves on this point. Personally, I believe the Turkish view is perfectly sound. Whereas, Sayyid Abulala Maududi in his aforesaid work has exhaustively dealt with the topic "What is meant by the Islamic State and whether it is an Ideological State in contrast to a Secular State" and inter alia observed as follows :- "The structure that rises on the foundation of this ideology is, from foot to top, in every detail, essentially different from that which is the manifestation of a Secular State. It demands its builders a peculiar sort of mentality, a particular type of character, a special kind of behaviour. Its army, police, judiciary, finances, taxes, administrative policy, foreign diplomacy, problems of peace and war, in short, everything is sharply demarcated from that of the Secular States." Mr. Yahya Bakhtiar has also pointed out that Pakistan was achieved because of a political party, namely, Muslim League and, therefore, without political parties the elections of the Assemblies and the Senate were in fact contrary to the basic concept of Pakistan besides being violative of the Objectives Resolution and of the Constitution. He and also the two petitioners in the first two petitions and the learned counsel for the petitioner in the third petition, further pointed out that the so called elections of 1985 were held when political activities were banned under MLR 48 and most of the political parties boycotted the elections and, therefore, no credibility or legal status can be accorded to the Assemblies which came into existence because of such partyless elections. Mr. Yahya Bakhtiar also invited our attention to the fact that in the general elections of 1988 many political stalwarts lost their seats though they were elected in partyless elections of 1985. (e)At this juncture, it may be pertinent to point out that Mr. Khalid M. Ishaque has referred to the following publications in support of his submission that there has been re-thinking even in the western countries about the efficacy of political parties:- (a) The Party Symbol, Reading's on Political Parties, Edited by William Crotty, Northwestern University. (b) Elections And Party Management, Politics in the time of Disraeli and Gladstone, by H.J. Hanham, Dean of the School of Humanities and Social Science Massachusetts Institute of Technology. (c) Citizens, Parties and the State, a reappraisal by Alan Ware. (d) Party Renewal: The Need For Intellectual Leadership by James MacGregor Burns. In the above publications, the Authors have tried to point out defects in the working of party system. Mr. Obaidur Rehman, appearing for the intervenor, has also referred to a book named Parliament by Sir Ivor Jennings, 1970 Publication, Second Edition, wherein the Author has referred to the real difference between the Britain and Dictatorship countries by observing that :- "The real difference between Britain and the dictatorship countries is that with us there is not one faction seeking to maintain itself in power by persuasion, fraud or force, but at least two factions each trying to achieve and maintain power by persuasion. These factions are based on different views of the national interest, and each appeals to public opinion to uphold its policy. To a substantial degree these different views are dependent on personal and economic motives: yet each seeks to appeal to the people as a whole. The Conservative party believes that it can persuade the great mass of the people that State controlled private capitalism produces the optimum benefit, the Labour party believes that that benefit would best be obtained by State capitalism or socialism. These are, however, the differences of principle, and in their application to immediate and pressing problems they differ only in emphasis. They are no greater than the differences that separated Tories and Whigs or Conservatives and Liberals during the last century. Naturallly the organised capitalist groups are on the one side and the organised workers groups on the other. In my view, it is not necessary to enter into above theortical controversy in presence of the observations of the Supreme Court made in the case of Miss Benazir Bhutto v. Federation of Pakistan & others referred to hereinbelow as to the efficacy and the importance of the political parties in a parliamentary form of c Government. I cannot on the basis of above publication hold that the political parties have no part to play. The question whether the elections of 1985 can be declared as illegal or void on the ground they were held on non-party basis is a different issue. (f) I am inclined to hold that it is too late to declare that the National and Provincial Assemblies, which came into existence as a result of partyless elections,, in 1985 had no legal status or that they were illegal bodies, for the reasons urged i d by Mr. Yahya Bakhtiar or by the two petitioners in the first two petitions and the learned counsel for the petitioner in the third petition. Though the elections of 1985 to the Parliament were held on non-party basis, but the important part played by it cannot be denied as it was instrumental in getting the Martial Law lifted. In this regard, it may be pertinent to reproduce hereinbelow the break up of the percentage of the votes cast in 1970, 1985 and 1988 general elections for the National and Provincial Assemblies, which figures have been furnished by the Pakistan Election Commission in Pursuance of the Court order dated 8-10-1989:- Year of Elections Percentage of valid votes to registered votes National Assembly Percentage of total votes polled to registered votes Provincial National Provincial Assembly Assembly Assembly 1. 2. 3. 4. 5. 1970 57.96% 52.77% 59.87% 53.54% 1985 51.90% 56.12% 56.12% 57.37% 1988 42.33% 42.69% 43.00% 43.20% The percentage of votes for the National Assembly in the year 1970 seems to be higher than of 1985. The elections of 1970 were held when erstwhile East Pakistan was a part of Pakistan. The comparison of the percentage of votes cast in 1985 and 1988 elections indicates that for the National Assembly percentage of the total votes cast out of registered votes was about 10 percent more as compared to 1988 and of the Provincial Assembly about 14% more than of 1988 elections. However, Mr. Yahya Bakhtiar has submitted that the reason for the low percentage of the total votes cast in 1988 elections was mainly on account of the requirement to produce indentity cards. On the other hand, the reason for the higher percentage of the turn out of 1985 general elections could be that the people wanted to get rid of Martial Law as there was apparently no other course open to them. (g) In my view the very fact that the Supreme Court maintained the judgment of the Lahore High Court for declaring that the dissolution of the National Assembly as without jurisdiction indicates that the legal status of the National Assembly was not doubted though it came into existence on the basis of the partyless elections. However, it has been submitted that the Supreme Court had left the question of legality of the National Assembly open while dealing with Article 270-A of the Constitution in the above case of Federation of Pakistan and Another v. Malik Ghulam Mustafa Kliar, reported in PLD 1989 SC 26 relevant at page 44, by observing as follows:-- "16. During the course of hearing of these matters, Mr. Abdul Mujib Pirzada, who appeared for the petitioner in C.P.S.LA. No. 429-K of 1981, raised the plea that the Parliament was not competent to enact Article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the time being and thus no elaborate arguments were addressed on this plea. I would therefore refrain from expressing any view on it." I may point out that in the above quoted para of the judgment. Mr. Mujib Pirzada had not thrown challenge to the status of the Parliament as legally constituted; body but had thrown challenge to its competency to enact Article 270-A. In this regard, it may be stated that further observations of the Hon'able Supreme Court I in the very judgment contained in paras 18 and 19 are pertinent, which indicate' that the Supreme Court proceeded on the assumption that Article 270-A was validly enacted. It may be advantageous to reproduce the same, which read as under:- "18. The first limb of the argument of the learned Attorney General was that clause (1) of Article 270-A gave blanket protection to all laws made during the period when the Martial law was in force and that the validation extended by the said clause encompassed not only their past operation but also their future continuance, despite any other provision to the contrary contained in the Constitution, further, the said clause ousted the jurisdiction of all Courts including the Superior Courts from examining the validity of the said laws on any ground whatsoever. He also contended that the intent of the clause was not confined to only removing doubts about the competency of the law-maker but also conferred validity on the contents of the laws themselves. 19. So far as the question relating to the validity of the laws and the competency of the makers thereof is concerned, there can be no quarrel with the proposition convassed by the learned Attorney General. By declaring that all laws, brought on the statute book during the period of the Martial Law, had been made validly and by a competent authority, and, further by adopting and firming the same the intention of the Parliament clearly was to obviate all possible objections with regard to their validity or the competency of the makers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor the Lahore High Court took a contrary view on this part of the learned Attorney General's argument. But then in the matters before us we are not concerned with the validity of the said laws or the competency of the makers thereof~or for that matter, with their future operation after the revival of the Constitution. These questions were raised and dealt with in another judgment of this Court which has been reported as Benazir Bhutto y. Federation of Pakistan (PLD 1988 SC 416). On the other hand, the issue before us is of a limited nature, that is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held while the Martial Law was in force, can be reviewed by the Superior Courts in exercise of the Constitutional jurisdiction after the lifting of the Martial Law and the revival of the Constitution." (h) I may also observe that in the case of Miss Benazir Bhutto, all the learned counsel including Mr. Yahya Bakhtiar then appearing as the Chief Counsel for the petitioner and the Supreme Court proceeded on the assumption that Article 270-A was enacted by a competent legislature. In this regard, it may be pertinent to quote the following observations from the opinions of the Hon'ble Mohammad Haleem, CJ. and of Nasim Hasan Shah, J.:- "Mohammad Haleem, C J. The further argument of the learned Attorney General is that the validation also cures the violation of the Fundamental Rights or any other constitutional norm not only in the past operation of such laws but also in their future continuance "notwithstanding anything contained in the Constitution." In support of this contention he relied firstly, on the non obstante expression "notwithstanding anything contained in the Constitution." and secondly, in the absence of the words "subject to the Constitution" in sub-Article (3) of Article 270-A by comparison of these words existing in sub-Article (1) of Article 280 of the Interim Constitution and sub-Article (1) of Article 268 of the 1973 Constitution. This brings me to the consideration of the scope of what is validated in the context of the principle of validation or curing defects in the laws. During the specified period, the Constitution was in abeyance and so were the Fundamental Rights. Therefore, the power to enact the legal measures which was derived from the proclamation of the fifty day of July, 1977, and the Laws (Continuance in Force) Order was without any limitation as to the subject of legislation. There was no occasion, however, for any conflict of the legal measures in the state of things then existing with any constitutional norm. The constitutional validity given by Article 270-A (1) is retrospective as it achieves to give validity to laws enacted between a specified period. This validity is, therefore, of a pattern of a curative or validating statute and must be understood and be operative in that context." Nasim Hasan Shah, J. According to the learned Attorney General, the effect of sub-Article (1) of Article 270-A is that not only are the laws made during the period 5th July, 1977 to 30th December, 1985 alongwith their contents deemed to have been competently made and enacted but also that the jurisdiction of all Courts has been taken away to question the validity of the said laws on any ground "whatsoever". This blanket validation and complete immunity to any scrutiny thereof is further reinforced by the provisions of sub-Article (3) of Article 270^-A, which saves their future operation and renders them immune from scrutiny in the like manner. On the other hand, according to Mr. Yahya Bakhtiar what has been saved from all challenge by the provisions of Art. 270-A is the entertainment of any plea to the effect that the laws made during this period were not made by a competent authority and the liability to be struck down on that ground. In any case, the jurisdiction of the Courts to see whether such a law, in its future continuance, constitutes a violation of any of the Fundamental Rights, which have now been restored is not ousted." Reference may also be made to the two Full Bench cases of this Court comprising of the then learned Chief Justice and four learned Judges in the case of Nazar Muhammad Khan v. Pakistan and 2 others, reported in PLD 1986 Karachi 516, and the case of Muhammad Bachal Memon v. Government of Bind Through Secretary Department of Food and 2 others, reported in PLD 1987 19. Lastly, there was no constraint on the Parliament to give validity to any legislative instrument whatever may be the defects. While considering the validity of legal measures and protection given to themunder Article 181 (1) of the Interim Constitution which as already stated, is similar aS- Article 270-A of the Constitution, the Chief Justice in the case of Fouji Foundation clearly laid down at page 584 that there was no constraint on the constituent assembly to give validity to any legislative instrument whatever might have been the defect. !• am therefore, of the opinion that vires of Article 270-A of the Constitution cannot be questioned under Article 199 thereof on th& aforesaid ground." The same view found favour with a full Bench of Lahore High Court in the case of Malik Ghulam Mustafa Khar And Others v. Pakistan And Others, reported in PLD 1988 Lahore 49=PLJ 1987 Lahore 669. It may be pertinent to reproduce paragraphs 34-A and 34-B from the opinion of Mohammad Afzal Lone, J., which read as follows:- 34-A. A corollary of these arguments, is another submission made by Mr. Raza Kazim, that when the Parliament enacted Article 270-A, it was not a sovereign body as the Martial Law was in force then, Article 270-A was subject to will of the Chief Martial Law Administrator who qua the Constitution and the National Assembly was not under any compulsion to issue or not to issue the proclamation of withdrawal of Martial Law. In these circumstances according to the learned counsel, Parliament lacked competence to amend the Constitution. 34-B. The objection has political assumption rather than a legal significance. However, examining it from a purely legal point of view, it is noteworthy that Revival of Constitution Order, 1985,was enforced with effect from 20th March, 1985. Under Article 3 of the R.C.O. the first joint meeting«l the National Assembly and the Senate, was held, as stated in the preceding paragraph on 23-3-1985 and the Parliament stood installed. Powers having been once granted to the Parliament could not be taken away unless the RCO was annulled or the Parliament dissolved by the President under Article 91 of the Constitution. Further under our Constitution, sovereignty belongs to God Almighty, which he has delegated to the State of Pakistan through its people. The Parliament is the representative of the people. Within the frame work of the concept that legal sovereignty rests in God Almighty, enshrined in our Constitution, it is only a limited authority which is exercised by the Parliament. In this sense there is no room for attributing the western concept of sovereignty to the Parliament. We may also quote here, the instance of enacting of the Interim Constitution during Martial iaw. What transpired between the Parliament acting through the Prime Minister and the Chief Martial Law Administrator is a political question, not subject to judicial scrutiny. Article 270-A, therefore, cannot be struck down on the assumption that the Parliament was not sovereign." I may point out that the above Sind High Court judgment with the addition that the ground of malafide can be pressed into service for challenging the acts/actions/orders of the Martial Law Authorities was upheld, whereas the above Lahore judgment was upheld hi toto. In presence of the above judicial pronouncements of the Superior Courts, in my opinion, it is not open to this Court to hold that the Parliament was not legally constituted. The contention of Mr. .Nasim Faruqui in this regard seems to be correct. I am point out that there is a marked distinction between refusal to exercise i discretion in favour of restoration of a dissolved Assembly, after having held its dissolution as illegal under Article 199 of the Constitution and to give a declaration under the above Article that an assembly was illegal, the court cannot 'give such a declaration unless violation of a provision of law is shown, which in the instant case is missing. In my view Mr. Sabihuddin's contention that there was no constitutional deviation involved in holding of elections on non-party basis in 1985 as the same were held under President Order NO. 5 of 1977 which allowed such lections,seems to be correct. Additionally the effect of holding that Article 270-A was competently incorporated would be that P.O.No.5 of 1977 and other laws pertaining to elections including elections upto the date of enforcement of the Fundamental Rights are protected. 9. I may also observe that even otherwise, the competency of the members of the National Assembly is protected by the doctrine of de facto. The latter doctrine I intend to deal more in detail in latter part of this opinion. However, for the time being, it will suffice to quote hereinbelow form the judgment in the case of Lt. Col. Farzand All and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore, reported in PLD 1970 SC 98, relevant at page 125, which reads as under :-"There is, however, yet another principle which can be invoked in aid for holding that hi such collateral proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or as good as the acts of de jure members. This principle was first enunciated in the case of Edwin ward Scadding v. Louis Lorant (10 ER 164) where the House of Lords after consulting all the Judges came to the conclusion that a rate for the relief of the Poor which was lawfully made in other respects, could not be rendered invalid by the circumstance that some of the vestrymen who concurred in making it, were vestrymen only de facto, and not de jure. Colley in his book on Constitutional Limitations Eighth Edition, Volume 2, page 1357 says as follows :- "No one is under obh'gation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de are not facto suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by eason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain tfce office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally." An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol.2, page 1355 as "one who by some colour of rigjht is in possession of an office and for the tune being performs its duties with, public acquiscence, though having no right in fact." An intruder is defined in the same book at p. 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence." Upon these principles it has been strenuously argued by the learned Attorney-General that the Third, Fourth and the Sixty Constitutional Amendments are not unassailable, because, at any rate, the allegedly disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fan colour of title and they have also performed their duties with public acquiescence." 10. (a) Before taking up the question, whether any provision of the Constitution can be struck down on the ground of being violative of Objectives Resolution and of the basic structure of the Constitution, I may take up some of the other contentions raised by the petitioners and their counsel relating to the validity of the Eighth Amendment. First I may deal with the contention of Mr. Muzaffarul Haq that since the CMLA at the relevant time had the power to amend the Constitution, the Parliament was not competent to pass the Eighth Amendment and that a delegatee cannot further delegate his power. The above contention seems to be devoid of any force. According to Mr. Muzaffarul Haq himself the Supreme Court had accorded recognition to the Martial Law regime on the conditions contained in Begum Nusrat Bhutto's case referred to hereinabove. One of the conditions was that the CMLA was to restore democratic institutions. The exercise of J •. legislative power by the Parliament which was even envisaged by the Constitution cannot be said to be without jurisdiction. The Eighth Amendment was not only passed by the Parliament but it was also assented by the General who was acting in dual capacity as the President and the CMLA. Similarly, the contention of Mr. Muzaffarul Haq that the Eighth Amendment is colourable exercise of legislative power has no force as in Fouji Foundation case (PLD 1983 SC 45?), the Hon"ble Supreme Court has held that mala fide cannot be attributed to the legislature. (b) This leads me to take up Mr. Rasheed A. Akhund's contention that upon the issuance of P.O. No. 14 of 1985, which came into force on 2nd March, 1985, the General had ceased to have any power to amend the Constitution and, therefore, President Order No. 20 of 1985 issued on 17th March, 1985 purporting to restore original Article 239, was of no legal effect, it may be stated that by President Order No. 14 of 1985 (which was gazetted on 2nd March, 1985), Article 239 of the Constitution was amended as to make it obligatory to get every proposed amendment in the Constitution passed by the Provincial Assemblies as well. The above amendment was withdrawn by President Order No. 20 of 1985, which was gazetted on 17-3-1985, whereby Article 239, was restored in the form in which it was prior to the issuance of President Order No. 14 of 1985. The above submission of Mr. Rasheed A. Akhund seems to be based on the assumption that upon the issuance of President Order No. 14 of 1985, the General ceased to act-as the CMLA, which contention seems to be untenable, as admittedly on 30th December, 1985, the General revoked the declaration of Martial La^ of 5th July, 1977 in the capacity of the CMLA. One day prior to that, i.e on 29th December, 1985, the CMLA issued MLR-107, the validity of which has been upheld in the case of Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26). If I were to accept Mr. Rasheed A. Akhund's contention, in that event, it will have to be concluded that the General had no power on 30th December, 1985 to revoke the declaration of Martial Law of 5th July, 1977. The above discussion also disposes of Mr. Rasheed A. Akhund's further contention that since the Eighth Amendment was not referred the Provincial Assemblies,' the same was not competently passed. (c) As regards the contention that the General was not competent to give his assent to the Eight Amendment, as he was not duly elected President, it may be observed that even if I were to assume that the above contention has some force, it would not make any difference, as admittedly the General was acting as a de facto President. I have already referred to hereinabove to the case of Lt.-Col. Farzand All and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) in relation to the legality of the National Assembly, wherein de facto doctrine has been dilated upon by the Supreme Court of Pakistan. In addition to the above cited case, I may also refer to the case of Gokaraju Rangaraju v. State ofAndhra Pradesh, reported in AIR 1981 SC 1473, case of Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sind, and another, reported in P1D 1984 Karachi 462 and unreported case of Atlas Autos Ltd v. Nirc and others (Writ Petition No. D-852 of 1983) decided on 4-5-1989 by a Division bench of this Court. In the first case, the appointment of a Sessions Judge was declared as invalid being in violation of Article 233 of the Indian constitution. The order/ judgment passed by him was impugned, in that context the Indian Supreme Court while dismissing an appeal against the judgment of the High Court of Andhra Pradesh inter aha observed that "the de facto doctrine is now well established that the acts of the officers de facto performed by them within the scope of thenassumed official authority, La the interest of the public or third person and not for their own benefit, are generally held as valid and binding as if they were the acts of officers de jure. 1 ' In the second case, the appointment of the Judge, Special Court of Banking for Sind was impugned through a constitutional petition. A Division Bench of this Court has dealt exhaustively with the de facto doctrine and referred to Colby's Constitution Limitation, Eighth Edition, Second Volume, page 1357, the aforesaid Farzand Ali's Supreme Court case, the case ofMUward v. Thatcher (1787) 2 TR 81, the case of Scadding v. Lorant (1851) 3 HLC 418, the case of State v. Gardner (given in the book, namely, cases on Constitutional Law by Me Convey & Howard, (p.102) and the case of Norton v. Shelby County (1886) 118 US 425, and held that in view of the preponderance of judicial view on the fk facto doctrine, the objection to appointment of the Judge, Special Court of Banking for Sind was not sustainable as it had not affected the validity of the order and the judgment passed by him. In the third case, which has been recently decided by a Division bench of this Court, to which I am a party, the de facto doctrine was relied upon with reference to the alleged irregularity ia the appointments of the Chairman and the Members of the NIRC. (d) I may also point out that the Supreme Court in the above case of . Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) has dealt with the question of President's assent to the Eighth Amendment bill in some what different context in paragraph 15 of the judgment and has held that the President while giving assent to the bill was acting in the manner as envisaged by the Revival of the Constitution Order which had the sanction of the Provisional Constitutional order itself. I am, therefore, of the view that any alleged irregularity in the assumption of the office of the President by the General would not render his official act, of giving assent to the Eighth Amendment BUI illegal but would be protected by the doctrine of de facto. Secondly the challenge to the alleged irregularity in the assumption of the office by the President cannot be thrown through a collateral proceedings after several years or by what is called a side wind. (e) In this regard reference may be made to para 23 from the opinion Aftab Hussain, J., in the case of Ghulam Jilani v. Tlie Province of Punjab, 1979 Lahore 583, which reads as follows:-- "Their Lordships did not disagree with Farzand Ali's case. Proceeded to decide the matter on merits to give an authoritative pronouncement as to the true meaning and scope of Article 216 of the Constitution. Neither in that case nor in the case of Abrar Hussain the dictum laid down in Farzand Ali's case was reversed or even modified In this Court Farzand Ali's case is, therefore, an authority for so long as the view in the case is not reversed or modified, we are bound by it. There is, therefore, no doubt that the finding that the petitioner could oat challenge by a side wind or in collateral proceedings the appointment of the president is unexceptionable." (jf) It has ako been contended that there was difference between the Parliament which framed the Interim Constitution of 1972 and the permanent Constitution of 1973 and the Parliament which came into existence as a result tjf 1985 partyless elections inasmuch as the former was to act as a constituent assembly, whereas the latter was not to act as such. In furtherance of the above submission M/s Abdul Mujeeb Pirzada and Rasheed A. Akhund have relied upon the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD SC 416), relevant at page 514, in which, Muhammad Haleem, CJ, has following observation:- "One important distinction while applying the observations in the _ Fauji Foundation should be kept in mind and, that is, that it was National Assembly which as the Constituent body enacted the Interim Constitution of 1972 and the 1973 Constitution. The observations at page 593 were made in the context of this distinction as it was in the exercise of the constituent power that the Constitution was enacted which is not the case here as the amendments in the Constitution were made and so was it revived (President's Order 14 of 1985) in the exercise of the powers derived from the proclamation of the Fifth day of July, 1977 and the Laws (Continuance in Force) Order, therefore, the validity has to be construed in the context of the content of the power exercised and the languae of the indemnity clause enacted by the Legislature (Majlis-e-Shopra) in exercise of the derivative power subject to the limitation imposed by the prescribed procedure. This was essentially a revival of the old order and not the creation of a new order." The above quoted observation supports the submission of M/s Abdul Mujeeb Pirzada and Rasheed A. Akhund but it does not affect the view which I am inclined to take. In the instant case, the Eighth Amendment bill was passed by the National Assembly and the Senate as per procedure provided under the Constitution for its amendment. M/s Abdul Mujeeb Pirzada and Rasheed A. Akhund were unable to point out that there was any sustainable irregularity in the procedure adopted by the National Assembly and the Senate. I may also point out that in 1970, the general elections were held in the whole of Pakistan, which included erstwhile East Pakistan. After the fall of Dacca about half of the members of the National Assembly ceased to have any connection with Pakistan. The remaining members of the National Assembly had become the members of National Assembly for Pakistan. The power to frame the Constitution was derived by the National Assembly of 1970 under the Legal Frame Work Order issued by General Yahya Khan, who was declared as a usurper in Asma Jilani's case by the Supreme Court. (g) Then it was also contended that the Eighth Amendment had been brought about by force and coercion by the Chief of Army Staff at the time when the Martial Law was still in force. In this regard, Mr. S. M. Zafar has pointed out that the interim Constitution of 1972 was also framed when Pakistan was under the civilian Martial Law. In my view, the above submission is based on surmises, and conjectures. There is no material before me on the basis of which I may conclude that the members of the National Assembly and the Senate were pressurized and that they voted against their wishes. On the other hand, the admitted facts are that originally Eighth Amendment bill was introduced in the National Assembly on 8th September, 1985 which was not accepted/by the members of the National Assembly and, therefore, it was withdrawn. After that, an amended bill was re-introduced on 30th September, 1985. According to Mr. S. M. Zafar, 164 members of the National Assembly against the total strength of 207 cast their votes in favour of the bill and none voted against it and in Senate 74 Senators cast their votes in favour, out of the total strength of 87 and none voted against it. In my view, it is not necessary to examine the above question any further. (/») Adverting to Mr. S. A. Waddod, learned Dy. Attorney General's submission that the amendments were made in the Constitution for the benefit of an individual and, therefore, the same cannot be sustained, it may be observed that after having held that the Parliament, which came into existence as a result of 1985, was legal, I cannot go into the above question, as it was for the members of the National Assembly and the Senate to have examined the effect of the amendments. 11. (a) Having held that the National and Provincial Assemblies, which came into existence as a result of 1985 non-party general elections were legal, further; question arises as to whether the amendments, which have been incorporated ifii the Constitution by the Eighth Amendment, are violative of the Objectives Resolution or of the basic structure of the Constitution or of any other accepted rule of amendment of the Constitution. I may observe that Mr. Yahya Bakhtiar, learned Attorney General has candidly submitted that this Court cannot strike down the entire Eighth Amendment in one stroke in the above cases but when a challenge is thrown to a particular amendment of the Constitution on the grounds urged by him, the Court would be competent to strike down that particular provision. More or less the same sta^nd was taken by Mr. SA. Wadood, learned ty~ Attorney General appearing for the Federation when he submitted that this Court cannot rewrite the Constitution and that the general prayer for striking down Eighth Amendment, contained hi C.P. No. D- 163/1989 cannot be granted Messrs Abdul Mujeeb Pirzada and Muzaffarul Haq's stand was that the entire Eighth Amendment is liable to be struck down, whereas Mr. Rasheed A. Akhund's submission was that excluding Article 2-A, the rest of the Eighth Amendment is to be struck down. According to Mr. Abdul Mujeeb Pirzada, our Constitution has following basic structure:- (1) That the Constitution is supreme like other Constitutions; (2) Parliamentary form of Government; (3) Islamic character of the Constitution; (4) Trichotomy of power; (5) Federal character of the Constitution; and (6) Unabridged Fundamental Rights. (&) According to M/s Yahya Bakhtiar, Abdul Mujeeb Pirzada and Rasheed A. Akhund, some of the amendments made in the Constitution were intended to change the Parliamentary form of Government into a Presidential form. Mr. Yahya bakhtiar, Learned Attorney General has taken us through the various amendments made in certain articles of the Constitution referred to hereinbelow in sub-para (c) in order to demonstrate that factually by the said amendments, the Objectives Resolution and the basic structure of the Constitution have been violated. Mr. S. A. Wadood, learned Deputy Attorney General appearing for the Federation to re-enforce the above argument, has submitted that there are certain restrictions which are built in, in the system of a Constitution which do not permit amendment, of certain provisions of the Constitution. According to him those built in restrictions prohibit amendment of the essential features of the Constitution, some of the articles in the Constitution themselves provided mode of the amendment as to make it difficult to amend the same. He also pointed out that mandate from the party, public opinion, international law, consultation with the organised interests are some of the other constraints which do not permit amendment of a Constitution freely. On the other hand, M/s S. M. Zafar, Ali Ahmed Fazeel, Khalid M. Ishaque, Naseem Faruqi have submitted that the preponderance of judicial view at present obtaining in Pakistan is that a Court cannot strike down a Constitutional provision on the ground that it is violative of the Objectives Resolution or of the basic structure of the Constitution. They have further submitted that the question what should be the balance of power inter se between the President and the Prime Minister is a highly politicised issue, which is not suitable for adjudication by this Court in a constitutional petition and the forum for resolving such an issue is the Parliament or the people. Mr. S. M. Zafar has also invited our attention to the fact that the father of the nation, Quaid-e-Azam Mohammad Ali Jinnah was the Head of the Executive being the Governor General and was also the Chairman of the Constituent Assembly which was entrusted with the task to draft a Constitution for Pakistan under the Indian Independence Act, 1947 and that it was also acting as the legislature for enacting other laws. He further pointed out that Justice Shahabuddin's Law Commission on the form of Government recommended Presidential form for Pakistan. He has also submitted that 1956 Constitution contemplated a Parliamentary form of Government, then 1962 Constitution envisaged a Presidential form of Governmeat, then -1073^ Constitution, as originally stood, made the President totally ineffective. On the basis of his above submissions he urged that there was no specific form of Government permanently adopted in Pakistan. , Mr. Ali Ahmed Fazeel has invited our attention to the fact that under Article 199 of the Constitution, the jurisdiction of this Court is subject to the Constitution, whereas there is no such qualification under Article 226 of the Indian Constitution. He has further invited our attention to Article 175 of the Constitution which makes it clear that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law and, therefore, according to him in presence of the above provisions of the Constitution this court cannot strike down any Constitutional provision on the ground of being violative of the Objectives Resolution or of the basic structure or of any other accepted rule of the amendment of the Constitution. (c) Mr. Yahya Bakhtiar, learned Attorney General then has taken us through some of the amendments made in the Constitution, which, according to him, are violative of the Objectives Resolution and of basic structure of the Constitution, namely. (/) He has invited our attention to clauses (5) and (6) which have been added by Eighth Amendment to Article 239, which provides the procedure as to the amendment of the Constitution. Clause (5) provides that no amendment in the Constitution shall be called in question in any Court on any ground whatsoever, whereas clause(6) lays down that for removal of doubt it is hereby declared that there is no limitation whatsoever on the power of Majlis-e-Shoora (Parliament) to amend airy of the provisions of the Constitution. According to Mr. Yahya Bakhtiar the above clauses cannot stand with the Objectives Resolution and Article 270-A. (ii) Clause (2) of Article 58 gives discretion to the President to dissolve the National Assembly for the two reasons given in its sub-clauses (1) and (b). According to Mr. Yahya Bakhtiar this discretionary power given to the President under this Article is subject to mis-use as it has made the will of the people subordinate to one individual. It may be observed that the above clause has been subject matter of a decision of the Supreme Court in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Klian and others, reported in PLD 1989 SC 166. (iif) Clause 1-A of Article 242 of the Constitution, which has been incorporated by President Order No. 14 of 1985 and which provides that the Chairman oT the Public Service Commission constituted in relation to the affairs of the Federation, shall be appointed by the President in his discretion. According to Mr. Yahya Bakhtiar, the above discretionary power given to the President puts the selection of the bureaucracy under the control of the President. (/v) Article 48, in which the phraseology of clause (1) has been changed and a new proviso to above clause (1) has been added providing that the President may require the Cabinet or as the case may be, the Prune Minister to re-consider advice, either generally or otherwise and the President shall act in accordance with the advice tendered after such re­ consideration. Mr. Yahya Bakhtiar, learned Attorney General has submitted that there was no need for incorporating the above clause which may cause obstruction in the working of the elected Government. (v) Clause (2) of Article 91 provides that- "The President shall in his discretion appoint from amongst the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the confidence of thf majority of the members of the National Assembly." It has been contended by Mr. Yahya Bakhtiar that though this provision will be ineffective after 20th March, 1990 but it was violative of the concept of parliamentary form of Government as the President could nominate anyone as a Prime Minister. (v/) Clause (5) to Article 91 empowering the President to ask the Prime Minister to obtain Vote of Confidence has been incorporated by the Eighth Amendment but to the same no objection was convassed by Mr. Yahya Bakhtiar at the bar. (v») As regards clause (8) to Article 91 which empowers the President to appoint any person as the Prime Minister or a Minister after the dissolution of the Assembly, it has been contended by the learned Attorney General that the above clause is in fact contrary to the well established practice of a Parliamentary form of Government which contemplates that a sitting Prune Minister is to continue till fresh elections are held and it is also in conflict with the spirit of Article 94 of the Constitution which provides that the President may ask the Prime Minister to continue to hold office until his successor enters upon the office of the Prune Minister. He further submitted that the above clause (8) was misused in May, 1988 when no Prime Minister was appointed after the dissolution of the Assembly and in the provinces only Mr. Nawaz Sharif was allowed to continue, whereas the other three Chief Ministers were not allowed to continue to hold on the office of the Chief Ministership. (vi'n) He also invited our attention to corresponding amendments made in the relevant Articles of the Constitution relating to Governor, Provincial Assembly—and Provincial Cabinet. There is no doubt that the above amendments highlighted by Mr. Yahya Bakhtiar have to some extent affected balance of power inter se between the President and the Prime Minister but the moot point remains, whether this Court is competent to take upon itself exercise on the question which of the amended articles should be struck down and which of the amended articles should be retained or should it be left to be resolved by the Parliament or the people. It cannot be denied that the above controversy is a sensitive political issue and generally the Court declines to entangle itself into sensitive political issues in exercise of its constitutional jurisdiction. This aspect I intend to deal more in detail later on. Additionally, if this Court has no jurisdiction to strike down a constitutional provision on the ground of its being violative of the Objectives Resolution or of the basic structure of the Constitution, the question, whether the .Court can adjudicate upon sensitive political issues loses its significance. (d) Mr. yahya Bakhtiar, Learned Attorney General has also referred to the following cases:- (i) MissAsma Jilani.v. Ttie Government of the Punjab and Another, reported in PLD 1972 SC 139, in which General Yahya was declared as a usurper and while dealing with the question of grund-norm, Hambodur-Rehman CJ, made the following observations^- "In any event, if a grund-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grundnorm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration." This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or Civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest away sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. (Pt. 3, Ch. 3, Al'Imran,Ay27.)". (h) Mr. Fazlul Quader Chowdhiy And Others v. Mr. Muhammad Abdul Haque, PLD 1963 SC 486. In the above case the facts were that the 3 appellants were the members of the Central Council of Ministers, who took oath of office shortly after promulgation of President Order No. 34 of 1962 under Article 224 of the 1962 Constitution. The above Order had the effect of amending seven Articles of the Constitution. Article 25 was altered so as to give the right of speaking in and otherwise participating in the proceedings of the National Assembly to a member of the President's Council of Ministers, who was not a member of the Assembly though such a person was not entitled to vote. Articles 75, 103 and 104 were also amended. The above amendments were made by the then President in purported exercise of the power conferred on him under above Article 224 for removal of difficulties which might have been encountered in enforcement of the aforesaid Constitution. The erstwhile High Court of East Pakistan took the view that the above amendments made by the President were ultra vires. On appeal filed by the 3 affected Ministers, the Supreme Court maintained the judgment of the High Court and Cornelius CJ inter alia observed as follows:-- The major duty upon all concerned including the President was to bring these fundamental provisions into operation. What has actually be done is that instead of implementing these basic provisions, they have been altered in a fundamental way so as to change the form of Government from the pure Presidential form to an anomalous Parliamentary form. It is quite impossible to regard the operation as one in aid of bringing the integral provisions of the Constitution into operation." (Hi) Mir Abdul Baqi Baloch v. Jam Mir Ghulam Qadir KJtan ofLasbella & Five others, NLR 1980 Civil (Kar) 673, in which a Full Bench of the erstwhile High Court of Sind and Baluchistan while dismissing a petition challenging the appointment of Jam Mir Ghulam Qadir Khan of Lasbella as the Chief Minister of Baluchistan inter alia dilated upon the rule of interpretation of Constitutional provisions by observing as follows:-- " The Interim Constitution, as indeed any legislative instrument, must I think be so construed as to give effect to all parts of it and to reconcile the provisions with one another and there can be no question of choosing between the provisions unless indeed there is such absolute conflict between two provisions that upon no reasonable interpretation can they both be given effect to. It is unnecessary just now to quote the entire Article 136 but clause(l) therefore may usefully be reproduced." Whereas Mr. S. A. Wadood, learned Deputy Attorney General has referred to the following books and cases:- (/) Diaz Jurisprudence, Fourth Edition inter alia at page 128, which reads as follows:- " ....................... A written constitution provides probably the most effective of all checks on legislative power, but its success depends on a number of factors. One of the most important is the language in which the limitations are expressed; whether in fairly specific terms or in generalities open to divergent interpretation. Secondly, the safeguards may be effectively cancelled by countervailing provisions elsewhere in the document. Thirdly, if the constitution can be easily amended, a restraint which the government finds irksome will not impose quite such a curb as when the procedure for amendment is complex and elaborate. Fourthly, every constitution has to be interpreted, so the effectiveness of its restraints rests ultimately on the interpreters, i.e., the judges and the measure of their sympathy with an independence of government. An interesting case is Golak Nath v. State of Punjab, in which the Supreme Court of India declared that the Indian Parliament was incapable of amending the constitution so as to abridge or remove fundamental rights. A contrary effect is that, while a constitution may limit legislative power, it may thereby prevent government from dealing with the abuse of liberty which could be as undesirable as the abuse of power." (H) Rousseau on the Social Contract at page 198, which provides as follows:— " From which it becomes clear that the sovereign power, albeit absolute, sacrosanct, and inviolable, does not, and cannot, trespass beyond the limits laid down by general agreement, and that every man has full title to enjoy whatever of property and freedom is left to him by that agreement. The sovereign is never entitled to lay a heavier burden on any one of its subjects than on others, for, should it do so, the matter would at once become particular rather than general, and,consequently, the sovereign power would no longer be competent to deal with it." (Hi) Harold J. Laski at pages 55 and 56, which reads as follows:-- "....We here verge upon the political nature of sovereignty. What, fundamentally, is involved in the question of whether there ought to be, in any State, a power subject to no limits of any kind. But it is first necessary to remember that unlimited power is nowhere existent. Attention has always to be paid to the thousand varying influences which go to shape the nature of the sovereign will. Here we are in the realm rather of fact than of theory; and the attempt to trace out the sources of any single decision would lead most to declare, as John Chipman Gray insisted, that the real rulers of a society are undiscoverable. A realistic analysis would probably content itself with saying that the will of the State is, for practical purposes, the will which determines the boundaries within which other wills must live. The will of the State, in fact, is the will of government as that will is accepted by the citizens over whom it rules." (/v) O. Hood Phillips' Constitutional and Administrative Law, Sixth Edition at page 57, which reads as follows:--' " There are in practice, of course, factors which limit Parliament's ability to pass any laws it likes, or, rather, which limit the choice of measures that the government puts before Parliament for approval. These factors are the concern of the political scientist rather than the student of constitutional law, but it is convenient to mention some of the more important ones briefly here." The author after making the above observations has dilated upon the restrictions referred to by him, namely, the mandate, or party manifesto, public opinion, consultation of organised interests and international law. (v) Sharaf Faridi and 3 others v. Tlie Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another, PLD 1989 Karachi 404, at page 446, wherein Saleem Akhtar J. has referred to the legislative power with reference to Article 8 of the Constitution and has pointed out the observation of the Supreme Court in the case of Benazir Bhutto as to the manner in which the Constitution restricts the legislature and executive from encroaching upon and violating the fundamental rights. (vi) Mac Cormick v. Lord Advocate, (1953 S.C. 396, (1953) S.L.T. 255-Scot, in which case Lord President while dealing with the question of violation of the treaty of the union between the Scotland and England ratified by Act 1706 by a legislation passed by the British Parliament observed:— " ....................... the principle of the unlimited sovereignty of Parliament was a distinctively English principle, having no counterpart in the constitutional law of Scotland, and that the united Parliament established by the Treaty of Union did not have unlimited sovereignty in the matter of altering the provisions of the Treaty." (vh) Federation of Pakistan and another v. Malik Ghulam Mustafa KJiar, PLD 1989 SC 26, the detailed reference to which has already been made hereinabove. (e) As observed hereinabove according to M/s S. M. Zafar, Khalid M.-Q Ishaque, A. A. Fazeel and Nasim Faruqui none of the provisions of the Constitution can be struck down on the ground of being violative of Objectives Resolution or of basic structure or of some political concept. M/s S. M. Zafar and , A. A. Fazeel have referred to the following cases:-- (/) Tlie State v. Zia-Ur-Rahman and others, PLD 1973 SC 49, in which Hamoodur Rehman CJ explained his observation made in the aforesaid Asma Jilani case quoted hereinabove and relied upon by Mr. Yahya Bakhtiar as to the status of the Objectives Resolution in the following words:-- " ....................... It will be observed that this does not say that the Objectives Resolution is the grund norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that flow from it. I did not describe the Objectives Resolution as "the cornerstone of Pakistan's legal edifice" but merely pointed out that one of the learned counsel appealing in the case had described it as such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment, "to be a transcendental part of the Constitution" or, as Justice Muhammad Afzal Zullah has said, to be a "supra-Constitutional Instrument which is unalterable and immutable". His Lordship also pointed out in the other part of the judgment that the judiciary has no power to strike down a provision of the Constitution on the ground of its being violative of the laws of God or nature or of morality or of some other solemn declaration in the following words:-- "....Having said this much about the constitutional position of the Courts and their relationship with the other equally important organ of the State, namely; the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can, in the exercise of its judicial power strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the constitution itself as being in violation of such a document." (if) Tlie Federation of Pakistan Tlirough the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Klian and others, PLD 1974 Sc 151, in which the Honourable Supreme Court reiterated that a constitutional provision cannot be struck down. (wi) Islamic Republic of Pakistan Tlirough Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Klian, M.AL4. Former President of Defunct National Awami Party, PLD 1976 SC 57. In the above case Supreme Court referred to some cases of Indian jurisdiction, namely, the case of Golak Nath v. State of Punjab, AIR 1967 SC 1943, the case of Kesavanauda v. State of Kerala, AIR 1973 SC 1461, the case of Shankari Prasad v. Union of India, AIR 1951 SC 458 and the case of Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, in which the Indian Supreme Court has dealt with the power of the Indian Parliament as to amend or. to abridge any of the fundamental rights. Original view of the Indian Supreme Court inter alia in the above case of.Shankari Prasad v. Union of India and Sajjan Singh v. Stale of Rajasthan was that the parliament could make any amendment in the Constitution but in above Golak Nath v. State of Punjab case the Indian Supreme Court held that no amendment in the Fundamental Rights could be made by the Parliament. The latter view was modified in the case of Kesavanauda v. State of Kerala by holding that reasonable abridgements of fundamental rights can be effected in the public interest. Hamoodur Rahman, CJ after having referred to the above cases of Indian jurisdiction made following observations:-- " ...................... but it is unnecessary for us to enter into this controversy, as this Court is committed to the view that "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant" to that national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution", vide State v. Ziaur Rahman (PLD 1973 SC 49)." (iv) Brig. (Retd) F. B. All and Another v. Jlie State, PLD 1975 SC 507. In the above case Hamoodur Rahman CJ inter alia observed that "The Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law as pointed by me in the case of Asma Jilani (PLD 1972 SC 139)." (v) Federation of Pakistan through The Secretary, Ministry of Finance; Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd-, Karachi, PLD 1977 SC 397, wherein at page 410 Muhammad Gul J, whtf delivered the opinion on behalf of the Supreme Court, observed as follows:-- " ....................... In Pakistan, this Court in the case of Ziaur Rahman (PLD 1973 SC 49) has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repurgnant to what were sometimes stated as "notional inspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra constitutional instrument. In the instant case, the two amendments are not questioned for want of competency or any other formal defect." (v/) Fajui Foundation and Another v. Shamimur Rehman, PLD 1983 SC 457. In the above case Muhammad Haleem CJ after, referring to the Indian cases in which certain amendments of the Constitution were held to be violative of basic structure reiterated the Supreme Court dictum in Ziaur Rahman's case by quoting "That a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "notional aspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the constitution or a supra-constitutional instrument." (v//) Kliawaja Muhammad Sharif v. Federation of Pakistan Through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others, PLD 1988 Lahore 725, in which a Full Bench of the Lahore High Court observed that "Thus the Scope of sub-clause (b) of clause (2) of Article 58 cannot be enlarged by any ratio of rule similar to the "basic structure" theory, as pronounced in India. Even otherwise, this theory has not been accepted by the Supreme Court of Pakistan in Faiqi Foundation's case (PLD 1983 SC 457)." (viii) Sharaf Faridi and 3 others v. TJie Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another, reported in PLD 1989 Karachi 404. In the above case a Full Bench of this Court comprising of myself and six other learned Judges after referring to some of the above cases of the Indian Supreme Court has held that a constitutional provision cannot be struck down on the ground of being violative of the basic structure or of the frame-work of the Constitution. review of the above cited cases indicates that Miss Asma Jilani's case relied upon by Mr. Yahya Bakhtiar was explained by Hamoodur Rahman, CJ, in the case of Ziaur Rahman, where it has been held that "however solemn or sacrosanct document, if it is not incorporated in the Constitution or does not form a part thereof, it cannot control the Constitution. At any rate, the Court created under the Constitution will not have the ower to declare any provision of the Constitution itself as being in violation of such a document", the above view was reiterated by the Supreme Court in the case of Saeed Ahmed Khan. The above question agian came up for consideration before the Supreme Court in the reference case of Abdul Wali Khan, wherein, in strong words Hamoodur Rahman, CJ, observed that, "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant to that national aspirations of the people and the validity of a constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution". After that, in the case of Brig. (Retd.) F. B. Ali and another, Hamoodur Rahman, CJ, again reiterated his previous view and observed that, "the Court cannot strike down a law on any such higher "ethical notions" nor can Court act on the basis of "philosophical concepts of law." This was followed in the case of United Sugar Mills, in which Mohammad Gul, J., while delivering the opinion on behalf of the Supreme Court observed that, "a constitutional provision cannot be challenged on the ground of being repugnant to what are some times stated as "national aspirations" or "an abstract concept". Then again in the case of Fauji Foundation, Mohammad Haleem, CJ, reiterated the dictum of Ziaur Rahman's case that, "a constitutional provision cannot be challenged on the ground of being repugnant to what are some times stated as notional aspirations or an abstract concept". The above Supreme Court cases have been followed by a Full Bench of the Lahore High Court in the above case of Khawaja Mohammad Sharif and by a Full Bench of 7 Judges of this Court in the recent case of Sharaf Faridi. It is, therefore, evident that the consistent view of the Pakistan Supreme Court has been that a constitutional provision cannot be struck down on a ground other than that it was passed hi a manner other than provided under the Constitution. The case of Fazlul Quader Chowdhry relied upon by Mr. Yahya Bakhtiar does not lay down any contrary proposition of law than what has been held by the Supreme Court in the aforesaid subsequent cases. The question in the above Fazlul Quader Chowdhry's case was, whether the President under Article 224 of 1962 Constitution, which empowered him to remove difficulties with the object to enforce the provisions of the aforesaid Constitution of 1962, was entitled to amend the Constitution as to change the Presidential form of the Government into Parliamentary from. It is, therefore, obvious that the above case is distinguishable, i The books relied upon by Mr. SA. Wadood, namely, Dias Jurisprudence, Rousseau on the Social Contract, Harold J. Laski's Treatise, O. Hood Philips' Constitutional Law & Administrative Law to some extent support his contention that a Parliament or any other legislative body is subject to some build in constraints contained in the Constitution or founded on Conventions or practice as to its power to amend a constitution. The above bopks contain personal views of their Authors. However, the same cannot nullify the effect of the • pronouncements of the Pakistan Supreme Court contained in the above cited cases. I may also observe that the natural corollary of holding that Aricle 270-A has been competently enacted would be that it would provide protective cover to the assailed constitutional amendments. I am, therefore, of the view that in presence of the above unambiguous} dictums of the Pakistan Supreme Court, it is not open to this Court to hold that al provision of the Constitution can be struck down on the ground of its beingl violative of the Objectives Resolution or of the national aspirations or of higherj ethical notions or of philosophical concepts of law or of the basic structure. Additionally jurisdiction of this Court under Article 199 read with Article 175(2) of the Constitution is subject to the Constitution and not unfettered jurisdiction as to entitle it to strike down a provision of Constitution on a ground other than highlighted by the Supreme Court in the above discussed cases. Reference may also be made to the case of Mian Jamal Shah v. The Mem Election Commission, Government of Pakistan, Lahore and 2 others, PLD 1966 1 at 25-E arid to the aforesaid cases of the Supreme Court, namely, Lt.-Cot. Farzand Ali, United Sugar Mills and of the Fauji Foundation as to the effect -of the expression "subject to Constitution". 12. (a) Before taking up the remaining submissions, which have been urged for and against the above petitions, I may first deal with the submissions relating to the Senate, as in first and third petitions, namely, C.P. Nos, D-76/1989 and D- 168/1989, inter alia a direction is sought for fresh election of the Sanate. la this regard, I may point out that in the unamended constitution the total seats m the Senate were 63 under Article 59 which were increased by P.O. No. 14 of 1985 to 87. The break up of the previous seats and the present seats are as follows:- Previous Present 14 members to be elected by the members of each of the four Provincial Assemblies 56 56 To be elected by the members from Federally administered tribal areas in the National Assembly 58 To be elected from the Federal Capital in such a manner as the President may by order prescribe 2 3 Five to be elected by the members of each Provincial Assembly to represent Ulema, technocrates and other . professionals 0 20 The other amendment, which was introduced by President Order 14 of 1985, was to its term, in clause 3 of Article 59 the unamended period was four years. This has been extended to six years. Under the unamended clause, half of the members were to retire after every two years which has now been extended to three years because of the extension of the term. The above amendments are protected under Article 270-A of the Constitution. However, it has been contended that the increase in the number of seats of the Senate and its life were not warranted by law. It has also been submitted that he Senate cannot extend its own life. On the other hand, it was urged by Mr. S.M. Zafar that the increase ia the number of seats in the Senate has made it more representative and that Ike extension of the term of the Senate from four years to six years is also in consonance with the other Constitutions of some of the countries of the world like Austria, India, Japan, Netherland, USA, Fiji, Republic of Vietnam, etc. Mr. Ali Ahmed Fazeel, in support of the above amendment, has invited ®ur attention to the history of the British Parliament, which is called as the mother of the parliamentary form of government. He pointed out that under the Meeting of the Parliament Act, 1694, die maximum period of the Parliament was three years, which was repealed by Septinial Act, 1715, providing the continuation of the Parliament for seven years term. This was reduced to five years by the Parliament Act, 1911. Since on the basis of the Supreme Court cases and of the High Courts referred to hereinabove, I have held that this Court cannot, strike down any amended provision of the Constitution on any ground other than that the same has been made in a manner different to the prescribed by the Constitution, it must follow that no exception can be taken to the above amendment. I am also inclined to subscribe to Mr. Sabihuddin's submission that increase in the number of seats of the Senate and extension of its term from four years to six years do not change the basic structure of the Constitution. (b) The other ground of attack was that since the present National Assembly has come into existence as a result of party basis elections of 1988, the present Senate cannot continue to operate as it was elected on non-party basis. Since I have held that the elections for the National and Povincial Assemblies on nonparty basis in 1985 were in accordance with law then in force as Article 17 of the Constitution was under suspension, natural corollary of the above conclusion would be that no exception can be taken to the factum that the present Senate was elected by the assemblies which were elected on non-party basis. 13.(a) M/s. S.M. Zafar, Ali Ahmed Fazeel and Obaidur Rahman have invited our attention to clause 3 of Article 59 of the Constituion, which inter aBa provides that the Senate shall not be subject to dissolution and have contended that if this Court would grant the prayers contained in the aforesaid two petitions, it would be violative of the above clause 3 of Article 59. Mr. S. M. Zafar has referred to the definition of the word "dissolution" given in Oxford Dictionary, volume 3, New Comprehensive International Dictionary of the English Language, Encyclopeadic Edition, Black's Law Dictionary, 5th Edition, Ballentintf's Law Dictionary, third, adition, and Corpus Juris Secundum, volume 27, whereas, Mr .Obaidur Rahman has referred to the definition of the word "dissolution" given in Legal Thesaurus Regular Edition. In all the dictionaries, the meanings given are more or less same, and therefore, it will suffice to reproduce the definition given in the New Comprehensive International Dictionary, which reads as follows:- "1. The act or state of dissolving; disintegration. 2. Chem. Decomposition; separation into elements or component. 3. Liquefaction. A. Separation; breaking up, as of an assembly or corporation, or of a partnership, in accordance with the articles of co-partnership, or by the death or incompetence of a partner, or by the decree of a court. 5. Death, the separation of soul and body.' No doubt, if, I were to give declaration that the present Senate has not been legally constituted and if I were to order its fresh election on party basis, it will amount to dissolution of the present Senate, which is prohibited by the above clause 3 of Article 59 of the constitution. (b) MrAA. Fazeel has also raised two additional pleas in regard to the Senate, namely, that the petitioners in C.P.Nos. D-76/1989 and D-168/1989 have no loucs standi to challenge the legality of the Senate on the ground that they wanted to be a candidate for the Senate and that the two petitions suffer from laches. page 488. In the first case, a Division Bench of the Dacca High Court inter afia held that, the prospective right of franchise of the petitioner is not enforceable by invoking the extraordinary writ jurisdiction of the High Court, whereas, in the latter case, Muhammad Haleem, CJ, highlighted the distinction between Article 184(3) and Article 199 of the Constitution as to their respective scope and observed that Article 184(3), which empowers the Supreme Court to entertain a petition directly in respect of the enforcement of the Fundamental Rights should be interpreted hi a manner, which may advance the objective for which it has been incorporated. In my view a distinction is to be made between a' prospective right of franchise which has already been conferred by the relevant law and prospective right of franchise, which is to be conferred by law to be enacted. The former right may be enforceable through a constitutional petition if the functionary entrusted to hold election fails to do so, the latter right cannot be pressed into service through a constitutional petition. I may also observe that under Article 199 except a writ of habeas corpus petition and a writ of quo warranto, which can be invoked by any person, the other writs can be prayed for by an aggrieved party, whereas under Article 184(3) there is no requirement that only an aggrieved party can press into service the above provision, but the Supreme Court can entertain a petition under the above provision at the behest of any person. (c) Adverting to the question of laches, Mr. AA. Fazeel, has referred to an unreported order dated 12.9.1988 decided by a Division Bench o'f this Court in the case of M.P. Bhandhara v. Federation of Pakistan in C.P. No. D-893/1988, and the case of New Kisan Transport Co. Ltd., Lyallpurand others v. The Member Board of Revenue, West Pakistan, Lahore and others, reported in 1968 SCMR 1307. In the above unreported order, a Division Bench of this Court declined to entertain a constitutional petition challenging the dissolution of the National Assembly on the ground that it was filed after the lapse of several months at the stage when preparation for fresh elections were already at a very advance stage. In the. latter case, the Supreme Court declined a petition for leave against an order of dismissal of a constitutional petition on the ground of laches by the erstwhile High Court of West Pakistan and it was observed that the ground that the petitioner was awaiting result of a writ petition filed by a third party was not a sufficient ground. On the other hand, Mr. Rasheed A. Akhund referred to the case of KJiawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others, reported in PLD 1988 Lahore 725, relevant portion para 28 at page 763, wherein, Abdul Shakurul Salam, CJ, on the question of laches as lo filing of a petition against the dissolution of the National Assembly took a contrary view and observed:- "Yet it is the duty of the Court to see that the Constitution is maintained, obeyed and no act of so magnitude a nature as dissolution of the National Assembly is carried out except strictly in accordance with the Constitution." The above judgment was upheld by the Supreme Court hi the often referred case of Haji Saifullah. In the instant case the Senate came into existence in March, 1985 and half of its members retired in March, 1988 and in their place new members were elected. The first petition has been filed in April, 1989, in say view,the petitions suffer from laches. However, a petition, which involves questions 0f public importance as to the interpretation of the Constitution, cannot %e ? dismissed on the ground of laches alone in view of the above judgment of the Supreme Court in the case of Haji Saifullah. 14.(a) This leads to me the last submission, namely that this Court while exercising constitutional jurisdiction will not enter into political controversy and, that if the petitions will be allowed there will be far reaching repercussions. Adverting to the above first question, it may be observed that Mr. S.M. Zafar has referred to a book named, "Sum and Substance of Constitutional Law, Arvo van Alstyne Kenneth Karst Jules Gerard, third edition". He has also referred to . the following cases:- (i) The Punjab Province v. Malik Khizar Hay at Khan Tiwana, reported PLD 1956 Federal Court 200. (ii) The State v. Zia-ur-Rahman and others, reported in PLD 1973 SC 49. (iii) Malik Ghulain Mustafa Khar and others v. Pakistan and others, reported in PLD 1988 Lahore 49=PLJ 1987 Lahore 669. In the above cited book, the Author has referred to the term "Discretionary Technique" and has explained it as follows: "The "Political question" doctrine operates chiefly as a discretionary technique by which the Court can avoid decision on issues which are regarded as especially unsuitable for judicial determination. Such unsuitability may arise from (1) a clear constitutional delegation of authority to some agency of government other than the federal courts to make a final decision on the question, (2) a lack of judicially manageable legal standards for resolving the issue, or (3) the need for the courts to respect and give effect to decisions of co-equal branches of the government acting within the area of their constitutional authority in order to prevent embarrassment, confusion, or frustration of national policy. In applying these guides to decision, it is apparent that the political question doctrine is calculated to implement the principle of separation of powers by precluding judicial determination of issues that could better be decided by some other branch of the government." In the first case, the Federal Court of Paksitan inter alia observed that the plain. v duty of Courts is to ascertain the intention of the legislature and to carry it out ^ irrespective of the consequences that may ensue to a political party. In the second famous case of Zia-ur-Rahman, Hamoodur Rahman, CJ, inter alia observed as : follows:- "The judiciary cannot declare any provision of the Constitution to be invalid or repugnant on the ground that it goes beyond the mandate given to the Assembly concerned or that it does not fulfil the aspirations or objectives of the people. The endeavour to do so would amount tQ entering into the political arena which should be scrupulously avoided by the judiciary. With political decisions or decisions on questions of policy, the judiciary is not concerned." In the above third case, whch is of a Full Bench of Lahore High Court, Muhammad Afzal Lone, J., in his opinion, while relying upon the observation of the Supreme Court of Pakistan in the above case of Zia-ur-Rahman, held that there is no need to determine as to whether or not these amendments have the effect of altering fundamental character of the Constitution and that exercise of constituional power unduly or against the wishes of the people is a political question which cannot be subjected to judicial review. (b) Mr. A A. Fazeel, in addition to the above cited cases, has referred to Che following cases:- (i) Ktiawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others, reported in PLD 1988 Lahore 725, relevant at page 798. (ii) Fauji Foundation and another v. Shamimur Rehaman, reported in PLD 1983 SC 457, relevant at para 122, page 579. (iii) Rolla W. Coleman WA. Barron, Claude C. Bradney et el., v. Clarence W. Miller, as Secretary of the Senate of the State of Kansas, et al {3ff? l V3L 433), relevant at 454. (iv) 1983 Harvard Law Review 386 relevant 404-405. (v) 37-Harvard Law' Review 338 at page 344. (c) Mr. Nasim Faruqui has also relied upon the above cited case of Rolla W. Coleman v. Clarence W. Miller (307 U.S. 433) and has also referred to the term "Political question" defined in Ballentine's Law Dictionary in the following words:- "A question, the determination of which is a prerogative of the legislative or executive branch of the government, so as not to be appropriate for judicial inquiry or adjudication. 20 Am J 2d Cts L 80. It would be difficult to draw a clear line of demarcation between political and non-political questions, but among the questions which haw been recognized as political rather than judicial in nature, none comes more clearly within the former classification than those which involve the propriety of acts done in the conduct of the foreign nations with oar government. Z. & F. Assets Realization Corp. v. Hull, 72 App DC 234, 114 F2d464." (d) Whereas, Mr. Rasheed A. Akhund, has submitted that the above Rolla W. Coleman v. Clarence W. Miller was overruled in the case of Charles W. Baker V. Joe C. Can. (U.S. Supreme Court Reports 7 L ed 2d 663) relevant at Headnote 19 at page 682. He has also relied upon the case of Federation >ef Pakistan and others v. Haji Muhammad Saifullah Khan and others, reported » PLD 1989 SC 166, relevant at pages 209 and 211. It is not necessary to refer to Ac various cases cited by Mr. Ali Ahmed Fazeel, but it will suffice to observe that in the above Fauji Foundation's case in para 122, the above question has beat touched upon by Muhammad Haleem, CJ, in the following words:- "122. On principle there is no distinction between an Act and as both are the product of the exercise of legislative power. leads to the same conflict if it were to be struck down &a the ground i malafides, a contingency which has been strongly depricated for the aft embracing reasons in the aforementioned decisioin. In Zia-ur-Refamffli?s case, Hamoodur Rahman, CJ., expressed himself alike at page 77'Qf tfcej report, "With political decisons or decisions on questions of pofiey, tfe judiciary is not concerned. Its function is to enforce the Constitution aad to see that the other organs of the State confine themselves within the limitations prescribed therein." The cases and the law reviews of the foreign jurisdiction referred to by Mi A A. Fazeel are in line with the above quoted observation of the Supreme Court of Pakistan. I may observe that Mr. Rasheed A. Akhund's contention that the case of ' Rolla W. Coleman v. Clarence W. Miller was overruled by the case of Charigs JJ5 " Baker V. Joe C. Carr, seems to be incorrect as there is no such indication in tnej 4 above cited case. According to Mr. Ali Ahmed Fazeel, the case of Rotta JK Coleman v. Clarence W. Miller in fact was relied upon in a subsequent case aftj 1983 Harvard Law Review 386) to the case relied upon by Mr. Rasheea A. AkhunA As regards the above case of Federation of Pakistan v. ffaji Mithamm SaifuUah Khan, it may be observed that Shafiur Rahman, J., after referring W certain cases of foreign jurisdiction, namely, India and USA, highlighted certain! provisions of the. Constitution which exclude the jurisdiction of the Court-l4 examine or to adjudicate upon the matters covered by the said Artdes, Articles 41(6), 48(2), 48(4), 69(1)(2), 236(2), 269(1), 269(2), 270(2), 270(4), 270-A(1), 270-A(2), and 280. In that context his Lordship made foi observations:- .. "As all Constitutional questions turn on whether power has bt«p| exceeded or abused, the judicial process is eminently suited to the ascertainment of relevant facts and the application of the law, or the Constitution to the facts so ascertained. The jurisdiction of the Court may be excluded by the Constitution itself and the following are the instances, of such exclusions in our Constitution:-" , I may observe that there is a distinction between a political case political question. A political case may be subject to adjudication by the Court but a sensitive political question may not be subject matter of adjudication. challenge to the Eighth Amendment on the ground that it was not according to the Constitution is not a political question and, therefore, it can-adjudicated upon though the case relatng to it may be termed as a political In contrast to it the question, what should be the balance of power inter between the President and the Prune Minister is a sensitive political question of the nature which is not suited for adjudication by a Court but can be resolved ^r the Parliament or by the people. 15.(a) Adverting to the consequences, which may ensue if I were to deplwe? Eighth Amendment as ultra vires or the Senate is declared as illegal body. Mr, SC M. Zafar, has submitted that the incumbents of the offices of the President, Prime Minister, Members of the Senate, Chairman and Vice Chairman of the Sen^e,"- would be affected and also some of the institutions, namely, present National Assembly as the seats were increased from 200 to 207 and the age of the voters was increased from 18 to 21 years, the Federal Shariat Court, High Court benches. Mr. Fazeel added the above list by adding Federal Ministers of State, Advisers, the Chief Ministers of Provinces, Provincial Ministers, additional seats for women hi the Provincial Assemblies, Chairman Public Service Commission, Joint Chief of Staff, CNC of the Armed Forces, the Chief Election Commissioner, etc., and on the other hand, Mr. Yahya Bakhtiar, learned Attorney General submitted that the incumbents of the offices of the President and the Prime Minister will not be affected by allowing the petitions to the extent submitted by him. Whereas, Mr. Abdul Mujeeb Pirzada and Mr. Rasheed A. Akhund have submitted that heaven would not fall if the writs are allowed. I may observe that the elections of 1988 on party basis were held on the basis of the amended Constitution, everyone has taken oath including the judges to protect the Constitution as was in force on the day of taking of oath. The said oath was taken by everyone after the Martial Law was lifted and the Fundamental Rights were restored. Incidentally I may mention that I and all other sitting judges of this Court were appointed during the Martial Law and, therefore, the first oath, which we had taken on 1.1.1986 under the Constitution, was of the amended Constitution. If I were to declare certain amended provisions of the Constitution as violative of the Objectives Resolution or of the basic structure of the Constitution, it would disturb the basis on which the present strucutre of the democracy is grounded. It will be difficult to demarcate a line, where to stop. The present legal edifice is based on the amended Constitution. If we take out some amended provisions, the superstructure of democracy built on it may collapse. For example, under Article 41(3) read with Second Schedule to the Constitution electoral college for election of the President has been made more representative by P.O. No. 14 of 1985 by providing that the Provincial Assemblies will also form part of the electoral college. If I were to hold the above amendment as illegal, it will affect the incumbent of the office of the President, which in turn will affect tie incumbent of the office of the Prime Minister as the President has nominated the Prime Minister under amended Article 91(2). It is true that the Prime Minister had obtained a vote of confidence but the challenge to the National Assembly can be thrown on the grounds that its seats by direct and indirect election have been increased and the qualifying age for a voter has been raised from 18 years to 21 years, by P.O. No. 14 of 1985, which deprived right of franchise to a sizeable voters between the age of 18 to 21 years. A number of other incumbents of other offices and a number of other institutions, who are not before us, will also be affected. This will be an unending process. In my view, there is no manageable standard or the objective standard available with this Court to decide, which of the amendments should be struck down and which of them should be retained. This is highly sensitive and politicized controversy, which has unfortunately assumed great significance in view of polarized and charged political climate obtaining in the country. In my view, it is a fit case where this Court should press into service, what Arvo Van Alstyne Kenneth Karst Jules Gerard in his aforesaid book terms "discretionary Technique". (&) The object of incorporating Article 270-A in the Constitution was to avert chaos and uncertainty; which might have ensued if such blanket cover would not have been provided, which is in line with the previous Articles, namely, 281 in the Interim Constitution and 269 in the 1973 Constitution. The luminary of. our judiciary like Hamoodur Rahman, CJ, inspite of the Supreme Court judgment in the case of Asma Jilani holding Yahya Khan as usurper did not hold that the aforesaid Articles 281 and 269 were not competently enacted or that the same had not provided cover to the laws made by the usurper. In my humble view, it will be appropriate that the questions, which have been raised in the present petitions, which are highly political in nature, as observed hereinabove, should be resolved by consensus of the people through the parliament or by other mechanism provided under the Constitution. If this Court is going to strike down any provision of the Constitution on the grounds urged, it may lead to disstability, uncertainty and chaos in the country. It would further deteriorate political climate. In my view, it is not a fit case, in which this Court should press into service its constitutional discretionary jurisdiction. 16. The upshot of the above discussion is that the petitions have no merit and, therefore, they are dismissed but there will be no order as to costs. - Before parting with the above discussion, I may record our gratitude for the valuable services rendered by Mr. Yahya Bakhtiar, learned Attorney General (who has appeared in response to the Court notice), the learned counsel for the parties and the two petitioners in person. Saiduzzaman Siddiqui, J.--I had the occasion of reading the judgment of my Lord the Chief Justice in the above cases. While I agree with the conclusion of my Lord, I would like my own reasons to go on record as they were recorded by me^ earlier to the reading of the judgment of my Lord the Chief Justice. 2. The above noted three Petitions are filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to challenge the validity of Constitution (Eighth Amendment) Act of 1985 as well as the election to Senate held in 1985 and continuation of Senate as a body under Article 59 of Constitution of 1973. For the sake of convenience, I will hereinafter refer, the Constitution (Eighth Amendment) Act of 1985 as "the Eighth Amendment" and the "Constitution of Islamic Republic of Pakistan, 1973 as "the Constitution", only, respectively, in this order. 3. The validity of Eighth Amendment and the election to the Senate and its continuance as a body under Article 59 of the Constitution is challenged by the Petitioners in the above cases on different grounds. It will, therefore, be advantageous to state here in brief the grounds of attack in each petition separately:- 4. Petition No. 76 of 1989 is filed by Mr. Abdul Mujeeb Pirzada, Advocate, a practising counsel of this court. The Petitioner who personally argued his case, advanced the following grounds of attack on the validity of Eighth Amendment and election to Senate and its continuation as a body under Article 59 of the Constitution. (i) That the present Senate having not been elected under the Constitution is an unauthorised body and as such its continuation and functioning as a body under Article 59 of the Constitution be declared as invalid. (ii) That the extension in the term of Senate from 4 years to six years by way of amendment of Article 59(3) of the Constitution through the Eighth Amendment is invalid as the said amendment was made by an unauthorised body. (iii) That in any case the election to Senate having taken place in March, 1985, four years term, as originally provided in Article 59(3) of the Constitution, expired in March, 1989 and, therefore, fresh election to Senate should have been held in March, 1989. The continuation of Senate as a body constituted under Article 59 of the Constitution after March, 1989 is, therefore, wholly unauthorised and against the provisions of the Constitution. (iv) That the Parliament which came into existence as a result of partyless election of 1985 was an unauthorised body, as partyless election held in 1985 amounted to negation of the parliamentary democracy conceived under the Constitution, and as such the amendments in the Constitution introduced by such an unauthorised body through Eighth Amendment were totally invalid which should be declared as such. (v) That in any case the Eighth Amendment had the effect of altering/changing the basic structure of the Constitution and as such for this reason also the Eighth Amendment is liable to be struck down. 5. The Petitioner in Petition No. 163 of 1989, who is also a practicing counsel of this court and argued his case personally, challenged the validity of Eighth Amendment on the sole ground that the Eighth Amendment was passed by the Parliament on a date when Martial Law was still enforced in the country and the Constitution was held in abeyance and as such the amendment was wholly without jurisdiction. According to Petitioner, at the relevant date the only authority competent to amend the Constitution was Late General Ziaul Haq who was vested with such authority under the judgment of Supreme Court in the case of Begum Nusrat Bhutto vs. Chief of Army Staff and others (PLD 1977 SC 657). 6. The last Petition No. 168 of 1989 is filed by one Haji Ahmed, whose learned counsel has raised following grounds of attack to the validity of Eighth Amendment and election to Senate and its continuation as a body under Article 59 of the Constitution. (i) That Late General Ziaul Haq was a usurper as he assumed power on 5-7-1977 by deposing a duly elected Prime Minister of Pakistan and as such all his acts and actions were unauthorised and only those actions and acts of the usurper could be condoned which fulfilled the test laid down in the case of Asma Jillani Vs. Government of Punjab (PLD 1972 SC 139). (ii) That in the alternative, limited mandate given to late General Ziaul A. MUJEEB FlRZADA V. FED. OF ISLAMIC REP: OF PAHSTAJT Haq (CMLA) by the Supreme Court in the case of Begum Nuaqff^ Bhutto Vs. Chief of Army Staff and others came to an end on 17-11-, 1979 when the late General deviated from his solemn pledge an4 undertaking given to the court to hold general election in the country; and in any case he turned into a usurper on 24-3-1981 whea he promulgated legislative measures in the form of PCO of 1981 which had the effect of abrogating the Constitution and as such att his future actions from the above dates are to be tested by the court on the doctrine of condonation as laid down in the case of Asm& Jillani Vs. Government of Punjab and all such acts and legislative measures of late General Ziaul Haq which did not conform to the test laid in the above case should be struck down as invalid. (iii) (iv) (v) That the late General Ziaul Haq was not a duly elected President under the Constitution, as he came to occupy that office as a result of Referendum of 1984 which was a fraud on the people of P; as the question" framed in that Referendum offered no choice to electorate which is the basic feature and characteristic of refrendum. Accordingly late General Ziaul Haq could not give assent to the Eighth Amendment Bill as President of Pakistan. That the general elections held in the country in 1985 on non-partjr<1 basis were against the spirit of Constitution and as such Parliament which came into existence as a result of that election wak^ an unauthorised body which was not competent to amend &e Constitution. Alternatively, it is urged that the Par liament even if-it - was validly elected had no mandate from the people to alter or , amend the Constitution and as such for this reason also it was not '" competent to amend the Constitution. That in any case the amendments introduced in the Constitution by, the Eighth Amendment had the effect of altering the basic structure , of the Constitution which the Parliament under no circumstances , was competent to do and as such it is liable to be struck down. (vi) That the power available to Late General Ziaul Haq either the decision of Supreme Court in the case of Begum Nusrat Bhutto , or under the Provisional Constitution Order of 1981, was exhausted on promulgation of P.O. No. 14 of 1985 on 2-3-1985 and as such I amendment in the Constitution, if any, could have been in accordance with the provisions of said P.O. No.14 of 1985. Eighth Amendment having not been made in accordance with provisions of P.O. No.14 of 1985 was invalid. For the same the promulgation of P.O. No. 20 of 1981 by Late General Ziaul Ha% -'"' was an invalid piece of legislation. ~f - > 1. The learned Deputy Attorney General who represented the Federation of Pakistan in the above cases, generally supported the contentions of the Petitioners in the above cases, though he simultaneously added that striking down Eighth Amendment as a whole would amount to rewriting of the Constitution-I the Court which cannot be done in exercise of the power of this court Article 199 of the Constitution. The learned Deputy Attorne suggested that as contended by the learned Attorney General, the court should examine each and every amendment introduced in the constitution by the Eighth Amendment and on the doctrine of condonation as laid down hi Asma Jilani's case strike down those amendments which did not fulfil the test laid down in that case. The learned Advocate General, Sind adopted the arguments of the Deputy Attorney General. 8. It will be appropriate at this stage to refer to the contentions of learned Attorney General, who appeared in the case on court notice as an amicus, before I take note of the arguments of the contesting Respondents in these cases. 9. The learned Attorney General firstly expressed the view that superior courts in Pakistan under Article 199 of the Constitution have the jurisdiction to examine the validity of a constitutional amendment made by the Parliament. In the view of learned Attorney General, the parliament in Pakistan, does not enjoy unfettered power to amend the Constitution. The learned Attorney General was of the view that parliament could not amend the Constitution in a manner which would alter or change its basic structure. Elaborating his argument further, the learned Attorney General contended that the power of parliament to amend the Constitution is circumscribed by the limitations mentioned in the Objectives Resolution of 1949, which is part of the preamble of the Constitution and as is also now made an operative portion of the Constitution hi the form of Article 2-A. The learned Attorney General contended, that the courts will not hesitate to strike down an amendment in the Constitution made by the parliament which comes in conflict with the Objectives Resolution. According to learned Attorney General the basic features of the Constitution are, its Islamic character, a federal structure based on parliamentary system of Government, and preservation of human rights in the form of Fundamental Rights. The learned Attorney General very frankly stated that it is not possible for him, here, to point out all those amendments which according to him, affected the basic structure of the Constitution or came in conflict with the Objectives Resolution, as it would require a stupendous task of analysing these amendments. The learned Attorney General, nevertheless, mentioned and criticised the amendments made in Articles 41, 46, 48, 58, 91, 94, 239, 242, 243 and 245 of the Constitution, in a bid to show that these amendments made serious inroads in the Islamic, democratic and parliamentary character of the Constitution which are the basic feature of the Constitution, and prayed that these amendments may be declared invalid. The learned Attorney General at the same time very fairly stated that it is quite .possible that upon examination of other amendments made in the Constitution by the Eighth Amendment, the court may discover that some of these amendments' have neither had the effect of changing the basic features of the Constitution nor they came hi conflict with the terms of Objectives Resolution, and as such these amendments will not be declared by the court as invalid. The learned Attorney General pointed out one such amendment made in the Constitution by the Eighth Amendment in the form of Article 2-A and stated that he is'not opposed to it. 8. Learned counsel for the Respondents who represented Senators in these cases, on the other hand, contended that if the Eighth Amendment is struck down by the court not only the old order will have to be declared invalid but the new dispensation which came into existence as a result of party based general elections held in November, 1988 will also have to give way. 9. Mr. S.M. Zaffar, one of the learned counsel who represented some of the Senators in these cases, opened the arguments on behalf of contesting Respondents, contended that the present parliament in the Centre and 4 Assemblies in the provinces, which came into power as a result of General Elections of 1988, are functioning under the Constitution as amended by-Eighth Amendment is sufficiently borne out from the fact that the present National Assembly consists of 207 Muslims members, ten minority seats and 20 reserved seats for women as against 200 Muslim seats, 6 minority seats and 10 reserved seats for women originally provided in Article 51 of the Constitution. Similarly, the present Senate consists of eighty seven members as against sixty three members provided originally in Article 59 of the Constitution. The present Prime Minister was nominated by the President in accordance with the amended Article 91 of the Constitution and she obtained vote of confidence on the basis of existing 231 members of National Assembly. Similarly the election to the office of President of Pakistan has also taken place on the basis of existing number of members of National Assembly, Provincial Assemblies and the Senate. It is accordingly contended that if Eighth Amendment is declared invalid besides the holders of these high offices several other elected offices in the parliament and Senate will also be affected which will lead to a choatic condition in the country. In reply to the arguments of learned counsel for the Petitioners that the Eighth Amendment in the Constitution has changed the basic structure of the Constitution, Mr. S.M. Zaffar, firstly contended that, no such effect has been produced by these amendments, and, secondly, the amendments in th Constitution having been made by the parliament which was elected by the popular vote of the majority of electorate, could not be brought under challenge before the court, except on ground of violation of the provision of Constitution applicable to amendments. Learned counsel further contended that insofar Pakistan is concerned, the theory of change in the basic structure of Constitution, enunciated in the well known Golak Nath's case (AIR 1967 SC 1648) by the Indian Supreme Court, has not been accepted by the Supreme Court of Pakistan and as such the learned counsel for the petitioners cannot succeed on the argument that the Eighth Amendment has the affect of changing the basic structure of the Constitution. In reply to the contention of the learned counsel for the petitioners that the Assembly which was elected as a result of non-party basis elections of 1985, was not competent to make amendment in the Constitution, as they had no such mandate from the people and that the non-party elections were contrary to the spirit of the'Constitution, Mr. S.M. Zaffar, contended that the nonparty elections were held at a time when fundamental rights were suspended, and, therefore, the law promulgated by the President/CMLA during that period | providing for election on non-party basis could not be held to be invalid on ground of violation of Fundamental Rights. The learned counsel alternatively urged that the general elections of 1985 had taken place in Fabruary, 1985 and the Government elected as a result of these partyless elections remained in power in the country for nearly three years without being challenged from any quarter. It is pointed out by the learned counsel that in fact when the Parliament and Assemblies elected in 1985 were arbitrarily dissolved by the President, the dissolution was held illegal which goes to show that the parliament and the Assemblies which were elected in the year 1985, as a result of general election, had the mandate of the people and were competent and legal bodies. With regard to the contention of the learned counsel for the Petitioners that the Supreme Court while holding dissolution of Parliament and Assemblies by the Pesident on 29th May, 1988, in the case of Federation of Pakistan Vs. Mohammad SaifiiUah Klian (PLD 1989 SC 166), as without lawful authority and illegal, refused to restore them on the ground that the partyless elections were not in consonance with the scheme of Constitution, Mr. S.M. Zaffar, contended that these observations by the court were made while considering the exercise of discretionary power under Article 199 of the Constitition, and as such it will be improper to interpret these observations as meaning that the elections of 1985 were invalid. 10. Mr. AA. Fazeel, another learned counsel for some of the Senators contended that as a result of the pronouncement of the Supreme Court in the case of Federation of Pakistan Vs. Ghulam Mustafa Khar (PLD 1989 SC 26), all laws enacted by the CMLA/President from 5-7-1977 to 29th December, 1985, were validated and the effect of validation, according to the learned counsel, is that the promulgation of such laws were also held to be competent. Mr. Fazeel also questioned the locus standi of the petitioners in these cases besides raising the question of laches and acquiesance. 11. Mr. Khalid M. Ishaque, another learned counsel appearing for some of the Senators, urged that where a Bench of this court has already taken a view on a particular controversy another bench of the court will normally not depart from that view. According to Mr. Khalid M. Ishaque in Mohammad Bachal Memon Vs." Gov. of Sind (PLD 1987 Kar. 296), a full Bench of this court has akeady pronounced upon the competency of legislature of 1985 and as such the present bench will not depart from that view. The learned counsel also urged that the results of elections of 1985 having been accepted by the people the court cannot adjudicate upon it and declare it as invalid. Replying the contention of Petitioners that partyless elections are negation of concept of democracy and parliamentary system, Mr. Khalid Ishaque referred to the opinion of some modern authors and .contended that there has been a lot of re-thinking on the subject and serious doubts have been expressed on the usefulness and efficiency of political parties in a democrtic system of Government and there is a clear leaning for inclusion –of intellectuals in the system as against party politicians. 12. Mr. Sabihuddin, Advocate, for some of the Senators contended that holding of partyless elections cannot be termed as violation of any constitutional provisions as they were held under P.O. 5 of 1977 which was a sub constitutional legislation. The learned counsel urged that at the time 1985 elections were held, emergency was enforced in the country and as such under Article 233 of the Constitution the parliament was competent to make law contrary to fundamental rights. It is accordingly contended by learned counsel that even if the holding of partyless elections is held to be contrary to the provisions of rticle 17 of the Constitution, it could not be declared invalid by the courts, as on the relevant time Article 17 of the Constitution stood suspended. It is also contended by the learned counsel that the rules laid down in the case of Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416) will apply prospectively and not retrospectively so as to affect the past elections of 1985. 13. Mr. Obaidur Rehman for Intervenor contended that Senate is a 15. At this stage I may also mention here that the learned counsel for the Petitioners initially took the stand that the entire Eighth Amendment is to be struck down as unconstitutional and invalid, but after hearing the arguments of the learned Attorney General and Deputy Attorney General and the learned counsel for the contesting Respondents, they did not press for striking down of the Eighth Amendment as a whole. Mr. Mujeeb Pirzada, while exercising the right of reply stated that he is only challenging the validity of elections to Senate and its continuation as a body under Article 59 of the Constitution and Mr. Rashid Akhund, fell in line with the views expressed by the learned Attorney General hen he stated in reply that all the amendments introduced in the Constitution by Eighth Amendment need not be struck down and only those be declared invalid which are foun.I by the court on examination 1 that they altered or changed the basic structure of the Constitution. 16. In order to comprehend the controversies raised in the above Petitions it will be useful to state here hi brief some of the important events which took place between the period from 6th July, 1977 to November 1988, which not only had the effect of changing the course of our national life more than once during this period, but also led to the resolution of numerous legal and constitutional controversies in Superior courts of the country, which greatly influenced the existing political process in the country. On 5th July 1977, the then Chief of Army Staff Gen. Ziaul Haq, deposed Mr. ZA. Bhutto, the then Prime Minister of Pakistan, proclaimed Martial Law in the country, dissolved the National Assembly, the Senate and the Provincial Assemblies and assumed power under CMLA Order No. 1 of 1977, known as the Laws (Continuance in Force) Order 1977. The proclamation of 5th July, 1977 and the CMLA Order No. 1 of 1977 was brought under challenge in the case of Begum Musrat Bhutto Vs. Chief of Army Staff and others (PLD 1977 SC 657). The court after examining in detail the events which preceded the proclamation of Martial Law in the country by the Chief of Army Staff on 5th July, 1977, and promulgation of CMLA Order 1 of 1977 held that the proclamation of Martial Law by the Chief of Army Staff was an extra constitutional step necessitated by the complete break down and erosion of the constitutional and moral authority of the Government of ZA. Bhutto as a result of the unprecedented protest movement launched by the PNA. The imposition of Martial Law in the country in this background was validated on the doctrine of necessity and the Chief Martial Law Administrator was held entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by the judicial authorities within the scope of law of necessity, namely, all acts and legislative measures which are in accordance with or could have been made under the Constitution including the power to amend it; all acts which tend to advance or promote the good of the people; all acts required to be done for the ordinary orderly running of the State and all such acts as would establish or lead to the establishment of the declarqd objectives of the proclamation of Martial Law$ namely, restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections for the purposes of restoration of democracy under the Constitution. That the aforementioned acts could be performed or carried out by the CMLA by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders as the occasion may require. 17. Soon after the above decision in Begum Nusrat Bhutto's case various constitutional appointments made by CMLA and some legislative measures adopted by him for arranging the forthcoming general elections ia the country were again brought under challenge before the Supreme Court in the case of ZA. Bhutto Vs. State (PLD 1978 SC 40) on the ground that these appointments and legislative measures were violative of the provisions of the Constitution and tlie rule laid down by the Supreme Court in Begum Nusrat Bhutto's case. The Supreme Court while repelling the contentions of the Petitioner explained the effect of Begum Nusrat Bhutto's case as follows at page 59 of the report:- "K seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend, on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution. Viewed in this perspective, the Post Proclamation Presidential Orders Nos. 3,4 and 5 clearly fall within the objectives for which Martial Law was imposed in the country on the 5th of July, 1977, to ensure tne restoration of democratic institutions under the Constitution. As the Constitution, unfortunately, does not contain any provisions for meetiag the unprecedented situation which we are considering here, the President, on the advice of the Chief Martial Law Administrator, was clearly not only competent, but also under a solemn obligation, to take steps to ensure fresh elections. In these circumstances, it is not for the Court to substitute its own opinion as to the arrangements necessasry to be made in this behalf; all that the Court is to examine is whether the contemplated measures reasonably fall within the objective in question. We have already said enough to show that the three Presidential Orders in question are directly intended to achieve one of the most important objectives of the imposition of Martial Law. Their validity cannot, therefore, be questioned on the ground that they are not necessary. The Court would be traversing outside the scope of the powers of judicial review in dictating to the Government the procedural and administrative details necessary for the holding of the forthcoming elections such as the - number of Members of the Election Commission." After decision of the Supreme Court in the case otZA Bhutto Vs. State the then President of Pakistan Mr. Fazal Ellahi, who continued to hold office even after proclamation of Martial Law hi the country under the proclamation of 5th July, 1977, resigned from his post. This led to the issuance of P.O. No. 13 of 1978 % CMLA which provided for filling in the vacancy of President in event of death, physical or mental incapacity, resignation or by reason of incumbent of that office relinquishing charge of office or for any other reason, before election of the President under the Constitution, by the Chief Martial Law Administrator or such other person designated by him. The vires of P.O. No. 13 of 1978 was challenged before a Division Bench of Lahore High Court in the case of Ghulam Jiltani Vs. Province of Punjab (PLD 1979 Lahore 564} but the court found it valid on the basis of the rule laid down in Nusrat Bhutto's case. On 27th May, 1980 P.O. No. 1 of 1980 was issued by the President which amended Article 199 of die Constitution, tatting away the power of High Courts to judicially review the actions of Martial Law Authorities or to examine or pronounce upon the validity or effect of any Martial Law Regulation, Martial Law Order, made by CMLA or MLA, besides introducing Chap. 3-A in Constitudon which provided for establishment of Federal Shariat Court. This P.O. No. 1 of 1980 came up for consideration before a Full Bench of this court hi the case of Haji Abdullah Vs. Presiding Officer, Summary Military Court (PLD 1980 Kar. 498) of which I was one of the members and the court by majority ruled in that case that the amendment made in Article 199 of the Constitution being of a temporary and transitory nature applicable only during the period of constitutional deviation and the said amendments not having the effect of totally destroying the power of the court under Article 199 of the Constitution, were valid in view of the decisions in the cases of Begum Nusrat Bhutto Vs. COAS and Z.A Bhutto Vs. State. Some time after promulgation of PO No. 1 of 1980 the Provisional Constitutional Order (CMLA's Order 1 of 1981), popularly known as PCO of 1981 was pomulgated by the President on 24th March, 1981. The PCO of 1981 though adopted certain provisions of the Constitudon of 1973 as declared in its Article 2. But in practice it sought to do away with the effect of the decision of Supreme Court in the case of Begum Nursta Bhutto Vs. COAS and provided for new dispensation in the country in accordance with the provisions of this Order. The effect and validity of the PCO of 1981 came to be examined in several cases before the High Courts and the Hon'ble Supreme Court and I will presently refer here some of these cases. In the case of Dr. Mohammad Ifyas Dobas Vs. Punjab Tribunal and others (1982 SCMR 562) the Supreme Court had granted leave to appeal to examine the interpretation of section 4 of the Services Tribunal Act, 1973 and MLR-23 clause (2). The matter came up before the court after enforcement of PCO of 1981, the then Acting Chief Justice (now the present Chief Justice of Pakistan) who expressed the opinion on behalf of the court while dismissing the petition as not maintainable on account of promulgation of P.C.O. observed as follows:- "Under the present dispensation, namely, the Provisional Constitution Order of 1981, any challenge to an order passed by the Martial Law Administrator is not entertainable in view of clause (2) of Article 15. Therefore, any submission in regard to the validity of the order of compulsory retirement is beyond the pale of challenge." Similarly in Mohammad Haroon Vs. District Food Controller (1982 SCMR 551) about 19 Constitution Petitions were filed by different persons to challenge the termination of their appointment as Depot holder under Martial Law Instruction No. 22, issued by MLA, Zone A. The High Court of Lahore dismissed the petitions as not maintainable under Article 15 of PCO. Nasim Hasan Shah, J. who expressed the opinion on bahalf of court while dismissing the petition fof leave to appeal observed as follows:- "It is clear, therefore, that the said Instruction is a complete code on the subject and action taken by the authorities mentioned therein is to be construed to be action taken under the said Instruction, which as already pointed out, is, in effect, a "rule" framed by a Martial Law Administrator. Hence action taken thereunder would fall under Article 15 of the Provisional Constitution Order, 1981, which provision ousts the jurisdiction of the High Court impugned before us cannot be excepted to. 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 Instructions No. 22 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 Ishaq (Petitioner in C.P.S.LA No, 184/82) for instance the said petitioner's authorisation was cancelled Pending Proceedings Order, Martial Law Order 107 was promulgated by the President. The National and Provincial Assemblies thus elected as a result of 1985 election, continued to function under the Constitution until they were dissolved by the President on 29-5-1988. On 29th May, 1988 General Ziaul Haq, as President of Pakistan, dissolved the National Assembly by an order passed under Article 48(2) of the Constitution and simultaneously Provincial Assemblies were also dissolved by the respective Governors of the four provinces. On 20th July, 1988 late Gen. Ziaul Haq announced that general elections will be held in the country on 16th November, 1988. The late Gen. Ziaul Haq, however, died in an air crash, on 17th August, 1988 and in accordance with the provisions of the Constitution the then Chairman of the Senate Mr. Ghulam Ishaque Khan was sworn in as tke President of Pakistan. Elections to the National and Provincial Assemblies were held as announced and power was transferred to the elected representatives both in Center and in the provinces which are functioning after taking oath under the Constitution. In the meantime, before the general elections of 1988, the dissolution of National Assembly and the Provincial Assemblies by late General Ziaul Haq and the Governors respectively was challenged before a Full Bench of Lahore High. Court in the case of Muhammad Saifuttah Vs. Federation of Pakistan (PLD 1988 Lah. 725) and the court unanimously held that dissolution of National Assembly and the Provincial Assemblies by the President and the Governors was without lawful authority but at the same time the court refused to restore the Assemblies on the ground that the elections to the National and Provincial Assemblies had already been announced and all preparations for holding of these elections have been made and people are read^ to exercise thier right of vote. The above decision of Lahore High Court was challenged before the Supreme Court by the Federation of Pakistan but the appeal was dismissed which is reported as Federation of Pakistan vs. Mohammad Saifullah (PLD 1989 SC 166). In the above stated background I now proceed to consider the contentions of the parties in the above cases. The main and basic question which requires determination in my view, in the above cases, in the light of the contentions of the parties, is, who made the Eighth Amendment in the Constitution and whether the person or the body introducing the Eighth Amendment in the Consitution was competent. Should, the answer to the later part of the above controversy be in the affirmative, the further question which is convassed by the petitioners before us and which requires determinatin is, whether by introducing Eighth Amendment in the Constitution the person or the body introducing it exceeded or contravened any accepted norm or principles governing the power to amend the Constitutional provisions. However, if the answer to the competency of maker of Eighth Amendment is returned by the court in the negative, then the natural consequences, both according to petitioners and the learned Attorney General, would be that the court will condone only those amongst the various amendments introduced in the Constitution by the Eighth Amendment, which fulfilled the test laid down in the case of Asma Jillani vs. Govt. of Punjab. I will take up the first part of the basic controversy in the cases mentioned above, namely, who made the Eighth Amendment in the Constitution. In my opinion the answer to this question is fully furnished by the decisions in the cases of Federation of Pakistan V. Ghulam Mustafa Khar (PLD 1989 SC 26), Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669) and Mohammad Bachal Memon Vs, Govt,ofSind (PLD 1987 Kar. 296). The detailed discussion in the above noted three cases, regarding validity of Article 270-A of the Constitution passed by the Parliament elected in 1985, leaves no room for any doubt that the Eighth Amendment in the Constitution was introduced and passed by the parliament which was elected as a result of general elections of 1985. This brings me to the second limb of the main controversy in the cases, namely, whether the Parliament elected in 1985 was a competent body. The main thrust of the arguments of the learned counsel for the petitioners jointly, in the above cases, is that the scheme of our constitution does not permit holding of partlyless elections and as such the elections which were held in 1985 and in which political parties were not allowed to take part were invalid and as a consequence thereof, the parliament and the Assemblies which came into power as a result of these partyless elections were unauthorised bodies. In support of the above argument the learned counsel for the petitioners relied on the case of Miss Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and particularly on the following observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Mohammad Saifullah Khan (PLD 1989 SC 166): "In our context what is important, is that the restoration of a National Assembly and Provincial Assemblies which were brought into the existence by materially departing from the essential feature of our own constitutional set up cannot be allowed to take place. As we all know these Assemblies were brought into existence as a result of partyless elections. As early as in the. year 1959, the Constitution Commission of our country had pointed out that "as long as it is the representative form of the Government that has to be worked we fail to see how political parties can be avoided". Justice SA. Rehman, observed in the case of AbulA'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) that "In a democratic set up such as is visualised by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today maybe the Government of tomorrow". In judgment of this court of Miss Benazir Bhutto the following observations made by each of the learned Judges recording an opinion are relevant:- Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority It is a party system that converts the results of a Parliamentary election into a Government." (Muhammad Haleem, CJ.) (ii) It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governings of Pakistan through political activity relating thereto. (MA. Zullah, J.). (iii) Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and without a destination. It is only when they band themselves into a group, as a party, that they become a force exercising some influence by their activities. It is only as members of a political party and not an individual member of the legislature; can they achieve their objectives. (Nasim Hasan Shah, J.). (iv) The right to form, and be member of, a political party, is an indispensable political tool for the effective use of the process of a democrtic Government. Besides, the right is vital for the maintenance of other democratic rights like the right to practice one's profession etc. It is often said that Government by public opinion involves the right to create and organize opinion with a view to influence the conduct of Government,, or to bring about a change in the Government. (Abdul Kadir Shaikh, J.). (v) It is conceded on all hands and is so recognized in the Consitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself. (Shafiur Rehman, J.). (vi) The expression 'political justice' is very significant and it has been placed in the category of fundamental rights. Political parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly our Constitution is a Federal Constitution based on the model of Parliamentary form of representative Government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government. (Zaffar Hussain Mirza,!.). It will be clear from the foregoing observations that Partyless elections are not in consonance with the Scheme of our Constitution and when this Court is possesed of a discretion, or a choice whether to revive, restore or perpetuate by resuscicating such Assemblies, the Court will stand for constitutionalism rather than departures and deviations from it and refuse to restore them." Before dealing with the above common argument of petitioners in these cases, regarding validity of elections of 1985 I would like to deal with another objection raised by the petitioner in petition No. 168/1989 regarding the validity of elections of 1985. It is contended by the learned counsel for the petitioner in Petition No, 168/1989 that the assumption of power by late Gen. Ziaul Haq on 5-7-1977 was an act of usurption of power. Alternatively, it is urged by the learned counsel that even if i( is found by the court that assumption of power by the late General was validated by the Supreme Court hi Begum Nusrat Bhutto's case the limited mandate given to late General came to an end when he deviated from his solemn pledge given to the court for holding free and fair election in the country and came out with legislature measures in the form of P.C.O of 1981, which virtually abrogated the Constitution. It is accordingly contended that the parliament and the Assemblies elected on non-party basis in the general elections of 1985, under the rule of a usurper could not be treated as validly constituted bodies. While narrating some of the important events in the country between the period from 5th July, 1977 upto the holding of general elections of 1988, in die earlier part of this order, I not only mentioned the various legislative measures taken by late Gen. Ziaul Haq (including promulgation of P.C.O. of 1981), during | the above period, but I also referred to some of the cases decided by the superior I courts in Pakistan, in which the validity of these legislative measures was tested {and upheld. In these circumstances, I .am of the view that it is no more open to argument that late Genl. Ziaul Haq was usurper or that his acts and legislative | measures should be looked upon as an act of usurper and tested and codoned oa i the principles laid down iaAsma Jillani's case. The attempt of the learned counsel for the petitioner to draw a parallel between the facts and circumstances ofAsma Jillani's case and Begum Nusrat Bhutto's case is difficult to assimilate. In Asma Jillani's case the Supreme Court held General Mohammad Yahya Khan as a ('usurper and abrogation of 1962 Constitution by him as illegal. The situation in \Begutn Nusrat Bhutto's case was, however, different. In the later case, the j Supreme Court not only found that the assumption of power by late Gen. [Mohammad Ziaul Haq on 5-7-1977, was valid on the doctrine of necessity but ft also,held that he was entitled to perform all such acts or legislative measures which could have been done or performed under the Constitution of 1973 including the power to amend the Constitution, by way of Presidential Orders, Ordinances, Martial Law Regulations or Orders, besides taking all such acts and measures which were necessary for ordinary orderly running of the State and to achieve the declared objectives of proclamation of Martial Law, namely, restoration of law and order and normalcy in the country and the earliest possible holding of general elections. The fact that the late Genl. Ziaul Haq did not keep his commitment made to the Supreme Court in Begum Nusrat Bhutto's case is neither open to be decided by this court 'in the present proceedings, nor in my opinion, it is of any consequence or relevance in the present circumstances when the country is run by the duly elected Government both in the Centre and the provinces. Similarly, the AG validity of P.C.O. of 1981 and other subsequent legislative measures taken by late Gen. Ziaul Haq are not open to any challenge now as these measures were not only upheld by the superior courts, including Supreme Court of Pakistan, ia various cases referred by me earlier in this order, but fuH i legislative measures ia court proceedings. With regard to the contention of learned counsel that the general elections of 1985 were held during the rule of a usurper and, therefore, they were not valid, it -• will suffice to say here that in view of what I have said above, it cannot be said that the general elections of 1985 were held under the rule of a usurper. However, if I assume only for the sake of argument in the case, that the elections of 1985 were held by a usurper, the result would not be different, as it cannot be denied that when a civilian Government is deposed or overthrown by a military dictator, the j only recognised peaceful means to revert to the civilian rule, is through use of ballot, even though such exercise is to be undertaken under the agis of the military dictator or usurper. It will be pertinent to mention here that in the case otAsmal Jillani the Supreme Court though held General Mohammad Yahya Khan to be a j usurper but the general elections of 1970 in the country held under his rule and I under the legislative measures promulgated by him, were not declared invalid. I therefore, find no substance in the submission of learned counsel for the petitioner in petition No. 168/1989, that late Gen. Ziaul Haq was a usurper and that the National and Provincial Assemblies elected during his rule in pursuance of the legislative measures enforced by him in 1985 were incompetent and invalid. I now proceed to examine the other limb of the joint contention of the petitioners that the partyless elections of 1985 were invalid as they were opposed to the scheme of the Constitution. In support of this contention, the petitioners have relied on the case of Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and the observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Muhammad Saifullah Khan (PLD 1989 SC 166). In the case of Benazir Bhutto vs. Federation of Pakistan, the petitioner who was co-Chairperson of a political party had challenged the validity of various provisions of Political Parties Act, 1962 as amended, before the Supreme Court. The Supreme Court while holding some of the provisions of Political Parties Act, 1962 as wholly void and others partially invalid finally concluded as follows:- "In the light of what has been held in this judgment the following provisions of the political Parties Act, 1962 are declared and held to be void to the extent stated; on account of being inconsistent with the Fundamental Right, enshrined in Article 17(2) and (3) of the Constitution: (1) Section 3(1) in so far as it relates to and includes therein the disability regarding "security of Pakistan"; "morality"; and, "maintenance of public order" have been upheld in the manner explained in the relevant parts of the judgment. The remaining part of section 3 is upheld. (2) Section 3-A has been upheld at the place and in the manner explained in that context. But the penalty under section 6(1) arising therefrom by its insertion therein is void and it has been held so accordingly. (3) Section 3-B has been declared void in its entirety. (4) Section 3-C as explained, having outlived its purpose, is no more the subject-matter for any further order. (5) Section 6(1) in so far as it relates to and includes therein, the references to; "security of Pakistan" and "the contravention of the provisions of section 3-A, is void. However "Islamic ideology"; "morality"; and, "maintenance of public order" have been upheld; in the manner explained in the relevant parts of the judgment. (6) The remaining parts of section 6 including subsection (2) thereof have been upheld. Except that the provision regarding the dissolution of a political party upon the "publication" referred in subsection (1) has been held as void; subject of course, to the possibility of the re-enactment of a provision regarding the same subject, which was indicated in the relevant part of the judgment, should not offend against Article 17(2). (7) Regarding, sections 7 and 8, it has been held that in view of the decision in respect of the other provisions of the Act, it is for the legislature to amend them and nothing need be said about then- vires, except for the comment made." During the course of discussion in the case which preceded the final conclusion of the court reproduced above, the existence of political parties in a democratic parliamentary system of Government, which was found to be the feature of our Constitution, was fully acknowledged and recognized, and, accordingly, the provisions of Political Parties Act, 1962, which were found to have affected the right of participation of political parties or curtailed then- role, in the process of election were declared invalid on the touchstone of Article 17 of the Constitution, which guaranteed freedom of Association. In my burnable view the Supreme Court in the above case was examining the provisions of a sub-constitutional legislation which affected and curtailed the rights of a political party to participate in the process of elections, in juxtaposition with the provision of Article 17 of the Constitution, which guaranteed the right of Association, on a date when the said Article in the constitution was fully operative on account of withdrawal of Martial I Law from the country and restoration of Fundamental Rights. The observations of the Supreme Court in the above case, therefore, are to be interpreted and I understood in the context of the controversy which was before the court. These I observations, in my humble opinion, cannot be used as an authority for declaring j the partyless elections of 1985 as invalid. It is not disputed before us that elections | in 1985 were held in the country when Fundamental Rights stood suspended. The 1 elections of 1985 were held under P.O. 5 of 1977 as amended, which prevented Apolitical parties to participate in the general elections in the capacity of political 'party. Therefore, holding of partyless elections of 1985 could at best be treated as 'violative of Article 17 of the Constitution, which at the relevant time stood ; suspended and, therefore, no recourse was available to an aggrieved party to it. I jam therefore, of the view that by arranging a partyless election in 1985 no 1 constitutional breach was committed and the observations of Supreme Court in ; the case of Benazir Bhutto vs. Federation of Pakistan cannot be used as an : authority for holding the elections of 1985 as invalid. I now turn my attention to the observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Muhammad Saifullah KJian which is mainstay of the arguments of petitioners. Firstly, I may respectfully point out here, that 10 out of 12 learned Judges who constituted the bench in the above case shared the views expressed hi the opinion of Nasim Hasan Shah, J. which did not contain the observations relied by the learned counsel for the petitioner. Out of the remaining two learned Judges, Usman Ali Shah, J, did not record any separate note but agreed with the opinion of Shafmr Rehman, J. It is, therefore, quite clear that the observations made by Shafmr Rehman J, reproduced above, cannot be regarded as the opinion of full court. The opinion of Shafiur Rehman J, in the circumstances, was the opinion of only two learned Judges out of twelve who constituted the bench in the above case. Apart from it, as I earlier pointed out, the observations of Shafiur Rehman J, relied by the petitioners are to be interpreted and understood hi the context of the issue before the learned Judge. These observations were made by the learned Judge as one of the considerations for not allowing restoration of Assemblies in exercise of discretionary power of the court under Article 199 of the Constitution, inspite of the fact that the court had declared the dissolution of Assemblies as unconstitutional. It may be mentioned here that insofar the dissolution of Assemblies on 29-5-1988 was concerned, the full court, including Shafiur Rehman and Usman Ali Shah JJ., was unanimously of the view that then- dissolution was illegal. In the above circumstances, in my humble view, it is not correct to argue that in view of the above quoted observations of Shafiur Rehman J, in the case of Federation of Pakistan vs. Mohammad Saifullah KJian, the partyless elections held in 1985 shall be deemd to have been declared as invalid. On the contrary, I am of the view that the Supreme Court having unanimously held the dissolution of Assemblies, which came into existence as a result of partyless elections of 1985, as Ulegal and unconstitutional in the case of Federation of Pakistan vs. Mohammad Saifullah Khan, tacitly accepted their validity, for only in the case of a validly constituted body its dissolution could be declared illegal and unconstitutional. The question of competency and validity of the Assemblies elected in the general elections of 1985, in my humble view, otherwise, cannot be raised any further, in view of the decisions in the cases of Ghulam Mustafa Khar vs. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669); Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and Federation of Pakistan vs. Ghulam Mustafa Khar (PLD 1989 SC 26). In the first noted case the question of validity and competency of Assemblies elected in 1985 was directly raised before a bench of Lahore High Court consisting of five learned Judges of that court. Mohammad Afzal Lone, J, who spoke for the court in the case dealt with the objections relating to validity and competency of Assemblies elected in 1985 as follows:- "64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to the competence of the Parliament to pass the Constitution (Eighth Amendment) Act 1985 whereby Article 270-A was incorporated in the Constitution. The first part of his argument is founded on the observations made in Begum Nusrat Bhutto's case, requiring the Chief Marial Law Administrator to hold free and fair elections, hi terms of the 1973 Constitution. It is contended that the present Parliament has been installed through a process of election held on non-party basis, whereby the political compaign was restricted, discussion on fundamental issues prohibited; by importation of arbitrary disqualifications of the candidates, in the Election Laws, the categories of the candidates were limited; there was also a ban on propogation of any meeting of public nature for seeking support in favour of any candidate was an offence and, thus, it was practically made impossible for the candidates to project their view point before the public. Resultantly, the candidates were elected on "Baradari Basis". It was pointed out that the Election Laws were drastically amended to change the complexion of the election. In this behalf the learned counsel invited our attention to the amendments made in the Representation of the People Act, 1976 and the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. It is not necessary to give here the details of such amendments. Reference was also made by the learned counsel to Martial Law Regulations Nos. 33 and 48. As a result of these Regulations, convassing or campaigning of policial parties was prohibited. In this view of the matter the learned counsel concluded that the election, in consequence whereof the present Parliament came into existence cannot be treated to have been held under 1973 Constitution. 65. 66. 67. The general elections, under challenge, were held under the Houses of Parliament and Provincial Assemblies (Elelctions) Order, 1977. Article 24 of the Order, to which our attention has been drawn by the learned Attorney General provides that the election held under the said Order "shall be deemed to have been held under the Constitution and shall have effect accordingly 1 . This Article rather the Order itself, and other connected laws were examined by the Supreme Court in Zulfiqar Ali Bhutto's case and it was held. " ................ It will be seen that from a persual of the Post-Proclamation Order No. 5 of 1977 read with Post-Proclamation Order No. 4 of 1977, it becomes abundantly clear that the forthcoming elections are not covered by any provision of the 1973 Constitution nor, indeed, could they be so covered as the situation arising in March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was an unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessasry to make special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites that these provisions were being made in an endeavour to restore the principles of democracy whereunder the State of Pakistan exercises its power and authority through the chosen representatives of the people. It is in the same spirit that Article 24 of the Order lays down that the elections held under this Order shall be deemed to have been held under the Constitution and shall have effect accordingly. Without this deeming provision the resulting Legislatures could not function under the 1973 Constitution, but to our mind the deeming provision contained in Article 24 of this Order, cannot attract, in terms of the provisions contained in Chapter 1 of Part VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that Chapter. The deeming clause is to come into operation only after the elections have been held and the Prime Minister etc. have been elected " We feel that these observations furnish an effective answer to the petitioner's objection that the elections were not held under 1973 Constitution. The elections have been held, Prime Minister elected and a Cabinet formed. The country is being run by the civilian Government for the last over two and half years. Article 24 ibid, therefore, in terms of the Supreme Court Judgment, is operating with full force. Article 270-B of the Constitution also ordains that elections held under the Houses of Parliament and Provincial Assemblies (Elections) Orders, 1977 shall be deemed to have been held under the Constitution. 68 .................... 69. In February, 1985, when general elections were held, country had already endured Martial Law for more than 7 and half years. It is true that during this period political activities through the medium of political parties, and so also the public meetings and debates, which are so vital for proper working of a parliamentary democracy in all possible areas, remained banned. The Fundamental Rights also remained suspended. However, shortly before the elections, the Chief Martial Law Administrator made some relaxation, inasmuch as under M.L.O. 102, promulgated on 12th of June, 1985 holding of close door meetings close door conferences and publication of hand-bills for enlisting the support of the elections was permitted. When the elections were held the country was passing through a very crucial stage of transfer of power from a Martial Law Regime to a civilian Government. The law promulgated and measures adopted by the Chief Martial Law Administrator, for holding the elections, need be examined in this background. As per dictum of the Supreme Court in Zulfiqar Ali Bhutto's case this Court cannot substitute its opinion as to the arrangements made by the Chief Martial Law Administrator for holding the elections and all that is to be seen, is that such arrangements should reasonably fall within the objectives of the Martial Law. Speaking broadly the elections were held in an atmosphele . not charged with any upheaval and civil strife. The consent of the governed is the foundation of the democratic Institutions. It can well be said that such a consent was adequately conveyed by the people during the general elections and can constitute an implied mandate." The appeal against the above order of Lahore High Court filed before the Supreme Court by the Federation of Pakistan was dismissed and the order passed by the Lahore High Court was maintained. The decision of Supreme Court in appeal is reported as Federation of Pakistan Vs. Ghulam Mustafa Niar. The learned counsel for the petitioners, however jointly contended that the question regarding competency of parliament was left open by the Supreme Court, in the case of Federation of Pakistan Vs. Mohammad Saifullah Khan and in support of their contention they relied on the following observations of the court: "16. During the course of hearing of these matters, Mr. Abdul Mujib Peerzada, who appeared for the petitioner in C.P.S.LA. No. 429-K of 1981, raised the plea that the Parliament was not competent to enact Article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the time being and thus no elaborate arguments were addressed on this plea. I would therefore refrain from expressing any views on it." The learned counsel for the petitioners while relying on the above quoted observations overlooked the observations made in the same case in pa/agraph 19 which are as follows: "19. So far as the question relating to the validity of the laws and the competency of the makers thereof is concerned, there can be no quarrel with the proposition convassed by the learned Attorney General. By declaring that all laws, brought on the statute book during the period of the Martial Law, had been made validly and by a competent authority, and, further by adopting and affirming the same the intention of the Parliament clearly was to obviate all possible objections with regard to theu: validity or the competency of the markers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor the Lahore High Court took a contrary view on this part of the learned Attorney General's argument. But then in the matters before us we are not concerned with the validity of the said laws or the competency of the makers thereof-or for that matter, with their future operation after the revival of the Constitution. These questions were "raised and dealt with in another judgment of this Court which has been reported as Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). On the other hand, the issue before us is of a limited nature, that is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held while the Martial Law was in force, can be reviewed by the Superior Courts in exercise of the Constitutional jurisdiction after the lifting of the Martial Law and the revival of the Constitution." I may here also respectfully quote the relevant passages from the leading judgment of Mojiammad Haleem C.J., in the case of Benazir Bhutto vs. Federation of Pakistan which is referred in the above quoted passage and which dealt with the question of competency of legislature which enacted Article 270-A in the Constitution. The first relevant observations appear at page 498 of the report reads as under:- "As to the scope, content and meaning of Article 270-A(1) of the Constitution, the formulation of the learned counsel for the petitioner has been stated earlier and in a nutshell is that beyond giving competence and validity to the legal instruments and laws it does not preserve or continue the effect of the laws repealed. And as for those, saved they are open to attack on the ground of being violative of the Fundamental Rights or being inconsistent with any other provision of the Constitution. On the other hand, the learned Attorney General contended that the validity granted under Article 270-A(1) is not merely confined to removing the taint in the maker of the law but also validated the contents of the law itself so as not to be amenable to any attack on the ground of its being violative of the Fundamental Rights or inconsistent with any provision of the Constitution." The above quoted passage fully reflects the rival contentions of the parties before the court. After the above quoted passage a detailed discussion about the legislative background of enactment of Article 270-A of the Constitution follows in the case and thereafter the following observations appear at pages 502 to 504 of the report: "It is worthy to note that the judgment in Asma Jillani's case was rendered after the de facto abrogation of the 1962 Constitution while the Martial Law was in force, and, accordingly, by declaring General Yahya Khan to be a usurper all his legislative measures were declared to be void ab initio except those which stood the test of condonation. In Begum Nusrat Bhutto's case the position was different as the 1973 Constitution was held to be the supreme law of the land subject to certain parts thereof to have been held to be in abeyance on account of State necessity. This being so the power to promulgate legal measures within the scope of the law of necessity was conferred on the Chief Martial Law Administrator including the power to amend the Constitution. This power was exercised from time to time to amend the Constitution. Those amendments which need specific mention are: firstly, the power of judicial review which was saved in Begum Nusrat Bhutto's case was eroded by the insertion of Article 212-A by the Constitution (Second Amendment) Order, 1979 (P.O. 21 of 1979) with effect from 5th July, 1977; and, secondly by the Constitution (Amendment) Order 1980 (P.O. 1 of 1980), promulgated on 27-5-1980, Article 199 was amended by inserting Article 3-A in it which not only neutralized the effect of the judgment of this Court in Begum Nusrat Bhutto's case but also placed further restrictions on the exercise of judicial power. This Order also provided for the creation of the Federal Shariat Court; the powers, jurisdiction and functions to be exercised by it and also the persons to be appointed as members of the Court including the Chairman and their qualifications. Next to follow was the Provisional Constitution Order, 1981 (CMLA's Order 1 of 1981) which was promulgated on 24th of March, 1981 as an interim measure as the President and the Chief Martial Law Administrator felt satisfied "that it is necessary to make adequate interim provisions for governing Pakistan in accordance with this Order and for the removal of doubts and for consolidating and declaring the Law and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic ideology. By Article 2 of this Order certain Constitutional provisions including Article 4 were saved and became part of the Order but their operation was made subject to this Order or any other Order made by the President or the Chief Martial Law Administrator. Significantly Article 238 which gave power to the President to amend the Constitution was kept in abeyance and not included in the Provisional Constitution Order. However, by Article 16 of this Order, the President gave to himself the power to amend the Constitution while nullifying the effect of the judgment in Begum Nusrat Bhutto's case in Article 15 of the Order. The most important legal instrument which follows hereafter is the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985), which was promulgated on 2nd of March, 1985. Although this Order came into force at once but by Article 4, its revival was deferred to such dates on which the President was authorised, by notification to revive its different provisions. Again by Article 5 of this Order, the President was authorised to make such provisions and pass such orders in case any difficulty arose in giving effect to any of the provisions of this Order. However, by Article 2 of this Order extensive amendments were made in the 1973 Constitution, including the insertion of Article 270-A. By notification issued under Article 4 of the Order on 10th of March, 1985, provisions other than Articles 6, 8 to 28, clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 and 270-A were revived. By Constitution (Second Amendment) Order, 1985 (P.O. 20 of 1985), promulgated on 17- 3-1985, amongst certain other amendments clause (6) of Article 270-A was substituted for the following "(6) The President's Orders referred to in clause (1) shall not be altered, repealed or amended without the previous sanction of the President". • The earlier text of this clause was "Any of the President's Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution". On the 19th of March, 1985, Constitution (Third Amendment) Order, 1985 (President's Order 24 of 1985) was promulgated. Thereafter on llth of November, 1985, Constitution (Eighth Amendment) Act, 1985, was promulgated which came into force at once except section 19 which was to take effect on the date on which the Proclamation of the fifth day of July, 1977 was revoked. This Article related to the substitution of Article 270-A of the Constitution as enacted by the Majlis-e-Shoora for that earlier inserted by the President in the Revival of the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and a new Schedule called the Seventh Schedule was added by section 20.: The next relevant observation in the case is at pages 506 to 508 of the report which read as under: - In Asma Jillani's case since the maker of the legislative measures was held to be the usurper, condonation was given in particular to all acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution or the previous legal order. Similarly Begum Nusrat Bhutto's case authorised the Chief Martial Law Administrator not only to promulgate Presidential Orders, Ordinances, Martial Law Regulations or Orders but also to enact legislative measures which were in accordance with or could have been made under the 1973 Constitution including the power to amend it in the background that the 1973 Constitution continued to be the supreme law of the land subject to its certain parts having been held to be in abeyance on account of State necessity. In the first case the criterion was principle of condonation and in the second case, State necessity. However, upon the promulgation of the Provisional Constitution Order, the judgment in the case of Begum Nusrat Bhutto was nullified and a new order came in the field. However, the pattern of legislation was that the power was derived from the proclamation of the fifth day of July, 1977 read with the Laws (Continuance in Force) Order, 1977. By the proviso to Article 270-A(1) (Constitution Eighth Amendment Act, 1985), the President and the Chief Martial Administrator was authorised only to enact such legal measures which served the purpose mentioned therein. Therefore, protection had to be given firstly, to the legal measures including the Martial Law Regulations and Martial Law Orders which followed the pattern of legal measures in Zia-ur-Rehman's case. Secondly, to such Constitutional amendments as were made on the touchstone of State necessity. Thirdly, such amendments as were made after the promulgation of the Provisional Constitution Order which superseded Begum Nusrat Bhutto's case and rendered it ineffective. And fourthly, to the legal measures made for the purpose mentioned in the proviso to Article 270-A(l). However, the added feature here is that the constitutional amendments also needed protection for which a different procedure is prescribed by Article 238 of -' the 1973 Constitution. Therefore, not only the effect of the judgment in Begum Nusrat Bhutto' case had to be nullified but also constitutional validity had to be given to the legal measures both as regards their content and the power exercised in enacting them. In this respect I find no distinction between this case and that of Zia-ur-Rehman. But as no constitutional amendment was involved which needed protection, therefore, there was no mention of the expression "notwithstanding anything contained in the Constitution" in Article 280(1) and all that was needed to be cared for was the judgment in Asma Jillani's case in regard to which the expression "notwithstanding any judgment" was used. Now comparing the earlier Articles namely Article 281(1) of the Interim Constitution arid Article 269(1) of the 1973 Constitution with Article 270-A(1) of the 1973 Constitution, the change in terminology is in _ respect; firstly, that in the earlier two constitutional provisions the word "declared" was .used before the words "notwithstanding any judgment of any Court" but in Article 270-A(l) the additional words "affirmed" and "adopted" are added after the word "hereby" and before the word "declared"; and secondly, the expression namely "notwithstanding anything contained in the Constitution" is inserted before the expression "shall not be called in question in any Court on any ground whatsoever". These specific words and expression were not hitherto interpreted by this Court owing to the terminology being different in this respect. Reading Article 270-A(1), I find that it is in two parts joined together by the conjunctive "and". The first part deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including Martial Law Regulations and Martial Law Orders made between the specified dates which are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by - competent authority" and the second part deals with the ouster of the jurisdiction of Courts in terms: "notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever." dverting to the first part, it will be necessary to examine the meaning of •{he specific words used in the constitutional provision. In' Ballentine's Law Dictionary, Third Ed., page 36, the word "adopt" is defined to mean "to approve, to take as one's own that which was not so before". In Black's Law Dictionary, Fifth Edition, page 45, it means "to make that one's own act which was not so originally, to accept; consent to and put into effective operation; as in the case of constitutional amendment, ordinance, Court rule, or by-law". In Chamber's Twentieth Century Dictionary at page 16, "adopt" means "to take as ones own, to endorse, approve". The word "affirm" in the Chamber's Twentieth Century Dictionary is defined at page 20 to mean: "to assert confidently or positively, to ratify (a judgment); to confirm or stand by". In Black's Law Dictionary, Fifth Edition at page 55 this word k defined to convey the meaning: "to ratify, make firm, to make a solemn and formal declaration". In Ballentine's Law Dictionary, Third Edition at page 46, this word carries the same meaning, i.e. "to declare solemnly, to confirm or ratify a statement, belief, opinion, decision or judgment". The word "declared" was also used in the earlier constitutional provisions and also in this provision. It means "to make known, manifest; to announce dearly some opinion or resolution". (Black's Law Dictionary, Fifth Edition at page 368). Having regard to the meanings which the words "affirm" "adopt" and "declare" convey, it is manifest that the legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures. The principle of ratification was here adopted and such validity and competency was proclaimed. This principle belongs to the realm of the law of agency: "In the law of principal and agent, the adoption and confirmation by one person with knowledge of all material facts, of an act or contract performed or entered into in his behalf by another who at the time assumed without authority to act as his agent. Essence of "ratification" by principal of act of agent is manifestation of mental determination by principal to affirm the act, and this may be manifested by written word " (See Black's Law Dictionary, Fifth Edition, P. 1135). In this respect there was a departure from the protection earner given by the two constitutional provisions, namely Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution. The next expression in this part which needs consideration is "notwithstanding any judgment of any Court". Obviously this expression could not have any reference to Asma Jillani's case as its effect was taken away by Article 281(1) of the Interim Constitution (see Zia-ur-Rehman's case) and it could only refer to Begum Nusrat Bhutto's case hi which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power by means of extra- Constitutional steps in the interest of the State and for the welfare of the people. But subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the revocation of the Provisional Constitution Order and the Laws (Continuance in Force) Order, 1977, that the expression "notwithstanding any judgment of any Court" was again used. Coming now to the second part, the non obstante expression "notwithstanding anything contained in the Constitution" in the context in which it occurs is equivalent to saying that the provisions of the Constitution shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal measures. While on one hand by this device the legislature has chosen to give wholesale validity and competency to the said legal measures as if it had enacted them and on the other by neutralising the constitutional impediments so as to render them immune from any attack on their validity and competency on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad's case will be fully applicable. The ouster of jurisdiction to strike off the laws the Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be denied so long as the Court exists. Here I would add the admirable words of Chief Justice Hughes of the Supreme Court of United States of America: "We are under a Constitution, but the Constitution is what the judges say it is " (Columbia Law Review, Volume 49,p.201). It is difficult to confine the expression "notwithstanding anything contained in the Constitution" only to the maker of the legal measures as contended by the learned counsel for the Petitioner. This constitutional provision has to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it." The above discussion leaves no room for any doubt in my mind that the Assemblies elected in 1985 were legally and validly constituted. This brings me to the next question, namely, whether the Eighth Amendment passed by the parliament elected in 1985 was valid or it was invalid for the reason that it was not passed according to the procedure prescribed under P.O. No.14 of 1985 and that the amendments introduced in the Constitution by the Eighth Amendment altered/changed the basic structure of the Constitution. I will take up the later part of the controversy first as it is common contention of the petitioners in the above cases and is also supported by learned Attorney General and Deputy Attorney General. According to learned counsel for the petitioners as well as learned Attorney General and DA.G the basic features of the Constitution are; (1) its Federal nature with a parliamentary system of Government; its Islamic character; trichotomy of powers 'between the three Organs of the State namely, the legislature, judiciary and the executive; preservation of human rights and dignity in the form of Fundamental Rights. The learned counsel for the petitioners contended that the Eighth Amendment in the Constitution seriously eroded its parliamentary features which is the basic structure of the Constitution. It is urged that under the Constitution, as it originally stood, the President of Pakistan ^as only a figure head of the Federation as is usual in a parliamentary system of Government but under the Eighth Amendment, the powers of President have been enhanced to such an extent that now he can over rule and by pass: the advice of Prime Minister in many constitutional matters by exercising his discretion. The learned Attorney General contended that after the passing of Eighth Amendment in the Constitution there is such a concentration of power in an individual that the President is now even free to dissolve an elected body like the parliament at his discretion and whims. This concentration of power in an individual according to learned Attorney General is opposed to Islamic concept of polity which is a basic feature of the constitution. The learned Attorney General pointed out that objectives resolution which is incorporated in the preamble of the constitution and is also now an operative part of it, in Article 2-A, declares that Sovereignty over the entire universe belongs to "Allah" and the authority to be exercised by the people of Pakistan within the limits prescribed by "Allah" is a sacred trust. It further declares that the State shall exercise its power and authority through the chosen representatives of the people, while under the Eighth Amendment, an individual has been vested with all the powers, which is negation of basic principles of our Constitution as enshrined in the objectives resolution. In this connection the learned Attorney General made reference to clause (7) of Article 41, amendment of Article 46, proviso to clause (1) and clauses (2), (3), (5) to (7) of Article 48, clauses (2), (3), (4) of Article 56, clause 2 and sub-clause 2(b) of Article 58, Article 90, Article 91(2) and (5), Article 94, clause (5) and (6) of Article 239, clause (1-A) of Article 242 and clauses (1-A) and (2) and sub-clauses thereof of Article 243 and further stated that it is not possible here to refer and examine all amendments introduced in the Constitution by the Eighth Amendment. The learned counsel for the Petitioners also referred to some ofthe amendments in the constitution introduced by the Eighth Amendment, besides those referred by the learned Attorney General, in support of their contentions. I do not intend here to make any critical or detailed examination of the amendments introduced in the Constitution by the Eighth Amendment and determine their effect on the parliamentary system of Government or the concept of Islamic polity. However, from the arguments of learned counsel for the petitioners and the learned Attorney General, it is quite clear that then- objection to the validity of these amendments rests mainly on the ground that these j amendments have the effect of either concentrating arbitrary powers in the hands of an individual or that the balance of the power which was in favour of Prime (Minister under the Constitution, as it originally stood, has now titled in favour of {President. In my humble opinion these controversies are more of a political nature than to be treated as a legal controversy. Neither the learned 1 counsel for I the petitioners, nor the learned Attorney General, was able to point out finy j objective legal standards on which such controversies could, be resolved by courts of law. It cannot be ignored that a duly elected Government is functioning in the country both in centre and in the provinces. It also appeared from jjie reports i appearing in national press from time to time thaf the Government in centre is ! trying to enter into a meaningful dialogue with the opposition^ parties to. j sting out of Eighth Amendment. The validity of the assuni^o^ of [President by Mr. Ghulam Ishaque Khan on the death of General fZiaul Haq pn ; r7-8-198&and his subsequent election to the pfgce;bjf I the basis, of amended constitution is not challenged, by anyoneij | petitioners. The President, Prime Minister, Federal Ministers, ^nl Speaker and Deputy Speaker of National Assembly, Chairman and Deputy' Chairman of Senate, members of National Assembly, Governors of Provinces, \ Chief Ministers of provinces and Provincial Ministers, members of Provincial; Assemblies and Judges of superior courts, all have taken Oath under the j Constitution as amended by Eighth Amendment, and are functioning nder it.| There is no clog on the power of parliament to amend those Constitutional 1 provisions which are considered undesirable for smooth functioning of! parliamentary Government. In these circumstances, I am unable to agree with the? learned Attorney General and the counsel for the petitioners that the Eighth; Amendment has changed the basic structure of the Constitution or that on; account of amendments introduced in the Constitution by the "Eighth; Amendment", the working of a parliamentary system of Government under the; Constitution has become impossible. The argument of the learned counsel for the petitioners that • a constitutional amendment which has the effect of changing/altering the basic structure of the Constitution, can be declared invalid by superior courts otherwise cannot be accepted as it is based on the rule enunciated by the Indian Supreme Court in the famous case of Golak Nath (AIR 1967 SC 1643) and later modified in Kesavanandir's case (AIR 1973 SC 1461) and Minerva Mills case (AIR 1980 SC 1789). This rule enunciated in the above referred cases by the Indian Supreme Court has not been approved by our Supreme Court. In the case of State vs.Ziaur Rehman (PLD 1973 SC 49), Hamoodur Rehman C.J., while examining the scope of authority of superior courts in Pakistan to strike down a constitutional provision observed as follows: "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 Constitution; 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 path to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court." In the same case the learned Chief Justice while pointing out difference between the "jurisdiction" and "judicial power" observed as under at page 70 of the report: "In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has .vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as paramount law whenever a legislative enactment comes into conflict with U because, it is its duty to see that the Constitution prevails. It is only'.when the Legislature fails to keep within its own Constitutional ( ljmits, the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazul Quader Chowdhuty v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed: upon diem or claim to exercise power which the people have been careful to withhold from them. On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it." The final analysis with regard to the power of the superior courts to strike down a constitutional provision was stated by the learned Chief Justice ia Ziaur Rehman's case in these words: "Having said this much about the constitutional position of the Courts and their relationship with the other equally important organ of the State, namely; the Legislature, it is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can, in the exercise of its judicial power, strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government they wish to be established. I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the constitution itself as being in violation of such a document. If in fact that document contains the expression of the will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too , the Objectives , Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until k is incorporated within it or made part of it. If it appears only as a preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof. This does not, however, mean that the validity of no Constitutional measures can be tested in the Courts. If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional document." The rule laid down in Ziaur Rehman's case was reaffirmed in the case of Islamic Republic of Pakistan vs. Abdul Wall Khan (PLD 1976 SC 57) as 'follows by Mohammad Gul, J:- "It will be convenient to deal with the vires of constitutionality of section 6 of Act as amended at this stage. Mr. Sharifuddin Pirzada, learned Arnicas curiae, who addressed the Court on the Law points only, stated at the outset that clause (2) of Article 17 of the Constitution as substituted by Act XIII of 1974 was perfectly constitutional. He thought 'it necessary to make that statement, because of the doubt created by the majority judgment in Golak Nath's case (1) decided in Indian jurisdiction, though the majority view in that case was modified by the majority judgment ot;a larger Bench in the later case of Kasavnuda (2). It is unnecessary to refer to the ratio decidendi of the conflicting views in these two cases, ibecause so far as this country is concerned, the law is firmly laid down by this Court in Zia-ur-Rehman's case (3) that a constitutional amendment cannot be challenged on the ground of being "repugnant to what are stated as national aspirations", so long as the amendment k duly passed b accordance with the procedure laid down by the Constitution." Again in the case of Federation of Pakistan Vs. United Sugar Milts Ltd. (PLD 1977 SC 397) the rule laid down in Zia-ur-Rehman's case was reiterated as follows by Mohammad Gul, J:- This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vires of the two provisions of the Amending Act set out in the beginning. Learned counsel however, did not assail the amendments on the larger ground as was done in Golaknath's case (1) decided in the Indian Jurisdiction. In that case a narrowly divided. Supreme Court ruled that the Indian Parliament lacked the power to amend Part III of the Indian Constitution which provides for Fundamental Rights. However, the majority view in that case was modified later in the case of Kasavnuda (2) again by a narrow majority. In Pakistan, this Court in the case of Ziaur Rehman (3) has, however, firmly laid down the principle that a constitutional provision cannot be challenged on the ground of bring repugnant to what are sometimes stated as "national inspirations" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra constitutional instrument." In the case of Fauji Foundation Vs. Shamimur Rehman (PLD 1983 SC 457) Mohammad Haleem C.J. quoted the opinion of Mohammad Gul, J, in the case of Federation of Pakistan Vs. United Sugar Mills Ltd. with approval hi paragraphs 189 and 190 of the judgment which reads as under:- "189. The distinction spelled out in the case of Piare Dusadh would still be applicable for the non-applicability of the doctrine to our constitutions. In Federation of Pakistan Vs. United Sugar Mills Ltd (5), the addition of clause 4(2) to Article 199 of the Constitution by section 8 clause (b) of the Constitution (Fourth Amendment) Act, 1975, which was challenged on the ground that it violated the separation of powers as it amounted to an inroad in the judicial power of the High Court. This Court firmly held that the vires of the Act could not be thrown overboard as this doctrine was not applicable to our constitutions. In holding so Muhammad Gul, J., spoke for the Court and observed at page 411: "It is also important to observe that our Constitution, like many other modern written Constitutions, does not provide for rigid separation of powers. Indeed there is no direct provision in that behalf except that the Constitution by various provisions provides for the setting up of the principal institutions for the exercise of the sovereign powers of the State in the appointed field. In actual practice in all modern Governments, separation is only functional to subserve the practical necessity of an efficient .and enlightened Government by providing for checks and balances to avoid abuse of public power. Nowhere, so far as I am aware, the principle is pushed to its logical conclusion so as to create watertight compartments within the Government." 190. Fundamentally the Court adopted the dictum in Zia-ur-Rehman's case: That a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "notional aspirations" or an "abstract concept" so long as the provision is passed ; by the competent Legislature in accordance with the procedure laid down by the constitution or a supra-constitutional instrument. This Court accordingly distinguished Golak Nath's case (6), on the above premise, decided by a majority of 6 to 5 that the Indian Parliament lacked the power to amend Part HI of the Indian Constitution which provides for the fundamental rights." (in view of these clear pronouncements of Supreme Court I am of the view that a constitutional amendment cannot be brought under challenge before the High Ai \ Court under Article 199 of the Constitution on the ground that it had the effect of ! changing/altering the basic structure of the constitution. The learned counsel for. the petitioner in Petition No. 168/89 raised an additional argument that the Eighth Amendment was also invalid for the reason that it was not passed in accordance with the provisions of Article 239 which was introduced in the Constitution by R.C.O. (P;O. 14 of 1985). The argument of the learned counsel is based on an assumption that with the promulgation of P.O. No.14 of 1985, the power vested in General Mohammad Ziaul Haq was exhausted and as such promulgation of P.O. 20 of 1985 subsequently, which substituted the present Article 239 in the Constitution was unauthorised. P.O. 14 of 1985 was issued on 2nd March, 1985 by the President in exercise of his powers under the proclamation of 5th July, 1977. The subsequent President Order No. 20 of 1985 was also issued on 17-3-1985 in pursuance of the power derived by the President under the Proclamation of 5th July, 1977. The proclamation of 5th of July, 1977 was revoked by the President on 30-12-1985. It is, therefore, quite clear that so long the proclamation of 5th July, 1977 was in the field and the power was available thereunder, no exception could be taken to issuance of any President Order which either provided for something new or amended an existing state of law. It may be mentioned here that after promulgation of P.O. No. 20 of 1985, the CMLA issued Martial Law Order No. 107 on 29-12-1985 immediately before revocation of proclamation of 5th July, 1977. The effectiveness of MLO was considered at length in the case of Federation of Pakistan Vs. Ghutam Mustafa Khar (PLD 1989 SC 26) and full effect was given to it. I therefore, see no force in the contention of the learned counsel. While still on the issue of validity of Eighth Amendment, I may dispose of one more contention raised by the petitioner in C.P. No. 163 of 1989. According to petitioner in this case, the power to amend the Constitution during the period Martial Law was enforced in the country, exclusively vested in the C.M.LA. by virtue of the decision of Supreme Court in the case of Begum Nusrat Bhutto Vs. Chief of the Army Staff and another. It is accordingly contended that this power could not be delegated by the CMLA to any other body and as such the Eighth Amendment bill passed by the Parliament while the Martial Law was still enforced in the country was wholly invalid. The argument of the petitioner is based on a misconception that the power to amend the Constitution was derived by the CMLA/President under the decision of Supreme Court in the case of Begum Nusrat Bhutto. The effect of the decision in the case of Begum Nusrat Bhutto was displaced by the Provisional Constitution Order of 1981 which was promulgated on 24-3-1981, and validity whereof was recognized by all the courts in Pakistan including the Supreme Court. It is, therefore, quite clear that as and from 24-3-1981, all powers were derived by the CMLA/President under the, P.C.O. of 1981 and the Proclamation of 5th July, 1977. Article 16 of P.C.O. was as follows: - "16. Power to amend Constitution:- The President as well as Chief Martial Law Administrator shall have, and shall be deemed always to have had the power to amend the Constitution." On 2nd March, 1985, Revival of the Constitution of 1973 Order 1985 (P.O. 14 of 1985) was promulgated by the President, Article 4 whereof provides that the provisions of the Constitution as amended by P.O. 14 of 1985 shall stand revived on such day as the President may, by notification in the Official Gazette, appoint, and different day may be so appointed in respect of different provisions. On the date P.O. 14 of 1985 was promulgated, members of National and Provincial Assemblies were already elected. The notification under Article 4 of P.O. 14 of 1985 was issued by the President on 10-3-1985 which revived the provisions of the Constitution as amended, except Articles 6, 8 to 28 (both inclusive) clause (2) and 2(a) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270-A. It is therefore, quite clear that Provisions in the Constitution relating to National and Provincial Assemblies were hi full force and operation as and from 10-3-1985 and as such the National and Provincial Assemblies could legally function from this date. The Constitution was further amended on 17-3-1985 and 19-3-1985 by two Presidential Orders namely P.O. 20 and P.O. 24 of 1985 respectively. The joint session of Parliament was held on 23-3-1985 and the Eighth Amendment bill was introduced on 8-9-1985 which was later withdrawn. It was again introduced in the Parliament on 30-9-1985 and was passed on 16-9-1985. It was also passed by the Senate on 28-10-1985 and having received the assent of President on 9-11-1985 became part of Constitution. Thereafter, Martial Law was lifted from the country on 30-12-1985. It will thus be seen that from 2-3-1985 till the lifting of Martial Law on 30-12-1985, the country was passing through a transitory phase in which preparations were being made to switch over to Constitution Government from Rule of Martial Law. In these circumstances, when the new order was displacing the old one, the possibility of both the dispensations being enforced in the country simultaneously at some point of time during the transition could not be avoided. In these circumstances, no objection, could be taken to the passing of the Eighth Amendment by the Parliament, while the Martial Law was still enforced in the country. After all a valid order had to come into existence before power could be transferred by the military dictator to the Civilian Government. I therefore see no force in the contention of petitioner in C.P. No. 163 of 1989. Before ending the discussion on the validity of Eighth Amendment, one more aspect needs to be mentioned here, which, in my opinion is nqt only important but goes to the root of the controversy. On 31st December, 1985 all the Judges of this court took Oath under the Constitution which stood amended by the Eighth Amendment. None of the present Judges of this court had taken the Oath under the Constitution as it stood before its amendment by the Eighth AN Amendment. In these circumstances, the Oath taken by the Judges of this court was for all practical purposes an Oath under the first or a new Constitution and as such they cannot declare any part of this Constitution as invalid after having taken the Oath to defend it. This, however, will not apply to any constitutional amendment which may be made in the Constitution after 31-12-1985. I am fortified in my above conclusion by the following observations of Hamoodur Rehman C.J. in the case of State Vs. Ziaur Rehman. "This does not, however, mean that the validity of no Constitutional measure can be tested in the Courts. If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitutional documents." One more contention jointly raised by the learned counsel for the Petitioners which has not been considered so far is, that late General Ziaul Haq was not a duly elected President and as such he was not competent to give assent to the Eighth Amendment Bill. The argument proceeds on the basis that Referendum of 1984 which installed General Ziaul Haq in the office of Presidency was invalid. In my view this controversy can be decided without going into the validity or otherwise of the Referendum of 1984. Late General Ziaul Haq, admittedly assumed the office of Presidency on the resignation of Mr. Fazal Ellahi, under President's Succession Order (P.O. 13 of 1978). Article 4(1) of P.O. 13 of 1978 provided that if the CMLA is the President he shall hold office until a President is elected in accordance with the Constitution. The assumption of the office of Presidency by General Ziaul Haq and the vires of P.O. 13 of 1978 were challenged before the Lahore High Court in the case of Ghulam Jillani Vs. Province of Punjab (Supra) but it was upheld. Therefore on 9-11-1985 when General Ziaul Haq gave his assent to the Eighth Amendment Bill he was fully competent. A somewhat similar contention though in a different form was also raised before the Supreme Court in the case of Federation of Pakistan Vs. Ghulam Mustafa Kfiar but it was repelled as follows: - "15. It will be appropriate at this stage to take notice of a contention raised by Mr. U. Niamat Moulvi who appeared on behalf of the Appellant in Civil Appeal No. 285 of 1987. He argued that the Constitution (Eighth Amendment) Act, No. 18 of 1985, which introduced Article 270-A in the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part of the Constitution. While elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution Order was still in force and under the Order there was no requirement that the President should give assent to the Bill passed by the Majlis-e-Shoora. He further contended that even though by a notification issued under section 4 of the Revival of Constitution Order most of the provisions of the Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution Order, the Constitution could not become alive again as there could not be possibly two Constitutions governing the State simultaneously. The contention of Mr. U. Naimat Moulvi is clearly untenable. The sanction behind the Revival of the Constitution Order was the Provisional Constitution Order itself. Article 238 of the Constitution, as revived, laid down the mode of the amendment of the Constitution. According to the said Article, amendment of the Constitution required the assent of the President. The President while giving assent to the Bill was acting in the manner as envisaged by the Revival of the Constitution Order which, as already stated, had the sanction of the Provisional Constitution Order itself. In the circumstances, the contention that the President could not give assent to the Bill of the Majlis-e-Shoora or there could not be concomitantly two Constitutions in force is neither here nor there.: I, therefore, do not find any force hi the above contention of the Petitioners. The last point in these cases relates to the locus standi of the petitioners. The learned counsel for the contesting Respondents urge that no proceedings under Article 199 of the Constitution can be maintained unless the petitioner is an aggrieved person. The learned counsel for the petitioners in reply to the above objection relied on the case of Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416). In my view the observations of the Supreme Court in that case are of no assistance to the petitioners in the present cases. The proceedings in Benazir Bhutto's case were entertained by the Supreme Court under Article 184 of the Constitution on the basis that the issue involved in the case had an element of Public Importance. Unlike Article 199 of the Constitution, the petitioners under Article 184 need not be an aggrieved person. I am, therefore, of the view that unless the petitioners are able to show violation of some personal right or nonperformance of some legal duty which has resulted in some personal disadvantage to them they cannot maintain the petitions under Article 199 of the Constitution. In the cases before me, the petitioners are from amongst the general body of voters who have already exejrcised their right of franchise in the elections and in consequences thereof elected Governments are functioning both in Centre and the provinces. The petitioners are seeking invalidation of some of the provisions of the Constitution under which the elected Governments are functioning. The individual voter from amongst the general body of electorate, in these circumstances cannot bring a grievance of this nature before the court specially when the decision on the issue is likely to affect the working of elected Government in power which is not before the Court in the proceedings. I am, therefore, of the view that the petitioners also do not have locus standi to file these petitions. I accordingly dismiss the above Petitions but leave the parties to bear their respective costs. Before parting with the case I must record my appreciation for the fairness and straight forward manner in which the learned Attorney General placed his arguments before the court in these cases in his capacity as amicus. Syed Abdur Rahman, J.--I had the benefit and privilege of going through the judgments proposed to be delivered by the Hon'ble Chief Justice and my learned brother Hon'ble Mr. Justice Saeeduzzaman Siddiqui, J. I am in respectful agreement with the conclusions arrived at by the Hon'ble Chief Justice as further explained by my learned brother Saeeduzzaman Siddiqui, J. I feel tempted to add a few words of my own looking to the importance of the constitutional issues involved therein, but let meat the very outset summarise the conclusions:-- (i) No doubt General Mohammad Ziaul Haq had committed breach of the conditions on which Supreme Court had accorded its recognition to the Martial Law and had become a usurper and occupied a position somewhat similar to that of General Yahya Khan, still the ratio decidendi in the case olMissAsma Jilani v. The Government of the Punjab reported hi PLD 1972 S.C. 139 would not be fully attracted as Article 270-A has been enacted by the parliament to provide blanket cover to all his acts and laws, whereas at the time when the above case of Miss Asma Jilani was decided by the Supreme Court, Article 281 of the 1972 Interim Constitution or Article 268 of 1973 Constitution was not enacted. (h) The effect .of-.validating Articles was considered in The State v. Zia-ur- Rahman' reported in PLD 1973 SC 49, (2) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan reported in PLD 1974 S.C. 151 (3) Sh. Karamat All v. The State reported in PLD 1976 S.C. 476 (4) Fauji Foundation v. Shamimw Rehman reported in PLD 1983 S.C. 457 (5) Miss. Benazir Bhutto v. Federation of Pakistan reported in PLD 1988 S.C. 416, and it was held that the same were validly made and protected the laws referred to therein. (Hi) In Ziaur Rehman's case it has also been held that any law which is violative of the Objectives Resolution can be struck down on the aforesaid ground only after the same is incorporated in the body of the Constitution. (/v) It is too late to declare that the Assemblies which came into existence as a result of partyless elections in 1985 had no legal status or that they were illegal bodies. Though the elections of 1985 to the Parliament were held on non-party basis, but the important part played by it cannot be denied as it was instrumental hi getting the Martial Law lifted and fundamental rights restored which enabled the Supreme Court to strike down certain provisions of Political Parties Act as violative of fundamental rights in Miss Benazir Bhutto's case. Moreover in Haji Saifullah Khan v. Federation of Pakistan reported in PLD 1989 S.C. 166 the Supreme Court while declaring the dissolution of the National Assembly as illegal had not doubted its legal status. (v) In the case Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 S.C. 26), Supreme Court had not left open the question of legality of the National Assembly while enacting Article 270-A wherein challenge was thrown to its competency to enact Article 270-A. No doubt in para 16 of the judgment Supreme Court refrained from expressing any view on it, but in paras 18 & 19 thereof the Supreme Court accepted the proposition canvassed by the Attorney General that Article 270-A was validly enacted. There was consensus among all learned counsel including Mr. Yahya Bakhtiar on the competence of the legislature to enact Article 270- A. (v/) although at the relevant time the CMLA had the power to amend the Constitution, the Parliament was also competent to legislate the Eighth Amendment. Principle of incompetence of delegatee to further delegate the power was inapplicable. The Chief Martial Law Administrator was not a delegatee and that the Eighth Amendment after having been passed by the Parliament was assented by the Chief Martial Law Administrator and President. Moreover according to the dictum in Fauji Foundation ease no mala fides can be attributed to the legislature. (vh) After enforcement of P. O. 14 of 1985 on 2-3-1985 the General had not ceased to have power to amend the Constitution and therefore could omit the Provincial assemblies from Article 239, because he lifted the artial Law on 30-12-1985 and issued Martial Law Regulation No. 107 on 29-12-1985, the validity of which was upheld in the case of Ghulam Mustafa Khar. (vwj) the alleged irregularities in the assumption of office by General Mohammad Ziaul Haq would not render his official act of giving assent to Eighth Amendment Bill as illegal as it is protected by de-facto doctrine, at least. Reliance was placed in Farzand All v. Province of West Pakistan reported in PLD 1970 S.C. 98 and other cases of this Court and from Indian, English and American jurisdiction. Challenge to the alleged irregularities cannot be thrown through a collateral proceedings after several years, as it suffers from latches. (ix) The National Assembly and Senate had power to pass Eighth Amendment even though they were not Constitution Assembly like the Assembly that passed 1972 and 1973 Constitutions, because the amendment was passed in accordance with the procedure prescribed for amending the Constitution. (x) the Eighth Amendment was not brought about by force and coercion. Had it been so the original Bill would not have been withdrawn on its non-acceptance by the members of National Assembly. It was then amended and rcintroduced and then passed, after much deliberations. (xi) No doubt the amendments have to some extent affected balance of power interese between the President and Prime Minister but this Court cannot strike down a Constitutional provision for this reason or for the reason that it was violative of basic structure of the Constitution or the Objectives Resolution or national aspirations or higher ethical notions. An amendment in the Constitution cannot be struck down on a ground other than that it was passed in a manner inconsistent with the procedure provided under the Constitution. (xii) The jurisdiction of this Court under Article 199 read with Article 175(2) of Constitution is, "subject to Constitution," and not un-fettered, so as to empower it to strike down a provision of Constitution on a ground other than the one given above. (xiii) On the same principles the amendment increasing the number of seats and extending the term of the Senate cannot be successfully challenged in the circumstances. (jrfv) A prospective right of franchise already conferred by law may be enforced through a Constitution Petition and that which is to be conferred by law to be enacted cannot be enforced by Constitution etition. (xv) There is a distinction between a political case and a political question. A political case may be subject to adjudication by the Court but sensitive political question may not be subject matter of adjudication. The challenge to the Eighth Amendment on the ground that it was not passed according to the Constitution is not a political question and, therefore, it can be adjudicated upon though the case relating to it may be termed as a political case. As to what should be the balance of power between President and the Prune Minister is a sensitive political question of the nature which is not suitable for adjudication by the Court but can be resolved by Parliament and the People through their chosen representatives. (rvi) Every one of us including the Judges had taken oath to protect the constitution after the Martial Law was lifted and the fundamental rights were restored on 1-1-1989 under the amended constitution and therefore are bound by it. (mi) The present legal edifice is based on the amended constitution, if we take out some amended provisions the super-structure of democracy built on it may collapse. If the above amendments were held as illegal it will affect the President, the Prime Minister and number of other incumbents of offices and institutions who are not before us. This will be an unending process. There is no manageable standard available to this court to decide which of the amendment should be struck down and which should be retained. 2. The facts forming the background to these writ petitions are the part of our chequered constitutional history which may be briefly stated as under:-- 3. General Mohammad Ziaul Haq, who was the Chief of the Army Staff at the relevant time, imposed Martial Law, held certain provisions of the Constitution in abeyance, dismissed the then Prime Minister Zulfiqar Ali Bhutto and dissolved the 'Parliament and took over the administration of the country on 5th July, 1977. On 16-9-1978 General Mohammad Ziaul Haq assumed the office of President. On 1-12-1984 he promulgated Referendum Order 1984 and after holding a referendum declared himself the elected President of Pakistan on the basis of the result of that referendum. On 2-3-1985 he promulgated R. C. O. (P.O. No. 14 of 1985). In accordance therewith elections were held on non-party basis and a National Assembly and a Senate were elected. He also promulgated P.O. 20 of 1985 and P.O. 14 of 1985. The National Assembly and Senate, which were the two Houses of Majlis-e-Shoora (Parliament) enacted Act XVIII of 1985. By this Act a number of amendments were made. The details of which need not be given. 4. The learned advocates who canvassed for the annulment of the 8 th Amendment contended that it was passed by a Parliament which was elected on non-party basis and, therefore, that Parliament was not elected in a free democratic and fair manner nor can be it called a democratic parliament. It was also argued that these amendments had distorted and disfigured the basic structure of the original 1973 Constitution and had violated the grund norm i.e. Objectives Resolution. It was also contended tha the Senate which was elected by the Provincial Assemblies of the four Provinces all of which were elected on nonparty basis was equally un-democratic and was not elected by free and fair elections. Moreover the term of the Senate having been expired in March, 1988, was unlawfully extended by said Parliament for two years. 5. It may be re-called that this action of General Mohammad Ziaul Haq was not the solitary act in the Constitutional history of Pakistan nor was this outrage first in the line. The Constitutional history of Pakistan is unique in its nature in that there has been usurpation of power by the then heads of the State more than once and thereafter by the Commander-in-Chiefs of the Army on several occasions and the democratic governments of the time were toppled and the Country was ruled by the head of Army Chief concerned for years together. The first of such occasions was the dismissal of Khawaja Nazimuddin the then Prime Minister and the dissolution of National and Provincial Assemblies by the then Governor General Ghulam Mohammad in 1953. The second was a similar action by the then President Iskandar Mirza, in 1958 and the imposition of Martial Law which was soon thereafter followed by his own ouster by the then Commander-in-Chief General Mohammad Ayub Khan. The validity of the action was considered by the Supreme Court in the case of State v. Dosso reported in PLD 1958 S.C. (Pak) 533. The then Chief Justice Mohammad Muneer who delivered the leading judgment observed that the basic doctrines of legal positivism were such firmly and universally accepted that the whole science of modern jurisprudence rested upon them, that any abrupt political change not within the contemplation of the Constitution constitutes -a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it and that the rule of international law with regard to the recognition of States can determine the validity of the States internal sovereignty also. Such a change not only affects the legal destruction of the Constitution but also gives validity to the new national legal order. Thus the Supreme Court of Pakistan accepted Kelsen's theory. 6. The above view of the Supreme Court in Dosso's case was re-considered after lifting of Martial Law and restoration of democracy, after the country had lost half of its territory and population and the view was over-ruled by it in the subsequent case of Asma Jilani v. Government of Punjab reported in PLD 1972 S.C. 139. The Chief Justice of that time Mr. Justice Hamoodur Rahman declared General Mohammad Yahyya Khan, who had imposed Martial Law on 24-3-1969 as a usurper and held that proclamation of Martial Law by itself does not give the Commander of the Armed Forces the power to abrogate the Constitution which he is bound by his oath to defend. The Supreme Court, therefore, held that there can be no doubt that the Military Rule sought to be imposed on the country by General Mohammad Yahyya Khan was entirely illegal. Over-ruling their earlier decision in Dosso's case it was held as follows:-- "The Observations of the Chief Justice in Dosso's case are not correct that upon the principles of international law if the territory and the people remain substantially the same there is "no change hi the corpus or international entity of the State and the revolutionary government and the new State are, according to international law, the legitimate Government and the valid Constitution of the State". This proposition does not find support from any principle of international law. According to Oppenheim's view as propounded in his book on International Law if the revolutionary Government is ineffective and or has no "reasonable expectancy of permanence", and/or does not "enjoy the acquiescence of the population", then the international community may well refuse to recognize it, even though its territorial integrity remains unchanged and its people remain substantially the same. The criticism therefore, is true that the Chief Justice of the Supreme Court not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated to go as far as Kelsen had gone. Yaqoob Ali, J (as he then was) went to the extent of observing that in his view a person who destroys the national legal order in an illegitimate manner cannot be regarded- as a valid source of law-making. May be that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily but let it be laid down firmly that the order which the usurper imposes will remain illegal and Court will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. Dealing with the acts of usurper in Asma Jilani's case it was observed by Hamood-ur-Rahman, C.J., that there was no doubt that a usurper may do things both good and bad, and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, in the course of time, affected the enforcement of contracts, the settlement of estates, the transfer of property and other rights etc. Hence taking recourse to the doctrine of necessity where the ignoring of it would result hi disastrous consequences to the body politic and upset the social order, a number of condonations were resorted to and not legitimization because the illegal acts of the usurper should not be validated but had to be condoned. Applying this test the Supreme Court condoned: "(1) All transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not Also condone anything which seriously impairs the rights of the citizens except hi so far as they may be designed to advance the social welfare and national solidarity." The next case is The State v. Zia-ur-Rahman reported hi PLD 1973 S.C. 49. To minimize the consequences of the case of Asma Jillani referred to above Article 281 was enacted hi the interim Constitution of 1972 whereby all laws made after General Yahya Khan's imposition of Martial Law were validated notwithstanding any judgment of any Court and the jurisdiction of the Courts was ousted from questioning any such laws. It also saved all the orders, proceedings and acts of the said period from legal challenge. The validity of Article 281 of the Interim Constitution 1972 was examined hi Zia-ur-Rahman's case. It was, however held that amendments hi the Constitution could be declared as void by the Court if the same were adopted hi a manner different to that prescribed in the Constitution itself. In this ruling it was held that the Constitution was supreme law by which the Government can be controlled and stood higher hi position than other laws of the country. Judiciary including Supreme Court was a creature of the Constitution and has never claimed the right to strike down any provision thereof. It does, however, claim the right to interpret the constitution even if the provision is one seeking to oust the jurisdiction of the Court. In exercising the power of interpreting the constitution the judiciary acts only as an administration of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because the judicial power is superior in degree or dignity to the legislative power because the constitution had vested it with such power. Dealing with the objective resolution it was held that the same was the grund norm of Pakistan and that the Constitution had drawn inspiration from it. It was, however, held that no provision of law or constitution including Article 24 could be tested on the touch stone of Objective Resolution until and unless it was incorporated in the Constitution. Case of Federation of Pakistan v. Saeed Ahmad reported in PLD 1974 S.C. 151 again took into consideration Article 281 of the Interim Constitution of 1972 with regard to the jurisdiction of the Court to examine the cases of government servants dismissed and removed from the service or retired before time. It was held that the order did not extend to acts done, orders made or proceedings taken without jurisdiction, coram-non-judice or malafide. With regard to the constitutional provisions following principles of interpretation were enumerated:-- "(/) The Constitution is a fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country. (//) The Constitution is the source from which all governmental power amanates and it defines its scope and ambit so that each functionary should act within his respective sphere. (Hi) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the Constitution and must confine themselves within the limits set by the Constitution. (iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign powers the judicial power must from the very nature of things be vested in the judiciary. (v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction. (v/) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with a pronounced leaning against ouster. (vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law-giver if the law has been competently made without transgressing the limitations of the onstitution. If a law has been competently made the judiciary cannot refuse to enforce it- even if the result be to nullify its own decisions. (viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different | from that which was sought to be conveyed by the law-giver. (ix) The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution. (x) As far as possible each provision of the Constitution should be construed so as the harmonize with all the others." On 5-7-1977 late Mr. Zulfiqar Ali Bhutto, who was Prime Minister of Pakistan, was dismissed in consequence of a military taken over by General Mohammad Ziaul Haq, the then Chief of Army Staff. The Federal as well as Provincial Assemblies were dissolved. The constitution was not abrogated but some of its provisions were held in abeyance. Martial law was proclaimed and General Mohammad Ziaul Haq assumed the office of Chief Martial Law Administrator. This action of General Mohammad Ziaul Haq was challenged in the Supreme Court in the case of Begum Nusrat Bliuloo v. Chief of Army Staff reported in PLD 1977 S.C. 657. Majority view was that the principles laid down in the case of Asma Jillani were not applicable to the facts of this case. It was also held that Kelsen's theory of revolution also did not "apply to the change over brought about by General Mohammad Ziaul Haq. That military coup was however, justified on the maxim ofsaluspopuli. It was held as follows:-- The conditions culminating in the Proclamation of Martial Law were so grave that the very existence of the country was threatened, that chaos and bloodshed was apprehended and there was complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step, resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an Order which could have been under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision. The Court, however, called upon the C.M.L.A., to hold free and fair elections and made the following observations: "While the Court does not consider it appropriate to issue any directions as to a definite time-table for the holding of elections, the Court would like to state hi clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crises and constitutional break-down, but also because of the solemn pledge given by him that the period of constitutional deviations shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by the large, willingly accepted his administration as interim Government of Pakistan. The C.M.LA. was thereby held entitled to perform all such acts and promulgate all such laws which were necessary for the above purpose including the power to amend the constitution. Makhdoom Ali Khan a young barrister in his introduction on the Constitution of Islamic Republic of Pakistan has made the following comments on this judgment: "This enunciation of the Law of necessity by Chief Justice Anwarul Haq was contrary to what the Supreme Court under another Chief Justice had laid down as law declared only five years ago; "I too am of the opinion that recourse has to be taken to the doctrine of necessity were the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization." One could have supported the Begum Nusrat Bhutto judgment as an attempt to discover a middle ground between Dosso and Asma Jillani, in order to save judicial powers from being destroyed and retain jurisdiction, at a tune when the CMLA still held the reins of power and the Court had taken a new oath. But the strange and disturbing aspect of the judgment was the permission given to the CMLA to amend the Constitution and this is what makes it indefensible. It is submitted that the Court as an institution had no power or jurisdiction to circumvent settled constitutional procedures and allow someone who could at best be described as an executive functionary to tamper with the Constitution. This was an exercise of power without precedent. It could not draw support from either the text or the ideals of the Constitution and was, therefore, unconstitutional. It now appears that not all the judges of the Supreme Court were prepared to give the CMLA a free hand in amending the Constitution. That may be the case, but not a single, dissent was filed, no appeal was made". General Mohammad Ziaul Haq did not hold elections as promised from time to time and went on postponing the same. Instead he promulgated Provisional Constitution Order on 23-3-1981. Thereafter he promulgated Referendum Order 1984 and on the pretext of a favourable verdict from the public declared himself to be the President of Pakistan under the revival of Constitution of 1973 Order 1985 (P.O. 14/1985). The parliament, elected on non-political basis under the P.C.O. enacted Article 270-A as well as made many other amendments in the Constitution of Pakistan (1973) by the Constitution (8th Amendment) Act 1985. The validity of Article 270-A, as it was enacted in P.O. 14 of 1985, was challenged before this Court in the case of Mohammad Bachal Memon v. Government ofSind reported in PLD 1987 Karachi 296. A Full Bench of this Court held as follows:- "Thirdly, Article 2-A on the basis of which also validity of Article 270-A 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 Parliament by Constitution (Eighth 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." The decision of Mohammad BachaPs case was taken in appeal to the Supreme Court in Federation of Pakistan v. Ghulam Mustafa KJiar reported in PLD 1989 S.C. 26. It was held that clause (1) of Article 270-A gave blanket protection to all laws made during the period when Martial Law was enforced i.e. from 5.7. 1977 upto the lifting of Martial Law in 1985 and that the validation extended by said clause encompassed not only their past operation but also their future continuance despite any other provision to the contrary contained in the Constitution. It would oust the jurisdiction of the Courts from examining the validity of the said laws on any account whatsoever. In this ruling it was, however, held that this clause did not save acts, orders or proceedings which were done, made or taken without jurisdiction, malafide or coram non judice and it was un­ necessary to draw a difference between malice in fact and malice in law. Thus Article 270-A of the Constitution, which was brought into it by 8th Amendment, was held to be validly and competently enacted. The National Assembly and the Provincial Assemblies were dissolved by General Mohammad Ziaul Haq on 29-5-1988 and the Prime Minister and the Federal and Provincial Cabinets were dismissed. The dismissal of the Prime Minister and the dissolution of the Assemblies came up for consideration in appeal before the Supreme Court in the case of Federation of Pakistan vMohammad Saifullah Khan reported in PLD 1989 S.C. 166. The dismissal of the Prime Minister and the dissolution of Assemblies was declared by Lahore High Court to be illegal and the order of the Lahore High Court to that effect was upheld by the Supreme Court. The relief of restoration of the National Assembly was, however, not granted, despite this finding and the reasons for doing so enumerated by Lahore High Court were approved by the Supreme Court which read as under: "But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the reason if the vital process of elections is interrupted at this juncture. The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution. The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet." The Supreme Court also expressed itself on the question of national interest in the following words: "It is true that the concept of "national interests taking precedence over rights of the individuals" which has been given effect to by us is a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration. Granted that the concept of "national interests taking precedence over individual rights" is an indefinite concept and that it can mean different things to different persons but in the instant case no such ambiguity existed because it was quite clear that the national interest would be better served by a recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the holding of the elections on a very early date was ensured. The bane of our society has been that elections have not been held with any degree of regularity, after reasonable intervals. An overwhelming majority in the country was strongly of the opinion and a clear national consensus existed to the effect that the political malaise in the country could be solved only by holding national general elections, wherein all the political parties were allowed to participate. In conformity with this national consensus and the unambiguously expressed wish of all the political parties of Pakistan and every section of the people there was no difficulty in coming to the conclusion that an appeal to the electorate rather than restoration of the existing Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th November, 1988, for the National Assembly and 19th november, 1988, for the Provincial Assemblies were adhered to was the proper course to be followed and that this was in the collective good. In exercise of the discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the aforementioned part of the order of the President whereby the dates for holding of fresh general elections were specified. On the other hand, to ensure compliance therewith and to see that elections are actually held on these dates, the said dates were made a binding part of the Court's judgment itself. Accordingly, in our short order, passed at the conclusion of the hearing, it was said : "We however, emphasise that the general elections scheduled for the 16th and the 19th November, 1988, shall be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own representatives in a free, fair and impartial election. Accordingly, these appeals stand disposed of in the above terms." In an Islamic State sovereignty belongs to Almighty Allah alone. The authority is to be exercised by the people of that State within the limits prescribed by Allah and such authority is a sacred trust. Holy Quran has .commanded the Muslims to decide all tHeir matters by means of Shoora ( & X-^Vf>/^ L> ) thereby these Muslims have been commanded to ordain their State in accordance with the principles of democracy, fraternity and equality. The Muslims have to order their lives in their individual and collective spheres in accordance with the teachings and requirements of Islam as set out in Holy Quran and Sunnah. It was with this object and goal in view that the first constituent As^i. ably had passed the Objectives Resolution, which reads as under :- "Whereas sovereignty over the entire Universe belongs 10 Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order-­ Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; Wherein the Muslims shall be enabled to order their Jives in theij individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah; Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall from a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed classes; Wherein the independence of the judiciary shall be fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity;. Now, therefore, we the people of Pakistan, Cognisant of our responsibility before Almighty Allah and men; Cognisant of the sacrifices made by the people in the cause of Pakistan; Faithful to the declaration made by the Founder of Pakistan, Quaid-i- Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic Principles of .social justice; Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny; Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order; Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution." Mr. Yahya Bakhtiar, Attorney General contended that superior Courts in Pakistan have the jurisdiction to examine the validity of a constitutional amendment made by Parliament. According to him Parliament does not enjoy unfettered powers to amend the constitution. It could not pass an amendment which would alter or change the basic structure of the Constitution or was in violation of the Objectives Resolution which was previously a part of the preamble of the Constitution but has now been made an operative part of the Constitution in the form of Article 2-A. He referred to the case of Ziaur Rehman where dealing with the Objectives Resolution the Supreme Court held that the same was the grund norm of Pakistan and that Constitution had drawn inspiration from it. It was however, held that no provision of law or Constitution could be tested on the touch stone of the Objectives Resolution unless it was incorporated in the Constitution. The Objectives Resolution having thereafter been incorporated in the Constitution, the Courts will now strike down an amendment in the Constitution made by the Parliament which comes in conflict with Objectives Resolution. The basic features of Constitution are its Islamic character, federal structure based on Parliamentary system of Government and resolution of fundamental rights. Elaborating his point Mr. Yahya contended that in the Muslim World, Khilafate Ellahia which had descended on Holy Prophet (peace be upon him), transcended to Khilafat-e-Rashida and thereafter to succeeding Khilafats till it came to an end with the abolition of Turkish Khilafat. Allama Dr. Sir Mohammad Iqbal did ijtehad and declared the National Assembly established by Mustafa Kamal Ataturk in Turkey as a Khalifa in his lectures-Reconstruction of Islam. Similar view was expressed by Moulana Maudoodi in one of his lectures at Aligarh. He further contended that if a provision of the Constitution was inconsistent with the Objectives Resolution the inconsistency could be resolved by resorting to the doctrine of harmonious interpretation. Similar view was expressed by me in the case of Sharaf Faridi v federation of Islamic Republic of Pakistan reported in PLD 1989 Karachi 404 where it was held:- "In my humble view it is not necessary for the Courts to strike down any provision of the Constitution if it is inconsistent with the Objectives Resolution or with any other provision thereof which stands on a higher pedestal and the Court can solve the problem by applying the principle of N harmonious interpretation keeping in view the principles of Islamic ideology and public good read with the judicial activism following the latest trend of the decisions of the Supreme Court and High Courts in our country." Elucidating further that harmonious interpretation implies in giving effect to one of the two inconsistent provisions by the Court if the inconsistency was patent and clear. He placed reliance in N.L.R. 1980 Karachi 673- Mir Abdul Baqi Batoch v/s. Jam Mir Ghulatn Qadir Khan of Lasbella, where it was held that if two provisions of a statute or constitution were clearly inconsistent, the principle of harmonious interpretation lay in giving effect by the Court to one of them. As already held by this Court in Bachal's case as also affirmed by a full Bench of seven Judges of this Court in Sharaf Faridi's case of which I was also a member, the validity of Article 270-A, which was introduced by the Eighth Amendment, in the Constitution cannot be questioned by this Court as this Court can not go against its own decision and strike down the provisions of the Constitution. I, therefore, hold that the Eighth Amendment was validry enacted by the then Parliament which was lawfully elected and had power to amend the Constitution. This view seems to have been approved by the Supreme Court in some of the cases referred to above. This Court is also bound by tfce above precedents in view of Article 189 of the Constitution. Maiaoon Kazi, J.--I have had the benefit of going through tie jtidgattiaf proposed to be dlivered by my lord the Chief Justice. Although I find myself in respectful agreement with most of the observations made therein but I regret my inability to concur with the others, and hence this separate note. 2. These petitions call in question the validity of the Eighth Amendment to the Constitution introduced through the Constitution (Eighth Amendment^ Act, 1985. The amendment which was introduced in the National Assembly, in the • form of a bill on 30-9-1985, was passed by the said Assembly and the Senate on 16-10-1985 and 28-10-1985 respectively. Thereafter, it received the assent of the. President of Pakistan on 9-11-1985 and was published in the Gazette on llth November, 1985. The petitioners in C.P.Nos. D-76/89 and D-168/89 are aggrieved by the amendments as they are eligible for contesting elections to the Senate, but the term of its Members has been extended from four years to six years, thus depriving them of their right to contest the elections. 3. Before reference may be made to the contentions, inter alia raised on behalf of the petitioners, it will be worthwhile to recall the events, which led to the passing of the said Act by the Majlis-e-Shoora. 4. On 5th July, 1977, General Mohammad Zia-ul-Haq, the Chief of titan Army Staff, issued a proclamation imposing Martial Law on the whole of Pakistan. The Constitution of 1973, under which the country was being governed, was held-in-abeyance and the Prime Minister, all Central Ministers, the Speaker and the Deputy Speaker of the National Assembly, the Chairman and Deputy Chairman of the Senate, Provincial Governors and the Provincial Chief Ministers and the Ministers ceased to hold their respective offices. The National and the Provincial Assemblies were also dissolved. However, the President of Pakistan continued to remain in his office. This proclamation of Martial Law was followed by the Laws (Continuance in Force) Ordinance, 1977 to give effect to the new order under which the country was then to be governed and it was said that subject to certain limitations, the country was to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force were to continue. The reasons which led to such action are well known. The Pakistan National Alliance, which was a conglomeration of the opposition parties launched an agitation throughout the country alleging that the elections held in 1977 had been rigged by the Pakistan Peoples Party, which was then in power. As the agitation gained further momentum, making it difficult for the civil authorities to control the sitution, Martial Law was imposed. Referring to the circumstances, which led to the imposition of Martial Law in the country in Begum Nusrat Bhutto v. Tlie Chief of Army Staff (PLD 1977 SC 657), the Chief Justice observed " --------- .it was in these circumstances that the armed forces of Pakistan ...... intervened to save the country from further chaos, blood-shed, to save its integrity and sovereignty and to separate the warring factions, which had brought the country to brink of disaster. It was undoubtedly an extra constitutional step, but obviously dictated by the highest consideration by the State validity and welfare of the people......" Finally holding that deviation from the normal legal order could be justified on the ground of necessity, the legal position emerging from the situation was summarised as follows: "(i) That the 1973 Constitution still remains the supreme law of the laad, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity, (ii) 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 hi any manner derogate from this position, as the Courts had been originally established under the 1973 Constutiton, and have continued in their functions in spite of the proclamation of Martial Law, (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely: - (a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including ft power to amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely,. restoration of law and order, and normally in the country, and the earliest possible holding of free and fair elctions for the purpps&af restoration of democratic institutions under the 1973 Constitution; (iv) That these acts, or any of them, may be performed or- carried oat Jtf^ means of Presidential Orders, Ordinances, Martial -L«|W.j Regulaltions, or Orders, as the occasion may require; and (v) That the superior Courts continue to have the power of jucfi^SP review to judge the validity of any act or action of the Martial LatW,£ Authorities, if challenged, in the light of the principles underly' the law of necessity as stated above. Their powers under Article' of the Constitution thus remain available to their Ml extent, : may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance." 5. On 16-9-1978, the President's Succession Order (No. 13 of 19%) promulgated and according to clause 3(1) thereof, "......Chief Martial Administrator or such other person, as may be designated by the Chief Law Administrator, shall be the President and shall perform all functions to the President by or under the Constitution or by or under any law,..... 1 ' I office of the President became vacant on account of the reasons specified I said clause 3(1), then according to clause 4 thereof, "If the Chief Ma Administrator is the President he shall hold office until President is el accordance with the Constitution". Late Mr. Fazal Elahi Choudhry, who was President before the promulgation of the said President's Order resigned from J office and since no other person was designated as President by the Chief Martial Law Administrator, General Muhammad Zia-ul-Haq by virtue of clause 3^Jef the said Order himself became the President of Pakistan. - 6. On 24-3-1981, the Provisional Constitution Order (C.M.LAs Order 1« 1981) was promulgated and certain provisions of the Constitution, which w

v earlier held-in-abeyance, became operative as part of the said Order. By virtue of ' clause 15 thereof validation was accorded to the proclamation of fifth day of Juty, 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 Administrator, Martial Law Regulations, Martial Law Orders and att - other laws made on or after the fifth day of July, 1977, by declaring them to hav&j " been validly made by a competent authority, notwithstanding any judgment of; Court. Under clause 16 of the Order, "the President as weff as the Chief Law Administrator shall have, and shall be deemed always to have had the power to amend the Constitution." 7. Another significant fact in the chain of events preceding the passing of the Constitution (Eighth Amendment) Act, 1985 is the Referendum Order (President's Order 11 of 1984), which was published in the Gazette of Pakistan Extraordinary, on 1-12-1984. This Order, according to Clause 3 thereof, provided that "the elections to the National Assembly, the Provincial Assemblies and the Senate shall be completed by 23-3-1985" A question framed under clause 4 thereof was referred to referendum and as the majority of the votes cast in the referendum were in favour of the answer "Yes", General Muhammad Zia-ul-Haq by virtue of Clause 7 thereof became the President of Pakistan. 8. On 2-3-1985, the President issued Revival of the Constitution of 1973 Order (President's Order 14 of 1985). After passing of this Order, which became effective from 10th March, 1985 by virtue of Clause 4 thereof, "The provisions of the Constitution, as amended by this Order, shall stand revived on such day as the President may, by Notification in the official Gazette appoint and different days may be so appointed in respect of different provisions." By this Order, the Constitution of 1973 was drastically amended and as many as fifty-nine amendments were introduced therein. Thereafter the President issued two more orders viz., P.O. 20/85 and P.O. 24/85 introducing further amendments in the Constitution. 9. After promulgation of the Revival of the Constitution of 1973 Order, the elections to the National Assembly and the Provincial Assemblies took place on 2 2-1985 and 9-2-1985 respectively and the elections to the Senate took place on 21- 3-1985. These elections which took place under President's Order 5 of 1977 were held on non-party basis. Thereafter a joint session of the Parliament was held on 23-3-1985. 10. On 13-9-1985, a bill purporting to incorporate the said amendments in the Constitution was introduced in the National Assembly and was passed by the same on 16-10-1985. On 28-10-1985, the bill was passed by the Senate and after assent by the President was given on 9-11-1985, the Constitution (Eighth Amendment) Act, 1985 was passed and the same was published in Gazette of Pakistan, Extraordinary, dated llth November, 1985. On 30th December, 1985, the Proclamation of withdrawal of Martial Law was issued by the Chief of the Army Staff and the Chief Martial Law Administrator and hence the transition from Martial Law to the restoration of democracy finally took place. 11. The contentions raised before us on behalf of the petitioners have been formulated by me as follows: (i) that power to amend the Constitution was derived by the Chief Martial Law Administrator through Begum Nusrat Bhutto's case (PLD 1977 SC 657), therefore, each amendment, introduced in the Constitution was liable to be tested on the touchstone of the doctrine of necessity as propounded in the said case. (ii) that the Constitution (Eighth Amendment) Act, 1985 cannot be construed as a valid piece of legislation as assent thereto under Article 75 and Article 239 of the Constitution was not given to it by a duly elected President whose so-called endorsement under the Referendum Order, 1984 was obtained from the people of Pakistan by an extra-Constitutional Act, which infact, was a fraud committed upon the Constitution and the nation; (iii) that the National Assembly which came into existence on the basis of non-party elections was not competent to pass the eighth amendment to the Constitution; (iv) that the Parliament, not being a Constituent Assembly, had no mandate from the people of Pakistan to introduce amendments in the Constitution which have altered its basic structure and features and exercise of power by it by dint of amendatory provisions was ultra vires, un-Constitutional and null and void; (v) the extension of the term of the members to retire from the Senate from 4 years to 6 years by amendment of Article 59(3) of the Constitution was opposed to the basic principle of democracy that no legislature can extend the term of its members; (vi) that Article 270-A of the Constitution which was introduced into the Constitution through the Constitution (Eighth Amendment) Act, 1985 cannot provide a blanket protection to such amendments which are opposed to the basic structure of the Constitution; and (vii) that two legislatures, viz., the Parliament and the C.M.LA. could not coexist at the same time and consequently, the National Assembly was not competent to pass the Eighth Amendment Bill. 12. The question as to the competence of the National Assembly elected on non-party basis was raised in the case of Malik Ghulam Mustafa Kliar v. Pakistan and orders (PLD 1988 Lah. 49=PLJ 1987 Lahore 669) and the argument advanced on behalf of the petitioner was as follows: "64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to the competence of the Parliament to pass the Constitution (Eighth Amendment) Act 1985 whereby Article 270-A was incorporated in the Constitution. The first part of his argument is founded on the observations made in Begum Nusrat Bhutto's case, requiring the Chief Martial Law Administrator to hold free and fair elections, in terms of the 1973 Constitution. It is contended that the present Parliament has been installed through a process of election held on non-party basis, whereby the political campaign was restricted, discussion on fundamental issues prohibited; arbitrary disqualifications of the candidates, in the Election Laws, the categories of the candidates were limited; there was also a ban on propagation and mass contacts as under the Martial Law Order No. 102, holding of any meeting of public nature for seeking support in favour of any candidate was an offence and, thus, it was practically made impossible for the candidates to project their view point before the public. Resultantly, the candidates were elected on "Bradari Basis". It was pointed out that the Election Laws were drastically amended to change the complexion of the election. In this behalf the learned counsel invited our attention to the amendments made is ttt Representation of the People Act, 1976 aod the Houses of ParKaraeof and Provincial Assemblies (Election) Order, 1977. It is not necessary/ W give here the details of such amendments. Reference was also made by the learned counsel to Martial Law Regulations Nos. 33 and 48. As a result of these Regulations, canvassing or compaigning of political parties was prohibited. In this view of the matter the learned counsel concluded that the election, in consequence whereof the present Parliament came into existence cannot be treated to have been held under 1973 Constitution." The argument was however repelled by the Lahore High Court, rtse reasons for which appear in paragraph 67 of the judgment as follows: "67. The general elections, under challenge, were held tinder the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. Article 24 of the Order, to which our attention has been drawn by the leaned Attorney-General provides that the election held uader the said Order "shall be deemed to have been held under the Constitution and S&&B fene effect accordingly." This article rather the Order itsefl^ anrf 'afifct 1 - connected laws were examined by the Supreme Court in Zulfiqar AH Bhutto's case and it was held, " ................ It will be seen that from a perusal of the Post-Proclamation Order No. 5 of 1977 read with Post-Proclamation Order No. 4 of 1977, It becomes abundantly dear that the forthcoming elections are not covered by any provision of 1973 Constitution nor, indeed, could they be so covered as the situation arising in March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was an unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessary to make special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites hat these provisions were being made 'in an endeavour to restore the principles of democracy where-under the State of Pakistan exercises its power and authority through the chosen representatives of the people.' It is ia the same spirit that Article 24 of Order lays down that the elections held under this Order shall be deemed to have been held uader the Constitution and shall have effect accordingly. Without this deeming provision the resulting Legislatures could not function under the 1973 Constitution but to our mind the deeming provision contained in Article 24 of this Order, cannot attract, in terms of the provisions contained ia Chapter I of Part VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that chapter. The deeming clause is to come into operation only after the elections have been hera and the Prime Minister etc. have been elected .." We feel that these observations furnish an effective answer to the petitioner's objection that the elections were not held wider 1973 Constitution. The elections have been held, Prime Minister elected and a Cabinet formed. The country is being run by the civilian Govenuaest for the last over 2h years. Article 24 ibid, therefore, in terms tif die Court judgment, is operating with full force. Article 270-B of the Constitution also ordains that elections held under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 shall be deemed to have been held under the Constitution. 13. The question was once again raked before the Supreme Court of Pakistan in the case of Federation of Pakistan v, Malik Ghulatn Mustafa KJiar (PLD 1989 SC 26), but the Supreme Court refrained froa expressing its opinion thereon, as will appear from the following observation: "16, During the course of bearing of these matters, Mr, Abdul Mujib Peerzada, who appeared for the petitioner in CP.S.LA. No. 429-K of 1987, raised the plea that the Parliament was not competent to enact article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the tune being and thus no elaborate arguments were addressed on this plea. I would therefore t?H refrain from expressing any view on it. 14. Mr. S.M.Zafar, Learned counsel appearing on behalf of some of the respondents in this case, has argued that validity has been assigned to all the President's Orders, Ordinances, Martial Law Regulations or Orders issued or passed during the period in question by Article 27Q-A(1) of the amended Constitution which has been held to be validly passed by the Supreme Court, consequently, none of them can now be impugned in the present petitions. He has further argued that the Eighth Amendment to the Constitution is a vital link between our past and the present and in case it is knocked out the entire super structure which now stands thereon would crumble. The devastation that would be caused in the process would be enormous and at least the following offices/institutions according to him, would be rendered non est: (1) the President of Pakistan, (2) seven Muslim Members of the National Assembly, (3) four Members elected against minority seats in the National Assembly, (4) twenty Members in the National Assembly elected on women's seats, (5) the Prime Minister of Pakistan, (6) the Senate, (7) the Chairman Senate, (8) the Federal Shairat Court and (9) the new Benches of the High Court wherever established. Mr. AA. Fazeel, learned counsel also appearing for some of the respondents, made a further addition to this list by including the names of the Federal Ministers, the Ministers of State, the Advisors to the Prune Minister, the Provincial Ministers, the additional female Members in the National Assembly, the Chairman Public Service Commission, the Chairman Joint Chiefs of the Staff and other Chiefs of the Staff and the Chief Election Commissioner thereto. The other counsel appearing on behalf of the private respondents also more or less advanced similar arguments. The learned Attorney General, however, did not support the Eighth Amendment. 15. As far as these contentions are concerned, the same have very elaborately been dealt with by the learned Chief Justice in his judgment proposed to be given and I need not further express my opinion thereon as no useful purpose would be served thereby, however one of the contentions raised on behalf of the petitioners is that the assent to the Constitution (Eighth Amendment) Act, 1985 after it was passed by the two houses, was given by General Muhammad Zia-ul-Haq, who was not a Constitutional President and consequently, such assent could not clothe the said Act with validity. Although the Hon'ble Chief Justice has dealt with this question in his judgment at a great length, but I am unable to pursuade myself to agree with the conclusions reached by him, and I say so with great humility and respect. 16. Mr. Abdul Mujeeb Prizada who is the petitioner in C.P. No. D-76/89 and Mr. Rasheed Akhund learned counsel for the petitioner in C.P. No. D-168/89 have argued that the referendum held by General Mohammad Zia^ul-Haq in 1984 was a fraud upon the Constitution as well as the people of Pakistan and was also not in accordance with the provisions of the Constitution of 1973 but the same was I held in pursuance of the will of an individual who intended to perpetuate himself I in power in defiance of all cannons of rule of law and in breach of his own solemn [pledge given to the.nation. 17. It may be pointed out that the Referendum Order 1984 which was published in the gazette of Pakistan, Extraordinary, dated 1st December, 1984, was promulgated by General Mohammad Zia-ul-Haq in the exercise of the powers vesting in him under the Provisional Constitution Order, 1981. It is not disputed that the Referendum Order was issued by General Mohammad Zia- l- Haq while exercising his legislative powers both under the Provisional Constitution Order as well as the Judgment of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657). Consequently, the first question that arises is whether this court can go behind the motive of the legislature and determine whether the legislation was bonafide. 18. In Ch. Qaseem-ud-Din v. Province of W. Pakistan (PLD 1959 W.P. Lah. 76) an Ordinance issued by the then Governor of West Pakistan under Article 102 of the Constitution of 1956 was assailed before a Division Bench of the Lahore High Court on the ground that the same had been issued for a collateral purpose and was mala fide. An objection was raised that the court was not competent to go behind the motive of the legislature. Repelling the objection, Kaikaus,J. observed as under: "The power of the Governor which arises on account of an emergency is confined to the requirements of the emergency. And if he promulgates an Ordinance not to meet the emergency but for a colleteral and imporer purpose, his act can as much be impeached as any other act of the executive Government can be impeached on the ground of mala fides. '•:•• The act though legislative in character remains an act of the executive Government. Should the acts of the executive Government become immune from attack merely on the ground that they take the form of Ordinances, little check will there remain on its mala fide action, because it is easy for it to secure the promulgation of an Ordinance." 19. However, Yaqub AliJ. did not concur with Kaikaus, J. as according to him, any advice given by Cabinet to the Governor under Article 71(7) m Chewy "carried with it the weight of the majority of the Members of the accordingly the promulgation of the Ordinances was not an legislative act, which the courts of law cannot set aside except by i _ authority of the Members of the Provincial Assembly to enact laws «9»kh lie within their competence under the Constitution. 20. Although reference was made by KaikausJ. to the case of Punjab Province v. KJiizar Hayat Tiwana (PLD 1956 FC 200) wherein a contrary view had been taken but the same was not followed by him as the observations made by the Federal Court were not supported by any further discussion on the issue. However the learned Judge relied upon the observations made in the case of Soon Hinq v. P. Crowley, Chief of Police of the City of San Francisco (113 US 703) where Mr. Justice Field while delivering the opinion of the court said: "The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred pre-vailing in the City and Country of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation, and residence there, and not for any sanitary, police or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile". 21. The next case referred to by Kaikaus, J. in his judgment is the case of Emperor v. Benoari Lai Sanna (AIR 1945 P.C. 48). In this case an Ordinance was promulgated by the Governor General by virtue of powers conferred on him by para 72 of the Ninth Schedule to the Government of India Act enabling him to make and promulgate in case of emergency Ordinances "for the peace and good government of British India or any part thereof. The Ordinance was attacked inter alia on the ground of non-existance of an emergency as required by para 72 ibid. The attack was two-fold; (1) that an emergency did not exist and (2) that although the preamble of the Ordinance stated that an emergency existed, the Governor General did not in fact hold the opinion that an emergency existed and was only providing for emergency that may in future arise. The Ordinance was held to be ultra vires by the Calcutta High Court and the Federal Court of India. In the meanwhile Governor-General had promulgated another Ordinance in place of the impugned Ordinance so that when the appeal came up for hearing before their lordships of the Privy Council the question of validity of the Ordinance was more or less of academic interest. However their lordships dealt exhaustively with the question raised, holding that: "It is to be observed that the paragraph does not require the Governor General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2nd January, 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7th December, Rangoon had been bombed by the enemy on 23rd December; and again on 25th December; earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase ^ certain penalties, to deal with looting of property left unprotected by ' evacuation of premises and so forth". 22. In Jnan Prosanna v. Province of West Bengal (AIR 1949 Cal. 1) their lordships after going into the question of mala fides held that the same were not proved. Same was the case in re Kalyanam Veerabhadrayya (AIR 1950 Mad. 243). 23. A similar question also arose in Ziaur Rehman's case (PLD 1973 SC 49) and the Court was of the opinion that it could competently determine the question whether the impugned legislative instrument was conceived in bad faith or promulgated for any extraneous and collateral considerations, however in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) Muhammad Haleem Acting CJ. (as he then was) while narrowing down the scope of judicial scrutiny in such sases, observed as follows: "117. The words "competently" and validly" here have reference to the authority of the particular Legislature to legislate in regard to legislative lists and other constitutional limitations. Clearly from these observations the exertion of the legislative power, either by the elected Assembly or the President is not made dependent on any motive, wisdom, policy or impolicy or any rule of jurisprudence etc. and further it seeks to avoid a conflict between the two functional organs of the State....Again the observations of Hamoodur Rehman, CJ. undoubtedly bear out that the constitutionality of an act depends upon the exercise of power within constitutional limits and not upon motive or any other consideration." In the final analysis the learned Acting Chief Justice observed: "122. On principle there is no distinction between an Act and Ordinance as both are the product of the exercise of legislative power. Therefore, it leads to the same conflict if it were to be struck down on the ground of mala fides a contigency which has been strongly deprecated for the all embracing reasons in the aforementioned decision. In Zia-ur-Rehman's cases, Hamoodur Rehman, C.J., expressed himself alike at page 77 of the report: With political decisions or decisions on questions of policy, the judiciary is not concerned. Its function is to enforce the Constitution and to see that the other organs of the State confine themselves within the limitations prescribed therein." 24. This question was also considered by Muhammad Afzal Lone, J. in the case of Malik Ghulam Mustafa KJtar v. Pakistan reference to which has been already made earlier in this judgment. It has been observed by the learned Judge; "The reason that the power of judicial review is not available for questioning the wisdom of law-giver and the propriety of the law made by him, is that under the structural features of the constitution, prescribing trichotomy of powers, one organ of the State docs not usurp the powers of the other. The limits of the spheres of the Legislature, Executive and Judiciary are enumerated in the constitution. This separation of power, is, the pivotal fea f ure of the federalism and ensures rule of law in a Constitutional Government." 25. However, an exception was made by the learned Judge in case of a person who was acting as the Chief Martial Law Administrator during the Martial Law. It was thus observed: "Thus as long as the law is competently made, the Courts which are the creation of Constitution, do not interfere with the discretion exercised by the Legislature in enacting a particular law. This principle, however, cannot be extended to the Chief Martial Law Administrator, who during Martial Law, weilded all powers of State authority, and exercised the legislative and executive powers untrammelled by any limitation. As regards the judiciary no doubt, the ordinary Courts were not closed but they exercised their functions within the field un-occupied by the Military Courts and the Martial Law Authorities. To that extent even with regard to judiciary, the paramount power vested in the Chief Martial Law Administrator. In these circumstances, it is not possible to equate the Chief Martial Law Administrator with a representative legislature, and the immuniiy available to such a Legislature conferred on him." 26. Although our constitution envisages trichotomy of powers and the limits of the sphere within which each organ of the State can act are defined, but the acts of a Martial Law Administrator arc always liable to be subjected to a judicial scrutiny. In this respect no distinction can be drawn between the acts which are legislative or executive in nature. Even in Soon Hing v. Cmwley to which I have earlier referred, Mr. Justice Field has made on exception in the case of cases where the motives of the Legislators are inferable on the face of the Acts. Influenced by these observations, it was further held by Kaikaus, J. in the case of Qascem-ud-Din v. Province of West Pakistan that "the act though legislative in character remains an act of the Executive Government". He further observed: "Should the acts of the executive Government become immune from attack merely on the ground thai they take the form of Ordinances...." 27. General Mohammad Zia-ui-Haq although promulgated the Referendum' Order 1984 while excidsing his legislative powers vesting in him under the Provisional Constitution Order but the Court can hardly be oblivious of the fact that it was the same individual who was exercising both the executive as well as the legislative functions. His legislative functions, therefore cannot be outside the pale of judicial scrutiny. In this behalf I am further fortified by the observations of Muhammad Af/al Lone, J. in the case of Malik Ghulam Mustafa Kliario which I have already referred earlier, in the case of Fauji Foundation v. Shamimur AO Rahman no doubt Martial Law Regulation No. 103 had been impugned by the respondent and one of the grounds of attack was that the said regulation had been issued mala fide, but the Supreme Court was of the view that mala fides must be first established and the same could not be presumed or inferred in absence of sufficient material placing before the court in this behalf. However the context in which the present case is being examined is not the same, because the contention raised on behalf of the petitioners is thai mala fides are disclo-. J on the face of the legislation itself which has been impugned by them. 28.1 am consequently of the view that this court is competent to go into the .question of mala fides raised by the petitioners. 29.. However, before undertaking an examination of the Referendum Order, I would first like to deal with another important aspect of the matter. Assuming that General Mohammad Zia-ul-Haq was not a constitutional President but it is not disputed that for all practical purposes he was a de facto President, having appointed himself as such after the resignation of Ch: Fazal Ellahi by virtue of clause 3 of the President's Order 13 of 1978 which he himself issued in pursuance of the powers vesting in him under Proclamation of Fifth July 1977 read with Laws (Continuance in Force) Order, 1977 The question, therefore, arises whether his actions were saved by de facto doctrine which has been held by the Courts to give AS validity to the holders of de facto office notwithstanding any defect found in their appointment. The doctrine is founded upon the consideration of public policy and necessity and for the protection of individuals whose interests may be effected. In Lt. Col. FarzandAH and others v. Province of West Pakistan (PLD 1970 SC 98) the petitioners had challenged their retirement on the ground that the amendments made in the constitution by Acts IV and XV of 1965 and II of 1966 were passed by majority votes which included thirty-three persons who were not qualified under Article 103 of the Constitution of 1962 as it stood originally and as such power .assumed by the government in retiring them was not lawfully acquired. It was held by their Lordships of the Supreme Court that: "Upon these principles it was strenuously argued that the Third, Fourth and Sixth Constitutional Amendments are now unassailable because at any rate the allegedly disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duites with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of subclause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House to do so collaterally in proceedings not taken to lest the validity of their tille directly would lead to serious inconvenience to the public and those individuals whose interests have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights." 30. This case was followed by a Division Bench of this Court in the case of Abdul Salam Qnrcshi v. Judge, Special Court of Banking of Sind (PLD 1984 Kar. 462). The petitioner in this case had assailed the appointment of the Special Courts Banking for Sind on the ground that the person who was appointed a Judge thereof was not legally qualified, Naimuddin,.!. (as he then was) while extensively quoting from precedents concluded that the orders, judgments and decrees passed by the then Judge, Special Court Banking were saved by de facto doctrine. Reference was also made by him to a passage from Coney's Constitutional Limitations, 8lh Edn., Vol.2 p.1357 which reads as follows: "No one is under obligation to recognize or respect the acts of an intruder and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security or private rights the acts of Officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the Officer which he claims to be. In all other cases the acts of an Officer de facto are as valid and effectual, which he is suffered to retain the office, as though he were an Officer by right, and the same legal consequences will flow from them for the protection of the public and of third parlies. This is an important principle, which finds concise expression in the legal maxim that the acts of Officers de facto cannot be questioned collaterally." 31. Reference was also made by Naimuddin, J. to the observations made in Kilward v. Tliatchcr (1787)2 T.R. 81 and Scaddin v. Lorant (1851) 3 H L C 418. In the first case it was held that: "The question whether the judges below be properly judges or not, can never be datermincd, it is sufficient if they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the Judge de facto". In the second case the question arose whether a rate for the relief of the poor was rendered invalid for the reason that some of the vestrymen who made it were vestrymen de facto and not de jure. The Lord Chancellor said as follows: "With regard to the competency of the vestrymen who were vestrymen de facto, but not vestrymen dc jure, to make the rate, your Lordship will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose tide to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead i.f the validity of their acts, when in such office, depended upon the propiicty of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public Officers and it might also lead to persons instead of resorting to ordinary legal remedies to set right any­ thing done by the Officers, taking the law into their own hands". 32. Cases have also been cited by Naimuddin, J. from the Amrican jurisdiction. In Stale v. Gardner (Cases on Constitutional Law by MC. Convey & Haward, p.102) a question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Bradbury,J. observed "We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which Officers are to be known, who have acted under a statute that has subsequently been declared un­ constitutional, though we think such Officers might aptly be called de facto Officers". 33. In Norton v. Shelby County (1886) 118 US 425 it was observed: "The doctrine which gives validity to acts of Officers dc facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of public policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such Offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proccdding before such Officers their title could be called in question." 34. Cases have also been cited by Naimuddin,J. from the Indian jurisdiction. The Supreme Court of India in Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473) held that: "A Judge, de facto is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever the defect of his title to the office, judgments pronounced by him and acts dune by him when he- was dollied with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. The de facto doctrine saves such acts. There is yet another rule also based on public policy. The defective appointment ol a dc facto Judge may be questioned directly in a proceeding to which he be a parly but it cannot be permitted to be questioned in litigation between two private litigants, a litigation which is of no concern or con.scquencc to the Judge except as Judge, Two litigants litigating their private titles cannot be permitted to bring the issue and litigate upon the title of a Judge to his office. Otherwise as soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's tide to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack", 35. The de facto doctrine was also pressed into service by the High Court of Lahore in Malik Ghulain Jillani v. Province of Punjab (?LD 1979 Lah. 564). In this case a challenge to the assumption office of the "President" of Pakistan by General Mohammad Zia-uI-Haq was thrown by the petitioner. A mercy petition had been filed by Zuifiqar A!i Bhutto, the former Prime Minister of Pakistan for grant of pardon to him. The prayer in the petition was to restrain respondent Mohammad Zia-u!-Haq from considering or rejecting the mercy petition and for stay of the execution of the death sentence passed against Zuifiqar AH Bhutto, pending the final decision of the petition. However, the Lahore High Court dismissed the petition. Aftab Ahmad, J, one of the "learned judges constituting the Bench while referring to the case of Farzand Ali dismissed the petition in limine, 36. A question, therefore, arises whether de facto doctrine can be pressed' into service in the present case, because in the present case challenge has been thrown not merely to some actions taken by General Mohammad Zia-ul-Haq as the President of Pakistan but to the amendments introduced into the Constitution AT which have drastically altered its main features. Article 239 of the Constitution! requires the assent by the President to every amendment in the Constitution, passed by the Parliament. Article 239(2) before its amendment by the! Constitution (Eighth Amendment) Act, 1985 provided that: "(2) If the Bill is passed by the Senate by a majority of the total membership of the Senate it shall be presented to the President for assent." Article 239(2) after its amendment by the said Act, now provides: "(3) If the bill is passed with amendment by the votes of not less then 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 provisions of clause (4), be presented to the President for assent. We are not concerned here wifh the provisions of clause (4), but what can clearly 1 be spelt out from the provisions of Article 239, ibid (whether in their original or amended form) is that the assent of the President is required before a Bill passed by the two Houses can become an Act of the Parliament. There can hardly be any AU doubt that reference to the President in Article 239 read with article 75 of the Constitution does not mean to a person who is a President de facto but to a; Constitutional President. Consequently, in my opinion, the question cannot be; determined by merely calling in aid the de facto doctrine. 37. I may now turn to the Referendum Order, 1984. This Order which was issued by General Mohammad Zia-ul-Haq was published in the Gazette of Pakistan Extraordinary, dated 1st December, 1984. As indicated by clause 4 of the Order, the following question was referred to referendum: "Whether the people of Pakistan endorse the process initiated by General Mohammad Zia-ul-Haq, the President of Pakistan, for brining the laws of Pakistan in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him) and for the preservation of the Ideology of Pakistan, for the continuation and consolidation of that process and for the smooth and orderly transfer of power to the elected representatives of the people". According to Clause (5) of the Order, "The question shall be answered either by "Yes" or "No". Clause 7 of the Order which refers to the consequences of declaration of the result, then provides; , "If maj'ority of the votes cast in the referendum is in favour of the answer "Yes", the people of Pakistan shall be deemed to have endorsed all steps taken by the President of Pakistan for bringing the laws of Pakistan in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him) and for the preservation of the Ideology of Pakistan and for the continuation and consolidation of that process and for the smooth and orderly transfer of power to the elected representatives of the people; and General Mohammad Zia-ul-Haq shall be deemed to have been duly elected President of Pakistan for a term of five years from the day of the first meeting of the Houses of Parliament in joint sitting". (The underlining is mine.) 38. It will thus be seen that although the referendum was purportedly held to ascertain the will of the people of Pakistan, whether General Mohammad Zia-ul- Haq was acceptable to them as the President of Pakistan, but the question referred to the referendum was clearly misleading and even if the majority of votes cast at the referendum were "Yes" votes, yet by no measure of reason it could be inferred that General Mohammad Zia-ul-Haq had been elected as the President of Pakistan. In a country where the majority of the population consists of muslirns, the approval given by them to the new process of Islamisation initiated by General Mohammad Zia-ul-Haq can by no stretch of imagination be equated with approval for his continuance in office of the President of Pakistan. A V! Even to a man of ordinary prudence it would clearly appear that there was no nexus between the votes cast in favour of the answer "Yes" and the election of General Mohammad Zia-ul-Haq as the President of Pakistan. The General therefore, was the President not by virtue of the referendum which he professed to hold by Referendum Order, 1984 but by a fiction of law by virtue of the deeming provision embodied in Clause 7 of the Referendum Order, which provided that "General Mohammad Zia-ul-Haq shall be deemed to have been duly elected President of Pakistan " The Referendum Order was therefore, a legislation in bad faith and mala fide because in reality it was not what it ostensibly appeared to be. In Federation of Pakistan v. Saecd Ahmad KJian and .others (PLD 1974 SC 151) it was observed: "Male fide literally means "in bad faith". Action taken in bad faith Js 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 law under which the action is taken or action in fraud of the law are also mala fide...." 39. Mr. Rasheed Akhund has further contended that the method for election of the President provided in the Constitution was different and according to its modern concept, "referendum" is held only for submitting some legislative measures to direct vote of the people. He also referred to the meaning of "referendum" in Black's Law Dictionary which is as follows: "In the modern Constitutional law of Switzerland and elsewhere a method of submitting important legislative measure to direct vote of the whole people Right reserved to the people to adopt or reject any Act or measure which has been passed by legisaltivc body, and which in most cases, would without action on the part of the electors become a law". 40. Before Article 41(3) of the Constitution was amended by the Constitution (Eighth amendment) Act, 1985, the method of election of the President provided thereby was as follows: "(3) The President shall be elected by the members of Parliament in joint sitting in accordance with the provisions of the Second Schedule". However, Article 41 was amended by the Revival of the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and after its amendment Article 41(3) presided- as follows: "(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of— (a) the members of both Houses; and (b) The members of the Provincial Assemblies." Clause (7) of Article 41 further provided that: "(7) Notwithstanding anything contained in this Article or Article 43, or any other Article of the Constitution or any other law, General Mohammad Zia-ul-Haq, in consequence of the result of the referendum held on the nineteenth day of December, 1984 shall become the President of Pakistan on the day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections to the Houses of Majlis-e-Shoora (Parliament) and shall hold office for a term of five years from that day; and Article 44 and other provisions of the Constitution shall apply accordingly." 41. Clauses (3) and (7) ibid thus show that after the said amendments first' General Mohammad Zia-ul-Haq was to become the President of Pakistan on the day of the first meeting of "Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections to the two Houses and after the expiration of the period referred to in clause (7), the elction of the President was to take place in """" accordance with clause (3) of Article 41, which obviously was a marked deviation AW from the original Article 41(3). However, even if it is assumed for the time being that the Revival of the Constitution Order, 1985 was a valid piece of legislation, the assumption of the office of the President of Pakistan by General Mohammad Zia-ul-Haq by virtue of Clause (7) of Article 41 after promulgation of the Revival of the Constitution of 1973 Order, 1985 was by means of the referendum held on, ; the 19th day of December, 1984. As the said Referendum Order as pointed out earlier, was a colourable legislation meant to achieve a desired result by means of a deceit, as is disclosed by its various provisions already referred to by me, such legislation was liable to be declared void, and in my opinion, General Mohammad Zia-ul-Haq did not enjoy a de jure status as the President of Pakistan. ; Consequently, can the assent given to the said Bill by a person who did not enjoy a de jure status clothe the Constiluion (Eighth Amendment) Act 1985 with validity? The competency of the Parliament to amend the Constitution is subject to the i restrictions imposed by Article 239 of the Constitution. No amendment to the | Constitution of 1973 can be valid unless it is strictly made in accordance with the procedure provided by Article 239 of the Constitution. 42. The question relating to the validity of the eighth amendment too was examined by the Supreme Court in Federation of Pakistan v. Malik Gliulam Mustafa Kar (PLD 1989 SC 29) and it was held to be a valid legislation. However, the contention raised before the Supreme Court was as follows: " ................ Mr. U. Niamat Moulvi who appeared on behalf of of the appellant in Civil Appeal No. 285 of 1987. He argued that the Constitution (Eighth Amendment) Act 1985, which introduced Article 270-A in the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part of the Constitution. While elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution Order was still in force and under the Order there was no requirement that the President should give assent to the bills passed by the Majlis-e-Shoora. He further contended that even though by a notification issued under section 4 of the Revival of Constitution, Order most of the provisions of Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution could not become alive again as there could not be possibly two Constitutions governing the State simulteneously." This argument was repelled by the Supreme Court. However as is evident from the argument itself, the question raised before the Supreme Court was different. It is also pertinent to point out that earlier, the challenge to the Eighth Amendment was repelled by the High Court, holding that after the amendments to the Constitution were approved by the Parliament, the amendments had attained validity. (See Malik Glnilam Mustafa Kliar v. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669). It is therefore ,lear that the question now raised before us was not raised either before the F.gL Court or the Supreme Court in the case of Gulam Mustafa Khar. Therefore, notwithstanding the two judgments, the question raised in regard to the validity of t ie said Amendment can be re-examined by us. 43. However, this does not dispose of the matter as it remains to be considered whether the Referendum Order, 1984 can be subjected to a judicial review in view Article 270-A which was incorporated in the Revival of the Constitution Order, 1985. Article 270-A in the said Order provides as follows: "270-A. Validation and President's Order, etc.~(l) The Proclamation of the fifth day of July, 1977, all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding any judgment of any court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, 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 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 Orders, enactments, notifications, rules, orders 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. (3) All President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority. (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 purposes of clauses (1), (2) and (4) all orders made, proceedings 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) Any of the President's Orders referred to in clause (1) may be amended in the manner provided for amendment of the Constitution". 44. A pcrsual of Article 270-A shows that clause (1) of Article 270-A provides a blanket protection to the Proclamation of the fifth July, 1977, and all President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth day of July, 1977 and coming into force of the Revival of the Constitution Order and no such Acts or Orders etc. can be called in question in any Court on any ground whatsoever. Clause (2) of the Article provides further protection to all orders, proceedings, actions made or taken during such period. 45. Now, since General Mohammad Zia-ul-Haq became the President of Pakistan by virtue of Article 41(7) as incorporated in the Schedule to the President's Order 14 of 1985 and Article 270-A in the said Order provided validity to all President's Orders, Martial Law Regulation, Martial Law Orders and all other Laws made on or after fifth July, 1977, the question arises whether the Referendum Order, 1984 and the amendments incorporated in the Revival of Constitution Order can he subjected to a judicial scrutiny. It may be pointed out that General Mohammad Zia-ul-Haq initially assumed legislative powers including power to amend the Constitution by virtue of the Supreme Courts' Judgment in Begum Nusral Bhutto's case, ibid. Such powers were given to him by the Supreme Court while invoking the doctrine of necessity, which" as held by the Supreme Court itself, is a doctrine of condonation and not validation. Notwithstanding the fact that the Supreme Court in the case of Zulfiqar Ali Bhutto (PLD 1978 SC 40) and this court in Haji Abdullah's case (PLD 1980 Kar. 498) held that such power was not subject to restrictions and thereafter, Provisional Constitution Order 1981 was promulgated, the Revival of the Constitution Order, 1985 and Article 41(3) and (7) incorporated therein cannot hold the same status as Constitutional provisions and acquire immunity from judicial review under Article 270-A, as incorporated in the said Order. Furthermore the Provisional Constitution Order under which the Revival of the Constitution Order was promulgated, itself could not enjoy the same status as a constitutional instrument without grant of validation by the Parliament (See p.84 of Slate v. Ziaur Rahman PLD 1973 SC 49). Refering to Article 270-A, now incorporated in the Constitution, the learned Chief Justice in Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) said: " .................... During the specified period, the Constitution was in abeyance and so were the fundamental rights. Therefore, the power to enact legal measures which was derived from the proclamation of fifth day of July, 1977, and the Laws (Continuance in Force) Order was without any limitation as to the subject of legislation. There was no occasion, however, for any conflict of the legal measures, the state of things then existing with any constitution." It was further observed: "Having regard to the purpose of validation the defects in the legal measures when enacted during the specified dates had to be cured in the state of things as they existed which, of course, did not include any violation of a Constitutional norm; and validity in this context could not be said to have achieved anything more than this". However, Mr. Justice Muhammad Haleem was examining the effect of Article 270-A after it was incorporated in the Constitution. Article 270-A as embodied in „ the Revival of Constitution Order cannot assume the same status. Therefore in my opinion, the Revival of Constitution Order 1985, notwithstanding Article 270- A incorporated therein is not immune from judicial review under Article 199 of ,the Constitution. 47. In Saecd Ahmad's case, ibid, the following observations made by Hamoodur Rchman, C.J., appear at page 172 of the report: "For the reasons given above, we have come to the conclusion that the High Court rightly decided the preliminary objection. Action or proceedings taken without jurisdiction or mala fide or orders of judicial or </«a.«'-judicial nature which arc coram non judice are not validated by either clause (2) of Article 281 of the Interim Constitution as amended by the President's Order No. 3 of 1973 or by clause (2) of Article 269 of the Permanent Constitution". In Shamimur Reham v. Government of Pakistan (PLD 1980 Kar. 345), SA.Nusrat,, J. who delivered the judgment of the Division Bench observed: "If therefore, it can be successfully demonstrated that a legislative instrument was conceived in bad faith and enacted mala fide or for any collateral purpose there seems no reason for holding that such an instrument could not be declared void". The judgment hi the above case was not upheld by the Supreme Court but the facts of the present case are distinguishable as mala fides appear on the face of the Referendum Order. Even in the said case decided by the Supreme Court (PLD 1983 SC 457) Zafar Hussain MirzaJ. did not concur with the opinion of the Hon'ble Acting Chief Justice vis-a-vis the concept of limitation on the judicial power of scrutiny, although he agreed with him on all other issues involved in the case. M.S.H. Qureshi, J. agreed only to the extent that Martial Law Regulation No. 103 was immune from scrutiny by virtue of Art. 281(1) and Art. 269(1) of the interim and permanent Constitutions respectively. Shafiur Rehman, J. however fully concurred with the Hon'ble Acting Chief Justice. 48. I now turn to the apprehensions shown by Mr. S.M.Zafar and Mr. AA..Fazeel, according to whom, many important offices and institutions would be rendered on est if the said amendments to the Constitution are held to be null and void. The size of the National Assembly has been altered by amendment of Art. 51 of the Constitution and the number of seats therein has been increased. So is the case with Senate as the number of its Members has been increased from 63 to 87. (See Article 59 of the Constitution). The electoral college for the election of President has been altered by amendment of Article 41(3) of the Constitution. The mode of appointment of the Prime Minister has also been altered. (Article 91(2) of the Constitution). All such offices and institutions would therefore be rendered non est, according to S.M.Zafar, and many others as referred to by him. Although the apprehensions shown by the learned counsel are not incorrect and I am not unmindedful of the duty cast upon us to preserve rather than destroy the legal order now existing in the country, particularly when it is still in the process of complete transition from Martial Law to a democratic order and as was observed by Shafiur Rehman, J in Federation of Pakistan v. Muhammad Saifullah Klian (PLD 1989 SC 166), "the court will stand for constitutionalism rather than departures and deviation from it" but as was observed by the Supreme Com? in MissAsma Jilani v. Government of Punjab (PLD 1972 SC 139), all such acts which tend to advance or promote the good of the people required to be done for the ordinary orderly running of the State can be condoned. Hamoodur Rehman, C J., at page 206 of the report in the said case has observed: "I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and up§et the social order itself but I respectfully beg to disagree with the view that this is a doctine for validating the illegal acts of usurpers in my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise should be condoned or maintained notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization. "Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening them (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the various legal order, (3) all acts which tend to advance or promote the good of people, (4) all acts required to be done for the ordinary running of the State and all such measures as would establish or lead to the establishment of, in our case, the objective mentioned in the Objectives Resolution of 1949. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far-as-they may be designed to advance the social welfare and national solidarity." 49. Following the observations made by Hamoodur Rehman, C.J., in the aforesaid case, the National Assembly elected under the amended Constitution may continue to function till the next Assembly is elected by the people of Pakistan in accordance with the provisions contained in the Constitution of 1973 in its original form, the elections of the President and the Prime Minister untill the expiry of their present term of office likewise may also not be disturbed. Similarly, all appointments made under the amended Constitution may continue to remain valid as if they were made under the 1973 Constitution, unamended. I would also condone all other acts and transactions which advance or promote the good of the people and which are for the advancement of the democratic order in Pakistan. However, the Senate cannot continue to function, being a permanent body. Mr. S.M. Zafar has referred to clause (3) of Article 59 of the Constitution, according to which "The Senate shall not be subjected to dissolution". However, no obstacle has been created for the courts and the Senate if not constituted in accordance with the Constitution can be declared as non est by the courts under Article 199 of the Constitution. No doubt we have taken oath under the .Constitution to preserve and protect it but can we sustain a provision thereof which is ab initio void? The power to declare such provision as non est is inherent in the courts under article 199 of the Constitution. 50. In the result, I would allow these petitions and declare the Constitution (Eighth Amendment) Act 1985 and the impugned amendments in the Constitution as null and void and of no legal effect. I would further hold that the election to and the constitution of the Senate and the extention of the term of its J Members from four to six years is violative of the Constitution and hence without ] lawful authority.

PLJ 1990 Karachi 135 PLJ 1990 Karachi 135 Present: SALEEM AKHTAR, J M/s NISHAT TALKIES-Petitioner versus INCOME TAX OFFICER, Karachi and 2 others-Respondents Constitutional Petition No. D-576 of 1987, accepted on 16-2-1989. Income Tax Ordinance, 1979 (XXXI of 1979)-- —S.65 read with Section 136-Tribunal~Decision of~Not challenging of~Effect of—Whether notice under Section 65 can be issued—Question of—Where a Tribunal has given decision and it is not challenged by way of reference to High Court, judgment of Tribunal becomes final—In this case, assessments for 1975-76 and 1976-77 were finally disposed of by Income Tax Appellate Tribunal and Department did not file any application under Section 136 for reference to High Court-Held: Order of Tribunal attained finality and such order cannot be re-opened by Income Tax officer-Held further: Income Tax officer had no jurisdiction to start reassessment proceedings under section 65 of Ordinance-Proceedings quashed. [Pp. 136,137&140]A, B, C&D PLJ 1988 Karachi 313 and (1965) 56 ITR 234 relied. Mr. Sirajul Haq, Advocate for Petitioner. Mr. Shaikh Haider, Advocate for Respondents. Dates of hearing: 14 and 15-12-1988. judgment The petitioner is a partnership firm engaged in exhibition of films in cinema house known as Nishat Talkies. The petitioner realized a sum of Rs.386,345/-by way of Entertainment Duty in the assessment year 1975-76. In the return of total income this amount was mentioned as 'income claimed to be exempt'. The respondent No.l considered the said amount liable to tax. An appeal filed before Appellate Assistant Commissioner of Income Tax was dismissed and finally the petitioner preferred a second appeal. The respendent No.3 while deciding the appeal did not deal with the question of taxability of the Entertainment Duty which had been included in the income of the petitioner. The petitioner therefore filed Misc. application before the respondent No.3 under section 35 of the Income Tax Act in which it was submitted that during hearing the addition of Entertainment Duty in the income was assailed but no decision has been given on that point. The Tribunal found the submission to be correct and proceeded to hear the case on this limited point. By an order dated 30.3.1980 the appeal was allowed on this issue and tax was not levied on the said amount. In the year 1976-77 the petitioner claimed exemption in respect of Rs. 4,34,381/-realised by it as Entertainment Duty. Following its earlier decision the respondent No.3 did not treat the amount of Entertainment Duty as trading receipt. The Department accepted both the decisions of the Tribunal as it did not file any application for reference to the High Court. In the year 1977-78 the petitioner realised Rs. 327,574/- as Entertainment Duty. By now the Entertainment Duty for three years had swelled to Rs.l,148,309/.As it was treated a trading receipt on appeal filed by the petitioner the same question came up for consideration before the respondent No.3 who took a contrary view and held that sum of Rs.327,574/- received in the year 1977-78 was taxable. The petitioner has challenged this order of the Tribunal in Income Tax Reference No 131/87 which has been decided by this Court in its favour. In 1986 when the respondent No.l was considering the enforcement of the order in respect of the year 1977-78 he issued a notice dated 20.9.1986 to show cause why in view of the order of the Tribunal the Entertainment Duty realised and retained by the petitioners during the years 1975-76 and 1976-77 should not be treated as trading receipts. He further threatened that if no reply was sent action shall be taken under section 65 of the Income Tax Ordinance. The petitioner replied the notice challenging the jurisdiction of respondent No.l who then issued notices under section 65 of the Income Tax Act in respect of the aforestated years. The petitioner filed MiscApplication before the respondent No.3 seeking protection as in respect of the same subject matter it had given its finding which was final and could not be re-opened by the Income Tax Officer, the respondent No.l. This application was dismissed holding that the respondent,No.l has jurisdiction to initiate action under section 65. The petitioner then challenged the action of the respondent No.l in this petition. After it was admitted, on application filed by the respondent No.l, he was allowed to proceed with the matter and pass assessment order as the same would have been time barred pn 30.6.1988. The respondent No.l completed the assessment. The petitioner has challenged all the orders which were passed on the basis of the impugned notices. In the counter affidavit it has been stated that for assessment year 1977-78 the petitioner in his return disclosed an income of Rs. 1148309 as Entertainment Duty payable to the Provincial Government. The respondent No.l treated this amount as trading receipts of the petitioners and added to their profit. In appeal before the Tribunal this treatment was maintained but the amount in respect of previous years was not included however it was observed that the circumstances in the year 1975-76 and 1976-77 were different in as much as the petitioners had not distributed the amount retained by them amongst the partners of the petitioners. It seems that during assessment year 1977-78 the petitioner had distributed the entire amount of Entertainment Duty amongst its partners. This fact seems to have impressed the respondent No.3 to maintain the assessment order passed by the respondent No.l. It has been pleaded that in the earlier assessment years the amount received as Entertainment Duty was not distributed amongst the partners but in the assessment year 1977-78 it was distributed amongst them and utilized for their own benefit. The earlier Bench had no occasion to consider all the relevant facts and circumstances under which the aforesaid receipts were allegedly realized by the petitioner. It was further maintained that action taken by the respondent No.l is proper and valid. Mr. Sirajul Haque the learned counsel for the petitioner has contended that once an order becomes final under section 135 of the Income Tax Ordinance the Income Tax Officer has no jurisdiction to issue a notice under section 65 of the Ordinance. It has further been contended that notices were issued without jurisdiction and were barred by time. In support of his contention the learned counsel has relied on Dr. Shroff Vs. Income Tax Officer and 2 others PLJ 1988 Kar. 313, Income Tax Officer, Central Circle II, Karachi and another Vs. Cement Agencies Limited (1969)20 Taxation 1 and Commissioner of Income Tax, Delhi and Rajasthan Vs. Ras Thakur Narayan Singh (1965) 56 ITR 234. From all these Judgments the rule which emerges is that where a Tribunal has given a decision and it has not been challanged by way of reference to the High Court as provided under law, the judgment so given by the Tribunal becomes final and binding on the parties. Mr. Shaikh Haider the learned counsel for the respondents has contended that the moment the amount was distributed amongst the partners it became taxable. In these proceedings we are not called upon to give our decision on the question of validity of the order passed by the respondent No.3 while deciding the appeal of the petitoner in respect of assessment year 1977-78 as it is subject matter of Civil Reference No.31/1987. The short point involved is whether after the order of the Tribunal treating the Excise Duty collected during 1977-78 as trading receipt notice under section 65 of the Income Tax Ordinance could be issued to the petitioner. According to Mr.Shaikh Haider the Income Tax'Officer received information from the order of the Tribunal and as such he was justified in re-opening the case under section 65 of the Income Tax Ordinance. Section 65 of the Income Tax Ordinance reads as follows:- Section:65. Additional assessment.-(l) If, in any year, for any reason,- (a) any income chargeable to tax under this Ordinance has escaped assessment; or (b) the total income of an assessee has been under assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund under this Ordinance; or (c) the total income of an assessee or the tax payable by him has been assessed or determined under sub-section (1) of section 59 and no order of assessment has subsequently been made under this section or any other provision of this Ordinance, The Income Tax Officer may, at any time, subject to the provisions of sub-sections (2),(3) and (4), issue a notice to the assessee containing all or any of the requirements or a notice under section 56 and may proceed to assess or determine, by an order in writing, the total income of the assessee or the tax payable by him, as the case may be, and all -the provisions of this Ordinance shall, so far as may be, apply accordingly: Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made.. (2) No proceedings under sub-section (1) shall be initiated unless definite information has come into the possession of the Income Tax Officer or he has obtained the previous approval of the Inspecting Assistant Commissioner of Income Tax in writing to do so. (3) Notice under sub-section (1) in respect of any income year,may be issued within ten years from the end of the assessment year in which the total income of the said income year was first assessable. (3-A) Where a notice under sub-section (1) has been issued, no order under the said subsection shall be made after the expiration of one year from the end of the financial year in which such notice was served. (4) Nothing contained in sub-section (2) shall apply to any such case or class or cases to which clause (c) of sub-section (1) applies as may be specified by the Central Board of Revenue. The Incom Tax Officer is authorised to reassess an assessee if the income has escaped assessment or assessed at too low a rate or excessive relief or refund has been granted or the total income or tax payable by an assessee has been determined under section 59 (v) and no assessment order has been passed. However the precondition to the exercise of this power is that such proceeding shall be initiated only when the Income Tax Officer has definite information that any one of the conditions mentioned in section 65(1) do exist or the written approval of the Inspecting Assistant Commissioner of Income Tax has been obtained prior to taking such action. Another restriction is that notice under section 65(1) should be issued before the expiry of ten years from the end of the assessment (year) when the total income of the said income year was first assessable. In the present case the stand of the respondents is that definite information came into the possession of the Income Tax Officer from the order of the Tribunal. We have noted a series of judgments of the High Courts in India where it was held that the change of law or the order of the Tribunal expressing a different view from its earlier order can not constitute information for reopening the assessment. Some of those judgments are as follows: (1) R.D. Dahmia v. Income Tax Officer New Delhi (1964) 52ITR 416 (2) Sadu v. Income Tax Officer 1964 PTD 59 (3) Lala Panna Lai v. Income Tax Commissioner (1948) 33 ITR 145 . (4) Shobh Koran Co. v. Commissioner of Income Tax (1953) 24 ITR 388 (5) Shoblikaran Seksaria v. Commissioner of Income Tax 1950 (18) ITR 773 (6) K.P.S.V. Rajirathina Nadar& sons v. Commissioner of Income Tax Ecise Profit Tax (1956) 59 I. T. R. 34. In the aforestated judgments of the High Court the view has been expressed that due to change of law or judgment no information can be gained for initiating action under section 34. However this view has not found favour with the Supreme Court of India. In this regard Mr. Shaikh Haider has relied on (1976) 104 ITR 295. We have also noted that in Maharaj Kumar Kama! Singh v. Commissioner of Income Tax, Bihar and Orissa (1959) 35 ITR 1 it was observed as follows: It is not disputed that, according to its strict literal meaning, the word 'information' may include knowledge even about a state of the law or a decision on a point of law. The argument, however, is that the context requires that the word 'information' should receive a narrower construction limiting it to facts or factual material as distinguished from information as to the true state of the law It is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise the Income Tax Officer's orders and to rectify mistakes respectively and so it would be legitimate to construe the word 'information' in section 34 (1) (b) strictly and to confine it to information in regard to facts or particulars. This argument also is not valid. If the word 'information' in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit it to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by section 33B and 35. Besides, the application of these two sections is subject to the limitations prescribed by them; and so the fact that said sections confer powers for revision or rectification would not be relevant and material in construing section 34 (1) (b) On the other hand, one of the cases specifically mentioned in section 34 (1) (b) necessarily postulates that the word 'information' must have reference to information as to law. Where, in consequence of information in his possession, the Income-Tax Officer has reason to believe that income has been assessed at too low a rate, he is empowered to revise the assessment; and there can be no doubt that the belief of the Income-Tax Officer that any given income has been assessed at too low a rate may in many cases be due to information about the true legal position in the matter of the relevant rates. If the word 'information' in reference to this class of cases must necessarily include information as to law, it is impossible to accept the argument that, in regard to the other cases falling under the same provision, the same word should have a narrower and a more limited meaning. We would accordingly hold that the word 'information' hi section 34 (1) (b) includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions. If that be the true position, the argument that the Income-Tax Officer was not justified in treating the Privy Council decision in question as information within section 34 (1) (b) cannot be accepted." Again in Mooljee Sicka and Co v. Second Additional Income Tax Officer V (1) & ors (1960) 40 ITR 163 for the assessment year 1953-54 exemption was granted in respect of 50% of the income derived from collection and sale of Tender Leaves. The exemption was allowed in view of a Judgment of High Court in Mooljee Sicka's case (1939) 7 ITR 493. No appeal was filed against this assessment. In another case Commissioner of Income Tax v. Raja Bend Kumar Sahas Roy (1957) 3 ITR 466 the Supreme Court of India held that income derived from trees of spontaneous growth could be treated as agricultural income without any basic operation being performed. The Income Tax Officer started proceeding under section 34. The petitioner challanged it as without jurisdiction and it is held: "In other words, where an exemption had been granted by the income-tax authorities on the ground that the law was to be applied in a particular manner, and if it was subsequently hied by an authoritative decision that the law applicable was different, then that was sufficient information which would warrant a reopening of the assessment." In India this seems to be the settled view. Mr. Sirajul Haq has referred to Income Tax Officer Central Circle Karachi v. Cement Agencies Ltd PLD 1969 S.C. 322 where a contrary view has been taken in espect of cases which have attained finality in law. For proper appreciation we reproduce the following observation of the Honourable Supreme Court: " The Appellate Assistant Commissioner and the Income-Tax Appellate Tribunal took the view that since the Managing Agent and the Managed Company were both residents outside Pakistan, the commission ; earned by the Managing Agent in regard to the two Cement Factories of the managaed company in Pakistan was not taxable in Pakistan. This Court in the case of Octavius Steel & Company Ltd. v. The Commissioner of Income-Tax, Dacca, however, took a different view. After the decision of this Court in the above case the second set of notices were issued to the respondent. The question that arises is whether this was permissible. In my view such a course is not sanctioned by law. do not see how on the basis of the judgment of this Court in Octavius ^ I Steel & Company Ltd.'s case past and closed transctions could be reopened. The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in I accordance with law, no fresh proceedings could be initiated in respect of these years.' In the present case the assessment in respect of assessment years 1975-76 and 1976-77 were finally disposed off by the orders of the Income Tax Appellate Tribunal and the Department did not file any application under section 136 of the Ordinance for reference to the High Court. Therefore in terms of section 135 (9)B of the Ordinance the order passed by the Appellate Tribunal became final. Such i order can not be reopened by the Incme Tax Officer, Reference is made to Dr. Shroff vJncome Tax Officer and 2 others PLJ 1988 Kar. 313 and Commissioner of Income-Tax Delhi and Rajasthan v. Rao Thakur Narayan Singh (1965) 56 ITR 234. In view of the observations of the Honourable Supreme Court which is binding on us the Income Tax Officer (Respondent No. 1) on the basis of the order of the Tribunal in a completely independent case, though against the same assessee, where it had expressed a view contrary to what had been expressed earlier, had no jurisdiction to start reassessment proceeding under section 65 of the Ordinance upsetting the order of Tribunal which had attained finality. We therefore declare that the notices under Section 65 of the Income Tax Ordinance were issued by the Income Tax Officer without lawful authority and are of no legal effect. Since proceedings initiated were without jurisdiction all subsequent actions taken, order made and assessment framed are also without lawful authority, of no legal effect and are quashed. , Petition allowed. (MBC) Petition accepted.

PLJ 1990 Karachi 141 PLJ 1990 Karachi 141 Present: MAMOON KAZI, J SHAKIL ADILZADAH-Plantiff Versus PAKISTAN TELEVISION CORPORATION LTD and 2 others-Defendants Misc. Application in Civil Suit No. 947 of 1989, dismissed on 28-9-1989. (i) Civil Procedure Code, 1908 (V of 1908)- —O.XXXIX Rr. 1 & 2 read with Copyright Ordinance, 1962, Section 15-- Temporary injunction-Grant of~Prayer for—Infringement of a copyright-­Allegation of~Factors to be considered by Court—Copyright can be assigned only by a written agreement—Even though copyright has not been specifically assigned, court can still draw its inference by looking at agreement—Held: Copyright cannot be presumed and court would grant injunction to prevent infirngement of copyright only when right claimed by plaintiff is clear. [Pp. ?46&47}A AIR 1973 Mad. 49, AIR 1975 Delhi 130, AIR 1935 Lahore 282 and AIR 1935 Cal.508/-e/. (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX Rr. 1 & 2 read with Copyright Ordinance, 1962, Section 15-temporary injunction—Grant of—Prayer for~Infringement of copyright-­ Ground of—Onus is on Plaintiff to establish aprimafaci case-He has failed to establish a clear title in copyright of novel "Jangloos"—Thirteen episodes out of 32 have already been recorded for telecast-Held: Since plaintiff has failed to establish that there was even an oral agreement between him and defendant No. 2 giving exclusive rights in respect of story "Jangloos" to plaintiff, latter has failed to establish a prima facie case for granting injunction in his favour- Application dismissed. [Pp. 148&149]C&D (Hi) Copyright Ordinance, 1962 (XXXIV of 1962)-- —S.15—Copyright-Assignment of~Proof of~No doubt Section 15 of Ordinance does not require any particular form for assignment of copyright, but at same time assignment must clearly be spelt out from writing-Nothing can be spelt out from 30 debit vouchers signed by defendant No.2 that any copyright was assigned by him to plaintiff-Held: No inference can be drawn that defendant No. 2 had assigned copyright of his novel "Jangloos" to Plaintiff, [Pp. 147&148JB Mr. IqbalKazi, Advocate for Plaintiff. Mr. A-A. Sharif, Advocate for Defendant No. 1. Mr. S. Izhar Haider Rizvi, Advocate for Defendant No.2. Mr. Mubarak Ahmad, advocate for Defendant No.3. Date of hearing: 28-9-1989. order The Plaintiff, by an interim injunction, seeks to restrain the defendant from publishing, telecasting, producing, filming, marketing, exhibiting, celling, assigning or dealing with novel JANGLOOS' a literary work produced by the defendant No. 2. 2. The facts of the case, as alleged in the Plaint are that in 1977 the defendant No. 2, who is a well known novelist, had agreed to write in series a novel titled 'JANGLOOS' for the Plaintiffs magazine published in Urdu language, known as Subrang'. It was agreed between the Plaintiff and the defendant No. 2 that for each instalment of the said novel, the defendant would be paid a total consideration of Rs.3,000/- which shall amount to a sale and assignment of that part to the Plaintiff thereby constituting the Plaintiff as the holder of copyright therein. It was further agreed between the parties that the said story would not be published in any other magazine or by way of a novel nor the story would be given to any film producer for making a film or to Pakistan Television Corporation for telecasting the same, thus assigning the entire copyright to the Plaintiff. 3. Pursuant to the agreement, the defendant No. 2 submitted in all 42 instalments of the said stroy to the Plaintiff out of which 28 1/2 instalments were published in the said magazine of the Plaintiff. The total consideration received by the defendant No. 2 from the Plaintiff for the assignment of the said rights in the 42 instalments was Rs. 1, 26,000/-for which receipts were duly issued by the defendant No. 2, copies of which have been filed with the Plaint as Annexure 'A-F toA-30'. 4. However, to a great surprise of the Plaintiff, the defendant No. 2 got the first volume of novel 'Jangloos' published in November 1986, through the defendant No. 3. The Plaintiff protested about the same, but the defendant No. 2 assured the plaintiff that till the entire series of 'Jangloos' were published in Subrang' he would not publish any other part of ihe said stroy nor give the same for film-making or telecasting. However, on 1-9-1989 the Plaintiff came across a copy of the second volume of 'Jangloos' published by the defendant No. 3, which was in violation of the said rights of the Plaintiff resulting in loss to him. 5. The defendant also came to know that the story of 'Jangloos' was being televised. The Plaintiff thereafter, approached the defendant No. 2 and tried to convince him that it would be absolutely wrong for him to televise the novel without permission of the Plaintiff particularly when the defendant No. 2 had received full consideration for the novel from the Plaintiff, however, the defendant No. 2 failed to settle the matter. 6. Thereafter, the Plaintiff was constrained to send an Advojcate^s notice, dated 24-8-89 to the defendant No.l, but the defendant failed tcTrespj>nj|i. to the said notice, although a reply was received from the defendant No. 2 denying that any right or interest in the novel 'Jangloos' had been assigned to the Plaintiff, and hence the suit. 7. The said allegations have been denied by the defendants in the respective counter-affidavits filed on their behalf. According to the defendant No. 2 no right in the said novel or story had been assigned by the defendant to the Plaintiff, nor had the defendant agreed that the story would not be published or telecast as alleged by the Plaintiff. Although the receipt of the amount of Rs. 1, 26, OOO/- by the defendant No. 2 • from the Plaintiff has not been denied, but the 'same, according to the defendant, had not been paid to him as cosideration for the said story but only as a nazrana. However, the Publication of 28 1/2 instalments of the story in the said magazine of the Plaintiff with permission of the defendant No. 2 has not been denied. 8. According to the defendant No. 1 it was as far back as in 1983 that the said defendant under an agreement with defendant No. 2 took steps to telecast 'Jangloos'. Pursuant to the said agreement, the defendant No. 1 in 1983 had started production for the purpose of transmission and telecast of 'Jangloos' as a drama serial and the fact that the defendant No. 1 was working on script of a pilot programme for telecasting the said serial under an agreement with the defendant No. 2 had received a wide publicity in the national press throughout the length and breadth of the country, but neither the Plaintiff himself nor any body claiming on his behalf questioned the same in any manner, or claimed to have any copyright in respect of the story. However, the drama could not be telecast and the project on account of unavoidable reasons was temporarily shelved. According to the defendant No. 1 Four episodes of drama serial of 'Jangloos' have already been telecast out of the 32 scheduled to be telecast. Once again the proposed telecast of the drama serial received wide publicity through the national press in April/May, 1989. The defendant No. 1 has already made commitments to eight various sponsors for televising the 32 episodes of the said serial and advance recording of 13 episodes in normal course has already been completed. Consequently, according to the defendant No. 1, the issuance of injunction in favour of the Plaintiff would cause heavy financial loss to the Defendants. 9. The case of the defendant No. 3 is also not different from that of the other defendants. According to the defendant, before the publication of the novel, 'Jangloos' in February, 1987, the defendant inquired from the Plaintiff whether the copyright of the novel had been assigned to him by it's author, the defendant No. 2, but the Plaintiff confirmed that no such copyright had been obtained by him from the author of the said novel. According to the defendant No. 3, the novel was published by him after obtaining such assurance from the Plaintiff. The silence of the Plaintiff for nearly three years after the publication of the first edition of the novel, therefore, according to the defendant No. 3, clearly militates against his bonafides. 10. I have heard Mr. Iqbal Kazi, learned counsel for the Plaintiff and Mr. A.A. Shareef, Mr. Izhar Haider Rizvi and Mr. Mubarak Ahmad, learned counsel for the defendant No. 1, 2, and 3 respectively. 11. Although many issues have been raised by the learned counsel, but I would like to deal with the basic issues first, viz, whether the Plaintiff has any copyright in the story/novel 'Jangloos' and/or whether there was any agreement between the plaintiff and the defendant No. 2, giving exclusive rights in respect of the said story to the Plaintiff. If any of these questions is answered, in the affirmative, then there will be no difficulty in determining whether the defendants ave infringed the Plaintiffs rights in the said story. 12. The Copyright Ordinance, 1962 (hereinafter referred to as 'the Ordinance') which governs all matters relating to copyright in Pakistan came into force on 27th February, 1987. "Copyright" is defined by Section 3 of the Ordinance and copyright in the case of literary, dramatic or musical work has been define'd by Clause (a) thereof as follows: "3Meaning of Copyright (1). For the purposes of this Ordinance, Copyright" means the exclusive right, by virtue of, and subject to, the provisions of this Ordinance- (a) in the case of a literary, dramatic or musical work to do and authorize the doing of any of the following acts, namely: - (i) to reproduce the work in any material form: (ii) to publish the work: (iii) to perform the work in public; iv) to produce, reproduce, perform or publish any translation of the work: v) to use the work in a cinematographic work or make a record in respect of the work: vi) to communicate the work by radio diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio-­ diffusion of the work: vii) to make any adaptation of the work: viii) to do in relation to translation or an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (vi):" Section 13 of the Ordinance provides that "the author of a work shall be the first owner of the copyright therein". Proviso (a) to Section 13 further provides that "in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspapers, magazine or similar periodical under a contract of service or apprenticeship, for the purpose' of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work. Proviso (c), which is also relevant provides that "in ;h. casO of work made in the course of the author's employment under a contract ol service or apprenticeship to which clasue (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary be the first owner of the copyright therein". Section 14 of the Ordinance further provides that "The owner of the copyright in an existing work of the prospective owner of the copyright in a future work may assign to any person the -copyright either wholly or partially and either generally or subject to limitations or either for the whole term of the copyright or any part thereof. Section 14 is subject to two provisos and according to the first one, in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. The second proviso fixes a period of assignment and according to it, the same shall not be for a period of more than 10 years beginning from the calender year next following the year in which the assignment is made. However, an exception has been made in respect of cases where the assignment is made in favour of Government or educational, charitable, religious or non-profit institution. The proviso further provides that if an assignment of copyright in a work is made in contravention of this proviso, the copyright in the work shall, on the expiry of the period specified in this proviso, revert to the author, who may re-assign the copyright in the work subject to the provisions of the Ordinance. Section 15 of the Ordinance, which is most improtant for the purpose of the present controversy provides as follows: 15 Mode of assignment. No assignment of the copyright in any work shall be valid unless it is in writting signed by the'assignor or by his duly authorised agent". 13. Referring to the provisions of the Ordinance referred to hereinabove, Mr. Iqbal Kazi has vehemently argued that the entire copyright in the said book had stood assigned by the defendant No. 2 to the Plaintiff for which a substantial consideration of Rs. 3000/- per month for each instalment had been received by the latter. Although it has been very candidly conceded by the learned counsel that there was no formal agreement between the defendant No. 2 and the Plaintiff giving exclusive rights in the said story to the Plaintiff, but according to the learned counsel, the thirty debit vouchers (Annexures 'A-l to A-30' which were admittedly signed by the Defendant No. 2 acknowledging the receipt of Rs.3,000/- for each instalment of the story from the Plaintiff, constituted different agreements in writing to meet the requirements of Section 15 of the Ordinance as no particular form for the agreement is visualised by Section 15, the only requirement being that the agreement should be in writing and singed by the assignor or by his duly authorised agent. The learned counsel has also referred to various other documents, copies of which have been filed with the Plaint as Annexures 'C.D.E. and F which according to him, supported his contention. Reliance has been placed by the learned counsel on Sri Mongol and Co. v. Books (India) Pvt. Ltd. and others (A.I.R. 1973 Mad.49) Kliemraj Shrikrishandass v. M/s. Gard& Co. (A.I.R. 1975 Delhi 130) G.G. Harrap & Co. Ltd. v. Harbam LalKalra (A.I.R. 1935 Lhr. 282) and Kamala Book Dept Ltd. v. Sourendrenath Mukharji (A.I.R. 1935 Cal. 508). 14. In the case reported in A.I.R. 1973 Mad. 49, their lordships of the Madras High Court while interpreting similar provisions of the Indian Copyright Act as are contained in Section 15 of the Ordinance, held that no particular form of assignment of any copyright in any work is required and it will suffice if the assignment can be cuilled out in writing from some document and that the assignment has been authorised by the author is evident from his signature or that of his authorised agent. In the case reported in A.I.R. 1975 Delhi 130, it was held that where work is done by an author for a consideration for a publisher the copyright would normally vest in the publisher subject to any contract to the contrary as provided in sections 17 and 18 of the Copyright Ordinance, 1957 (enforceable in India). However, in 1968 Kar. L.J. 440 it was held that the mere circumstance that the author had been engaged by a publisher to write a book for a fixed remuneration does not warrant any legal presumption that the intention of the parties was that the copyright should belong to the publisher. In the third case, cited by Mr. Iqbal Kazi and reported in A.I.R. 1935 Lah-282, it was held that where a person publishes a book, containing selections from another book, there is a prima facie case to issue a temporary injuction. In A.I.R. 1935 Cal. 508, the author sold to the publisher the first edition of his new novel, consisting of 1100 copies in twelve forms in double crown size. Thereafter, the author arranged with another publisher to publish the same novel as part of a collection of his novels. The ony contested point before the Court was the legal effect of the first agreement. The Plaintiff claimed that the collection subsequently published was infringement of his rights and the author could not publish the novel in any form at all until the whole of the first edition was sold. The defendant contended that the author only sold a right to print and sale (of) 1100 copies in a particualr form and did not assign the copyright and that the author was entitled to publish the novel alone or in a collection provided that he did not publish it in twelve forms in double crown size. It was held that the sale of the first edition amounted to an interest in the copyright until the last copy of that edition was sold. Until then the purchaser had an exclusive right of copyright, at any rate, as for as the right to publish the novel in any form is concerned, and that the defendant's action amounted to an infringement of the Plaintiffs right. 15. Mr. AA. Shareef, learned counsel for the defendant No. 1, on the other hand, has invited my attention to the following decisions. InLewjdes v. Dunoombe 47 E.R. 1134, it was held that the Court will not grant an injunction against a literary piracy unless the title be clear. In Sanders v. Smitli 40-E-R- 11.00 injunction was refused to restrain an alleged infringement of copyright where the conduct of the Plaintiff, in the opinion of the Court, was calculated to induce the defendant to believe that the course taken by them would not be objected to by the Plaintiffs. Similar considerations weighted with the Court, while declining injunction in Lewis v. Champman 49 E.R. 52. In Andrew Sportiswoode . Willisan Mark Clark 47 E.R. 844, it was held that the court should take into consideration in granting or withholding the injunction on which side the balance of harm will preponderate. In Edwardes. v.Cotton (1903) 19 T.I.R. 34, it was held that the agreement with the publisher, giving the publisher the exclusive right of printing and publishing the exies and issuing the same in volume form was a publishing .-».„ agreement only and not an assignment of the copyright. In Agarwala Publishing House Khurja v. Board of High School and Intermediate Education U.P. Allahabad (A.I.R; 1977 All 9), it was held that copyright in respect of examination question papers in absence of assignment under section 18 (of the Indian Copyright Act) or contract giving up the claim of the copyright, would belong to the paper-setter. In another case reported, as M/s. Mislira Bandhu Karvalave I ivratanlal Koshal (A.I.R. 1979 Madh. P. 261) it was observed that in the case of a publishing agreement between author and publisher, the most important point _ to determine is whether any copyright is to be vested in the publisher or whether a licence only is intended. In the former case, the publisher will enjoy the full legal title to the copyright and will alone be entitled to enforce the rights against third parties. In the case of a licence, which in a publishing agreement will normally be an exclusive licence, the grant is subject to certain conditions and on their non fulfilment, the licence is capable of being revoked. It was further held that writing is essential when there is assignment of copyright. 16. The object behind giving the thumb nail summary of these cases is to highlight the factors the Court has to take into consideration before granting an injunction when infringement of a copyright is alleged. It follows from the above enumeration that copyright can be assigned only by a written agreement. Even hough copyright has not been specifically assigned the Court can still draw its inference by looking at the agreement. The mere circumstances that an author has been engaged by a publisher to write a book for remuneration would itself not vest the copyright in the publisher unless such an intention can be clearly gathered from the agreement. In case the Court comes to a conclusion that the author has only given a licence to the Publisher to publish the work, it will have to look into the agreement to determine the conditions on which the same was given to the publisher. However, copyright cannot be presumed and when action is brought before the Court by the Plaintiff to prevent infringement of copyright the Court would grant an injunction only when the right claimed by the Plaintiff is clear. The conduct of the Plaintiff would also be one of the relevant factors to be considered by the Court while granting or refusing an injunction. 17. Turning now to the documents relied upon by Mr. Iqbal Kazi the learned counsel has first referred to a passage from Annexure 'C which is the preface written by the defendant No.2 himself to volume I of the novel 'Jangloos'. It reads as follows :- "So I through that at least I may see that Part of the novel which had already been published in Subrang 'in the form of a Book' "When the second volume will be published, one will have to wait for the future publication of 'Subrang'. It cannot be published before that time. Even for the third volume, readers will have to depend on the performance of Shakeel Adilzadah (Plaintiff). I must clearly state that, the novel will be first published in ' SUBRANG' and then only it will be published in the form of a book". Annexure 'E' which is the next document referred to by Mr. Kazi, shows that while giving an interview to one Tahir Masood, the defendant No.2 had admitted the publication of his novel 'Jangloos' in Subrang and acknowledged the receipt of full consideration therefor. This has been further confirmed by the defendant No.2 in the said interview given by him to weekly "Akhbar-e-Khawateen" (Annexure 'F). 18. It may be pointed out that as far as the first contention of Mr. Iqbal Kazi that there is an agreement in writting in the present case, assigning copyright in the said novel to the Plaintiff is concerned, no doubt section 15 does not require any particular form for such assignment but at the same time the assignment must clearly be spelt out from the writing which should also be signed by the assignor or his duly authorised agent. The thirty debit vouchers referred to by Mr. Iqbal Kazi, no doubt had been signed by the defendant No.2, but nothing can be spelt out there-from to indicate that any copyright had been assigned by defendant No.2 to the Plaintiff. No doubt, it clearly appears from the said vouchers that a consideration of Rs.3000/- per each instalment of the story was received by the defendant No.2 from the Plaintiff but the same is hardly sufficient to render the debit vouchers as documents validly assigning the copyright as visualised by section 15 of the Ordinance. Not only that the assignment of any opyright cannot e spelt out from the debit vouchers, but nothing can be found therein to draw even an inference in this respect. It appears that Mr. Iqbal Kazi was conscious of this flaw in the case, as his argument in the alternative was that, even otherwise since the receipt of consideration for the various instalments published in the Plaintiffs magazine was admitted by the defendant No.2, the Plaintiff, in any case had an exclusive right to the publication of the said story in his magazine and no right could be assigned in respect thereof in favour of the defendants. Support for the contention has mainly been brought from the case reported in AIR.1935 Cal 508, reference to which has already been made earlier. 19. No doubt, in this case it was held by the High Court of Calcutta that the sale of the first edition of the book to the Plaintiff amounted to an assignment of interest in the copyright untill the last copy of that edition was sold but the facts of that case are clearly distinguishable. In that case there was a written agreement between the author of the book and the Plaintiff, which governed the respective rights and obligations of the parties. In the present case, the absence of a written agreement has even been conceded by Mr. Iqbal Kazi himself as, all that he has relied upon are the said debit vouchers, which if I may say again so can neither constitute an agreement nor can they be relied upon as substitutes for the same. However, even in the reported case it was held that the right to exclusively publish the novel could not be further stretched to deprive the defendant of the right to dramatise the novel (see observations on page 509 of the report). In the present case, what can be spelt out from the circumstances enumerated above is that there was an oral agreement between the defendant No.2 and the Plaintiff to publish the said story in the latter's said magazine for which the defendant No.2 had received a consideration of Rs.3,000/- for each instalment that was to be published therein. The allegation made by the Plaintiff that there was a further agreement assigning exclusive right in the story to the Plaintiff has the (?) defendants. The defendant No.3 has gone to the extent of alleging that the novel was published by him after obtaining assurance from the Plaintiff that he held no copyright in the story. No affidavit-in-rejoinder has been filed by the Plaintiff to rebut the allegations made in the respective counter-affidavits. Mr. Iqbal Kazi only stated at the bar that all the adverse allegations made in the counter-affidavits may be deemed to have been denied by the Plaintiff. However, even if the same is accepted as denial of the allegations contained in the respective counter-affidavits, the Plaintiff has placed reliance only on the admissions allegedly made by the defendant No.2 in the preface to the said novel and the respective interviews given by him to different magazines. No doubt, the interviews alleged to have been given by the defendant No.2 have not been denied by him in his counter-affidavit, but notwith­ standing the alleged admissions made by the defendant No.2 no agreement as alleged by the Plaintiff can be inferred therefrom. The onus is on the Plaintiff to establish a prima facie case. Such onus has not been discharged as the Plaintiff has failed to establish a clear title in the copyright which under such circumstances would be presumed to vest in the defendant No.2. On the other hand, it has been pointed out that the defendant No.l has acquired rights from the defendant No.2, to telecast the play based on the novel 'Jangloos' and has already made commitments to its various sponsors to televise 32 episodes thereof. According to the defendant No.l advance recordings in normal course of as many as thirteen episodes of the play have so far been completed as pointed out earlier. Consequently, according to the Defendant No.l, the grant of injunction in favour of the Plaintiff would result into a very heavy financial loss to the defendant in view of the aforesaid commitments already made by it with the sponsors. The interest of television viewers is also to be taken into consideration as a number of episodes has already been telecast. MrAA.Shareef learned counsel for the defendant No.l has further contended that telecast of 'Jangloos' has been receiving publicity since 1983, but no notice thereof was taken by the Plaintiff. Moreover, according to the learned counsel, it was after about three years, of the publication of the first part of the said novel that the defendant No.2 as author thereof entered into an agreement with the defendant No.l for the purpose of script writing with a view to its being telecast by the defendant No.l. As far as the said contentions are concerned, no doubt the Plaintiffs case is based on a fresh cause of action but when there is no written agreement the Court can always draw its inferences from the attending circumstances and the conduct of the plaintiff would, therefore, be relevant. Absence of a written agreement is also a factor, hard to overlook because such transactions are normally governed by a written document. In any case, since the plaintiff has failed to establish that there was even an oral agreement between him and the defendant No.2 as alleged by him, giving exclusive rights in respect of the story, 'Jangloos' to the Plaintiff, the latter has failed to establish a prima facie case for grant of injunction in his favour. 20. Mr. Izhar Haider Rizvi, learned counsel for the defendant No.2 has also raised certain legal objections. The first relating to the jurisdiction of this Court to try the present suit has been raised by a separate application filed under Order VII rule II CPC. My attention in this respect was particularly invited to section 65 of the Act, which vests the jurisdiction for filing suits or other civil proceedings regarding infringement of a copyright in the District Court. The contention, therefore, was that this court cannot try the present suit. Mr. Iqbal Kazi, whithout going into the details of the history of vesting this Court with jurisdiction on the original civil side, has referred to section 2 of the Sind Civil Courts (Amendment) Ordinance, 1981, which substitutes a new section 7 for the original one as follows:- • "7. Original jurisdiction of the Court of District Judge ........ Subject to any law for the time being in force, the original jurisdiction of the Court of the District Judge in Civil suits and Proceedings shall be without limit of the value thereof excepting in the Karachi District where the original jurisdiction in civil suits and proceedings of the value exceeding one lac of rupees shall be exercised by the High Court." Since the present suit has been valued for the purpose of Court fees and jurisdiction at Rs.1,01,000/- the contention of Mr.Iqbal Kazi was that this Court has jurisdiction to try the suit. However, since a separate application has been made in this respect, and in view of the observations made by me hereinabove, it is not necessary for me to go into the question of jurisdiction at this stage of the case. I would leave this question to be decided subsequently. The said application made on behalf of the defendant No.2 may be registered and numbered by the office and put up for orders before the Court. 21. An objection was also raised by Mr. Izhar Haider Rizvi in regard to limitation, which was based on the provisions contained in section 14 to which I have already referred in this order. However, it may be observed once again that it is not necessary for me to go into the question in view of the aforesaid observations. 22. In the result, no case for grant of interim injunction against the D defendants has been made out and this application is dismissed. (MBC) Application dismissed.

PLJ 1990 Karachi 150 (DB) PLJ 1990 Karachi 150 (DB) Present: AJMAL MlAN'CJ AND ML'KIMAR Al 1MAD JUNEJO, J SHAKEEL ADlLZADAH-Appcllant Versus PAKISTAN TELEVISION CORPORATION and 2 others-Respondents. High Court Appeal No. 228 of 1989, dismissed on 20-11-1989. Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX Rr. 1 & 2-Tcmporary injunction-Grant of~Prayer for-Rejcction of-Appeal against-Admittedly there was no agreement between appellant and respondent No. 2 on basis of which appellant was paying Rs. 3000/- for each instalment of Jangloos (drama) to respondent No. 2-Such payments are admitted by respondent No. 2—Prima facie, appellant was entitled to have those instalments published in his magazine (Subrang) before same were published elsewhere or telecast-Appellant, in his suit, has claimed damages- Held: No irreparable loss would be caused to appellant by non-issuance of interim injunction—Appeal dismissed but respondent No. 2 directed not to allow publication of remaining 13 1/2 instalments of Novel Jangloos to other respondents or any one else for a period of six months in order to enable appellant to publish same first in his magazine. [Pp. 152&153JA&B M/s A.A. Shareef, S. hhar Haider Rizvi and Mubarak Hussain Siddiqi, Advocates for Respondents. judgment Mukhtar All mad Junejo, J.-Appellant Shakeel Adilzadah, Editor and Publisher of magazine namely 'SABRANG' has filed this appeal against an order dated 28-9-1989 (TLJ 1990 Karachi 141) passed by learned Single Judge dismissing his application for interim injunction moved in Suit No.947 of 1989. 2. Admittedly respondent No. 2 Shoukat Siddiqui is author of a novel entitled "JANGLOOS", the instalments of which were being contributed by him to the appellant for being published in SABRANG and for each instalment the respondent No. 2 was being paid Rs. 3,000/-. In the aforesaid manner, the petitioner has by now paid to the respondent No. 2 the cost of 42 instalments at the rate of Rs. 3,000/- per instalment, the first instalment having been paid for on 1-8-1977 and the last instalment having been paid for on 30-12-1980. Out of 42 instalments supplied to the appellant, 28 1/2 have been published in the monthly publications of SABRANG while 13 1/2 instalments are yet to be published in the said magazine. 3. Subsequently in November, 1986, the respondent No. 2 got published the first volume of his novel "Jangloos" through the respondent No. 3, as alleged by the appellant in his Suit No. 947/89 which he filed in this court for issue of injunction restraining the respondents from publishing, telecasting, producing, filming, marketing, exhibiting, selling, exploiting, assigning and dealing with novel JANGLOOS in any form whatsoever and also for recovery of damages from the respondent. Appellant further stated in his plaint that he protested over this with the respondent No. 2, who assured that till all the scries of Jangloos were not published in 'SABRANG', he would not publish any part of the novel nor would give any unpublished part of the novel for film making or telecasting. Appellant alleged that on 1-9-1989 he came across a copy of second volume of Jangloos again published by the respondent No. 3 in violation of alleged rights of the appellant. Subsequently, Pakistan Television started telecasting story of Jangloos and this gave fresh annoyance to the appellant who tried to convince the respondent No. 2 that it would be wrong from him to permit telecasting of the novel without permission of the former. It was alleged that the respondent No. 2 failed to settle the matter and consequently there was exchange of notices and ultimately said suit was filed. 4. In said suit the appellant moved an application for interim injunction seeking issue of interim injunction against the respondents in the terms identical with the prayer in the suit. Said application was dismissed under the impugned order. Hence this appeal. 5. Mr. Iqbal Ka/i, learned Counsel for the appellant referred to section 15 of the Copyright Act and argued that the appellant had acquired exclusive right in respect of 42 instalments of JANGLOOS for which he had made the payment and consequently neither the respondent No. 2 nor any body else had right to publish or telecast any of those instalments. In respect of the term "Assignment", learned Counsel for the appellant referred to para-754 of Halsbury's Laws of England Volume VIII. In support of his case learned Counsel for the appellant cited the cases reported as (i) PLD 1968 Dacca 455, (ii) AIR 1973 Madras 49, (iii) AIR 1975 Delhi 130 and (iv) AIR 1935 Calcutta 508. 6. Mr. I/har Haider Ri/vi, learned Counsel for the respondent No. 2 argued that respondent No.2 was a renowned author inasrhuchas some of his works weretranslated in different languages of the world and Rs. 3.000/- for each instalment were paid to him as a "NAZRANA" and not as price. It was further argued that there was no agreement between the appellant and the respondent No. 2 putting any restriction on the respondent No. 2 in respect of his novel "Jangloos" which was in the process of being written and that the appellant had no copyright as defined by section 3 of the Copyright Ordinance. - 1. Mr. A.A. Sharcef, learned Counsel for the respondent No. 1 argued that first volume of Jangloos was published as far ago as in 1986 without any protest from the appellant in the shape of a notice or a suit. Learned Counsel for the respondent No. 1 referred to various publications, the copies of which have been filed in the case showing that proposal to televise the drama Jangloos came in the papers long ago without inviting any protest from the appellant. It was further argued that the respondent No. 1 Pakistan Television Corporation had spent a huge amount on filming of 17 episodes of Jangloos out of which nine episodes were telecast and that on each episode respondent No. 1 was spending Rs. 1,25,000/-. It was further slated that respondent No. I had also committed itself with 8 commercial firms who had sponsored exhibition of T.V. drama JangloOs and who had paid lacs of rupees to the respondent No. 1, particulars of which were filed in the case. 8. Admittedly there was no agreement between the appellant and the respondent No. 2 on the basis of which the appellant was paying Rs.3,000/- for , each instalment of Jangloos to the respondent No. 2, although such payments are admitted by respondent No. 2 and photo copies of such receipts have been produced in the case and in the receipts it has been mentioned that the amount was paid for purchase of "Jangloos" series. Case of the respondent No.2 in respect of these receipts was that his signatures were obtained on the blank receipts However that is a matter to be determined during trial of the case. Presently there is nothing on the record to show as to what were the terms and conditions on the basis of which the appellant was paying Rs.3,000/- for each instalment of Jangloos to the respondent No. 2. At the same time it cannot be said that no responsibility lied on the respondent No. 2 in respect of the instalment of Jangloos which he passed on to the appellant for money. In our view, prima facie, the appellant was ntitled to have those instalments published in his magazine before the same \ were published elsewhere or telecast. In this respect, learned Counsel for the ! respondent No. 1 made statement at the bar that whatever episodes of Jangloos Shad been telecast or recorded, the same were out of volume 1 and 2 of the novel which do not include 13 1/2 instalments not published by the ppellant. It was stated at the bar that SABRANG is monthly magazine but it was not being published regularly and sometimes it was published with interval of one year or 1 1/2 years. On our suggestion respondent No. 2 was agreeable not to allow publication of 13 1/2 instalments to any other person for a period of six months in order to enable the appellant to publish the same within the above period, but the learned counsel for the appellant requested for 18 months to which the respondent No. 2 was not agreeable. In our view, there was corresponding duty on j the appellant to regularly publish the instalments of Jangloos after receiving the | same from the respondent No. 2, the last instalment of which was received by him 'about 9 years back on 30-12-1980. Obviously the appellant cannot make the j respondent N<3. 2 wait for years together till all the instalments of Jangloos ! supplied to the appellant were published in SABRANG Digest because that would j no be equitable. Furthermore the appellant in his suit has claimed damages and this shows that no irreparable loss would be occasioned to the appellant by nonissue of the interim injunction. - 9. Para 754 of Halsbury's Laws of England Volume VII says that an assignment to pass the legal title to the right assigned, must be in writing signed by the owner of the right in respect of which the assignment is made, or by his duly authorised agent and must be in respect of a work which is in existence at the time when the assignment is made and that such an assignment does not require to be expressed in any particular form of words and it may be contained in letters. Viewed from any angle, in the present set of circumstances, it cannot be said that the respondent No. 2 assigned to the appellant the legal title in respect of the instalments of Jangloos in terms of para-754. The authorities cited on behalf o the appellant do not help him. The case of East Pakistan School Text Book Board Versus Dcbabrata Chaki and others (PLD 1968 Dacca 455) was in respect of recovery of damages for infringement of copyright and it was not a case for issueof injunction. In the case of KhemrajShrikrishandass Versus Garg & Company (AIR 1975 Delhi 130) the facts were materially different and the grievance of the laintiff was that the defendants were printing, publishing and selling deceptively similar or colourable imitation of the plaintiffs Pan Changs (Almanac). In the case of Srimagal and Co. Versus Books (India) Pvt. Ltd. (A.I.R. 1973 Madras 49) the plaintiffs had claimed damages from the defendants for infringment of plaintiffs' copyrights in the Tamil translation of the auto-biography of Pandit Jawahar Lai Nehru. It was not on the point of injunction. In the case of Kamala Book Depot Limited versus Sourendranth Mukherji and another (A.I.R. 1935 Calcutta 508) the defendant sold first edition of a novel and then published the novel in another form and the view taken was that sale of the first edition amounted to an assignment of an interest in the copyright until the last copy of that edition was sold and that the defendant's action amounted to an infringement of plaintiffs right. In said case too the damages were ordered to be paid to the plaintiff. In the present case there was no sale of the 42 instalments of Jangloos by the respondent No. 2 to the appellant. 10. In view of above, although we dismiss the appeal in limine but would; record that respondent No. 2 would not allow publicaion of remaining aforesaid: 13 1/2 instalments of the Novel Jangloos to other respondents or to any other j^ person for a period of six months in order to enable the appellant to publish the' same first in his magazine either in piece-meal or in one publication. This portion! of the order would be conveyed to the parties. These are the reasons for our short! order dated 15-11-1989 by which we dismissed this appeal in limine. (MBC) Appeal dismissed,

PLJ 1990 Karachi 153 (DB) PLJ 1990 Karachi 153 (DB) Present: SALEEM AKHTAR AND IMAM ALI G. KAZI, JJ Hakeem MUHAMMAD IRFANULLAH KHAN SHAFAI-Pctitioner versus SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS, ISLAMABAD and 2 others—Respondents Const. Petition No. D-554 of 1984, decided on 11-4-1989. (i) Assessment- —-Rent-Assessment of-Challcnge to-Contention that tenements are used for charitable purposes, therefore, rent fixed is illegal and not in accordance with policy-Building consists of an area of 3078 sq.fcct in which ground floor is used as Shifakhana while upper portion is residence of petitioner—Taking into consideration location of building in a prominent commercial area, it has been held that rent fixed by Appellate Authority is on lower side—Held: Reasoning given by Appellate and Revisional Authorities are proper and well considered. [Pp. 154&155JA (i) Scheme for the Management of Urban Trust Properties, 1977- —Para. 10—Rent—Assessment of—Challenge to—Contention that revision of rent is not in accordance with scheme as it should have been made after a period of 5 years from last assessment made in 1979-Under para 10 of Scheme, first assessment was to be carried out on 1-1-1977 but it was delayed till July 1979--lleld: On a clear niathcmetical calculation, respondent No3 could have re-assessed rent only after expiry of period of 5 years from 1-1- 1979--Held further: As rale of re-assessment is proper and legal, it should be made effective from 1-I-1W4 instead of 1-1-1982. [P.155JB ,; Mr. Lalifur Rehman Klwn Survcry, Advocate for Petitioner. Mr Ashiq Alt Anwar Rana, Advocate for Respondents. Dates of hearing: 6 and 11-4-1989. judgment Suleem Akhtur, J.--The petitioner's father alongwith his family members was running a charitable dispensary in Ajmer City, and on that basis he was allotted charitable dispensary named and styled as Serve Holcshi Ayur-Vedic dispensary located in M.R 3/16 Boullan Market, Karachi by the then Rent Controller/Administrator and Chairman Allotment Board, Karachi. This allotment was issued in the year 1948. In the year 1954 the charitable dispensary was declared as evacuee property and some of its portions were transferred to the claimants. The matter was agitated before various settlement Authorities and ultimately the High Court passed a judgment holding that the property was an evacuee trust property and did not form part of compensation pool and therefore, could ndl be transferred to ihe claimants to whom allotments had been made. It has been alleged that to bring the case to this successful conclusion the petitioner's father had played an important role and in this regard his services were appreciated by the relevant quarters. After the stalus of the property was fully secured by the petitioner's father he applied for a long lease for the charitable dispensary, but so far no action has been taken on it. During the pendency of these proceedings, the respondent No. 3 proceeded to assess the property and issued proposal notices dated 4-7-1979 in respect of various tenements. It may be mentioned that the premises which were allotted to the petitioner's father were for the purposes of assessment divided in several tenements. The petilioner's father filed an appeal and by order dated 29-3-1979 the respondent No. 2 fixed the rent of each tenement separately total of which came-to Rs. 395/- with effect from 1-1-1979. The petitioner paid the same and it has been alleged thai this payment was made on the verbal assurance of the respondent No. 3 that the amount so paid will be adjusted in lease money when the case for lease is decided by the Board. It has been alleged that in contravention of the scheme for Management and Disposal of Urban Evacuee Trusl Properties 1977, the respondent No. 3 sent proposal notices dated 31-10- 1982 proposing reassessment of the rent of tenements raising the lolal rent of all the tenements to Rs. 1.250/- P.M. with effect from 1-1-1982. The petitioner filed objections and the respondent No. 3 re-assessed it at Rs. 900/- P.M. with effect from 1-1-1982. Against this order the petilioner filed an appeal before the respondent No. 2 which was dismissed and the Revision filed against the same order met the same fale. Mr Latifur Rahman Survcry the learned counsel for the petitioner has contended that the tcncmcnls are used for charilable purposes and therefore, the j rent fixed is illegal, and not in accordance with Ihe policy. It has further been contended that the petitioner has spent huge amount on repairs, and therefore,; due consideration should have been given to it while fixing the rate of rent. These contentions of the learned Counsel cannot be sustained as the rale of rent fixed by the respondents is in accord with the scheme and the provisions of Law applicable to it. The Appellate as well as the Revisional Authorities have considered it and have noted that the building consists of an area of 3078 sq. feel in which ground floor is used as 'Shifakhana' while the upper portion is the residence of the petitioner. Taking into consideration the location of the building in a prominent commercial area like Boullan Market, it has been held that the rent fixed by the Appellate Authority is on the lower side. The reasoning given by the Appellate ( and the Revisional Authorities are proper and well considered. The learned counsel for the petitioner then contended that the revision of the rent is not in accordance with the scheme as it should have been made after a period of five years from the last assessment which was made in the year 1979. Para 10 <>l the Scheme for the Management of Urban Trust Properties 1977 provides that periodical assessment of rent shall be made by the District Officer concerned alter every five years. The first assessment was to be carried out with effect from 1st of January 1977. The respondents have not filed any counter affidavit but in their comments filed earlier they have staled that the issuance of proposal nolices for enhancemenl of rent was delayed till July, 1979. Benefit of'3 failure or negligence on part of the staff of respondent No.3, however, was given. lo the petitioner and the rent at re-assessed rate was realised with effect from 1-1- j 1979. Therefore, in view of the admission of the respondent, the re-assessment was made with effect from 1-1-1979. According to para 10 of the Scheme referred above re-assessment can be made only afler 5 years. On a clear mathcmetical j claculation the respondent No. 3 could have reassessed the rent only after expiry, of period of five years from 1-1-1979. As the rate of reassessment is proper and legal we will order that it should be made effective from 1st of January, 1984 instead of 1st January, 1982. With this observation, the pelition stands disposed of. j (MBC) Order accordingly, j

PLJ 1990 Karachi 155 PLJ 1990 Karachi 155 Present: S. WAJIHUDDIN AHMAD, J Mst. YASMIN AKHTER and another-Applicanls Versus MUKHTAR HUSSAIN alias ABBAS HUSSAIN and two others-Respondents Revision Application No. 129 of 1989, dismissed on 5-7-1989. (i) Civil Procedure Code, 1908 (V of 1908)-- —S. 115-Revision petition-No decree for dismantling or removal of structure -Whether plaintiffs were disentitled to decree for possession—Question of~ Held: It is established law that if a person raises construction on property adjudged to be of another, in derogation of rights of that other, he does so at his own risk and peril-Held further: As soon as property is determined to be of other person, the latter shall take contravening construclions with property on which same are found to subsist-Revision dismissed. [P.158JC&D (ii) Estoppcl— —Estoppel by conduct—Assertion of—No evidence produced—Effect of~ Contention that construction having been raised in 1980 and suit having been filed in 1982, without, during intervening period, registering any objection to construction, plaintiff would not be entitled to property at all—If it is accepted or laid down, then a person merely by raising of a structure would become owner adversely without even satisfying law as to prescriptive rights \ contemplated in Limitation Act-Held: No positive evidence having been led and in absence of due foundation in pleadings or evidence, no such acquiescence/waiver can be held to have come to subsist in this case. [Pp. 157&158]B AIR 1950 Mad. 53 and 32 Indian Cases 5 distinguished. (Hi) Transfer of Property Act, 1882 (IV of 1882)-- —S. 51—Bonafide belief of ownership of property—Construction on—Raising of -Whether compensation can be allowed-Question of--Where claim or title is based on fraud, it cannot be said that belief of person instrumental in raising construction was bonafide and remedial provisions of Section 51 shall have no application-Held: Even otherwise, a claim, if any, under Section 51 of Act would emanate if all requirements, are satisfied after claimant has effectively been evicted. [Pp. 156&157]A Mr. Badrudiija, Advocate for Petitioners. Date of hearing: 5-7-1989. order This Revision Application is directed against the concurrent findings of the two Courts below in the matter of the alleged gift/transfer of the disputed property in favour of the applicant No. 1, which having been held to be fraudulent, findings in that behalf have not been assailed, learned counsel limiting himself to urge that the two Courts have not properly framed the issue relevant to raising of constructions viz. Issue No. 10. It has been pointed out that the provisions of Section 51 of the Transfer of Propery Act, 1882, have been ignored, the Courts below have failed to consider acquiescence/waiver on the part of the plaintiffs in the raising of constructions on the disputed property and, further, it has been over-looked that no prayer for removal of constructions raised by applicant No. 1 was made, thereby dis-entitling the plaintiffs for any decree in the suit. It has also been urged that no issue as to under-valuation of the suit was struck even though K.D.A., as a defendant, had raised that plea. As regards the jurisdiction of this Court to set aside or re-call concurrent findings in revisional exercise of powers it is urged that the rule laid down in the full bench case reported in S. Zafar Ahmad v. A. Klialiq (P.L.D. 1964 Karachi 149) as reaffirmed in Barkat All v. Fazal Hussain (1989 C.L.C. 1255) is that justice is to be done in such proceedings according to law, irrespective of any other consideration in the matter. 2. I have heard the learned counsel at length and find that the essential (ingredient for relief of compensation etc. under section 51 of the Transfer of Property Act, to a person, who raises constructions in the belief that, he is the owner of the property whereon constructions are raised, is the existence of bona ~5i fides in such belief. Where the claim or title is based on fraud, as concurrently held here, and not questioned, it cannot be said that the belief of the person ( instrumental in raising the constructions was bona fide and, therefore, the, remedial provisions in section 51 of Transfer of Property Act shall have no, application. Even otherwise, on a plain reading of Section 51 a claim, if any, under that provision would emanate, if all requirements are satisfied, after the claimant j for relief has effectively been evicted. 3. On the cognate question of purported imperfect casting of Issue No. 10, all that can be said is that the argument is being stretched too far since that issue was based on an averment in the plaint made by the two plaintiffs that their predecessor in title namely, their father, had raised constructions on the property in dispute and such plea was denied by the present applicant saying that no such .. ' _- construction was raised by him and if any additional construction was raised it was by themselves. They did not render any details of the constructions raised by themselves if any, nor advanced any plea that they were entitled to compensation in such behalf nor was it spelled out as to what amount, if any, was spent or incurred on the same. Even in evidence, apart from a bald assertion, applicants themselves remained all but reticent on the subject and even their witness Riazat Ali, D.W. 2, who was questioned on the point, did not assert that,the present applicants raised any construction and all that he stated was that the predecessor of the plaintiffs did not raise one, as the quarter on the disputed plot stood already built prior to the allotment. On such state of pleadings and issues it, uncontrovertedly, appears that nothing was further from the thoughts of the applicants than a claim under section 51 ibid, evidently, because they had no mind to part with the property of the, once minor, plaintiffs, with the set objective of perpetuating their fraudulent gain. As such, it cannot be said that the Issue was =• improperly struck. Clearly, if a plea in terms of Section 51 of the Transfer of Property Act had to be taken it should have been properly and specifically taken and, then, evidence in that behalf should have been led. Since that has not occurred, on that score, as well, neither can it be said that Issue No. 10 was improperly drawn nor can it be argued that a case under section 51 of the Transfer of Property Act was or is made out. The decisions reported as Koran v. Budh Sen (1938 Allahabad 342), Sadhu v. Dt Board Gurdas-Pur (AIR 1960 Punjab 172) Narayana v. Basavar Ayappa (P.L.D. 1957 S.C. India 127), cited at the bar, are all decisions on Section 51 ibid and refer to conditional decrees being passed or other relief accorded where proper pleas are raised and due evidence is advanced and where the case squarely falls under Section 51 of the Transfer of Property Act. But in view of what has been said above, neither the principle of Section 51 aforesaid nor the ingredients involved therein came to apply or occurred in this case. 4. Reliance is also placed by the learned counsel on the decisions reported as Ramanalhan Chetty v. Ramaswami Chetty (30 MLJ 1; 32 I.C 5) where one of the views is that it is immaterial whether the transfer of the person claiming benefit under section 51 of the Transfer of Property Act is or is not valid and that relief under that provision would be available where transfer being bonafide constructions are raised on that basis. This citation is also distinguishable for the same reasons, as discussed above, touching upon the bona fides of the claim, on the one hand, and absence of proper pleas or evidence on the other. ( 5. Learned counsel has further argued that this case presents elements of 'acquiescence/waiver and cites the decisions reported in Venkata Swami Naidu and another . Mimiappa Mudaliar & others. (A.I.R. 1950 Mad. 53) and Ramanathan v. Ramasami (32 Indian cases 5) for urging that, estoppel by conduct, would come into play on the facts and circumstances of this case, since the construction was raised in 1980 and the suit was filed by the plaintiffs in 1982, without, during the intervening period or otherwise, registering any objection to the construction and that being the position, the plaintiffs having been standing by, without objection or demur, they would not be entitled to the property at all. I am afraid even this ground must fail as, for one thing, the cited case law does not j squarely, unequivocally and with consensus lay down any such broad proposition B i and the rule seems restricted to estoppel involving representation by one, alteration of position on such basis by another and then the former raising claim irrespective of the result of his representation and, for another, in the event, such ; a broad principle, as convassed, is accepted or laid down then a person merely by raising of a structure, without apparent objection from the other/side would become owner adversely, without even satisfying the law as to prescriptive rights contemplated in the Limitation Act. Even otherwise, applicants would not be entitled to the benefit of the pleas of acquiescence or waiver on the basis of such an assertion, at this stage, for no positive evidence has been led on the point iwhatever. In the absence of due foundation in pleadings or evidence no such acquiescence/waiver can be held to have come to subsist on the facts and [circumstances of this case. 6. Lastly, it is urged that since no decree for dismantling or removal of the i structures raised, if any, by the applicants was sought, that circumstance disientitles the plaintiffs for a decree of possession. This contention also has no substance and should fail for the simple reason of absence of pleadings and proof, C on the one hand, and established law, on the other, that if a person raises j constructions on the property, adjudged to be of another, in derogation of the {rights of that other, he does so at his own-risk and peril and as soon as; the property is determined to be of that other, the latter shall take the contravening constructions with the property on which the same are found to subsist. 7. Most of the above contentions have been raised for the first time in this Court and could have been rejected on that short ground. None-the-less, detailed discussion has been made with the sole purpose of doing complete justice between the parties and with a view to determine whether on the record, as it stands, any case, as brought out, can be found. None, however, has been so found. I m not inclined to consider the question of valuation as neither was that question raised by the applicant nor was it pressed by KDA, if that was raised by it, and this is too late a stage to go into technicalities, which can have no bearing on the substance of relief. 8. In view of the foregoing, no case for interference at the revisional level is D .made out and this revision application, therefore, not meriting any relief, is (dismissed in limine. 9. In view of the dismissal of the Revision C.M.A. 639/89 is also dismissed. (MBC) Revision dismissed.

PLJ 1990 Karachi 159 (DB) PLJ 1990 Karachi 159 (DB) Present: SALEEM AK1ITAR AND IMAM ALI G. KAZI, JJ M/s. LATIF EBRAHIM JAMAL-Applicant Versus CONTROLLER OF ESTATE DUTY, KARACHI-Rcspondcnt Ref. case No. 14 of 1981, decided on 9-5-1989. . (i) Estate Duty Act, 1950 (X of 1950)-- —Ss. 14 & 6 read with Married women's property Act, 1874, Section 6-- Insurance policy—Exlate duty on—Assessment of—Challenge to—Section 14" deals with policy of insurance which is effected by any person on his life and is wholly or partially kept by him till his death—He would thus be competent at lime of his death to dispose it of-^Section 14 is to be read with section 6 which provides that only that property shall pass which deceased was at time of his death competent to dispose of—Held: Policies which are unconditionally assigned to wife or children, cannot be made subject to Section 14 nor money received under such policy shall be deemed to pass on death of deceased- Held further: Section 6 of Married women's Property Act and Section 14 of Estate Duty Act do not conflict with each other. [Pp. 164&165]F (ii) Interpretation of statutes— —Married women's property Act 1874—Provisions of—Interpretation of— Provisions are beneficial legislation for purpose of protecting interest of married women—Held: A liberal construction should be placed to broaden • scope of its applicability. [P. 164]D (iii) Jurisdiction-- —Application under Section 59 of Estate Duty Act, 1950-Provisions of Estate Duly Act—Whether repugnant to Injunctions of Islam—Had Tribunal jurisdiction to declare so—Ouestion of—Tribunal has a limited jurisdiction which is exercised by it as conferred by Estate Duty Act—Held: Tribunal has no jurisdiction to consider vires of any Act—Held further: This jurisdiction is conferred by Constitution on superior courts. [Pp.l60&161]A (iv) Married Women's Property Act, 1874 (III of 1874)-- —S.6 read with Estate Duty Act, 1950, Section 14-Lifc insurance policy- Assigned to wife and children—Whether exempt from Estate Duty—Ouestion of-Section 6 merely states thai insurance policy effected by any married man on his own life and expressed to be for benefit of his wife will be covered by this section—In this case, deceased had assigned policies in favour of his two wives—Held: Section 6 of Married women's Property Act shall be applicable and a trust shall be deemed to have been created. [Pp.l62,163&.164]B,C&.E AIR 1948 Lahore 21 rcl. Mr. Khurshid Anwar Shaikh, Advocate for Applicant. Mr. Nasmllah Awan, Advocate for Respondent. Date of hearing: 9-5-1989. judgment Saleem Akhtar J.~ One Mr. Hussain Ebrahim Jamal died in London on 7-6- 1972. He was survived by two brothers, two daughters, two widows and four sisters. The deceased had left a will executed on 3-6-1968 whereby l/3rd of his estate was to go to certain legatees. All the legal heirs filed estate duly return as accountable persons of the deceased before the Controller of Estate Duty. They raised preliminary objection before the Controller that l/3rd of the estate should be excluded from the principle value of the estate liable to duty in accordance with the will of the deceased. This contention was repelled by the Controller. In appeal before the Tribunal this plea was again repeated and it was urged that under Muslim Law, inherintance docs not open until the debts and legatees are paid out and therefore, estate which passes for the purposes of estate duty will include only that part which remains after payment to the creditors and legatees, and therefore, the provisions of Estate Duty Act are against the injunctions of Holy Quran. The deceased has left insurance policies valued at Rs.2,95,250/-. After allowing the deduction of Rs.50,000/- under section 24 of the Estate Duty Act, the Controller included in the property passing, the balance amount of Rs.2,45,250/-. It was contended before the Controller that two policies valued at Rs.1,25,900/- wcrc assigned by the deceased to the two widows, and therefore, it should also be excluded from the valuation of the property. This plea was not accepted by the Controller. In appeal before the Tribunal it was pleaded that by virtue of section 6 of Married Women's Property Act 1874 the policy assigned to the two wives could not form part of the estate of the deceased. It was further pleaded that as there is a conflict between the Married Women's Property Act and Section 14 of the Estate Duty Act which is a Special Act it shall prevail. The Tribunal held that there is no conflict between the provisions of these enactments and maintained the order of the Controller. The applicant then filed an application under section 59-A of Estate Duty Act 1950 and the following questions have been refcrred:- 1. Whether the Tribunal was right in holding that the provisions of Estate Duty Act as contained in section 6 are not ultra-vires the Constitution, for being in conflict with the injunctions of Holy Quran? 2. Whether the Tribunal was justified in holding that there was no conflict between the provisions of the Married Women Property Act 1874 and Estate Duty Act 1950? There is no dispute about the facts as the deceased left a will by which l/3rd of his estate was to be distributed among the legatees which included his step mother, step sisters, and step brothers. He also left two insurance policies which were assigned to his two widows. In the background of these facts we will now consider the questions referred to us:- QUESTION No. 1. This question challenges the vires of the Estate Duty Act. The Tribunal has a limited jurisdiction which is exercised by it as conferred by law. In this case it : exercised jurisdiction as provided by the Estate Duty Act. It is not the jurisdiction j of the Tribunal of a limited jurisdiction to consider the vires of any Act. This jurisdiction is conferred by Constilution on the superior Courts in certain cascsi where jurisdiction is not barred even by the Federal Shariat Court. Therefore, in our view the Tribunal has no jurisdiction to decide this question. QUESTION No. 2. The conflict between the provisions of Married Women's Properly Act 1874 and Estate Duty Act 1950 are in respect of the following provisions of both these cnactrncnts:- (1) Section 6 of Married Women's Property Act 1874. "6 (1) A policy of insurance effected by any married man on his own life, and expressed on the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed to be a trust for the bcfcfit of his wife, or of his wife and children, or any of them, according to the interest so expressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband, or to his creditors, or form part of his estate. When the sum secured by the policy becomes payable, it shall, unless special trustees are duly appointed to receive and hold the same, be paid to the Official Trustee of the (Province) in which the office at which the insurance was effected is situate, and shall be received and held by him upon the trusts expressed in the policy, or such of them as arc then existing. And in reference to such sum he shall stand in the same position in all respects as if he had been duly appointed trustee thereof by a High Court, under (the Official Trustees Act 1913, II of 1913). Nothing herein contained shall operate to destroy or impede the right of any creditor to be paid out of the proceeds of any policy of assurance which may have been effected with intent to defraud creditors. (2) Notwithstanding anything contained in section 2, the provisions of sub­section (1) shall apply in the case of any policy of insurance such as is referred to therein which is effected by any Hindu, Muslim, Sikh Or Jain, (in any Province) after the first day of April, 1923. (2) Section 6 of Estate Duty Act, 1950. "deceased person" and "the deceased" means a person dying after the commencement of this Act; (3) Section 14 of Estate Duty Act; 1950. Policies kept'up, for a donee: (1) Money received under a policy of insurance effected by any person on his life where the policy is wholly kept up by him for the benefit of a donee, whether nominee or assignee, or a part of such money in proportion to the premiums paid by him, where the policy is partially kept up by him for such benefit, shall be deemed to pass on the death of the assured. Explanation. A policy of insurance on the life of a deceased person effected by virtue or in consequence of a settlement made by the deceased shall be treated as having been effected by the deceased. (2) For the purposes of sub-section (1) so much of the premiums paid on any policy of insurance as was, by virtue of or in consequence of a settlement made by the deceased, paid out of properly, whether or not provided by the deceased, comprised in the settlement or out of income, whether or not provided by the deceased: arising under the settlement shall be treated as having been paid by the deceased. Provided that any payments which were not made either of property provided directly or indirectly by the deceased for the purposes of the settlement, or out of property representing that property, or out of income provided directly or indirectly by the deceased whether arising from such property or otherwise shall not be treated as having been made by the deceased if the Controller is satisfied that those payments were not made as part of any reciprocal arrangements between the deceased and any other person. (3) For the purposes of this section,- (a) the expression "settlement" includes any disposition, trust, covenant, agreement or arrangement, and (b) a person shall be deemed to have made a settlement if he has made or entered into the settlement directly or indirectly, and in particular (but without prejudice to the generality of the foregoing words of this clause) if he has provided or undertaken to provide funds directly or indirectly for the purposes of the settlement, or has made with any other person a reciprocal arrangement for other person to make or enter into the settlement". The Married Women's Property Act is intended to protect the rights of married women in their properties, earnings and wages earned by them from any employment, occupation or trade and such property is deemed to be a separate property. Under section 6 of Married Women's Properly Act an insurance policy effected' by any married man on his own life expressly for the benefit of his wife or his wife or children, is deemed to be a trust for the benefit of the wife or children or both and shall not remain in the control of the husband or his creditor or form part of his estate Question is whether a policy effected by the husband in his name and 'assigned to his wife will be covered by section 6 of the Married Women's Property Act. In this regard although no authorities were cited at the Bar, we have noted thai there seems to be difference of opinion in the High Courts of India. In jShamdas Gobindiwn v. Ml. Savilribai & Ors. AIR 1937 Sindh 181 it was held as Ifollows:- "In order to attract the applicability of section 6 Married Women's Property Act policy must be expressed to be for the benefit of the insured wife or his children and money may be made payable to the Official Trustee. Until these two conditions are fulfilled there can be no statutory trust in favour of the wile. Merely the words 'payable to the assured or his wife' would not in my opinion contemplate a trust in favour of the wife because as I have discussed above these words could not confirm an absolute estate or could not create trust in favour of the wife." This view was followed in Shirimati Manibai v. Bhimji Lalji AIR 1946 Sind 171 and it was observed that mere assignment of policy in favour of the wife does not bring the policy within the terms of section 6 (1). In Sm. Asha Laila's case AIR 1940 Cal. 217 it was held that in an endowment policy by which the wife is nominated to receive the amount payable in the event of the death of the assured before a certain date, is a policy for the benefit of the wife and falls within section 6 of the Married Women's Property Act. This judgment has dissented from the view taken earlier in AIR 1937 Mad. 645. In Bharal Insurance Co. Ltd. Lahore v. Shirimiti Lakshmi Devi AIR 1948 Lah. 21 while referring to various authorities and dissenting from AIR 1937 Sind 181 and agreeing with and relying on Kanayalal v. Stibraya Cltettey AIR 1938 Mad. 413 and in re Fleet Woods Policy (1926') Ch 48 it was observed as follows:- The above case fully supports the proposition that if any benefit is reserved for the wife a trust is created in favour of the wife from the very birth of the policy even though the trust may be that of a contingent interest. Contingent interest is property though the interest which ensured for the benefit of the wife may not be available to her straightaway. If the husband is allowed to operate on the policy he may raise a loan to the full extent of the policy and may destroy the trust of the contingent interest created in favour of his wife at the inception of the policy. If a trust of a contingent interest is created from the moment that the policy is taken out the husband cannot be allowed to destroy the" trust of the contingent interest which had come into being at the time that the policy was affected. I am therefore, in respectful agreement with the opinion expressed by the Full Bench of the Madras High Court in ILR (1938) Mad. 909. In my opinion, the Bombay and Sindh Courts have unduly restricted the meaning of the words "expressed on the face of it for the benefit of his wife" occurring in S. 6 Married Women's Property Act." In Sm. Shanti Devi v. Shree 'Ramlal AIR 1958 Alld. 569 it was observed that unless the wife is made beneficiary ab initio the policy is not effected by the husband for the benefit of his wife and by assignment under section 39 of the Insurance Act the policy will not be covered by section 6 (1) of the Married Women's Properties Act. So far judgments earlier to the year 1948 are concerned they have been thoroughly discussed by Abdul Rasheed CJ. (as he then was) in Bharat Insurance Co. Ltd.'s case and we respectfully agree with the observations made in it. Now! there remains to be considered the case of Allahabad High Court in which! restriction has been imposed for bringing the policy within the four corners of section 6 (1) of the Married Women's Property Act. One of the main reasoning! advanced in that judgment is that the wife should be made beneficiary ab-initio i.e. at the time the policy is effected. There is no such restriction imposed by section 6 itself. It merely states that insurance policy effected by any married man on His own life and expressed to be for the benefit of the wife will be covered by thisj 'section. Therefore, the policy is to be effected by the husband on his own life and it should be on the face of it for the benefit of the wife of children or both. It is possible that a person may effect policy on his own life, but later on he may assign it to his wife thus from the date of such assignment the policy shall be deemed to ibc for the benefit of the wife and from that very moment trust shall be created. The second argument which has prevailed upon the learned Judges of the Allahabad High Court is that under section 39 of the Insurance Act by virtue of which nomination is made, it can also be cancelled at any time before maturity of the policy. However, section 39 is not applicable to policy of life insurance to which section 6 of Married Women's Property Act applies. It is possible to argue that in case of nomination, a nominee receives the insured amount in trust for all the legal heirs, but so far assignment is concerned it is completely different from nomination and is dealt with by section 38 of the Insurance Act. Presently we are not concerned with nomination therefore, we do not wish to comment upon it. Assignment is made by an endorsement on the policy or by a separate instrument signed in either case by the transferor or the assignee which is attested by at least one witness in the prescribed manner and on execution of such endorsement or instrument the transfer or assignment becomes complete and effectual. Such assignment shall be binding upon the insured only alter a notice is effected on the insurance company by the transferor and the transferee. From the date of receipt of such notice the insurer shall recognise the transferee or assignee as the only person entitled to the benefits under the policy. Therefore, the policy which has been assigned unconditionally shall under law be treated to be for the benefit of the transferee. The provisions of Married Women's Property Act is a beneficial legislation for the purpose of protecting the interest of married women, Therefore, a liberal construction would be placed to broaden the scope of its applicability. The restriction placed by the Allahabad High Court and by the Judicial Commissioner Court Sindh we may say so with respect, have narrowed down the scope, operation and benefits under the Act. In the case before us the deceased had assigned the policies in favour of his two wives therefore, it shall be deemed to be for the benefit of the wives to whom they were assigned. Consequently section 6 of the Married Women's Property Act shall be applicable and a trust shall be deemed to have been created. From the date of assignment the deceased ceased to have control on the policy and was not competent to dispose it off. Now coming to section 14 of the Estate Duty Act we find that it deals with policy of insurance which is effected by any person on his life and is wholly or partially kept up by him for the benefit of the donee whether nominee or assignee and such policy shall be deemed to pass on the death of the assured. The words kept by him" are significant which convey the meaning that the deceased had control over the policy inspite of nomination or assignment. The dominant aspect of section 14 (1) is the control the deceased maintained on the policy which 'includes the right to cancel the nomination or assignment. He would thus at the time of his death be competent to dispose it. Section 14 has to be read with section 6 of the Estate Duty Act which provides that only that property shall pass which the deceased was at the time of his death competent to dispose. It will have therefore, to be investigated whether the policy referred in section 14 can be disposed of by the deceased. Assignment of policy to any person except the wife or children may be subject to change and thus the deceased would be having control over the property, but where the policy has been unconditionally assigned to the wife or children or both, the insured looses all control over it and from the inception of assignment, a trust is created. Therefore, policies which are unconditionally assigned to the wife or children or both cannot be made subject to section 14 nor money received under such policy shall be deemed to pass on the death of the deceased. This interpretation of section 14 is based on the principle that the provisions of the same Act have to be interpreted in such manner that they reconcile to each other. Section 6 and 14 of the Estate Duty Act can not be read in isolation or in conflict with each other. They have to be harmoniously construed and conflict should be avoided. We are therefore, of the view that section 6 of the Married Women's Property Act and section 14 of the Estate Duty Act do not conflict with each other though for different reasons which have prevailed upon the Tribunal. We answer in the affirmative. (MBC) Order accordingly.

PLJ 1990 Karachi 165(DB) PLJ 1990 Karachi 165(DB) Present: SALEEM AKHTAR AND IMAM ALIG. KAZI, JJ M/s. SAIFUDDIN GHULAM ALI & SONS-Applicant Versus COMMISSIONER OF INCOME TAX, HYDERABAD-Respondent ITR No. 27 of 1979, decided on 22-6-1989. (i) Sales Tax Act, 1951 (III of 1951)-- —-S.17-Reference to High Court-Jurisdiction-Objection of-Whether objection was raised before Sales Tax Officer-Question of~Observations with regard to raising of legal objections seem contradictory—Applicants had not raised plea before Sales Tax Officer but did challenge assessment on legal plea that period of 35 days required for filing returns had not been provided to them-Held: Once an objection to jurisdiction is raised, it has to be decided on merits-Held further: Where a question of law arises from order of Tribunal, there is no justification or jurisdiction to refuse to refer such question of law to High Court. [P.168JA (ii) Sales Tax Act, 1951 (III of 1951)- —S.17 read with Limitation Act, 1908, Section 5-Reference to High Court-­ Refusal by Tribunal-Challenge to~Objection that application under Section 17(5) is time barred and Section 5 of Limitation Act is not applicable—No cavil with proposition that a question of law which was not agitated before Tribunal, cannot be referred to High-Court.—Held: Proposition is not applicable to this case as question of law was agitated before Tribunal, which according to Tribunal itself, was not seriously agitated, which does not mean that it was not agitated-Held further: Section 5 of Limitation Act is not applicable to application under section 17(4) or 17(5). [Pp.l68,169,170&171]B&D 1984 PTD 431 ref. (in) Sales Tax Act, 1951 (III of 1951)-- —S.17 Reference to High Court-Shot guns manufactured by applicants- Whether were sports goods and exempt from levy of sales tax-Question of- Shot gun is primarily made for purpose of shooting which may result in killing or injuring person, animal or bird shot at—It cannot be ignored that without obtaining a licence under Arms Ordinance, no one can own or possess a shot gun which is a fire arm-Held: Shot gun is not a sports goods-Question answered in affirmative. [P.171JE (iv) Sales Tax Act, 1951 (HI of 1951)-- —-S.17(4) read with Income Tax Act, 1922, Section 66(2)-Reference to High Court-Refusal of Tribunal—Challenge to—Provisions of Section 66(2) of Income Tax Act which are similar to that of Section 17(4) contemplate that if .Tribunal refuses to state case on ground that no question of law arises, then assessee or Commissioner may apply to High Court for a direction to refer questions of law-Refusal to refer some question out of many questions will be covered by Section 17(4)-Held: Dissatisfaction is only in respect of question referred and not in respect of question which has not been referred. [P.170JC 1971(81) ITR 73, (1957) 31ITR 930, (1956) 30 ITR 139, (1966) 61ITR 744 and (1961) 42ITR 296 ref. Mr. Muhammad Naseem, Advocate for Applicant. Mr. Shaikh Haider, Advocate for Respondent. Dates of hearing: 8 and 15-2-1989. judgment Saleem Akhtar. J.-The applicants are engaged in manufacturing "sports shot guns". They had neither filed returns nor paid Sales Tax on the goods manufactured by them. Consequently notices under section 28 of the Sales-tax Act were issued in respect of assessment years 1969-70,1970-71 and 1971-72 requiring them to file returns within a period of four days. The applicants filed returns but claimed exemption under item 15 of Sales tax Notification No.9 of 27,6.1951 on the plea that the goods were product of hammer work and in the alternative exemption was also claimed under item 12 of the said Notification as the goods produced were sports goods. Both these pleas were rejected by the Sales-tax Officer and assessments were framed. The applicants filed an appeal before the Appellate Assistant Commissioner where they challenged that the assessments were bad in law on the ground that only four days time instead of 35 days as required under section 28 of the Sales Tax Act was given for filing returns. Other grounds raised before the Sales Tax Officer were .also pressed in appeal. The appeals were dismissed and the applicants challenged those orders before the Tribunal where they did not succeed.The applicants then filed an application under section 17 of the Sales Tax Act for referring the following five questions to this Court" (a) Whether on the facts and in the circumstances of the case, the curtailment of time limit from the prescribed notice under section 28 of the Sales Tax Act deprived the Sales-tax Officer of jurisdiction in framing a valid and legal order and whether the Tribunal was justified in confirming such an order. (b) Whether the learned Tribunal was justified in holding- that there was no prescribed notice under the Sales-tax Act and whether on the face of this finding the conclusions drawn by the Tribunal were correct. (c) Whether the learned Bench of the Tribunal could by-pass the earlier decisions of the Tribunal (including Full Bench Decisions) on the same facts. (d) Whether the Tribunal was right in holding that the goods manufactured by the applicants were not "Sports goods" and the manufacture thereof was not exempt from the payment of Sales-tax. (e) Whether in the facts of the case the Tribunal was justified in not holding that the predominant use of the shot guns was sport". The Tribunal considered these questions in which it was admitted that instead of 35 days only 4 days time was allowed to file returns but the questions at serial No.(a) (b) (c) were not referred on the plea that they were "not pressed seriously" as the assessments were made on the returns filed in compliance with the notices and no protest was made before the Assessing Officer. The Tribunal hearing application under section 17 of the Sales Tax Act has taken the view that this plea was dropped at the time of hearing of appeal and therefore the merits of the plea was not discussed and in the course of that order only passing reference was made. The Tribunal therefore referred the following question: Whether on the facts and in the circumstances of this case, the Tribunal rightly held that, shot guns manufactured by the applicants, were not sport goods, and therefore not exempt from levy of Sales-tax under item 12 of Sales-tax Notification No.9 of 1951? The applicants have also filed in this Court an application under section 17(5) of the Sales Tax Act praying that all questions raised under section 17(1) of the Sales Tax Act may be heard by this Court. An application under section 5 of the Limitation Act has also been filed for condoning the delay. Mr. Mohammad Nasim the learned counsel for the applicants has contended that these applications have been made by way of abundant caution although such applications are not necessary as the Court is competent under section 17(3) of the Sales Tax Act to refer the case to the Tribunal for stating the case properly and referring all the questions of law which arise from the order of the Tribunal. In order to appreciate the contention of the learned counsel for the applicants it is necessary to examine the appellate order passed by the Tribunal as well as appellate order passed by the Appellate Assistant Commissioner. The later order has not been incorporated in the paper book although in all fairness it should have been made part of the paper book as it has been referred in the order of the Tribunal and it also shows that the legal plea regarding jurisdiction of the Sales Tax Officer was raised before the Appellate Assistant Commissioner. In para 3 of the Tribunal's appellate order at page 23 of the paper book it has been observed as follows: "When the matter went to the learned Appellate Assistant Commissioner it was argued in the first place, that the assessments were bad because in the notice issued under section 28 for filing the returns the time allowed was only tour days instead of 35 days the assessment framed were bad in law." Again in para 4 it has b°.cn observed as follows: "The legal plea was however, not pressed seriously as the assessments were used on the returns filed in compliance with these notices and admittedly the appellant had made no protest before the Income Tax Officer for curtailing the statutory time limit of 35 days. Before us the only plea advanced is that the 'short guns' manufactured by the appellant are 'sports goods'." These obsuv^'ons with regard to the raising of legal pleas seem to be contradictory. The ;,,,,-licants had not raised the plea before the Sales Tax Officer but did challenge the a.> >mcm on the legal pica that period of 35 days required for filing returns had not d.-cii provided to them. In the absence of the order of the Appellate Assistant Commissioner we are unable to state how it was dealt by him. From the order of the Tribunal it is clear that it was raised but was brushed aside by observing that it was not seriously pressed.lt is a matter for consideration whether a plea was seriously pressed or not as it depends upon how and in what planner and wiiii what seriousness the Tribunal has heard the arguments. The fact remains (hat the objection was raised, whether seriously or not, makes little . ^difference as u is a matter of degree of appreciation particularly when the learned [counsel disputes this fact. Once an objection to the jurisdiction is raised it has to !be decided on merits. Therefore it would not be proper to say that the question relating to the jurisdiction was not pressed because it was not seriously raised. Even this observation is based partly on conjecture and assumption. We are satisfied that the question regarding jurisdiction was raised before the Tribunal •• and a question of law did arise from the order of the Tribunal which has not been referred although a proper application was made by the applicants to refer such questions. Where a question of law arises from the order of the Tribunal, there is hardly any justification or jurisdiction to refuse to refer such question of law to the High Court. Mr. Sheikh Haider the learned counsel has contended that as the Tribunal had refused to refer the question of law to this Court the applicants should have filed an application under section 17(4) within 90 days for referring the question to the High Court and as it has not been filed within 90 days and section 5 of the sLimitation Act is made applicable only to application to the High Court under jsub-seclion (1) of section 17 the application is lime barred and this question can inot be raised. He has referred to International Beverages Limited Vs. \Commissioner of Income Tax 1984 PTD 431 for the proposition that a question of •law which was not agitated before the Tribunal can not be referred. There is no jcavil with this proposition of law but it is not appplicablc in the present case as the | question of law was agaitatcd before the Tribunal which according to the Tribunal i itself was not seriously agitated which docs not mean that it was not agitated. Mr. Mohammad Nasim has contended that section 17(4) does not contemplate a case where the Tribunal has referred the question partly and refused to refer other questions raised in the application and therefore in such circumstances the High Court exercising jurisdiction under section 17(3) require the Appellate Tribunal to modify the statement and refer the questions of law which were refused to be referred. In this regard the learned counsel has referred to Mahabir Prasad Niranjanlal Vs Commissioner of Income Tax U.P.1951 ITR 472. This is a case under section 66 of the Income Tax Act which is equivalent to section 17 of the Sales Tax Act. In this case the Tribunal had not referred all questions of law which were raised by the asscssee and were said to have arisen from the Order of the Tribunal but only part of the questions were referred. It was held that provision of section 66(2) of the Income Tax Act which provides for six months limitation for an application where the Tribunal has refused to state a case will not apply to such case. Sub-section (4) is wide enough to cover such a case. If the High Court is satisfied that the statement of the case is insufficient it 'can refer the case back to the. Income tax Appellate Tribunal to give a fuller statement and no period of limitation has been fixed for an application to the High Court for directing the Tribunal to refer the other questions of law and there is no bar to the application at the time of the reference under section 66. This case fully support's the submissions of the learned counsel for the applicants. We have also noted another judgment of the Allahabad High Court reported in Jitggilal Kamlapal Vs. Commissioner of Income Tax Ultar Pradesh and Vindhva Pradesh 1961 (41) ITR 257 which has followed the above judgment. However we have been able to find out two judgments of the Supreme Court of India and other High Courts in which this view has not been approved. In Kamlapal Modal Vs. Commissioner of Income Tax U.P. and V.P. 1%2 (45) ITR 266. In this case the Tribunal had refused to refer one of the questions sought to be referred by the applicant under section 66 of the Income Tax Act. The applicant filed petition under section 66(4) for direction to the Tribunal to refer the remaining question. Before this petition could be heard Income Tax Reference made by the Tribunal was decided. It was observed that section 66(4) does not apply and the High Court can not ask the Tribunal to state the case on a question not referred by the Tribunal to the High Court or the question which the Tribunal has refused,to refer. It was further obscrvcd:- "It is obvious that sub-section (4) of section 66 can not do service for sub­ section (2) thereof. If the assessee was dissatisfied with the order of the Tribunal refusing to state a case on certain questions, the clear duty of the asscssee was to move the High Court under sub-section (2) of section 66 within the time allowed by law. The assessee in the present case did not take any such action and he wanted to evade the consequences of his failure to take any such action under sub-section (2) by resorting to a petition under sub-section (4). This the assessee was not entitled to do. Sub-section (4) comes into operation when the case is incomplete in the sense that all the relevant material facts are not set out therein or the Tribunal has not stated its conclusions and findings on the material facts of the case." In Commissioner of Income Tux Poona Vs. Siinderial N. Daga and oilicn 1 1

"?1! (81) IRT 73 the Supreme Court's judgment in Kamlapal's case was followed. (Reference can also be made to Balbhadhar Mai Kuthiala (1957) 31 I.T.R. 930, \Pannalal Nandlal Bhandari (1956) 30 1TR 139, Lakshamiratan Cotton Mills Co. Ltd. (1966) 61 I.T.R. 744 and Haji Abdul Kadcr Sahcb (1961) 42 I.T.R. 296. All these judgments have decided that where some of the questions have not been eferred by the Tribunal the remedy lies in section 66(2). Section 66(2). of the ! Income Tax Act is similar to section 17(4) of the Sales Tax Act and Section 66(4) \ is similar to section 17(3). These provisions contemplate two different situations under section 17(4) if the Tribunal refuses to state the case on the ground that no question of law arises then the assessee or the Commissioner may apply to the High Court for a direction to refer the question of law". In the Allahabad High j Court distinction has been made between the cases where all questions have been j referred and cases where some questions have been referred and other questions : have not been referred. No such distinction is required as the refusal to refer the question in part or in toto does not make any difference. Refusal to refer some Questions out of many questions will be covered by section 17(4) because it is i refusal to refer any question which entitles a parly to apply to the High Court. 'Section 17(3) refers to a situation where question has been referred but the statement of case referred is insufficient to enable the Court to determine such question. In such circumstances Court may refer the case back to the Appellate Tribunal to make additions or alterations as Court may direct which may be (necessary for determination of the question. Therefore the dissatisfaction is only in respect of the statement made in respect of the question referred and not in respect of the question which has not been referred. The applicants have filed an application under section 17(5) of the Sales Tax Act praying that all questions raised by them may be heard by this Court as questions of law which go to the root of the jurisdiction of the Tribunal have not been referred. Such relief can not be granted under section 17(5). In view of the aforesaid observations even under section 17(4) of Sales Tax Act which is similar to section. 66(2) of the Income Tax Act such a relief can not be granted. The applicants ought to have filed application under section 17(4) within the prescribed period. Even if we treat the application under section 17(5) as an application under section 17(4) it is barred by time as it was not filed within 90 days from the date on which the applicants were served with the notice of refusal. It was filed on 9.10.1988 when the matter was fixed for regular hearing. The applicants have also filed an application under section 5 of the Limitation Act for condoning the delay and it has been stated that they were advised by their advocate that the questions which have not been referred to the High Court can be considered by the High Court when the matter comes up for hearing of Reference. The advocate for the applicants has filed his affidavit and stated that the delay was on account of bonafide wrong advice tendered by him. It is pertinent to note that the question was referred by the Tribunal on 29.11.1977 and the case was received with printed paper book on 27.11.1979 when after registration notice jwas issued. The case came up for hearing on 21.9.1988 when the advocate for the 'applicants applied for adjournment which was granted. On 12.10.1988 it transpired jthat the applicants had filed an application under section 17(5) of the Sales Tax Act on 9.10.1988. After some arguments when it was pointed out that proper remedy may be under section 17(4) the applicant's advocate although maintaining 'that relief can be granted under section 17(5) requested for time to file (application under section 5 of the Limitation Act. Without commenting upon the merits of this application, it may be pointed out that section 5 of the Limitation Act has not been made applicable to application under section 17(4) or 17(5). Section 17(8) makes section 5 of Limitation Act applicable to application under section 17(1) only. Both the applications are misconceived and are dismissed. Now coming to the question referred we find that Tribunal has held that thei shot guns manufactured by the applicants are not sports goods and are not exemptfrom levy of Sales Tax under item 12 of Sales Tax Notification No.9 of 1951. The shot gun is primarily made for purpose of shooting which may result in killing or injuring the person, animal or birds shot at. It is not manufactured merely for; shooting at tragets for purposes of practicing and improving the skill. The object j of shooting is always within the control of the man handling it. Shot guns can not:E be compared with other sports goods as their primary aim and object is not to shoot, kill or injure any one nor can their normal and ordinary use achieve this object. We can not ignore the fact .that without obtaining a licence under the Arms Ordinance, no one can own or possess a shot gun which is a fire arm. We are therefore of the view that the shot gun is not a sports goods. We answer the question in the affirmative. (MBC) Order accordingly.

PLJ 1990 Karachi 171 PLJ 1990 Karachi 171 Present: syed haider ali pirzada, J MOHIUDDIN ANSARI and another-Applicants versus MUHAMMAD ARIF SIDDIQUE-Respondent Revision Application No. 256 of 1988, accepted on 18.5.1989. Civil Procedure Code, 1908 (V of 1908)- —O.VII, R. 11 read with Limitation Act, 1908, Articles 23, 24 & 25-Plaint-- Rejection of~Application for -Dismissal of~Challenge to—It was a suit for compensation for libel or slanHer, limitation for which is prescribed by Article 24 or Article 25 of Limitation Act-It was however, held by Senior Civil Judge that suit fell under Article 23~Held: Limitation prescribed in Articles 24 or 25 was applicable and suit was clearly time-barred—Held further: There is apparent jurisdictional error in order in the sense that order suffers from patent and material irregularity or illegality in exercise of its jurisdiction of trial court in rejecting application—Revision allowed and plaint rejected. [Pp.l72&173 ]A,B&C Mr. Nizam Ahmad, Advocate for Petitioner. Mr. S-A. Jalib Chaudhary, Advocate for Respondent. Dates of hearing: 9 and 18-5-1989. judgment This Civil Revision is directed against the order dated 7-8-1988 passed by the Ilnd Senior Civil Judge, Karachi Central, whereby he dismissed the application under Order VII Rule 11 CPC filed by the petitioner. The facts leading to the filing of the above Civil Revision petition are that the respondent sued the petitioners for damages amounting to Rs.1,00,000.00 for defamation. It was alleged in the suit that one of the petitioners made a false and baseless accusation against the respondent, his son and son-in-law to the police and also instituted a suit being suit No. 1417/1986 filed by the petitioner No.l in the Court of IXth Civil Judge, Karachi West, for permanent injunction against the respondent was the abnormal action of the prtitioner No. 1, wherein he used die words "5 goonda persons" including the defendant (Mohammad Arif Siddiqui), his son Akbcr and son-in-law Perwaiz Ansari entered the house of the plaintiff (that is defendant in the suit). Ultimately the suit was dismissed for non-prosecution. In para 12 of the plaint, it was alleged " that the cause of action arose to the plaintiff. against the defendants for the first time on 6-10-1986 when the defendant No. 2 lodged false report with police; and then on 8-10-1986 when the defendant No, 2 has filed a false case against the plaintiff and obtained exparte stay by way of fraud and misrepresentation; and finally on 16-9-1987 when the above suit No. 1417/1986 was dismissed against which no action is taken till to date and thereafter is a continuing one". The sumritons of the suit were served upon the petitioners. The petitioners filed an application under Order VII Rule 11 CPC for rejecting the plaint on the ground that the suit was time barred. The respondent resisted the application. The learned Senior Civil Judge dismissed the application. The learned Senior Civil Judge observed that Article 23 of Limitation Act was applicable to the instant case. The petitioners being aggrieved against the order dated 7-8-1988 have filed the present civil revision. I have, heard Mr. Nizam Ahmed, the learned counsel for the petitioners in support of the civil revision and Mr. SAJalib Chaudhry advocate for the respondent. I have perused the plaint and the impugned order. I have carefully considered the arguments of the learned counsel for the parties. It is not in dispute that the suit was filed by respondent against the petitioners for damages amounting to Rs. 1,00,000.00. It was suit for compensation for Libel or Slander, the limitation applicable to which was that prescribed by Article 24 ro Article 25 of Schedule 1. It follows that the suit is barred by time whether it falls within Article 24 or Article 25, Limitation Act and it is not disputed that this is so if these Articles apply. It was however held by the Senior Civil Judge that the suit fell within Article 23, which runs as follows:- Description of suit Period of Time from which period limitation begins to run. "23. For compensation for a malicious prosecution. B One year When the plaintiff is acquitted, or the prosecution is otherwise terminated." This gives the period of limitation as one year after the judgment of the suit r concluding of the prosecution. I am of the opinion that the suit was barred by time because it was a suit for compensation for libel or slander, the limitation applicable to which was that prescribed by Article 24 pr Article 25 of Schedule 1. The respondent averred in his plaint that report was lodged with the police on 6- 10-1986 and the suit No. 1417 of 1986 was filed on 8-10-1986 and the suit was fded on 24-11-1987 after lapse of over one year. It is crystal clear that .the suit was barred by time. The order of the trial Court dated 7-8-1988 cannot,.therefore, possibly be upheld. There is thus apparent jurisdictional error in the order in the sense that the order suffers from patent and material irregularity or illegality in the exercise of its jurisdiction of the trial Court in rejecting the application. In the result the civil revision is allowed, impugned order is set aside and thel plaint is rejected. In the circumstances of the case, the parties shall bear their own) costs. (MBC) Revision accepted.

PLJ 1990 Karachi 173 (DB) PLJ 1990 Karachi 173 (DB) Present: SALEEM AKHTAR AND IMAM ALIG. KAZI, JJ M/s. HAYAT SERVICES (Pakistan) Ltd.-Appellant versus KANDAN-Respondent High Court Appeal No. 28 of 1988, decided on 2.5.1989. (i) Damages- —Damages—Suit for—Decree passed in—Challenge to—Contention that it was duty of respondent (father of deceased) to prove that incident occurred due to negligence on part of appellant which he has failed to prove-Death of deceased due to burn injuries has not been disputed but manner and accident which caused death, has differently been stated by parties-Prom evidence on record, it is difficult to dearly establish as to how incident occurred—From evidence, it is clear that appellants have not produced any convincing evidence to show active measures they had taken to protect against such incidents-It seems that there was no arrangement to extinguish fire immediately—Held: Incident as related by appellants does not stand to reason nor it has been proved. [Pp.l75&176]A&B (ii)Maxims- —Maxim "res ipsa /0«?uiYu/--Applicability of—Challenge to—This maxim means that in all circumstances of a given case, res speaks and is eloquent because facts stand un-explained with result that natural and reasonable inferences from facts have to be drawn-Due to non-accessibility to vital part of evidence, plaintiff is put to great disadvantage, therefore, this maxim is applied to avoid rigors created by procedural difficulties-Held: Finding of learned Single Judge that death of deceased was caused due to negligence and default of appellants and their employees, cannot be disturbed. [Pp.l76&177] C.D&E AIR 1963 Bom. 144 and (1950) 1 All E.R. 392 rel. Winfield and Jolowicz on Tort, llth Edition at page 99 and Halsbury's Laws of England ref. Mr. Mustafa Lakhani, Advocate for Appellants. Mr. Muhammad Maqsood, Advocate for Respondent. Date of hearing: 30-1-1989. judgment Saleem Akhtar, J.~ The respondent filed suit under Fatal Accidents Act for recovery of Rs. 6,00,000/- alleging that his son Subra Manium who was an employee of the appellant died on 18-2-1985 due to burn injuries caused in the kitchen due to default and negligence of the appellant. The suit was filed for damages suffered by him and also for the benefit of his wife i.e. mother of the deceased. Briefly facts as alleged in the plaint are that on 15-2-1985 while the deceased in the usual course of his duty was performing job of sweeping, the cook who was outside the kitchen asked him to put off the burning flame of the gas stove. No sooner he tried to put it off he caught fire and was severely burnt. He was taken to Jinnah Hospital where he died on 18-2-1985. The death was caused due to neglect and default of the appellant and his employees. It was alleged that the deceased was earning Rs. 550/- per month. He was also working in private houses and used to additionally earn Rs. 600/- per month and was planning to go to Middle East for employment within two or three months. The appellant filed written statement in which the employment of the deceased and the fact that he. died due to burn injuries on 18-2-1985 was admitted. It was however denied that the accident was caused due ot default or negligence of the appellant or any office employee. It was averred that the duty of the deceased did not require him to be in the kitchen especially at 1 P.M. and he was loitering around the kitchen of his free will. When cook Haider Zaman was in the process of burning charcoal in the Sigree to prepare tikka the deceased voluntarily offered to burn the charcoal. The deceased without taking any pre-cautionary measures and without consulting any body negligently continued to pour kerosene oil on already ignited charcoal holding the kerosene oil tin in his hand which caught fire. The deceased died subsequently due to burn injuries. The appellant gave him prompt medical care and rushed to the hospital. It has been denied that the deceased was forced to put off the burning flame of gas stove or that the accident was caused by burning flame of gas stove. It was contended that his salary was Rs. 380/- per month and not Rs. 550/- as alleged. The case was fixed for evidence on 10-2-1987 but as the appellant and his witnesses did not appear the respondent filed his affidavit of evidence and the Court granted a decree for Rs. 3,00, OOO/- against the appellant. On 19-2-1987 the exparte decree was set aside and after recording the evidence of the parties the learned Single Judge by the impugned judgment decreed the suit in the sum of Rs. 1,20,000/- with proportionate cost and interest at the rate of 6 percent per annum with the direction that the respondent shall file claim form for obtaining compensation from the Insurance Company and if the compensation is awarded to the respondent within six months the same shall be deducted from the decree passed by the Court. We have heard Mr. Mustafa Lakhani Advocate the learned counsel for the appellant and Mr. Muhammad Maqsood the learned counsel for the respondent. The learned counsel for the appellant has taken us through the entire evidence. Mr. Mustafa Lakhani the learned counsel contended that it was the duty of the respondent to prove that the incident occurred due to the negligence on the part of the appellant which he has failed to prove. He has further contended that in the evidence it has no where been stated that incident was caused due to appellant's negligence or wrongfull act. So far the death of the deceased due to burn injuries is concerned it has not been disputed by the parites but the manner and the accident which has caused the death has differently been stated by them. No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharges this burden it shifts to the other side. But where the death or the incident is not denied but different version of the incident causing death is stated then if such allegations constitute facts which are exclusively within the knowledge and possession of the defendant than even if the version alleged by the plaintiff is found to be weak or incorrect, the defendant is bound to prove his averment. Taking the evidence of the respondent first it may be noted that he could not state any thing about the incident because he was not present there. Whatever he has stated is hear say. Abdul Zubair stated that Kenwal Restaurant is on the ground floor and adjacent to it is the open space where Kabab is prepared but the incident occurred in the kitchen which is not on the ground floorbut on eighth floor. About Haider Zaman he stated that he cooks food and does not prepare Kabab. He however is not an eye witness of the incident. Whatever he has stated is only on the information received from the workers. This is the entire evidence with regard to the incident and it is difficult from these facts to clearly establish how the incident occurred. Since the deceased has died while on duty within the hotel premises the appellants have given an account of the incident and it is to be seen whether they have been able to establish their case. It may be noted that from the circumstances and evidence on record, it is clear that all the facts regarding incident occurred within the appellant's premises who have its exclusive knowledge. Therefore the burden is entirely upon them to establish and reveal those facts. The appellants have examined Syed Altaf Sajjad, their Assistant Manager and attorney. He has stated that there was barbacue outside the kitchen which is on the 8th floor and the gas stove is inside the main kitchen. At the time of incident he was in his office as Chief Security Officer of the hotel. He had not seen anything. He has also stated that it was the duty of the deceased to clean kitchen and furniture. According to his inquiries, Haider Zaman was preparing Tikka and he went inside the kitchen when he heard cries. He rushed and saw that the deceased was holding tin of kerosene oil and there was flame all over. Haider Zaman stated that he was inside the kitchen and Tikka was prepared outside the kitchen. He went inside the kitchen to put Tikka in the washing machine and at that time the deceased was pouring kerosene oil on the barbecue (sighri). He had asked him not to do so but he did not desist and caught fire. In j cross-examination he stated that he had not seen the incident himself. He thus contradicts his own statement and the learned Single Judge was justified in disbelieving this witness. Therefore there seems to be very scanty evidence on record with regard to the incident. As stated earlier the incident and death in the hotel has not been denied and it has to be seen whether it was caused due to negligence of the appellants. In every case negligence is not a question of evidence as in certain circumstances inference can be drawn from the true facts. Where a person is charged with the duty to exercise care then it is for him to establish that reasonable care was taken to avoid acts or omissions which could be reasonably foreseen which may cause physical or bodily injury. The appellants are running hotel which is not only a residential hotel but for cooking food. They are maintaining a kitchen on the 8th floor. According to the appellant's witness there is a barbecue outside the kitchen. Considering the allegations and the nature of business carried out by the appellants they are expected to maintain fire security arrangements at all such points and places where it is possible that some incident may occur due to fire. The kitchen is the most vulnerable point from where Ere may start engulfing the entire hotel including the residential rooms. In these circumstances it was the duty of the appellants to have produced evidence to show the manner in which they discharged this duty. From the evidence it is dear that the appellants have not produced any convincing evidence to show the active measures they had taken to protect against such incidents. It has not been, stated that the gas stoves were free from defect. Prom the entire evidence it seems that there was no arrangement to extinguish the fire immediately as no extinguisher seems to have used by the persons who were present at the time of incident Even if the contention of the appellants that the deceased was pouring kerosene oil on the charcoal is accepted it seems that it was a most negligent method employed for burning the charcoal. It is a matter of common knowledge that charcoal is ignited by using inflamable material which may include kerosene oil but once it starts burning such inflambale materials are not used. The appellants have maintained throughout that the deceased was pouring kerosene oil on burning charcoal. The kerosene oil is used for igniting the charcoal and not at a time when it starts burning and flames leap up. The very theory adopted by the appellant seems to be unbelievable. It is unthinkable that a person who is only charged with a duty to clean the furniture and kitchen would voluntarily take upon himself the job of burning charcoal outside the kitchen unless he has been asked by somebody on behalf of the hotel to do this job. Therefore the incident as related by the appellants does not stand to reason nor it has been proved. The learned Single Judge has pressed in service the maxim known as res ipsa loquitur. Mr. Lakhani the learned counsel for the appellants has very vehemently contended that this maxim was misplaced and was not applicable to the facts of the present case. This maxim means that in all the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained with the result that the natural and reasonabte inferences from the facts have to be drawn. But it must be made clear that such inference should not be based on conjectures and surmises. The burden is on the plaintiff to prove the actual cause of accident but in case where it is not possible for him as such facts are within the exclusive knowledge of the defendant then in those circumstances, if the incident is proved, the defendant is called upon to expalin its conduct to bring about the correct and true facts. Due to non accessibility to vital part of the evidence the plaintiff is put to great disadvantage therefore this maxim is applied to avoid the rigors created by procedural difficulties. In Bhurmal and Mitra Motto 1 Association v. RaghunaUi Bansilal Kasat, A.I.R. 1963 Bom. 144 the maxim was explained as follows: "When the thing is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanaion by the defendants, that the accident arose from want of care." Winfield and Jolowicz on Tort, Ilnd Edition at page 99 explain the maxim res ipsa loquitur in the following manner. "In order to discharge the burden of proof placed upon him it is usually necessary for the plaintiff to prove specific acts or omissions on the part of the defendant which will qualify as negligent conduct. Sometimes, however, the circumstances are such that the Court will be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what he did or did not do. Thus, for exmple the presence of an unlighted vehicle on the road at night will, if there is no other lighting, be regarded as prima facie evidence of negligence on the part of the driver. It is important to appreciate, however, that this means no more than that, in the absence of an explanation from the defendant, the plaintiff has discharged his burden of proof. The inference of negligence is by no means irrcbuttable, and the nature of the evidence required from the defendant in rebuttal will depend in each case on the strength of fhe inference against the standard of care called in the circumstance." It was further observed as follows: "What then, must the defendant do to discharge this burden ? In principle, if the maxim is no more than a convenient way of expressing the idea that the plaintiff can raise a prima facie case by circumstantial evidence, the answer can only be that he must do sufficient to rebut the inference of negligence raised by the plaintiff, and what that entails will, as we have seen, carry with strength of the inference and the standard of care called for in the circumstances. Certainly the defendant will be exonerated if he shows how the accident actually occurred and if this true explanation is consistent with due care on his part; and if he cannot do this he will still escape liability if he proves that there was no lack of care on his part or on the part of persons for whom he is reasonable." In Barkway v. South Wales Transport Co. Ltd; (1950) 1 A11.E.R.392 Lord Porter in his speech observed: The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the faces speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not." This doctrine has been explained in Halsbury's Laws of England as follows: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural 'inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own story of negligence on the part of the defendant the stroy so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden oh the defendant being to show the act complained of could reasonably happen without negligence on his part." The maxim res ipsa loquitur is a rule of evidence which is applied where although the offending act is proved the cause or negligence can not be established by the plaintiff due to non-accessibility to such evidence or because D such evidence is exclusively within the knowledge of the defendant. The learned Single Judge has quoted Solmond on Torts and Clark and Lindsel in support of ithe applicability of this principle. He has reached the following conclusion. "The next question would be whether for the purpose of assessing damages the period for which the deceased would have lived is to be taken into consideration or the period which his parents are likely to survive is to be considered. There are conflicting opinions on the question as to whpse age would be material for the purpose of assessing the compensation. The claim is being made by the parents of the deceased for the damages which they have suffered due to the death of their son. They could have enjoyed the income that they received from their son only till their life time. I am in respectful agreement with the views of learned Single Judge of this Court in the case of Mohammad Siddique and others Vs. Gul Majeed and 2 others (P.L.D)1980 Kar.78). The learned Judge has observed "in my view no hard and fast rules can be laid for the purpose of determining a reasonable period or reasonable amount for the purpose of computing compensation to be paid to the parents of deceased son involved in the accident. It will vary from case to case according to the facts of each case." We are in agreement with the conclusion drawn by the learned Single Judge. From the above dirsucssion it is clear that the burden placed on the appellants has not been discharged and therefore the finding that the death of the deceased was caused due to the negligence and default of the appellants and their employees can not be disturbed. The next question is about the quantum of damage. The respondent had claimed that the deceased was earning Rs.550/- per month as salary and Rs.600/- from private work. In this regard the respondent has examined himself. According to him he used to go on duty at 7 A.M.. and come back at 2 P.M. So far additional amount of Rs.550/- is concerned there does not seem to be any effective cross examination. Abdul Zubair state^ that the deceased was earning about Rs.500/- or Rs.550/- per month. His duty hours were from 7 A.M. to 3 P.M. and bonus was also paid to the workers every three months. These facts have not been challenged in cross examination. It has been brought on record that this witness was previously working and has been dismissed by the appellant. Ratan is the third witness who is respondent's neighbour and knew the deceased. He also statd that he was earning a salary of Rs.550/- and earning Rs.550/- per month from private work. He however stated that he does not know at what places he used to work privately. On the other hand the appellant has examined Syed Altaf Sajjad who has stated that the deceased was drawing salary of Rs.190/- per month and allowance of Rs.190/-. Thus his total salary was Rs.380/- per month. Ashraf Eassai was also examined on behalf of the appellants who also sated that the deceased was drawing salary of Rs.380/- per month. He has produced the application for employment made by the deceased on printed form and also the form for recommendation for pay roll change. From this form it seems that the deceased was posted in food and beverage department and on 26.10.84 his salary was Rs.380/- per month. He was appointed on probation of three months with effect from 26.10.1984. He died on 18.2.1985 Le.after expiry of the probation period. The appellants have not produced the salary register or any other document to show that this salary was paid even after completion of probation period. This clearly shows that certain material documents necessary for determining the pay at the time of death have not been produced. In these circumstances it would be proper to infer that the deceased was drawing a salary of at least Rs.500/« per month which seems to be less than the minimum wages prescribed by Labour Laws. The evidence with regard to private work is very scanty and can not be trusted. The deceased was 18 years old at the time of his death. The respondent was about 49 years of age and the deceased's mother was about 45 years of age. The respondent has not led any evidence about his expectancy of life therefore it should be estimated at 60 years. The deceased according to the evidence used to spend Rs.100/- for his personal expenses and used to pay the remaining salary to his mother. In this way the respondent would have been maintained at the rate of Rs.4,800/- per year. The mother would have benefited at least for a period of 15 years. The respondent and the mother of the deceased have suffered damge of Rs.72,000/-. We therefore modify the decree of the learned Single Judge and decree the suit in the sum of Rs.72,000/- with proportionate cost and interest at the rate of 6% per annum from the date of suit till recovery. The amount of compensation shall be shared by the respondent and his wife equally. (MBC) Decree modified.

PLJ 1990 Karachi 179 PLJ 1990 Karachi 179 Present: abdul rahim kazi, J SHAFIQ AHMAD-Appellant versus SAKHAWAT HUSSAIN-Respondent. FRA No 103 of 1989, dismissed on 5-3-1989 Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-S. 16(l)~Tenant~Ejectment of~Default—Ground of—Contention that landlord refused to accept rent—Nothing on record to support contention-Next contention that landlord had gone away to India, therefore, rent could not be paid-Respondent as well as his Choukidar have both filed affidavits saying that Choukidar had been authorised to receive rent in absence of respondent-Held: There is no force in appeal-Appeal dismissed. [Pp.l80&181]A&B Mr. G.M. Saleem, Advocate for Appellant. Mr. Hafiz Abdul Baqi, Advocate for Respondent. Date of hearing: 5-3-1989. judgment This is an appeal arising out of the order of the Rent Controller, passed oa 10-12-1988, whereby, the application for ejectment filed by the present respondent was allowed. The applicant had filed this ejectment application on the ground of default from October, 1979 to December, 1979. The rent application initially was filed on 20-1-980, which was dismissed earlier on 23-10-1984. Against which order, an appeal was filed before this Court, being FRA No. 1069/1984, and by consent the dismissal order was set aside and the case was remanded vide order dated 17-1-1988. The operative part of the order is reproduced herein below:- "After hearing both the counsel, they submitted that case be remanded to the Rent Controller to give findings on the future default after the filing of the rent case. I am also of the view that in the absenc of such finding on that point, it will not be fair to decide that issue at the appellant stage. It is for the Rent Controller to determine and decide on the evidence as well as according to law. More-so-over, I have also noticed that there is no written agreement between the parties and respondent is statutory tenant for which he is entitled 60 days time for the payment of the rent. Looking to the circumstances of the case, I set aside the impugned order and remand the case back to the Rent Controller to decide all the points in accordance with the law. The parties to bear their own costs." The learned Rent Controller, after remand of the case, framed the issue with regard to default in payment of monthly rent prior to and after filing of the ejectment application. The period of default in the present case for the consideration would be (a) October, 1979 to December,1979, and (b) January, 1980 to 7-4-1981, when the Rent Controller passed the order under section 16(1) of the Sind Rented Premises Ordinance, 1979. 2. I have heard Mr. G.M. Saleem, the learned counsel for the appellant, and Mr. Hafiz Abdul Baqi, the learned counsel for the respondent, who is present on pre-admission notice. 3. Mr. G.M. Saleem, has argued that the Rent Controller had no jurisdiction to adjudicate upon the default for the period of October to December, 1979, as the order passed by this court on 17-1-1988 requires him to decide only the default committed after filing of the rent application i.e. from Jaunary 1980.1 cannot agree to this contention of the learned counsel. The very last two lines of the above quoted order of this court show that the case has been remanded to the Rent Controller to decide "all the points" in accordance with law. In view of the above, the Rent Controller could go into the default committed by the tenant prior to filing of the rent application also. On merits, it is an admitted position that the appellant for the first time after October 1979, sent the rent through money order on 19-1-1980. It is also admitted that there was no written agreement of tenancy and thus the rent for the month of October, 1979, would fall due on 30-12-1979, and, therefore, sending of the rent by money order on 19-1-1980 would amount to default in payment of rent for atleast the month of October, 1979. Again it is an admitted position that the tenant did not pay the rent from January, 1980 till 7-4-1981, when he deposited the rent under the orders of the Rent Controller. Mr.G.M. Saleem, has argued that ever since filing of the renl case, the tenant could not deposit the rent as no application under section 16(1] was made by the landlord till 16-10-1980. Even this argument of the learnei counsel is not tenable for the reasons that mere filing of a rent case on the grown of default would not absolve the tenant from his liability to pay the rent regularl; as required under law. Mr. G.M. Saleem, has casually argued that thi respondent/landlord had refused to accept the rent, but there is nothing on thi record to support the said contention of the counsel. The next contention of th learned counsel for the appellant is that the respondent had gone away to IND during the period October to December,1979, and, therefore, he could not pay thi rent. The evidence on record shows that the respondent as well as his chowkid have both filed their affidavits saying that the said chowkidar had been authorisei to reveive the rent in absence of the respondent, which fact has not been controverted. Even otherwise, the respondent had returned back from India on 21-12-1979 and there is no explanation on record as to why the rent was not paid to him after this date. The Rent Controller has considered the evidence of the parties at length and has relied on case law as reported in the cases of Raj Mohammad and 11 others v. Haji Mohammad Zareen and 3 others (1980 SCMR 339) and Mst. Amina Begum v. Mehar Ghulam Dastgir fPLD 1978 SC 220). 4. For the above reasons, I find no force in the present appeal, which isl dismissed in limine with no order as to costs. The appellant is directed tol B handover the vacant possession of the premises in dispute to the respondent! within a period of (90) ninety days from the date of this order. (MBC) Appeal dismissed.

PLJ 1990 Karachi 181 (DB) PLJ 1990 Karachi 181 (DB) Present: AJMAL MIAN CJ AND sai Ai IUDDIN MIR2A, J GOVERNMENT OF SINDH, THROUGH SECRETARY, EDUCATION DEPARTMENT-Petitioner versus DARYANOMAL and 3 others-Respondents Const . Petition No. 619 of 1983, accepted on 1-6-1989. (i) Constitution of Pakistan, 1973-- —-Art. 199-Constitutional petition-Maintainability of--Challenge to-Objection that petitioner has not approached court with clean hands in as much as it has suppressed material facts and hence petition is liable to dismissal—There is nothing on record to indicate that omission on part of petitioner's advocate was prompted for some ulterior motive to mislead court or to obtain an order which petitioner would not have been otherwise entitled to-Held: It will not be just and proper to non-suit petitioner on ground of omission on part of Advocate for petitioner. [P.185]B&C PLD1987SC485re/. (ii) Laches-- —Laches—Principle of—Applicability of—Whether petition suffers from laches-­ Question of~Objection that instant case was a case of gross negligence and delay of 1 1/2 years in filing Constitutional. Petition cannot be overlooked— Admittedly petitioner has been filing legal proceedings for getting judgment of District Judge set aside-Order/judgment of Additional District Judge is such which cannot be sustained in law-Held: Instant case is not such a case where petition should be dismissed on ground of laches. [Pp. 185&186]D 1969 SCMR 306 dist. (iii) Land Acquisition Act, 1894 (I of 1894)-- —S. 18-Land~Acquisition of-Reference to District Judge—Enhancement of claim—Challenge to—Contention that respondent No. 1 himself having claimed Rs. 1.50 per sq. foot, Additional District Judge could not increase it to Rs. 3/- per sq. ft~Held: Claimant cannot make a claim for compensation more than he had claimed before Collector and District Judge will be acting in excess of jurisdiction if he grants compensation more than what was claimed before Collector-Petition accepted. [Pp. 187&188JG&H 1985 SCMR 1181 and 1987 CLC 1844 ret. \ (iv) Land Acquisition Act, 1894 (I of 1894)-- —Ss. 18 & 50(2)~Land-Acquisition of~Reference to District Judge—Making of-Whether Government has no right to make application under Section 18 of Act for getting reference made-Question of-Proviso to sub-section (2) of Section 50 provides that no such company or local authority shall be entitled to demand a reference under Section 18 of Act-Generally court will be reluctant to entertain a constitutional petition against an award or a judgment given by a District Judge upon a reference under Section 18 of Act-Held: However, in exceptional cases where court finds that award or judgment is perverse and contrary to law, court may entertain a constitutional petition. [Pp. 184&185]A PLDl987SC447re/. (v) Land Acquisition Act, 1894 (I of 1894)-- —-S. 18--Land-Acquisition of~Reference to District Judge-Reference was time-barred-Whether District Judge could refuse to hear reference—Question of—Once a reference was made, Additional District Judge could not have declined same on ground of limitation-Held: As per judgment of Supreme Court, designated court to act with a reference under Section 18 of Act, cannot go behind reference made to it and hold same having been illegally made for reason of Collector having had no power to do so since application for making reference was beyond time. [Pp. 186&187]E&F PLD 1981SC 516 rel. Mr. Abdul Hafeez Lakho, Advocate General for Petitioner. M/s. Shamsul Arifin, and Syed Samad, Advocates for Respondents. Date of hearing: 25-5-1989. judgment Ajmal Mian, CJ.-- (1) This is a petition filed by the Provincial Government against the order dated 5-1-1982 passed by the learned Ilnd Additional District Judge, Nawabshah upon a reference made to him under section 18 of the Land Acquisition ,Act, 1894 (here-in-after referred to as the Act) by the Assistant Commissioner/Land Acquisition Officer, Moro on 1-7-1980 whereby he increased the amount of compensation from Rs. 1. 50 per sq. ft. to Rs. 3. 00 per sq. ft. The brief facts leading to the filing of the above petition are tha$ the Deputy Commissioner Nawabshah issued a Notification under section 4 of the Act, published in the Sind Government Gazette on 15-12-1977, acquiring Survey Nos. 22/1 and 22/2 measuring 8.29 acres situated in Deh Lundki for the public purpose of constructing hostel for Mehran Arts College, Moro. After that he issued another Notification under section 6 read with section 17 (4) of the Act published in the Sind Government Gazette on 4-4-1978 whereby took over the possession of the land. In response to section 9 (1) of the Act's notice respondent No. 1, the owner of the land, filed his claim at the rate of Rs. 1.50 per sq. ft. The Assistant Commissioner by his award dated 4-4-1978 awarded at Rs. 4, 389/- as the compensation. However, upon a representation made by respondent No. 1, he revised the above amount and awarded the compensation at the enhanced rate of Rs. 8, OOO/- per acre, by his order dated 23-4-1978. After that respondent No. 1 received the above amount of compensation. However, on 13-1-1979 respondent No. 1 sent a telegram disputing the above amount which telegram was replied to by the Deputy Commissioner on 14-2-1979. After the expiry of more than six months, respondent No. 1 made a request to the Assistant Commissioner to make a reference to the District Judge under section 18 of the Act., in response to which the Assistant Commissioner made a reference to the District Judge, Nawabshah which was heard by the learned Ilnd Additional District Judge, Nawabshah, whoby his aforesaid impugned order dated 5-1-1982 awarded at Rs. 3/- per sq. ft. The petitioner being aggrieved by the above order has filed the present petition. In support of the above petition Mr. Abdul Hafeez Lakho, learned A.G. has urged as follows:- (i) That the reference was time barred and therefore, the learned Assistant Commissioner was not justified to make a reference to the Additional District Judge. (ii) That since respondent No. 1 had claimed compensation at the rate of Rs. 1. 50 per sq. ft., the learned Additional District Judge could not have awarded compensation at the rate of Rs. 3.00 per sq. ft. and by doing so he exceeded his jurisdiction. 4. On the other hand Mr. Shamsul Arifin, learned counsel appearing for respondent No. 1 has raised the following preliminary objections:- (i) That the petitioner has no locus-standi to file the above petition. i (ii) That the petitioner has not approached this Court with clean hands in as much as it has suppressed the material facts and hence the petition is liable to be dismissed on this ground. (iii) That the petition suffers from laches. (iv) In reply to the submission of Mr. Abdul Hafeez Lakho on the question that the reference was barred by time, Mr. Shamsul Arifin has submitted that once the reference was made by the Assistant ommissioner, the earned Additional District Judge was bound to dispose of the same on merits. However, he has not made any submission on the merits of the amount of compensation. 5. In our view it will be pertinent first to take up the above preliminary objections of Mr. Shamsul Arifin. As regards his first submission that 'the petitioner has no locus-standi to file the above petition, it may be observed that in support of the above submission he has referred to the case of Pir Klian through his Legal Heirs v. Military Estate Officer, Abbottabad and others, reported in P.L. 1987 S.C. 485, in which the Hon'ble Supreme Court while construing section 18 and 50 (2) of the Act, has held that "sub-section (2) of section 50 expressly, and in terms controls section 18 of the Act and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under section 18 of the Act and that the right of a local authority or a company under sub-sec. (2) of section 50 is the right to appear in proceedings before the Collector or the Court and adduce evidence for the purposes of determining the amount of compensation, but a reference under section 18 by them s barred ecause of above sub-sec. (2) of section 50 of the Act. It has further been held that the order of the Civil Court on reference made to it by the Land Acquisition Collector is not an independent order, but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court, which order then became the award and that since by virtue of sub-sec. (2) of section 50 of the Act the award by the Land Acquisition Collector is final and ' cannot be challenged except by a party which has expressly been conferred the right of appeal, hence the party, who did not have any such right expressly conferred on them, did not have locus standi to file an appeal. It has also been held that no such right is to be assumed on any priori ground and the right of appeal can be exercised only if it has been expressly conferred on a party by Statute. The Hon'ble Supreme Court quoted with approval the case of WAPDA through its Chainnan v. Aurangzeb Klian and others (P.L.D. 1975 Pesh. 1), the case of Tlie Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya and another (P.L.D. 1960 Dacca 461) and the case of Kasimbhai and another v. Tlie Deputy Commissioner, Dadu and others (P.L.D. 1968 Kar. 126). 6. There is no doubt that the ratio decidendi of the above Supreme Court case is that the local authority or a company or even the Government for whose oenefit the land is acquired, has no right to make an application under section 18 of the Act for getting the reference made to the District Judge for determining the amount of compensation, and that nor they have any right to file an appeal against the judgment of the District Judge passed by him on receipt of a reference under section 18 of the Act. The above conclusion is in consonence with the provisions contained in sub-sec. (2) of section 50 of the Act which provides that 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. The proviso to the above sub-section, provides that "provided that no such local authority or Company shall be entitled to demand a reference under section 18 of the Act." The object of the above provisions seems to be to ensure prompt payment of the amount of compensation to the owner of the property which has been acquired and of which the possession was taken over without payment of any compensation. The above object cannot be defeated by allowing a local authority or a company to initiate any other legal! proceedings in place of reference under section 18 of the Act or an appeal none of which they can invoke because of express prohibition under proviso to sub-section (2) of section 50 of the Act. It must, therefore, follow that generally the Court will be reluctant to entertain a constitutional petition against an award or a judgment, given by a District Judge upon a reference under section 18 of the Act. However, j in exceptional case where the Court finds that the award or the judgment given byl the District Judge upon a reference made to him under section 18 of the Act is perverse and contrary to law, the Court may entertain a constitutional petition, as an authority or tribunal or a Court which is invested with jurisdiction to decide ai particular matter has no jurisdiction to decide it rightly or wrongly, but thej condition of grant of jurisdiction is that it should decide the matter in accordance' with law, and when the authority or tribunal or Court goes wrong in law, it goes outside jurisdiction conferred on it because it has jurisdiction to decide rightly, but not the jurisdiction to decide wrongly. Reference may be made in this behalf to the latest pronouncement of the Hon'ble Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and. others reported in P.L.D. 1987 S.C. 447. Adverting to the second preliminary objection of Mr. Shamsul Arifin that the petitioner has not approached this Court with clean hands in as - much as it has suppessed the material facts and hence the petition is liable to be dismissed on this ground, it may be observed that he has invited our attention to the factum that the petitioner has not made any reference to the facts that it had filed objections to the execution application which was dismissed on 22-8-1982 and its application under section 12 (2) CPC. was dismissed on 3-4-1983, and that Civil Misc. Appeal No. 29 of 1983 was also dismissed on 12-2-1984, and that two revisions are pending against the aforesaid dismissal of the petitiner's objections and the application under section 12 (2) C.P.C. The above petition was filed on 14-6-1983 and, therefore the petitioner could mention the factums that its objection to the execution and application under section 12 (2) C.P.C. were dismissed and that they had filed an appeal and a revision. There is nothing on record to indicate that the above omission on the part of the petitioner's advocate was prompted for some ulterior motive like the one to mis-lead the Court or to obtain an order which the petitioner would not c have been otherwise entitled to. Since in view of the above judgment of the Hon'ble Supreme Court in the case of Pir Khan the above proceedings were of no legal effect, in our view it will not be just and proper to non-suit the petitioner on the ground of omission on the part of the Advocate of the petitioner to refer to the above facts. Reverting to the third preliminary objection that the petition suffers fromjD laches, it may be observed that it was vehemently contended by Mr. Shamsul Arifm that the instant case was a case of gross-negligence and therefore, delay- of about 1-1/2 years in filing of the above petition cannot be over-looked by this Court. It may be observed that admittedly the petitioner has been filing various legal proceedings for getting the judgment passed by the learned Addl. District Judge set aside in as much as it has filed objections to the execution, then an application under section 12 (2) CPC., then an appeal, then a revision and therefore, the delay in filing of the above petition has taken place. There seems to be no acquiescence on the part of the petitioner. On the contrary it has been manifesting the intention not to accept the judgment passed by the learned,Addl. District Judge. In the case of Pakistan Post Office v. Settlement Commissioner and others (1987 S.C.M.R. 1119) it has been held by the Hon'ble Supreme Court recently that the Court should not dismiss a petition simpliciter on the ground of laches, but is required to examine the case on merits as well. It has been further held that there is absolutely no justification to equate laches with statutory bar of limitation. We have examined the case on merits and for the reasons referred to «here-in-below we are of the view that the order/judgment passed by the learned lAddl. District Judge is such which cannot be sustained in law. The question whether a petition should be dismissed on the ground of laches or not, depends on the facts of each case. The delay of few months in a given case may be fatal, but the delay of few years, if reasonably explained, may be over-looked while entertaining a constitutional petition. We are inclined to hold that the instant case is not such a case where we should dismiss the petition on the ground of laches. Mr. Shamsul Arifm has referred to the case olMohsan Khan and another v. Chief Settlement Commissioner, West Pakistan, Lahore and others reported in 1969 S.C.M.R. 306, in which the Hon'ble Supreme Court, while declining leave against the judgment of the erst-while High Court of West Pakistan, Lahore passed in a letters patent appeal observed that "it is true that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy." The above case is distinguishable for the reasons already referred to here-in-above. We may now take up the question, whether the contention of Mr. Abdul Hafeez Lakho, learned A.G., that the reference under section 18 of the Act was barred by time, has any merits. In this regard, he has pointed out that respondent No. 1 accepted the payment of the amount of compensation in or about April, 1978, whereas the request for making a reference was made by him on 30-8-1979. It has therefore, been contended by Mr. Abdul Hafeez Lakho that the above reference was barred by time as clause (a) of sub-sec. (2) of section 18 of the Act provides six weeks time from the date of the Collector's award for making a request for reference. 12. On the other hand Mr. Shamsul Arifin has submitted that once a reference was made, the learned Addl. District Judge could not have declined the same on the ground of limitation. Reliance has been placed by him on the case of Government of West Pakistan (Now Government of N.W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jan and others (P.L.D. 1981 S.C. 516), in which the Hon'ble Supreme Court has held that "designated Court empowered to act with a reference made to it under section 18 of the Act and not otherwise and that while exercising its jurisdiction it cannot go behind reference made to it and hold the same having been illegally made for reason of the Collector having had no power to do so since the application for making reference made was beyond time". The above judgment of the Hon'ble Supreme Court seems to be a complete answer to the above submission of Mr. Abdul Hafeez Lakho. This leads to the last question whether the instant case is a case where this Court should press into service its constitutional jurisdiction, it may be observed that Mr. Abdul Hafeez Lakho, learned A.G. has vehemently contended that the order/judgment passed by the learned Addl. District Judge is perverse and in excess of jurisdiction in as much as the respondent No. 1 had himself claimed compensation at the rate of Rs. 1. 50 per sq. ft. and therefore, the learned Addi. District Judge could not have increased the above rate by 100% by awarding at the rate of Rs. 3/- per sq. ft. In furtherence of his above submission he has referred to the cases of (1) Muhammad Sharif v. Afsar Textile Mills Ltd. And another, reported in 1985 S.C.M.R. 1181 and (2) Pakistan through Secretary Ministry of Defence, Rawalpindi and another v. Nizakat Shah and 7 others, reported in 1987 C.L.C. 1844. In the above first case, the Hon'ble Supreme Court, while dealing with a case under the Land Acquisition Act held that "pleadings are a foundation for grounds on which an objection was taken to award while seeking "a judicial determination under section 18 of the Act and that such pleading in effect alone becomes a matter referred under section 18 of the Act and the Court has no power to determine or consider any thing beyond that". In the second case a Division Bench of the Peshawar High Court, while dealing with a case of compensation under the Land Acquisition Act has held that "the claimant should fully present his case before Collector because it would be his pleadings to which he would remain confined till decision of Collector and that he is precluded from making out fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. It has been held that "the Court has no power to determine or consider any thing beyond pleadings." We are inclined to hold that a claimant cannot make a claim forl compensation for the property acquired more than what he had claimed before) the Collector /Land Acquisition Officer and that the learned District Judge will be, acting in excess of jurisdiction, if he grants compensation more than what was claimed by the claimant before the Collector /Land Acquisition Officer. In the Instant case it is an admitted position that respondent No. 1 had claimec compensation at the rate of Rs. 1. 50 per sq. ft. before the Assistant Commissioner /Land Acquisition Officer. In this view of the matter the learned Addl. District Judge could not have increased the amount of compensation beyond the rate of Rs. 1. 50 per sq. ft. and therefore, the impugned order of the learned Addl. District Judge granting the compensation in excess of Rs. 1. 50 per sq. ft. is in excess of jurisdiction. We would, therefore, allow the above petition and declare that the impugned order /judgment of the learned Addl. District Judge dated 5-1-1982 to the extent of granting any amount in excess of Rs. 1. 50 per sq. ft. is without jurisdiction and therefore, being without lawful authority and of no legal effect. The respondent No. 1 would be entitled to receive compensation at the rate of Rs. 1. 50 per sq. ft. and not at the rate of Rs. 3/- per Before parting with the above discussion, we may observe that the case was reserved for judgment on 25-5-1989. Mr.Shamsul Arifin on 28-5-1989 filed a statement pointing out that the Assistant Commissioner had not granted compensation at the rate of Rs.1.50 per sq. ft. We had issued notice to the learned counsel for the parties for 31-5-1989 for hearing on the above aspect. After hearing them on 31-5-1989, we reserved the case again for judgment. (MB]) Petition acepted.

PLJ 1990 Karachi 188 PLJ 1990 Karachi 188 Present: QAISER AHMAD HAMIDI, J PAK NOBLE ENTERPRISES-Petitioner versus CENTRAL BOARD OF REVENUE and 2 others-Respondents Const. Petition No. D-707 of 1985, (also 4 other petitions) accepted on 22-6-1989 Customs Duty-- —Customs Duty-Refund of-Prayer for-Chief Controller of Imports and Exports had expressly described engines as tractor engines—There was no legal justification for respondents to treat them as "other engines" and classify them under a residuary sub-heading-Again there was no justification to brush aside certificates issued by Chinese suppliers, Chinese Commercial Consul and Chinese National Machinery Import and Export Corporation who had confirmed that these engines were exclusively meant for tractor Dong Feng- 12—Held: Prime use of engines is to be taken into consideration for purpose of classification as per note 5 of Chapter 84 of I.T.C. Schedule of 1981 and not any improvised, imaginary and adopted use-Held further: Petitioners (in all petitions) are entitled to refund of excess duty and sales tax realised from them without any legal authority-Petitions accepted. [Pp. 191&192JA&B Mr. Khursheed Anwar Shaikh, Advocate for Petitioners. M/s. Muhammad Saleem andKazim Hassan, Advocates for Respondents. Dates of hearing: 11 and 12-6-1989. judgment Since common questions of law and facts are involved in all the petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan,1973, we propose to dispose of them together by this consolidated judgment. It may be stated at the very outset that in the course of this discussion at places references have been made to the facts in C.P. No. D-707 of 1985 (Pak Noble Enterprises, Karachi Vs. Tlie Centeral Board of Revenue and others ) , merely as illustrative of essential facts common to all these cases. The respective petitioners in each case are registered importers and were granted import licences of various values by Controller of Imports and Exports for importing diesal engines, model-195, for two wheel tractors DONG FENG 12, from China, against import policies for the years 1980-81 and 1981-82, under Sr. No.324 and 426 of the "Free List," with following description:- "Parts and accessories of tractors,power tillers, combined harvesters and mechanical farming equipments, including such engines and hydraulic system for tractors as cannot be used in cars, buses and trucks." 4. The Collector of Customs (Appraisment), Karachi, in some other cases raised objection about the import of such engines as tractor engines under the relevant import policies, and made a reference to Chief Controller, Imports and Exports, Islamabad, who gave a ruling that these engines were tractor engines and were importable under the import policy, as tractor engines. It is the case of petitioners that although the Customs Authorities agreed that for the purpose of trade and import the engines were tractor engines and no contravention of the import policy was involved, yet they declined to assess the engines as "tractor engines" under appropriate Heading 84.06 C, read with Heading 87.01, to 40% of cutoms duty as described in the Pakistan Customs Tariff Schedule and sales tax free, and contrary to the express provision of law classified them under Heading 84.06 FO 20 "other engines" and charged 85% customs duty and 10% sales tax, which the petitioners had to pay. The petitioners, however, applied for refund of excess amount of duty and sales tax, but their prayer was refused by respondent No.3. The petitioners appealed against the said orders before respondent No.2, but without any success. The applications for revision filed before respondent No.l also met the same fate. The petitioners thereafter invoked the constitutional jurisdiction of this Court by filing separate petitions challenging the orders shown against the respective petition. (a) C.P. No.707/1985. (i) Orders of respondent No.3, dated 9.1.1983 and 26-6-1983. (ii) Orders of respondent No.2, dated 30.7.1983 and 25-7-1984. (iii) Order of respondent No.l, dated 25.7.1985. (b) C.P. No.742/1985. (i) Orders of respondent No.3, dated 9-1-1983. (ii) Orders of respondent No.2, dated 10-6-1984 and 17-12-1984. (iii) Order of respondent No.l, dated 25-7-1985. (c) C.P. No.811/1985. (i) Orders of respondent No.3, -dated 6-1-1983, 9-1-1983, 12-1-1983 and 13-1-1983. (ii) Order of respondent No.2, dated 30-7-1983. (iii) Order of respondent No.l, dated 21-11-1984. (d) C.P. No.203/1986. (i) Order of respondent No.3, dated 5-10-1983. (ii) Order of respondent No.2, dated 22-5-1984. (iii) Order of respondent No.l.dated 8-12-1985. (e) C.P. No.204/1986. (i) Order of respondent No.3, dated 13-10-1983. • (ii) Order of respondent No.2, dated 23-3-1984. (iii) Order of respondent No.l, dated 8-12-1985. 5. The learned counsel for the petitioners has referred to several points. He, however, assailed the impugned orders on the following main grounds:- (i) The engines belonged to series 195, which were specially manufactured for agricultural tractors DONG-FENG-12. The engines contained a special foundation as required for a tractor engine and the Chinese suppliers and Chinese Commercial Consul in their respective certificates had confirmed that these engines were exclusively meant for tractor DONG-FENG-12. (ii) Under 195 series 12 H.P. engines for different applications are manufactured in China, which differ from one another in construction, mechanism, etc, which fact has been confirmed by the Chinese National Machinery Import and Export Corporation. (iii) The engines are fitted with a head lamp, which is a specific requirement for a tractor, being a vehicle for its operation during night time and no industrial engine requires head lamps. (iv) These engines have built-in cooling system as against other engines meant for cooling the engines from outside storage tanks. (v) The Chief Controller of Imports and Exports has categorically held that these engines were meant for tractors. (vi) The primary use of these engines should have been taken into consideration while assessing them to duty. (vii) The Customs House had been assessing these engines under P.C.T. 84.06 C as engines for tractors but they departed from their previous practice in respect of these cases. On the other hand it was pleaded on behalf of respondents that the structure of engines in dispute is such that it could be put to other use as well, and consequently the respondents were justified in classifying them under Heading 84.05 FO 20 "other engines." The real question which falls for determination in these petitions is whether the engines imported by petitioners were "tractor engines" classifiable under Heading 84.06 C read with Heading 87.01 C 0 1, or were engines classifiable under Heading 84.06 F O 20 "other engines." A perusal of Pakistan Customs Tariff (PCT) Schedule shows that Heading 84.06 is sub-divided into seven sub-heads, viz, PCX Heading Description Rate of Dut\ 84.06 Internal combustion piston engines. A. Aircraft engines. B. Parts of aircraft engines. C. Engines lor propelling vehicles of Ch.87. D. Out board marine engines. E. Marine propulsion engines other than out board. F. Other engines. 01 complete horizontal slow speed oil engines upto and including 50 HP and high speed oil engines upto and including 20 HP. 40% ad-valorem. 40% ad-valorem. 40% ad-valorem or the rate applicable to the vehicle in which the engine would be fitted whichever is higher. 40% ad-valorem. 40% ad-valorem. 85% ad-valorem. 02 others. G. Parts of the engines subheading C to F. of 40% ad-valorem. Sub-heads 84.6A to 84.6 E cover engines for specific uses, e.g. engines for aircrafts, engines for vehicles, marine engines, etc. It will be manifestly clear from these classifications that the engines which do not fall under any sub-head from 84.6 A to 84.6 E, would be classified under this residuary sub-head 84.6 F. The Chief Controller of Imports and Exports had expressly described these engines as tractor engines vide (Annexure P/12), and where the goods for the purpose of import were treated as tractor engines there was no legal justification for the respondents to treat them as "other engines" and classify them under a residuary sub-heading. There was again no justification to brush aside the certificates issued by Chinese Suppliers, Chinese Commercial Consul and Chinese National Machinery Import and Export Corporation who had confirmed that these engines were exclusively meant for tractor DONG FENG-12. The advertisements made by Pakistan Tractor Corporation Ltd., a semi-Government organization about tractor DONG FENG-12, further support the stand taken by the petitioners. 8. Note 5 of Chapter 84 of I.T.C. Schedule of 1981, further provides:- "A machine which is used for more than one purpose is, for the purpose of classification, to be treated as if its principle purpose were its sole purpose." Again as observed in Dunlop India Lid. Vs. Union of India and others, reported in A.I.R.1977 S.C. 597, the meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Admittedly, the Customs authorities in the past had classified these engines under P.C.T. Heading 84.06 C, read with Heading 87.01-001 as part of agricultural tractors. It is, therefore, a case of discrimination. For all these reasons, there is good deal of force in the contentions raised by learned counsel for petitioners in para 5. The prime use of the engines is to be taken into consideration for the purpose of classification as per Note 5 of Chapter 84 of I.T.C. Schedule of 1981 and not any improvised, imaginary and adopted use. We would, therefore, quash the impugned orders passed in all the five petitions shown in para 4 above. We also declare that the tractor engines imported by the petitioners were classifiable under Head 84.06 C, read with Heading 87.01-001 at the material time. The petitioners are thus entitled to the refund of excess duty and sales tax realised from them without any legal authority. The petitions are accepted, but the parties are left to bear their own costs. (MBC) Petitions accepted.

PLJ 1990 Karachi 192 (DB) PLJ 1990 Karachi 192 (DB) Present: SALEEM AKIITAR AND IMAM ALI G. KAZI, JJ ABDUL HAQ KAUSAR and anothcr-Petitioners versus ALIM AKHTAR SHAH and 2 others-Respondents Constitutional Petition No. D-210 of 1981, accepted on 8-6-1989 (i) Constitution of Pakistan, 1973-- —Art. 199(l)(b)(ii)—Appointment of respondent No. 1—Challenge to—Quo vvfl/ra/Uo-Writ of-Contention that respondent No.l had, before his appointment, intimated authorities that he had in fact not obtained MBA degree—Nowhere in his letter, respondent No. 1 had stated that mention of MBA degree having been obtained by him, was due to typographical error- Long after his appointment, he sought correction of his biodata—Held: It cannot be said that respondent No. 1 had, before his appointment, acted promptly for correction of his bio-data. [P.206]D (ii) Constitution of Pakistan, 1973-- —Art. 199(l)(b)(»)—Appointment of respondent No. 1—Challenge to—Quo vra/-ramo--Writ of-Maintainability of-Objection that petitioners are motivated by malafide intentions to initiate proceedings and are not entitled to grant of relief—Petitioners have merely related certain information regarding holding of a public office by respondent No. 1—Held: Allegation of malafides is not substantiated by respondent No. 1. [Pp. 205&206]C (iii) Constitution of Pakistan, 1973— —Art. 199(l)(b)(u")—Appointment of respondent No. I—Challenge to—Quo wtf/vfl/i/o—Writ of—Respondent No. I did not possess prescribed qualifications for appointment as General Manager (Administration) Karachi Port Trust, a post which he was able to secure only by misrepresentation and his continuation in said post will amount to perpetuating an illegality-Held: Respondent No. 1, due to lack of prescribed qualifications for post of General Manager (Administration), was not qualified to hold that post and is illegally continuing to hold it—Writ of quo wairanto issued. [Pp. 206&207JF&G (iv) Constitution of Pakistan, 1973— —Art. 199(l)(6)(n')~Appointment of respondent No. 1-Challenge to-Quo \-airanio-- Writ of—Whether Board of Karachi Port Trust could rectify a past illegality-Question of-Board can always vary conditions of employment by passing a resolution to this effect but such variation cannot be retrospective-­ Held: Board could not have possibly taken a decision to rectify a past illegality. [P.205]B (v) Constitution of Pakistan, 1973-- —Art. 199(l)(b)(u)~Appointment of respondent No. 1-Challengc to-Quo Hwra« required to hold that office were not possessed by the applicant. Respondent No.l. It is submitted that the Bio-dala and the application was duly supported by the necessary documents including the alleged degree of MBA awarded lo the respondent No.l by the "Pcpperdinc University." The petitioner leels that the respondent No.l is not qualified to hold public office and that without any lawful authority he is holding the office though he knows that he is not qualified therefore, the qualification mentioned in his application was fabrication and were mentioned deliberately to occupy the public office." 11. A counter-affidavit was filed by one Abdul Rahim, the Secretary, K.P.T., on behalf of the Karachi Port Trust. Paras 4 and 6 of the counter-affidavit are important and arc reporduced as under: "4. That wilh reference to para 4 of the petition, il is submitted that alongwith his application the respondent No. 1 had submitted his Biodata separately, wherein his qualification is mentioned as M.B.A. (Pepperdine University) California, U.S.A. The copies of his application and Bio-data are submitted as Annexures 'A' &. 'B' respectively. A copy of the said alleged degree of M.B. A. filed by the respondent No. I is also annexed herewith and marked 'C' "6. That with reference to para 6 of the petition, it is not denied that in consideration of the qualifications and experience, as represented by the respondent No. 1 his appointment as K.P.T., General Manager, was sanctioned by the answering respondent, which was subsequently also got approved by the Government. It is further submitted that the respondents No. 2 & 3 did so in good faith, because readily they did not have any reason and ground lo suspect the bontifitlc and genuineness of the statements of qualifications and the supporting duly attested certificates/testimonials/ Degree .submitted by the respondent No. f. At a later stage, concealing the submission of his forged Degree of M.B.A., when the respondent No. 1 submitted a revised Bio-data, his case was considered in good faith and his qualifications and experience, as mentioned therein, were taken to be at par with M.B.A., and consequently (he answering respondents recommendations to the confirmation of respondent No. 1 to post of General Manager were maintained in order. However, under the circumstances by holding him eligible for the posl. neither ihe respondent No. 2 rectified his fraudulent act of deceiving the Government by submitting his forged Degree of M.B.A. or meant lo do so as such, nor they were competent to do so. After coming into light his said act of mis-representation and commission of fraud, the respondents No. 2 & 3 found him to be unfit for the post." 12. The counter-affidavit referred to hereir.above was filed on behalf of the respondent No. 2 i.e. the Trustees of the Karachi Port Trust on 3-11-1982. Long after this counter-affidavit was filed Ahm Akhtar Shah, the respondent No. 1 filed his affidavit on 9-2-1989. Though his affidavit contained the heading of counteraffidavit, in fact by his affidavit he merely offered his comments to the counteraffidavit filed by Abdul Rahim, the Secretary of Karachi Port Trust mentioned hercinabovc. The only allegation relevant to the main petition contained in his affidavit is mentioned in sub-para (h) of para 4, which is reproduced hereinbelow; "(h) Not only that the present petition was filed against me out of ill-will and malice on the part of Mr. Abdul Haq Kausar and his successors but I hey and others in league with them in the Administration of the K.P.T., manipulated issuance of a direction Irom the Federal Government for obtaining my resignation, on the knowledge whereof 1 filed Suit No. 3586 of 1982 in the Court of XI11 Senior Civil Judge, Karachi for declaration and injunction (which suit has been re-numbered as Suit No. 1229 of 1988 and transferred to the Court ol 111 Senior Civil Judge, West, Karachi in which a temporary injunction was issued on W-

M982, a copy whereof is annexed hereto and marked 'P'. 13. Mr. Obaidur Rchman, Advocate for the petitioners has argued that respondent No. 1 (Alim Akhtar Shah) in view of the facts stated hereinabove had obtained his appointment on the basis of mis-representation and fraud as he never possessed the minimum qualifications required for the posl. Since his appointment was ab-inlitio void, he cannot continue to hold the olhce in question. In support of his above contentions, reliance has been placed by him on the cases reported in PLD 1986 Lah 770 and PLD 1968 Lah 30. He further contended thai respondent No. 1 is holder ol a "public oliicc" as his appointment is made and regulated by Statute and, therefore, amenable to Ihe jurisdiction of this Court. On this point, reliance has been placed by him on the case reported in PLD 1964 Lah 125. ' 14. Mr. Mohammed Ali Sayeed, the learned Advocate appearing for respondent Alim Akhter Shah mainly urged the following grounds; (a) That this Court can only issue wril in nature of writ of "quo-warranto" if I relates lo holding of a 'public office.'. According to him, the post of General Manager (Administration), Karachi Port Trust is not a 'public office." (b) That since the qualifications required for the post of General Manager, Karachi Port Trust were nol prescribed by any law or rule, it cannot be enforced by this Court. (c) That the petition has been filed due to malajlde reasons as explained by Alim Akhtar Shah in his affidavit. (d) That Alim Akhter Shah before he was actually oppoinled had intimate the authorities that he did not possess the M.B.A. degree from USA as mentioned in his Bio-data due to an error indicates his bonajldes. (e) That only the relationship of a master and servant exists between Alim Akhter Shah and Karachi Port Trust, the present petition is not competent. In support of his above contentions, he has relied upon the cases reported in PLD 1963 S.C. 203, PLD 1966 Karachi 01, PLD 1971 Lah 748, PLD 1974 SC 228, PLD 1974 SC 146, PLD 1981 SC 224 and AIR 1952 Madhia Pardesh 31. 15. In order to appreciate the first contention of Mr. Mohammed Ali Sayeed, Advocate, it is necessary to recount the changes brought about in our Constitutions, concerning the powers of a High ourt in our country to grant certain remedies under the Constitutional jurisdiction. For the first time section 223-A was inserted in the Government of India Act, 1935 by the Government of India (Amendment) Act, 1954. By this section every High Court in Pakistan was empowered throughout territories in relation to which High Court exercised jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them. The scope and extent of authority of issuing such writs was, however, not defined by that provision. Consequently, High Courts in our country were obliged to follow the form and precedents established by the Courts in England. After the enactment of the Constitution of 1956 the position underwent a slight change when by its Article 170, a High Court was empowered to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari for the enforcement of any of the fundamental right conferred by that Constitution or for any other purpose. The power of the High ' Court by such a change was in fact not restricted or limited to the form of writs in the strict English sense but also extended to the issuing of directions and orders or enforcement of fundamental rights or for any other purpose. This provision thus extended the jurisdiction of a High Court. The Constitution of the Islamic Republic of Pakistan, 1962 while making a similar provision in Article 98 did not make any reference to any writs as was being done previously. Under this re­ drafted Article the High Courts in Pakistan were conferred still a wider jurisdiction as they were no more required to restrict their powers of issuing only such writs as were being issued by Kings Bench Division in England. The Article 98(1) of the Constitution of the Republic of Pakistan, 1962 is reproduced hereinbelow; "98(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Province 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— ((') directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (//) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (/?) on the application of any person, make an order— (/) directing that a person in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or (») requiring a person in the Province holding or purporting to hold a public office to show under what authority cf law he claims to hold that office." Similar provision was repeated in Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, 1972 and Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. It is true as pointed out by Mr. Mohammed All Sayeed, Advocate that a High Court under Article 199(l)(b) of the Constitution of the Islamic Republic of Pakistan, on an application of any person can make an order as expressly provided thereby only when it relates to holding of a "public office." The term 'public office' was for the first time defined by Article 242 of the Constitution of 1962 as under; "Public office includes any office in the service of Pakistan and membership of an assembly." This definition was reproduced in Article 290 of the Interim Constitution of the Islamic Republic of Pakistan, 1972 but was dropped in the Constitution of the Islamic Republic of Pakistan, 1973. 16. In England originally writ of quo-warranto could only be issued in cases where usurpation of office, franchise or liberty as against the Crown was directly alleged. In the case of Darley v. The Queen (12 Clarke & Finnely's Reports, House of Lords 52) it was held that "source of the office, tenure and duties determine the applicability of proceedings in the nature of "quo-warranto." Following the test so laid down the High Court of Dacca in the case reported in PLD 1957 Dacca 209 (S.MAVali Ahmed Choudhry v. Mahfu/.ul Haq Choudhry) held that "if the office is created by Charter or Statute, the duties are of a publicnature and the tenure is sufficiently secure, then it comes within class of cases in respect of which such proceedings lie." Similarly an office created by a Statute was held to be an office of public nature in the case of Mohammed Oxman v. Province of East Pakistan reported in PLD 1957 Dacca 424. The Supreme Court of Pakistan in cases reported in PLD 1903 SC 203 (Masudul Hassan v. KJwdim Hussain & another and PLD 1974 SC 228 (M.UA. K/ian v. Rao M. Sultan & another) held that a 'public office' is an office created by the State, by Charter or by Statute, when the duties attached to the office are of a public nature. Both these cases for the purpose of interpretation of the term 'public office' have been relied upon by the learned Advocate for respondent No. 1, 17. The Karachi Port Trust is constituted under the Karachi Port Trust Act, 1886 whereby Port of Karachi was vested in a Trust created under that Act to provide for the management of the affairs of the said Port by the Trustees. The Trustees of Port of Karachi constitute the Board which according to section 4 of the said Act is a body corporate having perpetual succession and a common seal, can sue and be sued in its name. The Board so constituted is required by section 21 of the said Act to prepare and sanction a. Schedule of the staff, officers and servants required for the proper maintenance of the purposes of the Act. The office of the General Manager (Administration) Karachi Port Trust is included in the Schedule of staff prepared under this section, and forms part of the Statute. The post of General Manager (Administration) Karachi Port Trust is thus a post created by a Statute. As stated hereinabove, the Board of the Karachi Port Trust constituted under the Karachi Port Trust Act, 1886 is required to perform public functions of managing affairs of the Port of Karachi and the officers mentioned in the Schedule prepared under section 21 of the said Act are required to perform duites of public nature. Applying the test mentioned-in the cases referred to hereinabove, we have no hesitation to hold that post of General Manager (Administration) Karachi Port Trust is a 'public office' within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 18. The second contention raised by Mr. Muhammed Ali Sayeed, learned counsel for respondent No. 1 has no force as all administrative powers for the purpose of appointing, promoting and punishing the officers and servants of Karachi Port Trust have been conferred on its Board as provided in sections 21, 22 and 23 of the Karachi Port Trust Act. By its rule making power under the Act the Board of the Karachi Port Trust by a resolution prescribed the minimum qualifications required for filling the post in question. It cannot, therefore be said that the prescribed qualifications were not under any rule. The Board of the Karachi Port Trust can always by Resolution vary the conditions of employment by passing a Resolution to this effect but such variation will be operative prospectively and cannot in any manner take effect retrospectively. It will, therefore, be seen that the Board of the Karachi Port Trust could not have possibly taken a decision to rectify a past illegality. 19. Mr. Muhammad Ali Sayeed, Advocate has contended that the petitioners are motivated by malafide intentions to initiate these proceedings and are, therefore, not entitled to grant of the relief prayed for. The allegations of malafide are so vague and general in nature that they can hardly support this contention. In the present case the petitioners have merely related certain information regarding holding of a public office illegally by the respondent No. 1 leaving it to this Court to examine it and decide its consequences. Allegation of malafides is also not substantiated by the respondent No. 1. 20. In support of his fourth contention Mr. Muhammad Ali Sayeed, Advocate has referred to the letter dated 24th February, 1979 addressed to the Secretary, Karachi Port Trust reproduced hereinabove to show that he had before his appointment intimated the authorities that he had in fact not obtained MBA degree. This letter was addressed by him in reply to the query made by the Secretary requiring him to produce the copies of certificates. Alim Akhter Shah had along with his application submitted a copy of his MBA degree from'"ti University of USA but did not enclose the copies of the certificates evidencing his qualifications mentioned by him under the heading of 'Professional' Qualifications.' It was, therefore, that he was asked to file the relevant certificates and testimonials. No where in this letter he has stated that mention of MBA degree having been obtained by him was due to typographical error. Instead he merely omitted to mention the degree, apparently to mis-guide the concerned authorities by such a devise. It was long after his appointment that he for the first time by his letter dated 24th September, 1979 also reproduced hereinabove sought correction of his Bio-data. In view of these facts it cannot be said that Alim Akhter Shah the respondent No. 1 had before his appointment acted promptly for correction of his Bio-data. Lastly the post of General Manager (Administration) Karachi Port Trust as held by us hereinabove is a public office created by the Statute. Only such appointments which are the result of contracts freely entered into between employees and employers will be governed by the principles of Master and Servant. But in cases where appointments are made and controlled by some law or statutory rules creating fetters upon freedom of parties in matters of terms of contract, principles of Master and Servant will not be applicable. We are fortified by such views by the case reported as Anwar Hussain v. Tlie Agiicultural Development Bank of Pakistan (PLD 1984 SC 194). From the facts brought on record it clearly transpires that Alim Akhter Shah, the respondent No. 1 herein did not possess the prescribed qualifications that could even make him eligible for the appointment for the post of General Manager (Administration) Karachi Port Trust, a post which he was able to secure nly by mis-representation and his continuation in the said post will amount to perpetuating an illegality. The first decision of the Federal Government requiring the Chairman of the Karachi Port Trust to obtain his resignation was correct. Subsequently, it appears that certain hidden hand clandestinely had extended a helping hand and pursuaded some authority and order was recalled on the pretext of pendency of litigation little realising that for such an appointment previous sanction of the Federal Government is necessary under section 24 of the Act and post facto approval could be of no avail as it is by now well established that when law requires a particular thing to be done in a particular manner it can only be done in that manner and in no other. It is also not known if the competent authority was at all shown the file as the second order according post facto sanction merely indicates that the order was passed by a "competent authority" without disclosing the authority that actually passed that order. In view of above we hold that Alim Akhter Shah, the respondent No. 1 due to lack of prescribed qualifications for the post of General Manager (Administration) Karachi Port Trust was not qualified to hold the post and is illegally continuing to hold that office. We declare that the post of General Manager (Administration) Karachi Port Trust Karachi is lying vacant and issue an injunction restraining the respondent No. 1 from holding that office or in any manner acting therein. This petition is, therefore, accepted as stated hereinabove and we direct that entire costs herein shall be borne by the respondent No. 1. - (MBC) Petition accepted.

PLJ 1990 Karachi 207 PLJ 1990 Karachi 207 Present: SYED ABDUR REHMAN, J SAYEED A. SHAIKH-Plaintiff versus SIDDIQ and another-Defendants CMA No. 2673 of 1989 in Suit No. 414 of 1989, allowed on 7-9-1989. Civil Procedure Code, 1908 (V of 1908)-- —-O.XXXIX Rr. 1 & 2 read with Section 151--Temporary injunction-Grant of —Prayer for— Construction in question consists of town nouses height whereof is hardly ground plus one—Ordinarily such small constructions are not so designed to obstruct light and air of neighbours-Ordinarily courts do not grant injunction to stop construction which is nearing completion—Held: In peculiar circumstances of case, interim injunction is granted restraining defendant No. 1 from raising any further construction towards plaintiffs side within 10 feet of boundary wall of plaintiffs house. [Pp. 208&209JA&B PLD 1980 SC 193 ref. Air. SayeedA. Shaikh, Advocate in Person. Mr, Hussain Adil fOialri, Advocate for Respondent. Date of hearing: 17-8-1989. judgment This is an application under Order 39 Rules 1 & 2 and Section 151 C.P.C. Case of the plaintiff is that he is owner of a residential house on plot No.88/3 Flynn Street, Garden East, Karachi measuring 1000 sq. yds wherein he is living with his family. Adjacent to plaintiffs plot there is plot No.89 which is on its north. There was an old bungalow on this plot. Defendant No.l has recently acquired plot No. 89 and demolished the old bungalow and in its place has started construction of town houses. The said construction is in violation of Building Rules, inter alia, as the compulsory open space of 10 feet has not been left towards the plaintiffs plot but only 5 feet or less has been left.He has also put up some-construction upon plaintiffs boundary wall. The construction sought to be put up, has on its rear side windows and balcony opening on and overlooking the plot, land, courtyard and lawn of the plaintiffs house and thereby violating the right of his privacy. Hence the suit with a prayer for injunction restraining construction in violation of Building Rules and privacy of the plaintiff. Mandatary injunction is also sought directing the defendant to demolish the violative portion of the defendant's building. Alongwith the suit an application for interim injunction was made. The defendant No.l has not denied ownership of the plaintiff but he has alleged that plff s construction is unauthorised. He has also not denied that he has acquired plot No.89 and is raising construction of town houses thereon. He has denied that he has not left the compulsory open space between his plot and plaintiffs plot. He has alleged that he has left 7 1/2 feet space towards plaintiffs plot. He has alleged that the plaintiff himself is also guilty of committing violation of the same rule in that the plaintiff has left only 5 feet compulsory open space towards eastern side of his plot. He has denied that he has raised any construction upon plaintiffs boundary wall. The truth of the matter is that a temporary site office was constructed abutting the plaintiffs plot, and the same has been mostly demolished. He has denied that there was any balcony facing the plaintiffs courtyard. He has admitted that there are 3 windows opening towards the side of the plaintiffs bungalow. All these three windows are of the standard size and are in no way offensive to the privacy of plaintiffs house. Mr.Sayeed A.Shaikh, Advocate who is himself the plaintiff in this suit has contended that the defendant No.l is raising construction in violation of the approved plan which he has himself admitted in his counter affidavit. He has relied upon 1989 CLC 739 Yakoob Ahmed Vs. Tason Construction (Pvt) Ltd., and 1987 CLC 558 Hawa Bai v. Haji Ahmed where it was held that the very fact that the construction was being raised without an approved plan or in violation of an approved plan was enough to grant an interim injunction. These rulings are distinguishable from the present case as in the former case a 16 storey building was being constructed and in the latter case a multi-storeyed building was being constructed infringing the easements of light & air of the plaintiff and in violation of the approved plans which is not so in the present case. It may be pointed out that the construction in question consists of town houses. The height of these town houses is hardly ground plus one. Oridnarily such small constructions are not so designed so as to obstruct light and air of the neighbours. The plaintiff has not produced any such definite instance of obstruction. The intrusion into privacy of the plaintiff through the windows and balcony of the house in a city like Karachi cannot be readily accepted. The plaintiff will have to establish the right of privacy by leading evidence filling the test laid down in Fazle Raziq's case reported in PLD 1980 SC 193. The dedendant No.l has stated that he has left 7 1/2 feet space between his construction and plaintiffs boundary wall. The report of the Commissioner, however, shows that it is lesser. In the middle it is 38"and on the sides it is 70". It is, however, not only in violation of the Building Rules but also in violation of the approved plan. Ordinarily the Courts do not grant injunction to stop construction which is nearing completion. However, in the peculiar circumstances of this case I grant interim injunction restraining the defendant No. 1 from raising any further construction towards plaintiffs side which is within 10 feet of the boundary wall of the plaintiff house. It is clarified that (i) this interim injunction will not restrain the defendant No.l from raising construction on the remaining portion of the premises which is not within 10 feet of the plaintiffs boundary wall, (ii) this interim injunction shall not authorise the defendant No.l to raise any construction whatsoever in violation of the approved plan or the orders of the Building Control Authority, (iii) The question of demolition of any existing construction in violation of the approved plan shall be taken up at the time of final disposal of this suit! C.M.A.No.2673/89 stands disposed off accordingly. ' (MBC)

PLJ 1990 Karachi 209 (DB) PLJ 1990 Karachi 209 (DB) Present: SALEEM AKHTAR AND SALAHUDDIN MlRZA, JJ HASHIM-Petitioner versus COMMERCIAL COURT OF SINDH AND BALUCHISTAN AT KARACHI and another-Respondents Const. Petition No. D-183 of 1985, dismissed on 6-3-1989. (i) Constitution of Pakistan, 1973-- —Art. 199-High Court-Constitutional jurisdiction of-Exercise of~Principles of~It is well settled that jurisdiction under Article 199 is not as wide as in appeal-In exercising writ jurisdiction, court will examine facts to ascertain whether impugned order is without jurisdiction, malafide, based on surmises and conjectures and that there is no evidence to support judgment—If any one of these defects is found, court will not hesitate to exercise constitutional jurisdiction-Held: No illegality or defect is found in impugned judgment- Petition dismissed. [P.214JD (ii) Import and Export (Control) Act, 1950 (XXXIX of 1950)-- —Ss. 3 & 5-B(2)-Order under Section 3-Contravention of-Conviction for- Challenge to-Commercial Court-Jurisdiction of--Contention that once goods have been exported and reach port of destination in a foreign country, Commercial Court is not competent to exercise jurisdiction-Further contention that it is for Customs Authorities to see that import and export regulations are duly complied with and if they had cleared consignment, court ceases to have jurisdiction—Held: Customs Authorities are not concerned whether goods are in terms of contract or not-Held further: Whenever complaint is made about violation of an order under Section 3 of Act, either before or after shipment of goods, Commercial Court will be competent to take such action against such exporters as provided under law. [Pp. 213&214JC (iii) Import and Export (Control) Act, 1950 (XXXIX of 1950)- —Ss. 3 & 5-B(2)~Order under Section 3-Contravention of-Conviction by Commercial Court-Challenge to-Contention that complainant did not know any facts himself, his evidence was of no value and no conviction could be made on that basis-Under Section 5-B(2) of Act, a Commercial Court cannot take cognizance of an offence except on a complaint in writing made by authorised officer of Export Promotion Bureau—Held: Complainant has competently filed complaint under law. [Pp. 212&213JA (iv) Import and Export (Control) Act, 1950 (XXXIX of 1950)-- —Ss. 3 & 5-B(2)—Order under Section 3—Contravention of—Conviction for— Challenge to-Contention that judgment is based on no evidence-Contention is based on presumption that documents produced by complainant were not admissible in evidence-Held: Documents have been admitted in accordance with law and no objection was raised at time of their production in court-Held further: In arriving at decision, Commercial Court does not seem to have violated any principle which may vitiate its judgment. [P.213]B Mr. Muhammad Hanif KJian, Advocate for Petitioner. Mr. S. Shamlm Raza, Advocate for Respondent. Dates of hearing: 28-2-1989,1 and 6-3-1989. judgment Saleem Akhtar J.--The petitioner is engaged in business of export and import as proprietor of M/s. Hashmi Trading Corporation. He entered into an oral agreement with foreign buyers namely Abu Dhabi National Food Stuff Company for supply of 1000 cases = 10 metric ton, superior quality green raising (Kishmis No.l). The inner packing was to be of polythelene bags and outer packing in strong wooden cases, each containing 10 Kg net fresh crop for US. Dollar 19.000/- CF value. A sample of the goods was also sent to the buyers. The buyers opened a letter of Credit dated 24-2-1982 with Bank of Credit and Commerce International (Overseas) Ltd. Before the goods were exported the petitioner got them surveyed by S.Ali Anwar a government licenced Marine Insurance surveyor who inspected them on 27.3.1982 and certified that the goods and the packing were in accordance with the terms of the agreement. After conducting the survey he sealed the goods by affixing slip thereon. Before shipment the petitioner called the said surveyor on 30.3.1982 to supervise the loading of the goods on trucks and taking them to the Customs Authorities. At that time the seals were found in-tact but at the time of loading the goods on the truck he removed the seals from the cases. The goods were loaded on the truck and discharged in the port premises for shipment. The goods were then shipped on board PRESIDENT EISENHOWER VH 96 AMR. When the goods arrived at destination the buyers by a cable dated 27.2.1982 complained about the quality of the goods which was not in conformity with the sample provided by the petitioner. It has been alleged that without further contacting the petitioner the buyers wrote a letter to Mr. Niaz A. Naik, Chairman Rice Export Corporation of Pakistan complaining against the petitioner that the goods sent to them were of inferior quality. He forwarded this letter to the Vice Chairman Export Promotion Bureau under his covering letter dated 26.6.1982. The Directior Export Promotion Bureau addressed a letter dated 13.6.1982 to the petitioner calling upon him to explain and also to suggest proposal for amicable settlement within 10 days failing which legal action was threatened. The petitioner replied the letter and suggested that the buyers may get the goods surveyed by a reprsentative of General Superintendent Company in Abu Dhabi. He also suggested that a sample be drawn from the goods and laboratory test report should be obtained and forwarded to him alongwith the sample and the other sample be sent to Export Promotion Bureau. He assured to cooperate in the matter. No reply was received by the petitioner, and respondent No.2 filed a complaint dated 13.9.1983 before which legal action was threatened. The petitioner replied the letter and suggested that the buyers may get the goods surveyed by a representative of General Superintendent Company in Abu Dhabi. He also suggested that a sample be drawn from the goods and laboratory test report should be obtained and forwarded to him alongwith the sample and the other sample be sent to Export Promotion Bureau. He assured to cooperate in the matter. No reply was received by the petitioner, and respondent No.2 filed a complaint dated 13.9.1983 before the respondent No.l alleging that the petitioner exported the goods to the buyers which were of inferior quality as compared to the sample supplied by him. Alongwith the complaint survey report dated 15.8.1982 issued by Mr.A.J.Green Land, at the request of M/s.Gray Mackenzie and Partners and 17 photographs were filed before respondent No.l. A bailable warrant was issued against the petitioner who appeared on 3.10.1983 and was released on bail. After framing charge respondent No.l examined S.Nasimuddin Research Officer of Export Promotion Bureau. The petitioner and Syed Ali Anwar, the surveyor were examined as defence witnesses. After hearing the arguments respondent No.l passed the judgment convicting the petitioner with simple imprisonment for three months with a fine of Rs.10,000/- and in default of payment of fine, the petitioner was to suffer imprisonment of one month. The petitioner was further ordered to pay compensation of U.S.$.9,443/- plus survey fee of UAE Dirham 1050/- in equivalent Pakistan currency. The court also ordered to pay compensation to the foreign buyers out of the revolving fund and after recovery from the petitioner the same shall be deposited by way of replenishment. 2. Mr.Mohammad Hanif Khan the learned counsel for the petitioner has contended that the order has been passed without jurisdiction and conviction has been recorded on no evidence at all. Before discussing the contention of the learned counsel for the petitioner, it would be proper to first examine the constitution and jurisdiction of the Commercial Court, i.e. the respondent No.l. The Commercial Courts were first constituted by amendment in the Import and Export (Control) Act 1950 by Ordinance V of 1980 whereby sections 5A,5B and 5C were added. Under section 5A the Federal Government is empowered by notification to establish Commercial Courts and specify the territorial limits within which or the class of cases in respect of which they were to exercise jurisdiction. The Commercial Court consists of a Chairman who is or has been a Sessions Judge and two other members to be appointed out of a panel of businessmen executives and Officers of Scheduled Banks to be appointed in consultation with the Federation of Pakistan Chamber of Commerce and Industry and the Pakistan Banking Council. The Commercial Court exercises its jurisdiction in respect of contravention of Order made under section 3 of the Act relating to export trade. This is the exclusive jurisdiction of the Commercial Court. It has been authorised to exercise all powers conferred by the Code of Criminal Procedure on a Court of Sessions exercising original jurisdiction. However where no procedure is prescribed by the Act the procedure prescribed by Criminal Procedure Code shall be adopted by the Commercial Court. A special rule of evidence has been provided by section 5B sub-section (3) that photo copy of any document produced in support of a claim made to a Commercial Court is admissible in evidence provided such copy is duly attested by the Pakistan Mission in the country in which such document was written or by an Officer of the Export Promotion Bureau authorised 'by its Chairman in this behalf. The Commercial Court therefore exercises jurisdiction where an order made under section 3 relating to export trade only has been contravened, following the procedure laid down by the Criminal Procedure Code and applying a rule of evidence for admitting photo copy of document attested in the prescribed manner. Section 5B sub-section (5) empowers the Commercial Court to impose punishment as provided by section 5 of the Act and in addition to that may also direct the exporters to deposit in Court within the time specified by the Court a sum determined by it for payment to the foreign buyer as compensation. Scuh compensation should be equivalent in value to the loss or damage suffered by the foreign buyer. A revolving fund has been set up by the Federal Government which would make payment of compensation determined by the Court to the foreign buyer and on recovery from the exporter the same has to be deposited in it. Under section 5 of the Import and Export (Control) Act 1950 any person who contravenes the provisions of the Act or an order made or rules framed or the conditions of the import licence,in addition to ihe confiscation and penalty to which he shall be liable under the Customs Act as applied by section 3 sub-section (3), be punishable with imprisonment for a term which may extend to one year, with fine or with both. The Commercial Court has been constituted with a view to restrict the malpractice in export trade. It further intends to provide speedy relief to the importer so that the export business of the country may develop. The Commercial Court has been constituted and consists of representative of trade industry and businessmen, as well as a banker. Therefore, its constitution ensures that not only the legal aspects are to be taken care of by its Chairman but even business and banking practices and traditions are also to be looked after by its members who have knowledge and experience in that field. The Commercial Court takes cognizance of wilful breach of order made under section 3 of the Act relating to export. The Federal Government has promulgated export (Quality Conrtrol) Order 1973 which provides that no exporter shall wilfully fail to fulfill export orders. A breach of this order is an offence triable by the Commercial Court. It is pertinent to note that the order passed by the Commercial Court is not appealable and for this reason the petitioner has invoked the Constitutional Jurisdiction of this Court. While exercising constitutional jurisdiction the court does not act as an appellate court. It can only examine the facts broadly to consider whether the Commerical Court has exercised its jurisdiction lawfully and the order passed is not without jurisdiction. The function of the High Court in exercising such jurisdiction is not to enter into disputed facts of the case, or scrutinise the evidence as an appellate court or substitute its own finding to that of the trial Court. Therefore while perusing the evidence the restriction placed in exercise of such jurisdiction has to be kept in mind and is not to be swayed away by minor irregularity or insignificant misappreciation of evidence which does not affect the result of the case. Mr. Muhammad Hanif Khan the learned counsel contended that one Mr.Nasimuddin had filed the complaint and as lie did not know any fact himself his evidence was of no value and no conviction could be made on that basis Section 5B sub-section (2) of the Act provides that a Commercial Court shall not take cognizance of an offence except on a complaint in writing made by the Officer of the Export Promotion Bureau authorised by its Chairman by a general or special order in this behalf. Therefore, so far the competence of the complainant is concerned, it has not been questioned. He has filed complaint as provided under law. He has also produced several documents in support of the claim which include the correspondence and the survey report. The entire evidence was based on these documents. The documents were produced through this witness, but no objection to their admissibility was raised at the time of production. Alongwith the complaint the complainant had filed the correspondence, invoice, bill of lading, letter of credit, survey reports, photographs of the exported goods and claim bill. All these documents have been attested by the Commercial Secretary, Embassy of Pakistan, Abu Dhabi. These photo copies were admissible as provided by section 5B sub-section (3). The learned counsel has also contended that these documents were inadmissible in evidence , particularly the survey report which certifies that the goods were not according to the samples and specification. This objection can not sustain because it should have been raised at the time of production of the documents. Although the photo copies duly attested by the Pakistan Mission have been made admissible in evidence it may require proof provided objection to its proof is raised at the time of production of these document. In this regard reference can be made to Muhammad Aslant vs. Mst.Gulraj Begum 1989.SCMR 1. 5. As in the present case, the documents have been admitted in accordance with law and no objection was raised at the time of their production in court, it is not necessary to prove them by producing their author. The contention of the learned counsel for the petitioner that the judgment is based on no evidence was advanced on the presumption that the documents produced by the complainant were not admissible in evidence. This not being the situation, the documents prove the importer's case and in arriving at the decision the Commercial Court does not seem to have violated any principle which may vitiate its judgment. 6. Mr.Mohammad Hanif Khan the learned counsel for the petitioner has contended that once the goods have been exported and reach the port of destination in a foreign country, the Commercial Court is not competent to xercise jurisdiction. He has contended that it is 1'or the Customs Authorities to see that the import and export regulations are duly complied with and there are government machineries and examiners to inspect the goods before shipment and if they had cleared the consignment the court ceases to have jurisdiction. If this interpretation of the learned counsel is accepted then it means that if the irregularities and illegalities committed by an exporter are not detected by the Customs Authority or any other agency before shipment or they fail to check it then the exporter can not be punished on the basis of the complaint made by the importer in respect of goods he has received at a foreign port. The Customs Authorities are concerned with the realisation of duties and contravention of such provisions of the Customs Act which may be applicable to the export consignment. They are not concerned whether the goods are in terms of the contract or not. They would certainly intervene in the matter where goods are completely different from the one mentioned in the export documents. In cases where goods being the same are of inferior quality, the Custom Authorities will take action if it prejudicially affects the duty. The provisions of section 5A, 5B and 5C are intended to regulate the practices in export trade and also to see that malpractices are eliminated and goods are exported according to contract and specification. With this view in object whenever complaint is made that any order passed under section 3 of the Act relating to export trade has been contravened whether it is before the shipment or after the shipment of the goods the Commerial Court will be competent to take such action against such exporters as provided under law. 7. Mr.Syed Shamim Raza the learned counsel has referred to NLR 1980 Lah.661 and PLD 1976 S.C.244 and contended that the jurisdiction of this Court is limited and if the order passed is within jurisdiction no writ will be issued. It is well settled that the jurisdiction under Article 199 of the Constitution is not as wide as in appeal where the appellate court is entitled to scrutinize the evidence in detail and can even substitute its own finding for the finding of the trial court. In exercising writ jurisdiction the Court will examine the facts to ascertain whether the impugned order is without jurisdiction, malafide, based on surmises and conjectures and that there is no evidence to support the judgmentlf any one of these defects are found, the High Court will not hesitate to exercise the constitutional jurisdiction. Although it has been held that mis-reading of evidence can be a ground for interfering but to find out whether there is a misreading of evidence or not the court will not scrutinize the record as an appellate Court. Such misreading of evidence should be found floating on record, and if two possible; and reasonable conclusions can be drawn from evidence on record then the High Court will refrain from interfering with the impugned judgment. We have examined the record produced by the respondent's advocate and do not find any illegality or defect in the impugned judgment. The petition is therefore dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Karachi 214 PLJ 1990 Karachi 214 Present: MUKHTAR AHMAD JUNEJO, J Mst. QAMAR JAHAN--Appellant versus Haji HABIB JAUDIRA-Respondent F.RA. No. 552 of 1987, accepted on 27.8.1989 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.15(2)(ii)~Tenant--Ejectment of~Application for-Dismissal of-Appeal against—Default—Ground of—Whether security deposit could be adjusted towards rent-Question of-Held: Amount of Rs. 40,000/- paid at time of agreement as deposit or as fixed deposit or as security deposit by respondent, to appellant, was not adjustable towards monthly rent-Held further: Respondent was proved to have failed to pay rent for period of July to November, 1985 and was a defaulter—Appeal accepted and ejectment ordered. [P.217,218]A&B 1980 SCMR 834 and PLD 1988 SC 228 rel. PLD 1988 Karachi 240, 1988 CLC 278, 1987 CLC 359, 1986 MLD 338, 1987 MLD 2133 and 1987 MLD 114 ref. Mr. Bashir Ahmad Shaikh, Advocate for Appellant. Mr. Sajjad Hussain, Advocate for Respondent. Date of hearing : 27.8.1989. JUDGMHNT . Appellant Qamar Jahan has challenged dismissal of her rent application ordered by the Vlth Senior Civil Judge & Rent Controller, Karachi (West) on 15.4.1987. Said rent application was filed for eviction of respondent Haji Habib from the premises in litigation. Admittedly the respondent was a tenant of the appellant in the premises in litigation and there was an agreement of rent between the parties executed on 1.4.1982. As per the agreement a sum of Rs. 40,()()()/- was paid by the respondent to the appellant as deposit. It was stipulated in the agreement that the appellantwould raise a shop over the premises in litigation and then start realizing from the respondent a rent of Rs. 700/- per month instead of the rent of Rs. 200/- per month. Such rent was payable by the respondent to the appellant in advance. It is also an admitted position between the parties that the respondent has paid rent for the period ending June, 1985 and that rent for the months of July, 1985 and for subsequent months till November, 1985 was not paid by the respondent when the rent application was filed on 20-11-1985. The only ground taken by the appellant in her application for ejectment of the respondent was that of default. The rent case was opposed by the respondent who in his written statement look pica that rent for July, 1985 onwards could be adjusted from the deposit of Rs. 40,0()()/- lying with the appellant. Learned trial court after recording evidence passed the impugned order dismissing the rent application, on the ground that the rent not paid by the respondent could be adjusted from the deposit of Rs. 40,000/-. Hence this appeal. Mr. Bashir Ahmad, learned Counsel for the appellant argued that deposit of Rs. 40,000/- was returnable to th'e respondent at the time of his vacating the premises and that there could be no adjustment of outstanding amount of rent from the said deposit. In support learned Counsel lor the appellant cited the cases of (i) Jacob Jahangir Vs. Mst. Ntiinw Siildit/ui (I'WS CLC 278), (ii) Abdul Rahim Vs. S. A. Salim (1987 CLC 359), (iii) Sliaikh Ja\id Ahmad Vs. Dil Afroze Gozder and another (1986 MLD 338), (iv) Mohammad Abdits Saeed Vs. Jamalitddin (1987 MLD 2133), and (v) Jakes Aluncul Vs. Ahidu Ismail (1987 MLD 114). Mr. Sajjad Hussain, learned Counsel lor the respondent referred to the agreement dated 1-4-1982 and argued that Rs. 4l),()()()/- paid to the appellant was fixed deposit and not a simple deposit and thut idea was that if there was any default in payment of rent for any month, the same could be adjusted from the eposit. It was added that idea of paying such a huge amount to the appellant was to help her to construct the shop due to which the rent was increased from Rs. 200/- to Rs. 700/- Per Month. Learned Counsel for the respondent desired conduct of the parties to be seen. In support learned Counsel for the respondent cited the cases of (a) Karamat Hussain Vs. Kazi All Mohammad (NLR 1982 SCJ 32), (b) Wadha Wahan Silk Industries Vs. Hawa Bai and others (1986 CLC 2524), (c) Karimullah Vs.M GulzarButt (1986 CLC 1653), and (d) M/s. Mack Industries Vs.Haji Abdul Karim and others (1986 MLD 1595). In respect of deposit of Rs. 40,000/- paras 2 & 5 of the agreement dated 1.4.1982 read as below: - "That the party of the 2nd part has paid Rs. 40,000/- (Rupees forty thousand) as deposit to the parly of the 1st part vide Cheque No. CCM 630955 drawn on Habib Bank, Commercial Area Branch Nazimabafl, Karachi dated 2-4-1982 which is hereby acknowledged by the party of the 1st part." "That the party of the 1st pail shall return the sum of Deposit Rs. 40,000/- (Rupees fourth thousand) to the party of the 2nd part when the latter gives back the peaceful possession of ihe said shop after deducting the dues if any." Before resolving the point whether the monthly rent due could be adjusted from the deposit, it is necessary to read the relevant paras of the agreement mentioned above and to discuss the case law on the point. In the case of Mahromal Vs. Habib Rehman (PLD 1988 Karachi 240) the security deposit was to be applied by the landlord according to the terms of the tenancy agreement to compensate himself at the time of the tenant's handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. In the circumstances it was observed by a single Judge of this Court that the amount deposited with the landlord by way of securily cannot be appropriated for a purpose other than that stipulated in the agreement. Case of Jacob (1988 CLC 278) also .covers the same point at issue. In the case of Abdul Raliim (1987 CLC 359) the view taken was that a fixed deposit held by the landlord as security was excepted from being adjusted towards monthly rent and despite deposit, the tenant was ordered to be ejected when default in payment of rent was proved on his part. In the case of Javed Ahmad (1986 MLD 338) the amount of deposit made in terms of agreement and refundable al the lime of vacating the premises was held to be not adjustable against rent due from the tenant. In said case the agreement provided for refund of amount only on vacating the premises and as such the deposit could not be adjusted towards arrears of rent, as held. In the case of Mohammad Abdus Saeed (1987 MLD 2133) Ihe view taken was that a fixed deposit amount lying with the landlord was refundable to the tenant at the time of handing over the vacant possession of ihe premises to the landlord after deducting other charges if any and that plea of the tenant for adjustment of fixed deposit amount against arrears of rent could not be accepted. Case of Jalees Ahmad (1987 MLD 114) does not cover the point at issue, but it was laid down in said case that the initial duty to prove default was on the landlord and that the onus shifted to the tenant when the landlord stated on oath that he was not paid rent. All these are decisions by the learned single Judges of this Court. Now I proceed to deal with the cases cited by learned Counsel for the respondent and mentioned above. In (a) above it was held that when the default in payment of rent was merely of a technical nature then the discretion conferred by law should have been exercised in favour of the tenant. In cited case at the time of filing of the ejectment application it was found that a sum of Rs. 140/- was still lying in deposit with the landlord and there was another payment by way of a cheque which was accepted by the landlord. In cited case advance rent for one year and no deposit was paid. In (b) above the tenant under a lease agreement deposited a lump sum amount with the landlord and the agreement of tenancy was not renewed after its expiry and the view taken was that the tenant was entitled to refund of the amount deposited with the landlord. There was no stipulation in the agreement of tenancy in the cited case that the lump sum amount held by the landlord as deposit was to be returned to the tenant when he vacated the rented premises and the idea behind payment of lump sum amount was that it be adjusted towards the future rent. That was not the position in the instant case. In (c) above the landlord admitted in his cross-examination that a specified amount of tenant was lying with him as fixed deposit and that the amount claimed us rent arrears was precisely equal to the amount lying as deposit and in the circumstances a single Judge of this Court took view that there would lie no rent arrears outstanding against the tenant if necessary adjustment was made. There was nothing in the cited case if the deposit was to be returned by the landlord to the tenant at the time of receiving back possession of the rented premises. Learned same Judge in the case of Nisar Ahmad Klwn Vs. Mohammad Sharif (1986 CLC 866) took view that if the amount deposited by the tenant with (he landlord is intended as a security against any possible damage to the property, such amount cannot be adjusted towards rent. In (d) above a single Judge of this court took view that amount deposited by tenant with the landlord could be adjusted towards arrears of rent by the landlord after expiry of the rent agreement which was valid for a certain period. It was further held that during subsistence of (he rent agreement the amount of deposit could not be adjusted against rent. In order to resolve the point at issue I may also refer to two cases decided by the Supreme Court of Pakistan. In case of Mirza\ Abdul Aziz Baig Vs. Mmhlaq Ahmad (1980 SCMR 834) it was observed that the 1 deposit of Rs. 825/- wild the landlord was by way of security against tenant's liability for damage if any to the demised premises and such deposit was not! adjustable against the rent due from the appellant. In the case ofAsghar All Vs. Mohammad Ali (PLD 1988 SC 228) there was no mention in the rent agreement as to how and when the security deposit will be adjusted or applied and it was held that the security deposit was to be adjusted by the landlord when the tenant vacated the premises tdwards unpaid rent or against other payments or loss at any time and the same could not be adjusted against the current liability to pay the rent, as the amount was to be adjusted in accordance with the terms of the agreement and not at will of the Renl Controller. In view of these authorities, I am of the view that the amount of Us. 4(),()()0/- paid at the time of the agreement dated 1-4-1982 as deposit or as lixed deposit or as security deposit by the respondent to the appellant, was not adjustable to the monthly rent. Learned counsel for the respondent relied on admission of the appellant in his crossexamination to the effect that if any rent was clue then it would be deducted froml the advance. This admission refers to the time when the demised premises are vacated by the respondent and when he is due to have back from the appellant thei lamount of Rs. 40, OOO/-. There was nothing in the agreement dated 1-4-1982 if | any amount of monthly rent during subsistence of the agreement was adjustable ^form the deposit. Even if the amount of deposit was paid by the respondent to the appellant on humanitarian grounds to help the appellant raise construction of the shop, that would not affect the case on merits. There is no doubt that a huge .amount was paid as deposit by the respondent for the premises, the rental value of jwhich was Rs. 700/- per month. This again would not affect the case on merits. jNone of the authorities cited by learned counsel for the respondent helps him. 8. As result of my above discussions I hold that the respondent was proved to have failed to pay rent in respect of the demised premises for July, 1985 to ;November, 1985 and he was defaulter within the meaning of Clause (ii) of Sub­ jection (2) of Section 15 of Sind Rented Premises Ordinance. Consequently, I R jaccept this appeal, set aside the impugned order and direct ejectment of the irespondent from the demised premises after a period of 6 months. Before filing jthe execution application the appellant shall deposit in the execution court an amount of Rs. 40,000/- minus the amount of rent due from respondent to the appellant and minus the other charges, if any, to be determined by the execution court. Costs on parties. (MBC) Appeal accepted.

PLJ 1990 Karachi 218 PLJ 1990 Karachi 218 Present: SAl.AllUDDlN Mill/A, J ABDUL AZIZ--Appellanl versus Syed MUHAMMAD AFZAL SHAH-Respondent FRA No. 374 of 1987, accepted on 25.9.1989. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.15(2)(ii)—Tenant—Ejectment of—Petition lor—Dismissal of—Appeal against—Default—Ground of—Landlord deposing on oath that his tenant had not paid rent for any given period—Whether onus of proving default discharged—Question of—Held: Appellant had sufficiently discharged onus of proving default and respondent failed to rebut.allegation and bring on record any reliable evidence in support of his claim that he had paid rent for disputed period-Appeal accepted and ejectment ordered. [Pp. 219,220,221]A&B PLD 1982 SC 465 rcl. Hafiz Abdul Baqi, Advocate for Appellant. Mr. Arif Hussain, Advocate for Respondent. Date of hearing: 25.9.1989. Juix'iMlvNT Appellant/landlord had sought the cjeclmuil of the respondent on the solitary ground of default in the payment of rent from April 1986 to July 1986 and the defence of the respondent/tenant is that he had paid rent but receipts had not been given by the appellant. The appellant examined himself in support of his allegation whereas the respondent examined himself as well as his son who both deposed that rent was paid to the appellant. On the basis of this evidence learned Rent Controller came to the conclusion that the appellant/landlord had failed to discharge the burden of proving the default in payment of rent and vide judgment dated 24-3-1987 dismissed the ejectment application. Hence this appeal. 2. Learned Rent Controller was obviously in error when he stated in the last para under issue No.l that the appellant had failed to discharge the burden of proving the default in payment of rent alleged to have been committed by the respondent. There are a number of reported judgments in which it has been repeatedly held that when a landlord deposes on oath that his tenant had not paid the rent for any given period of time, then the onus placed upon the landlord for proving the default stands sufficiently discharged and it is then for the tenant to prove affirmatively that he had paid the rent for the disputed period. One such judgment is reported in PLD 1982 S.C. 465 (Allah Din Vs. Habib). It is a Full Bench judgment in which it is held that non-payment of rent is a negative fact which stands sufficiently proved if the landlord appears in the Court and states on oath that he had not received the rent for the disputed period and that when the landlord had done this, the burden of proving the payment of rent for this period shifts upon the tenant who must prove aflimalively that he had paid or tendered the rent. I am surprised that this judgment was cited before the learned Rent Controller who has even mentioned it in the impugned judgment but has chosen to ignore it on the untenable ground lliat the facts of the case in the said judgment were different from this case and, therefore, this judgment was not applicable in this case. This is a perverse observation of the learned Rent Controller. The facts of the case in this judgment arc, for all practical purposes, the same as in "the present case and this judgment is fully applicable to the present case. Since the burden of proving the payment of rent for the disputed period lay upon the tenant, the evidence on the piont is very material and any contradiction in it cannpt be brushed aside by saying that since the payment was made a long time ago, the tenant can not be expected to remember the exact mode of payment. I refer to the last sentence in the cross-examination of the respondent in which he stated that he had himself paid the rent from April 1986 to July 1986 and to the crossexamination of respondent's son Mohammad Arif Shah in which he stated that rent from April to July 1986 was paid by him. Both these assertions are ery definite and there is no vagueness about them and the obvious contradiction in them renders the payment of rent extremely doubtful. The respondent stated that ,. he had paid the rent for the disputed period whereas his son said that he had paid rent and the learned Rent Controller has very unreasonably referred to soine earlier portion of the cross-examination of the appellant and deduced from it that the contradiction had been sufficiently explained by the respondent. As a matter of fact, the portion of the cross-emaminalion of the respondent, quoted by the learned Rent Controller in his judgment, does not explain the contradiction. In this quoted portion of his cross-examination the respondent has only stated that he did not remember exactly as to how many times he or his son had gone to pay the rent to the appellant. This was a general statement but so far as the payment of rent for the disputed period (April to July I'ASd) is concerned, the respondent was not in doubt and was emphatic thai he had paid the rent for this period and this assertion of the respondent is in clear contradiction with the assertion made by his son in his cross-examination. Learned Rent Controller has clearly gone out of her way in making an attempt to show that the contradiction stood sufficiently explained. Learned counsel for the appellant also brought to my notice the judgment in case of Fazal Ahmad fOian Saleemi Vs. Mrs. Anwar Iqbal (1986 CLC 1638) which holds that when there are no rent receipts, the tenant must prove the actual dates on which the rent had been allegedly paid by the tenant. Learned counsel for the respondent could not show me any judgment to the contrary. In the present case, the respondent has made a vague claim that the rent for the disputed period had been paid and no dates of such payment have been mentioned either in the written statement or in the affidavits in-evidence of the respondent and his son. Such vague assertion in such circumstances carries us no where. My attention was also drawn to para-3 of the written-statement in which the respondent alleged that the appellant, after the expiry of the pervious rent agreemet of 31st March 1985 had demanded from him to vacate the premises immediately or to execute a fresh tenancy agreement enhancing the rent from Rs.2,600/- to Rs.2,850/- and the respondent was forced to execute fresh rent agreement on 31st March 1986 under duress, threat, mischief, undue influence and pressure exerted by the appellant upon him. This indicates that the relations between the parites were strained righl from ihe first day of the commencement of the fresh tenancy under the second rcnl agreement of 31st March 1986. This is the claim of the respondent himself and if it is correct, it follows that the respondent should have been, and was expected to be, more careful in the payment of rent than a tenant under ordinary circumstances would have been and,, therefore, he should not have paid rent without obtaining receipt or without obtaining any other documentary proof of the payment of the same and if the receipt had not been given on the first occasion, rent should not have been paid for the second time if the receipt was again refused and should have been deposited in court. The averment of the respondent and his son, apart from the fact that they are contradictory on the question as to who paid rent for the disputed period, can not be taken on their face value in the absence of any evidence whatsoever, either oral or documentary. Learned counsel for the respondent relied upon 1988 CLC 1703 (Adam Ahmad Tliaqia Vs. Muhammad Hanif); in this judgment there were vague allegations in respect of the default and there had been several tenancy agreements and ejectment application had been filed after the receipt of arrears of rent and there was no rent due on the date when the ejectment application had been filed. Under such circumstances ejectment application had been rejected. The facts of the present case are quite different as the allegation in respect of the default is precise and not vague and ejectment application had not been filed on a date when no rent was du"e. This judgment is, therefore, not relevant in the present context. 3. For the reasons given above, I am of the considered view that the appellant had sufficiently discharged the onus of proving that the respondent had committed default for the disputed period whereas the Despondent had failed to rebut the allegation and could not bring on record any reliable evidence in support of his claim that he had paid rent for the disputed period. I would, therefore, accept this appeal, set aside the impugned judgment and direct the respondent to hand over possession of the disputed premises to I he appellant within two months. The appellant shall also have his costs. (MBC) Appeal accepted.

PLJ 1990 Karachi 221 (DB) PLJ 1990 Karachi 221 (DB) Present : SALEEM akhtar and sai.ai iuddin mirza, JJ M/s. GLAXO LABORATO RI ES~Applicant versus COMMISSIONER OF INCOME TAX--Respondent I.T.R. No. 2 of 1980, decided on 17.9.1989 Income Tax Act, 1922 (XI of 1922)- — S.66(l)--Rebate of super tax-Claim of--Reference to High Court- Whether super tax rebate of 15% was to be calculated only on dividend distributed out of taxable income and such rebate is not liable to dividend paid out of profits of units exempt under Section 15BB of Act-Question of~No dispute that applicants are entitled to claim rebate-According to applicants, they are entitled to 15% rebate on amount of dividend declared in respect of taxable income as well as on exempted income-Held: While making assessment under Section 10, income from units exempted under Section 15BB is not taken into consideration-Held further: Rebate provided in respect of income falling under Section 10 cannot be extended to income accruing from units exempted under section 15BB-Question answered in affirmative. [P.223]A,B. Mr. Wadood, Advocate for Applicants. Mr. Shaikh Haider, Advocate for Respondent. Date of hearing: 17.9.1989. judgment Saleem Aklitar, J.-The applicants are manufacturers of milk, foods and medicines. They are drawing income from taxable units and also from such units which are exempt from payment of tax under section 15BB. These units have been enumerated by the Tribunal as Ibllow:- (1) Milk-food Manufacturing plant al Renala. (2) Vitamin 'A' manufacturing unit at Lahore. (3) Starch and Glucose manufacturing unit at Lahore. In the assessment years 1967-68, 1968-69 and 1969-70 the applicants declared dividend to the extent of Rs.31,50,000/- Rs.39,37,500/- and Rs.39,37,500/- respectively both out of their taxable as well as exempted profits. The applicants claimed rebate of 15% in respect of all these three years. This claim was made by invoking proviso (ii) to para A clause 1 of Part II of Vth Schedule to the Finance Act 1967. The Income Tax Officer did not agree with the contention of the applicants and granted rebate on the dividend paid out of taxable profit alone. He refused to grant rebate in respect of dividends distributed out of the profits which were exempted under section 15BB of the Income Tax Act. The applicants challenged this treatment by a direct appeal to the Tribunal which was dismissed. The applicants then filed an application under section 66(1) of the Income Tax Act and the Tribunal has referred the following question:- "Whether the Income Tax Appellate Tribunal was right in determining that the super tax rebate of 15% allowed by the applicable Finance Act on dividend distributed to shareholder was to be calculated only on dividend distributed out of taxable income and that such rebate is not liable to dividend paid out of profits of the Units exempt under section 15BB of the Income Tax Act". The rebate was claimed as provided by section 10(b) of the Finance Act 1967. The relevant portions of the Act are as follows:- "10. Income Tax and Super Tax.-(T) Subject to the provisions of sub­ sections (2),(3),(4) and (5), in making any assessment for the year beginning on the first day of July, 1967- (b) the rates of super-tax shall, for the purposes of section 55 of the Income Tax Act,1922 (XI of 1922), lie those specified in Part II of the Fifth Schedule." For the purposes of the present controversy the relevant part of Part n of the Vth Schedule is reproduced as follows: "Rates of Super tax (1) On the whole of the total income excluding income to which sub-paragraph (1) of paragraph B of Part I applies. Provided that:- (i) a rebate of 5 per cent, shall be allowed to a company- (a) Which, in respect of the profits liable to tax under the Income Tax Act, 1922 (XI of 1922), has made such effective arrangements as may be prescribed by the Central Board of Revenue in this behalf for the declaration and payment in Pakistan dividends payable out of such profits and for the deduction of tax from such dividends, and (b) Which is also a Banking or an Insurance Company, (it) a rebate of 15 per cent, shall be allowed, in the case of every company to which sub-clause (a) of clause (i) applies but sub-clause (b) of clause (i) does not apply on so much 'of the income of such a company of the relevant year as has been distributed as dividend to its shareholders (including dividends on preference shares), (Hi) • .......................... (<V) ....................................... (v) .... •(vi) ................ , (v/0 Under clauses (i) to (vii) seven types of rebates havetoeen allowed-to the company provided it satisfies the conditions prescribed for granting each type of rebate. The rebate claimed by the applicants falls under proviso (ii) to clause 1 of Para A of Part II. According to this proviso a company, not a Banking or an Insurance Company which has made effective arrangements as prescribed by the Central Board of Revenue for declaration of dividend out of the profits liable to Tax under the Income Tax Act and also established that the dividends so declared are to be paid in Pakistan and tax from such dividends are to be deducted, becomes entitled to claim rebate of 15%. The following part of proviso (ii) provides for a mechanism to calculate the amount of rebate to which the company is entitled. There is no dispute that the applicants are entitled to claim rebate. According to the applicants they are entitled to 15% rebate on the amount of dividend declared in respect of the taxable income as well as on the exempted income. According to Mr. Wadood proviso (ii) does not impose any. condition and allows 15% rebate of the income distributed as dividend irrespective of the fact whether tax is payable on it or not. Jvlr. Shaikh Haider the learned counsel for the Department has contended that the rebate is provided in respect of assessment made under section 10 of the Income Tax Act which is completely separate and independent of section 15BB. Section 15BB is intended to grant tax holiday for new industrial undertakings. They are exempt from Income Tax and Super Tax for a certain specified period. Such undertakings, their working, functioning, registration, paid up capital and declaration of dividends are regulated by various provisions of section 15BB. It provides for a buill in mechanism with complete code for governing such companies. It is pertinent to note that according to section 16(1) the income from units exempted under section I5BH is not included in the Total Income of the Assessee. Therefore, while making assessment under section 10 the Income from units exempted under section 15BB is not taken into consideration. It is kept seperately and treated differently. Thus the rebate provided in respect of income falling under section 10 can not be extended to income accruing from units exempted under section 15BB and governed by this provision. We therefore, answer the question in the affirmative. (MBC) Order accordingly.

PLJ 1990 Karachi 223 (DB) PLJ 1990 Karachi 223 (DB) Present: SAEEouzzAMAN SiDDioui and imam ali G. kazi, JJ ABDUL RASH ID-Petitioner versus DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY, KARACHI and 2 others-Respondents Const. Petition No. 739 of 1984 (also 4 other petitions) accepted on 29.8.1989. Jurisdiction— —Assessment of Rent-Deputy Administrator, Evacuee Trust Property-­ Jurisdiction of—Challenge to—It was specifically urged before Deputy Administrator of Evacuee Trust Property that he and Administrator, respondent No. 2 had no jurisdiction to make assessment or re-assessment in respect of rent of property in dispute—Respondent No. 3 did not advert to this contention while rejecting revision application of petitioner—Held: Point of jurisdiction having not been decided, order passed by respondent No. 3 is declared as without lawful authority and of no legal effect—Case, remanded for fresh decision. [Pp.225,226]A Mr. Nizam Ahmad, Advocate for Petitioner. Mr. Ashiq All Anwar Rana, Advocate for Respondents. Date of Hearing: 29.8.1989. . judgment Saeeduzuzzaman Siddiqui, J.-We propose to dispose of the above five petitions by this common order as the point of law and facts involved are common. 2. The petitioners in the above petitions have challenged the enhancement of rent by respondents in respect of several tenements situated in the building bearing No. R.B. 7/2 known as 'Capital Building'. The petitioner in Const. Petition No. D-739 of 1984 is in occupation of tenement No.3/2 (third floor) the rent of this premises prior to 1978 was Rs.67.i7 p.m. This was enhanced from 1.1.1981 to Rs.120 p.m. Again in September, 1981 the rent was proposed to be enhanced to Rs.600/- p.m. but on Ihe objections of the petitioner, it was fixed at Rs.240/- by the Administrator (Respondent No.2) and this order was confirmed by the Secretary, Government of Pakistan (Respondent No.3) in revision filed by the petitioner. 3. In Const. Petition No.D-740 of 1984, the petitioner is in occupation of tenement No.3/1. The rent of this premises prior to 1978 was Rs.68.41 p.m, which was enhanced to Rs.l50/-p.m. from 1.1.1978. In September, 1981 the rent was proposed to be enhanced to Rs.750/- p.m., which was objected to by the petitioner and on the objections of the petitioner, the Administrator/Chairman fixed the rent at Rs.300/- p.m, which was confirmed by the Secretary to Government of Pakistan in a revision filed by the petitioner. 4. In Const.Petition No. D-741 of 1984, the petitioner is occupying tenement No. 1/3. The rent of the premises prior to 1978 was Rs.60/- p.m. Which was enhanced to Rs.120/- p.m from 1.1.1978 and in September, 1981, it was proposed to be enhanced to Rs.600/- p.m. which on the objection of the petitioner was fixed at Rs.240/- p.m. by the Administrator and the same rent has been confirmed in revision by the Secretary to Government of Pakistan. 5. In ConstPetition No. D-742 of 1984, the petitioner who is occupying tenement No.3/3 was paying rent of Rs.60/- p.m. prior to 1978 which was enhanced to Rs.120/- p.m. with effect from 1.1.1978. The rent was proposed to be enhanced again in September, 1981 at Rs.750/- per month to which objections were filed by the petitioner and finally Ihe Administrator/Chairman fixed the rent 6. at Rs.240/- per month which has been confirmed by the Secretary to Government of Pakistan in revision. ' 6. In Const.Petition No. D-743 of 1984, the petitioner is in occupation of tenement No. 1/1. The rent paid by the petitioner prior to 1978 was Rs,75/- p.m. which was enhanced to Rs.150/- p.m. with effect from 1.1.1978. From September, 1981 the rent was proposed to be enhanced to Rs.750/- but on the objections of the petitioner, the Administrator/Chairman fixed the rent at Rs.300/- which has been confirmed in revision by the Secretary to Government of Pakistan. 7. In all the above noted petitions, the petitioner has challenged the jurisdiction of respondents to assess or reassess the rent of the above mentioned premises. It is contended by the learned counsel for the petitioner that under the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975, the power to assess or re-assess the rent or lease-amount of the Evacuee Trust Property is vested in the Board, which is constituted under Section 3 of the Act. It s, accordingly, contended by the learned counsel that the re-assessment o f rent by Deputy Administrator was wholly without-jurisdiction. The learned counsel for the Department, on the other hand, contended that under paragraph 10 of the Scheme for the Management and Disposal of Urban Trust Properties, 1977, (hereafter to be referred as the Scheme only for the sake of convenience) framed by Board under Section 30 of the Act, the periodical assessment of rent of evacuee trust properties after every five years is lo be done by the 'District Officer' which according to definition given in Seel ion 2(1") of I he Scheme, includes an Assistant Administrator and a Deputy Administrator, inchurgc of the Evacuee Trust Property in a District. It is accordingly contended that as the first assessment under para 10 of the scheme was lo be effective from 1.1.1977, the proposal for re­ assessment of rent of the above properties by respondent No.l in September,1981 was fully competent under the above scheme. We find that in the memo of revision filed before respondent No. 1 in the above cases it was specifically urged before that Officer that the Deputy Administrator and the Administrator (respondent No.l and 2 respectively) had no jurisdiction under the Act to make assessment or re-assessment in respect of rent of these properties. The respondent No.3 while confirming the order of respondent No.2 and rejecting the revision applications of the petitioners in the above cases did not advert to the above contention of the petitioners. The learned counsel for the Department admits that in the comments filed on behalf of the Department except for relying on the Scheme, no other material has been placed on record to show that there was any delegation of power in favour of Deputy Administrator by the Board under the provisions of Act XIII of 1975. It is true that under section 26 of the Act XIII of 1975, the Federal Government, the Board, and the Chairman, has been authorised subject to the provisions of the Act to delegate all or any of thenpower to the subordinane authorities but there is nothing on record before us to show that there was any delegation of power by the Board under section 26 of the Act in favour of the Deputy Administrator or Administrator of the Evacuee Trust Property, Karachi. With regard to the contention • of the learned counsel for the Department that the Scheme provided for assessment and re-assessment by the 'District Officer' which included the Deputy Administrator, it suffice to say here that the Scheme prepared under section 30 of the Act is subordinate to the Act and any provision in the scheme which is contrary to the provisions of the parent Act is to be ignored to the extent of inconsistency. We are, therefore, of the view that in the absence of delegation of power in favour of respondents No.l and 2 by the Board the re-assessment of rent of the above properties was not in accordance with law. However, as the power to re-assess the rent in respect of the above properties was also excercised by respondent No.l prior to September, 1981 which was not objected to on the ground of jurisdiction by the petitioners and the Specific objection raised by them before respondent No.3 regarding excercise of such power by respondent No.l in 1981, was not decided we. declare the order passed by respondent No.3 in the above cases as without lawful authority and of no legal effect and remand the cases to respondent No.3 with the direction to decide the question relating the of jurisdiction of respondents No.l and 2 to assess and re-assess the rent of the property, under the Act in accordance with the law. As the cases are being remanded, the petitioner will be at liberty to raise any additional points with regard to validity of the re-assessment of rent before respondent No.3. There will however, be no order as to costs. (MBC) Petitions accepted.

PLJ 1990 Karachi 226 [Sukkur Bench] PLJ 1990 Karachi 226 [Sukkur Bench] Present: ABDUL RAHIM KAZI, J Mst. NAWAB KHATOON-Appellant versus SADDAR DIN-Respondent FRA No. 25 of 1986, dismissed on 24-1-1990 Sind Rented Premises Ordinance, 1979 (XVII of 1979)— —-S. 15 (vz7)--Tenant--Ejectment of~Application for-Dismissal of-Challenge to-Personal requirement-Ground of~Primary point in dispute is whether requirement of landlady is in good faith-According to evidence on record, husband of landlady had felt need of shop for last 10 years but during this period, he had gi f! ed away his own shop to his son only 3 months before filing this rent <. se--Another shop of landlady fell vacant but same was rented out on a higher rent—Husband of landlady states in his affidavit that he is jobless but in cross-examination he says that he is running cloth business—Fact that landlady had stopped accepting rent which he ultimately deposited in court, also lends support to case of respondent -Held: Appellant has failed to prove that shop in dispute is required in good faith for use and occupation of her hasband-Appeal dismissed. [Pp.229&231]A&B 1985 SCMR 650, NLR 1986 SCJ 31, and 1984 CLC 2213 dist. [1985 SCMR 1366, PLD 1985 Karachi 639, PLD 1985 Karachi 624, & 1987 CLC 686] rel Mr. Naraindas D.Kapoor, Advocate for Appellant. Mr. Wahid Bitx Baloch, Advocate for Respondent. Date of hearing: 24-1-1990. judgment The appellant by this appeal has assailed the orders passed by the Second Senior Civil Judge & Rent Controller, Jacobabad whereby he rejected the application filed by the appellant-landlady for the ejectment of the respondent tenant being R.A.No.4/1984 moved under section 15 of the Sind Rented Premises Ordinance, 1979; The case of the appellant briefly is that she is the owner of shop bearing City Survey number 151 of Ward 2, Sarafa Bazar, Jacobabad which is in occupation of the respondent at the monthly rent or Rs.40/- only and that she .srved a notice on the respondent 9.10.1983 informing him about her ownership and that she then approached the respondent through her attorney Abdul Sattar to vacate the said shop as she required the same for her husband Naseer Muhammad who had to run his business. It is further the case of the appellant that in January 1984 the respondent refused to vacate the shop and therefore she filed the said rent case through her attorney Abdul Sattar. The respondent filed his written objections wherein he submitted that the said shop was originally owned by the father of the appellant and that he is a tenant of the said shop since the year 1971 and that the rent at that time was Rs.30/- per month. He also alleged that in the year 1977 deceased father of the appellant had filed the application for his ejectment which was subsequently compromised as he agreed to pay enhanced rent at the rate of Rs.40/- per month. According to respondent the attorney of the appellant had been receiving the rent at the rate of Rs.40/- per month till March 1978 but thereafter he demanded the rent at the enhanced rate of Rs.100/- to which the respondent did not agree. On this the attorney stopped accepting the rent and the respondent therefore started depositing rent in Court as the appellant had refused to accept the rent sent through money order. The rent so deposited in court is withdrawn by the attorney of the appellant. It is further submitted by the respondent that the husband of the appellant owns other shops in the names of his sons and himself in the busy commercial areas of the town and also that he is an old man and is not in a position to do any business by himself. Lastly a plea was taken that the appellant is now demanding enhanced rent at the rate of Rs,500/- per month. The plea that the rent application is not maintainable is also taken. The Rent Controller framed the following points for determination: - 1. Whether the application is not maintainable in law? 2. Whether this court has no jurisdiction to entertain this application? 3. Whether the shop in dispute is needed by applicant for the personal use of her husband bonafidely? 4. Orders. The first 2 points were answered in favour of the appellant while the third point was answered against her and consequently her application u/s 15 of the Ordinance was dismissed. Being aggrieved she has filed this appeal. I have heard the learned counsel for the parties and perused the record of the lower court. The appellant has examined her son and attorney Abdul Sattar and also her husband Naseer Muhammad who have both filed their affidavits in evidence and have been cross examined at length. As against this the respondent filed his affidavit in evidence and has been cross examined. He has also examined the post-man in support of his contention that he had been sending the rent through money orders which were refused. Such money order coupons have been produced as Ex.34 to Ex.44. This witness has also been cross-examined. The respondent has also examined the record-keeper of the court of Rent Controller who has not been cross-examined by the appellant although chance was given. This witness has proved the payment of rent in Court. Mr. Naraindas D.Kapoor, the learned counsel for the appellant has assailed the findings of the learned Rent Controller on the point of bonafide requirement of appellant for her husband. He has submitted that the choice to select the shop to run the business rests with the landlady and the tenant cannot dictate terms in this respect. He has placed reliance on the cases of Muhammad Younis Malik v. District Judge, Lahore (1985 SCMR 650) and Muhammad Latif v. Hakim Nisar Ahmed (N LR 1986 S.C J 31) and Suleman Ghazi v. Ghulam Hyder (1984 CLC 2213). Relying on the above cases the learned counsel has submitted that mere fact that the husband of the appellant was running his business in a rented shop of the Municipality would not disentitle the landlady from getting possession of the shop owned by her as is held in the above cited case ofSulIeman Ghazi v. Ghulam Hyder. Mr. Wahid Bux Baloch, the learned counsel for the respondent, repelling the above contention, has referred to the cross-examination of the appellant's son and attorney Abdul Sattar and her husband Naseer Muhammad. This crossexamination shows that the appellant's husband had retired from service of Municipality about 30 years back and that both the landlady and her husband had been allotted separate shops by the Municipality and that they both are carrying on business in their respective shops. The learned counsel has further pointed out that the husband of the landlady, in his cross-examination has said that since about 10 years back he had felt the need for premises for his own use and occupation. It has also come in cross-examination that during this period another shop of landlady which was on rent with one Memon had been vacated in the year 1980/81 but it was not given to her husband for his business, instead it was rented out at Rs.500/- per month. He has also pointed out from the cross-examination that the husband of landlady had himself owned a shop bearing No.3/293 in the same ward which he gifted away to his son Khalid Hussain on 13.10.1983, four days after the said notice was given by the landlady to the respondent. The learned counsel for the respondent has further pointed out that soon thereafter i.e. on 5.2.1984 this application for ejectment has been filed. The learned counsel has also submitted that though admittedly the appellant's husband had been needing the shop for his personal use and occupation yet no such mention was made in the notice from the landlady. From this the learned counsel for respondent has submitted that the requirement of^the landlady is not bonafide but she is using this device to get enhanced rent. The fact that she did not accept the rent from respondent also goes to show that she intended to create a ground for ejectment but the said manoeuvre was defeated by the respondent who displayed vigilence by sending the rent through money orders and then by depositing the same in Court when money orders were refused by appellant. He has placed reliance on the cases of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), Sultan Press Ltd v. Muhammad Hasan (PLD 1985 Karachi 624), Mst. Farukh Nisa v. Safdar Ahmed (PLD 1985 Karachi 639) and Muhammad Aslam v. Muhammad Aslam (1987 CLC 686) It will be advantageous to reproduce the provisions of section 15 (vii) of the Sind Rented Premiss Ordinance, 1979 in order to appreciate the point in dispute. It reads: "(vii) The landlord requires the premises hi 'Good Faith' for his own occupation or use or for the occupation or use of his spouse or any of his children." From the above it will be observed that the emphasis is not only on personal requirement but also on the words 'Good faith'. I have considered the submissions made by the learned counsel for parties and the case law cited by them in light of the above provisions. In the first two cases cited by the learned counsel for the appellant, the point for consideration before the Hon'ble Supreme Court was the suitability of the requirement and not the bonafides of the landlord. In the third case, a learned Single Judge of this Court had held that the provisions of S.13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 cannot be extended to cover a building occupied by the landlord but not owned by him. In the present matter, I am of the view that the primary point in dispute is whether the requirement of the landlady is in good faith? The evidence discussed above shows that the husband of the landlady had since last 10 years felt the need of the shop to run his own business but during this period he had gifted away his own shop to his son only 3 months before filing of the present rent case. The evidence also shows that during this period another shop of the landlady fell vacant but the same was rented out on a higher rent. It may also be observed that in paragraph No.2 of the affidavit in evidence filed by the husband of the landlady he states that he is jobless but in cross-examination he says that he is running the cloth business in the shop allotted to him by the Municipality in partner-ship with another person. The other fact proved by the respondent that the landlady had stopped accepting rent which he ultimately deposited in court also lends support to the case of the respondent. In the case of Mst.Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366) their lordships have held "A thing shall be deemed to be done in 'good faith' where it is in fact done .honestly whether it is done negligently or not". In the cases of Mst. Farukh Nisa v. Safdar Ahmed and Sultan Press Ltd v. Muhammad Hasan my learned brother Haider Ali Pirzada J has held: "From the phraseology used in clause(vii) of subsection (2) of section 15 of the said Ordinance, it is further clear that the landlord has to prove that he requires the premises in good faith. The expression "requires in good faith" has been considered by superior Courts on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord "requires the premises in good faith". The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish need or absolut requirement without which he shall have no shelter over his head. What is meant by "requires in good faith" is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term "requires" means that there must be an element of need before a landlord can be said to require premises for his own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bonafide. The onus of proof of this is certainly on the landlord. Although the word "reasonable" does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bonafides of the landlord. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, "requires in good faith." The words "good faith" mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that the requirement of the landlord will be met by occupation of the premises, then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Controller. I am of the humble opinion that for considering the true scope of clause (vii) of the said Ordinance, the landlord has to make out a case for his requirement of the premises in good faith. For this purpose he must place before the Rent Controller the necessary details which are required for granting relief. A mere ipse dixit of the landlord that he requires the premises for his personal occupation or use is not enough. He must give details as to whether he requires the premises for residence or godown. If for residence, he must give details as to number of members of family and how he requires the premises. If for expansion of business, he must give details as to whether it is inadequate or if for new business, details of new business, his sources. If he owns other houses or buildings, he must show whether they are occupied and if vacant, why it is not available. If he owns other buildings which he sold, he must show under what circumstances it was sold. Unless the landlord gives such details, the tenant cannot be expected to meet the case of landlord. The statement of the landlord must be supported by valid reasons as how his requirement is genuine or in good faith." In the case of Muhammad Aslam v. Muhammad Aslam it was held by Ahmed Ali U. Qureshi, J(as he then was) "The learned Rent Controller appears to have relied upon the mere word of the appellant/respondent that he required the premises for bona fide need of the sons and has shifted burden of proof in rebuttal upon the appellant. In my view this is not the correct position of law. This landlord has first to prove the bona-fide of his requirement, before any burden of proof in rebuttal can be shifted upon the tenent. In the present case, the landlored has not discharged the burden and the weakness if any in the case of the appellant tenant would not help the landlord". From the above discussion I am of the view that the appellant landlady has failed to prove that the shop in dispute is required by her in good faith for the use b and occupation of her husband. Consequently this appeal is dismissed with no order as to costs. (MBC) Appeal dismissed.

PLJ 1990 Karachi 231 PLJ 1990 Karachi 231 [Sukkur Bench] Present: QAISAR AHMAD HAMIDI, J Smt. SADORI BAI and others-Appellants versus FAIZ MUHAMMAD-Respondent FRA no 7 of 1990, dismissed on 15-3-1990 Sind Rented premises Ordinance, 1979 (XVII of 1979) — Ss. 2(j) & 21— Tenant— Ejectment of— Execution of order— Whether all heirs of a deceased tenant can be treated as tenants— Question of— Under Section 2(/) of ordinance, tenant means any person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him or by another person on his behalf-Held: Only those heirs of deceased tenant who are actually in possession of premises, are to be treated as tenants and not those who are not occupying same-Held further: Appeal is wholly misconceived as mere technicalities are being pushed to extreme by appellant Gurmukhdas to prolong his possession— Appeal dismissed in limine. [Pp.232&233]A,B&C PLJ 1987 Karachi 36 rel. Mr Abdur Rehman, Advocate for Appellants. Respondent in Person. Date of hearing: 15-3-1990. judgment The material facts culminating in this rent appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, briefly, are that respondent Faiz Muhammad who is landlord of commercial premises bearing No.B-1395, situated at Dhak Road Sukkur, filed ejectment application against Gobind Mal(since dead) and his son Gurmukhdas, on 11.4.1983, before Rent Controller Sukkur, on the grounds of default in payment of rent and personal requirement. The tenants contested the application for their eviction which was dismissed on 18.2.1985. The respondent challenged this order before this Court, but without success and his appeal was dismissed on 22.5.1986. The Civil Appeal No.l29-K of 1987, filed by respondent before Supreme Court was, however, accepted vide judgment dated 3.9.1989, and the tenants were directed to vacate the said premises. The respondent filed execution application on 14.11.1989, but by that time Gobind Mai, the co-tenant had expired. In the meanwhile the appellants also filed a suit for declaration and perpetual injunction against respondent and two others in the Court of I-Senior Civil Judge Sukkur, which is pending decision. On 20.12.1989, appellant Gurmukhdas filed objection by stating that eviction order cannot be executed against a dead person. On 25.1.1990, appellants Smt. Sadori Bai, Smt. Chandran Bai, Smt. Maya Bai and Smt. Daya Bai, daughters of late Gobind Mai were brought on record, but before the notice could be issued to them it was brought to the notice of learned Rent Controller that Gurmukhdas who is tenant of the disputed premises within the meaning of section 2(J) of the Sind Rented Premises Ordinance, 1979, was already on record and his eviction was in fact sought. The learned Rent Controller, therefore, issued writ of possession against appellant Gurmukhdas. This order dated 21.2.1990 is the subject matter of this appeal. 2. The tenant as defined by Section 2(J) of the Sind Rented Premises Ordinance, 1979, 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:- (/) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (//') heirs of the tenant in possession or occupation of the premises after the death of tenant. It is thus clear that only those heirs of a deceased tenant who are actually in possession of premises are to be treated as tenants and not those who are not occupying the same. The case reported as Ghullam Nabi v. Muhammad Sachal (P.L.J. 1987 Karachi 36) is relevant on this point. The objections filed by appellant Grumukhdas are also silent on this aspect of the case. He never pleaded before the Rent Controller that appellants No.l to 4 any one of them are in occupation of the disputed premises, which is commercial one. The Sind Rented Premises Ordinance, 1979, brought about a change in the definition of "tenant"from the one provided in the Sind Urban Rent Restriction Ordinance, 1959 (since repealed). In the repealed Ordinance, "tenant means any person by whom or on whose account rent is payable for a building or a rented land and includes (a) a tenant continuing in possession after the termination of tenancy in his favour, and (b) the wife and children of a deceased tenant, " 3. The cases reported as Muhammad (through his heirs) and others v. Abdur Rehman, (P.L.D. 1976 Karachi 612) Ghulam Hyder v. Muhammad Haneef and others (P.L.D. 1979 Karachi 167), Majid Hussain and 5 others v. Muhammad Rafique and another, (1980 C.L.C. 154), Fazal Ahmed v. Ramzan Bibi, (1984 C.L.C. 2196) and Abdul Rashid v. Haji Syed Ainullah, (P.L.D. 1985 Quetta 56), are not attracted to the facts of the present case as in all those cases the definition of "tenant" as provided in the West Pakistan Urban Rent Restriction Ordinance, 1959, was considered, and in that context it was observed that wife and children of deceased tenant were necessary parties. 4. It may be added that appellant Gurmukhdas had contested the eviction proceedings from the very outset. The case finally went upto Supreme Court where the tenants lost. It appears that technicalities are being pushed to extreme by Gurmukhdas to prolong his possession. The appeal is wholly misconceived and is dismissed in limine. One month's time is, however, allowed to appellant gurmukhdas to vacate the demised premises. (MBC) Appeal dismissed

PLJ 1990 Karachi 233 [Sukkur Bench] PLJ 1990 Karachi 233 [Sukkur Bench] Present: qaisar ahmad hamidi, J AHMAD MUJTABA KHAN-Petitioner versus IQBAL SHAH-Respondent Revision Application No. 34 of 1984, dismissed on 21-3-1990 (i) Transfer of Property Act, 1882 (IV of 1882)-- —S. 53-A-Agreement to sell-Part performance of-Protection under Section 53-A~Whether there was any breach on part of respondent to disentitle him to invoke provisions of this section—Question of—Final clause of agreement, isolated from context would naturally be interpreted as doing nothing by respondent more than making payment of balance at time of registration of sale-deed-Ordinarily, a Finding of fact cannot be questioned in a civil revision- -Held: Fact that High Court might come to a different conclusion on perusal of evidence, is not a ground for acceptance of revision-Held further: Contention that respondent approched court seeking enforcement of contract after a lapse of 14 years is not indicative of any breach of obligation on his part. [Pp.2.\2.VutrP|A,B£C 1976 SCMR 141,1980 CLC 1785 and PLD 1989 SC 503 distinguished. 1976 SCMR 379 rel. (ii) Transfer of Property Act, 1882 (IV of 1882)-- —S. 53-A-Agreement to sell-Part performance of-Whcther protection is available only as a defence—Question of—Contention that provisions of Section 53-A of Act are available only as a defence and could not be invoked for enforcing a right-Held: Complete answer to this contention is provided in D.B. judgment that Section 53-A protects transferee whether he comes to court as defendant or plaintiff-Petition dismissed. [P.237]D&E PLD 1961 Lahore 372 re/. Mr. FarkhandAH, Advocate for Petitioner. Mr Rukimuddin Kasimi, Advocate for Respondent. Date of hearing: 14-1-1990. judgment The facts which constitute the background of this civil revision application filed under Section 115 C.P.C. are that Ahmed Mujtuba Khan, predecessor-ininterest of applicants owned and possessed agricultural land bearing S.No.430, situated in Deh Kingri, Taluka Khairpur, and measuring 2-6 acres, which he got in satisfaction of his claim under Displaced Persons (Land Settlement) Act, 1958. Respondent Iqbal Shah was the hari on this land who gave zamindari share to Ahmed Mujtaba Khan upto Kharif 1967, but stopped thereafter, which necessitated Ahmed Mujtaba Khan to file Suit No.84 of 1970 for declaration, possession, injunction and mesne profits against him. The respondent contested this suit and pleaded that he has purchased this land from Ahmed Mujtaba Khan through an agreement of sale dated 3.6.1964 for a consideration of Rs.4000/-, out of which he paid a sum of Rs.310/-. The suit proceeded before Civil Judge, II- Class, Khairpur, who vide judgment dated 4.4.1977 decreed it. The respondent challenged this judgment and decree in Civil Appeal No.13 of 1977, which was heard and decided by I-Additional District Judge, Khairpur, who vide judgment dated 24.10.1978, accepted the appeal holding that the dispute was covered under the Sind Tenancy Act, 1950, falling within the jurisdiction of Tribunal constituted under the said Act. Accordingly Ahmed Mujtaba Khan submitted an application under Sind Tenancy Act, 1950, against the respondent and one Hussain Bux, because he had been doing clutivation on his behalf. The respondent again claimed ownership on the basis of said agreement of sale, which was disputed by Ahmed Mujtaba Khan. The Tribunal vide order dated 16.12.1978, directed the respondent to pay zamindari share and further held that if it was not done, the tenancy rights will stand terminated. The respondent did not challenge this order, but instead he filed a suit bearing No.103 of 1979 on 18.12.1978, for specific performance of contract and permanent injunction against Ahmed Mujtaba Khan in the Court of Civil Judge, Khairpur. The said Ahmed Mujtaba Khan controverted the allegations based on facts. He also filed a suit bearing No.16 of 1980 against the respondent seeking declaration that the said agreement of sale dated 3.6.1964 was a forged document and be cancelled as such. The learned Civil Judge Khairpur, where both the suits were pending consolidated them and vide judgment dated 18.12.1980, dismissed the suit filed by the respondent and held that the agreement dated 3.6.1964 was a forged document and decred the suit filed by Ahmed Mujtaba Khan. The respondent challenged this consolidated judgment by filing Civil Appeals No.2 and 3 of 1981, which were heard by learned I- Additional District Judge Khairpur, who vide judgment dated 31.10.1981, dismissed the suit filed by Ahmed Mujtaba Khan. He also accepted the appeal partly arising out of the suit filed by respondent by declaring that the agreement dated 3.6.1964 was genuine, but the same would not be enforced having become time barred. The learned I-Additional District Judge also allowed the respondent to retain possession of the disputed land, in view of the provisions contained in Section 53-A of the Transfer of Property Act, 1882. The said Ahmed Mujtaba Khan challenged this judgment and decree before this Court in Civil Revision No.12 of 1982, which was heard by Ajmal Mian-J (as he then was), who accepted the revision and remanded the case to First Appellate Court with the following direction:- "I am inclined to hold that the principle enacted in Section 53-A of the Transfer of Property Act (herein-after referred to as the Act) is based on equitable principles evolved by the English Courts. It may be pointed out that one of the cardinal principles of jurisprudence is that one who seeks aid of equity should do .equity and should come to the Court with clean hands. In other words, if there was any breach of the sale agreement on the part of the respondent, he was not entitled to press into service Section 53-A of the Act. This aspect has not been dealt with by the learned Appellate Court. I would, therefore, allow the present revision application and would remand the case to the learned Appellate Court with the direction to examine the question as to whether there was any breach on the part of the respondent at the time of filing his above suit in order to disentitle him to invoke the aid of Section 53-A of the Act." 2. On remand the learned I-Additional District Judge examined the question as to whether the respondent was guilty of the breach of contract at the time of filing his suit and answered it in favour of respondent. By this revision presented on 5.3.1984, the said Ahmed Mujtaba Khan challenged the judgment dated 14.11.1983, recorded by learned I-Additional District Judge, Khairpur. During the pendency of this revision application the said Ahmed Mujtaba Khan died and consequently his legal heirs were brought on record. 3. I have had the beneift of a very careful arguments on both the sides. The question that the agreement of sale dated 3.6.1964, was executed by the parties for a valid consideration stands concluded. The concluding paragraph of the judgment in Civil Revision No.12 of 1982 is self explanatory and for the sake of convenience is reproduced below: - "It was also urged by Mr. Rehman Naqvi that the case may also be remanded to the learned Appellate Court in order to examine whether the sale agreement was a forged document. I am not inclined to remand the case on the above ground as the finding of the learned Appellate Court is supported by the evidence on record." 4. The main controversy between the parties, therefore, centres round the limited point as to whether there was any breach on the part of the respondent to disentitle him to invoke the provisions of Section 53-A of the Transfer of Property Act, 1882. The solemnity of a document ranks higher and forms superior type of evidence than any other form of evidence. The superior type of evidence brought on record in this respect is the agreement of sale itself, which recites as follows:- "I, Ahmed Mujtuha S/O Muhammad Mushtaqeem. ... make covenant and bind myself that I own 2-6 acres of land from survey number 430, eh ingri, taluka Sub-District Registration Khairpur, by virtue of allotment in lieu of my claim. It is in my use and occupation. It has not been purchased from any non-muslim after 1.3.1947. It is not under any ncumbrance. It is mutated in the record of rights in my name and is in my possession. The said land for consideration of Rs.4000.00 is sold to Iqbal Hussain Shah with all rights and privilege attached to it. I have received Rs.310.00 in advance in presence of witnesses. The balance amount would be taken at the time of final registration of the sale deed. The possession of the land has been handed over to the vendee on this date. From this date I and my heirs would have no concern with such land " 5. The essential conditions for the aplicability of Section 53-A of the Transfer of Property Act, 1882, are the following:- '(/') That the agreement should be in writing signed by the party or his agent whom it is sought to bind. (//) That the transferee in part performance of the contract take possession of the property or, if already in possession, should continue in possession and in the latter case should do some act in furtherence of the contract; (Hi) That the transferee seeking to avail himself of the doctrine, should perform or be willing to perform his part of the bargain as contained in the writing; (zv) That when the contract has been partly performed all rights and liabilities under the contract should arise and be enforceable as between the parties to the contract notwithstanding that the transaction has notbeen completed according to law; and (v) That the application of doctrine should not affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. (See the Transfer of Property Act, 1882, by A.K.Ray). 6. Bearing these principles in mind, I shall endeavour to construe the agreement. The final clause isolated from the context would naturally be interpreted as doing nothing by the respondent more than making payment of balance at the time of registration of sale-deed. Even if we read the entire agreement together, I find it difficult to read into the agreement anything beyond what the learned Additional District Judge has observed. He also resolved the limited point on which the case was remanded by this Court in favour of the respondent for the following reasons:- (/) The averments made by respondent in para No.2 of the plaint about his repeated demands for the performance of the part of contract, were replied in evasive manner. ((7) That there was evidence on record to prove that the respondent had approached Ahmed Mujtuba Khan for performing his part of contract, but he was kept on false hopes. (Hi) That yar Muhammad (P.W-3) has testified that the respondent had approached to him in the year 1970 complaining that Ahmed Mujtuba Khan was avoiding to execute registered sale-deed in his favour. 7. Ordinarily, a finding of fact arrived at by a Court having jurisdiction cannot be questioned in a civil revision. Therefore, the fact that this Court might have come lo a different conclusion on the evidence on record by itself will not be a ground for allowing a revision application. The contention that the respondent approached the Court seeking enforcement of contract after a lapse of 14 years is again not indicative of any breach of obligation on his part. It was Ahmed Mujtuba Khan who denied the very execution of agreement, although there is satisfactory evidence to establish it. Ahmed Mujluba han also look 16 long years to approach the Court seeking cancellation of agreement executed by him on 3.6.1964. 8. Mr. Farkhand Ali, learned counsel for applicants has invited my attention to cases reported as Haji Jan Muhammad v. Ghullam Chans and 2 others (1976 S.C.M.R.141), Noordin v. Amar Ali, (1980 C.L.C. 1785), and Rashid Ahmed v. Messrs. Friends Match Works (P.L.D. 1989 S.C. 503). The facts of all these cases are, however, distinguishable. The first case relates to proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, and the agreement of sale which formed the sheet-anchor of the petitioner's case did not exempt him from payment of rent and, iherefore, his conlinucd occupalion of Ihc premises in violation of law could hardly be put forth as a defence or a step towards part performance, when admitledly ihe petitioner had never paid the consideration. In the second citalion ihe acls clone before the contract were not taken lo be done in pursuance of the contract or treated as acts of part performance. The last case proceeds on quite different premises and in that case the entire onsideration was not paid within the stipulated period. The argument of Mr. Farkhand Ali, learned counsel for applicants that the respondent was not entitled to an equitable relief under section 53-A of the Transfer of Property Act, 1882, is effectively answered by the Supreme Court in the case of Hafiz muliammad Yameen and another v. Qazi Ghullam Mustafa and another, reported in 1976 S.C.M.R. 379. 9. The last contention raised on behalf of applicants that the provisions of] section 53-A of ihe Transfer of Property Acl, 1882, are available only as a defence and could nol be invoked for enforcing a righl, is again feeble and fainl. The learned counsel for the applicants should have known that a complete answer to D this contention is provided by a Division Bench in the case of Inayatullah and others v. Shah Muhammad and others, reported in P.L.D. 1961 Lahore 372, in which it was held that section 53-A of the Transfer of Properly Acl, 1882, prolects Iransferee, whelher he comes lo Courl as defendant or plaintiff. 10. For all the above reasons, I see no merits in this revision application which stands dismissed wilh no order as lo cosls. (MBC) Revision dismissed

PLJ 1990 Karachi 238 [Sukkur Bench] PLJ 1990 Karachi 238 [Sukkur Bench] Present: QAISER AHMAD HAMIDI, PROVINCE OF SINDH and 3 others-Appellants | versus AGHA SIKANDAR ALI KHAN-Respondent FRA No. 52 of 1985, dismissed on 9.4.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.I 5(2) (//)—Tenant—Ejectment of—Default—Ground of—Challenge to— Whether default was proved—Question of—It is duty of tenant to pay or tender rent to landlord within time—This liability continues even if landlord demands exhorbitant rent—No serious effort was made by appellants to tender rent to respondent at rate of Rs. 125/- p.m.-Admittedly, appellants neither remitted rent at any time through money orders nor deposited it in office of Rent Controller-Held: Appellants are defaulters and no exception can be taken to finding of Rent Controller-Appeal dismissed. [Pp.240,241&242]B,C&F 1989 CLC 34/•<?/. (ii) Sind Rented premises Ordinance, 1979 (XVII of 1979)-- —S.15(2)(v/7)~ Tenant—Ejectment of—Personal requirement—Ground of— Respondent did not step into witness box to substantiate his claim of personal requirement- Admittedly, respondent is in occupation of other premises belonging to him—Neither it is proved by respondent that premises in his occupation do .not cater for his needs nor details of his family members are disclosed—Held: Demand of possession of premises must be honestly made and landlord cannot get premises vacated simply because he wants it. [Pp.241&242]D&E ~ ; 1984 CLC 2340 and 1984 CLC 3093 distinguishable. (ii'i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S.18—Tenant—Ejectment of—Application for—Whether notice is pre­ requisite-Question of-Tenancy is admitted by appellants-Notice under Section 13-A of Sind Urban Rent Restriction Ordinance, 1959 is on record- Previous litigation between parties ended in compromise after parties entered into an agreement of tenancy-Held: Contention that no notice under Section 18 was served upon appellants before filing ejectment proceedings, is devoid of force. [P.240JA PLD 1981 Karachi 591 & 1982 CLC 500 not attracted. Mr. AH Aslam Jafferi, Advocate for Appellants. Mr. M. H. J. Ghumro, Advocate for Respondent. Date of hearing 6.2.1990. judgment The material facts culminating in this appeal under section 21 of the Sind Rented Premises Ordinance, 1979, briefly, are that premises bearing C.S.No.9/2, situated in Kasai Mohalla, Shikarpur, is owned by the respondent having purchased the same through registered sale-deed on 10.4.1976. The appellants who are running a Primary School in the said premises were served with the requisite notice dated 18.6.1977, sent through Mr. Lai Muhammad Advocate. The failure of the appellants to meet with the demand of respondent led the parties into previous litigation which ultimately resulted into compromise after the appellants promised to vacate the disputed premises within a period of 10/11 months. A dispute then arose between the parties over the quantum of rent, which was referred by appellant No.3 to Executive Engineer, Provincial Building Division, Sukkur for the assessment of rent which was fixed at Rs.1554/- P.M. The appellant No.3 did not accept this rent and asked the respondent to produce rent assessment certificate from Excise and Taxation Department. The Excise and Taxation Department assessed the annual rent at Rs.18,000/- i.e., Rs.l500/-P.M. The appellants, however, refused to make payment of rent at this rate. On 17.6.1982, the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979, before Rent Controller, Shikarpur, seeking ejectment of appellants on the grounds of default in payment of rent, causing damage to the building and personal requirement. 2. The appellants have controverted the allegations based on facts. According to them the agreed rent was Rs.125/- P.M., which they offered to respondent, but he refused to accept the same with effect from August, 1979. It was also pleaded by them that the respondent who is an influential person managed to obtain assessment certificate from Executive Engineer, Provincial Building Division, Sukkur, and Excise and Taxation Department at an exhorbitant rent, which under the existing law they were not bound to pay. The need of respondent to occupy the said premises was also questioned. 3. On the pleadings of the parties the Rent Controller framed the following issues:- (/) Whether opponents have committed wiliful default in payment of rent of the disputed premises? (//) Whether the applicant requires the disputed premises for his personal bonafide use? (///) Whether the opponents have caused damage to the disputed premises? (/V) What should the order be? 4. The respondent has examined his attorney Noor Ahmed A[ha (P.W-1) and A.A/iz (P.W-2), while the appellants examined Irshad Ali (D.W-1), and Ghulam Sarwar (D.W-2). 5. Issue No.3 was not pressed by the respondent, while rest of the issues were decided by Rent Controller, Shikarpur, against the appellants. This order dated 23.5.1985, by which the appellants, were directed to vacate the disputed premises is the subject matter of this appeal. 6. The tenancy is admitted by the appellants. The notice sent to appellants on behalf of respondent in terms of section 13-A of the Sind Urban Rent Restriction Ordinance, 1959 (since repealed) is on record, which has not been disputed. There was previous litigation between the parties which ended in compromise after the parties" entered into an agreement of tenancy. On the face of this admission the contention of Mr. Ali Aslam Jafferi, learned counsel for appellants that no notice as required under section 18 of the Sind Rented Premises Ordinance, 1979, was served upon the appellants before filing the present ejectment proceedings, is devoid of any force. The object underlying the provision of notice under section 18 of the Sind Rented Premises Ordinance, 1979, is to enable the tenant to know whom he is to attorn, which is not in dispute in the present case. The cases reported as Mrs. Madam Femandes v. State Life Insurance Corporation of Pakistan, Karachi (P.L.D. 1981 Karachi 591), andM. Yakoob v. Ch. Barkal Ali (1982 C.L.C. 500), which are relied upon on behalf of appellants are, therefore, not attracted in this case. 7. Admittedly the respondent had demanded the rent at the initial stage at the rate of Rs.l25/-P.M. The copy of earlier ejectment application is on record which confirms this position. Paragraph 2 of the ejectment application, out of which this appeal has arisen, is self explanatory. Section 7 of the Sind Rented Premises Ordinance, 1979, provides that no landlord shall charge or receive rent in respect of any premises, at the rate higher than that mutually agreed upon by the parties. The power to fix fair rent again rests with the Rent Controller and the same cannot be fixed by the Executive Engineer or by the Excise and Taxation Officer. Sections 8 and 9 of the Sind Rented Premises Ordinance, 1979, are clear on this point. Thus the demand of rent by the respondent at the rate of Rs.1500/- P.M. had no legal sanctity and the appellants were obliged to pay rent only at the rateofRs.!25/-P.M. 8. Under the existing law it is the duty of the tenant to pay or tender rent to landlord within time. This liability continues even if the landlord demands an excessive or exhorbitant rate of rent. It does not absolve the tenant to pay or tender the agreed rent. The evidence which has come on record shows that no serious effort was made by the appellants or any one of them to tender rent to respondent at the rate of Rs.125/- P.M., and even if the evidence of Irshad Ali (D.W-1) is taken on face value it does not absolve the appellants from consequences. Section 10 of the Sind Rented Premises Ordinance, 1979, lays down the procedure to be adopted by a tenant when the landlord refuses or avoids to accept the rent. It provides as follows: - "Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated." (4) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the cases pending before the Controllers on the commencement of this Ordinance. 9. Admittedly the appellants did not remit the rent to respondent at any time through money orders. They also made no effort to deposit the same in the office of Rent Controller. They are, therefore, defaulters within the meanings of section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979. I am fortified in my view by the case reported as Pakistan Art Emporium Shop No.C/6 v. Palace Hold, Karachi (1989 C.L.C. 34). No exception can, therefore, be taken to the finding of learned Rent Controller on issue No.l. 10. A point which was touched upon during arguments by Mr. Ali Aslam Jafferi, learned counsel for the appellants may now be dealt with. It is contended that the title of the respondent in respect of disputed premises is in clouds as the Evacuee Trust Board have re-opened this issue. The learned counsel should have known that the answer to a similar contention was provided by the Supreme Court in the case of Malik Wahid Bakhsh v. Mst. Fazal Bibi and others reported in 1985 S.C.M.R. 1256, in the following words: "Moreover, the question whether the property was evacuee trust or not was a matter between the Department and Mst. Fazal Bibi and even if it was such property it was open to the Chairman of the Evacuee Trust Property Board to validate the transfer under section 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975): Considering the circumstance of the case and the conduct of the petitioner, we are satisfied that the refusal by the High Court to grant a writ against the order of his ejectment is not liable to interference by this Court." 11. Clause (vii) of sub-section (2) of section 15 of the Sind Rented Premises I Ordinance, 1979, empowers the Rent Controller to order eviction of a tenant, if; he is satisfied that the landlord requires the premises in good failh for his o\viij occupation or use of for the occupation or use of his spouse or any of his children, id The respondent has sought the eviction of appellants on this ground in para 10 of! his application made under section 15 of the Sind Rented Premises Ordinance,! 1979, which reads as follows:- That the applicant requires the building for his personal bonafide use and he after necessary alterations and developments will use the premises for his residential purposes." 12. The respondent has not stepped into the witness box to substantiate his averments. Noor Ahmed Agha (P.W-1), who is the attorney of respondent has simply shown the requirements of the respondent without placing all the details on record. Admittedly the respondent is in occupation of other premises which belongs to him. In such a situation it was necessary on his part to have proved that the said premises do not cater his needs. Even the details of the family members are not disclosed by the respondent to find out if the premises already in occupation of tlic respondent are not sufficient to accommodate him and his family members. The demand of possession of the premises must be honestly made and the landlord cannot get the premises vacated simply because he wants it. In my view much more cogent and convincing evidence was required in support of .this issue. The cases reported as Sultan Safdar Klian v. Syed Muhammad Raza (1984 C.L.C. 2340), and Mushtaq Ahmad KJian v. Khawaja Mustafa-ul-Hasan (1984 C.L.C. 3093), which are cited by M.H.J. Ghumro, learned counsel for respondent are distinguishable. I would, therefore, decide issue No.2, in favour of the appellants. 13. In the result the appeal is dismissed, but since the success is divided I leave the parties to bear their own costs. The appellants are, however, allowed two months time to vacate the demised premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi 242 (DB) [Sukkur Bench] PLJ 1990 Karachi 242 (DB) [Sukkur Bench] Present: abdul rahim kazi and qaiser ahmad hamidi, JJ Miss RIZWANA SARWAT-Petitioner versus PROVINCE OF SINDH and 2 others-Respondents Const. Petition No. D-125 of 1989, accepted on 28.3.1990 (i) Natural Justice- —Natural Justice—Principles of—Violation of—Whether enquiry conducted by District Magistrate, Sukkur, is without notice to petitioner-Question of~ Contention that postal envelope containing impugned order docs not bear correct address of petitioner and that she never received any notice about holding of enquiry—There is nothing on record to show that any such notice was served on petitioner—Held: Said enquiry is violative of principles of natural justice and cannot be sustained in law—Petition accepted. [Pp.245&246JC,D&E (ii) Res judkutu- -—Permanent Residence Certificate of petitioner-Cancellation of-Prayer for- Dismissal of appeal and constitutional petition against—Subsequent cancellation order by District Magistrate on advice of Home Department— Whether hit by principle of rcs-judicata—Question of—Order of Divisional Commissioner Sukkur dismissing appeal of present respondent No.3, was maintained by High Court and was not challenged in appeal before Supreme Court—That order attained finality and no other officer or authority is competent to nullify same—Held: Home Department or District Magistrate, Sukkur were not competent to reopen issue of certificate to petitioner which has acquired finality. [P.245]A&B 1989SCMR678/T/. Mr. A. M.Mobccn Khan, Advocate for Petitioner. Mr. Muhammad Siddiq Kliaral, Addl. A.G. for Respondents 1&2. Mr. Muhammud Hanif Man$, Advocate for Respondent No 3. Date of hearing 18.2.1990. judgment Abdul Rahim Kazi, J.— The case of the present petitioner as given in the petition is that the father of the petitioner had migrated to and permanently settled in Sukkur in the month of September 1947 after the partition of the Indo Pakistan Sub-continent and in the year 1951 he had acquired the domicile certificate of Sukkur being certificate No./M863 dated 24.7.J951. On 8.11.1951 the father of the petitioner was appointed in the National Bank of Pakistan, a Federal Institution and was posted at Sukkur where the petitioner was born on 28.1.1968. The father of the petitioner then acquired a fresh domicile certificate of Sukkur under the provisions of Pakistan Citizenship Act, 1951 which was issued by the District Magistrate Sukkur on 30.11.1973 which mentions the name of the present petitioner alongwith other family members. That in the year 1974 when the petitioner was a student of primary class, her father was transferred and posted at Karachi and then to Gadani and again to Karachi where he is still in service of the said bank. The petitioner being a minor dependent on her father had to keep moving with him from place to place and ultimately passed her Intermediate examination in Science from Karachi. It is claimed in the petition that the petitioner and her father are permanent residents of Sukkur and their abode at Karachi or other places is only temporary, due to the exigencies of service. The petitioner also applied for domicile and permanent Residence Certificate which were granted to her by the District Magistrate, Sukkur on 13.10.1986 and 22.10.1986 respectively after holding due enquiry. The petitioner also holds National Identity Card issued by the District Registrar, Sukkur. That the petitioner was then granted admission to the MBBS course at Nawabshah Medical College where she was studying in the second year at the time the petition was filed and is now said to be in the third year. The respondent No.3 filed an appeal challenging (he Permanent Residence Certificate issued in favour of the petitioner. The said appeal was dismissed by the Divisional Commissioner Sukkur after hearing both the parties vide his order dated 11.10.1987. The respondent No.3 also filed the Constitutional Petition No.287/1987 before this Court challenging the issuance of the Permanent Residence Certificate. This Constitutional Petition was dismissed in limine vide orders passed on 18.11.1987. The petitioner contends that she has now been informed through ordinary post vide order No.GB(D)3826 of 14.5.1989 and order No.GB(D)4022 dated 22.5.1989 that her PRC in forms (C) and (D) have been cancelled. According to the petitioner the envelope containing the said orders was delivered to her through a friend of her father as the address of the petitioner as given on the postal envelope and the orders has been mentioned incorrectly. The petitioner therefore, filed the present petition praying for the following relief: - "The petitioner, therefore, prays that: (/) it may be declared that the petitioner's domicile certificate dated 13.10.1986 and P.R.C. dated 22.10.1986 of Sukkur district were lawfully issued to her; and that impugned order dated. 14.5.1989 issued by the respondent No.2 on the advice of the respondent No.l cancelling her Domicile Certificate and P.R.C. is illegal, improper, malafidc, without jurisdiction, ultravires, void ab initio, against principles of natural justice and in complete derogation of the rights of the petitioner, and are, therefore, of no legal effect. (2) that any other equitable relief to which the petitioner may be deemed entitled in the circumstances of the case may be granted to her; & (3) that costs of the case be also be awarded to the petitioner." That the respondent No.3 has filed the Counter -affidavit and has contested the petition. In the counter affidavit she has admitted that the petitioner had secured 731 marks while she had secured 730 marks. It is also admitted that she had also filed Constitution Petition No.D-215 of 1987 challenging the grant of Domicile and PRC to the petitioner which was withdrawn as in the meanwhile the respondent No.3 had filed an appeal before the Divisional Commissioner, Sukkur. The case of the present respondent No.3 is that the petitioner is not the permanent resident of Sukkur but for all purposes has shifted to Karachi where the petitioner and her family are residing as the mother of petitioner owns House No.A-20 Block K-17, Federal B Area, Karachi and that the house owned by the petitioner's father at Sukkur has since been sold away by him. The other respondents did not file the counter affidavit. Subsequently both the parties have placed certain documents on record. We have heard the learned counsel for the parties and the Additional Advocate General, Sindh. Mr. A.M.Mobcen Khan the learned counsel for the petitioner has submitted that the earlier Constitution Petition filed by the present respondent No.3 being petition No.287/1987 was dismissed by a Division Bench of this Court by an elaborate order and therefore, the same points cannot be agitated in the present petition. He has placed reliance on the case of All Muzaffar v. Mst. Aintul Begum and 3 others (1989 SCMR 678). He has referred us to an order of the Wafaqi Mohlasib (Ombudsman) Islamabad passed on 9.5.1989 which has been placed on record by the respondent No.3. This order shows that subsequent to the dismissal of C.P.No.D-287/87 she had filed an appeal before the Wafaqi Mohtasib and the same was disposed off by the said order. The operative part of the order reads:- "I am happy that the grievance of the complainant girl has been redressed but this could have been much earlier if the Deputy Commissioner Sukkur would have known his powers and taken action with reference to letter No.4/98/80-Citz dated 22.04.1984. Equally, the Ministry of Interior which issued such instructions did also not recollect to remind the Deputy Commissioner soon after the complaint was moved. This is why the process took more than six months. Anyhow the complaint is disposed of accordingly having borne fruit." The learned counsel for the petitioner has further submitted that the impugned order dated 14.5.1989 shows that her certificate has been cancelled under the advice of the Home Department, Government of Sindh who were not the competent authority nor the Home Department is the appellate or revisional authority under the provisions of the Sind Permanent Residence Rules, 1977. I has also been urged by the learned counsel that the cancellation of the certificate under the impugned order is without notice to the petitioner. Mr. Muhammad Hanif Mangi, the learned counsel for the respondent No.3 has submitted that the petitioner had shifted away from Sukkur and had obtained the said certificate through fraud and misrepresentation and, therefore, the same was rightly cancelled. He has further submitted that under the directions of Home Department, after the complaint was made to the Wafaqi Mohtasib, an enquiry was held and it is on account of the outcome of the said enquiry that the certificate of the petitioner was cancelled. He has submitted that the notice of holding of the said enquiry was sent to the petitioner on the Karachi address and the same is deemed to have been received by her. We have given anxious consideration to the submissions of the learned counsel for the parties. At the very outset it may be pointed out that the orders passed by the Wafaqi Mohtasib are not in the nature of any directions but the same show that the complaint of the respondent No.3 seems to have borne fruit and thus the same is disposed off. The matter of issuance of P.R.C. is a Provincial matter and does not fall within the ambit of the powers of Wafaqi Mohtasib. It may also be observed that the impugned order is passed by the District Magistrate Sukkur on the advice of the Home Department. Now the Home Department is neither the appellate nor Revisional authority and their advice as such would not have any legal force. The order passed on 18.11.1987 by the Court in Const. Petition No.D-287/87 shows that order of Divisional Commissioner Sukkur dismissing the appeal of the present respondent No.3 was maintained. This order was not challenged in appeal before the Hon'ble Supreme Court and as such this order had attained the finality and no other officer or authority is competent to pass any order having the effect of nullifying this order. In the case ofAHMuzaffar, v. Msl. Annul Begum (1989 SCMR 678) iheYlon'ble Supreme Court has held:- "In this petition for special leave to appeal the High Court affirmed the finding of the Additional District Judge and the trial Court that the decision of the High Court in a writ petition earlier brought by the petitioner himself operated as res judicata in this case. After hearing the learned counsel, we are not persuaded that the said finding suffers from any infirmity. Leave to appeal is refused." From the above discussion it can safely be concluded that the Home Department or the District Magistrate Sukkur are not competent to reopen the issue of the certificate issued to the petitioner which has acquired finality in the appeal decided by the Divisional Commissioner which decision has been maintained by this 'Court in the earlier Constitution Petition filed by the respondent No.3. The other point to be considered in the present matter is as to whether the said enquiry alleged to have been conducted by the District Magistrate is without notice to the petitioner. The petitioner has placed on record the postal envelope wherein she claims that the impugned order was sent to her and that this envelope was given to her by a friend of her father as her correct address has not been, mentioned in the envelope. The envelope shows the address: Miss Rizwana Sarwat D/o Syed Shahid Hussain Rizvi, H.NoA 20, Federal 'B' Area, Karachi . The appellant claims that the Federal 'B' Area Karachi is divided in a number of Blocks and each Block has house No.A-20. According to record her correct address is: House No.A-20, Block K-17, Federal 'B' Area, Karachi . The petitioner has submitted that the above envelope contained the impugned order and that she had never received any notice before this informing her about the holding of the enquiry. The learned Additional Advocate General on enquiry from us has stated that there is nothing on the record to show if any such notice was served on the petitioner. In view of the above position we have no hesitation in holding that the satd enquiry is without notice to the petitioner and is violative of the principles of natural justice and cannot be sustained in law. In view of the above discussion we accept this petition and declare that the cancellation of the Domicile and Permanent Residence Certificate of the petitioner by the District Magistrate Sukkur vide his order dated 14.5.1989 is without lawful authority and of no legal effect. However, there will be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Karachi 246 (DB) PLJ 1990 Karachi 246 (DB) [Sukkur Bench] Present: QAISER AHMAD HAMIDI AND ABDUL RAHIM KAZI, JJ AIJAZ AHAMD and others-Petitioners versus DISTRICT COUNCIL, SUKKUR and others-Respondents Const. Petition No. D-268 of 1989, (also other petitions) accepted on 14.3.1990 (i) Constitution of Pakistan 1973- —Art.lSl-Hides and skins of animals-Export from local limits of urban areas- -whether District Council can impose export tax-Question of~Respondent No. 2 has established an octroi post on highway leading to Punjab where export tax is collected—Held: Besides being ultravires, this recovery is violative of Article 151 of Constitution and imposition of such a tax is destructive to national integration. [Pp.249&250]D 1990 MLD 317 and AIR 1962 SC 1406 ret . (it) Peoples District Council Export Tax Rules, 1976- —-Rr.2(/) & 2(/j)-Hides and skins of animals-Export from local limits of urban areas-Whether District Council has authority to impose export tax-Question of-Rule 2(/) defines District Council limits as limits of revenue district excluding limits of peoples Municipalities and Town Committees-Export is defined in Rule 2(/i) as export from District Council Limits-Held: Petitioners are exporting hides and skins out of local limits of urban areas not covered by Rule 2(/) and recovery of export tax from them is illegal and without lawful authority-Petitions accepted. [P.249]A,B&C 1986 CLC 533, PLD 1989 Karachi 136 1985 CLC 1843, and PLD 1978 Lahore 387 rel. Mr. Abdul Fateh Malik, Advocate for Petitioners. Mr^Arbab KJian Ghoto, Advocate for Respondents 1,3 & 4. M/s All Aslam Jafferi and Nizamuddin Balouch, Advocates for Respondent No 2. Mr. Muhammad Siddique Kliaral, Addl. A.G. for State. Date of hearing 14.2.1990. judgment Qaisar Ahmed Hamidi. J. Since common question of law is involved in all these petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, they are being disposed of by a consolidated judgment. 2. The petitioners deal in the sale of hides and skin of animals having their place of business at Sukkur, Mirpur Mathelo, Daharki, Rohri, Ghotki, Pano Akil, and Ubaure, falling within the limits of Town Committee, Municipal Committee, and Municipal Corporation. The grievance of the petitioners is that although they are exempted from payment of export tax in respect of goods which are exported from urban area, the respondent No.2 who is contractor of respondent No.l, viz, District Council Sukkur, for the collection of export tax, and who has established two octroi posts for this purpose, one at Sukkur, near Central Prison and the other at Khamoon Shaheed, near Ubaure, has been adopting coercive measures for recovery of export tax on such goods in violation of law. The illegal recoveries made by respondent No.2, led the parties into this litigation. The petitioners have approached this Court with a prayer that a declaration may be granted that all actions taken or intended to be taken by the respondents in the wake of effecting recovery of 'export tax' on hides and skins of animals exported from urban areas are without legal authority and the respondents may further be restrained from effecting recovery of 'export tax' on the said goods. 3. The respondents have disputed the case of the petitioners. According to them the hides and skins of the animals which are being exported are collected by the petitioners from the areas falling within the limits of District Council Sukkur, and consequently they arc liable to pay export tax. It is also pleaded by the contesting respondent that a factual controversy is involved in all these petitions, which cannot be resolved in constitutional jurisdiction, specially when an efficacious remedy was and is available to the petitioners. 4. The matter of levy of 'export tax' by the District Councils has come up for consideration at number of times in different petitions, some of them may be cited as follows:- (/) Messrs Ravi Ravon Ltd. v. Commissioner, Lahore Division, Lahore and 2 others, (P.L.D. 1978 Lahore 387). (//) Kotri Association of Trade and Industry v. Government of Sind and another, (1982 C.L.C. 1252). (Hi) Wazir All Industries Ltd. and another v. Tlie Secretary to Government of Sind (Local Government) and 2 others, (1985 C.L.C. 1843). (/v) Messrs Kliyber Electric Lamps Manufacturing Limited and others v. Chaimian, 'District Council, Peshawar and another, (1986 C.L.C. 533). (v) Mirpurkhas Sugar Mills Ltd v. District Council, Tliarparkar and 2 others, (1990 M.L.D. 317). 5. The genesis and validity of the 'export tax' has been found in the Memorandum of Principles governing local taxes circulated by Government of India in 1914, according to which "although the local taxes should be on 'imports' only, 'exports' as well as 'imports' might be taxed in places where its Municipality is a large centre of 'export' trade." 6. Item 27 of Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973, relating to Federal Legislative List deals with import and export across customs frontiers in the following words:- "Import and export across customs frontiers as defined by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries, standard of quality of goods to be exported out of Pakistan." The inter-district or inter-provincial transport of goods cannot be equated with the import and export across customs frontiers of the country. Therefore, the imposition of 'export tax' being a provincial subject it is within the competence of the Provincial Legislature to impose such tax. The Constitution of Islamic Republic of Pakistan, 1973, has not brought any change in it. The cases reported as Kotri Association of Trade and Industry v. Government of Sind and another, (1982 C.L.C. 1252) and Mirpurkhas Sugar Mills Ltd. v. District Council, Tliarparkar and 2 others, (1990 M.L.D. 317), are relevant on this point. In the latter citation a Division Bench of this Court observed: - "A passing argument was made for the petitioners that even where goods are destined for a location within a province any levy of export tax in relation thereto would contravene Article 151(1) of the Constitution as the freedom is a country wide one. Such argument was repelled in Kotri Association of Trade v. Government of Sind, 1982 C.L.C. 1252, in which one of us, namely, Saleem Akhter J was a party on holding that it was only inter-provincial trade, that is trade between provinces, which was guaranteed and not intra-provincial trade, that is trade within a province." 7. The record shows that the petitioners have their place of business falling within the limits of urban area. The terms 'urban area' and 'rural area' were examined by a Division Bench of this Court in Messers Baba Corporation (P\'() Ltd. v. Province of Sind through Secretary Local Bodies and 3 others reported m P.L.D. 1989 Karachi 136, wherein it was observed that the areas within the jurisdiction of Town Committee, Municipal Committee, Municipal Corporation, etc. are urban areas and the Union Council which is constituted only in respect of rural area was not competent to levy octroi in respect of urban areas. 8. Rule 2(f) of the People's District Council Export Tax Rules, 1976, defines "District Council Limits" as limits of the revenue district excluding the limits of People's Municipalities and Town Committees. Rule 2(h) of the said rules further defines export as an export from the District Council Limits. The word 'export' was examined in Messrs. JKJiyber Electric Lamps Manufacturing Limited and others v. Chairman, District, Council, Peshawar and another, reported in 1986 C.L.C. 533; wherein it was held:- "It is manifest that the meaning of the word 'export' is two-fold. Firstly, it means taking out the goods abroad and, secondly, taking the goods out of the limits of a province, district or municipality for any destination within the country." 9. On the face of the record the petitioners are exporting hides and skins of animals out of local limits of urban areas, which do not fall within the purview uf rule 2(f) of the Peoples District Council Export Tax Rules, 1976, and the recovery of export tax from them is illegal and without lawful authority. The case of Wuzir Ali Industries Ltd. and another v. The Secretary to Government of Sind (Local Government) and 2 others, (1985 C.L.C. 1843) is a direct authority on this issue, in which the relevant question was answered in the following words: "With the result that for the purpose of imposition of toll on the export of goods, i.e. RAWANGI MAHSOOL the limites of peoples municipalities and town committees are excluded and, therefore, the levy is ultravires of the power of the respondents district council." The case of Messrs. Ravi Rayon Ltd. v. Commissioner, Lahore Division, Lahore, Reported in P.L.D. 1978 Lahore 387, upon which much emphasis is laid by learned counsel for respondent No. 2, was considered in the above cited authority of a Division Bench of our Court and was not found to be relevant. 10. The contention of learned Counsel for respondents that hides and skins of animals are collected by the petitioners from rural areas falling within the jurisdiction of respondent No. 1 appears to be feeble and weak. Under the existing rules a District Council is competent to recover export tax/rawangi mahsool when the goods so notified are taken out from rural areas to urban areas. The recovery of export tax, by whatever name called, if allowed in the manner as is being done, would again lead to multiple taxation. The petitioners had no other efficacious remedy and, therefore, they have rightly selected this forum. 11. For all the above reasons the above petitions are allowed and it is declared that the respondents are not entitled to recover export tax, by whatever name called, on the petitioners goods, viz, hides and skins of animals originating from their offices situated in urban areas, and they are restrained from recovering the same. 12. Before we part with this judgment, it is necessary to point out that the respondent No. 2, has established an octroi post on national highway near D baure, leading to Province of Punjab . There are receipts on record to show that 'export tax' was collected at this octroi post also. Besides being ultravires, this recovery is violative of Article 151 of the Constitution of Islamic Republic of Pakistan, 1973. The imposition of such a tax is destructive to national integration. If any authority is needed reference may be had to cases reported as Mirpurkhas Sugar Mills Ltd v. District Council, Tltarparkar and 2 others (1990 M.L.D. 317), and a judgment of Indian Supreme Court in Automobiles Transport v. State of Rajasthan, (A.I.R. 1962 S.C. 1406), wherein it was observed that, if the tax is one which is directly and immediately laid on trade or commerce and also on trade and commerce in movement, it would be violating the freedom of trade and commerce. 13. In the result all the petitions are accepted with no order as to costs. The CM A No. 592 of 1989 has become infructuous and is dismissed accordingly. (MBC) Petitions accepted.

PLJ 1990 Karachi 250 (DB) PLJ 1990 Karachi 250 (DB) [Sukkur Bench] Present: QAISI R Al IMAD HAMIDI AND ABDUL RAIIIM KAZI, JJ ABDUL AZIZ-Pctilioner versus INSPECTOR GENERAL OF POLICE, SINDH and others-Respondents - Const. Petition No. D-130 of 1990, dismissed on 9.4.1990. (i) Constitution of Pakistan, 1973-- —-Art. 212(2)-Police Official-Removal from service of-Challenge to-- Whether High Court has power of review—Question of—Contention that superior Courts have always powers to review decision of authorities when their findings are in violation of rules and impugned order is void ab-initio— Held: It is now well settled that jurisdiction of High Court is ousted in regard to all such matters which fall within authority of Service Tribunal to adjudicate—Petition dismissed in limine. [P.253JD&E PLJ 1987 SC 319 and 1988 PLC 746 distinguished. (ii) Constitution of Pakistan, 1973-- —Art. 212(2)-Police Official-Removal from service of-Challenge to- Whether High Court has jurisdiction to review order of Service Tribunal- Question of—Prayer of petitioner relates to a matter falling within exclusive jurisdiction of Sind Service Tribunals Act—Jurisdiction of High Court has been ousted—Held: ouster of jurisdiction of High Court under clause (2) of Art. 212 being of constitutional nature, it necessarily curtails its jurisdiction. [Pp.251&252]A, B&C PL.D 1981 Karachi 290. PLD 1981 Karachi 750 and PLD 1981 Peshawar 1 rel. Mr. Manzar Alain, Advocate for Petitioner. Date of hearing: 9.4.1990. judgment Qaisar Ahmed Hamidi, J.~The question that has been raised in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), relates to the interpretation of clause (2) of Article 212 of the Constitution. 2. Petitioner Abdul A/iz, a police constable was proceeded against under the provisions of Sindh Police (Efficiency and Discipline) Rules, 1988, by Senior Superintendent of Police, Sukkur, the respondent No.3, who awarded him penalty of removal from service vide order dated 17.4.1989. The petitioner filed an appeal under rule 13 of the Sind Police (Efficiency and Discipline) Rules, 1988, before Deputy Inspector General of Police, Sukkur, who converted the order .of removal from service into compulsory retirement from service. A mercy petition was then filed before Inspector General of Police, Sind, Karachi, but without success. The petitioner has, therefore, approached this Court with the following prayer:- "a. To declare the removal order dated 17.4.1989 passed by the respondent No.3 as illegal, void, in violation of Sindh Police (E&D) Rules 1988 and a nullity in the eyes of law, and subsequent orders passed by the respondents No:l and 2 are also illegal and void. b. That it may also be declared that the petitioner is entitled for re­ instatement in service with full back benefits." 3. Article 212 of the Constitution provides as follows:- "212. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of- (a) matters relating to the terms and conditions of persons -(who are or have been) in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matters which may be pending before such other court immediately before establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court), shall abate on such establishment): Provided that the provisions of this clause shall not apply to an I Administrative Court or Tribunal established under an Act of a provincial Assembly unless, at the request of that Assembly made in the form of a ' resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order o sentence of any Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." 4. The prayer of the petitioner which we have reproduced above relates to a matter falling within the exclusive jurisdiction of the Sind Service Tribunals Act, 1973. The jurisdiction of the High Court in respect of service matters has been ousted to the extent of the jurisdiction of Service Tribunal. The cases reported as Abdul Bari vs. Government of Pakistan and 2 others, (P.L.D. 1981 Karachi 290, Ktialil-ur-Rehman and others vs. Government of Pakistan and others (P.L.D. 1981 Karachi 750), and Mian AmanulMulk vs. N.W.F.P. through Chief Secrclaiy (P.L.D. 1981 Peshawar 1) are leading judgments on this point: In the first cited authority a Full Bench of this Court held as follows:- "The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service." 5. Under the previous Constitution, the High Courts could interfere in service matters only where there was any violation or infringement of law. The Service Tribunals which are quasi-judicial bodies can go into the merits of the case and interfere with the discretion of .departmental authorities. It was, therefore, necessary to confer exclusive jurisdiction upon such Tribunals. "Accustomed as we have been in our day-to-day administration of justice to the interpretation of numerous statutes, we are apt to lose sight of the fact that the Constitution is unlike most of the statutes that we came across and has to be judged from somewhat different standards. The Constitution is the very framework of the body policy: its life and soul; it is the fountain-head of all its authority, the main spring of all its strength and power. The Executive, the Legislature, and the Judiciary are all its creation, and derive their sustenance from it. It is unlike other statutes which can be at any time altered, modified or repcaled."(Bindra's Interpretation of Statutes, 7th Edition). Therefore, where the ouster of jurisdiction of High Court under clause (2) of Article 212 of the Constitution, being of constitutional nature, it necessarily curtails its jurisdiction. ~ 6. Again where the law provides a remedy by way of an appeal to a Special Tribunal fully competent to give the relief sought, any indulgence to the contrary by the High Court is bound to produce a sense of distrust to such Tribunal. If any authority is needed reliance may be placed upon the case of Mcssers Shahid Agency vs. 77i<? Collector of Customs (Appraisement) and another, reported in 1989 C.L.C. 1938. 7. Mr. Man/ar Alam, learned counsel for the petitioner has, howcvcr,contcnded that the superior Courts have always the powers to review the decisions of authorities when their findings are in violation of rules and the impugned order is void ab-initio. He has placed reliance upon the cases reported as Pakistan vs. Public at large (P.L.J. 1987 S.C. 319), and St. Jade's Secondary' School and others vs. Employees' Old-Age-Benefits Institution and another (1988 P.L.C 746). None of the above authorities has got any application to the facts of this case. 8. On the careful review of the case law on this point, we are clearly of the view that it is now almost well settled that the jurisdiction of the High Court is ousted in regard to all such matters which fall within the authority of Service Tribunal to adjudicate. The present petition is wholly misconceived, and is dismissed in iunine. C.M.A No.265 of 1990 is also dismissed. (MBC) Petition dismissed.

PLJ 1990 Karachi 253 [Sukkur Bench] PLJ 1990 Karachi 253 [Sukkur Bench] Present: oalsar AHMAD HAMIDI, J ABDUL MANNAN and anothcr-Petitioners versus CHAIRMAN, WAPDA and another-Respondents Civil Revision No. 5 of 1984, dismissed on 25.3.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —O.I, R.9--Parties to suit—Non-joinder of—Whether suit is to be dismissed— Question of—Provisions of Order I Rule 9 are self-explanatory—Held: No suit can be defeated for mis-joinder or non-joinder of parties-Petition dismissed. • [P.25<)]D&E. (ii) Land Acquisition Act, 1894 (1 of 1894)-- —Ss.3(</) & 18-Land-Acquisition of-Crops-Compensation for-Claim of~ uncler Section 3(a) land includes benefits to arise out of land and things attached to earth or permanently fastened to anything attached to earth-­ Standing crops and trees arising out of land fall within mischief of Section 3(cr)—Held: Applicants who are obviously dissatisfied with amount of compensation, had a remedy under Section 18 of Act which they failed to avail. [P.255JA&B (iii) Land Acquisition Act, 1894 (1 of 1894)-- —-S.18 read with Civil Procedure Code, 1908, O. VIII R. 2-Land-Acquisilion of—Crops—Compensation for—Claim of—Contention that under Order VIII Rule 2 of CPC, defendant must raise all matters which show suit not to be maintainable or that transaction is otherwise void and non-raising of all such grounds of defence, would take opposite party by surprise—Provisions of Section 18 of Act were pressed into service before trial court and appellate court-Held: No prejudice is caused to applicants and they were not taken by surprise. [P.256]C PLD 1969 Peshawar 241, PLD 1972 SC 25 and PLD 1972 Karachi 507 distinguished. Mr. Lai Muhammad, Advocate for Petitioners. Mr. Abdul Rehman Baloch, Advocate for Respondents. Date of hearing: 15.1.1990. judgment This revision application filed under section 115 C.P.C. is directed against the judgment and decree dated 28.11.1982, passed by learned District Judge, Shikarpur, whereby he set aside the judgment and decree dated 31.3.1982, passed by Senior Civil Judge, Shikarpur, decreeing the suit filed by applicants against the respondents for rendition of accounts. 2. The applicants were the owners of agricultural land comprising S.Nos.86,87 and 88, Deh New Lali, Taluka Shikarpur. The-respondents acquired 3 acres out of this land under the provisions of Land Acquisition Act, 1894, and were paid compensation amounting to Rs.5578-10, which was received under protest. It is the case of applicants that compensation was in respect of agricultural land only and the compensation for standing crops and trees was to be paid in due course of time after making assessment and evaluating their price. The refusal of the respondents to make compensation in respect of crops and trees led the parties into this litigation. 3. The respondents while admitting about certain references made to Mukhtarkar Shikarpur and Forest Department about the assessment of damage, pleaded that the suit was not maintainable. 4. The trial Court framed as many as eight issues including that of maintainability of suit and on the assessment of evidence, both oral as well as documentary, decided all of them against the respondents. The respondents went in appeal before learned District Judge, Shikarpur, who reversed the findings of learned Senior Civil Judge, Shikarpur, holding that the suit was not maintainable for the following reasons:- (/) That the suit was barred under section 18 of the Land Acquisition Act, 1894. (ii) That the suit for rendition of accounts was not competent, as there was no relationship existing between the parties to require the respondents to render accounts. (Hi) That the suit was bad for non-joinder of necessary parties. It is in these circumstances that the present revision application has been filed. 5. I have heard Mr.Lal Muhammad, learned counsel for applicants and Mr. Abdul Rehman Balouch, learned counsel for respondents. 6. Admittedly the land in question was acquired by Land Acquisition Officer, LSR, II WAPDA, Sukkur, in the year 1974 and the copy of award is on record of this Court. I cannot do better than quoting the relevant extracts of this award in extenso:- "The Khatedars claim rate of Rs.6000/- per acre on the ground that the land is about 2-3 miles away from Shikarpur Town and is adjacent to main road leading from Shikarpur to Kandhkot. The rate claimed by the Khatedars is excessive and can not be accepted. The average rate of land supplied by the Sub Registrar Shikarpur is Rs.668/- per acre. This rate is also not satisfactory, in view of the fact that the prices of the land have increased considerably in the recent past. I have seen the lands of this deh. S.No.87 is garden area and there is Tubewell in S.No.86. Besides the land is close to the road leading to (?) Shikarpur to Kandhkot road. I, therefore, fix rate of Rs.1800/- per acre for S.No.86 and 87 at Rs.1600/- per acre for S.No.88. They are also allowed emergency charges of Rs.15% and interest @ Rs.6% for one year. As regards payment of compensation money, the father of the boys states that he has transferred the above S.Nos. in the names of his sons for education purpose. He (opened) separate Joint account for them in United Bank Shikarpur vide Account No.C-744. The cheques may be issued in the names of his sons including minor son Abdul Hanan and sent to the United Bank for credit in the • account subject to the condition that the share of minor son will not be withdrawn till he reaches maturity." The 'land' as defined in section 3(a) of the Land Acquisition Act, 1894, includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, the standing crops and trees arising out of 'land' fall within the mischief of section 3(a) of the said Act. A person dissatisfied with the award made and filed y the Collector has ot a right to apply for a reference under section 18 of the Land Acquisition Act, 1894. The applicants who are obviously dissatisfied with the amount of compensation had a remedy under section 18 of the Land Acquisition Act, 1894, which they failed to avail. The non-receipt of notice under section 9 of the Land cquisition Act, 1894, is no bar for making a claim. The award, the xtracts of hich are reproduced above, makes it clear that Haji Ghous Bux, father of applicants was associated with these proceedings and the compensation was received without any protest. 7. The Land Acquisitio Act, 1894, is a complete code in itself. It has created a special jurisdiction and provided a special remedy to the persons aggrieved. This jurisdiction is exclusive and cannot be exercised by ordinary civil Court. No waiver or consent by the parties can confer such jurisdiction upon civil Courts. In determining the jurisdiction we must see the pith and the substance of the relief and not its form. 9. Mr. Lai Muhammad, learned counsel for applicants has assailed the above finding of the learned District Judge mainly on the ground that there was no such issue. He has in particular invited my attention to the provisions of Order VIII, rule 2 C.P.C., which lay down that the defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise,,or would raise issues of fact not arising out of the plaint, as, for instance, raud, limitation, release, payment, performance, or facts showing illegality. Reliance is placed upon cases reported as Ghullam Mustafa v. Haji Mian Muhammad and another (P.L.D. 1969 Peshawar 241), Mst. Kliainmisa and 6 others v. Malik Muhammad Ishaque and 2 others (P.L.D. 1972 S.C. 25), and Municipal Committee of Shahdadpur v. Jumo Khan and another (P.L.D. 1972 Karachi 507). The facts of all these cases are, however, distinguishable. The provisions of section 18 of the Land Acquisition Act, 1894, were pressed into service before the trial Court as well as before the Appellate Court. No prejudice appears to have been caused to applicants and they were not taken by surprise. The Court is bound to take notice of any ground of illegality or want of jurisdiction appearing on facts stated in the pleadings r disclosed otherwise. The legal issue about the maintainability of suit, therefore, also covered this aspect of the case. 10. The finding of the learned District Judge about the incompetency of suit for rendition of accounts is also not open to exception. Obviously there was no relationship existing between the parties to require the respondents to render accounts. The case reported as Nazir Muhammad Klian and 2 others v. Muhammad Ashraf KJian and 3 others (P.L.D. 1975 Karachi 598) is relevant on this point. 11. Certain admissions made by the respondents have been made as basis by learned counsel for applicants for seeking relief in the manner as prayed for. The answer to this contention is provided by A.S.Faruqi-J, in Kassimali Alibhoy v. Shaikh Abdul Satlai; reported in P.L.D. 1966 Karachi 75, who pleased to observe:- "Therefore, when factual admission as accompanied with a qualification that the suit itself is not maintainable or that the claim suffers from a legal difficulty, it cannot be said that the admission is unqualified." 12. The question relating to non-joinder of parties need not detain me long. No suit can be defeated for mis-joinder and non-joinder of parties. The provisions of Order I, rule 9 C.P.C. are self explanatory. 13. For the reasons given above the revision application fails and is hereby dismissed, but in the circumstances of this case, I would leave the parties to bear their own costs. (MBC) Petition dismissed.

PLJ 1990 Karachi 257 PLJ 1990 Karachi 257 Present: ABDUL RAHIM KAZI, J HASSAN AQDAS-Pctitioner versus MIR MUHAMMAD and others-Respondents Civil Revision No. 17 of 1985, accepted on 223.1990. Civil Procedure Code, 1908 (V of 1908)-- —O. VIII R. 10~Written statement-Non-filing of~Penal consequences- Whether correctly imposed-Question of-Summons were issued to petitioner requiring him to file written statement—Provisions of Rule 10 provide that defendant either may file his written statement of his own and may file same if so required by court—Penal consequences can be imposed where written statement is not submitted by .defendant when required by court to do so Trial court has discretion to pass judgment straight away or to pass any othe order as he thinks fit-Agreement of sale was executed in 1972 while suit foz specific performance was filed in 1981-Limitation under Article 131 of Limitation Act, was 3 years—Contention that subsequent to agreement, some payments were made to vendor and period of limitation is deemed to have been extended—Held: Trial court should have taken this legal aspect into consideration before passing judgment—Petition accepted ard case remanded. I Pp. 258&26fl]A,B,C&D 1987 SCMR 1365, PLD 1987 SC 22 and 1989 SCMR 107 ref. Mr. M. Sadik Khun, Advocate for Petitioner. Mr. Haj] Ahsanullah Shaikh, Advocate for Respondents. Dates of hearing: 19.2.1990,13 and 22.3.1990. judgment This revision has been filed by the applicant assailing the judgments of the two courts below. Briefly the facts are thai the present respondents had filed a suit bearing No.41/1981 for specific performance of the contract and permanent injunction which was presented in the court of Joint Civil Judge, Shikarpur on 20.5.1981. The present respondents/Plaintiffs had contended that the house bearing C.S.No.294/1-2 Ward 10 of Shaikh Mohalla, Shikarpur was owned by the present applicant who had entered into an agreement to sell the same to one Abdullah Shaikh the ancestor of the present respondents for valuable consideration of Rs.12,000/- of which Rs.6,000/- was paid at the time of execution of agreement to sell while from the remaining amount Rs.500/- and Rs.750/- were paid subsequently. It is further submitted that the said Shaikh Abdullah expired on 22.3.1975 and subsequently one of his LRS. Haji Nazar Muhammad had also died in June, 1979. It is further the case of the present respondents in their plaint that on 21.3.1981 the present applicant had issued a notice to the present respondents nd therefore, the cause of action having accrued, the said suit was filed. It is ertinent to note that the present respondents have not mentioned any dates about the sale agreement or the dates on which the different payments were made. However, the agreement of sale and the receipts are appended with the plaint which show that agreement was executed on 2.10.1972 wherein it was provided that the present applicant would execute registered sale deed within one month after complying with the formalities as required under law. The two receipts are also attached with the plaint. One receipt of Rs.500/- does not bear ', . any date while the other receipt of Rs.750/- is dated 29.9.1974. After filing of the above suit the notice for appearance and filing of the written statement was bein issued to the present applicant from time to time. Lastly the notice was issued to the present applicant on 18th July, 1983 requiring him to appear in person or through an advocate duly authorized for filing of the written statement as the matter was fixed for written statement on that date. On this date the present applicant appeared in the Court and applied for adjournment and suit was adjourned to 7.9.1983. On this date again application was moved by the present applicant seeking time to file the written statement which was allowed and the suit was adjourned to 20.9.1983. On this date the diary of the suit shows that the learned Presiding Judge was doing election work and, therefore, the suit was put off to 10.10.1983. On 10.10.1983 the defendant and his advocate were absent and, therefore, suit was decreed under the provisions of Order 8 Rule 10 CPC. Appeal was filed before the District Judge which was also dismissed and, therefore, the present revision application was filed by the present applicant. I have heard Mr. M. Sadik Khan, the learned counsel for the applicant. He has submitted that the suit could not have been decreed under Order 8 Rule 10 CPC as the same did not apply to the present case. is submission is that there is no order passed by the learned trial court "requiring" the present applicant to file his written statement and, therefore, the learned trial Judge could at the most pass an order under second part of Rule 10 of Order 8 C.P.C. He has placed relianc on the case of Sardar Sakhawatiiddin v. Muhammad Iqbal (1987 SCMR 1365). Mr. Ahsanullah Shaikh, the learned counsel for the respondents ha submitted that the summons which were issued to the present applicant in the suit show that the suit was fixed on 10.3.1983 for written statement and that he was required to file the written statement on the said date and that subsequently on two occasions suit was adjourned for the same purpose which would impliedly ' mean that he was required to file the written statement and having failed to do so the learned trial Judge has rightly decreed the suit under the provisions of Order 8 rule 10 CPC. He has placed the reliance on the case of Mst. Hakwnat Bibi v.. ' Imamdin and others (PLD 1987 S C 22). He has further relied on the case of Lahore Municipal Corporation v.Messers Awan Contractors (1989 S C M R 107). ' , I have carefully considered the arguments of the learned counsel for the parties and the case-law cited by them. From the record of the suit it appears that the summons were issued to the present applicant whereby he was required to file the written statement and, therefore, it cannot be said that he was not so required. It may also be observed here that the provisions of Order 8 Rule 10 CPC provide: "The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." This shows that the provisions of this Rule provide that the defendant either may file his written statement of his own or may file the same if so required by the Court. In the case of Mst. Hakumat Bibi Hon'ble Supreme Court in some-what similar case has held as under:- "It was also explained that if in the judgment so pronounced the reason ' given by the Court is that the defendant had failed to file the written statement then it becomes a judgment contemplated by Rule 10. It is true that the power given to the Court by this rule to pronounce the judgment against the defendant is discretionary and it may or may not pronounce L the judgment against the defendant where the written statement has not been filed. Undoubtedly while exercising its discretion the Court will take into consideration all the facts and circumstances of each case. I-Jut where the discretion has been exercised and judgment pronounced the same is not normally to be interfered with. But where it is exercised arbitrarily the appellate Court can always intervene. However, where the discretion has been exercised judiciously and judgment pronounced the same will be valid and legal, judgment even though it has been passed without recording any evidence whatsoever." This has also been held in the case of Lahore Municipal Corporation v. Messers Awan Contractors wherein their lordships have held:- "The matter was decided in favour of the respondents-plaintiffs by the application of a rule of penalty-Order VIII, rule 10 CPC on the failure of the petitioner to file written statement when required by the Court to do so. When these petitions were filed, there was no authoritative pronouncement of this Court regarding interpretation of the said penal provision. A recent judgment of this Court in the case of Msl. Hakumat Bibi v. Imamdin (PLD 1987 SC 22), has dealt with its import." The learned counsel for the applicant has laid much emphasis on the proposition laid down in the case of Sardar Sakhawatuddin v. Muhammad Iqbal. In this case their lordships in the Supreme Court have observed that there are three types of written statements that can be filed under the provisions of Order 8 of the Civil Procedure Code which are as under:- (1) As of right without any formal permission of the Court (Rule 1) (2) When it is so required by the Court to file a written statement (Rule 1 and Rule 9) (3) When under some circumstances it is by the leave of the Court (Rule 9)Dealing with this position their lordships have further observed as under:- "It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos.l and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required"-as is indicated in item No.2 above would follow. As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule 3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd. Karachi P L D 1969 Kar. 418." From the above discussion it may be seen that no penalty is to be imposed for noi filing the written statement as required under item Nos.l and 3 above but the penal consequences can be imposed where the written statement is not submitted as provided under item No.2 above which means that the defendant is I so inquired | 0 file the written statement and he does not do so, then the penal | clause under Order 8 Rule 10 CPC is to be imposed and the trial Judge has the discretion either to pass the judgment straight away or to pass any other order in relation to the suit as he thinks fit. In this case their lordships were further pleased to observe that the first part of the Rule 10 being a penal provision the same should be strictly construed and the matter being in discretion of the Court the penalty should not be imposed if the judgment could not be pronounced being prohibited by law expressly or impliedly but in such circumstances recourse should be had to the second part of the provision of Rule 10 of Order 8 C.P.C. In view of the above discussion I am clear in my mind that the Court exercising jurisdiction under penal clause of Order 8 Rule 10 CPC has not simply to pronounce the judgment decreeing the suit but has to exercise the caution and care to see as to whether on the showing of the plaintiff such decree could be passed in law and i that there is no express or implied legal bar against passing such decree. The question now to be examined is whether in the present case the original court should have resorted to passing order under the first part of Order 8 Rule 10 CPC as discussed above by passing a judgment against the defendants or it should have resorted to the course as provided in second part of the Rule. The plain reading of the plaint will show that the said agreement of sale was entered into by the parties on 2.10.1972 while the suit was filed in the year 1981. This being a suit for specific performance, it will be governed by the provisions of Article 113 of the Limitation Act which provides for a limitation of three years to be counted from the date as provided for the performance of the contract or in case where no such date is mentioned then three years from the date the performance is refused. In the present case the copy of the agreement of sale has also been filed with the plaint which makes a provision for date of execution of sale deed but Mr. Haji Ahsanullah Shaikh, the learned counsel for the respondents has submitted that subsequent to this agreement some payments were made to the vendor whereby the period of limitation is deemed to have been extended and also that in such circumstances the date of refusal of performance would be the date from which the period of limitation is to be computed. These points require consideration and in my view it would be proper that the said legal points be taken into consideration by the original court. From the above discussion 1 am of the view that in the present case the learned court on the original side should have taken into consideration the above legal aspect of the case before passing the judgment and for that matter it would have been proper that the Court should have followed the course as provided in second part of Rule 10 of Order 8 CPC. I accordingly accept this revision application, set aside the judgments of the two courts below and remand the suit to the original court of Civil Judge, Shikarpur who should pass the appropriate order in view of the above observations. However, there will be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Karachi 261 PLJ 1990 Karachi 261 Present: qaisar AHMAD HAMIDI, J. Mst. JAN BIBI and others-Appellants versus AZAM KHAN and another-Respondents FRA No. 79 of 1984, dismissed on 15.4.1990. (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XXXII R. 3 read with Sind Rented Premises Ordinance, 1979, Section 15 -Tenant-Ejectment of~Order of--Challenge to-Minor appellants-Guardianad-litcm of-Whether any irregularity vitiating whole proceedings was committed-Question of~Application of respondents for appointing appellant No. 2 as guardian-ad-litem of minor appellants, is on record-Impugned order shows that this application was allowed before case proceeded-Held: Record shows that appellant No. 1 was all along contesting matter and interest of minors was safe in hands of their mother (appellant No. 1). [P.264JA&B PLD 1963 Peshawar 93 and PLD 1975 Lahore 403 not attracted, (ii) Delay- —Tenant-Ejectment of-Order of-Challenge to~Grievance that appellants' application for summoning witnesses was rejected by Rent Controller- Appellants have pushed in technicalities to extreme—They have consumed their entire energy in protecting proceedings which had taken 25 years to reach High Court in third round of litigation-Held: Delay and expenses are two ugly features of our judicial system and this case demonstrates in no uncertain terms for any one to see how delay defects justice. [P.266JE (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15 read with Displaced persons (Compensation and Rehabilitation) Act, 1958, section 30~Tenant-Ejectment of~Order of~Appeal against-Whether successors of statutory tenant could deny relationship of landlord and tenant-­ Question of-Predecessor-in-interest of appellants, in response to notice under Section 30 of Act, admitted tenancy in unambiguous terms in his written statement-He had simply questioned quantum of rent-Held: Appellants could not question their tenancy after admission of same by their predecessorin-interest nor they could file any fresh written statement taking a different stand. [Pp.265&266]C&D PLD 1976 Karachi 53 and PLD 1972 Lahore 256 rel. (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15 (2)(ii)-Tenant-Ejectment of~Order of-Challenge to-Default in payment of rent is proved from record—Where default is committed by deceased tenant, children succeeding to tenancy, also succeed to default—Held: There is admitted default and impugned order is not open to exception-­ Appeal dismissed. [P.267JF, G&H PLD 1961 Lahore 788 and 1986 CLC 896 rel. Mr. Abdur RchmanShaikh, Advocate for Appellants. Mr. Sadik Klian, Advocate for Respondents. Date of hearing: 8.2.1990. judgment The facts which constitute the background of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, are that the commercial premises bearing C.S.No.B-3361/2, situated at Miani Road Sukkur, was transferred to Muhammad Bashir, Mst. Zahooran Begum, and Muhammad Rafique under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and such transfer documents were issued to them. Abdul Rasool, the predccessOr-in-interest of the appellants was in occupation of the said premises at the time of its transfer to above transferees, who served him with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958,calling upon him to pay rent to them on the basis of latest assessment of Municipal Committee. The failure of the statutory tenant to meet the demand of transferee resulted into litigation, which was started by the said transferees who filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 25.5.1965, against the said Abdul Rasool. Abdul Rasool admitted the tenancy, but disputed the quantum of rent. The case proceeded before Mr. AH Nawaz Budhani (now Mr. Justice (Retd) Ali Nawaz Budhani),Rent Controller Sukkur, who was of the view that the transferees were entitled to recover rent at the rate of Rs.30/- P.M, and that no default was committed by the tenant, namely, Abdul Rasool. Consequently he dismissed the application for eviction vide order dated 28.1.1967, but directed the payment of arrears of rent to the transferees. Muhammad Bashir and others, the original transferees challenged this order in C.M. Appeal No.133 of 1967 filed under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which was heard by Mr. Mir Amir Ali Talpur, Additional District Judge Sukkur, who dismissed it vide judgment dated 1.6.1967. Muhammad Bashir and others went in second appeal before the High Court of Sind and Baluchistan, Karachi (II-Appeal No.522 of 1967), which was heard by Dorab Patel, J (as he then was), who remanded the case to Rent Controller, Sukkur, vide judgment dated 2.2.1972. On 6.5.1974 the Rent Controller passed a consent order directing the said Abdul Rasool to deposit arrears of rent and monthly rent due, which too was challenged by him in C.M. Appeal No.24 of 1974, which was heard by Mr. Muhammad Ishtiaq Hussain, District Judge, Sukkur, who vide judgment dated 16.11.1974, dismissed it. During the pendency of these proceedings Muhammad Bashir and others the original transferees sold this premises to respondents Azam Khan and Wasim Khan and they were substituted in place of the transferees. In the meanwhile Abdul Rasool died leaving behind appellants Mst. Jan Bibi, Mst. Shirin Bibi, Mst. Sahira Bibi, Abdul Ghaffar and Abdul Rehman as legal heirs. The tenants failed to deposit the rent and consequently the Rent Controller, Sukkur. struck off their defence vide order dated 10.6.1976. The appellants challenged this order in C.M. Appeal No.43 of 1976, which was heard by Mr. Shabbir Ahmed, Ill- Additional District Judge Sukkur, who dismissed it vide judgment dated 6.2.1979. The appellants assailed this judgment before this Court in II-Appeal No.19 of 1979, which was disposed of by Ajmal Mian, J (as he then was) on 5.4.1983, with the following order:- "It is an admitted position that the tentative rent order dated 6.5.1974 as well as the order dated 10.6.1976 for striking of defence for noncompliance of the above order were passed by Joint Civil Judge and Rent Controller, Sukkur. Inter alia in the case of Ghulam Sarwgr $. Muhammad Mithal reported in 1983 C.L.C., 480, a learned single Judge of this court has held that a Joint Civil Judge having powers of Third Class Civil Judge was not competent to act as a Rent Controller. The above case has been followed in the subsequent cases. Mr. xuiik'Khan, learned counsel for the respondent does not contest the above legal position. I would, therefore, allow the appeal and set aside the order under appeal and remand the case to the learned Rent Controller concerned with the direction to pass a fresh tentative rent order and thereafter to proceed with the matter on merits and to decide the same within three months from the date of the receipt of copy of this order. In the circumstances of the case there will be no order as to costs." 2. After remand an application under Order 32, rule 2 C.P.C. was moved on behalf of respondents for appointing Mst. Jan Bibi, appellant No. 1, as guardianad-litem of rest of the appellants who were minors. This application was allowed and thereafter the case proceeded. On 4.2.1984 the Rent Controller passed an order directing the appellants to deposit arrears of rent and monthly rent due. The order was complied with and thereafter the case proceeded. The parties adduced evidence and on the assessment thereof the learned Rent Controller (Mr. Pirbhulal Uttamchand) allowed the application by directing the ejectment of appellants from the disputed premises within 60 days. This order dated 31.5.1984, s the subject matter of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979. 3. I have heard Mr. Abdur Rehman Shaikh, learned counsel for the appellants and Mr. Sadik Khan, learned counsel for the respondents. I have also perused the record of this case carefully. The learned counsel for the appellants has referred to several-points but eventually confined his arguments on the main to the following contentions:- (/) That the Rent Controller having proceeded against the minor appellants without complying with the provisions of Order 32 C.P.C., in the matter of appointment of guardian-ad-litem, has acted with material irregularity, thereby vitiating the whole proceedings. (//) That the premises in dispute is non-existent and consequently there existed no relationship of landlord and tenant between the panics. (///) That no proper opportunity was afforded to appellants and their application for summoning the witnesses was dismissed without any cogent reason. (/V) That the appellants having (been) called upon to deposit the arrears of rent twice were seriously prejudiced. 4. Order 32 C.P.C. is attracted in respect of suits by or against minors and persons of unsound mind. The application made on behalf of respondents for appointing Mst. Jan Bibi as guardian-ad-litem of minor appellants is on record. The impugned order shows that this application was allowed before the case proceeded. In such a situation the rule laid down in Mashal KJian v. Fazal Karim and another, reported in P.L.D. 1963 Peshawar 93, and Allah Ditto and 4 others v. Malik Ahmad Bakhsh and 5 others, reported in P.L.D. 1975 Lahore 403, cited on behalf of appellants is not attracted to the facts of this case. Even otherwise in the former authority it was held that any irregularity in the appointment of guardian- ad-litem was curable if no prejudice was caused to the minors. I can do no better than quoting the observations made by Anwar-ul-Haque, J (as he then was), which are as follows:— "It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, R.3, C.P.C., regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interests were duly represented by the irregularly appointed guardian-ad-litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against a person who was not a party before the Court." The record shows that appellant Mst. Jan Bibi was all along contesting the matter and the interest of minors was safe in the hands of their mother. 5. I now address myself to the question, whether the appellants in the circumstances of the present case can question the relationship of landlord and tenant between the parties. Admittedly Abdul Rasool, predecessor-in-interest of the appellants, was a statutory tenant. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which regulated such tenancy was examined by the Supreme Court in well known case of E~A. Evans v. Muhammad Asharf, reported in P.L.D. 1964 S.C. 536, in which the following principles were laid down:- (/) Express notice in writing must be given by the transferee to the tenant. (/'/') The tenancy is to be continued on the same terms and conditions as to payment of rent or otherwise on which he held immediately before transfer. (Hi) Two notices (1) giving information of transfer and (2) making demand of rent, may be combined into one. (iv) It shall be lawful for the transferee to charge a rent on the basis of latest assessment carried out by the Municipality or local authority. (v) The tenant cannot contract out of protection provided by section 30. (v/) Notice of demand is necessary to deprive a tenant of the protection provided by section 30. 6. The service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon Abdul Rasool predecessor-in-interest of the appellants, in not disputed. Abdul Rasool has also admitted the tenancy hi unambiguous terms in his written statement. He had simply questioned the quantum of rent. The respondents had stepped into the shoes of Muhammad Bashir, Mst. Zahooran Begum and Muhammad Rafique, the original transferees/applicants, and were impleaded as party. The case of Messrs. Adil Brothers Karachi Ltd. v. Messrs. Amin Art Press and another, reported in P.L.D, 1976 Karachi 53, is a direct authority on this subject/Therefore, the appellants could not question their tenancy after Abdul Rasool had admitted so hi clear terms nor they could file any fresh written statement taking a different stand. I am fortified in my view by a case reported as Lai Hussain v. Amir Muhammad Khan and another (P.L.D. 1972 Lahore 256), in which this question was answered in the, following words:-- "In Order XXII, rule 3 r the deceased plaintiffs legal representatives are to be impleaded 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 representatives may make any defence appropriate to his character as legal representatives of the deceased defendant. The argument of the learned counsel for the petitioner was that sub-rule (2) 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 comparative reading of the two rules 3 and 4 will show that the principle that the legal representatives of the deceased are bound by what the deceased had done is not departed from nor is there any justification for holding that in case. of death of the defendant, it }s 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 XXII which relates to the impleading i 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 whatever 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 impleaded, the Court shall proceed with the suit. This provision is also susceptible of only one interpretation that the proceedings already taken will 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 sub-rule (1) of rule 3 and sub-rule (1) of rule 4 excludes the possibility of these two rules being interpreted differently. Rule 3 becomes 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 be given to the legal representative 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 cases where some defencemay not be open to the deceased defendant but it may be open to the legal representative independently as an individual as distinguished from his capacity as legal representative. It is to meet such contingency 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 his character as legal representative of the deceased defendant. This provision is not to give a legal representative a right independent of the right of the deceased defendant or higher than that of the deceased defendant. On the other hand, it is a provision of limitation confining the legal representative to raise defence which could be raised by the deceased defendant. Sub-rule (2) does not authorise a legal representative to make any defence he likes, but only to make a defence appropriate to his character as legal representative." 7. It, therefore, follows that the appellants are bound by the admissions made by their predecessor-in-intefest. Article 115 of the Qanoon-e-Shahadat Order, 1984, speaks of estoppel of tenant and he accepting the title of his landlord in an ejectment proceedings cannot subsequently challenge it. Even otherwise legal heirs of the original tenant cannot be allowed to raise a new plea after 20 years of litigation that there exists discrepancy in S. No. of the premises purchased by the respondents from the original transferees. This contention is frivolous and notwithstanding the energy shown by learned counsel for appellants was really a deliberate attempt to confuse the issue, if he will forgive me saying it. 8. A grievance was also made by learned counsel for appellants about the rejection of application made for summoning of the witnesses by the Rent Controller. The chequered history of this litigation which I have given in the narrative part of this judgment provides a complete answer to this argument. The appellants have pushed the technicalities to extreme. The have consumed their entire energy in protracting the proceedings which had taken 25 years to reach to this Court in third round of litigation. Delay and expenses are two ugly features of our judicial system and this case demonstrates in no uncertain terms for any one to see that how the delay defeats justice. I hasten to add that such a procedure is bound to seriously impair and undermine the confidence of litigants in Courts. 9. Lastly it was half heartedly suggested that the Rent Controller directed the appellants to deposit a part of arrears of rent which was already deposited by them. No prejudice appears to have been caused by this order. The amount deposited, in excess was to be returned to appellants. The concluding portion of the impugned order is self explanatory. 10. The default in payment of rent is proved from the record. Where the default is committed by a deceased tenant, the children succeeding to tenancy also succeed to default of deceased tenant. The case of Sh. Muhammad Nawaz v. Muhammad Azeem and others, reported in P.L.D. 1961 Lahore 788, is relevant on this point. At page 790, it was observed by a Division Bench that:-- "In Section 2, clause (/) of the Ordinance, the expression "tenant" has been defined so as to include "the wife and children of a deceased tenant." Upon the death of the original tenant, therefore, the children automatically became tenants for the purpose of eviction under Section 13. If, therefore, Section 13 requires that a tenant may be ejected for non­ payment of rent, then the fact that the original tenant has been succeeded by his children will not alter the fact that a default has been made by the original tenant. The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the effect of the default." 11. The case reported as Muhammad Siddique v. Muhammad Siddique (1986 C.L.C. 896), is also relevant in a situation like the one under consideration. There is admitted default and in such a situation the impugned order is not open to exception. 12. The appeal has got no merits and is dismissed with costs. The appellants are, however, allowed two months'time to vacate the demised premises. . (MBC) Appeal dismissed.

PLD1990 Karachi-267 PLD1990 Karachi-267 [Sukkur Bench] Present: ABDUL RAHIM kazi, J DHANI BUX-Appellant versus GUL SHAH-Respondent FRA No. 33 of 1985, dismissed on 8.4.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15—Tenant—Ejectment of-Default~Ground of~Appeal against ejectment order—There is nothing on record to prove that appellant had paid rent for months of September to December 1983, except for his oral word—Burden lies on tenant to prove payment of rent—Held: There is no error in findings arrived at by Rent Controller. [P.269JA (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15(v)—Tenant-Ejectment of~Acts of nuisance—Ground of—Appeal against ejectment order-Appellant was admittedly convicted under Section 294 PPC for immoral acts alongwith women of ill repute-Contention that this act is punishable under criminal law and, therefore, cannot form ground of nuisance-Held: Contention has no force—Held further: Running of a prostitution den or using premises or its frontage for purpose of illicit business or illicit purposes does amount to nuisance of neighbours and people living around area-Appeal dismissed. [Pp.269&270]B&C Mr. AliAslam Jafferi, Advocate for Appellant. Mr. Sajjad Hussain Kolachi, Advocate for Respondent. Date of hearing: 8.4.1990. judgment This appeal has been filed challenging the order passed by the learned First Senior Civil Judge & Rent Controller, Khairpur in rent application No.4/1984 whereby rent application filed by the present applicant under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has been allowed and the ejectment of the present appellant has been ordered. Briefly the facts are that the present respondent had filed the said application for ejectment on the ground that the present appellant had committed default in payment of rent since month of September, 1983 and also that he was using the premises in dispute for immoral purposes and had thus caused nuisance. It is alleged that rate of rent is Rs.175/- per month and that the present appellant had been challaned alongwith women of ill-repute in crime No.60 of police station Pirjogoth registered on 24.9.1983 under section 294 PPC. The present appellant filed his written objections wherein he claimed that he had paid the rent upto the month of December, 1983 and that the rate of rent is Rs.100/- per month and not Rs.175/- per month. He further submitted that he had been involved in the said case under section 294 PPC by the present respondent in order to bring pressure upon the appellant to vacate the said premises. The respondent submitted his own affidavit in evidence and also those of three witnesses, namely, Syed Qaim Ali Shah, Syed Bakhshan Shah and Wali Muhammad Khaskheli. The present appellant submitted his own affidavit in evidence and produced three money order coupons showing the remittance of rent at the rate of Rs.100/- per month. He also submitted the affidavit in evidence of his witness Allah Bachayo Memon. Both the parties and their witnesses were cross-examined at length and the learned Rent Controller holding the present appellant to be a defaulter and also guilty of having committed acts of nuisance ordered the ejectment. I have heard Mr. Ali Aslam Jafferi, the learned counsel for the appellant. The learned counsel has vehemently argued that in the first instance the learned Rent Controller has erred in holding the rate of rent to be Rs.175/- per month. He has submitted that this was a tenancy through a written agreement and the landlord has deliberately suppressed the said agreement by not producing the same in evidence and, therefore, the inference should be drawn against the landlord with regard to the rate of rent. He has placed reliance on the crossexamination of PW Syed Qaim Ali Shah who in his cross-examination while speaking about the present respondent's other premises and their letting out to different tenants states thafc "I do not know the rate between applicant and other tenants. Inhere had been writing at the time of giving house on rent to the opponent between the applicant and the opponent. I had not signed the agreement but others had signed the agreement." Relying on this solitary word of one witness, the learned counsel has submitted that this shows that there was an agreement in existence although all the witnesses of the present respondent including the respondent in their examination in-chief have stated that the tenancy was through oral agreement. It obviously appears that this might have been stated by this witness with regard to the number of other tenements also belonging to the present respondent which were on rent. However, it may be pertinent to observe that the present appellant himself in his affidavit in evidence does not say if any agreement of rent was executed between him and the present respondent nor he has said so in his written objections. As against this the evidence of PW Wali Muhammad Khaskheli is quite material who comes from a different caste and appears to be an independent witness. He has very specifically stated that the rate of rent was Rs.175/- per month. Not only this witness but the appellant's own witness, namely, Allah Bachayo in his cross-examination has unequivocally stated that opponent pays Rs.175/- as rent to the applicant. From the above circumstances I am of the view that there is no dispute about the rate of rent being Rs.175/- per month and the fact that there was any agreement of tenancy executed between the parties also does not stand proved. Now, therefore, the question for consideration would be whether the present appellant had remitted the rent properly and duely. In the first instance there is nothing on the record to prove that the appellant had paid the rent for the months of September to December, 1983 except for his oral word. The burden lies on the tenant to prove the payment of rent. It is always debtor who has to seek the creditor. The money order coupons submitted by the appellant hi evidence pertain to the period February to April, 1984. However, today during course of arguments the learned counsel for appellant has submitted the coupon for month of January, 1984 also. Ah 1 these coupons show the rate of rent to be Rs.100/- per month and the respondent has rightly stated in his cross-examination that he had refused to accept the money orders because the rent remitted to him was at the rate of Rs.100/- per month only and that also from January, 1984 whereas the default committed by the present appellant is from September, 1983. In view of the above discussion I do not find any error with the findings arrived at by learned Rent Controller. The second question for consideration is whether the present appellant has committed acts of nuisance as provided in section 15(v) of the Ordinance which reads as under:- "(v) the tenant has committed such activities as are causing nuisance to the neighbours." It is an admitted position that the present appellant was convicted under section 294 PPC for immoral acts alongwith the women of ill-repute. This fact has been admitted by the appellant in his cross-examination wherein he has also admitted that those women who were challaned alongwith him had belonged to Khairpur town. Now one can understand as to why the women of Khairpur had come to the appellant in his residential house^at Pir-jo-goth wherefrom they all were picked up and challaned in the above case. The learned counsel for the appellant has submitted that this act is punishable under criminal law and, therefore, this cannot form the ground of nuisance. With all regards to the submissions of the learned counsel I am of the view that the above submission has no force. The word "nuisance" has been defined in the Black's Law Dictionary to mean "Nuisance is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public, and producing such material annoyance, inconveniences and discomfort that law will presume resulting damage. "Obviously running of a prostitution den or using the premises or its frontage for the purpose of illicit business or illicit purposes does amount to nuisance of the neighbours and people living around the area. For the above reasons I find no force in the present appeal which is dismissed with costs. However, the appellant is allowed one month's time to vacate the premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi-270 PLJ 1990 Karachi-270 [Sukkur Bench] Present: ABDUL RAHIM KAZI, J ALLAH WARAYO-Petitioner versus MUHAMMAD RAMZAN and others-Respondents Civil Revision No. 11 of 1982, accepted on 3.4.1990. Civil Procedure Code, 1908 (V of 1908)-- —-O. XVI R. 1 and O. XIII R. 2--Witness-Not included in list of witnesses- Summoning of--Prayer for~It is not denied that before any evidence was brought on record, no prejudice was likely to be caused to other side if applications moved by defendant were allowed at that stage-Reasons advanced by defendant for summoning other attesting witness of sale-deed, were quite cogent-Held: He should have been allowed opportunity to examine second attesting witness—Held further: Order of Civil Judge declining to allow defendant to bring registered document on record, is not proper—Petition allowed and case remanded. [Pp.272&273]A,B&C PLD 1961 (WP) Lahore 643 & 1969 SCMR 965 rel Mr. Abdul Ghani Shaikh, Advocate for Petitioner. Mr. Abdul Fatah Malik, Advocate for Respondents. Date of hearing: 3.4.1990. judgment The facts giving rise to the present civil revision are that the present respondents had filed the suit being suit No.9/1979 in the court of Civil Judge, Rohri for declaration, cancellation of registered document and permanent injunction against the present petitioner alleging therein that 50 paisa share in the survey number in suit was initially owned by one Boolo who had expired some 100 years back and his said share ultimately devolved on the plaintiffs in the suit being his heirs. It is further alleged that hi the month of November, 1978 the present petitioner claimed to have purchased the suit land from the said Boolo in the year 1963 although said Boolo as stated above had expired about 100 years ago and, therefore, the plaintiffs had filed the said suit. The trial court framed 8 issues in the suit. Both the parties led evidence and the suit was ultimately decreed by the trial court on 30.6.1980 to the extent that the registered sale deed in favour of the present petitioner and subsequent entries in the revenue record were ordered to be cancelled as it was held that the same having been obtained through fraud and forgery were unlawful, inoperative and of no legal consequence and not binding on the plaintiffs while the relief of injunction was declined. The present petitioner being aggrieved from the said judgment of the Civil Judge submitted an appeal before the District Court Sukkur being civil appeal No.80/80 which was heard and dismissed by the learned First Additional District Judge, Sukkur. It is against these concurrent findings that the present revision application has been filed. I have heard Mr. Abdul Ghani Shaikh, the learned cqunsel for the applicant and MrAbdul Fattah Malik appearing for the respondents Nos.l to 3. None is present for respondents 4 to 8 who were also the plaintiffs in the Civil Court. At the very outset Mr. Abdul Ghani Shaikh the learned counsel for.the applicant has pointed out that the issues were framed by the trial court on 15.11.79 and thereafter the plaintiffs had submitted a list of witnesses which included the name of one Muhammad Saleh son of Muhammad Hashim who is said to be attesting witness of the alleged sale deed executed in favour of the present applicant who was defendant in the suit. It is pointed out by the learned counsel that this witness of the plaintiffs had fallen ill and was confined to bed and could not appear in the court as he could not climb the hill on which the court of Civil Judge, Rohri is situate and, therefore, the present applicant in June, 1980 moved an application under Section 151 CPC with the prayer that he may be allowed to examine the other attesting witness, namely, Kadir Bux in place of witness Muhammad Saleh for the reason shown above. A copy of medical certificate Was also attached with the application. This application was rejected by the learned Civil Judge vide orders passed on the reverse of the application on 26.6.1980 simply on the ground that the application under Section 151 CPC could not be maintainable as other specific provision is available in the Civil Procedure Code. The learned counsel for the applicant has then pointed out that in the very suit and after framing of the issues and before any evidence was recorded he had moved an application under Order 13 Rule 2 CPC on 6.4.1980 with the prayer that certified copy of lease deed executed by Hadi Bux son of Boolo alongwith other co-sharers be allowed to be brought on record but this application was also rejected by the learned Civil Judge on the ground that the lease deed did not pertain to the land in dispute. From this the learned counsel for the applicant has submitted that he has been deprived of the opportunity to prove the issues in the suit and that these above said two orders passed by the learned Civil Judge suffer from material irregularity and illegality. Mr. Abdul Fattah Malik, the learned counsel for respondents 1 to 3 has supported the above said two orders. He has submitted that in the case of first order if the defendant desired to examine the witness he should have moved a proper application under the provisions of Order 16 Rule CPC and Section 151 CPC in such case will not be applicable. He has further submitted that because the name of the witness was not included in the list of witnesses submitted earlier the defendant was debarred from examining the said witness. With regard to the second order Mr. Abdul Fattah Malik, the learned counsel for respondents 1 to 3 has submitted that the said document did not pertain to the land involved in the suit and therefore, was irrelevant which was rightly declined. He has further submitted that in case the present applicant was aggrieved from the said orders he could have challenged the same through a revision application at that time and not having done so the same point cannot now be agitated. I have considered the submissions of the learned counsel. It is not denied ^ that before any evidence was brought on record when the defendant had moved the said two applications, no prejudice was likely to be caused to the other side if the same were allowed at that stage. It may also be observed that with regard to summoning the other attesting witness of the impugned sale deed, the reasons advanced by the defendant were quite cogent. Civil Court, Rohri is situate on a hill top and the first witness cited by the defendant having fallen ill, which fact was supported by the certificate, could not have climbed the hill and, therefore, he should have been allowed the opportunity to examine the second attesting witness of the said document. The law favours adjudication on merits and a party cannot be shut out from examining the witnesses unless there are malafides alleged and proved. With regard to the second submission of the learned counsel for the applicant that he had sought to bring a registered document on record which was declined by the Civil Judge, I am of the view that even this order is not a proper —- order. It appears that the said document was sought to be produced on record to prove the fact with regard to time of death of Boolo and therein forgery committed by the plaintiffs and to rebut allegations of plaintiffs with regard' to forgery. Reliance may be placed on the case ofAllahditta v. Sadar Din (PLD 1961 (W.P) Lahore 643) wherein certified copies of registered mortgage and sale deeds were allowed to be tendered after the conclusion of the arguments in the civil suit under the provisions of Order 13 Rule 2 CPC. With regard to the last submission of the learned counsel for respondents Nos.l to 3 that since said orders were not challenged by the present applicant at the relevant time, he cannot now agitate the same, it may be observed that the said orders did not fall within the words "case decided" as provided in section 115 C.P.C. and no revision application could have been maintainable against the said orders. The interlocutory or miscellaneous orders passed during the proceedings of a suit could also be agitated in an appeal/revision application filed challenging the final judgment. Reliance can be placed on the case of Nawabzada Malik Habibullah KJian v. Pak. Cement Industries Ltd and others (1969 SCMR 965) wherein it has been held by their lordships: "An order admitting or declining to admit evidence oral or documentary does not amount to a "case decided" within the purview of Section 115 CPC. The High Court could not, therefore, interfere with the order of the trial court in exercise of its revisional jurisdiction. A fortiorari no appeal from the order of the High Court would lie to this Court. The petition is dismissed." For the above reasons I am inclined to set aside the above said orders passed by the Civil Judge on 26.6.1980 and 21.4.1980 and allow both the applications of the present applicant moved under Order 13 Rule 2 CPC and section 151 CPC. As a result of this order I set aside the judgments and decrees passed by the two courts below and remand the suit to the court of Civil Judge, Rohri to proceed in accordance with law. Since, the matter pertains to the year 1979 the Civil Judge, Rohri is directed to proceed with the case expeditiously. (MBC) Petition allowed.

PLJ 1990 Karachi 273 [Sukkur Bench] PLJ 1990 Karachi 273 [Sukkur Bench] Present: ABDUL RAHIM KAZI, J TOWN COMMITTEE and another-Petitioners versus Ch: MUNAWAR ALI and others-Respondents Civil Revision No. 43 of 1990, dismissed on 2.5.1990. Sind Counsils (Imposition of Taxes) Rules, 1979— —R.4--Octroi schedule—Enhancement of—Challenge to-Whether schedule of taxes was correctly revised-Question of-Contention that Rule 4(2)(i)(c) specifically provides that amount or rate of tax to be imposed and previous amount or rate, if any, are to be mentioned in publication, which, in this case, admittedly, is not done—Law provides that if a particular thing is to be done in a particular manner, then it is to be done only in that particular manner and not otherwise-Held: It being a fiscal law, it is to be construed very strictly in favour of subject-Petition dismissed. [Pp.277,278&279]A,B,C&D PLD 1965 (WP) Lahore 82, NLR 1989 Tax 204,1987 SCMR 2031 and PLD 1983Karachi 517 rel. Mr. Lachhmandas, Advocate for Petitioners. Mr. Abdul Latif Channa, Advocate for Respondents. Dates of hearing: 25 and 29.4.1990 and 2.5.1990. judgment The facts giving rise to this civil revision application are that the applicants, Town Committee Mirpur Mathelo, decided to revise/enhance the octroi schedule whereby they revised the octroi charges for a total of 55 items and revised schedule was published in the Sindh Government Gazette on August 3, 1989 under notification No.TCM/430 dated 24.6.1989. The present respondents challenged the said notification of revised schedule of octroi charges by way of filing civil suit No.25/89 against the above said Town Committee and one Shevakram, the octroi contractor of the Town Committee. The suit was filed on 1.8.1989 for declaration and injunction with the following prayer:- (a) To declare that any demand, threat, to charge, and/or to adopt any coercive means or methods and/or in any way recovery of the octroi on the revised rate by increasing the rate is unjustified, illegal, unwarranted, malafide, arid against the law and rules in force. (b) To declare that the taxation proposal passed by the defendant No.l and its notification No.TCM/430 dated 24.6.1989 and published if any in Government Gazette is illegal, void abinitio, ultravires without any jurisdiction or lawful authority and is otherwise unenforceable in law. (c) To grant permanent injunction restraining the defendants, their men, servants, subordinates, munshies, subcontractors, staff and/or any person or persons claiming through or under them from demanding, recovering, charging, threatening to charge and/or in any way adopting any coercive means or methods to charge in any way any increased or revised rate of octroi on any articles on the basis of revised octroi schedule. (d) Cost of this suit may be awarded to the plaintiffs. (e) Any other relief or reliefs that this Hon"ble Court deems just and proper under circumstances of the case may be awarded to the plaintiffs. Alongwith .the suit an application under Order 39 Rules 1 and 2 CP.C. read with Section 151 CPC was also filed seeking interim injunction till <fry»Wf of the suit restraining the defendants/present applicants from recovering octroi charges according to the said revised octroi schedule. In the first instance the learned Civil Judge ordered the status-quo to be maintained but subsequently after hearing the parties the learned Civil Judge was pleased to dismiss the said application and further vacated the earlier status-quo order. Being aggrieved the present respondents/plaintiffs filed civil misc. appeal No.56/89 before the learned District Judge, Sukkur who was pleased to allow the said appeal and setting aside the order of the Civil Judge he granted the injunction as prayed. It is from this order that the present revision application has been filed by the Town Committee and their contractor. I have heard Mr. Lachhmandas, the learned counsel for the present applicants. He has submitted that order of the learned District Judge is erroneous inasmuchas the learned District Judge has erred in holding that the compliance of the statutory provisions of Rule 4 of the Sind Councils (Imposition of Taxes) Rules, 1979 have not been complied with. Mr. Abdul Latif Channa advocate appearing for the present respondents on the other hand has submitted that the said revision of octroi schedule is not in accordance with the provisions of the said Rules and therefore, the present respondents have a strong prima facie case in their favour. Before dealing with the submissions of the learned counsel for the parties it would be pertinent to reproduce the rules Nos.3,4,5 and 6 and 7 of these rules. "3. A council may at any time review its financial position and if in its opinion any change in the tax structure is called for it shall formulate or cause to be formulated a taxation proposal: Provided that no taxation proposal shall be formulated in respect of a tax . before the expiry of six months since its imposition, reduction, suspension or abolition. 4. (1) Every taxation propsal prepared under rule 3 shall be published alongwith a notice in daily newspapers for inviting objections and suggestions thereon within fifteen days of publication of the taxation proposal. (2) The notice, under sub-rule (1) - (1) may specify- (a) the main feature of the taxation propsal; (b) the class of persons or description of property or both affected • thereby; (c) the amount or rate of tax to be imposed and the previous amount or rate, if any, (d) additional income likely to be raised by the imposition of the tax or the increase in the tax and the purpose on which this additional income is proposed to be spent; (e) the loss of income likely to be caused by the abolition or suspension of the tax or reduction in the rate of the tax and the manner in which this short-fall in income is proposed to be made up; (f) justification of the taxation proposal; and (g) any other particulars considered necessary for the information of the public; (ii) shall accompany a taxation programme specifying- (a) the date, which shall not be earlier than fifteen days from the publication of the notice, by which objections or suggestions may be made by the inhabitants; (b) the date or dates fixed for the hearing of objections and suggestions received under this rule; (c) the date by which the final taxation proposal shall be sent to Government for sanction. 5. (1) All objections and suggestions received under rule 4, shall be entered in a register maintained for the purpose. (2) The Finance Committee of the council shall hear and examine the objections and suggestions under the chairmanship of Mayor or Chairman of the counsel, as the case may be. (3) On the date or dates fixed for the hearing of objections and suggestions, dfc committee shall hear the same in public and shall afford all possible facilities to the persons making them to present their case. (4) The committee shall as early as possible after close of the hearing of objections and suggestions, draw up and furnish detailed report to the council. (5) The report under sub-rule (4) shall specify- (a) the salient features of the taxation proposal; (b) the number and nature of objections and suggestions received within the specified period; (c) the manner in which the objections and suggestions were heard; (d) the findings of the committee in respect of each objection and suggestion heard by it; (e) the recommendations of the sub-committee with regard to the taxation proposal indicating whether the recommendations are, as nearly as possible, in accordance with the model tax schedule, if any, framed by Government under section "6; and (f) financial implications involved in such recommendations. 6. (1) The Mayor or Chairman, as the case may be, shall present the report to the special meeting of the council, convened for consideration of the taxation proposal. (2) The council shall consider the report and for the reasons incorporated in its resoultion: (a) approve it with or without modification; or (b) drop the taxation proposal; (c) if the council approves the taxation proposal, with or without modifications, it shall be submitted to Government alongwith a copy each of the report of the committee and the resoultion approving it. 7. Where Government has sanctioned the taxation proposal the order of Government shall be notified in the official gazette and such order shall come into force on and from such date as may be specified in the notification." Mr. Lachhmandas the learned counsel for the applicants has submitted that rule 4(2) (i) provides that the notice to be published by the Town Committee may sepecify the particulars mentioned. According to the learned counsel the word 'may' here shows that this provision is not mandatory provision but at the most it can be said to be a recommendatory or obligatory provision and, therefore, it is not incumbent upon the Town Committee to publish the entire schedule in the newspapers. He has drawn my attention to the copy of the notice which according to the learned counsel were published in different newspapers, namely, Nawai Inqilab, Sukkur (Sindhi), Nawai Waqt Karachi (Urdu), Yadgar Sukkur (Urdu) and Sindh News (Sindhi). The photostat copies of the said notices have been produced. It may be observed that the notices published in daily Nawai Waqt Karachi and Yadgar Sukkur are titled as Notices of Auction (Itelao Neelam (jiff £Ub I) while notice in remaining two newspapers is titled as Public Notices. According to these notices it is said that the Town Committee with the intention to increase then- income has decided to revise the octroi schedule which will affect the trade community and other sections of public for which objections are invited and the dates are mentioned by which dates the objections will be received^ considered and report be submitted before the Council. He has further submitted that in consequence of the above notice a report was submitted before the Council in their meeting held on 9.2.1989 and Council had approved the same and authorized the publication of the revised schedule. The learned counsel has further submitted that there was quite a long schedule and it was not possible for the Town Committee to get the same published in the newspaper as it would have caused the incurrence of greater expenditure. However, according to the learned counsel these public notices mentioend that the propsosed schedules can be examined in the office of the Union Council which is sufficient compliance of the said provisions. The learned counsel in support of his contention has placed reliance on the case of Barkatullah Klian v. Muhammad Hasan ((PLD 1986 Karachi 309). He has also placed reliance one case of Nazar Hussain v. Mst. Aziza KJiatoon (1987 MLD 530) and the case of Jamshed Ahmed Khan v. SDM/Assistant Commissioner (PLD 1987 SC 213). It may be observed that in the above said cases the first two cases pertain to the Rent Restriction Ordinance while the third case pertains to the election to the Provincial Assembly. As against this Mr. Abdul Latif Channa, the learned counsel for the respondents has submitted that this being a fiscal provision the same is to be construed strictly in favour of the subject and any revision in the said provision is to be made in accordance with the Rules. The learned counsel has further submitted that Rule 4(2)(i)(c) specifically provides "the amount or rate of tax to be imposed and the previous amount or rate, if any are to be mentioned in the publication which in the present case, admittedly, is not done. He has further submitted that the law provides that if a particular thing is to be done hi a particular manner then it is to be done only in that particular manner and not otherwise. He has placed reliance on the case of Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd (PLD 1965 (W.P) Lahore 82) wherein a Division Bench of Lahore High Court has observed: "Moreover when the law requires a certain thing to be done in a particular way, it should be done in that manner and not otherwise. In Nazir Ahmad v. King-Emperor (AIR 1936 P C 253 (2), it was held that where a power is given to do a certain thing in a certain way the thing must .be done in that way and other methods of performance are necessarily forbidden." Mr. Channa, the learned counsel for respondents has then submitted that this being a fiscal law it is to be construed very strictly in favour of the subject. He has placed reliance on the case of SayyedAli Hussain Shah etc v. Town Committee (NLR 1989 Tax 204) wherein a learned Division Bench of this Court in a similar case has held that the above said Rules 4 to 7 provide a detailed procedure to be followed by the Council before imposition or revision of existing tax and that the, details be specified with regard to proposal in the notice to be published as given in sub-rule (2) of rule 4 as necessary. It was further observed: It is quite clear from the contents of the above notice issued by the Town Committee that it did not contain any detail of the taxation proposal prepared under Rule 3 of the Rules by the Town Committee. It cannot be disputed that where Statute confers power on an Authority to impose taxes in a prescribed manner, the Authority must follow the procedure prescribed before it could validly impose such taxes. In a case reported as Burshane (Pakistan) Ltd v. Cantonment Executive Officer, Cantonment Board ofKorangi Creek, Karachi, and 3 others (PLD 1983 Karachi 517) a Division Bench of this Court (of which one of us was a member) considered the imposition of a similar tax by the Cantonment Board under section 60 of Cantonments Act and held that where the tax was recovered without following the procedure prescribed under section 255 of the Cantonments Act, it was not valid. The provisions contained in section -255 of the Cantonments Act are comparable in many respects with the language and modalities prescribed under rules 4 to 7 of the Rules. The following observation of Supreme Court in the case ofSukkur Municipal Committee v. Muzaffardin and another (PLD 1967 S C 299) was also quoted and followed in the case of Burshane (Pakistan) Ltd. v. Cantonment Board which equally apply in the present case:- "The main object of this section appears to be that the rate-payers must be given adequate notice with sufficient detail in order to enable them to object to be proposed tax or duty. This cannot, it is true, be effectively done unless the classes of persons or properties proposed to be taxed and the rates at which the tax is proposed to be levied are also known. But it does not require simultaneously publication of both the rules as well as the schedule, provided both are published and the rate-payers are given sufficient opportunity of objecting to them. To make the tax effective, however, both must be published and until both are published the tax cannot be enforced. Indeed, the tax can come into force only from the date specified under Section 77 and both the rules and the schedule has been approved by the Provincial Government under Section 76". Considered in the light of above quoted discussions, we are in no doubt that the imposition of import tax by the Town Committee Radhan Station was violative of rules prescribed under the Ordinance,' 1979 in this behalf." The learned counsel has further placed reliance on the case of Lahore Municipal Corporation . D.P.Edulji and 4 others (1987 SCMR 2031) wherein also their lordships have held that the non-compliance of the provisions of Rule 4(2) of the said Rules would invalidate the revision of the taxes. The learned counsel has further placed reliance on the case of Burshane (Pakistan) Ltd v. Cantonment Executive Officer, Cantonment Board of Korangi Creek, Karachi (PLD 1983 Karachi 517) wherein also a Division Bench of Karachi High Court has made similar observations. In these circumstances I find no force in the present revision application! which is dismissed alongwith CMA 175/90. However, this oder will not restrain} the petitioners from revising the octroi schedule in accordance with law, (BMC) Petition dismissed

1990 Karachi 279 [Sukkur Bench] 1990 Karachi 279 [Sukkur Bench] Present: ABDUL RAHIM KAZI, J SHAH MUHAMMAD and another-Appellant versus Syed SABIR HUSSAIN and another-Respondents First Civil Appeal No. 17 of 1981, accepted on 6.5.1990. (i) Civil Procedure Code, 1908 <Y of 1908)- —O. VI Rr. 14 & 15--Plaint~Verification of--Procedure fpr-Omission to write name in verification para of plaint-Whether it is mere irregularity-Question of—Held; Provisions of Order VI Rules 14 & 15 which provide for signing of pleadings and verification, are procedural and omission is merely a procedural irregularity which can be cured at any stage even in appeal. [P.282]A 1980 Law Notes (SC) 354 and PLD 1980 Lahore 626 rel. (ii) Civil Procedure Code, 1908 (IV of 1908)-- —O. XIV R. 5~Issues~Framing of-Omission to frame an issue-Remedy for— No doubt, it is for court to frame issues as required under Order XIV but counsel for parties are also required to render assistance in framing of issues-­ Held: If trial court omits to frame any proper issue, it is for party pressing such issue to move an application to get such issue framed. Held further: Additional pleas raised by appellants being based on legal points, could be taken at any time, even at appellate stage even though no such particular issue had been framed in suit. [Pp.282&283]B&C 1990 MLD 355 rel. (iii) Civil Procedure Code, 1908 (V of 1908)- —O. XVI R. 10--Evidence--Closing of~Challenge to—Appellants paidVprocess fee in shape of court fee and summonses were issued to two witnesses-There is no endorsement on these summonses that same were served on them-Held: Appellants had complied with obligation cast upon them by paying process fee and getting summonses issued to said witnesses and. they cannot be penalised by closing their side if summonses were not served—Held further: A further opportunity should have been allowed to appellants to get summonses for attendance of said witnesses repeated or warrants, bailable or non-bailable issued under Order XVI Rule 10 CPC~Appeal accepted and case remanded. [P.284]D&E Mr. Hadi Bux Shaikli, Advocate for Appellants. Mr. Syed Zahir Hassan, Advocate for Respondents. Date of hearing: 6.5.1990. judgment The facts giving rise to the present first appeal are that the present respondent No.l had filed a suit for declaration, possession and mesne profits, being F.C. suit No.3/1978 in the court of Senior Civil Judge, Gambat. The suit was filed against the present appellants and respondent No.2 who was cited as defendant No.3 in the said suit and is a real brother of the present respondent No.l/plaintiff. The dispute relates to an agricultural land comprising of the survey numbers as shown in the plaint measuring 30-10 acres situate in deh Baharo, Taluka Gambat. The said Land (hereinafter referred to as the suit land) was transferred to the present respondent No.l and admittedly was being looked after and managed by his brother the present respondent No.2 upto the year 1975 whereafter the present respondent No.l himself started the supervision of the suit land and his brother the respondent No.2 shifted away to Karachi. According to the present respondent No.l when he took over the management of the land he found that the suit land was in possession of the present appellants who told him that they were the lessees of the land and they would be paying the lease money on the expiry of each year but ultimatley in December, 1977 the present appellants are said to have refused to pay the lease money and claimed to be purchasers of the suit land through three different agreements of sale which have been produced in evidence as Exhs. 34,35 and 36. The plaintiff, therefore, filed the said suit. The present respondent No.2 who was cited as defendant No.3 did not contest the suit and the suit was ordered to proceed exparte against him while the present appellants contested the suit and filed their written statement. The case of the present appellants is that they had purchased the suit land through the above said agreements alongwith other land belonging to other owners for total consideration of Rs.65,000/- and possession was handed over to them on 25.2.1966 when the first agreement was executed. The said agreements of sale are alleged to have been executed by the plaintiffs brother the present respondent No.2 acting as attorney for the owners and it is also claimed that he had shown the said power of attorney to the present appellants and received part payment in two instalments of Rs.5,000/- and Rs.32,000/-. The present appellants also raised legal points as additional pleas in their written statement. The learned trial Court framed the following issues:- 1. Whether the plaintiff is the exclusive owner of the property in suit? 2. Whether the plaintiff had given special power of attorney to the defendant No.3 authorizing him to sell the property in suit? 3. Whether the land in suit was under lease to defendants No.l and 2 till 1976? 4. Whether the defendant No.l and 2 are the bonafide purchasers of the land in suit by virtue of the alleged agreement of sale? 5. Whether the plaintiff has received any sale consideration either from defendant No.l and 2 or from defendant No.3? 6. Whether the defendants No.l and 2 have acquired the right of adverse possession on the suit land? 7. What should the decree be? Both the parties led the evidence and the learned Senior Civil Judge after hearing arguments was pleased to decree the plaintiffs suit for declaration, possession and mesne profits by judgment dated 8.9.1981 and consequently preliminary decree was passed on 12.9.1981. Being aggrieved the present appellants have filed the present appeal. I have heard Mr. Hadi Bux Shaikh, the learned counsel for the appellants and Mr. Zaheer Hasan, the learned counsel for respondent No. 1 while respondent No.2 who was served through publication has remained absent. The matter has been argued by the learned counsel for the parties at length. Mr. Hadi Bux Shaikh, the learned counsel for the appellants has raised the following three preliminary objections:- (i) The plaint is not properly verified. (ii) That the proper issues have not been framed by the trial Judge, (iii) That the present appellants were not permitted to summon and examine the witnesses. The learned counsel for appellants on the first point has referred to the plaint which shows that the suit had been filed by the present respondent No. 1 through his attorney S.Mubarak Hussain but in the verification at the foot of the plaint no such name has been mentioned. The verification reads as under: "I

son of adult, muslim resident of Ranipur and attorney of the plaintiff do hereby on solemn affirmation that the contents of the para No. 1 to 9 are true and correct to the best of my knowledge and belief. Verified and signed, this 4th day of May 78" I have verified from the original record which also shows that the name and father's name of the plaintiff have not been mentioned in the verification but the signature Mubarak Hussain..6rr2^rV.appear at the en< of plaint and he has also been identified by the learned counsel S. Zaheer Hasan and due oath has been administered to the said Mubarak Hussain. The learned counsel for the appellants has submitted that this plaint, therefore, is no plaint as it suffers from proper verification as required to be done under the provisions of Order 6 Rule 15 CPC which reads as under:- "15. Verification of pleadings. --(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties leading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." Repelling the above contention Mr. Syed Zeheer Hasan, the learned counsel for respondent No.l has admitted the omission to write the name in the verification para of the plaint is merely an irregularity and the plaintiff is not to suffer in consequence thereof but he should be given an opportunity to rectify the said irregularity. He has placed reliance on the ocase of Ismail and another v. Mst. Razia Begum and 3 others (1980 Law Notes (SC) (354) wherein their lordships have held that non-signing of plaint at proper stage is merely an irregularity where no prejudice is caused to the defendants. In the said case the District Judge had allowed the rectification of irregularity by permitting the plaintiff to sign the plaint at late stage which was up-held by the Hon'ble Supreme Court. The other case on the point cited by the learned counsel for the respondent No.l is that of Ch.Riffat Hussain and another v. AsifKJian and another ((PLD 1980 Lahore 626) wherein a learned Single Judge of the Lahore High Court has observed that the omission of verification of plaint is merely a procedural irregularity and such procedural omission should not be allowed to defeat the substantive rights. In view of the case law as cited above by the learned counsel for the respondent No.l, it may be observed that the provisions of Order 6 Rule 14 and 15 which provide for signing of the pleadings and verification thereof are procedural provisions and omission thereof is merely a procedural irregularity which can be cured at any stage even in appeal. On other objection with regard to non-framing of the issues, the learned counsel for the appellants has pointed out that the learned trial Judge has omitted to frame the issues on the basis of the additional pleas taken by the present appellants in their written statement. He has referred to the written statement of the appellants and the additional pleas taken therein. The learned counsel has further submitted that the framing of the issues is the duty of the Court and omission to frame proper issues on the ground that the same were not pressed by the parties cannot be pressed to condone the failure to frame the necessary issues. He has placed reliance on the case of Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others (PLD 1961 Dacca 65). . I have gone through the additional pleas raised by the appellants in their written statement which all pertain to the legal points whereas the issues framed by the trial Judge show that all the seven issues are based on the pleas of fact. No doubt it is for the Court to frame the issues as required under Order 14 of the Civil Procedure Code but a date for framing of issues is also a date of bearing as has been held in a number^ of cases by the superior courts. Learned counsel for the parties are also required to render their assistance in framing of issues. However, if the trial court omits to frame any proper issue, it is for the party pressing such issue to move an application under Order 14 Rule 5 CPC to get such issue framed. The provisions of order 14 Rule 5 CPC read as under:- "5. Power to .amend, and strike out, issues - (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may, also at any tune before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced." Mr. Zaheer Hasan, the learned counsel for the respondent No.l has placed! reliance on the case of Habibullah KJian and others v. Saadat Klian and others (1990 MLD 355) wherein a Division Bench of the Peshawar High Court has held that the framing of issues was the duty of the Court but the counsel representing the parties were expected to bring to the notice of the Court any omission or incorrectness of any issue framed by the Court and that failure of the counsel to point out such errors at the proper time would disentitle him to raise such point for the first time at appellate stage particularly when he could not show any prejudice having been caused to his client in the discharge of onus placed upon him. I have no hesitation in agreeing to the above said proposition as laid dovn by the Division Bench of Peshawar High Court. Moreover it may also be observed that the additional pleas raised by the present appellants in their written statement are based on legal points and it is settled law that a legal point can be taken at any time, even at the appellate stage even though no such particular issue has been framed in the suit. In view of the above position I do not agree with the learned counsel for the appellants on this point. It was the duty of the learned counsel for the appellants to have made an application under Order 14 Rule 5 CPC if he had wanted any additional issue to be framed and having failed to do so he cannot be permitted to raise the said plea at the appellate stage. The third point raised by the learned counsel for the appellants is that he was not permitted by the trial Judge to summon and examine the witnesses as desired by him and that his side was closed. The learned counsel for the appellants has pointed out that the case of the present appellants is that they had purchased the suit land from the brother of the plaintiff through three agreements of sale and that this brother of the plaintiff was the attorney of the plaintiff and that the present plaintiff in his cross-examination with regard to these agreements of sale did not specifically deny the signatures of his brother but he said that he cannot say that these were the signatures of his brother. From this the learned counsel has submitted that it was imperative upon the present appellants to call and examine the said brother of the plaintiff as he, having been arrayed as defendant No.3 in the suit had deliberately remained absent and allowed suit to proceed exparte against him. The learned counsel has further pointed out that such application for summoning the said brother of the plaintiff, namely, Mushraf Hussain was made to the Court which was granted and summons were issued for his attendance in Court on 19.5.1981 for which date he had sent telegram from Karachi seeking adjournment on account of illness and on this date the case was adjourned to 2.6.1981 for which date also the summons were issued to the said witness Mushraf Hussain copy of which is on the record of the lower court at page 77 but the case diary of the suit shows that on this date also the defendant's witnesses are absent and the matter is then adjourned to 23.6.1981. However, there is no other document in the case filed after this date except for the case diary which shows that on 23.6.1981 the "D.Ws. though served with summons are absent. Defendant's advocate has sent adjournment application. Order on it. Granted. Adjourned to 8.8.81" and on this date i.e 8.8.1981 the defendant's side is ordered to be closed for the reason that DWs are absent. Thereafter the suit was adjourned for arguments to 22.8.1981 when the arguments were heard and the matter was put off for judgment. From this the learned counsel for the present appellants has submitted that the appellants/defendants have not been allowed due opportunity to examine their witnesses in support of their contention. He has placed reliance on the case of Naeem Engineering Corporation and others v. Government of Punjab (1986 SCMR 316) and the case of Malik Industries v. Haji Muhammad Din (1988 CLC 2191). Mr. Syed Zahir Hasan, the learned counsel for the present respondent No.l has submitted that when the defendants' witness was absent on 23.6.1981 the. defendants should have moved an application under Order 16-Rule 10 CPC for issuance of proclamation requiring. the said witness to give evidence or for issuance of a warrant for procuring the attendance of the said witness in Court and that the case diary does not show if any such application was moved by the present appellants. I have examined the original record of the lower court. The record shows that the summons for the date of 23.6.1981 were issued to the said witness Mushraf Hussain and another witness Khuda Bux which was served on them. There is also available on the record the copy of the summons issued to the said two witnesses, namely, Mushraf Hussain and Khuda Bux for the date of 8.8.81 and process fee is also paid in the shape of court fee stamps but there is no endorsement if such summons were served on them. The case diary also shows that on 8.8.81 an application for adjournment is moved by the defendants which is numbered as 73 in the case diary but the same is not available in the file of the trial court and it can not be said as to what were the reasons mentioned in that application and what was the prayer made. In these circumstances I am satisfied that the present appellants/defendants had complied with the obligation cast upon them by paying the process fee and getting summons issued to the said witnesses and they cannot be penalized by closing their side if the summons were not served on the said witnesses but in all fairness either a further opportunity should have been allowed to them to get the summons for attendance of said witnesses repeated or process in the form of warrants, bailable or non-bailable, be issued as required under Order 16 Rule 10 CPC. From the above discussion I am satisfied that the present appellants have not been allowed due opportunity to summon their witnesses and their side has been closed arbitrarily. For the above reasons without going into the merits of the case I would accept the above appeal, set aside the judgment and decree passed by the lower court and remand the case to the Court of Senior Civil Judge, Gambat to allow an opportunity to the present respondent No. 1 to cure the irregularity in verification of the plaint and also to allow the present appellants/defendants Nos. 1 and 2 to get their witnesses summoned and examined in the suit and thereafter to give the judgment in accordance with the merits of the case. However, there will be no order as to costs. Since the matter is a very old one, the trial court should make efforts to dispose off the same expeditiously. (MBC) Appeal accepted.

PLJ 1990 Karachi-285 PLJ 1990 Karachi-285 [Sukkur Bench] Present: Abdul Rahim Kazi, J GOVERNMENT OF SINDH and others-Appellants versus ABDUL MAJEED and another-Respondents 1st Civil Appeal No. 9 of 1982, accepted on 1.4.1990 Civil Courts Ordinance, 1962 (W.P. Ord. II of 1962)- —S. 18—Suit-Decree of~Appeal against—Pecuniary Jurisdiction of appellate court-Determination of—Words "original suit" appearing hi sub-section (1) clause (a) of-section 18 show that value of original suit is to be taken into consideration to determine pecuniary jurisdiction of appellate court—In this case, original value of suit is determined by plaintiff as Rs. 400/- as tentative value with undertaking to pay further court fee when final account is determined-Held: Final amount having been determined at Rs. 2,23,299/-, same is proper value for purposes of jurisdiction and as it is above Rs. 50000/-, appeal lies before High Court and not before District Court-Appeal accepted. lPp.287,288,289&290]A,B,e&Di PLD 1985 SC 393 and PLD 1987 SC 284 distinguished AIR 1934 Lahore 488 and AIR 1934 Lahore 545(2) rd. Mr. Muhammad Siddiq KJiaral, Addl. A.G. for Appellants. Mr. Abdul LatifMemon, Advocate for Respondents. Date of hearing: 1.4.1990. judgment This first appeal has been filed by the present appellants challenging the final decree passed by the learned Senior Civil Judge, Sukkur In F.C. Suit No.97/1981 (old No. 81/69) whereby the suit of the present respondents was decreed for an amount of Rs.2,23,299/- only. The facts leading to present appeal are that the present respondents were given a contract of wahid Gul forest lots No.7 and 8 by the present appellant for sum of Rs.l,35,000/-and Rs.20,200/-respectively and also the lot No.l of Gundak Forest and lot No.2 Rountee forest for Rs.61,000/- and Rs.44,100/- respectively. These contracts were given through public auction. The present respondents cut the trees as per the terms of contract and then on their application they were allowed to remove the said material to Sukkur on condition that the entire material brought to Sukkur will be pledged with the Divisional Forest Officer Sukkur and the same will be released on payment of the value and that the chowkidar will be appointed by the D.F.O. Sukkur at the cost of the present respondents. Such pledge was executed by the present respondents. It is also the case of the present respondents in the suit that they had made some payment before the execution of the said pledge and proportionate material was released by the present appellant No.3. It is further the case of the respondents that on some occasions the respondents were allowed to remove the material on payment of proportionate amount but thereafter the present appellant No.3 did not allow them to remove the stock. The present respondents, therefore, filed the present suit for accounts and damages. The present appellants did not file their written statement but inspite had been seeking adjournments for considerable long time as such the learned Senior Civil Judge ordered the suit to proceed ex parte against them and ultimately the preliminary decree was passed on 31.3.1970 whereby the suit of the present respondents was decreed for settlement of accounts. However, it was observed that the damages if any will be determined after settlement of accounts. An appeal, civil appeal No.134/1970, was filed against the said preliminary decree which was dismissed on 23.2.1971. The Commissioner was appointed who had taken the accounts and submitted his report whereby he found that the present respondents were liable to pay an amount of Rs.1,36,711/- to the present appellants being balance of contract value. As against this he found that the present respondents were not allowed to remove the pledged material for no fault of theirs and that the present appellants had prevented them from taking their material, the value of which the Commissioner ascertained to be Rs.3,60,000/-. From this the report of the Commissioner shows that the present appellants were liable to pay amount of Rs.2,23,299/- to be due against the present appellants. The objections were filed by the present appellants to the said report and the learned Senior Civil Judge after hearing the advocates for both the sides was pleased to uphold the report of the Commissioner and passed the final decree. It is against this final decree that the appellants have filed the present appeal. Learned counsel for the respondents has also moved an application under Order 7 Rule 10 CPC read with section 151 CPC being CMA 149/1990 with the prayer that the appeal be returned to the appellant for presentation before the District Judge as the value of the suit is less than Rs.50,000/- and the same would fall within the jurisdiction of District Judge. I have heard Mr. Muhammad Siddiq Kharal, Additional Advocate General Sindh for the appellants and Mr. Abdul Latif Memon, learned counsel for the respondents. Learned Additional Advocate General Sindh has mainly contended that the lower court has erred in confirming the report of the Commissioner and that the Commissioner while taking accounts has not taken into consideration the amount of penalty imposed by the present appellants which the respondents were liable to pay and had to be adjusted from the amount found due to them. He has further submitted that since the final decree is for an amount of Rs.50,000/- the appeal would lie before the High Court as provided under section 18 of the Civil Court Ordinance, 1962. As against this Mr. Abdul Latif Memon, advocate has submitted that the liability to render accounts as against the present appellants stood established when the preliminary decree was passed and the preliminary decree has attained finality and the same cannot be reopened now in the present appeal as the appeal filed against the said preliminary decree has been dismissed .and no further appeal or civil revision was filed. It was observed by the learned District Judge, "There will, however, be no charge for the wood that has not been supplied to the respondents". However, without going into merits at this stage I would first take up the plea raised by the learned counsel for the respondents with regard to pecuniary jurisdiction involved in the present appeal. Mr. Abdul Latif Memon, learned counsel-for the respondents has submitted that section 18 of the Civil Courts Ordinance 1962 as amended upto date provides that where the value of the original suit is less than Rs. fifty thousand, an appeal would lie before the District Judge. It will be advantageous to reproduce the relevant section which reads as under: - "Appealsfrom CivilJudges.-(T) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie- (a) to the High Court if the value of the original suit in which the decree or order was made exceeds fifty thousand rupees, and (ft) to the District Judge in any other case. (2) - The Teamed counsel for the respondents has placed reliance on the case of Muhammad Nawaz v. Sher Muhammad (PLD 1987 SC 284) wherein the Rule laid down by the Hon'ble Supreme Court in the case of Illahi Bux and others . Mst. Bilquees (PLD 1985 SC 393) has been held to govern the case. Relying on the above 2 cases the learned counsel for the respondents has submitted that this is a fit case where the appeal should be returned to the present appellants for presentation before the Court of District Judge. As against this Mr. Muhammad Siddiq Kharal, Additional Advocate General has submitted that the above cited two cases pertain to the pre-emption suits and the subject matter involved in the said cases was agricultural land. Whereas the present suit is for accounts in which the amount finally found due is above Rs.50,000/-, therefore, this should be the value of the suit. I have given anxious consideration to the submissions of'the learned counsel and also the case-law cited as above. It may be observed that the words "original suit" as appearing in sub-section (1) clause (a) of section 18 are very pertinent. It clearly shows that the value of the original suit is to be taken into consideration while determining pecuniary jurisdiction of the appellate Court. In the above cited case of Illahi Bux v. Mst. Bilquees (PLD 1985 SC 393), the point under consideration was valuation of the land and the suit being for pre­ emption was valued under section 7(v) and (vi) of the Court Fees Act, wherein the valuation was to be done, in accordance with the value of the land according to the formula as provided in the above clauses of section 7. It may also be pertinent to note that in the same judgment my lord Mr. Justic Nasim Hasan Shah has observed that the suit for pre-emption is a suit for possession of agricultural land and valuation is to be made on the basis of Land Revenue as provided in clause (v) of section 7 Court Fees Act and not to be computed or calculated on the basis of its market value. However, it has been further observed:- "It may, however, be observed that we have not been able to appreciate the wisdom of the Legislature in fixing a notional value for purposes of court-fee and jurisdiction in the case of pre-emption suit for possession of agricultural land. The fixation of such a value fof%iits for possesssion of land simpliciter is perhaps understandable but the extension of the principle to pre-emption suits does not appear to be reasonable and the instant case is an apt example of its unreasonableness. Herein admittedly the market value of the land was Rs. two lacs, but on account of the artificial rule governing the matter its value for purposes of court-fee was fixed at Rs.1,520/- and that for jurisdiction Rs.4,560.30. Remedial legislative action is obviously desirable. In fact, this has already been pointed out by this Court in Shahana Khan v. Aulia Klian (PLD 1984 SC 157) Civil Appeal No.184 of 1980, decided on 21st November, 1983 wherein it was observed, inter alia:- "If a pre-emptor is ready to pay the price paid by the vendees or whatever is determined by the Court, as the price payable by him, he should be ready to pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable at the limit of the value concerned)" We expect the Ministry of Justice to give due consideration to the above aspect and direct that a copy of this judgment be forwarded to the Secretary, Government of Pakistan in the Ministry of Justice, Islamabad for this purpose." The similar view has been taken by the Hon'ble Supreme Court in the other case of Muhammad Nawaz v. Sher Muhammad (PLD 1987 SC 284). With all respect to the above cited decisions of the Hon'ble Supreme Court, I may humbly observe that the present suit being a suit for accounts is on different footing and is to be valued under the provisions of section 7 (iv)(f) of the Court Fees Act which provides: 7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- (Hi) .............. (/v) In suit- (a) ... (c) (d) (f) for accountsaccording to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought." From the above provisions it is obvious that the choice in such suit is that of the plaintiff to value his suit according to amount as shown by him. In the present case the valuation of jiie suit is made by the plaintiff in clause 12 of the plaint wherein he has shown the two reliefs of accounts and damages to be valued at Rs.200/- each. It is from this that the original value of the suit is determined by plaintiff which is Rs.400/-. However, in the same clause 12 the plaintiff further said that the said value is tentative and he will pay court fee when the exact amount of damages are ascertained by the Court. In the present suit as stated above the plaintiffs have not given any fixed value in suit but have valued the suit only tentatively with undertaking that they will pay further court fees stamps when the final amount is determined which amount in the present case is determined at Rs.2,23,299/- and, therefore, this should be the amount which can be said to be value of the original suit. Not only this but learned Senior Civil Judge while passing the final decree should have called upon the present respondents/plaintiffs to pay the further Court fees stamp as required under Court Fees Act as the suit for accounts is to be valued ad valorem. In the case of Kala Ram v. Hanwant Ram and others (AIR 1934 Lahore 488), a Full Bench of the Lahore High Court comprising of 5 Judges have observed: - "From what has been stated above it follows clearly that in suits for recovery of money on unsettled accounts the "value as determinable for computation of court-fee" is the value as given in the plaint unless it is enhanced by an adjudication of the Court that a higher sum is due, in which case it is this latter sum which becomes the value on which courtfee is computed and which therefore is also the proper value for purposes of jurisdiction. But there is no variation of value as originally fixed in the plaint if the amount found due is less than that claimed or if the suit is dismissed, the plaintiff being held entitled to nothing. In the last mentioned classes of cases the value for computation of court-fee and consequently is also (he value for purposes of jurisdiction. Applying this rule to the present case, it awst be held that the "value of the subjectmatter of the original suit" is Rs.8,000/- as stated in the plaint, and not 3,375-4-6 for which the subordinate Judge bad passed a decree and therefore under S.39 (1) Punjab Courts Act, appeals against that ddcree, whether instituted by the plaintiff for enhancement of the decretal amount or by the defendant for the total dismissal of the suit, lie to this Court." Same principle has been followed by the Full Bench of of Lahore High Court in the case of Ganga Ram v. Hakim Rai and another (AIR 1934 Lahore 545 (2). From the above discussion it may be observed that in the case of suit for accounts where the value of the original suit is enhanced by an adjudication on taking accounts and finding a higher sum to be due then in that case the latter sum becomes the value on which the Court fee is to be computed and which thus is the proper value for the purposes of jurisdiction and the jurisdiction of the Court to which the appeal would lie is also to be determined in accordance with this latter value. In the case in hand the amount found due is above Rs.50,000/- and, therefore, I am of the view that the appeal lies before the High Court and not before the District Court. Now I proceed to consider the appeal on mertis. Mr. Muhammad Siddiq Kliaral, the learned Addl. A.G. has submitted that the learned lower court while passing the order and final decree has ignored to take into consideration the objections filed by the present appellants to the Commissioner's report. He has submitted a copy of the objections which is on the record. The learned Addl. A.G. has submitted that the preliminary decree in the suit shows that the suit was decreed only for settlement of accounts and it was ordered that the damages, if any, would be determined after the settlement of accounts but the impugned order in final decree does not show if any such damages have been determined. He has further submitted that the report of the Commissioner shows that the amount which is found due against the present pellants is the loss and damage which the present respondents/plaintiffs have sustained. It is also the contention of the learned Addl. A.G. that even the Commissioner himself has not taken into consideration the objections raised before him by the present appellants. The learned Addl. A.G. has pointed out that in the objections the appellants from their accounts have shown the quantity of wood which was left at the place of storage at Sukkur by the present respondents which was taken over by the present appellants on account of failure by the present respondents in payment of the due instalments within time. The said objections also show that such seized quantity of wood was put to auction and an amount of only Rs.52,000/- was realized from the said wood which facts were to be taken into consideration. The learned Addl. A.G.has further submitted that as per the terms of agreement between the parties the respondents had to pay the contract money by way of instalments by the dates as mentioned in the contract and having failed to pay the said amounts it was the present respondents who were guilty of the violation of the contract and not the present appellants. He has further submitted that the learned lower court while passing the order on the Commissioner's report has not taken into consideration all these above mentioned facts but has simply confirmed the report of the Commissioner without assigning any reasons. Mr. Abdul Lateef Memon, the learned counsel for the respondents has not been able to meet the above submissions of the learned Addl. A.G. The impugned order passed by the learned lower court on the Commissioner's report shows that the Commissioner's report has simply been confirmed without taking into consideration the objections filed by the present appellants. In these circumstances I would allow this appeal, set aside the final decree passed by the lower court and remand the case back to the Court of Senior Civil Judge, Sukkur to pass a fresh order after giving due hearing to the advocates for the parties and taking into consideration the facts mentioned by the appellants in their objections filed to the report of the Commissioner. However, there will be no order as to costs. (MBC) Appeal accepted.

PLJ 1990 Karachi 290 (DB) PLJ 1990 Karachi 290 (DB) [Sukkur Bench] Present: QAISER AHMAD HAMIDI and ABDUL RAHIM KAZI, JJ GUL HASSAN-Petitioner versus DIVISIONAL SUPERINTENDENT, RAILWAYS and 4 others-Respondents Const. Petition No. D-85 of 1987, accepted on 9.5.1990 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —-S. 25-A-Gricvancc petition-Acceptance of-Back benefits-Non-awarding of-Challenge to-Whether refusal to grant back benefits on rc-instatement of workman is against principles of law—Question of—Petitioner has stated in his affidavit-in-evidence that since his removal from service, he remained jobless and this factual position was not disputed by respondents No. 1 to 3~Sindh Labour Court and Sindh Labour Appellate Tribunal have erred in holding that since petitioner had dragged contesting respondents to civil courts and Federal Service Tribunal, he was not entitled to back benefits—Held: Impugned orders refusing to grant back wages to petitioner for period during which he remained out of employment, are without lawful authority and of no legal effect. | Pp.292,294&295]A,B,C&D PLD 1970 SC 415, PLD 1973 SC 589, PLD 1983 Lahore 661, 1983 PLC 721 (DB), 1983 PLC 725 and 1990 PLC 346 rel. 1983 PLC 1279 not relevant. Mr. MA. Rashid, Advocate for Petitioner. Mr. Slwbbir Ahmad Awan, Advocate for Respondents 1 to 3. Nemo for Respondents 4 & 5. Date of hearing: 9.5.1990. judgment Qaiser Ahmed Hamidi, J.~The material facts culminating in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, briefly, are that the petitioner was appointed as Signaller in Station Master's Group in the year 1966. On 22.9.1979, while the petitioner was working as Assistant Station Master at Railway Station, Padidan, he was served with a show cause notice on the charge of alleged detention of a train at Railway Station, Padidan without any schedule. It is the case of the petitioner that he was removed from service vide order dated 19.10.1979 without holding any departmental enquiry and without affording him a proper opportunity to defend him. He, therefore, preferred a departmental appeal, but no reply was received. In the meanwhile the petitioner filed Civil Suit No.288 of 1979 in the Court of Senior Civil Judge, Nawabshah, challenging the show cause notice, but the same was dismissed on 13.3.1980. The appeal filed by the petitioner before District Judge, Nawabshah, being Appeal No.26 of 1980, met the same fate and was dismissed on 27.7.1980, treating the petitioner as a civil servant. Consequently the petitioner challenged his order of removal before Federal Services Tribunal, Islamabad, through Appeal No71-K of 1980. This appeal was not found maintainable, as according to the Tribunal the petitioner was a workman. The petitioner after adopting the grievance procedure invoked the jurisdiction of Sind Labour Court No.VII, Sukkur, by making an application under section 25-A of the Industrial Relations Ordinance, 1969, praying his reinstatement in service with full back benefits. The learned Presiding Officer, Sind Labour Court No.VII, Sukkur allowed the application made by the petitioner, set aside the order of his removal from service and directed his reinstatement. He, however, refused back benefits to the petitioner on the ground that he had dragged the respondents in civil Court and Federal Service Tribunal. This order dated 30.11.1983, was challenged by both the parties before the Sind Labour Appellate Tribunal, Karachi, but both the appeals were dismissed by the learned Tribunal vide order dated 16.12.1986. The orders dated 30.11.1983 and 16.12.1986 passed by Sind Labour Court No.VII Sukur, and Sind Labour Appellate Tribunal, Karachi respectively by which back benefits were refused to petitioner are the subject matter of this petition. 2. The most important point that the learned counsel for the petitioner has been able to bring out is that in case an employee is illegally removed from service, he is entitled to the back wages by way of consequential relief, as if h? was actually rendering services. This question was examined by the Supreme Court in well known case of Pakistan through General Manager, P.W.R.,Lahore v. Mrs. A.V. Issacs, reported in PLD 1970 S.C. 415, although in relation to a Government servant, and was answered in the following words:- "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful. Should a Government servant be entitled to recover his pay for the full period he was kept out of service? It seems to me that if the dismissal was wrongful, then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage." This view was followed in Divisional Superintendent, P.W.R., Karachi v. Bashir Ahmed, reported in P.L.D. 1973 Supreme Court, 589, and it was held that a suit for recovery of arrears of salary by way of consequential relief in a case for wrongful dismissal from service was competent. 3. Admittedly, both the Labour Court and the Sind Labour Appellate Tribunal have come to the conclusion that the removal of petitioner from service as in violation of the mandatory previsions of law. Consequently the petitioner continues to be in the employment of respondent No.l to 3, in continuation of his past services. The refusal to grant back benefits to the petitioner in such circumstances was against the principles of law laid down by the superior Courts. In the case of Niaz All v. Punjab Urban Transport Authority, Lahore and 3 others, reported in P.L.D. 1983 Lahore 661, Abdul Shakrul Salam, J (as he then was), observed:- "The only question involved is whether the back benefits could be withheld. Once it was held that the termination of the service was wrong or unsustainable, it followed as a natural corollary that withholding of the salary of incidental benefits was also wrongful and without lawful authority. The judgments quoted by the learned counsel for the petitioner support him." 4. This question was again examined by a Division Bench of this Court in the case of Textile Corporation of Pakistan Ltd. v. Sindh Labour Appellant Tribunal and another, reported in 1983 P.L.C. 721, wherein following observations were made:- "Regarding the payment of wages for the period the worker was kept out of work, it has been held in P.L.D. 1963 S.C. 140 in a case under Payment of Wages Act that the mere fact that the employee was not given work by the employer will not derogate his right to receive wages that after the re­ instatement of the employee the authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period. In P.L.D. 1973 S.C. 589 it was likewise held that where an employee is ready and willing to render service but the employer is not affording him opportunity to render such service, the employee is entitled to full wages unless a deduction is expressly allowed under the Act: that in a suit for declaration of dismissal as illegal and for recovery of arrears of salary by way of consequential relief the claim for the arrears of full salary of a civil servant who was kept out of employment under wrongful order was recognized subject to the only qualification that if during the relevant period he was gainfully employed he shall account for his earning in making claim for the arrears of salary (Pakistan v.Mrs.A.V Issacs), PLD 1970 S.C.415. It is true that these decisions are based on Payment of Wages Act or in cases of wrongful dismissal from service but the general principles are of wide application. Therefore, repeal of provisions relating to junior Labour Courts will not have the effect of depriving the workers in cases of wrongful dismissal of claiming the benefits for .the period they were wrongfully kept out of work." 5. The Labour Appellate Tribunal Baluchistan took a similar view in the case of Senior Vice President, United Bank Ltd v. Muhammad Hanif, reported in 1983 P.L.C. 725, in the following words:- "Mr. Munawar next contended that the back benefits should also not have been allowed by the Labour Court as it had vacated the order of dismissal passed by the Bank only on a technical ground. In fact a person who has not been removed from service in accordance with law is liable to be treated in service and is thus generally entitled to all benefits which would have come to his share, had his services not been terminated illegally. May be in such cases where the workman has engaged himself in some profitable business afterwards, such benefits may be withheld but this would depend on the circumstances of each case which would guide the court in the exercise of its discretion. However, such is not the position in the instant case. The respondent is continuously out of service. In similar circumstances in Textile Corporation of Pakistan Ltd v. Sind Labour Appellate Tribunal and another (N.L.R. 1980 Karachi 172), it was held by a Division Bench that while re-instating a workman in service on the ground that Enquiry Officer's decision was absolutely illegal, the court should not deprive him of his legitimate dues. The instant case stands on better footings because here no enquiry had been held at all. Similar view was taken in Allied Bank of Pakistan Ltd v. Punjab Labour Appellate Tribunal etc. (1980 P.L.C. 42) and it was held that the order of reinstatement should be coupled with an order of back benefits unless specific reasons were given for denying the same. In the circumstances of the case, I do not find any cogent reason to deprive the respondent of the back benefits." 6. The question of awarding back benefits was again considered by a Division Bench of this Court in the case of Syed Asghar Imam v. Sindh Labour Appellate Tribunal and 2 others, reported in 1990 P.L.C. 346, and was answered as under:- "In our view, this has now been settled in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others, reported in P.L.D. 1987 S.C.447, that when a Tribunal is invested with the power to decide a matter it is obliged to decide properly in accordance with law and not what it considers just and proper. In the instant case, the learned Sindh Labour Appellate Tribunal after having held that the dismissal of the petitioner from service was not sustainable, the back benefits could not have been denied for the reasons found favour with the learned Sindh Labour Appellate Tribunal reproduced in paragraph 13, as admittedly there was no charge against the petitioner of the negligence in the enquiry which resulted in the dismissal of the petitioner. The denial of back benefits to a workman should be with reference to the factum, whether he had earned during the relevant period or, whether he could earn and not with reference to some other facts which may not be germane to the above issue. In other words, there should be nexus between the ground of denial of the back benefits and the factum of actual earning which can be set off against the wages/salary due or the factum that the workman could earn, but he failed and neglected to earn. The above Supreme Court case of the Pakistan Railways and the above Lahore case of the learned Judge support the learned counsel for the petitioners' above contention. Mr. Hamood M.Siddiqui was unable to cite any ruling in which the contrary view might have been taken by any Court." The petitioner has stated in his affidavit-in-evidence filed before Sind Labour Court No.VII, Sukkur, that he was jobless since the time he was removed from service, -and this factual position was not disputed by respondents No.l to 3. No doubt the award of back benefits is discretionary, but discretion has to be exercised on sound judicial principles and not on whims and fancy of an individual. Discretion when applied to Court of justice means "sound discretion guided by law". 7. The only grievance, learned counsel for respondents No.l to 3 ventilates is that the petitioner in his notice has not asserted that he was not gainfully employed elsewhere during the period he was out of job. It is difficult to be patient with arguments of this kind. Admittedly the petitioner had challenged his order of removal in the grievance notice. The prayer of back benefits flows out of this grievance. The Sind Labour Court No.VII, Sukkur, and the Sind Labour Appellate Tribunal, Karachi, have again erred in holding that since the petitioner had dragged the contesting respondents to civil Courts and Federal Services Tribunal, he was not entitled to back benefits. The petitioner was asserting his legal rights. It was not clear, whether he was a 'civil servant' or a 'workman'. The Additional District Judge considered him as a 'civil servant' and when he approached the Federal Services Tribunal, he was found to be a 'workman'. It was obviously due to this reason that the Sind Labour Court No.VII, Sukkur, condoned the delay of filing a belated application under section 25-A of the Industrial Relations Ordinance, 1969. The petitioner could not be penalised for this lapse, which was obviously not intentional. In such a situation the case of Habib-ul-Rehman v. Malik Cotton Factoiy, reported in 1983 P.L.C. 1279, relied upon by Sind Labour Court No.VII, Sukkur, and Sind Labour Appellate Tribunal, Karachi, was not relevant. 9. For the foregoing reasons, we would allow the petition and declare that the order of Sind Labour Court No.VII, Sukkur, respondent No.4, and the Sind Labour Appellate Tribunal, Karachi, respondent No.5, in respect of refusing to grant back wages to the petitioner for the period he remained out of employment is without lawful authority .and of no legal effect and that the petitioner is entitled to the same. However, there will be no order as to costs. 10. By a short order dated 9.5.1990, we had allowed this petition and these are reasons for the said order. (MBC) Back benefits allowed.

PLJ 1990 Karachi 295 PLJ 1990 Karachi 295 Present: MUKIITAR AHMAD JUNEJO, J Mst. KHURSHID JEHAN-Plaintiff versus Syed AZIZ AHMAD NAQVI and 2 others-Respondents C.M.A No. 5374 of 1989 in Civil Suit No. 697 of 1987, dismissed on 15.2.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. VII R. 11—Plaint—Rejection of—Prayer for—Admittedly present suit relates to same property which was admittedly owned by respondent No. 1 who allegedly entered into sale agreements in respect of same property through respondent No. 3-Under agreement dated 4.4.1987, respondent Noil agreed to sell property to respondent No.2 while under agreement dated 5.4.1987, he agreed to sell property to plaintiff-It is admitted position that suit of respondent No. 2 for specific performance has been decreed and decree has been executed-That decree would come in way of plainliff-It is correct that plaintiff was not party to previous suit but she is claiming her interest through respondent No. 1-Held: Present suit in respect of specific prcformance, is barred by res-jitdicata-Held further: Suit of plaintiff for damages is not barred by res-judicala and plaint cannot be rejected partially—Application dismissed. [Pp.298&299]A,B&C 1987 SCMR 1627, PLD 1985 Karachi 705 and 1987 MLD 489 nut applicable. Mr.S.D. Rana, Advocate for Plaintiff. Mr. Abdul Sattar Shaikh, Advocate for Defendant No. 2. Dates of hearing: 14 & 15.2.1990. order In this suit for specific performance of an agreement of sale dated 5.4.1987 defendant No.2 Imdad Ali has filed this application for rejection of the plaint. 2. Admittedly the suit property viz. Plot No. 184-M Block-2, P.E.C.H.S., Karachi was owned by defendant No. 1 Aziz Ahmed Naqvi. Plaintiff Khursheed Jehan claimed that defendant No. 1 through his attorney Saleem Akhtar defendant No. 3 had agreed to sell her the suit property for Rs. 11,50,000/- and such agreement was executed on 5.4.1987. Out of the total consideration of the suit land Rs. 5,00,000/-were said to have been paid by the plaintiff to the defendant No. 1 through defendant No. 3 at the time of execution of the agreement dated 5.4.1987, while remaining amount was payable by the plaintiff within 45 days of registration of an irrevocable power of attorney in her favour. In this suit plaintiff Mst. Khursheed Jehan prayed inter alia that the defendant-No. 3 be called upon to execute the sale deed in her favour and get it registered. She also prayed for possession of the suit plot and for damages amounting to Rs. 23,00,000/-. 3. In his application (CMA No. 5374/89) the defendant No. 2 prayed for rejection of the plaint on the ground that suit of the plaintiff was barred under Sections 11 and 12(2) of C.P.C. Case of the defendant No. 2 was, that under an agreement dated 4.4.1987 defendant No. 1 had agreed through defendant No. 3 to sell him the suit property and there was such agreement. Defendant no. 2 filed Suit No. 623/87 in this Court for specific performance of the sale agreement dated 4.4.1987. Aforesaid suit was decreed on 29.2.1988. In said suit defendant No. 1 and the Administrator, P.E.C.H.S. were the only defendants. Subsequently plaintiff Mst. Khursheed Jehan moved an application under Section 12(2) of C.P.C. for setting aside of the judgment and the decree, passed in favour of defendant No. 2 Imdad Ali, on the ground that he had obtained the decree by fraud, misrepresentation of facts and suppression of facts. Said application was however disposed of as dismissed on 17.4.1989 by a learned single Judge of this Court, as the same was not pressed by Advocate for Mst. Khursheed Jehan. On the basis of said facts defendant No. 2 prayed for rejection of the plaint. 4. Mr. Abdul Sattar Shaikh, learned Counsel for the defendant No. 2 argued that present suit was barred by res judicata in view of the decree passed in favour of defendant No. 2 in previous Suit No, 623/87. Learned Counsel conceded that Mst. Khursheed Jehan was not party in Suit No. 623/87 but contended that in the present suit Mst. Khursheed Jehan was claiming her right through defendant No. 1 Aziz Ahmed who was party in the previous suit. Learned Counsel referred to the application moved under Section 12(2) of C.P.C. by Mst. Khursheed Jehan in Suit No. 623/87 and argued that the order dated 17.4.1988 disposing off her application under Section 12(2) of C.P.C. read with the judgment and the decree passed in Suit No. 623/87, would bar trial of this suit. Learned Counsel cited the case ofJulcil Din v. Mst. Asghaii Begiim and others (1984 SCMR 586) where it was observed as below:-- "It is obvious that in Section 12(2), C.P.C. the word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the lawmaker been to restrict the right of filing the application under Section 12(2), C.P.C. only to the judgment debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned Counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provisions of law would be frustrated because then a person not being a judgment-debtor or his successor-ininterest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents." 5. Mr. S.D. Rana, learned Counsel for the plaintiff opposed the application vehemently and contended that the decision in Suit No. 623/87 cannot bar trial of present suit, because in the said suit Mst. Khursheed Jclian was not party. In respect of the order dated 17.4.1988 disposing of application of Mst. Khursheed Jehan, her Counsel argued that a review petition was moved against said order and during pendency of the review application no effect can be given to the order dated 17.4.1988. The agreement dated 4.4.1987 in favour of Imdad Ali was alleged to have been managed fraudulently, just to avoid the agreement dated 5.4.1987. Learned Counsel for the plaintiff argued that his review application could be consolidated with this suit and placed reliance on the case of Abdul Rasheed and others v. Mohammad Hanif and others (1985 CLC 1887) where after dismissal of plaintiffs suit the defendant instituted a suit for claiming ownership of same property while the plaintiff filed appeal against dismissal of his suit and the view taken by a learned single Judge of Lahore High Court was that plaintiffs suit already dismissed may be decided a fresh alongwith the suit instituted by the defendant. This docs not cover the point at issue, as no appeal was preferred against the judgment and the decree passed in Suit No. 623/87. Learned Counsel for the plaintiff relied on the case of Ghulam Nabi and others v. Mohammad Yaqoob and others (PLD 1983 SC 344) where it was held that trial of a suit which was already pending at the time of withdrawal of an earlier suit was not barred. This authority is also not applicable to present case. Reliance was also placed on the case of 5. NisarAli v. Ferozuddin and another (1969 SCMR 933) where part of a suit was withdrawn and the other part was decreed and subsequently a fresh suit was brought in respect of the part of the suit withdrawn and it was held that the Court which allowed withdrawal of part of claim was presumed to have impliedly granted permission to bring a fresh suit in respect of the claim withdrawn. In the instant case there was nothing on record to suggest that Advocate for Mst. Khursheed Jehan while not pressing the application under Section 12(2) of C.P.C. desired to bring a fresh application under the same provision. On the point of res judicuta, learned Counsel for the plaintiff cited the cases of (/) Mohammad Siddiquc and others v. DM. Tharparker and others (1985 CLC 2885) and (//') M/s. Pak Tobacco Company Limited v. Pak Cigarette Labour Union and others (PLD 1964 Karachi 337). In latter case the view taken was that in order to support a plea of res judicata the former decision must have been given on merits of the question in issue in the subsequent litigation. In the former case a D.B. of this Court observed that bar of res judicata would not apply if previous writ petition was dismissed only on a technical point without considering merits of the case. In the present case Suit No. 623/87 was not contested but decision in it was given on merits of the case. By no stretch of imagination the judgment given in Suit No. 623/87 can be considered to be on technical points only. Hence the cited case does not apply. Dilating on the provisions contained by Section 12(2) of C.P.C., learned Counsel for the plaintiff cited the cases of (/) Mubarak AH v. Fazal Mohammad and another (1987 SCMR 1627), («') Mst. Mariam and others v. Haji All and others (PLD 1985 Karachi 705), (Hi) Karachi Development Authority v. Wall Ahmed KJian (1987 MLD 489). In (/) above the Supreme Court of Pakistan simply granted leave to appeal to consider the contention that since certain petitions for special leave were not pressed before the Supreme Court, that did not tantamount to passing of final orders by the Supreme Court of Pakistan for the purposes of moving an application under Section 12(2) of C.P.C. This authority does not further the case of either party. In (ii) above the view taken was that the persons not parties to the suit could not make application under Section 12(2) of C.P.C. as the decree in the suit had no binding effect on such person. A contrary view has been expressed by the Supreme Court of Pakistan in the case of Jalal Dm v. Mst. Asghari Begum & others (1984 SCMR 586) where it was held that use of the word "Person" in Section 12(2) of C.P.C. clearly indicated that right of filing of application under Section 12(2) of C.P.C. was not restricted to the persons parties to the litigation. In (Hi) above the allegations of fraud and manipulation were levelled against the plaintiff and bailiff of the trial court but such court failed to go into the allegations and failed to hold an inquiry and disposed of the application under Section 12(2) of the C.P.C. on the basis of an order earlier passed by the lower Appellate Court in a revision application. In the circumstances, order of the trial court was set aside and the case was remanded to the trial court for disposal, after holding a proper inquiry in the allegations made by the petitioner. In the instant case the application under Section 12(2) of C.P.C. moved on behalf Mst. Khursheed Jehan was not pressed by her advocate and in the circumstances it was not incumbent upon the court to hold an inquiry into the allegations of fraud etc. 6. Admittedly Suit No. 623/87 and the present suit (No. 697/87) relate to the same property which was admittedly owned by Aziz Ahmed. Aziz Ahmed allegedly entered into sale agreements in respect of the same property through his attorney Saleem Akhtar. Under the sale agreement dated 4.4.1987 he agreed to sell the property to Imdad AH while under the agreement dated 5.4.1987 he agreed to sell the property to Mst. Khursheed Jehan. It is an admitted position that suit filed by Imdad Ali for specific performance of the sale agreement dated 4.4.1987 has been decreed and such decree has been executed. In presence of such decree, anomalous result would follow, if present suit is decreed in favour of Mst. Khursheed Jehan for specific performance of the sale agreement dated 5.4.1987. Even if revision petition of Msl. Khursheed Jehan is accepted, that would reopen her application under Section 12(2) of CPC. For the present, I am convinced that the decree passed in Suit No. 623/87 would come in the way of Mst. Khursheed Jehan in the present suit. 7. It is correct that Mst. Khursheed Jehan was not party to the previous suit but she is claiming her interest through Aziz Ahmed, who was party to the previous suit. In this view of the matter, I am clear in my mind that the present suit in respect of specific performance of the sale agreement dated 5.4.1987 is barred by res judicata. 8. The matter does not end her. In this suit the plaintiff has also claimed damages from the defendants to the tune of Rs. 23,00,000/. Suit of the plaintiff for damages is not barred by res judicata and I hold it accordingly. Order 7 Rule 11 of C the C.P.C. can have application only if all the reliefs claimed by the plaintiff are barred by any law. If soitye of the claims are barred the plaint cannot be rejected partially. Consequently I dismiss this application. (ABC) Application dismissed.

PLJ 1990 Karachi 299 (DB) PLJ 1990 Karachi 299 (DB) Present: saeeduzzaman siddiqui and imam ali G kazi Jj NASEEB ULLAH-Petitioner versus Syed TARIQ ALI RIZVI and 5 others-Respondents Const, petition No. D-2481 of 1989, dismissed on 6.3.1990 Cantonment (Election and Election Petitions) Rules, 1979- —R. 66-Member of Cantonment-Election of~Election petition against— Acceptance of~Challenge to-Documcnts clearly proved that name of petitioner was entered in voters list on 9.12.1987 for first time-Official respondents categorically denied in their respective written statements before election tribunal that name of petitioner was entered in voters list on 31.11.1987-Held: In above state of evidence, Election Tribunal rightly concluded that name of petitioner did not appear in electoral list on 1.12.1987, therefore, he was not qualified to be candidate from that ward-­ Held further: Dispute raised by respondent No. 1 before tribunal related to qualification of petitioner as a candidate and not as a voter and as such, proviso to rule 66 was not attracted in this case-Petition dismissed. [Pp.302&303]A&B Mr. Abaidur Rehman, Advocate for Petitioner. Mr. Shainsuddin KJialid, Advocate and Mr. A.G. Mangi, A.A.G for Res­ pondents. Dates of hearing: 23.2.1990,1 and 6.3.1990. judgment Sueeduzzaman Siddiqi, J.--This petition under article 199 of the Constitution is filed by one Naseebullah to challenge the order of District Judge/Election Tribunal, Karachi (East) dated 18.2.1989. By the impugned order the Election Tribunal declared the election of petitioner as a member from Ward No. 2, of Malir Cantonment Board, as illegal and void and directed rc-eleclion in the said constituency. The facts relevant for the decision of the petition may be stated as follows; 2. Both the petitioner and respondent No. 1 were candidates in the election which was held for electing a member of Malier Cantonment from Ward No. 2 on 30.12.1989. The petitioner who secured 372 votes as against respondent No. 1, who secured 26 votes only, was declared elected. Respondent No. 1 challenged the election of petitioner as a member of ward No. 2, Malir Cantonment through an election petition before the District Judge (East)/Election Tribunal, on the grounds that on the date of filing of his nomination papers, the petitioner was not enrolled as a voter in the voter list of Ward No. 2 of Malir Cantonment, and as such he was not entitled to contest the election from Ward No. 2. The Election Tribunal after recording evidence of the parties reached the conclusion that the name of the petitioner was entered in the voter list of Ward No. 2 on 9.12.1987, after the date of announcement of election schedule, namely, 1.12.1987, and as such he was not qualified to seek his election from ward No. 2 of Malir Cantonment, the petitioner has challenged the above order of the Election Tribunal and the learned counsel for the petitioner has raised the following contentions in support of the petition:-- (/) That no election petition was maintainable on the ground that the name of the petitioner was wrongly entered in the voter list of Ward No. 2 of Malir Cantonment as he was not qualified to be enrolled as a voter, in view of rule 66 of the Cantonment (Election and Election Petition) Rules, 1979. (/(') 1 hat the finding of the Election Tribunal that the name of the petitioner was inserted in the electoral roll of Ward No. 2 of Malir Cantonment Board on 9.12.1987 is based on no evidence and in any case the above finding was arrived at by ignoring the important pieces of evidence on record. After hearing the learned counsel for the parties at length we are of the view that no case is made out for interference with the order of the Election Tribunal. 3. Under Section 15 of the Cantonment Act, 1924 (hereinafter to be called as 'the Act' only), every Cantonment is to be divided into Wards so that the number of such Wards is equal to the number of elected members of Board provided for that Cantonment in Section 13-A of the Act, excluding the number of seats, if any, reserved for woman, workers, peasants and minorities under subi ection (4) of Section 13-A ibid. Under Section 15-A of the Act for every such ; ward of the Cantonment a separate electoral roll, showing the names of Muslim voters qualified to vote at election to Board, is to be prepared on the basis f the electoral rolls pertaining to that Cantonment, prepared under Section 4 of the Electoral Roll Act, 1974. Rule 6 of the Cantonment (Election and Election Petition) Rules, 1979 (hereinafter to be called as "The Rules" only) also provides that the Board or where the Board is not constituted the Officer Commanding of the Station, shall in accordance with Section 15-A of the Act prepare by the 1 st uly of each year an electoral list for Muslim voters drawn up on street to street basis and divided into separate parts for each Ward as well as electoral roll for non-Muslim voters drawn up on street to street basis for the Cantonment as a whole. Section 15-B of the Act provides that a person who seeks election as a ember of the Board must be 21 years of age on the 1st day of January preceding the election and his name appears for the time being on the electoral roll of the Ward from which he is seeking his election as a member of the Board and is not subject to any of the disqualifications prescribed in sub-Section (2) of Section 15- B ibid. There is no contention in the present case that the petitioner suffered from any of the dis-qualifications prescribed/mentioned in sub-Section (2) of Section 15-B of the Act. The only point which was agitated before the Election Tribunal by respondent No. 1 in his election petition was, that the name of the petitioner did not appear in the electoral roll/list of Ward No. 2, from where he sought his election as a member, on the cut off date, namely, 1st December, 1987. It was urged before the Election Tribunal by respondent No. 1 that the name of the petitioner was entered in the voters list of Ward No. 2 on 9.12.1987 and as such he was not qualified to be elected from that Ward. It is an admitted position in the case that the date for holding of election in respect of Malir Cantonment was announced by the Government under rule 7 of the Rules on 1.12.1987 and as such the electoral rolls which could from the basis of that election was the list prepared on 1st of July, 1987 in accordance with rule 6 of the Rules. It is common ground between the parlies that only those persons were entitled to take part in the election from Ward No.2 in the election held on 30.12.1987 whose names appeared in the voter list of Ward 2, on 1.12.1987. The Election Tribunal after going through the evidence on record reached the conclusion that the name of the petitioner was entered in the electoral list on 9.12.1987.and, therefore, he was not qualified to be candidate from Ward No. 2, on the date he submitted his nomination paper. The contention of the learned counsel for the petitioner before us is that while arriving at the above conclusion the Election Tribunal failed to consider Anncxure AA/8 which is on record and which according to the learned counsel clearly established that the name of the petitioner appeared in the list of voters of Ward No. 2 of Malir Cantonment on 30.11.1987. The document Anncxure AA/8 relied upon by the learned counsel for the petitioner is alleged to be an application made by the petitioner to the Registration Officer, exercising his option to retain the address of 23/F Gujrat Lane, Malir Cantonment, instead of 75-C Canlt Bazar Area, Malir Cantonment. However, a reading of the said document would show that it was addressed to the Returning Officer, Karachi (Easl) Karachi and jl was slated therein lhat the applicant/pelilioncr had made two applications for entering his name in the voters list of Cantonment with the addresses of 23/F Gujrat Lane, Malir and 75/C Cantt Bazar, Malir. It was further stated in thai application that out of the above two applications the one with the address of 75/C Canlt Bazar, Malir may be cancelled while the other with the address of 23/F may be accepted. The learned counsel for the petitioner contended that this application was made on 30.11.1987 and was allowed on the same day. From a bare perusal of the document Annexure AA/8 it would appear that there were clear manipulation of dates on it. Below the signature of petitioner on the document the date is mentioned as 2.12 while on the endorsement which the pctilioner claimed was made by the Registration Officer, the date appeared to • have been changed to 30.11.1987. Besides, the contents of the application AA/8 clearly showed thai il was made for the purpose of gelling ihe name of pelilioner enlercd in ihc voters list. As against the document AA/8, relied by ihe petitioner, respondent No. 1 alongwilh his affidavil-in-evidence filed before the Tribunal, submitted number of documents which eslablished lhat the pelilioner gol his name entered in the voters List of Ward 2 with ihe address of 23/F Gujrat Lane, Malir on 9.12.1987. The relevant documents filed by respondent 2 before the election tribunal were AA-4 to AA-7 and AA-9 to AA-16. From a careful examination of these documents it will appear that the petitioner first applied to Registration office on 29.10.1987 (AA-5) for inclusion of his name on the address of 75-C Cantt. Bazar, Malir Cantt. He again applied to Registration office on 4.11.1987 (AA-6) for entering his name in the voter list with the address of House No. 39, shed No. 18, Model Colony, Karachi. On 2.12.1987, petitioner once again made application to registration office (AA-9) requesting that his address may be corrected as 75-C, Cantt. Bazar and this application was granted on the same day as would appear from the order passed on his application (AA-9), Extract from register of objection (AA-7) and certificate of Registration office (AA-9). On 7.12.1987, the petitioner applied to Deputy Commissioner (East) with the request, that his name is entered at two places in the supplementary list which is under preparation and that instead of 75-C Cantt. Bazar which is the address of his father his name may be shown with the address of 116/C, Cantt. Bazar. The petitioner with his above application (AA-11) filed the tenancy agreement and his affidavit (AA-12 and AA-13). The Deputy Commissioner, East passed the following order on the application (AA-11):-- "S.T.M. For necessary action as per affidavit" Sd/-". Again on 9.12.1987 the petitioner filed another application (AA-14) to Deputy Commissioner (East) for change of address to 23-F Gujrat line on which the Deputy Commissioner and the R.O. passed their following orders respectively on 9.12.1987:-- "Sr. T.M. & Reg. Officer for necessary action as per rules. Sd. D.C. East." 9/12 "Second change of address in the voters list of Mr. Naseebullah s/o Amanullah is allowed. He wants that 23-F Gujrat line Malir Cantt. be mentioned as new address where he is living. Sd/- x x". 9/12 The above mentioned documents clearly proved that the name of petitioner in the voter list of Ward 2 of Malir Cantt. was entered for the first lime on 9.12.1987. The learned counsel for the petitioner made an attempt to argue before us that some of the documents referred to above were not genuine but from the statement of the petitioner which was recorded on oath before the Election Tribunal no such plea appears to have been taken before the Tribunal. The petitioner in his examination-in-chicf before the Tribunal in fact made no reference to any of these documents. It is also worth mentioning that the Official respondents in the election petition categorically denied in their respective written statements before the election tribunal that the name of petitioner was entered in the voter list on 31.11.1987 and specifically pleaded that the name of petitioner in Ward No. 2 was entered only on 9.12.1987, but no effort was made by the petitioner to examine any of these respondents in support of his contention that he had made the application for entering his name in the voters list of Ward No. 2 on 30.11.1987, which was allowed by the Registration Officer on that date. In the above state of evidence, the learned Election Tribunal rightly concluded that the name of the petitioner did not appear in the electoral list of Ward No. 2 of Malir Cantonment on 1st December, 1987 and, therefore, he was not qualified to be a candidate from that Ward in the election. The only other argument of the learned counsel for the petitioner which remains to be considered is, that in view of rule 66 of the Cantonment (Election and Election Petitions) Rules, 1979 the Election Tribunal was not entitled to go into the question of validity of entries in the electoral roll. The argument on the face of it is wholly misconceived. Rule 66 relied by the pclitir -ier reads as follows: "66. Officer to whom the petition should be presented. A petition calling in question the validity of an election or the return of a particular candidate may be presented in writing to the District Judge of the district within which the election has been held (or where there is no District Judge, to such judicial officer as the Provincial Government may appoint in this behalf) within seven days after the date on which the result of the election was declared either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election: Provided that no such petition shall be presented on the ground either that the name of any person qualified to vote has been omitted from the electoral roll or that the name of any person not so qualified has been inserted in the roll." The proviso to the above rules clearly states that a petition challenging the election shall not be entertained on the ground either that the name of any person qualified to be a voter has been omitted from the electoral roll or that the name of the person not qualified to be a voter has been entered in the electoral roll. No such dispute was raised before the Election Tribunal by the respondent No. 1, who challenged the election of petitioner from Ward No. 2 on the sole ground that the petitioner was qualified to contest the election from Ward No. 2 of Malir Cantonment as his name was not entered in the voter list of Ward No.2 on 1.12.1987 when the election programme was announced. Therefore, the dispute raised by respondent No. 1 before the Tribunal related to qualification of petitioner as a candidate and not as a voter and as such the proviso to rule 66 was not attracted in the present case. No other contention was raised. There is no merit in this petition, which is accordingly dismissed but we will make no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Karachi 303 (DB) PLJ 1990 Karachi 303 (DB) Present: saleem akhtar and wajii iuddin ahmad Jj K.S. SULEMANJI ESMAILJI and Sons LTD--Pelitioner versus PAKISTAN, THROUGH MEMBER, CENTRAL BOARD OF REVENUE, and 2 others-Respondents Const, petition No. 263 of 1986, accepted on 5.3.1990 Customs Act, 1969 (IV of 1969)-- —Ss. 32 &. 223-Show cause notice-Issuance of—Principles for-Central Board of Revenue, by General Order, had issued direction to Customs Authority that wherever show cause notice under Section 32 is issued, full particulars of value relied by Department should not only be disclosed but its copy should be provided to importer to rebut it—General Order is binding on all officers of Custom Department under Section 223 of Act—Held: As petitioner was not furnished with relevant invoice at any stage of hearing, impugned orders are without lawful authority and of no legal effect-Petition accepted and case remanded. [P.306]A PLD 1988 Karachi 99 re/. Mr. J.H. Rahimtoola, Advocate for Petitioner. Mr.M.Umar Qureshi, Advocate for Respondents. Date of hearing: 5.3.1990. judgment Saleem Akhtar, J.—The petitioner imported 1075 Cartons of Pineapple in Syrup at the rate of C&F U.S. $ 3.48 per carton of 24 tins of 20 Oz each. The goods arrived on 12.5.1980 on board M.V. President Roosevelt Voy. 76. The Bill of entry was submitted on the same day declaring the value of the goods as per invoice. It is alleged that the Customs' Authorities did not take any action and the petitioner wrote letter dated 14.6.1980 to the Collector of Customs complaining against the delay in clearance of the goods which had gone under demurrage w.e.f. 28.5.1980. The goods however were not allowed to be cleared and a show-cause notice was issued on or about 24.7.1980 by respondent No. 3 alleging that the documents delivered and declaration/statement made by the petitioner were untrue in material particulars and there was contravention of Section 32 of Customs Act 1969. It was alleged that the goods were grossly under invoiced to evade substantial Government revenue. The petitioner replied and stated that the show-cause notice was vague and did not give particulars of documents, declaration and statements. The basis of fixing the normal value was not disclosed nor it was shown whether it was based on transaction or information. It was further stated that the notice was bad in law for having been issued more than 2 months after the dale of Bill of Entry. A personal hearing was afforded before respondent No. 3 and it has been alleged that without taking into consideration the documents of the petitioner and the submissions made on its behalf order was passed on 12.12.1980 which was based on the invoice dated 25.1.79 of Sind Trading Company. It has been alleged that the facts & documents on which the order was based were not available at the time of hearing and the same were not disclosed to the petitioner. The petitioner filed Appeal against this order which was dismissed by respondent No. 2 Revision was filed by the petitioner before respondent No. 1 which was also dismissed. Mr. J.H. Rahinuoola, learned counsel for the petitioner has contended that the impugned orders are based on the invoice of Sind Trading Company which was neither shown to the petitioner at any stage nor copy was supplied and no opportunity was given to rebut it and therefore the impugned orders are illegal and without jurisdiction. The learned counsel has also contended that notice u/s. 32 is illegal. The petitioner has made such allegation in paragraph 15 of the petition and the same has not been denied in the Counter Affidavit. In reply it has simply been stated that "para 15 of the petition needs clarification that all such suggestions were given due consideration at the time of passing of order by respondent No. 3". The reply itself is so vague that in law it admits the averments made by the petitioner. It is not the case of respondents that at any stage the invoice of Sind Trading Company was produced or shown to the petitioner and an opportunity to rebut the same was afforded to it. On examination of the orders passed by the respondents it is clear that they have entirely relied upon the invoice of the Sind Trading Company which is the basis of imposing penalty on the petitioner. In this regard reference can be made to Indus Automobile Private Limited v. Central Board of Revenue (P.L.D 1988 Karachi 99) where the evidence relied upon by the Customs' Department was not disclosed to the importer, the case was remanded for re-determination of the value of the goods with the following directions:-- "15. We would, therefore, remand the above cases to the Assistant Collector of Customs (Appraisement) with the direction to show the material to the petitioners on the basis of which the prices in the CGOs relied upon by the department were notified and also to provide the petitioners opportunity to produce in rebut the material which they wish to produce and thereafter to decide question, whether the impugned assessments have been made in accordance with law. The petitioners shall be entitled to file appeals and other proceedings competent under the Act before the forums providing for in case they are aggrieved by the above fresh orders. The petitions stand disposed of in the above terms with no order as to costs." The learned counsel has referred to Customs' General Order No. 25/1973 reproduced at page 651 of the General Manual of Customs Laws by justice (Rtd) ZA. Ghana which lays down guide lines for issuing notice u/s. 32 of the Customs' Act. the relevant part is reproduced as follows: "In addition to the standing instructions already issued in the past, the Board desires that the show-cause notices must contain the following particulars: (i) In case involving misdcclarations of value the price basis on which the declared values arc held.to be mis-declared should be clearly stated and copy of the evidence on the basis of which it is so held should also be supplied to the party after omitting the names of the local importers of identical goods which are not required to be divulged to them. (//) The charges framed should be very clearly related to the applicable provisions of the law. (//"/) While fixing a dale for the hearing a reasonable time should be allowed to the respondent for properly examining the charge and the evidence given in the show-cause notice and for making arrangements for the appearance of advocate on his behalf in case he so desires. (/v) Wherever necessary a responsible official of the Valuation Branch should also be called in at the time of hearing to properly reply to questions raised by the respondent or his advocate. Show cause notice should be issued without any avoidable delay whatsoever after the seizure or detention of the goods involved. After the receipt of reply to the show cause notice cases should be decided as expeditiously as possible always bearing in mind that the goods under detention are undergoing heavy port trust demurrage charges which in many cases have been found to exceed the value of the goods and the penalty imposed by Customs." It is therefore, clear that Central Board Revenue by this General Order had issued direction to the Customs Authority that wherever a show-cause notice under Section 32 is issued full particulars and evidence of the value on which reliance is placed by the department should not only be disclosed but its copy should be provided to the importer so that he may be in position to rebut it. The General Order issued by the Central Board of Revenue is binding on all officers of the Customs Department as provided by Sec. 223 of the Customs' Act subject to the provision that such Order shall not interfere with the direction of the officers of Customs in exercise of their quasi Judicial function. The direction under this General Order does not fall within this exception. It lays down a procedure for issuing notice under Section 32 and ensures proper disposal of the case in a just and equitable manner. As the petitioner was not furnished with the relevant invoice of Sind Trading Company at any stage of the hearing, following the principles laid down in the Indus Auto Mobile's Case, we declare that the impugned orders passed by the respondents are without lawful authority and of no legal effect. We remand the case to respondent No.3 for hearing it in the light of the principles laid down in the Indus Auto Mobile's case. Respondent No. 3 shall disclose and furnish the evidence to the petitioners which he proposes to use against it to enable the petitioner to rebut it and defend itself. Respondent No. 3 shall also take into consideration all such objections which may be raised by the petitioner and decide the case within a period of three months. (MBC) Petition accepted.

PLJ 1990 Karachi 306 PLJ 1990 Karachi 306 Present: SYED ABDUR REMMAN J Mst. SAJIDA ABBAS ZAIDI-Plainliff versus Sycd ARSHAD ALI JAFRI-Defendant Suit No. 1262 of 1989, decreed on 17.1.1990 Civil Procedure Code, 1908 (V of 1908)-- —-O. XXXVII R. 3 read with Stamp Act, 1899, Section 12--Loan-Recovery of-- Suit for-Leave to defcnd-Application for--Contention that pronote was not fully stamped and stamps were not properly cancelled-Adhesive stamps of Rs. 15/- which are applied on back of leaf on which pronote and its receipt are written, are cancelled by a rubber stamp bearing word "attested"~All stamps have been effectually cancelled by rubber stamp in such a manner that same could not be used again-These stamps are to be treated as having been properly cancelled-Pronote, receipt of pronote and acknowledgment not only purport to bear signature of defendant, but entire body of acknowledgment and all blanks in pronote and receipt appear to be scribed by defendant himsclf-Held: Defendant is not entitled to leave to defend suit-Suit decreed. P.309]A,B,C,D&E Dr. Hameed Ahmad Ayyaz and Mr. Ghulam Ghaus, Advocates for Plaintiff. Mr, Qamar Muhammad KJian, Advocate for Defendant. Date of hearing: 17.1.1990. JUDGMENT (1) This is an application under Order 37 Rule 3 CPC. for leave to defend. The plaintiff has filed suit for recovery of loan of Rs. 1,40,000/- alleging that she had advanced the same to the Defendant in instalments. The Defendant acknowledged the same on a Rs. 10/- non-judicial Stamp-paper on or about 8.4.1988 and promised to return the same within three months. Additionally he executed a Pronote of Rs. 1,40,000/- on the same date. The Defendant did not return the amount after three months and even upto this date. Hence this suit. Mr. Qamar Mohammad Khan, who appeared for the Defendant, has contended that the amount is alleged to have been paid in instalments in February and March, 1988, while the Pronote and the acknowledgment deed are said to have been executed on 6.4.1988 and therefore, these were without consideration. I cannot agree with this contention. It is not necessary that the consideration for a Pronote or any other document should be paid on the same dale on which the Pronote or the document is executed. Even a consideration paid earlier in time is a good consideration. It was then contended by Mr. Qamar Mohammad Khan that there was an understanding between the parties that the amount of loan would be returned within three months according to the plaint and therefore, it was a conditional Pronote, hence it cannot be treated as a Pronote. This contention also docs not appear to be sound. It is no where written in the Pronote that the amount promised therein would be paid within three months. The mere fact that there was an oral understanding between the parlies to return the amount within three months, would not take away the uncondilional effect of the Pronote. The next contenlion of Ihe defendant's counsel was thai ihe stamps on ihe Pronolc were nol sufficient. It was pointed out that the Pronote and its receipts, which are printed on the same leaf, have been stamped on the back of the leaf in such a way that the stamps of Rs. 5/- are on the back of the Pronote portion of the leaf and stamps of Rs. 10/- are on the receipt portion of Ihe leaf, hence it would appear that there are only Rs. 5/- stamps on the Pronote. This contention also is not correct. When the Pronote and the receipt of the Pronote are on the same leaf, the mere fact that some of the stamps are on the portion which falls on the back of the printed receipt, would not lead the Court to treat those stamps as —•- on a paper other than that of the Pronote. Hence the Pronote is sufficiently stamped. It was also contended that the stamps were not properly cancelled and therefore, it is to be treated as if the Pronote was not duly stamped. In this connection it would be useful to reproduce Section 12 of The Stamp Act which reads as under:— "12. Cancellation of adhesive stamps.— (1) (a) Whoever affixes any adhesive stamps to any instrument chargeable with duty, which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and (b) Whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid cancel the same so that it cannot be used again. (2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped. (3) The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm wilh the true date of his so writing, or in any other effectual manner." The plain reading of sub-sec. (3) of Section 12 of the Stamp Act would show that the adhesive stamps are to be cancelled by writing on or across the stamp his name or initials and the date by the executant, and/ or in any oilier effectual manner. From the perusal of Sec. 12 (3) of the Stamp Act it is clear that writing his name or putting his initial by the executant is not the only mode of cancellation of the stamp. Adhesive stamps can also be cancelled in other ways. The object of cancellation of adhesive stamps is to prevent the same stamp from being used again. The cancellation is required for the purposes of preventing fraud. It has been held in P.L.D. 1978 Kar. 425 (Habib Bank Ltd. v. Raza Sons & Co.) that if an adhesive stamp is affixed on a document and it is cancelled by drawing a line across it, it cannot be used again unless it is removed from the document, which may not be possible without in some measure causing some visible damage to the stamp itself. Such a cancellation is effective because this section does not contemplate that a person required to cancel such a stamp must do so in such a manner that it may become impossible for a criminal minded person to use such stamp again in any circumstance whatsoever. Similar finding was given in a ruling which is reported in I.L.R. 1942 Kar. 56 (Moliram Nathomal v. Mangharam Tirathdas) which was relied upon by Naimuddin (J) in the above noted case of Habib Bank Ltd. v. Raza Sons & Co. It was a D.B. case wherein the stamp on the pronote did not bear the name or initial of the executant, but it merely bore the figure "28/2." In (1919) 5 Sind Law Reports 34 (Pessumal Reloomal v. Gaganmal Mammal) it has been held that "drawing of two lines crossing each other, across the face of a stamp is an effectual cancellation." In A.I.R. 1931 Allahabad 57 it has been held that "writing of name of executant on his behalf and under his direction by scribe on adhesive stamp is sufficient compliance with Section 12, if the person executing the document is illiterate." In the present case the adhesive stamps of Rs. 15/- which are applied on the back of the leaf on which the Pronotc and its receipt are written, are cancelled by rubber stamp bearing word "Attested". This rubber stamp appears to be the same which is affixed by the Notary Public, who attested the Pronote. It appears that either the executant, the Notary Public or some body else had affixed these rubber stamps on the adhesive stamp at the executant's instance. In any case all the stamps appear to have been effectually cancelled by this rubber stamp in such a manner that any body would at once find out that these stamps have been used and would not use them again. I am, therefore, of the clear view that under these circumstances these! stamps arc to be treated as having been properly cancelled and therefore, Sec. 12| of the Stamp Act would not come in the way of the plaintiff. It was finally contended by Mr. Qamar Mohammad Khan that the defendant has denied to have executed the pronote or acknowledgment and to have received the loan. Hence he should be given leave to defend the suit un-conditionally. I have seen the Pronote, receipt of the Pronote and the acknowledgment minutely. Not only that these documents purport to bear the signature of the defendant, but the entire body of the acknowledgment and all the blanks of the Pronote and receipt appear to be scribed by the Defendant himself in English. His denial of the execution or the receipt of consideration, therefore, appears to be illusory and raised by him as a sham defence. I am, therefore, of the clear view that the defendant is not entitled for leave! to defend the suit. Hence I dismiss C.M.A. No. 8063/1989. I The application for leave to defend having been dismissed, the plaintiff is entitled to a decree outright. I, therefore, decree the plaintiffs suit for the siim of Rs. 1,40,000/-. (Rupees one lac forty thousand). Mr. Hamecd Ahmad Ayaz Advocate for the Plaintiff gives up the claim of interest. Costs of the suit shall, however, be borne by the Defendant. (MBC) Suit decreed.

PLJ 1990 Karachi 309 PLJ 1990 Karachi 309 Present: syed ABDUR REIIMAN J. HABIB BANK LIMITED-Plaintif versus Mr. ABDUL LATIF NAS1R and 3 others-Defendants C.M.A. No. 3951 of 1989 in Suit No. 74 of 1988, dismissed on 22.2.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XXXVII R. 4-Leave to defend suit-Application for-Dismissal for nonprosecution of-Application for setting aside decree and restoration of application for leave to defend suit-On an application under O. XXXVII Rule 4, decree can be set aside only if defendant is able to show "special circumstances" warranting setting aside of decree-Words "special circumstances" are higher in degree than words "sufficient cause" and "good cause" shown under various rules of Order IX of CPC~Held: Excuse given by defendant and circumstances narrated by him do not amount to "special circumstances"--Held further: Fact that Advocate was suffering from acute sore throat and therefore, could not appear, can hardly be considered as "good" or "sufficient cause" what to say of "special circumstances"--Application dismissed. [Pp.311&312)A&B PLD 1984 Karachi 127 & PLD 19SS Karachi 334 re/. Mr. IqbalKazi, Advocate for Plaintiff. Mr. Hussain Adil Klialii, Advocate for Defendants. Dates of hearing: 20 and 22.2.1990. order C.M.A. No. 3951/1989 is an application under Order 37 rule-4 CPC. Brief facts giving rise to this application are that on 3.5.1989 my learned brother Mr. Justice Mukhtar Junejo dismissed the defendants' application for leave to defend filed by Defendants No. 1 to 4. It will be useful to reproduce the said order which reads as under:- "In this summary suit filed under the Banking Companies (Recovery of Loans) Ordinance, 1979, defendants 1 to 4 moved on 19.4.1988 present application for leave to defend. Notice of these applications was given to the plaintiff and they are pending since the date they were filed. These applications were fixed for hearing on 30.4.1989 when Counsel for defendants moved an application for adjournment, which was opposed by learned Counsel for the plaintiff. However, last adjournment was granted to learned counsel for the defendants to argue these applications and the mailer was adjourned to 3.5.1989. Today (3.5.1989) the Advocate for defendants is called absent since morning. It is now 11.30 a.m. I have heard learned counsel for the plaintiff. Learned counsel for the plaintiff argued that all the 4 applications moved on 19.4.1988 were time barred because the defendants were served by publication through Morning News dated 25.3.1988. In support learned counsel referred to amendment of Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 where the words "and service in any of the aforesaid modes shall be deemed proper and valid service for the purposes of the Ordinance" have been added. Reading together this amendment with the original Rule 8, I am unable to agree with learned counsel for the plaintiff that the Court has to blindly accept the service to be good if such service has been affected through any of the modes given by Rule 8. Rule 8 of Banking Companies (Recovery of Loans) Rules is to be read in juxta position with the provisions contained by the Civil Procedure Code relating to service of defendants in summary suits. Moreover the process was sent to the defendants through Bailiff even after the publication dated 25.3.1988. The defendants No. 2,3 & 4 were personally served on 10.4.1988. Hence period requiring defendants to apply for leave to defend would commence from 10.4.1988 and consequently I hold these applications to have been filed within the law of limitation. However, these applications have not been pursued. Consequently the same are hereby dismissed for non-prosecution. As a result of this, suit of the plaintiff is decreed with costs." The Defendants' counsel has given the following explanation for his inability to attend the suit:-- "3. That on 3.5.1989 the above Suit was fixed for hearing of applications under order 37 Rule 3 CPC for leave to defend the suit but I was sick and suffering in a case of ACUTE SORE THROAT and therefore, on 3.5.1989 I could not appear and proceed the above matter. A Medical Certificate is filed herewith. 4. That on 2.5.1989 I sent an application for adjournment to Mr. Sarfraz, the Clerk of Mr. G.M. Qureshy to move it before this Honourable Court in the above case fixed on 3.5.1989 and also I requested to Mr. G.M. Qureshy on telephone to attend the above case. 5. That on 3.5.1989 at about 4.00 p.m. Mr. G.M. Qureshy Advocate informed me on telephone that his Clerk Mr. Sarfraz became ill and the application was with him. He after attending his own matter fixed before His Lordship Chief Justice, at about 12.30 p.m. attended the Court of His Lordship Mr. Justice Mukhlar Ahmad Junejo and he was informed by Bench Clerk that the Suit was already adjourned to dale in office. 6. That after expiry of the Eid Holidays I made an enquiry about the case from the office of this Honourable court and found that on 3.5.1989 the applications of Defendants under Order 37 Rule 3 CPC for leave to defend the Suit were dismissed for non-prosecution and the suit was decreed cxparte, hence the accompanying application for setting aside exparte decree dated 3.5.1989 and restoration of the application under Order 37 Rule 3 CPC. for leave to defend the suit on its original position." It is contended by Mr. Iqbal Kaxi and rightly so, that in any application under Order-37 Rule 4 CPC, the decree can be set aside only, if the defendant is able to show 'special circumstances, warranting selling ide of the decree. The words 'special circumstances' used in Rule 4 of Order 37 CPC. are higher in degree than the words 'sufficient cause' and 'good cause' shown under the various rules of Order-IX CPC. The excuse shown by the Defendants' counsel in the above affidavit cannot be considered as a 'special circumstance', whereupon an application under Rule 4 of Order 37 CPC can be allowed. Reliance was placed on P.L.D. 1984 Kar. 121, Allied Bank of Pakistan Ltd. v. V.C. KJiilnani & 2 others wherein my learned brother Mr. Justice Saleem Akhtar observed as follows:-- "Now the question arises in which circumstances the decree can be set aside. This can be done only in 'special circumstances' which have not been defined. However, the words 'special circumstances' will restrict to a great extent the applicability of rule 4. In this regard reference can be made to the provisions of Order IX, rules 7, 9 and 13 which provide for selling aside the ex-parte order/decree. Under Order IX, rule 7 if a defendant appears and assigns 'good cause' for his previous nonappearance he may be permiilcd to appear. Under rule 9 ex-parte order of dismissal of plaint can be set aside on 'sufficient cause' being shown for non-appearance. Under rule 13 again the same words 'sufficient cause', have been used for selling aside an ex-parle decree. Under Order XXXVII neither of ihese words have been used. The words used are 'special circumstances' which seem to be different from 'sufficient' or 'good cause' and are comparatively narrower in their applicability. Special circumstances exclude ordinary circumstances or circumstances which may happen every day. They indicate such circumstances which may be rare, exceptional and are not of common occurrence. Therefore, heavy burden is cast on the defendants to show that circumstances had arisen which besides being good cause or sufficient cause were of special nature due to which he was unable to appear or fulfil the condition laid down in the order. Pulling ihe defendants case to test as required by rule 4,1 find that no special circumstance has been made out." Same and similar view has been taken by a Division Bench consisting of Mr. Juslice S. Sajjad All Shah (now CJ.) and mr. Justice Mohammad Mazhar Ali in P.L.D. 1988 Kar. 334, Abdulah Arain v. National Bank of Pakistan, where it was observed lhat the medical certificate which was issued by an M.B.B.S. Doctor was undated, only showed that the Defendant had been under trealment of ihe Doctor since 1984 for serious heart attack and he had been advised complete rest. It was further observed lhat ihis Certificate did nol show lhat the dcfendanl was in such serious condition thai he could not call his counsel to his house for consultation, nor could he speak to him on telephone. Some person from the family could have been sent lo enquire from Ihe Advocale about the progress of the case. I am, therefore, satisfied that the excuse given by the defendant and the circumstances narrated by him as above do not amount to 'special circumstances', which have to be shown before an application under Order-37 Rule 4 CPC can be allowed. The fact that the Advocate was suffering from acute sore throat and therefore, could not appear, can hardly be considered to be a 'good' or 'sufficient cause' what to say of'special circumstances'. I, therefore, do not find any merit in this application and dismiss the same. (M BC) Application dismissed.

PLJ 1990 Karachi 313 PLJ 1990 Karachi 313 Present: WAJIHUDDIN AHMAD, J HABIB BANK LIMITED KARACHI-Appellant versus NOOR AHMAD-Respondent FRA No. 399 of 1989, accepted on 18.12.1989 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 16(2)—Tenant—Ejectment of—Defence—Striking of—Challenge to—Rent Controller committed error while passing order of deposit of arrears of rent in not ordering adjustment of amount lying in Misc. Rent case-Where calculations are left for tenant to make, such order involves departure from statutory requirements and fails to qualify prescribed test for invocation of penal consequences-In this case, Controller merely passed an order of transfer of moneys lying in Misc. Rent Case without ascertaining and determining as to what exactly such amount was-He!d: Order of deposit being indefinite, uncertain, vague and even contrary to law, provisions of Section 16(2) of Ordinance, for striking off tenant's defence^ could not be called in aid- -Appcal accepted. [Pp.314,315&3!6]A,B,C&D PLD 1982 Karachi 107, PLD 1%4-Karachi 418 and PLD l'9<>5 Karachi 367 rcl. PLJ 1985 Karachi 129 and PLD 1980 SC 9 distinguished 1987 SCMR 1013 and 1988 SCMR 970 n-f. Mr. Muhammad Akmal Wasim, Advocate for Appellant. Mr. Iqbal Ahmad, Advocate for Respondent. Dates of hearing: 3 and 6.12.1989. judgment Wajihuddin Ahmed, J.~This is a tenant's appeal. Originally, the landlord of the disputed premises was one Abdul Rasheed, who died on 13.2.1983. Notice of devolution, under Section 18 of the Sind Rented Premises Ordinance, dated 13.2.1983, from the legal heirs of the deceased landlord, was served on the appellant-tenant, in reply to which, on 1.1.1984, such tenant requested for transfer documents, as well as, Guardianship certificate, in respect of the minor legal heirs. While on the original of such reply nothing was indicated by the tenant-bank but, simultaneously, an office endorsement was made on its copy for deposit of rent, apparently, in the names of the purported legal heirs. Such deposit was made in a Miscellaneous Rent Case, as from March, 1985. It is claimed by Noor Ahmed, respondent, that he obtained Letters of Administration and despatched notice dated 15.10.1985 to the tenant, alongwilh a copy thereof, but no reply to the same was received. Mr. Akmal Wasim, for the appellant-bank denies having received such notice or a copy of Letters of Administration. Be that as it may, on 16.12.1985, Noor Ahmed, aforesaid filed a Rent Case, from which the present appeal has arisen. In such Ejectment Case, on 19.3.1986, an application under Section 16(1) of the Sind Rented Premises Ordinance was submitted for deposit of rent from March, 1984, to February, 1986, in response whereto objections were preferred, on 10.5.1986, wherein it was maintained that no arrears were due as the rent was deposited in Court and continued to be so deposited. This was followed by Rent order, dated 10.7.1986, wherein arrears of rent from March 1984 to June 1986 a period of 28 months, were directed to be deposited, at the rate of Rs. 1,000/- per month, aggregating Rs. 28,000/-, in all. This, however, was subject to adjustment of the rent already lying deposited. On 11.8.1986, however, a statement was submitted by the tenant that deposit could not be made in the Rent Case, due to certain difficulties and that the rent continued to be deposited in the Miscellaneous Rent Case. This was followed by an application, dated 17.2.1987, for striking off the defence, but that application was dismissed, per order dated 15.7.1987. Noor Ahmed, thereupon filed F.R.A. bearing No. 75/88 in this Court which, on 18.2.1988, was dismissed by my learned brother Saleem Akhtar, J., in limine, holding that the Controller could only direct deposit of rent, as such, and since the direction for adjustment of the deposited rent in the Miscellaneous Rent Case involved vagueness and an irregularity, defence of the tenant could not be struck off. Direction was made for a fresh order of deposit. On remand, on 5.7.1988 a fresh application was moved for deposit of rent under Section 16(1) of Sind Rented Premises Ordinance, in pursuance whereof another order was made for such deposit on 17.9.1988. However, as the tenant did not make deposit, in compliance, its defence was again struck off on 13.4.1989. The present appeal has been preferred questioning the order last mentioned. I have heard Mr. Mohammad Akmal Wasim, for the appellant-tenant and Barrister Iqbal Ahmed for the respondent. 2. It is clear from a perusal of order dated 17.9.1988 that the Controller, in passing such order of deposit, committed the same error, as was involved in the earlier order, passed on 10.7.1986, in that the amount ordered to be adjusted and lying in the Misc. Rent Case was again not quantified and all that was directed was that such deposited amount be transferred to the Rent Case and adjusted in the context of the required deposit in such case. In Mohammad Asla/n v. Mohammad (PLD 1982 Kar; 107) my learned brother Saleem Akhtar, J., expressed the opinion that under Section 13(6) of the then applicable Sind Urban Rent Restriction Ordinance, VI of 1959, if the Controller passed an order which did not determine the due amount approximately and allowed vagueness to creep into a? ouLi by leaving calculations, as to deposited rents in Miscellaneous Rent proceedings, to the parlies or to any other person then such could not be an order, strictly, in compliance with the provisions in Section 13(6) of the aforesaid Ordinance, Relying upon the view of Wahiduddin Ahmed, J., in a Division Bench case of this Court, reported as Syed Ahsan AH v. Jaffer AH & another (PLD 1964 Kar; 418), which was followed in Kliair Mohammad Nizamani v. Abdul Quddus (PLD 1965 Kar; 367), my learned brother came to the conclusion that the provisions of Section 13(6), aforesaid, being penal in nature, had to be strictly construed and if the order as to deposit of arrears or future rent did not, strictly, conform with law, the defaulting tenant could not be evicted for non-compliance of a defective order. I cannot sec as to how a different view of the matter can be under Section 16 of the Sind Rented Premises when the two statutory provisions involve similar incidents and connotations.. As seen, an order of deposit of rent, be it under Section 13(6) of Ordinance VI of 1959 or the Sind Rented Premises Ordinance, 19/9 has to be certain, free of vagueness and must have an element of definitiveness. Thus where calculations are left for the tenant to make or for him to confirm from another set of proceedings, such order involves departure from staluiory requirements and fails to,qualify the prescribed test for invocation of penal consequences. 3. There can be no cavil with the proposition that the rent lying deposited in a Misc. Rent Case can be taken note of and even adjusted while passing an order of tentative deposit, under Section 16(1) of Sind Rented Premises Ordinance. However, as pointed out, it is essential that such deposited amount in the Misc. Rent proceeding is clearly quantified. This being done, if the Controller so desires, a direction can be made for transfer of such deposited amount from the Misc. Rent Case to the Rent Case itself and, due adjustment being given, the tenant can be directed to deposit the balance and accruing dues in the Rent ase. However, all the learned Controller did in this case was merely passing an order of transfer of the moneys lying in the Misc. Rent Case, without ascertaining and determining as to what exactly such amount was. .This being the position of the order, the dicta of my learned brother Saleem Akhtar, J., was, clearly, over­ looked. Since as a result, the order of deposit remained indefinite, uncertain, vague and even contrary to law. the provisions of Section 16(2) of the Sind Rented Premises Ordinance, for striking off the tenant's defence, could not be called in aid. following upon non-compliance. 4. However, Mr. Iqbal Ahmed, for the respondent, attempted to distinguish Major (Rid) ASA Samad v. Lt. Col. (Rid) A. Hussain (1987 SCMR 1013) and Abdiili.n Gnangro . Tahera Begiim (19S8 SCMR 970), relied upon by Mr. Akmal Wasim, by maintaining that the amount deposited in the referred Misc. Rent Case could not be reckoned, at all, as such deposit was in names different than that of the applicant in the Rent Case. Reliance has been placed on Ghulam Murtaza v. Vaqar Ahmad (PLD 1980 SC 9), where Hon'ble Muhammad Afzal Zullah, J., speaking for the Court, opined that non deposit of rent in the name of the landlord, suing for ejectment, whom the tenant had specifically acknowledged as the landlord but deposit ihereof in the names of a large body of persons namely, heirs of the deceased landlord, was not in conformity with the Controller's order of deposit and constituted deliberate and contumacious disregard of orders. It is correct ihat when a person, after due order of deposit has been made against him in a pending ejectment case, resorts to filing a Misc. Rent Case and deposits the rent due in the names of a number of persons, out of whom the applicant, seeking ejectment, is only one, such conduct constitutes contumacious disregard of orders and such disregard cannot be covered by the ratio in Major (Rid) A.S^A. Samad v. Lt. Col. (Rid) A. Hussain (1987 SCMR 1013) and Abdullah Ghangro v. Tahera Begum (1988 SCMR 970). However, in cases where there is some room as to doubt about the person or persons e titled to receive rent, as where the erstwhile landlord having died and succeeded by a large number of persons as his legal heirs, and before any application for ejectment is filed, the tenant with a view to save himself from the rigours of default, applies for and makes deposit in Misc. Rent proceedings, which are followed, by an ejectment case, subsequently filed, any continuation of such deposit, as made therein, can hardly be in disregard of orders of a contumacious nature, and the rule laid down in Re A.S.A. Samad and Abdullah Ghangro ibid, will apply. This is all the more so, as in the uncertainties of the situation generated, any other or others of the legal heirs of the deceased landlord may elect to come forward and claim ejectment on default, in respect of his/their own entitlement. This, therefore, may constitute a sufficient cause for adopting a course of action in contemplation here. In fact, such argument of the learned counsel cuts both ways. If such adjustment, as was allowed by the learned Controller, could not be so allowed, the order of deposit would be rendered bad and tenant's defence would not have been liable to be struck off in consequence of non compliance. Surely, this self defeating consequence cannot have been in contemplation of the learned counsel. As such, there can be little doubt that the defence of the tenant was not liable to be struck off on the ratio in the case of Ghulam Murtaza. 5. Next, reliance is placed on a decision of Munawar AH Khan, J., in Dr Bwjor M. Anklesaiia v. Mst. Zenobia (PLJ 1985 Kar. 129) to contend that, pursuant to the order of the Controller it was a duty of the tenant to secure the transfer of the amount lying deposited in the Misc. Rent Case and it, having failed in that behalf, is liable to be ejected. On the facts of the cited case, this result cannot follow. In that case, an order, plain and simple, of deposit was made by the Controller. Thereupon, the tenant, apparently, approached another Controller, from whom he had obtained an order of deposit in the Misc. Rent proceedings and secured a further order of transfer of such deposited amount to the Rent Case in which an independent order of deposit had already been made. The process of transfer, evidently took time and such transfer did not materialize before the prescribed date in the order of deposit, directed under Section 16(1) of the Sind Rented Premises Ordinance. In these circumstances it was held that the tenant could not take advantage of his own negligence, in effectuating the transfer of the deposited amount. The defence struck off, in consequence, was not revived. At any event, this view, perhaps, would not survive, following upon the dicta of the Supreme Court of Pakistan in Re A.S.A Samad and Abdullah Ghangro ibid., for such earlier deposited amount shall count also for the purposes of Section 16(1) of the Ordinance. 6. Even otherwise, the fact remains that in the order of deposit under Section 16(1) in the instant proceedings, there was no direction to the tenant for bringing about adjustment of arrears lying deposited in the Misc. Rent Case nor could such a direction be made in. law. The direction was a general one and can properly have been only of an administrative nature. It was none of the responsibility of the tenant. No adverse orders can be sustained therefore, on the basis of the opinion expressed by Munawar Ali Khan, J., in the referred case. 7. As a result through a short order dictated in court today, this appeal was allowed. The case shall go back to the Controller. After the deposited amount in Misc. Rent Case has been pursuant to earlier order effectively transferred, the same would be quantified by the Controller before directing adjustment. Thereafter, due fresh directions will be issued for deposit of such arrears, as there may be, as well as, accruing rents. Order accordingly. (MBC) Appeal accepted.

PLJ 1990 Karachi 317 PLJ 1990 Karachi 317 Present: WAJIHUDDIN AHMED J MUHAMMAD MEHTAB-Appellant versus MUHAMMAD ISMAIL and another-Respondents FRA Nos 331 and 332 of 1987, dismissed on 14.3.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15-Tenant-Ejectment of~Prayer for-Sub-letting—Ground of~Rent Controller has found alleged Iqrar Nama to be fraudulent and has declined to act on it-There is no reason to differ with that finding-Several other factors have to be take^note of for alleged sub-tenancy~Both appellants chose to file common written statement, engaged common Advocate, they have a common witness and money orders appear to be in identical hand-writing-Held: Tenancy in favour of appellant Muhammad Aqil was not established and findings of Controller on question of subtenancy are un-exeeptionablc. [P.321JA (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15(2)(ii)~Tenant—Ejectment of-Prayer for~Default~Ground of- Landlord categorically stated that he withdrew deposited rent under protest and subject to adjustment-Held: Admittedly total rent of premises was Rs300/- per month and no independent tenancy favouring appellant Muhammad Aqil having been established, deposit by other appellant at rate of Rs.150/- only per month, finding of default had a reasonable basis and need aot to be deviated from. [P.321JB (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15(2)(vii)-Tenant~Ejectment of-Prayer for-Personal requirement-­ Ground of—Landlord had categorically maintained that his sons were jobless and were not gainfully employed anywhere and premises were required for personal requirement of his sons-Appellants asserted that sons of landlord had shops in Liaquatabad but such assertions remained un-substantiated-Burdcn which was shifted to appellants did not come to be dischargcd-It is not essential requirement of law that a particular witness or witnesses (landlord's sons in this case) should be examined to prove personal requirement-There are some variations and even inconsistencies in evidence of landlord but same are not material and landlord appearing to be a simple person, may be entitled to some allowance on that score—Held: All in all, a case of personal requirement is also proved-Held further: No case for interference with order of Controller is made out—Appeals dismissed. [Pp.321&322]C,D,E&F Mr. K.M.Nadeem, Advocate for Appellant (in both appeals). Mr. Aijaz Latif, Advocate for Respondent No. 1 (in both appeals). Dales of hearing: 5 and 28.2.1990. judgment These are two separate First Rent Appeals filed by the tenant and alleged sub-tenant of respondent Mohammad Ismail and directed against a common order of ejectment passed in Rent Case No.19/85 by the learned Vlth Senior Civil Judge and Controller Karachi (West). 2. Briefly, Rent Case bearing No. 19/85 was filed by Mohammad Ismail, respondent, against Mohammad Mehtab and Mohammad Aqil, allegedly tenant and sub-tenant on the ground and first floors, respectively, of a commercial building situated at plot No. 7/75, Commercial area, Block-7, Liquatabad, Karachi. Pleas in such Rent case were that Mohammad Mehtab, who was a tenant at a monthly rent of Rs. 300/-, had sub-let the first floor tenement of the premises to Mohammad Aqil, without the consent of the landlord, had defaulted in the payment of rent and, in addition, the tenant-hold was required by the landlord for the use of his sons who were jobless and required to be settled in life. 3. A joint written statement was submitted by the two appellants and it was claimed that they were independent tenants of the ground and first floors of the building, Mohammad Mehtab running the business of an Auto Electrician on the ground floor and Mohammad Aqil that of a Goldsmith on the first floor, separate monthly rents of the two premises being Rs. ISO/-. It was maintained that for each tenement, the landlord wanted to enhance the rent to Rs. 600/- per month, which being declined, tendered rental payments were refused, and, therefore, money orders were sent, which also were refused. Hence, the two appellants started depositing rents in Misc. Rent Cases Nos. 66 and 67 of 1985. Personal need for the landlord's sons was also denied. The points in controversy, therefore, included creation of sub-tenancy, default in payments of rent and personal requirement, in good faith, for the landlord's sons. 4. The landlord submitted his own affidavit-in-evidence as also that of two other deponents namely, Iqbal s/o Mohammad Din and Abdul Wahab s/o Ismail. The Controller, however, examined only the landlord but declined to allow the other two deponents to go in the witness box, as at the lime the landlord was being cross-examined such witnesses were found present in Court, though they were directed to go out. At the feet of both these affidavits, it was observed that on the fore-going basis their evidence could not be considered. On the other hand, the two appellants submitted their own affidavits-in-evidence. They also, in addition, submitted the affidavits-in-evidcnce of one Salecm s/o Abdul Aziz and Mohammad Zaheer Alain s/o Moor Mohammad, the latter, elsewhere, suggested to be a common attesting witness to the two separate agreements of tenancy claimed to be in subsistence by the appellants. 5. The landlord, in his affidavit-in-evidence, for the most part, reiterated what he had stated in the application for ejectment. He was cross-examined at length. In such cross-examination he produced the agreement of tenancy dated 7.6.1972 in favour of appellant-Mohammad Mehtab. He admitted that such agreement pertained only to the ground floor, as at that time first floor was in the tenancy of another person, who vacated the same after five years whereafter such portion also was let-out, but no separate rent was fixed for each floor. He said that he did not know appellant Mohammad Aqil and maintained that he had filed the rent case against Mohammad Mehtab only. He denied that in January, 1978 he rented out the first floor to Mohammad Aqil. He acknowledged that the two appellants tendered separate money orders of Rs. ISO/- each for the month of November, 1985 and that he refused to accept the same. He had already acknowledged in the affidavit that he was withdrawing the rent deposited in the Misc. Rent Cases under protest and subject to adjustment. He admitted that he had shop No. 5/78, Commercial area, near Pilli Bheet Oil Depot, Liquatabad, which he had given on rent at Rs. 300/- per month and also on Pugri of Rs. 3,00,000/-. He denied that any talks were going on between him and appellant Mehtab for the sale of the shop in question or that he had sent Abdul Wahab and Iqbal, (deponents of the two rejected affidavits) to tenant Mehtab asking him to purchase the shop in question on market value. The landlord further stated that he did not want to sell the shop in question for Rs. 1,00,000/-. He denied that there was no personal need for seeking ejectment or that he \vanted to give the shop on Pugri. He also denied that he was not on good terms with his sons. 6. Appellant Mohammad Mehtab, in his Affidavit-in-evidence reiterated what was stated in the written statement. He said that the agreement dated 7.6.1972 pertained only lo the shop in question and that he was depositing the rent in circumstances already detailed in the written statement. There was no sub­ tenancy. He categorically staled that the landlord also owned shop premises No. 5/7S. Commercial area, Liaqualabad, Karachi, which was let out by him on heavy pugri, such position having been admitted in cross-examination. He further stated that such shop premises was let out on pugri after the institution of the rent case. It was pointed out that the landlord had failed to examine his sons, for whose requirement the premises were allegedly claimed. He asserted that the landlord was not on good terms with his sons. In cross-examination appellant-Mohammad Mehtab admitted that the landlord asked him to vacate, as he required the premises. The tenant expressed lack of knowledge as to where the landlord's sons were doing business or service. He denied that the landlord was on good terms with his sons. He also denied that no shop was rented out by the landlord, during the pendency of the Rent Case nor could he give details or other proof for the same. He denied that the landlord had no other shop except the disputed premises but staled thai he had no proof that the landlord had other shops or houses. 7. Appellant-Mohammad Aqil in his affidavit-in-evidence maintained that he was inducted into the premises on the basis of a separate agreement of tenancy dated 29.1.1978. The two witnesses to such agreement were staled lo be Israr Ali Khan and Mohammad Zaheer Alam, ihe former of whom had died and affidavit of Mohammad Zaheer Alam was submitted. The original of ihe agreement was said to be in possession of the landlord. He maintained that he was a regular tenant and, on refusal to pay enhanced rent, was depositing the same in Court. In cross-examination appellant-Mohammad Aqil admitted thai ihcrc were no signatures of ihe landlord on ihe tenancy agreement nor was such agreement alteslcd by any official. He denied that ihe landlord's sons were jobless and maintained that they had their shops in Liaqualabad but numbers ihercof he could not give. IS. Appellants' witness Saleem s/o Abdul Aziz maintained that the landlord had demanded enhanced rent and pugri from both ihe appellants in his presence, albeit appellants themselves not alleging any demand for pugri. In cross examination such witness admitted that no agreement was concluded nor any rent was given in his presence. He denied that he had deposed falsely. 9. As regards the affidavit-in-evidcnce of Mohammad Zaheer Alam, he does not seem to have been put in the witness box for cross-examination and the appellants chose to close their side on 7,1.1987, on which date appellant- Mohammad Aqil and witness Saleem were examined as the last witnesses in the case. 10. The learned Controller, on the above evidence, has found in the affirmative on all the three questions of subletting, default and personal requirement. 11. In the first place, it falls to be pointed out that it is a healthy practice not to allow witnesses to be present in Court, when evidence of the same side by which such witnesses are tendered is going on. It is not comprehensible as to how the two witnesses referred above, could have remained in the court-room, even though required to leave and go out, when evidence of their side was being recorded. Short of contumacious disregard of Court's order, if any witness had un­ wittingly remained in Court, the Controller could, at best, draw inferences of his own but could not shut out relevant evidence. Here, it is to be observed that while, normally, witnesses may be examined on the same date or from day to day, in practice this does not happen and indeed on account of pressure of work in judicial forums cannot happen. Thus fehe witnesses who renvain to be examined in a case can, obviously, have advantage of the evidence of those, Awho have been examined earlier, through readily available copies of depositions. The point to be made is that unless essential, in the interests of jusUce and supportable by rules of law, precedent or practice of an un-shakeable nature, evidence is not to be shut out, merely on technical grounds. 12. Coming to the merits of t e controversy, on examining the entire record, including the evidence in the case, I have come to the conclusion that the landlord appears to be a simple man. He, admittedly, entered into an agreement with appellant-Mohammad Mehtab, which is in the form of "Iqrar Nama" from Mohammad Mehtab only and is signed by the tenant and attested by two witnesses. The landlord has also admitted that he did not issue rent receipts to his tenant. In so far as the alleged sub-tenancy or tenancy of appellant-Mohammad Aqil is concerned, that appellant has relied upon a similarly styled "Iqrar Nama" as that of Mohammad Mehtab, which is purportedly dated 29.1.1978. The landlord, in cross-examination, was questioned and replied that he did not know that Israr and Zahecr Alam were "witnesses of both the tenancies". In the same breath he naively admitted that it was a fact that "both witnesses are of rent agreement" (Sic). I have examined the two agreements of tenancy and have also seen the signatures of Zaheer Alam on the affidavit-in-evidcnce affirmed by him. The "Iqrar Nama" dated 7.6.1972, pertaining to appellant-Mohammad Mehtab is attested by one Zaheer Alam and one Hamecd in Urdu whereas the "Iqrar Nama" dated 29.1.1978, allegedly, concerning appellant Mohammad Aqil, is signed by one Zahecr Alam in English and by one Israr All Khan in Urdu but such signatures of the said Zaheer Alam do not tally with the signatures in English, of the deponent in the affidavit-in-evidence of Mohammad Zahecr Alam s/o Noor Mohammad, who as observed above, was not apparently offered for cross-examination. This attesting witness, therefore, has not been proved to be common to the two Iqrar Namas under reference. Nor are the two witnesses to such Iqrar Namas identical, as claimed by the appellants in relation to tire cross examination of the landlord. Added to this is the fact that appellant Mohammad Aqil is deemed not to-have examined any attesting witness whatever.- This must be so, as deponent Zaheer Alam, who-ever such Zaheer Alam may have been, did not choose to step into the witness box for due cross examination of his affidavit-in-evidence, accordingly has to be discarded from consideration. Besides, as observed by the learned Controller only a photostat copy of the alleged "Iqrar Nama", dated 29.1.1978, was filed on a plea that the original was with the landlord and such "Iqrar Nama", admittedly, does not bear any official attestalion, as is the case with the "Iqrar nama" dated 7.6.1972. This document even though it does not bear the signature of the landlord was not even confronted to him, as was done in the case of the admitted "Iqrar nama" dated 7.6.1972, between Mohammad Mehtab appellant and the landlord. The learned Controller has found the alleged "Iqrar nama", dalcd 29.1.1978, lo be fraudulent and has declined to act on it. In the totality of evidence in this case, I see no reason lo differ with that finding. As lo the alleged sub-tenancy there are several other factors, which need to be taken nole of. It is admilled in the writlen statement filed by the Iwo appellants that they arc related to each other. They chose to file a common written statement. Because of a common advocate, there was a common cross-examination. They, also, have a common witness in whose presence, allegedly, not only enhanced rent but even pugri was claimed by the landlord, a case not supported by the appellants themselves. The money orders sent by each of ihese appellants, originals whereof have been produced, appear to be in identical hand-writing. The Misc. Rent Cases, filed for deposits in Court, as their serial order would suggest, also appear lo have been filed slmullancously. All these circumstances, would suggest a degree of union on the part of the two appellants, which may be in accord with the landlord's allcgalion of an unauthorised sub-tenancy between Ihc Iwo. In addition the alleged agreement of tenancy between the landlord and appellant-Mohammad Aqil was not produced in original and no effort was made to summon the original from ihe landlord, in whose alleged possession Ihe same was slaled to be. The landlord was .not confronted even with the photostat copy of such agreement. Even otherwise, as pointed out above, such agreement was not proved. In ihese circumstances, tenancy in favour of appellant-Mohammad Aqil was not established. The findings of the Controller, therefore, on ihe question of sub-lcnancy are un-exceptionable. 13. On ihe question of default, much has been said about the landlord withdrawing the deposiled rent bul on that score the landlord categorically slated hat he withdrew the same under protest and subject lo adjustment. Since, admittedly, the total rent of the premises was Rs. 300/- per month and, no independent tenancy favouring appellant-Mohammad Aqil having been established, deposit by the acknowledged tenant being at the rale of only Rs. I50/- \K-r month, ihe Uncling of default had a reasonable basis and need not be be) deviated Irom. 14. The most important aspect of the case is of personal requircmenl. The landlord had clearly averred and evolved case of personal requirement for his sons as, ultimately, that stood at the time his affidavit-in-evidcnce was submitted. He had categorically maintained^ that his sons were jobless and were not gainfully employed anywhere. It emerged for the appellants to show (even if both ate assumed to be tenants) that was not so. They made Categorical assertions and one of them even stated that the sons had shops in Liaquatabad but such assertions -- remained un-substantiated as neither the numbers of such shops were given nor other details if any were provided. Thus on the basis of landlord's evidence, the burden, which ,had shifted on the appellants did not come to be discharged. Something has been said about the landlord not examining his sons. It is not an essential requirement of. law that a particular witness or witnesses should be examined to prove a case of « personal requirement. Depending upon the circumstances of each individual caise, the landlord or his children or both may be examined. Want of examination of one or the other (s) would be fatal only if some established rule or principle stands transgressed or vital evidence is, dishonestly, withheld. Such conclusion does not seem to arise in this case. 15. Much emphasis in the context of the landlord's good faith, has been laid on the landlord letting out another premises and in this context his admission is relied upon. However, in that admission the time of renting out such premises, is neither indicated, nor put to the landlord. A contrary assprtion in affidavits of the appellants has been questioned in cross-examination but, despite that; has .not '! been supported by any other cogent evidence. It cannot, therefore, be saidj even if it were relevant, that any commercial premises was let out by llic landlord at any material time, so as to dis-cntillc him to seek eviction -for the benefit of his sorts. ' 16. There are, it must be conceded, some variations and even inconsistencies, in- the' evidence of the landlord, but for one thing, the same are" not material and, for another, as observed earlier, the landjord in .this case appears to be, a simple person arid. may be entitled to some allowance on that score. On the other Hand, there are some shifting pleas in the defence as well. All in all, a case of ersonal requirement, is, also, proved. For the foregoing reasons, no case for interference with the order of the Controller is made out .and these appeals stand dismissed. However, >smce the appellants are doing business in the disputed premises, which may come to an abrupt halt, I would allow eight months' time for them to vacate, provided that appellant-Mohammad MehtaTi alone deposits the accuring rental dues at the rate of Rs. 300/- per nionih. (MBC) Appeal dismissed. "-

PLJ 1990 Karachi 322 (1)B) PLJ 1990 Karachi 322 (1)B) Pres&it: SAL\EEM AKIITAR and 1MA.M ALI G. KAZIyJJ COMMISSIONER OF INCOME TAX--Applicant-, versus M/s LEVER BROTHERS PAKISTAN LIMITED-Rcspondent I.T.R No. 57 of 1982, decided on 15.1.1990 Income Tax Act, 1922 (XI of 1922)-- —-S. 66(1) read with S. 23-A--Super Tax-Relief in-Grant of--Prayer for-- Reference to High Court-Whether Appellate Tribunal was justified in holding that company was entkled to rebate of 10% in Super Tax on its income for whole of year-Question of—It,is clear that from 26.12.1966, restrictions on free transferability of shares were removed-There is no dispute that after removal of such restrictions, respondent became entitled to 10% rebate in Super Tax~ A close scrutiny of explanation to Section 23-A will show that transferability of shares has not been subjected to any time frame-Held: Reasonable interpretation seems to be that claim of 10% rebate on basis of free transferability of company's shares, to other members of public, cannot be . restricted for period during which transferability was available—Reference answered in affirmative. (Pp.323,324,325&326]A&B Mr. Shaikh Haider, Advocate for Applicant j; j; Mr. Iqbal Naeem Pasha, Advocate for Respondent Dates of hearing: 10,11 and 15.1.1990 judgment Suleein Akhtar, J.--The respondent is a private limited company. Under Article 43 of Articles of Association restrictions were imposed on the'transfer of shares and they could not be freely transferred to other member of public. In view of this restriction respondents claim that it was company in which public were substantially interested within the meaning of Explanation I of Section 23(A)(1) of Income Tax Act and entitled to 10% rebate in Super Tax was not accepted upto the assessment year 1966-67. During the assessment year 1967-68 the respondent amended its.Articles of Association by special resolution passed on 26.12.1966 whereby Article 43 was deleted. The effect of this amendment was that restriction on free transferability of the shares was removed and the company's shares were freely transferable. The respondent then claimed its status as a company in which public were substantially interested as stated above. The Income Tax Officer accepted the contention but did not grant relief for the whole of the relevant previous year but allowed it only for six days before the close of the year. The respondent challenged this order in appeal before the Tribunal which allowed it and the Income Tax Officer was directed to allow rebate of 10% on the income of thie respondent company for the whole of the year. The department filed an application under Section 66(1) of the Income Tax Act and the following question has been referred for our opinion:- "Whelher on the facts and circumstances of the case the appellate Tribunal was justified in holding that the company was entitled to rebate of 10% in super tax on its income for the whole of the year, being a company in which public are substantially interested within the meaning of Section 23A of the Income Ta Act." The claim relates to rebate of 10% in the super tax on the income of the company for the whole assessment year 1967-68. From the facts stated above it is clear that from 26.12.1966 the restrictions on free transfcrabilily of shares were removed. Once such restrictions were removed there is no dispute that the respondent became entitled to 10% rebate in super tax. The only question which remains disputed is whether rebate should be granted for the whole of the previous year or only to that period during which restriction on transfcrability was not in existence. The answer to this query calls for interpretation of Explanation 1 to Sub-Section (1) of Section 23A of the Income Tax Act which reads as follows:-- Explanation l.--(l) For the purposes of this sub-Section, a company shall be deemed to be a company in which the public are substantially interested— (a) if it is a company owned by the Government or in which not less than forty per cent, of the shares are held by the Government; or (b) if it is not a private company as defined in the Companies Act, 1913 (VII of 1913), and (/) Its shares (not being shares entitled to a fixed rate of dividend whether with or without a further right to participate in profits) carrying not less than fifty percent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and were throughout the relevant previous year beneficially held by, the Government or a corporation established by a Central, or Provincial Act or the National Investment (Unit) Trust or the public (not being a director or a company to which this paragraph does not apply); (//) the said shares were at any time during the relevant previous year the subject of dealing in any recognised stock exchange in Pakistan or were freely transferable by the holder to other members of the public; and '(Hi) ............................................ (2) .................................................. (3) ...................................... The applicability of this provision arose while calculating the super tax as provided by Fiance Act 1972. In part II of Schedule V to the Finance Act 1967 the relevant provisions were as follows: PART II RATES OF SUPER-TAX Rates "A" In the case of a company:— (1) On the whole of the total income excluding income to which subparagraph (1) of paragraph 'B' of Part 1 applies 30 percent of such total income. Provided lhat:--(i) a rebate of 5 per cent shall be allowed to a companyr (a) which, in respect of the profits liable to tax under the Income Tax Act, 1922 (XI of 1922), has made such effective arrangements as may be prescribed by the Central Board of Revenue in this behalf for the declaration and payment in Pakistan of dividends payable out of such profits and for the deduction of tax from such dividends; and (ft) which is also a Banking or an Insurance Company; (//") a rebate of 15 per cent shall be allowed, in the case of every company to which sub-clause (a) of clause (/) applies but sub-clause (ft) of clause (/) docs not apply on so much of the income of such a company of the relevant year as has been distributed as dividend to its shareholders (including dividends on preference shares); (Hi) a rebate of 10 per cent shall be allowed in the case of every company to which sub-clause (a) of clause (/) applies if it is a company in which the public are substantially interested within the meaning of Explanation 1 to sub-Section (1) of Section 23A of the Income Tax Act, 1922 (XI of 1922); (v/0 ..................................... A perusal of these provisions will show that in order to claim 10% rebate the company should satisfy that sub clause (a) of clause (/) quoted above applies and the public are substantially interested in it within the meaning of the Explanation 1 to sub-Section (1) of Section 23A. Therefore for the purposes of the present case the entire claim for rebate rested on whether the respondent company falls within the Explanation or not. The company has been held to have satisfied all these conditions. As discussed above the only question for consideration is for which period the rebate could be granted. According to Mr.Shaikh Haider the explanation is in two conjective parts. In the first part if the shares were at any time during the relevant provisions quoted in any recognized stock exchange in Pakistan then 10% rebate could be allowed. But where the shares were freely transferable to other members of public then as the words 'any lime' in the opening part of this explanation do not cover the later part, a lime limit should be fixed and rebate can be allowed for the period Ihe transfer of shares became freely transferable to other public. According to Mr. Iqbal Niam Pasha the words 'at any lime' should cover both the parts of the explanation. The Tribunal also seems to be of the same view. Be that as it may, the case is to be governed by Ihe lalcr part of the explanation which does not place any lime limit for its applicability. A close scrutiny of the explanation will show that the later part dealing with transfcrability of shares has not been subjected to any time frame. As no limit for making the shares transferable during the previous year has been fixed, the transferability may occur in any part of the previous year. It is well recognized principle of interpretation of fiscal statute that if there is any ambiguity in such statute then a reasonable interpretation favourable to the subject shall be accepted. The reasonable interpretation seems to be that where a company claims rebate of 10% on the basis of free transfcrability of its shares to other members of the public then it is not possible to introduce that such transferability should have existed for the whole year or that entitlement will be restricted for the period during which transferability was available. By placing such restriction, it will amount to introducing words of limitation which have not been placed by, the legislature. In view of the above discussion we answer the question in the affirmative. (MBC) Order accordingly.

PLJ 1990 Karachi 326 (DB) PLJ 1990 Karachi 326 (DB) Present: SALEEM AKIITAR and IMAM ALIG. KAZI, JJ KARACHI DOCK LABOUR BOARD-Pctitioner versus INCOME TAX OFFICER, SALARY CIRCLE XI, KARACHI, and 2 others-Respondents Const. Petition No. D-1378 of 1987, dismissed on 19.3.1990 General Clauses Act, 1897 (X of 1897)-- —S. 3(28) read with Karachi Dock Workers (Regulation of Employment) Scheme, 1973, Clause 2-Karachi Dock Labour Board-Whclher a local authority-Question of~Contcntion that petitioner in view of performance of its duties and functions under statutory regulations, is in fact a Local Authority as defined in General Clauses Act-Local Authority is an Authority that performs certain functions within framework of its jurisdiction which are in nature of a local Government, under a statute or under powers delegated to it by Government; an authority that is able to frame its own bye-laws and is competent to levy and collect taxes and administer its fund so generated—Held: None of functions of petitioner is in nature of functions of any Government-­ Petition dismissed. [Pp.330,331&332]A,B,C,D,E&F Mr. Liaquat Merchant, Advocate for Petitioner. Air. S. A. Sarwana, Advocate for Respondent No. 3. Respondents No. 1 & 2: Absent. Dates of hearing: 23 & 24.1.1990. judgment Imam Ali G. Kazi, J.~The Income-Tax Officer, Salary Circle XI, Central Zone-D, Karachi, the respondent No. 1 herein, did not consider the Karachi Dock Labour Board to be a 'Local Authority' to be entitled to exemption from payment of Income-Tax under item No. 88 of the second Schedule to the Income-Tax Ordinance, 1979. He, therefore, issued them a notice to file return of their income earned by them by way of interest on their fixed deposits. 2. The Government of Pakistan, in exercise of their powers conferred by Section 3 of the Dock Labour Workers (Regulation of Employment) Ordinance, 1973 prepared a scheme for registration of dock workers for the Port of Karachi and notified it in the official Gaxcltc on 3rd December, 1973. The scheme was entitled as the "Karachi Dock Workers (Regulation of Employment) Scheme, 1973;" 3. Para 2 of the Scheme contains the objects of the Scheme viz: to ensure "greater regularity of employment for dock workers and to secure that adequate number of dock workers is available for the efficient performance of dock work, expeditious economic turn round of ships and speedy transit of the goods through the Port." In order to implement the Scheme, the Federal Government was authorised to constitute a Board to be called as the Karachi Dock Labour Board. The Board was to be constituted of 14 members to be appointed by the Federal Government, four members out of them representing the Federal Government, five members representing the Dock Workers to be nominated by the Collective Bargaining Agents of such workers, two members representing the Karachi Stevedore Conference Limited to be nominated by the said Conference, two members representing Pakistani Ship Owners to be nominated by their Association recognised by the Federal Government and one member representing foreign shipping interest to be nominated by the Overseas Investors of Chamber of Commerce and Industries. The Board under clause 7 of the Scheme was required to perform the following functions; (a) ensuring the adequate supply and the full and proper utilization of the registered dock workers for the purpose of facilitating the rapid and economic turn-round of vessels and the speedy transit of goods through the port; (b) Regulating the recruitment and entry into and the discharge from this Scheme of dock workers and the allocation of registered dock workers in the register and those in the reserve pool to the registered employers; (c) determining and keeping under review, in consultation with the Administrative Body, the number of registered employers and registered dock workers from time to time on the registers or records and the increase or reduction to be made in the numbers in any such register or record; 3 (d) keeping and maintaining the employers register entering or re-entering therein the name of any employer and, where circumstances so require, removing from the register the name of any registered employer either at his own request or in accordance with the provisions of this Scheme; (e) keeping and maintaining from lime to lime such registers or records as may be necessary of dock workers, including any registers or records of dock workers who are temporarily not available for dock work and whose absence has been approved by the Administrate Body and, where circumstances so require, removing from any register or record the name of any registered dock worker either at his own request or in accordance with the provisions of this scheme; (/) grouping or re-grouping of all registered dock workers into such groups as may be determined by the Board in consultation with the Administrative Body and thereafter reviewing the grouping of any registered dock worker on the application of the Administrative Body or of the registered dock worker; (g) making provisions for the training and welfare of registered dock workers including medical services in so far as such provision docs not exist apart from this Scheme; (/;) fixing and recovering from registered employers and other beneficiaries contributions in respect of the expenses of this Scheme; (/) making provision lor health and safety measures in places where registered dock workers are employed in so far as such provision does not exist apart from this Scheme; (/) maintaining and administering the Dock Workers Welfare Fund and recovering from all registered employers contribution towards the fund in accordance with the rules of the Fund made under clause 51; (k) maintaining and administering a provident fund and a gratuity fund and any other welfare schemes for the registered dock workers; and (/) borrowing or raising money and issuing debentures or other securities and, for the purpose of securing any debt or obligation, mortgaging or charging all or any part of the property of the Board." According to clause 8 of the Scheme, the Board so constituted is made responsible for dealing with all matters of Policy and in particular to deal with the following; "(a) fix the number of dock workers to be registered under various categories; (ft) increase or decrease the number of registered dock workers in any category on the register from time to time as may be necessary after a periodical review of the registers and anticipated requirements; (c) sanction the temporary registration of a specified number of dock workers in any category lor a specified period; (d) accept registration of newly licensed stevedores on the employers register; (c) prescribe forms, records, registers and statements required to be maintained under this Scheme; (/) determine the wages, allowances and other conditions of service, and re fix the guaranteed minimum wages in a month after review; (,») fix the rate of levy under sub-clause (1) of clause 50; (/z) fix the rate of contribution to be v made by the registered employers to the various welfare schemes and measures administered, operated or v adopted by the Board; (r) appoint, abolish or reconstitute committees under clause 34; (/) sanction the annual budget; (k) appoint officers and staff as required for the furtherance of this Scheme; (/) make recommendations to the Federal Government about any modifications in this Scheme; (in) endeavour to settle disputes about which a request for adjudication has been made by the parties concerned; (n) issue directions for the speedy out put by the registered dock workers and turn-round of ships; (o) sanction the opening of accounts in such scheduled banks as it may direct and the operation of such accounts by such persons as it may from time to time nominate; (p), appoint before the commencement of each financial year a recognised firm of auditors to audit its accounts; and (q) delegate such of its powers or functions to the Chairman and other officers as it may deem fit." 4. The petitioners by their letter dated 8.1.1986 addressed to the Commissioner of Income-Tax Central Zone-D, Karachi applied for the grant of exemption certificate under Section 40(4) of the Income-Tax Ordinance, 1979. The Income-Tax Officer Salary Circle-XI, Central Zone-D, Karachi by his letter dated 7.10.1986 did not treat the petitioners as non-profit making organization and refused to treat them as a 'Local Authority'. Accordingly, he intimated them that he intended to bring the income derived by the petitioners from interest on their fixed deposits for the purpose of levying and collecting taxes under Section 30 of the Income-Tax Ordinance, 1979. The petitioners then approached the Government of Pakistan, Ministry of Communications (Ports and Shipping Wing) to grant them a certificate declaring them as 'Local Authority' so as to seek exemption from payment of tax. The Director of Port and Administration, Government of Pakistan, Ministry of Communication (Ports and Shipping Wing) by his letter dated 12lh October, 1987 (Annexure C-6) addressed to the Commissioner of Income-Tax Central Zonc-D, Karachi requested that the action in the matter be deferred as that Ministry was trying to sort out the difficulties. Further he also issued a certificate dated 6th July, 1987 certifying that the petitioners were established for the purpose of regulating employment of dock workers to ensure their efficient, expeditious and economic turn-round of ships and vessels and speedy transit of goods to the Port. It was also certified that the petitioners enjoyed maximum autonomy in their activities, their accounts required to be scrutinised by the Government and the Board was not a profit earning organization. The Income-Tax Department granted them some, time to resolve such dispute at the Government level but ultimately the Income-Tax Officer by his letter dated 11.10.1987 informed the petitioners that no further extention would be granted and directed them to file return for the assessment years 1983-84 to 1986- 87 and issued notice under Section 61 of the Income-Tax Ordinance for compliance by 22.10.1987. The petitioners took exception to such notice and filed the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 5. Mr. Liaquat Merchant, the Advocate for the petitioners contended that the petitioners can be considered to be a "Local Authority" as they are required to perform functions like those mentioned in sub-clauses (g) to (k) of clause 7 of the Scheme. The Board is also empowered to deal with certain matters as are enumerated in sub-clauses (g) (h) & (/) of clause 8 of the Scheme which clearly establishes that the petitioners are required by law to operate a fund which is in the nature of "Local Fund." In support of his contentions he relied on the cases reported as PLD 1964.. Dacca 721, PLD 1965 Dacca 122, AIR 1970 Calcutta 176, PLD 1977 Kar 152 and AIR 1863 SC 1890. 6. Mr. S. A. Sarwana, Advocate appearing for Government of Pakistan, the respondent No. 3 herein, supported the contentions of Mr. Liaquat Merchant, Advocate for the petitioners and further relied on a case reported in 1980 Pakistan Labour Cases 476 and contended that the petitioners are required by clause 52 of the Scheme to manage the Karachi Port and Dock Workers Welfare Fund which can be treated to be "Local Fund" and on that account too the petitioners who have to administer such fund and be taken to be a 'Local Authority.' 7. No body appeared for the Income-Tax Officer and Commissioner of Income Tax, the respondents No. 1 and 2 in the petition. 8. The short point that needs consideration in this case is whether the petitioners are a "Local Authority" and entitled to exemption from levy and collection of income tax. Both the Advocates who have appeared for some of the parties as mentioned above have contended that the petitioners in view of performance of their dut es and functions under the statutory regulations are in fact a "Local Authority" as defined in the General Clauses Act, 1897. 9. In order to appreciate the contentions of the Advocates of the parties, it is necessary to examine clause (28) of Section 3 of the General Clause Act, 1897 that reads as follows; "Local Authority" shall mean a Municipal Committee District Board, body of Port Commissioner or other Authority legally entitled to or entrusted by the G vernment for the control 1 or management of a Municipal or a Local Fund." In view of above definition it is necessary that a 'Local Authority' other than Municipal Committee, District Board or Board of Commissioner must be an Authority controlling or managing a Municipal or Local Fund; and that such authority is legally entitled to control and manage such fund. The Authorities other than those that have been specifically mentioned in the definition must as of ecessity be an authority competent to deal with "Local Fund" or authorised by the Government to do so. In order to examine the extent of the meaning that can be given to expression "Local Authority" it is necessary to examine the meaning of "Local Fund" as given in Treasury Rules, Government of Pakistan Vol-I. It reads as under:-- "652. The expression local fund denotes:-- (/') revenues administered by bodies which by law or rule having the force of law come under the control of the Government, whether in regard to the proceedings generally, or to specific matters such as sanctioning of their budgets, sanction to the creation or filling of particular appointments, the encashment of leave, pension or similar rules; (if) the revenues of any such body which may be specially notified by the Government as such." In the case referred to by the learned counsel for the petitioners mentioned above attempt was made to determine the charactristics of a "Local Authority". In the case of Deputy Managing Director, National Bank of Pakistan v. Attaul Haqiie (PLD 1965 SC 201) while dealing with such aspect of the case, it was observed as follows; The expression 'Local Authority' has been used in statutory phraseology in the Indian Sub-continent for a great many years, and is always understood to mean an Authority which is entrusted with the administration of a local fund. Local Authorities or bodies exercising within limited territories including in a Province, powers which belong to the Province but which by statute are delegated to the Local Authority. A Local Authority is ordinarily charged with functions of self Government and has powers of making bye-laws, of imposing taxation, and of maintaining and administering a local fund." 10 In view of above a "Local Authority" shall be an Authority that performs certain functions within the frame work of their jurisdiction which are in the nature of a local Government, under a statute or under powers delegated to it, by a Government; an authority that is able to frame its own bye-laws and is competent to levy and collect taxes and administer its fund so generated. 11. Mr. Liaquat Merchant, the Advocate for the petitioners as it will be seen from his arguments mentioned hereinabove wants us to hold the petitioners to be a "Local Authority" as by sub-clauses (g) to (/c) of clause (7) of the Scheme which enumerates the functions of the Board (petitioners) are required to perform functions of a local Government. These functions relate to making of suitable provision for training and welfare of registered dock workers; fixing and recovering contributions from employers and beneficiaries to meet the expenses; making provision of health and safety measures in places where the dock workers are expected to work; maintaining and administering a welfare fund for dock workers and maintaining and administering provident and gratuity funds for the registered dock workers. None of the functions of the petitioners mentioned above are in the nature of functions of any Government. 12. The other argument that the petitioners are empowered to deal with fixation of rate of levy in respect of contribution to be made by the beneficiaries and contributions required to be made and registered ployers and sanctioning of their budget and, therefore, they are controlling the "Local Fund" and are entitled to be treated as "Local Authority" is also not tenable in view of the decisions relied upon by him. Such powers clearly do not contemplate imposition of any taxes which will constitute a fund to be administered by the Board. The fund that may be raised by the petitioners is not a "Local Fund" as defined in the Treasure Rules. 13. The petitioners being conscious of situation as is mentioned hereinabove had themselves applied to the Government of Pakistan for being notified as a "Local Authority" and filed this petition before any decision was taken by the Government in this respect. 14. No other ground has been advanced in support of this petition and in view of the above, we dismiss this petition with no order as to costs. This decision shall, however, in no way cause any impediment to the Government of Pakistan in exercise of their power under Section 14(2) of the Income-Tax Ordinance, 1979 to add and include the petitioners in Schedule II of that Act. (MBC) Petition dismissed.

PLJ 1990 Karachi 332 PLJ 1990 Karachi 332 Present: SYED ABDUR REHMAN, J UNITED BANK LIMITED-Plaintiff versus M/s S.G. RAUF & Co. and 2 others- Defendants C.M.A. No. 3805 of 1987 in Suit No. 390 of 1987, dismissed on 9.3.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XXXVII R. 3 read with O.V R. 10-A(2) and Limitation Act, 1908, Section 5-Suit for recovery-Leave to appear and defend suit-Application for- Whether application is time-barred-Question of~From diary of Additional Registrar, it appears that he was satisfied about goodness of service by all three modes, i.e., by publication, by Registered Post A.D. and by service through Bailiff-It is quite clear that Additional Registrar had not held that service by publication or by Registered Post A.D. was unsatisfactory-Under Order V Rule 10-A(2), an endorsement by a postal employee that defendant refused to take delivery of summons by Registered Post A.D. shall be deemed by court to be a prima facie proof of service of summons—Held: Defendants were served by Registered Post A.D. on 26.7.1987 and application is clearly time-barred and there being no application under Section 5 of Limitation Act, question of condoning delay does not arise-Suit decreed. [Pp.333&334]A&B 1987 CLC 2164 and 1988 CLC 292 rel. Mr. Nooml Hassan, Advocate for Plaintiff. Mr. Liaquat Merchant, Advocate for Defendants. Date of hearing: 4.3.1990. judgment C.M.A. No. 3805/1987 is an application under Order-37 Rule 3 CPC. for leave to defend. It is not accompanied by an application under Section 5 of the Limitation Act. Hence a preliminary objection has been taken to this application by Mr. Noorul Hassan, learned counsel for the plaintiff that it is barred by limitation having been presented after 10 days of the service of summons. From the perusal of the record it appears that the summons of this suit were published in an English newspaper 'MORNING NEWS' dated 10.7.1987. Simultaneously the summons were sent by Registered Post A/D to all the three defendants separately and there is the endorsement of the Postman .dated 26.7.1987 to the effect that the same were refused. Simultaneously the summons were also sent through Bailiff and the endorsement of the Bailiff shows that the Defendants had received the summons on 18.8.1987. The diary of the Additional Registrar dated 19.8.1987 is reproduced as under:- "19.8.1987. Publication issued against the Defendants under Rule 8 of the Banking Companies Recovery of Loans Ordinance 1979. Publication has been received vide circulation in Morning News dated 10.7.1987. Summons issued to these Defendants 1 to 3 by bailiff as well as Registered A/D returned served on 18.8.1987. M/s. Liaquat Merchant and Co. Advocates filed power on behalf of Defendants Nos. 1 & 2. Let Defendants file application for leave to appear and defend the suit within 10 days from the date of Service. Adjourned to 1.9.87." Mr. Noorul Hassan has cited a Division Bench decision of this Court in the case ofPak. Insurance Corporation v. Grindlay's Bank Ltd. reported in 1987 C.LC. 2164, wherein it was held that where defendant was served with summons by publication on a.specified date, application for leave to defend the suit made after 10 days of such publication, would be time barred. Mr. Justice Ahmad Ali U. Qureshi sitting singly in the case of United Bank Ltd. v.AHHabib & Co. reported in 1988 C.L.C. 292 and some other Judges of this Court in some other cases have dealt with this point and explained the above D.B. ruling. After taking into consideration these two decisions and a number of other decisions of this Court on this point, I am of the clear view that it is the satisfaction of the Court as to whether service by a particular mode was good service or not, which will be the deciding factor. From the diary of the Addl. Registrar it appears that he was satisfied about the goodness of service by all the three modes i.e. by publication, by Registered Post A/D and by service through Bailiff. It was argued by Mr. Liaquat Merchant that his satisfaction was the cumulative effect of all the three modes and that he had not specified by which of these modes the Defendants were served satisfactorily, therefore, it cannot be said that he had-held any particular mode satisfactory and therefore, it is wrong to conclude that theservice by publication was held satisfactory by the Addl. Registrar. I am not impressed by contention of Mr. Liaquat Merchant. From the above order it is quite clear that the Additional Registrar had not held that service by publication or by Registered Post A/D was un-satisfactory. Hence even if service by publication was considered to be somewhat- loose, then also the service by -Registered Post A/D was good being accurate and precise. Sub-rule (2) of Rule 10-A of Order V CPC. makes it quite clear that an endorsement by a postal employee that the Defendant refused to take delivery of the summons by •Registered Post A/D shall be deemed by the Court issuing the summons to be a prima-facie proof of service of summons. Hence I am satisfied that the Defendants were served by Registered Post A/D on 26.7.1987, so also by publication dated 10.7.1987. The application is, therefore, clearly time barred. The defendants' counsel has not made any application under section 5 of the Limitation Act and therefore, the question of condoning delay does not arise. Hence C.MA. No. 3805/1987 is dismissed. The effect of dismissal of the application is that the suit is decreed for the sum of Rs. 33,20,122.71 against the Defendants jointly and severally with interest 14% p.a. with quarterly rests from the date of filing of the suit till recovery. The cost of the suit shall be borne by the defendants. (MBC) Suit decreed.

PLJ 1990 Karachi 334 (DB) PLJ 1990 Karachi 334 (DB) Present: S. sajjad ali shah, CJ and haziqul khairi, J M/s MUMTAZ STEEL CORPORATION (PVT) LTD. and 4 others-Petitioners versus PAKISTAN STEEL RE-ROLLING MILLS ASSOCIATION and 5 others-Respondents Const Petition No. D-1157 of 1989, dismissed on 28.1.1990 Trade Organization Ordinance, 1961 (XLV of 1961)- —Ss. 9 & 12 read with Constitution of Pakistan, 1973, Art. 199-Constitutional petition-Maintainability of--Challenge to-Learned counsel for petitioners was unable to satisfy court as to how in face of Sections 9 and 12 of Ordinance, petitioners at this stage can invoke constitutional jurisdiction-Admittedly petitioners had acknowledged propriety of Director of Trade Organization under Section 9 of Ordinance by sending a telegram to him for redress of their grievance but before he could take any action, they hastened to file this petition very next day-Ordinance provides inter-alia machinery for resolving grievance relating to election of Trade Organization including irregularities connected with proxies-Held: There is no merit in constitutional petition which is dismissed in limine. [P.336JA&B Mr. N^4. Farooqi, Advocate for Petitioners. Mr. Andleeb AM, Advocate for Respondents Nos. 1,5 & 6. Mr. SA. Wadood, Deputy Attorney General for Respondent No.2. Dates of hearing: 27 and 28.12.1990. judgment Haziqul Khairi, J.--By this petition under Article 199 of the Constitution of Pakistan, 1973, M/s Mumtaz Steel Corporation and other Steel Mills have challenged the elections of Pakistan Steel Rerolling Mills Association, respondent No. 1, held on 28.11.1989. 2. Petitioners are members of Respondent No. 1 which is an Organization of Steel Mills owners. By its Circular, elections for 1989-90 were notified for 28.11.1989. It is averred that the Secretary of the Respondent No. 1 had received the proxies at a place other than the appointed place in order to avoid inspection thereof which had resulted into rejection of three proxies, namely, of Itafaq Steel and Rerolling Mills, Pakistan Steel Products and New Sartaj Steel. The situation was manoeuvred by which the voting potential was manipulated to demonstrate^ so-called equality of votes entailing the pre-arranged exercise of the casting vote by the Vice Chairman. In this manner the so-called elcctorial victory of petitioners' oppenents, namely, respondent No. 3 to 6 was procured. Letters of Protests dated 3.12.1989 (Annexures E&F) are said to- have been sent to respondent No. 1. Similarly, notices dated 3.12.89 Annexures J & Jl) were also served upon the respondent No. 1, to which the respondent No. 1 had sent replies both dated 6.12.89 (Annexures L & M) setting up vague and untenable pleas in rebuttal. It is also averred that the petitioners in vain had also sought the intervention of the respondent No. 2, namely, the Director Trade Organization, Government of Pakistan, Ministry of Commerce, constituted under the Trade Organization Ordinance, 1961. 3. The respondent No. 1 in their counter affidavit have vehemently opposed the main petition and have denied the various allegations made therein. A preliminary objection has been raised by the respondents No. 1 and 2 as to the maintainability of the petition in view of Sections 9 & 12 of the Trade Organization Ordinance, 1961. It is contended that free and fair elections took place and the rejection of proxies was unanimously accepted by the House and recorded in the minutes prepared by the Secretary and signed by the Chairman of the respondent No. 1. According to them, in pursuance of the said elections, the Karachi Circle Executive committee have started functioning in their office and in fact its one meeting has already taken place vide annexure B to the counter affidavit. 4. Mr. Nasim Farooqi, learned counsel for the petitioners, has urged before us that the respondent No. 1 could not reject or declare as invalid the said proxies unless Show Cause Notices are given by the respondent No. 1 to the persons appointing the proxies. According to him, the provisions as contained in Section 161 of the Companies Ordinance, 1984, relating to 'Proxy' are not applicable to the respondent No. 1 as the respondent No. 1 is "an association not for profit" and do not have any share capital. 5. It is contended by Mr. S.A. Wadood, Deputy Attorney General, and Mr. Andleeb Alyi, learned counsel for the respondents that the Trade Organization Ordinance, 1961, provides complete machinery for dealing with all matters relating to Trade Organizations including the present one in relation to acceptance or rejection of proxies. It is urged that there is nothing to prevent them to invoke the jurisdiction of the Director of Trade Organization for annulment of elections under Section 9(2)(e) of the Ordinance in case there had been such malpractice. Learned counsel then referred to Section 12 of the Ordinance nder which no suit would lie against a Trade Organization, its executive committee or other body calling in question the validity or propriety of any of its act or proceeding unless the same has been referred .to Arbitration in Tribunal constituted thereunder. In support of their contentions! learned counsel have relied upon PLD. 1982 Quetta 136; PLD 1982 Kaf. 889; PLD 1983 Lah. 1. Finally, it is urged by them that a decision made under Section 9 of the Ordinance is appealable under Section 15 thereof which too is open to judicial review under the constitutional jurisdiction of this Court. Reference is made to the case of Mehar Ali v. Pakistan & 5 others reported in PLD 1980 Kar. 609. 6. Learned counsel for the petitioners Mr. Nasim Farooqi was unable to satisfy us as to how in the face of Sections 9 & 12 of the Trade Organization Ordinance, 1961, the petitioners at this stage can invoke the Constitutional jurisdiction of the Court. Admittedly the petitioners had acknowledged the 'propriety of the Director of Trade Organisation under Section 9 of the Ordinance by sending a telegram to him on 19.12.1989 for redress of their said grievance but" before he could take any action, the petitioners had hastened to file this petition the very next day viz: 20.12.1989. 7. As a result of the above discussion, we are of the view that the Trade Organization Ordinance,, 1961, provides inter-alia machinery for resolving the grievances relating to, election of the Trade Organization including irregularities connected with proxies. Hence we find no merit in the petition which is dismissed in limine. However, under the circumstances we direct the Respondent No. 2, namely, the Director, Trade Organization, Ministry of Commerce, Government of Pakistan to dispose of Representation sent to him by the petitioner No. 1 by their telegram within two weeks from the date of this Order, as contemplated under Section 9(2) (e) of the Ordinance. The operative part of this order was pronounced by us vide short order passed by us on 28.12.1989. (MBC) Petition dismissed.

PLJ 1990 Karachi 336 PLJ 1990 Karachi 336 Present: imam ALI G. KAZl, J M/s. F. REHMAN & Co-Appellants versus PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (Private Ltd)-- Respondcnts First Appeal No. 35 of 1988, accepted on 14.3.1990. Limitation Act, 1908 (IX of 1908)-- -— Art. 85 read with Civil Procedure Code, 1908, Order VII Rule 11-Plaint-- Rejection of— Appeal against— Whether suit was time barred— Question of~ Contention that Article 88 of Act would apply, has no force-Admittedly plaintiffs were agents of respondents— Article 88 is attracted only when suit is filed by principal against his agent-Articles 88, 89 and 90 of Act can never lie pressed in service in suits by agents against principles—Held: Article 85 would be applicable in view of facts mentioned in plaint and period of limitation will run from last date of normal accounting year alter 2.3.1984— Held further: Trial Judge has not based his finding on proper appreciation of facts mentioned in plaint-Appeal accepted. [Pp.338 & 339JA.B&C AIR (30) 1943 Sind 26 rel. Mr. Shah Maqsood Ahmad, Advocate for Appellants. Mr. KJialilur Rehman, Advocate for Respondents. Date of hearing: 1.2.1990. judgment M/s. Pakistan Industrial Development Corporation (Pvt) Limited, the respondents herein, hrd appointed M/s F.Rehman and Company, the appellants herein, as their clearing, forwarding and shipping agents in respect of consignments imported by them. During the course of their business certain amounts fell due and payable by the respondents. The appellants forwarded their bills to the respondent for payment. The respondent on 19.7.1983 instead of making the payment of the bills sent by the appellants, claimed that an amount of Rs.2, 19,366.55 be refunded to jjicm on account of octroi deposits. The appellants then by their letter dated 21.7.1983 provided the respondents with all details of the bills sent to them. The respondents reduced their demand to Rs.56,507,80. Such correspondence led to a meeting between the parties held on 2.3.1984 when the ' bills were settled. The appellants, however, remained silent for a period of over ( two years and on 5.11.1986 demanded payment of Rs..60,681,70. The respondents did not pay them the amount demanded with the result that appellants ultimately on 19.10.1987 filed a suit in the Court of Senior Civil Judge, Karachi (Soulh) for recovery of such amount. Their suit was registered as Suit No. 1901 of 1987 in that Court. 2. The defendants in the suit (the respondents herein) filed an application under Order VII rule 11 Civil Procedure Code alongwilh their written statement seeking rejection of the plaint on the ground that the suit was barred by law of limitation. Ultimately, the VII Senior Civil Judge, Karachi (Soulh) alter hearing the parties passed an order on 30th March, 1988 rejecting the plaint under Order VII rule ll(d) Civil Procedure Code. The order was followed by the decree drawn on 25.4.1988. 3. Being aggrieved by the order and decree referred to in the preceding paragraph M/s F. Rehman and Company have tiled the present First Appeal. 4. Mr. Shah Maqsood Ahmed, the Advocate for the appellants contended that according to the lads slated in the plaint, Article 88 to the First Schedule .of the Limitation Act, 1908 would be applicable and the period for filing the suit will run from a date when the amount due was demanded. In the instant case, according to him, the amount was finally demanded on 5.11.1986 and in spite of the demand, no payment was made by the respondents. A period of three years is to be calculated from 5.11.1986 and the suit as filed was within time. 4. Mr.Kahalilur Rehman, the Advocate for the respondents argued that cither Article 56 or Article 85 of the Limitation Act will be attracted for the purposes of computation of the period of limitation in this case and under both the Articles the suit is filed beyond the period of limitation. He, therefore, supported the order passed by the trial Judge. 5. The contentions raised by Mr. Shah Maqsood Ahmed, Advocate for the appellant that Article 88 of First Schedule of the Limitation Act will be applicable in the case has no force. Article 88 will apply when a suit is filed against the factor for an- account. Expression "factor" according to Legal Tresaures means, "agent, broker, commercial agent etc." In this case admittedly the plaintiffs were the aucnts of the respondents. Article 88 can only be attracted when the suit is filed by the principal against his agent. Similarly, Articles, 89 and 90 of the Limitation Act will also have application only when the suit is filed by the principal. Article 88,89 and 90 of First Schedule to the Limitation Act, 1908 contain a special provision applicable to suits filed by the principals against their agents only. Such Articles can never be pressed in service in suits by the agents against the principals as in this case. 6. It can very conveniently be gathered from the facts stated in the plaint in the instant suit that the plaintiffs had based their suit on open, mutual and current account where the account was sorted out and settled between the parties on 2.3.1984 and suit was filed on 19.10.1987. Article 85 in the Limitation Act would be applicable in view of the facts mentioned in the 1 plaint. Settlement of account according to para 3 of plaint took .place on 2.3.1984. The period of limitation as provided by Article 85 of the Limitation will run from the last date of the normal accounting year of the appellants after acknowledging such amount. In taking such a view of the present case, I am supported by the decision in the case of Giirdinomul Chandwnal & others vs Usto Mohammad Hayat & others reported in AIR (30) 1943 Sind 26. The appellants (plaintiffs) in this case have deliberately omitted to mention the last dale when they normally close their accounts and have j instead indicated that cause of action took place on 5.11.1986 when they addressed | a letter to the respondents demanding payment. A right to sue under Article 85 of j the Limitation Act cannot be extended in a case where a plaintiff omits to sue within a period of three years calculated from the last date of accounting period as j provided thereby only by resorting to address a letter of demand on a later date. i As held in case referred to hcreinabove such period cannot be extended by even aking payment of some amount out of the demanded sum. The period of limitation in this case will run from the last date of accounting period of the plaintiffs after 2.3.1984 as is provided by Article 85 of First Schedule of the Limitation Act, 1908. Such dale has not been mentioned in the plaint. 7. In view of above as the trial Judge has not based his finding on proper appreciation of the facts mentioned in the plaint, I set aside the order impugned in tliis appeal and allow the appeal with no order as to cosls with a direction that the trial Judge shall settle the issues including the issue touching limitation, treat the issue of limitation as the preliminary issue, record evidence and decide accordingly. (MBC) Appeal accepted.

PLJ 1990 Karachi 339 PLJ 1990 Karachi 339 Present: MUKHTAR AHMAD JUNEJO, J MUSLIM COMMERCIAL BANK (Ltd)--Plaintiff versus ALTAF HUSSAIN and 3 others Defendants CMA in Suit No. 87 of 1989, accepted on 21.2.1990 Civil Procedure Code, 1908 (V of 1908)- —O.XXXVII R. 4 read with Banking Companies (Recovery of Loans) Rules, 1980, Rule 8~Suit for recovery-Leave to appear and defend-Application for —Whether application was time-barred—Question of—Process was issued for defendants in manner laid down in rule 8~They were served only by publication and not in person or even by pasting-Even process sent by registered post was not served-Held: Defendants have not been served with summons or notice in form 4 of Appendix 'B' of CPC and consequently time of limitation has not started running against defendants although they were served by publication—Application accepted and decree set aside. [Pp.340&341]A&B 1988 CLC 292 rel. Mr. Muhammad Haneef, Advocate for Plaintiff. Mr.Nuniddin Sarki, Advocate for Defendants. Date of hearing: 21.2.1990. order Defendants Altaf Hussain and others have moved this application for setting aside of the judgment and the decree passed against them in this summary suit. The suit was filed by the plaintiff Muslim Commercial Bank Limited under Section 7 of the Banking Companies (Recovery of Loans) Ordinance 1979 (hereinafter to be referred as the Ordinance) for recovery of Rs.11,15,604/- from the defendants. The defendants were issued process through publication as well as through bailiff and through registered post. The summons sent through bailiff came back unserved with report "shifted". However the service by publication was held good and the suit was decreed under the judgment dated 25.4.1989. Mr. Nooruddin Sarki, learned Counsel for the defendants/petitioners has referred to Rule 8 of the Banking Companies (Recovery of Loans) Rules 1980 and argued that the defendants should have been sent summons and notices through bailiff of the Court and by registered post A.D., besides by publication and that the defendants were not properly served with summons and notices of this suit. In support, learned counsel referred to the cases of (i) Pakistan ~ Insurance Corporation Versus Grindlays Bank Limited and others (1987 CLC 2164). (ii) M/S. Union Bank of the Middle East Limited Versus M/s. Zubna Limited & Others (PLD 1987 Karachi 206) and (iii) United Bank Limited Versus Nishat Chemical Industries Limited and Others (1986 CLC 1985). In (i) above it was observed that Rule 8 of Banking Companies (Recovery of Loans) Rules has provided three simultaneous modes of service. In the same case it was held that though the attempt to effect service of summons or notice is to be made simultaneously by the three modes, but the service, can be held good if a defendant is served by any one or more of the prescribed modes of service. In (ii) and (iii) above the view taken was that all the three modes of service mentioned under Rule 8 of the said Rules, are to be adopted simultaneously. In (ii) above it was added that if the defendants-were served by publication and also through bailiff, insistence for service by registered post also would not be in consonance with the policy of the Ordinance and the Rules thereunder. In (iii) above it was added that the summons published under Rule 8 of said Rules can be held to be due and proper service if it is established that the defendant is avoiding the service through bailiff and by post or his whereabouts are not known. Diary maintained by the Additional Registrar in this case shows that process was sent to the defendants by all the three modes prescribed by Rule 8 of the said Rules. However, the defendants were not served through all the three modes and they were served by publication. Mr.Mohammad Hanif Khan, learned Counsel for the plaintiff challenged the present application to be time-barred. Referring to the provisions contained by Order 37 Rule 4 of C.P.C. he argued that in the supporting affidavit the defendants had not challenged the averments made in the plaint and they had not disputed the statement of accounts or execution of the documents. It was next argued that while moving an application under Order 37 Rule 4 C.P.C., the defendants had to make out, not only that they were not properly served with the process, but they had also to make out a case for grant of leave to defend. In support, learned Counsel for the plaintiff cited the cases of (i) Abdullah Arain Versus National Bank of Pakistan & Others (PLD 1988 Kar. 334), (ii) M/s. Habib Bank Limited Vs. M/s. East Asia Trading Company Limited & Others (1987 CLC 288), (iii) M/s Habib Bank Limited Vs. M. Tufail and brothers (1987 MLD 2953), (iv) Yoitsuf Garments and Others Vs. Grindlays Bank Ltd. & another (1988 CLC 1214), (v) Pakistan Insurance Corporation Vs. Grindlays Bank Limited & Others (1987 CLC 2164) and (vi) M/s. United Bank Limited Versus All Habib & Company (1988 CLC 292). In the present case the process was issued for the defendants, in the manner laid down by Rule 8 of Banking Companies (Recovery of Loans) Rules. However, the defendants were not served personally or even by pasting. They were served only by publication. Even the process sent by registered post was not served upon them. Although the attempt to effect service of summons/notice is to be made simultaneously by the three modes, but the service can be held good, if a defendant is served by any one or more of the prescribed modes of service, as held in the case of Pakistan Insurance Corporation Versus Grindlays Bank Limited and Others (1987 CLC 2164) by a Division Bench of this Court. It was observed by a learned Single Judge of this Court in the case of United Bank Limited Versus Ali Habib & Company (1988 CLC 292) cited by learned Counsel for the plaintiff, that service by publication is on same footing as service by summons or by registered post. In the same case the view taken was that service against the defendant cannot be considered good service unless summons have been served in Form No.4 of Appendix B of C.P.C. alongwilh a copy of plaint either in person or through his agent or in the manner prescribed under Order 5 Rule 17 of C.P.C. and Rule 141 of the Sind Chief Courts Rules (O.S.). In the cited case although the defendant was served by publication which was considered to be on same footing as service by summons or by registered post, the view taken was that the period of limitation of 10 days will not start running against he defendant, till he was served with summons in Form 4 alongwilh copy of the plaint. This view has been expressed in a case which has been cited by learned Counsel for the plaintiff and the reasoning in the cited case appears to be sound. Applying same reasoning to the instant case, it would appear that the defendants have not been served with the summons or notice in Form 4 of Appendix "B" of C.P.C. and consequently the time of limitation has not started running, although they were served by publication. The law favours adjudication of disputes on merits. The other authorities cited by learned Counsel for the plaintiff do not stand in the way of setting aside of the decree under Order 37 Rule 4 of C.P.C. In the case of Abdullah Arain (PLD 1988 Karachi 334) dismissal of an application under Order 37 Rule 4 of C.P.C. was upheld as the defendant had no case on merits. In the case of Yousuf Garments (1988 CLC 1214) the factum of obtaining of loan and execution of the documents had been admitted and the trial court ordered deposit of disputed amount as a condition precedent for permission to defend the suit. In the case of Bank of Omman Limited (1987 CLC 288) the submission that the Bank acted recklessly in advancing the loan, was not accepted for the purposes of granting to the defendants the leave to defend the suit. In the case of Habib Bank Limited (1987 MLD 2953) plaintiffs case was fortified by a number of documents, the execution of which was either admitted by the defendant or not denied by him and the defendant did not deny having obtained the loan and overdraft facility and in the circumstances leave to defend was refused. Contention of learned Counsel for the plaintiff that acceptance of the application under Order 37 Rule 4 of C.P.C. would amount to grant of leave to defend, is not supported by any authority. Consequently it was not essential for the defendants to deny case of the plaintiff on merits, in their application under Order37Rule4ofC.P.C. In view of the above discussion and relying ,on the case of United Bank Limited reported in 1988 CLC 292, I accept the application under Order 37 Rule 4 of C.P.C. and set aside the decree passed against the defendants. The matter is adjourned to a date in office for further proceedings. (MBC) Application accepted.

PLJ 1990 Karachi 341 PLJ 1990 Karachi 341 Present: IMAM An G. KAZI, J GHAFFAR-Appellant versus GHAFOOR BHAI deceased through his legal representatives-Respondent FRA No. 760 of 1987, dismissed on 11.2.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-Ss. 15&19(5) read with Civil Procedure Code, 1908, O. XX Rule 4(2)-- Tenant-Ejectment of-Appeal against-Whether CPC is applicable to rent case—Question of—Contention that Rent Controller has not complied with provisions of Order XX Rule 4(2) of CPC-It is not shown as to how Rent Controller failed to do so-Rent Controller is required by Section 19 of Ordinance to follow procedure laid down in Ordinance-Held: Provisions of Civil Procedure Code are applicable to cases before a Rent Controller only to extent as provided by section 20 of ordinance—Held further: Rent Controller can deviate from normal mode of dealing with issues in a suit to follow procedure laid down in section 19(5) of Ordinance for writing judgments. [P.344JA (ii) Sind Rented premises Ordinance, 1979 (XVII of 1979)- —Ss. 15&2(/)~Tenant-Ejectment of~Landlord and tenant-Relationship of-- Denial of-Whether relationship existed-Question of-Definition of tenant is not exhaustive as defined in section 2(/)~Term "include" has been used to give it extended meaning-Appellant is admittedly son of original tenant who died and after his death, his son Ramzan occupied shop but latter also died and then appellant came into possession-Held: Appellant is tenant within definition of tenant contained in Section 2(/) of Ordinance and has clearly committed default in payment of rent—Appeal dismissed. [Pp. 344&345JB&C Mr. Mehar Hussain Mesawa, Advocate for Appellant. Mr.S. InayatAli, Advocate for Respondent. Date of hearing: 18.12.1989. judgment Ghafoor Bhai son of Hashim Bhai filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 in the Court of III Rent Controller, Karachi, seeking ejectment of his tenant Ghaffar son of Haroon from a shop situated on plot bearing survey No.183, sheet No.O.T.III, near Mithadar Chowk, I Karachi. The shop in question was let out to the said tenant at a monthly rent of Rs.42/- per month. The said tenant failed to pay rent from 19.9.1960 upto the date of filing of the rent application. The landlord accordingly sought ejectment of his tenant on the ground that the tenant had failed to pay rent from 19.9.1960 and also on the ground that the shop in question was needed by the landlord for the use of his eldest son. " 2. During the course of the proceedings, the applicant Ghafoor Bhai expired and his legal heirs were joined as applicants in his place. 3. The tenant in his written statement denied the existence of relationship of landlord and tenant between them and asserted that the rent application was not t ompetent as no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was given to him. He further contended that the applicant had previously filed similar application being Rent Case No.240 of 1963 against a dead person, Haroon, on the same ground. His son Mohammad Ramzan was then joined as a party and he was directed to deposit rent at the rate of Rs.15/- per month. The said Ramzan deposited rent from 19.9.1960. The rent case was ultimately dismissed and thereafter Ramzan started depositing rent in Rent Case No.390 of 1963 filed by him as the applicant refused to accept rent from him. Thereafter, the applicant filed another Rent Case being Rent Case No.1055 of 1979 against his said tenant Ramzan. After notice was issued in that case, it was found that Ramzan had already died on 10.1.1976. This case was, therefore, dismissed on 15.10.1979. It is after such litigation that the present frivolous application has been filed against him. 3. The Rent Controller on the basis of pleadings of the parties settled following issues; (/) Whether there exists relationship of landlord and tenant between the parties? (iV) Whether the opponent has made a default in payment of rent as alleged? (Hi) Whether the applicant requires the case premises for personal bonafide requirement? ^ (j'v) What should the order be? 4. Both the parties led their evidence in support of their stands. The Rent Controller on the basis of evidence produced by the parties answered the first three issues in affirmative and directed ejectment of the appellant and passed an order on 8lh July, 1987 to that effect. It is against this order that the present appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 has been filed by the tenant/appellant. 5. Mr. Mehar Hussain Masawa, the Advocate for the appellant raised the following pleas in support of the appeal; (/) The Rent Controller had failed to comply with the mandatory provisions of law contained in Order XX rule 4 Civil Procedure Code in writing the judgment in the case. He relied on cased reported as 1982 CLC 663 and 1989 CLC 1542 in support of his contention. ' (//') The Rent Controller had misread evidence and passed an erroneous order. (///) That application for ejectment was filed against the wrong person. 6. Mr. S. Inayat Ali, the Advocate for the respondent argued that according. to the facts brought on record, one Haroon father of the appellant was originally the tenant of the shop in question. He had committed default in payment of rent and an application for his ejectment was filed before the Rent Controller. After the filing of that case it transpired that he was dead and his son Ramzan was in possession of the shop. Proceedings were, therefore, initiated against Ramzan. Raman too expired and the shop admittedly came in possession of the other son of original tenant, the present appellant in the case. It is also an admitted position that the appellant neither paid rent to the respondents nor tendered rent in any permissible manner. In view of such admitted position, the rent case was competently filed and the respondent proved his case on both the grounds. 7. As regards the first contention of Mr. Mesawa, Advocate for the appellant that the Rent Controller has not complied with the provisions of Order XX rule 4(2) Civil Procedure Code he has not been able to show as to how the Rent Controller has failed to do so. Even otherwise the Rent Controller is required by Section 19 of the Sindh Rented Premises Ordinance, 1979 to follow the procedure laid down therein. The provisions of Civil Procedure Code are applicable to cases before a Rent Controller only to the extent as provided by Section 20 of the Ordinance. In fact a Rent Controller can deviate from the normal mode of dealing with issues in a suit and follow the procedure laid down in Section 19(5) of the Ordinance for writing judgments. Under the circumstances, no exception can be taken to the manner of writing judgment in the case by the Rent Controller and such an argument has no force. 8. Nothing has been pointed out by the Advocate for the appellant in support of his second contention. 9. In order to appreciate third contention of Mr. Mesawa, the Advocate for the appellant it will be necessary to examine the definition of "tenant" as given in Section 2(j) of the Sindh Rented Premises Ordinance, 1979 which is reproduced herein; "(j) "tenant" 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:- (i) 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." From the definition of "tenant" reproduced above it will be seen that following persons will be taken to be the "tenants" for the purpose of the Sindh Rented Premises Ordinance 1979:- (/) A person who either undertakes to pay rent of a premises or is bound to pay rent as consideration for being in possession or occupation of a premises. He can be another person too who acts on his behalf. (//') A person who continues to be in possession or occupation of a premises even after the termination of his tenancy. (///) Heirs of a deceased tenant. The above definition is also not exhaustive as tenant as defined in sub-section (j) 'includes' categories at (ii) and (iii) above. Term "include" has been used to give the sub-section an extended meaning. There can be other categories of persons to come within the definition of a "tenant". The appellant in this case admittedly is the son of the original tenant, Haroon. Ramzan occupied the shop on death of his father and appellant the other son of Haroon occupied it on the death of his brother Ram/an. Appellant, therefore, is a tenant within the definition contained in section 2(j) of the Sindh Rented Premises Ordinance, 1979, and he had clearly committed default in payment of rent as no rent was ever paid by him. The third contention too, therefore, has no force. 10. For the foregoing reasons, I find no force in this appeal, which is dismissed. The appellant will hand over the vacant possession of the shop to the respondents within three months. (MBC) Appeal dismissed.

PLJ 1990 Karachi 345 (DB) PLJ 1990 Karachi 345 (DB) Present: Syed HAIDER ALI PlRZADA and M UK1ITAR Al IMAD JUNEJO JJ ATLAS AUTOS LIMITED-Petitioner versus SIND LABOUR APPELLATE TRIBUNAL and anothcr-Respondents . Constitutional Petition No. 1001 of 1988, dismissed on 28.1.1990 Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (\POrd. VI oH%8) —-S.O. 15(3) read with Industrial Relations Ordinance, 1969, S. 25-A-- (irievancc petition-Dismissal of-Appeal against-Acceptance of-Challcnge to—Whether allegation on which dismissal of respondent No. 2 was based, did not fall under clause (h) of para (3) of S.O. 15 and respondent No.2 could not be dismissed from service-Question of-For attracting clause (h), alleged riotous or disorderly behaviour should be at the establishment and during working hours-Refusal to receive a charge sheet can, by no stretch of imagination, be construed as an act subversive of discipline-Held: Alleged acts do not fall under clause (h) of Standing Order 15(3)--Hdd further: Failure to receive a charge sheet does not amount to wilful insubordination or disobedience to any lawful and reasonable order of a superior. I Pp.348 &349]A,B&C 1975 SCMR 46,1989 PLC 499,1985 PLC 570,1984 PLC 712 and 1967 PLC 525 distinguished. Mr. Noor Muhammad, Advocate for Petitioner. Mii-za Muhammad Kazim, Advocate for Respondent No.2. Date of hearing: 17.1.1990. judgment Mukhtur Ahmed Junejo, J.--Pctitioncr M/s. Atlas Autos Limited have invoked constitutional jurisdiction of this court for challenging an order dated 25.9.1988 passed in Appeal No.KAR-207/84 by learned Sind Labour Appellate Tribunal (hereinafter to be referred to as the Tribunal).. 2. Admittedly respondent No.2 Mohammad Ali was an employee of the petitioner. During the course of his employment the respondent No.2 was issued by the Atlas Autos Limited a charge sheet dated 22.6.1983 containing the allegations that the respondent No.2 had misbeljavcd with the Assistant Manager and had threatened him. It was alleged by the petitioner that the respondent No.2 refused to receive the charge sheet dated 22.6.1983, which was sent to him by registered post A.D.. Subsequently, respondent No.2 was issued a letter dated 27.6.1983 with which copy of the charge sheet dated 22.6.1983 was attached and the respondent No.2 was called upon to reply the charge sheet. Respondent No.2 after reading the letter dated 27.6.1983 refused to receive it, as alleged. Consequently, on 29.6.1983 respondent No.2 was gate stopped. On 4.7.1983 respondent No.2 was issued a fresh charge sheet containing the allegations, that he had refused to receive the charge sheet dated 22.6.1983, that he had refused to receive the suspension letter dated 25.6.1983 and that he refused to receive the Factory Manager's letter dated 27.6.1983. Instead of sending the charge sheet dated 4.7.1983 to the respondent No.2 by post or through anybody, the petitioner got the same published in daily Dawn dated 4.7.1983. There was no response from the respondent No.2 and consequently the petitioner decided to hold inquiry against the respondent No.2 and issued such inquiry notice on 7.7.1983 and fixed the date of inquiry to be 9.7.1983. Instead of sending the inquiry notice to the respondent by post or through somebody, the petitioner chose to get it published in the daily Morning News dated 7.7.1983. This was followed by holding of the domestic inquiry on 9.7.1983 which proceeded exparte as the respondent No.2 did not attend. The Inquiry Officer submitted his report dated 10.7.1983 to the petitioner. The petitioner ordered on 11.7.1983 dismissal of the respondent No.2 with immediate effect. Instead of sending the dismissal letter to the respondent No.2 through registered post or any other mode, the petitioner got said notice published in daily Morning News dated 11.7.1983. 3. The respondent No.2 submitted to the petitioner his grievance notice dated 21.7.1983, which was rejected by the petitioner on the ground that it did not disclose any valid or reasonable ground for reinstatement. Such reply to the grievance notice was got published in daily Morning News dated 11.8.1983. 4. Subsequently, the respondent No.2 invoked the jurisdiction of the Sind Labour Court No.2 under Section 25-A of l.R.O. for reinstatement. His grievance application was dismissed under the order dated 9.8.1984, which he challenged before the Tribunal under Appeal No.KAR-207 of 1984. Under the impugned order datd 25.9.1988 learned Tribunal reversed order of the Labour Court and directed reinstatement of the respondent No.2 in service of the petitioner with full back benefits. Hence this petition. 5. Mr. Noor Mohammad, learned Counsel for the petitioner argued that the petitioner had complied with all the relevant legal provisions of law while dismissing the respondent No.2 and that dismissal of the respondent No.2 was warranted by law as he, by refusing to receive the charge sheet dated 22.6.1983 had committed wilful insubordination and disobedience of a lawful and reasonable order of a superior, for the purposes of Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (hereinafter to be referred to as the Ordinance). Explaining the reasons for communicating the various notices to the respondent No.2 by publication, learned Counsel for the petitioner argued that conduct of the respondent No.2 was such that he did not accept any communication from the petitioner and if any thing was sent to him by registered post A.D., then he would, after receiving such registered envelope, make complaint to the petitioner that the registered envelope sent to him was empty. It was added that in the circumstances the petitioner was left with no option except to send the various notices to the respondent No.2 by publication. Learned Counsel referred to para-6 of the impugned order and disagreed with view of learned Tribunal, criticizing the domestic inquiry to be a mere empty formality. Learned Counsel referred to the evidence of Mohammad Ameer A wan who was Inquiry Officer. In support learned Counsel for the petitioner cited the cases of (i) Mohammad Sha/niin Versus M/s. Pakistan Tobacco Company Limited and another (1975 SCMR 46), (ii) Crescent Jute Product Limited Versus Mohammad Yaqoob and others (1989 PLC 499), (iii) Akhtar Alain Versus Sind Labour Labour Appellate Tribunal & others (1985 PLC 570), (iv) Cotton Export Corporation of Pakistan Limited Versus Sind Labour Appellate Tribunal & Others (1984 PLC 712) and (v) Abdul Rasheed Versus Industrial Court of West Pakistan and another (1967 PLC 525). 6. In (i) above the domestic inquiry as per the charge sheet was to be conducted by the Factory Personnel Manager, who being on leave, the inquiry was conducted by Assistant Personnel Superintendent, and it was held that the inquiry made was with approval of the employer. In (ii) above, the view taken by Lahore High Court was that where the employer was called upon to justify dismissal of a worker, the best course for him was to make availabe the record of the inquiry starting from the allegations against the employee, the charge sheet, the inquiry itself followed by the inquiry report, the show cause notice and the termination order and that it was not necessary for such employer to produce in Labour Court every witness who had been produced in the inquiry. In (iii) above, a Division Bench of this court dealing with the provisions contained by clause (h) of para (3) of Standing Order 15 of the Ordinance observed that said clause provided two categories of the acts which may constitute a mis-conduct, namely, riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline and that the words "any act subversive" must be construed ejusdcm generis with the words preceding them. In (iv) above a learned D.B. of this court held that the question whether employee's refusal to obey order of his superior constituted misconduct or not, was a question of fact which could ot be inlcrfeied with in exercise of constitutional jurisdiction of the High Court. In the cited case the employer had not brought on record, as to, what was the nature of the urgent work which the workman declined to attend during the lunch hours and as to whether the urgent work was such, which could not have been postponed for about 45 minutes. In cited case there was no question of an employee's refusal 10 receive a charge sheet. In (v) above an employee who was Clerk in the establishment and was General Secretary of his union wrote a letter to the Director Labour on behalf of the Union alleging that it was the Personnel Manager who arranged the casual labour strike with the intention to make a public contract with a labour contractor. On the basis of such letter, the management proceeded against him under Standing Order 15(3)(h) and gave him punishment. It was held that no fauflt could be found with conclusion of the Industrial Court that the concerned employee was guilty of acts subversive of discipline for having recklessly made a defamatory statement. In the cited case there was no allegation about refusal to receive a charge sheet. 7. Mr. Mir/a Mohammad Kax.im, learned Counsel for respondent No.2 defended order of the Tribunal and argued that even if it be conceded that the respondent No.2 refused to receive the charge sheet dated 22.6.1983, such act would not fall either under clause (a) or under clause (h) of para (3) of Standing Order 15 of the Ordinance. It was next argued that the respondent No.2 was viclimi/.ed due to union activities and that the respondent No.2 was not communicated the second charge sheet that was published in daily Dawn dated 4.7.1983 and his reply to ihe charge sheet was not obtained before ordering domestic inquiry against him and that there was no proper communication to the respondent No.2 that he had to lace domestic inquiry on 9.7.1983. It was further argued that the petitioner had firstly to send its communications to the respondent No.2 through somebody or through registered post and he had to follow the spirit of Order 5 Rule 20 of C.P.C. In support learned Counsel cited the cases of Crescent Julc Product Limited Versus Mohammad Yaqoob and others (PLD 1978 SC 207) and the Workers of Bala Shoe Company Limited Versus Bata Shoe Company Limited and others (1971 PLC 1). 8. The allegations on the basis of which dismissal of respondent No.2 was ordered, read as follows:- "(a) That on 22.6.1983 at about 12.10 noon you were asked to receive a charge sheet dated 22.6.83. But refused to receive the said charge sheet issued and signed by the Factory Manager directing you to submit your written explanation within 48 hours of the date of receipt thereof. (b) On 25.6.1983 your were given a suspension letter dated 23.6.1983 signed and issued by the Factory Manager pursuant to the above charge sheet but you also refused to receive the same. (c) That on 27.6.1983 you again refused to receive the Factory Manager's letter reference No. ALL-Admn 405/83 dated 27.6.1983 whereby you were specifically told that refusal to receive a written communication/direction from your superiors amounts to misconduct of wilful insubordination and accordingly you were specifically directed by the Factory Manager's said letter dated 27.6.1983 to receive the same but you still refused to receive it, i.e. the Factory Manager's said letter of 27.6.1983." Learned Counsel for the petitioner conceded that the alleged acts do not fall under clause (h) of para (3) of Standing Order 15, but vehemently argued that the same fall under clause (a) of para (3) of Standing Order 15. Clause (h) speaks of riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. The words riotous or disorderly behaviour, reflect an act having some criminality. Moreover before attracting clause (h), the alleged riotous or disorderly behaviour should be at the establishment and during working hours. Refusal to receive a charge sheet can by no stretch of imagination be construed as an act subversive of discipline. We therefore, hold that alleged acts do not fall under clause (h) oi Standing Order 15(3). 9. Learned Counsel for the respondent No.2 argued that the alleged acts of the respondent No.2, can at the most fall under clause (ii) of para (1) of Standing Order 15, for which a worker can be fined but he can not be dismissed. It was also argued that alleged acts of the respondent No.2 did not fall under clause (a) of Standing Order 15(3). 10. Wilful implies a knowledge or intention and in the case of Pakistan International Airlines Corporation Versus Junior Labour Court and others (PLD 1978 SC 239) it was held that mere failure of an air hostess to take permission to leave base of duty, was not an act of willful insubordination or a disobedience of any lawful and reasonable order of a superior. Learned Counsel for the petitioner did not cite at the bar any authority to show that failure to receive a charge sheet amounted to wilful insubordination or disobedience to any lawful and reasonable order of a superior. In the case of Abdiil Karim Versus District Manager G.T.S.' (1969 PLC 350) ther<j was refusal by the workman to receive charge sheet and the' only consequence of that, as per the Industrial Appellate Tribunal was, that the Inquiry Officer was not bound to intimate, the date fixed for the exparte proceedings • to the worker. We, therefore, agree with learned Counsel for the respondent No.2 that the alleged acts of the respondent as mentioned in the charge sheet published-in daily Dawn on 4.7.1983 do not fall under clause (a) of^ para (3) of Standing Order 15. 11. In view of aforesaid finding, no exception can be taken to the impugned order of learned Tribunal. costs. (MBC) 12. We, therefore, dismiss this Constitution Petition with no order as to Petition dismissed.

PLJ 1990 Karachi 345 (DB) PLJ 1990 Karachi 345 (DB) Present: Syed HAIDER ALI PlRZADA and M UK1ITAR Al IMAD JUNEJO JJ ATLAS AUTOS LIMITED-Petitioner versus SIND LABOUR APPELLATE TRIBUNAL and anothcr-Respondents . Constitutional Petition No. 1001 of 1988, dismissed on 28.1.1990 Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (\POrd. VI oH%8) —-S.O. 15(3) read with Industrial Relations Ordinance, 1969, S. 25-A-- (irievancc petition-Dismissal of-Appeal against-Acceptance of-Challcnge to—Whether allegation on which dismissal of respondent No. 2 was based, did not fall under clause (h) of para (3) of S.O. 15 and respondent No.2 could not be dismissed from service-Question of-For attracting clause (h), alleged riotous or disorderly behaviour should be at the establishment and during working hours-Refusal to receive a charge sheet can, by no stretch of imagination, be construed as an act subversive of discipline-Held: Alleged acts do not fall under clause (h) of Standing Order 15(3)--Hdd further: Failure to receive a charge sheet does not amount to wilful insubordination or disobedience to any lawful and reasonable order of a superior. I Pp.348 &349]A,B&C 1975 SCMR 46,1989 PLC 499,1985 PLC 570,1984 PLC 712 and 1967 PLC 525 distinguished. Mr. Noor Muhammad, Advocate for Petitioner. Mii-za Muhammad Kazim, Advocate for Respondent No.2. Date of hearing: 17.1.1990. judgment Mukhtur Ahmed Junejo, J.--Pctitioncr M/s. Atlas Autos Limited have invoked constitutional jurisdiction of this court for challenging an order dated 25.9.1988 passed in Appeal No.KAR-207/84 by learned Sind Labour Appellate Tribunal (hereinafter to be referred to as the Tribunal).. 2. Admittedly respondent No.2 Mohammad Ali was an employee of the petitioner. During the course of his employment the respondent No.2 was issued by the Atlas Autos Limited a charge sheet dated 22.6.1983 containing the allegations that the respondent No.2 had misbeljavcd with the Assistant Manager and had threatened him. It was alleged by the petitioner that the respondent No.2 refused to receive the charge sheet dated 22.6.1983, which was sent to him by registered post A.D.. Subsequently, respondent No.2 was issued a letter dated 27.6.1983 with which copy of the charge sheet dated 22.6.1983 was attached and the respondent No.2 was called upon to reply the charge sheet. Respondent No.2 after reading the letter dated 27.6.1983 refused to receive it, as alleged. Consequently, on 29.6.1983 respondent No.2 was gate stopped. On 4.7.1983 respondent No.2 was issued a fresh charge sheet containing the allegations, that he had refused to receive the charge sheet dated 22.6.1983, that he had refused to receive the suspension letter dated 25.6.1983 and that he refused to receive the Factory Manager's letter dated 27.6.1983. Instead of sending the charge sheet dated 4.7.1983 to the respondent No.2 by post or through anybody, the petitioner got the same published in daily Dawn dated 4.7.1983. There was no response from the respondent No.2 and consequently the petitioner decided to hold inquiry against the respondent No.2 and issued such inquiry notice on 7.7.1983 and fixed the date of inquiry to be 9.7.1983. Instead of sending the inquiry notice to the respondent by post or through somebody, the petitioner chose to get it published in the daily Morning News dated 7.7.1983. This was followed by holding of the domestic inquiry on 9.7.1983 which proceeded exparte as the respondent No.2 did not attend. The Inquiry Officer submitted his report dated 10.7.1983 to the petitioner. The petitioner ordered on 11.7.1983 dismissal of the respondent No.2 with immediate effect. Instead of sending the dismissal letter to the respondent No.2 through registered post or any other mode, the petitioner got said notice published in daily Morning News dated 11.7.1983. 3. The respondent No.2 submitted to the petitioner his grievance notice dated 21.7.1983, which was rejected by the petitioner on the ground that it did not disclose any valid or reasonable ground for reinstatement. Such reply to the grievance notice was got published in daily Morning News dated 11.8.1983. 4. Subsequently, the respondent No.2 invoked the jurisdiction of the Sind Labour Court No.2 under Section 25-A of l.R.O. for reinstatement. His grievance application was dismissed under the order dated 9.8.1984, which he challenged before the Tribunal under Appeal No.KAR-207 of 1984. Under the impugned order datd 25.9.1988 learned Tribunal reversed order of the Labour Court and directed reinstatement of the respondent No.2 in service of the petitioner with full back benefits. Hence this petition. 5. Mr. Noor Mohammad, learned Counsel for the petitioner argued that the petitioner had complied with all the relevant legal provisions of law while dismissing the respondent No.2 and that dismissal of the respondent No.2 was warranted by law as he, by refusing to receive the charge sheet dated 22.6.1983 had committed wilful insubordination and disobedience of a lawful and reasonable order of a superior, for the purposes of Standing Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (hereinafter to be referred to as the Ordinance). Explaining the reasons for communicating the various notices to the respondent No.2 by publication, learned Counsel for the petitioner argued that conduct of the respondent No.2 was such that he did not accept any communication from the petitioner and if any thing was sent to him by registered post A.D., then he would, after receiving such registered envelope, make complaint to the petitioner that the registered envelope sent to him was empty. It was added that in the circumstances the petitioner was left with no option except to send the various notices to the respondent No.2 by publication. Learned Counsel referred to para-6 of the impugned order and disagreed with view of learned Tribunal, criticizing the domestic inquiry to be a mere empty formality. Learned Counsel referred to the evidence of Mohammad Ameer A wan who was Inquiry Officer. In support learned Counsel for the petitioner cited the cases of (i) Mohammad Sha/niin Versus M/s. Pakistan Tobacco Company Limited and another (1975 SCMR 46), (ii) Crescent Jute Product Limited Versus Mohammad Yaqoob and others (1989 PLC 499), (iii) Akhtar Alain Versus Sind Labour Labour Appellate Tribunal & others (1985 PLC 570), (iv) Cotton Export Corporation of Pakistan Limited Versus Sind Labour Appellate Tribunal & Others (1984 PLC 712) and (v) Abdul Rasheed Versus Industrial Court of West Pakistan and another (1967 PLC 525). 6. In (i) above the domestic inquiry as per the charge sheet was to be conducted by the Factory Personnel Manager, who being on leave, the inquiry was conducted by Assistant Personnel Superintendent, and it was held that the inquiry made was with approval of the employer. In (ii) above, the view taken by Lahore High Court was that where the employer was called upon to justify dismissal of a worker, the best course for him was to make availabe the record of the inquiry starting from the allegations against the employee, the charge sheet, the inquiry itself followed by the inquiry report, the show cause notice and the termination order and that it was not necessary for such employer to produce in Labour Court every witness who had been produced in the inquiry. In (iii) above, a Division Bench of this court dealing with the provisions contained by clause (h) of para (3) of Standing Order 15 of the Ordinance observed that said clause provided two categories of the acts which may constitute a mis-conduct, namely, riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline and that the words "any act subversive" must be construed ejusdcm generis with the words preceding them. In (iv) above a learned D.B. of this court held that the question whether employee's refusal to obey order of his superior constituted misconduct or not, was a question of fact which could ot be inlcrfeied with in exercise of constitutional jurisdiction of the High Court. In the cited case the employer had not brought on record, as to, what was the nature of the urgent work which the workman declined to attend during the lunch hours and as to whether the urgent work was such, which could not have been postponed for about 45 minutes. In cited case there was no question of an employee's refusal 10 receive a charge sheet. In (v) above an employee who was Clerk in the establishment and was General Secretary of his union wrote a letter to the Director Labour on behalf of the Union alleging that it was the Personnel Manager who arranged the casual labour strike with the intention to make a public contract with a labour contractor. On the basis of such letter, the management proceeded against him under Standing Order 15(3)(h) and gave him punishment. It was held that no fauflt could be found with conclusion of the Industrial Court that the concerned employee was guilty of acts subversive of discipline for having recklessly made a defamatory statement. In the cited case there was no allegation about refusal to receive a charge sheet. 7. Mr. Mir/a Mohammad Kax.im, learned Counsel for respondent No.2 defended order of the Tribunal and argued that even if it be conceded that the respondent No.2 refused to receive the charge sheet dated 22.6.1983, such act would not fall either under clause (a) or under clause (h) of para (3) of Standing Order 15 of the Ordinance. It was next argued that the respondent No.2 was viclimi/.ed due to union activities and that the respondent No.2 was not communicated the second charge sheet that was published in daily Dawn dated 4.7.1983 and his reply to ihe charge sheet was not obtained before ordering domestic inquiry against him and that there was no proper communication to the respondent No.2 that he had to lace domestic inquiry on 9.7.1983. It was further argued that the petitioner had firstly to send its communications to the respondent No.2 through somebody or through registered post and he had to follow the spirit of Order 5 Rule 20 of C.P.C. In support learned Counsel cited the cases of Crescent Julc Product Limited Versus Mohammad Yaqoob and others (PLD 1978 SC 207) and the Workers of Bala Shoe Company Limited Versus Bata Shoe Company Limited and others (1971 PLC 1). 8. The allegations on the basis of which dismissal of respondent No.2 was ordered, read as follows:- "(a) That on 22.6.1983 at about 12.10 noon you were asked to receive a charge sheet dated 22.6.83. But refused to receive the said charge sheet issued and signed by the Factory Manager directing you to submit your written explanation within 48 hours of the date of receipt thereof. (b) On 25.6.1983 your were given a suspension letter dated 23.6.1983 signed and issued by the Factory Manager pursuant to the above charge sheet but you also refused to receive the same. (c) That on 27.6.1983 you again refused to receive the Factory Manager's letter reference No. ALL-Admn 405/83 dated 27.6.1983 whereby you were specifically told that refusal to receive a written communication/direction from your superiors amounts to misconduct of wilful insubordination and accordingly you were specifically directed by the Factory Manager's said letter dated 27.6.1983 to receive the same but you still refused to receive it, i.e. the Factory Manager's said letter of 27.6.1983." Learned Counsel for the petitioner conceded that the alleged acts do not fall under clause (h) of para (3) of Standing Order 15, but vehemently argued that the same fall under clause (a) of para (3) of Standing Order 15. Clause (h) speaks of riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline. The words riotous or disorderly behaviour, reflect an act having some criminality. Moreover before attracting clause (h), the alleged riotous or disorderly behaviour should be at the establishment and during working hours. Refusal to receive a charge sheet can by no stretch of imagination be construed as an act subversive of discipline. We therefore, hold that alleged acts do not fall under clause (h) oi Standing Order 15(3). 9. Learned Counsel for the respondent No.2 argued that the alleged acts of the respondent No.2, can at the most fall under clause (ii) of para (1) of Standing Order 15, for which a worker can be fined but he can not be dismissed. It was also argued that alleged acts of the respondent No.2 did not fall under clause (a) of Standing Order 15(3). 10. Wilful implies a knowledge or intention and in the case of Pakistan International Airlines Corporation Versus Junior Labour Court and others (PLD 1978 SC 239) it was held that mere failure of an air hostess to take permission to leave base of duty, was not an act of willful insubordination or a disobedience of any lawful and reasonable order of a superior. Learned Counsel for the petitioner did not cite at the bar any authority to show that failure to receive a charge sheet amounted to wilful insubordination or disobedience to any lawful and reasonable order of a superior. In the case of Abdiil Karim Versus District Manager G.T.S.' (1969 PLC 350) ther<j was refusal by the workman to receive charge sheet and the' only consequence of that, as per the Industrial Appellate Tribunal was, that the Inquiry Officer was not bound to intimate, the date fixed for the exparte proceedings • to the worker. We, therefore, agree with learned Counsel for the respondent No.2 that the alleged acts of the respondent as mentioned in the charge sheet published-in daily Dawn on 4.7.1983 do not fall under clause (a) of^ para (3) of Standing Order 15. 11. In view of aforesaid finding, no exception can be taken to the impugned order of learned Tribunal. costs. (MBC) 12. We, therefore, dismiss this Constitution Petition with no order as to Petition dismissed.

PLJ 1990 Karachi 353 PLJ 1990 Karachi 353 Present: MUIIAMMAD MAZIIAR'ALI, J ABDULLAH-Appellant versus Haji ABDUL GHANI-Respondent F.R.A No. 62] of 1989, dismissed on 31.5.1990 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 16(2)~Tenant--Ejectment of—Appeal against-Whcther defence of tenant was rightly struck off-Question of-Rcnt Controller acted well within his jurisdiction in allowing application of respondent under Section 16(1) of Ordinance and thereby ordering appellant to deposit arrears of rent-­ Appellant admittedly failed to comply with 'aforesaid order—Held: Rent Controller was justified in passing an order under Section 16(2) of Ordinance striking off defence of appellant-Appeal dismissed. [P.355JA&B Mr. Muhammad Muzaffanil Haq, Advocate for Appellant. Mr. A.Z. Shams, Advocate for Respondent. • Date of hearing: 21.5.1990. ! judgment ' This appeal is directed against the order, dated 21.9.1989, passed by the earned Vlth Senior Civil Judge and Rent Controller, .Karachi-South, in Rent '; Case No.640/87, under Section 16(2) of the Sind Rented Premises Ordinance, 1979 (for short "the Ordinance") thereby striking off the defence of the appellant. 2. On 4.4.1987, the respondent filed an application under Section 15 of the Ordinance for eviction of the appellant from the residential premises consisting of three rooms, kitchen, W.C., and bath, situated on the ground floor of the building No.137/1. Bihar Colony, Karachi (hereinafter called' the "demised house"), which was let out to him with effect from 1st August, 1981, vide Agreement dated 29.7.1981 on a monthly rent of Rs.200/-, staling, inler-alia, that he (the appellant) is already in possession/occupation of a separate eastern portion of the said buikling consisting of two rooms with other necessary appurtenances through an agreement, dated 19-.6.1963', that the appellant had violated the conditions of the said Agreement, that he had committed such acts as slated in the application, which were likely to impair the material vake and utilily of the demised house, thai he \vjs in arrears of rent from December, 1986 onwards and the electric charges from August, 1986 till filing of Application. He had failed to pay llie same Ucspilc legal notice, dated 12.2.1987. 3. The appellant filed written statement admitting the relationship of landlord and tenant. He, however, pleaded that the respondent had given a house comprising of two rooms, with necessary appurtenances, on monthly rent of Rs.90/-. In June, 1981, he had given another one (?) room in addition to ihe Uvo rooms' accommodation already in possession of the appellant on a monthly rent of Rs.2lH)/- under an Agreement. The appellant's case thus was that the respondent had let out to him only one unit tenement and not two separate units comprising of five rooms. The other allegations, as made in the application, were also denied. 4. The respondent presented an application under section 16(1) of the Ordinance. The learned Rent Controller vide his order, dated 1..12.1987 directed the appellant to deposit rent at the rate of Rs.200/- per month from December,' 1986 to November, 1987 totalling Rs.2,400/- and the current and future rent at the same rate by 10th of the next following month for which it was due. The respondent thereafter made an application under Section 16(2) of the Ordinance for striking off the defence of the appellant as he had failed to comply with the aforesaid order of the Rent Controller. After calling for the report from the Nazir of the Court, the learned Rent Controller, vide his impugned order has struck off the appellant's defence with a direction to him to vacate the demised house and hand over.its possession to the respondent within thirty days. 5. Aggrieved by the above order, the appellant-tenant has filed this appeal. 6. I have heard Mr. Mohammad Muzaffarul Haq, Advocate, on behalf of the appellant and Mr. A.Z. Shams, Advocate, on behalf of the respondent. I have also perused the relevant record. 7. It was contended by Mr. Mohammad Muzaffarul Haq that the order passed by the learned Rent Controller under Section 16(1) of the Ordinance was arbitrary and illegal inasmuch as he had thereby determined the entire dispute between the parlies. The learned Rent Controller, according to him, had failed to apply judicial mind to the facts of the case. He reiterated the same contentions be fore me,, which were made before the learned Rent Controller, that is, there w.-is only one tenement in possession of the appellant vide agreement of tenancy, dated 10.7.1981 on a monthly rent of Rs.200/- and hence the filing of the two separate ejectment applications in respect of two alleged separate tenements was malalide, improper, illegal and without justification. The counsel emphasised that the learned Rent Controller should have allowed the parlies to lead evidence on lln- point first before passing the order under Section 16(1) of the Ordinance, in both the cases. ,Y It was, on the other hand', submitted by Mr. A.Z.-Shams that the appellant is, as a mailer of fact, the tenant of the respondent in respect of two differ nt tenements, one consisting of two rooms and the other consisting of three rooms \iih necessary attachments. Both the tenements, according to him, were let out to the appellant under separate written agreements. He, therefore, supported the impugned order and prayed for the dismissal of the appeal. 9. 1 have given my earnest consideration to the submissions made at the bar. 10. Alongwiih his ejectment application, the respondent had filed a copy of the tenancy agreement, dated .29.7.1981, executed between him and the above named appellant in respect of the three rooms' tenement on a monthly rent of Rs.200/- only. The appellant in his written statement had admitted the relationship of landlord and tenant. The defence taken by him was that the demised house is infact the only tenement in his occupation as per agreement, dated 29.7.1981. 1 have perused the said agreement and I find that there js no mention in it that the appellant was already in occupation of the tenement consisting of two rooms and that only one room was further let out to him, thereby enhancing the rent from Rs.90/- or Rs.150/- to Rs.20G per month. There is, on the contrary, an agreement admittedly executed between the.,-parties on 19.6.1973 which is appended with the application for eviction, registered as Rent Case No.639/87 out of which F.R.A. No.620/89 has arisen, which has been decided today by a separate order passed thereon. 11. Under the aforesaid facts and circumstances of the case the learned Rent' Controller, in my opinion, acted well within his jurisdiction in allowing the application of the respondent made under Section 16(1) of the Ordinance thereby' ordering the appellant to tentatively deposit the arrears of rent from December, 1986 to November, 1987 at the rate of Rs.200/- per month, totalling Rs.2400/-, within the period of one month from the date of order i.e. 15.12.1987 and also to deposit the current and future rent at the same rate before the 10th of each callendar month till the disposal of the case. The appellant admittedly, failed to comply with the aforesaid order and, consequently, the learned Rent Controller, on the application of the respondent, was justified in passing an order under, Section 16(2) of the-Ordinance striking off the defence of the appellant. The plea taken by the respondent that there was .only one tenement in his possession obviously pertains to his defence and it could be adjudicated upon only if the appellant would have complied with the order passed by the learned Rent Controller under Section 16(1) of the Ordinance. Having failed to do so, the appellant legally rendered his defence liable to be struck off. Sub-section 2 of Section 16 of the Ordinance in specific terms provides mandatorily that where the tenant has failed to deposit the arrears of rent or to pay monthly rent under sub­ section 1, his defence shall be struck off and the landlord shall be put into possession of the premises within such period, as may be specified by the Rent- Controller in his order made in that behalf. 12. For the foregoing reasons, the appeal is held to be devoid of force and 'it-' is dismissed accordingly. The appellant is, however, allowc'd thirty days' time to „ vacate the demised house and hand over its possession to the respondent,' failing which he will be liable to be evicted forthwith without notice. The above are the • reasons of the short order of date. • (MBC) Appeal dismissed.

PLJ 1990 Karachi 355 PLJ 1990 Karachi 355 Present: syed ABDUR rehman, J HAMID HASAN and others-Plaintiffs versus Mst. SALEHA and others -Defendants Suit No. 1043 of 1980, returned on 8.2.1990 Civil Procedure Code, 1908 (V of 1908)-- —Ss. 16&.20 read with Order VH Rule 10--Suit for possession of lahd-Landed properly situated in Mull an--Whether High Court at Karachi has jurisdiction to entertain suit—Question of—Contention that suit for possession of land in dispute which is situated in Multan District of Punjab Province, cannot be entertained by High Court of Sindh on account of lack of jurisdiction—Held: No suit for determination of any right or interest in an immovable properly can be instituted in a court other than court within local limits of whose jurisdiction, properly is situated and that provisions of Section 20 of Code would not .help plaintiffs—Held further: High Court at Karachi has no jurisdiction whatsoever to entertain suit-Plaint returned for it$;presftntation to proper court. • [Pp. 359,360rule (2) of Rule 10 of Order VII G.P.C. (MBC) Plaint returned.

PLJ 1990 Karachi 363 PLJ 1990 Karachi 363 Present: syiid abdur rahman, J NATIONAL BANK OF PAKISTAN, KARACHI and 4 others-Plaintiffs versus GAMMON PAKISTAN LIMITED-Defcndant Suit No. 1101 of 1988, decreed on 21.2.1990 Civil Procedure Code, 1908 (V of 1908)- —-S. 20 read with (). XXXV11 R.3-Recovcry of loan-Suit for-Lcave to defend-Whether to be granlcd-Question ol'-Agreement having been entered into in Pakistan, which gave at least a part of cause of action to file suit, High Court has jurisdiction under Section 20(c) to entertain suit-Pronole was obtained, as a security for credit facilities by way of loan which was agreed to be enjoyed subsequently—It is admitted that loan facilities were enjoyed and pronote cannot be treated to be without consideration—Mere fact that plaintiff No.l which is admittedly a Pakistani Bank, had opened a branch in Bchrain, would not convert it into a foreign bank—Held: Defendant has no plausible defence, nor has he raised any triable issues—Application dismissed and suit decreed. [Pp. 364&365]]A,B,C£D Mr. Bilal A. KJiawaja, Advocate for Plaintiffs. Mr. NoondlahA. Manji, Advocate for Defendant. Date of hearing: 21.2.1990 order 1. C.M.A. No.275/1989 is an application for leave to defend in a suit for recovery of Rs.15,248,851/- with interest and cost under the Banking Companies (Recovery of Loans) Ordinance, 1979. The case of the plaintiff/National Bank of Pakistan is that it had granted credit facilities by way of loan to the extent of SR: 2.5 Million (Saudi Rials) to defendant M/S. Gammon Pakistan Ltd. as per terms and conditions contained in agreement dated 18.3.1986. The defendant company enjoyed the credit facilities to the extent of SR: 2.5 Million (Saudi Rials), which amount was withdrawn in the month of March, 1986. As security for repayment of the said loan, the Defendant executed D.P. Not with a delivery letter and executed Deed of Hypothecation by way of second charge in respect of its present and future plan, machinery etc. One of the conditions of the loan was that the Defendant Company shall apply the proceeds of the loan exclusively to the project i.e. to enable the Defendant Company to achieve repatriation of its 133 surplus employees from Saudi Arabia to Pakistan and the principal sum together with interest was to be repaid by the Defendant company to the plaintiffs within 12 months from the date of disbursement which they have not paid inspite of demands. Hence this suit after usual notice. Mr. Noorullah A. Manji, who appeared for the Defendant has pressed his application for leave to defend on the following grounds:- (1) Tlial this Court has no jurisdiction to entertain the suit as the amount was paid in Saudi Arabia and demand for return was also made outside Pakistan and also because hypothecated machinery was lying outside Pakistan. (2) Thai the pronole in question is without consideration as the loan was disbursed .subsequently to the execution of the Pronole. (3) I hai the lirst charge was ol two oilier banks, who also have been joined under Ordcr-34 Riile-1 CPC.. (4) Thai the statement of account relied upon by the Plaintiff which was issued by the National Bank of Pakistan, Belirain, is inadmissible under Section'4 of lhe Bankers Book Evidence Act. So far as the point of jurisdiction is concerned, it maybe mentioned that the agreement dated 18.3.1986 was entered into in Pakistan, which has given the Plaintiff cause of action or at least a part of cause of action to file the suit and therefore, in view ol' Sec. 20 Clause (c) CPC. this Court has got jurisdiction to enterlain the suit. It is immaterial whether the amount was paid in Saudi Arabia or demand for return of the same was made outside Pakistan. Even the fact that hypothecated .machinery was lying outside Pakistan, would not debar this Court from entertaining the suil. So far as the second objection is concerned, which relate.s to ihe Pronotc, it may be pointed out that the pronote was obtained as a security for credit facilities by way of loan which was agreed to be'enjoyed subsequently. It is admitted that. ihe loan facilities were enjoyed and therefore, the Pronote cannot be treated to be a Pronote without consideration. The question of joining the other two banks to have a first charge is also not material for the purposes of application for leave to defend. Regarding the statement of account issued by the National Bank of Pakistan. Behrain, it may be pointed out that the mere fact that National Bank of Pakistan which is .admittedly a Pakistani Bank, had opened a branch in Behrain, would not convert National Bank of Pakistan into a foreign Bank. It will remain a Pakistani Bank for all purposes so long as it is registered in Pakistan, and its statement of accounts will be admissible under Seclion 4 of Banker's Book Evidence Acl. Il is also contended by Mr Noorullah A. Manji that the loan amount was to be returned by the Defendant from the amount of the bills which it had to receive from the Government of Pakistan. These bills are lying under objection and have not been paid by the Government of Pakistan as yet. It is, therefore, that the Defendant has not paid the amount. It would appear that the Defendant having admitted the loan as well .as the Pronote and the security, is liable to make payment. Under these circumstances I am of the clear view that the Defendant has no 'plausible defence, nor has he raised any triable issues. His defence is sham. I, therefore, dismiss his application for leave to defend. The result is that the plaintiffs suil is decreed against the defendant company for- a sum of Rs.15,248,851/- being equivalent to SR: 3,099,360/- together with interest @ 1% over three months BIBOR with quarterly rests from the date of institution of the suit upto the date of final payment of decretal amount by the defendant company to the plaintiff No.l, together with difference between the rate of exchange between Saudi Rials and Pak. Rupees as prevalent on the date of filing of the suit and the date of final payment of the decretal amount by the defendant to the plaintiff. Costs of the suit shall be born by the Defendant. (MBC) Suit decreed.

PLJ 1990 Karachi 365 PLJ 1990 Karachi 365 Present: MAMOON KAZI, J NASIR AHMAD SHAlKH-Plaintiff versus THE STATE LIFE INSURANCE CORPORATION OF PAKISTAN- Defciiddnt Suit No. 57S of 1984, dismissed on 1.2.1990 (i) Civil Procedure Code. 1908 (V of 1908)-- —-O. Ill Rule 4-Suit-Concl'usion of-Whether authority of plaintiffs counsel to receive title documents from Defendant's counsel was available-Question of- It is evident from Rule 4 that it only refers to proceedings before court which admittedly had ended after disposal of previous suit—Question whether authority of Mr. Waheed Farooqui to receive documents on behalf of plaintiff ! still continued, is a question of fact and can only be determined on basis of evidence but not in accordance with O.TII R. 4 of CPC-Held: Reference by counsel to Rule 4 of Order III of CPC appears to be mis-conceived. [P.369]A (ii) Damages- —Damages—Suit for—Non-delivery of title documents to plaintiff by Defendant—Contention that documents having been handed over to Mr. Waheed Farooqui, previous counsel of plaintiff, it could not be foreseen that Mr. Waheed Farooqi would fail to deliver documents to plaintiff—No evidence has been produced by Defendant to rebut plaintiffs contention that documents ol title of his property were not delivered to him—No doubt even Mr. Waheed Farooqui should not have accepted documents but that does not absolve Deiendant of its responsibility—Held: As authority of an Advocate to act on behalf of his client generally ceases after conclusion of case, it cannot be .said 'Jiat consequences (of delivering title documents to previous counsel) were not foreseeable-Contention repelled. [P.372JD (1951) I AER 1078, (1966) 2 AER 709 distinguished. AIR 1952 Nagpur 8 rel. uii) Damages ---Damages-Suit for-Whether any damages can be awarded to plaintiff or what loss has been suffered by plaintiff—Question of—Evidence produced by plaintiff fails to establish if any loss was suffered by plaintiff or if at all there was any, what was actual loss suffered by him—Held: In absence of such proof, damages cannot be awarded to plaintiff—Suit dismissed. [Pp.372,373&374]E&F (iv) Limitation Act, 1908 (IX of 19(18)- —Arts. 36 &. 120 read with Section 24—Damages—Suit for—Limitation— Computation of--Suil simply based on failure of defendant to deliver title documents to plaintiff—Whether Article 36 is not applicable—Question of—It would be futile to enter into controversy as to whether Article 36 or Article 120 would apply in view of Section 24 of Limitation Act which provides that period of limitation shall be computed from lime when injury results—In this case, alleged injury has resulted from failure on part of defendant either to deposit documents in court or to deliver same personally to plaintiff—Held: Alleged injury having resulted on 11.12.1983 when plaintifPs bankers allegedly declined to accede to his request lor urant ol loan lor want ol original documents of title, the suit is within time. [P.370JB&C Plaintill in person. Mr. Makhdoom Ali Klian, Advocate for Defendant. Dale of hearing: 20.11.19S9. JUDC.Mr.-NT This suit for recovery of damages of Rx5.00.000/- has been filed by the plaintilf against the State Life Insurance Corporation of Pakistan. 2. The facts of the case as alleged in the plaint are that the defendant filed Suit No.1002/78 against the plaintiff "under Order 34 C.P.C. This suit was decreed vide judgment of this Courl dated 25.6.1979. The plaintiff subsequently satisfied the decree by paying the decretal amount in the court. Consequently, the plaintiff pravcd lor return of his original documents of title in respect ol his house Nu.C- 35. -iluated in K.D.A. Scheme No.l Drigh Road. Karachi vide application dated T> 10.!''SO. The Court vide its order dated 28lh October, 1980 directed that "the decree holder to deposit the documents of title in this Court or supply it to J.D" The plaintiff was not delivered such documents, therefore, he moved another application dated 10.3.83 before the Court. On this Mr. Ebrahim Pishori, the defendant's advocate maintained that the documents of title had been handed over by him to Mr. Waheed Farooqm. the Advocate appointed by the plaintiff. Consequently, the application was dismissed by this Court as infructuous. However, the plaintiff was permitted to file a fresh application if his grievance still remained outstanding. 3. The case of the plaintiff is that after passing of the judgment in Suit No.1002/78 the appointment of the plaintiffs previous advocate also ended and thereafter he had no authority either to sign or receive any document or to act on the plaintiffs behalf. However, the plaintiff had not received any such documents either from the delendanl or from Mr. Waheed Farooqi. 4. Thereafter, the plaintiff had no sufficient finances available with him to start work on his house and consequently he applied for a loan to M/s. National Bank of Pakistan, Mohammad All Housing Society Branch Karachi hut the Bank declined to grant loan for want of the original title deeds of the plaintiff's house. 5. The plaintiff on account of this act of the defendant suffered a loss at the rate of Rs.12.000/- per month for which the case premises could be let out by him to a tenant as he had received such offer for the same. The plaintiff also suffered menial torture on account of the fear that some person might misuse his title documents and illegally transfer his property for which the plaintiff claims damages at the rate of Rs.3,000/- per month. 6. The plaintiff, consequently, gave notice dated 8th October 1983 calling upon the defendant to pay damages amounting to Rs.4,00,000/- but without any response from the defendant and hence the suit. 7. The case of the defendants, according to the written statement filed on their behalf, is, that, the defendant's advocate had prepared an application for depositing the original documents of title of the plaintiffs property in the Court but on 19.10.1980 the Superintendent of the concerned branch in the office of this court suggested to him that the original documents could be handed over directly to the plaintiffs advocate for the sake of expediency. Accordingly the original documents were handed over by him to Mr. Waheed Farooqui, the then advocate of the plaintiff, on 29.10.1980 and a receipt was obtained from him. Consequently, according to the defendant, the said documents were handed over to a person who was a duly authorised Advocate of the plaintiff and competent to receive the original documents on his behalf. In any case, now the matter rests between the plaintiff and his Advocate and the defendant is not liable to pay any amount to the plaintiff. An objection has also been raised that the suit is barred by limitation and res judicata and is also bad for non-joinder of a necessary party. 8. On the basis of the respective pleadings of the parties the following consent issues were framed: 1. In what manner did the plaintiff satisfy the decree passed against him in suit No. 1002. of 78. 2. Whether the duty of the plaintiffs advocate in suit No.1002 of 78 ended when the same was decreed and his authority to act, receive documents and to sign receipt for the same ceased after the decree. 3. What is the effect of the plaintiffs advocate in suit No.1002 of 78 having received the original documents from the defendant. 4. Whether the plaintiff did not receive the original documents from his advocate in suit No.1002 of 78, if so what is the effect. 5. What loss, if any, has the plaintiff suffered by reason of his not having received the original documents. 6. What is the effect of the order dated 4.12.1983 passed by this Honourable Court in suit No.1002 of 78. 7. Is the suit barred by limitation. 8. Reliefs. 9. I have heard the plaintiff who has appeared in person and argued the case himself and Mr. Makhdoom Ali Khan, learned counsel for the defendant. It is pertinent to point out here that I wanted to grant adjournment to the plaintiff as his Advocate Mr. M.M. Pirzada was not present in the Court but the plaintiff equested me to proceed with the matter and pass judgment in the case after hearing him and Mr. Makhdoom Ali Khan. 10. Mr. Makhdoom Ali Khan raised the following contentions before me: (1) That Mr. Waheed Farooqui once having been appointed as an advocate to represent the plaintiff in Suit No. 1002/78, was authorised to act on behalf of the plaintiff and his authority still continued by virtue of Order 3, Rule 4 clauses (2) & (3) of the C.P.Code; (2) That the suit which is based on the alleged negligence of the defendant to strictly act in pursuance of the directions of this court is barred by limitation according to Article 36 of the Limitation Act; (3) That the damages allegedly suffered by the plaintiff were of such kind as were not foreseeable by a reasonable man and consequently, no damages can be awarded to the plaintiff; and (4) That the plaintiff has failed to prove the actual damages suffered by him and consequently, he is not entitled to a decree as claimed in the plaint. 11. In order to appreciate the first contention raised by Mr. Makhdoom Ali Khan it is necessary to reproduce Rule 4 of Order 3 C.P.C. which provides as follows: "4. Appointment of pleader.— (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. (3) For the purposes of sub-rule (2) an application for review of judgment, an application under Section 144 or Section 152 of this Code any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit. 12. A perusal of the different clauses of Rule 4 shows that no pleader can act for any person in any Court unless he has been appointed for such purpose by such person by a document in writing signed by him or by his recognized agent etc. The document referred to in clause (1) ibid is commonly known in the countrv as ' Vakalatnama". Clause (2) of Rule 4 shows that every such appointment shall be deemed to be in force until determined with the leave of the Court or by death of the client or the pleader or until all proceedings in the suit have ended so tar as regards the client. Clause (3) it appears, has been inserted in Rule 4 by way of explanation and according to it, any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit, etc., shall be deemed to be proceedings in the suit. The contention of Mr. Makhdoom Ali Khan, which is based on the provisions contained in clause (3) is that, even for obtaining copies of documents or return of documents produced or filed in the suit the appointment of the Advocate shall be deemed to continue and consequently, according to him, even if the original title deeds of the plaintiffs property were handed over by Mr. Pishori to Mr. Waheed Farooqui there was no negligence on the part of the former as the appointment of Mr. Waheed Farooqi as an Advocate to represent the plaintiff in the suit continued to be in force. 13. In my opinion, the question cannot be determined by reference to Rule 4 of Order 3. The authority of the pleader or the advocate, according to clause (3) of rule 4. no doubt, may still continue to be in force for the purpose of certain proceedings before the Court even after the conclusion of the suit, but reference by the counsel to Rule 4 appears to be completely misconceived. Rule 4, as is evident therefrom, only refers to proceedings before Court which admittedly had ended after disposal of Suit No.1002/78. The question requiring determination is as to the authority of the plaintiffs Advocate to receive title deeds of his property from the defendant, on the former's behalf after the proceedings in the suit have concluded. It may be pointed out in this respect that the contract between an advocate and his client is governed by the general rules of contract under the Contract Act. The question whether the authority of Mr. Waheed Farooqi to receive documents on behalf of the plaintiff still continued is a question of fact and can be determined only on the basis of evidence, but not in accordance with rder 3, Rule 4, C.P.Code. In this respect, the only evidence is that of the plaintiff who has throughout in his statement maintained that after conclusion of the suit the authority of Mr. Waheed Farooqi had ended. There being no other evidence in rebuttal, the issue is decided in favour of the plaintiff. 14. The second contention of Mr. Makhdoom Ali Khan is that the present case is governed by Article 36 of the Limitation Act which provides for a period of two years to file a suit for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not specially provided for in the Limitation Act. The period of limitation, according to Article 36, would start running from the time when the malfeasance, misfeasance or non-feasance takes place. Consequently, according to Mr. Makhdoom Ali Khan, the present suit which was filed on 10.6.1984 is time barred as according to the evidence (Ex.7/1) which has not been disputed, the documents of title of the plaintiffs property were delivered to Mr. Waheed Farooqui on 9.10.1980, which, according to Mr. Makhdoom Ali Khan, should be the starting point for computing the period of limitation. Reference has also been made by the learned counsel to Ex.5/2 which is a letter admittedh sent by the plaintiff to the Manager of the defendant on 25.11.1980 which clearly indicates that at least on such date it was within the knowledge of the plaintiff that his documents of title had been wrongly delivered by the defendant's advocate to Mr. Waheed Farooqui. 15. It may be pointed out that Article 36 refers to actions founded on torts or such wrongs as are distinguishable from breaches of contract. Torts are often considered to be of three kinds viz, non-feasance, that is to say, omission of some act which man is by law bound to do, misfeasance, being the improper performance of some lawful act; malfeasance being commission of some act which is in itself unlawful. 16. The contention raised y Mr. Makhdoom Ali Khan has been resisted by the plaintiff as, according to him, Article 36 of the Limitation Act is not applicable in the present case as the action of the plaintiff is simply based on the failure on the part of the defendant to deliver the said documents of the plaintiff in pursuance of the orders of the Court. In other words, according to the plaintiff, the period of limitation in the present case would be covered by Article 120, which is the residuary article and not by article 36. In my opinion, it would be futile to enter into this controversy as section 24 of the Limitation Act provides: "24. In the case of a suit for compensation for an act which does not give rise to cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.' 17. It may be pointed out that where an act is actionable per se limitation will run from the time of the commission of the act itself and not from the time of the injury which may result therefrom subsequently, but where the resulting injury alone gives the cause of action and not the act from which such injury results, time runs from the date of the actual injury. In the present case the alleged injury as resulted from failure on the part of the defendant either to deposit the documents in Court or to deliver them personally to the plaintiff as per the Court's order dated 28.10.1980, but the act by itself was an innocent act and had the documents been delivered to the plaintiff by Mr. Waheed Farooqui after receiving the same rom the defendant's advocate, the present cause of action would not have accrued. The present cause of action accrued to the plaintiff, in fact, on account of the failure of Mr. Waheed Farooqi to deliver the documents, although the responsibility initially rested with the defendant to act in pursuance of the said order of the Court. Consequently, in my opinion, Article 36 is to be read subject to the provisions of Section 24 of the Limitation Act and the period of imitation ould be computed not from the dale of the wrongful act but from the time when the injury actually resulted therefrom. The circumstances of the present case show that the alleged injury resulted when on llth December, 1983 the plaintiffs bankers allegedly declined to accede to his request for grant of loan for want of the original documents of title. Admittedly, if the period of limitation is to be reckoned from such date, the suit is within time. Consequently, in my opinion, the suit filed by the plaintiff was within time and the second contention of Mr. Makhdoom Ali Khan is also devoid of force. 18. The next contention of Mr. Makhoom Ali Khan is that in order to sustain a cause for damages on account of the negligence of the defendant, the plaintiff must prove that (1) the defendant, was negligent (ii) that some damage has resulted from the negligence and (iii) that the damage was of such a kind which was foreseeable by a reasonable man. Referring to the circumstances of the present case, the learned counsel has argued that the defendant was not negligent inasmuch as he handed over the documents of title to its own counsel which were delivered by him to plaintiffs counsel. However the documents got lost between the plaintiff and his counsel. The counsel has further argued that even if the plaintiff did not strictly act in pursuance of the order passed by this Court dated 28th October, 1980, but since the documents were delivered by Mr. Pishori to Mr. Waheed Farooqui who had earlier acted as advocate for the plaintiff it could not be foreseen by Mr. Pishori that Mr. Waheed Farooqui would fail to deliver the documents to the plaintiff. The argument was supported by the learned counsel with the following passage from Clerk & Lindsell on Torts (Fourteenth Edition), page 873, which says: "Foreseeability of some harm is necessary to determine the careless quality of the defendant's behaviour. The yardstick used is the conduct of a reasonable man, who would have regulated his actions so as to avoid causing any harm. But foreseeability of a particular kind of harm to a particular person affects, not the careless quality of defendant's conduct, but actionability by that other person." Reliance was also placed by Mr. Makhdoom Ali Khan on three English cases reported as Bolton \ Stone (1951) I A E R 1078, Overseas Tanks/lip (U.K) Lid. v. Hie Miller Steamship Co. Plv. Ltd, (1966) 2 A E R 709 and Overseas Tankship (U.K) Ltd . Moi-ts Dock & Engineering Co., Ltd. A E R 404. In the first case, during a cricket match a batsman hit a ball which struck and injured the respondent who was standing on a highway adjoining the ground. The respondent claimed damages for negligence from the appellant as occupier of the ground. It was held: "For an act to be negligent there must be, not only a reasonable possibility of its happening, but also of injury being caused thereby; on the facts, the risk of injury to a person on the highway resulting from the hitting of a ball out of the ground was so small that the probability of such an injury would not be anticipated by a reasonable man; and, therefore, the appellants were not liable to the respondents." In the second case cited by Mr. Makhdoom Ali Khan, two of the respondents' vessels were undergoing repairs at'SheerlegsWharf, Morts Bay in Sydney Harbour. On the same day the vessel Wagon Mound on charter by demise to the appellant, was taking in bunkering oil from Caltex Wharf when, due to the carelessness of the appellant's engineer a large quantity of furnace oil overflowed on the surface of the water and drifted to Shecrlegs Wharf, where it subsequently caught fire causing extensive damages to the respondent's vessels. In an action by the respondents for damages based on nuisance and on negligence, the trial judge found that the officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water, but their experience would have been that this had very rarely happened, and that they would have regarded it as a "possibility but one which would become an actuality only in very exceptional circumstances." He thus found that the damage to the respondent's vessel was not reasonably foreseeable by those for whose acts the appellant was responsible, and he gave judgment, in regard to the issue of negligence, against the respondents. In the third case also in some what similar circumstance it was held that: "The test of liability for the damage done by fire was the foreseeability of the injury by fire and, as a reasonable man would not, on the facts of this case, have foreseen such injury, the appellants were not liable in negligence for the damage, although their servant's carelessness was the direct cause of the damage." 19. As far as the cases referred to by Mr. Makhdoom All Khan are concerned, in my view, all of them are distinguishable. In the present case no evidence has been produced by the defendant to rebut the plaintifPs contention that the documents of title of his property were not delivered to him either by the defendants or by Mr. Waheed Farooqi to whom the documents were allegedly handed over by Mr. Pishori. Mr. Pishori as an advocate, did not act with due care and caution as a man of ordinary prudence would, under similar circumstances in case of his own thing or goods by handing over the plaintifPs ocuments to Mr. aheed Farooqui when the proceedings had already ended. No doubt, even Mr. Waheed Farooqui should not have accepted the documents from Mr. Pishori, if his authority as an agent of the plaintiff had also ceased, but that does not absolve the defendants of their responsibility. The defendants were liable to take care of the plaintifPs documents in the same manner as a bailee. The responsibility of the defendants was akin to that of a pledgee. In AIR 1952 Nag 8 it was held that a pledge is liable to the same incidents of bailment such as the duty to take requisite care and return the goods pledged when the debt is paid off. A similar duty was cast upon the defendants to return the plaintifPs documents of title to him after the conclusion of the case. As the authority of an advocate to act on behalf of his client generally ceases after the conclusion of the case, it cannot be said that the consequences were not foreseeable. The contention of Mr. Makhdoom Ali Khan, therefore, cannot be accepted. 20. The next question which now requires to be determined is whether under the circumstances of the case, any damages can be awarded to the plaintiff or in other words, what loss the plaintiff has suffered? Reference would be necessary to the evidence adduced by the plaintiff in this respect. The plaintiff has stated that: "Thereafter, I tried to utilise such copies for obtaining loan to complete the house on the plot in question but my bankers, National Bank of Pakistan, refused such request per letter dated 11.12.1983 (Ex.5/7). I then attempted to give the house on rent and produce one letter in such context dated 25.8.1985 (Ex.5/8). One such advertisement for obtaining a similar house on rent in the same locality is produced as Ex.5/9. Both the last mentioned documents indicate the approximate rent to be Rs.15,000/- per month. I produce an offer of Sun Enterprise dated 15.2.1989, which also I cannot honour because I did not have any money to put the house in shape and the money I cou!d not get unless I had the title documents with me. Offer of Sun Enterprises is Ex.5/10. I also produce the certificate of Adviser Enterprise, an Estate Agent, dated 14.2.1989, which assures a rental of Rs.15,000/- per month but puts costs of renovation and repairs at Rs.1,50,000/- (Ex.5/11), as the costs in the meantime have escalated. It is in this context and on these premises that I have filed the above suit for the reliefs sought which I pray be decreed." 21. It is pertinent to point out that although the plaintiff has claimed damages at the rate of Rs.3,000/- per month for the mental torture undergone by him but no evidence has been produced by. the plaintiff in this respect. The onus which was on the plaintiff to establish the alleged mental torture suffered by him, therefore, has not been discharged by him. Consequently, no damages can be awarded to the plaintiff on this ground. Damages have also been claimed by the plaintiff on account of loss allegedly suffered by him at the rate of Rs.15,000/- per month as is evident from the plaintiffs statement just reproduced. No doubt, the plaintiff has claimed that he was offered Rs.15,000/- per month as rent for his house but the house could not be let out by him for want of repairs and renovation which it required and the National Bank of Pakistan to which a request has been made by the plaintiff for grant of a loan also declined to grant loan for want of original documents of title. In this respect the plaintiff has relied upon the etter of the Bank dated llth December, 1983 (Ex.5/7) informing him that the original documents of title were necessary for the purpose of grant of loan by it. He has also relied upon a letter dated 25.8.85 written by Arshad Homes (Ex.5/8) showing that the house had been inspected by its representative and the same after renovation could fetch rent at the rate of Rs.15,000/- per month. Another letter written by Syed Mahboob Hussain Partner of Sun Enterprises dated 15 th February, 1989 was produced as Ex.5/10 which is also more or less to the same effect. The plaintiff has also produced a certificate from Adviser Enterprise (Ex.5/11) showing that an amount of Rs.1,50,000/- would be required for renovation and repairs to the house, and thereafter it should bring Rs.15,000/- per month as rent. However, only one witness Syed Mahboob Hussain, partner of Sun Enterprises was examined by the plaintiff in this behalf. The evidence of this witness is of no avail to the plaintiff as the witness has only confirmed what was stated by him in Ex.5/10. But Ex.5/10 was written by the witness to the plaintiff on 15.2.89 as is plainly evident therefrom. Even if it is accepted that the plaintiffs bungalow could be let out on rent of Rs.15,000/- per month in February, 1989 that does not mean that it could fetch the same rent in 1984 when the plaintiffs suit was filed. It is, however, pertinent to point out that the plaintiff has calculated damages from 28.10.80. It is also pertinent to point out that the letters received by the plaintiff from Arshad Homes and Adviser Enterprise, Ex.5/8 and 5/11 respectively, showing that plaintiffs bungalow would fetch Rs.15,000/- per month after renovation, were also written to him in August 1985 and February, 1989 respectively. However such letters cannot be considered as evidence in the case as no witness has been examined by the plaintiff in support thereof. The plaintiff has even failed to examine the Manager of National Bank of Pakistan who allegedly wrote the letter (Ex.5/7) to him. 22. This evidence, in my opinion, therefore, fails to establish if any loss was suffered by the plaintiff, or if at all there was any, what was the actual loss suffered by him. The plaintiffs contention that he was unable to obtain loan from the bank for want of the original title documents of his property has also not been sufficiently established, as pointed out above. The plaintiff had also to establish that from 28.10.1980 there was a tenant willing to pay him rent at the rate of Rs.15,000/- for the house after renovation of the same, but there is no such evidence on the record. On his own showing, the plaintiff received two offers of rent at the rate of Rs.15,000/.- in 1985 and 1989, respectively, but this evidence can be of a little avail to him as pointed out earlier. No doubt, the plaintiff has placed reliance on an advertisement appearing in newspaper "Dawn" dated 11.10.1980 which shows that bungalows comprising of three or four bed rooms in K.D.A. Scheme No.l were wanted for foreigners and the rent offered for the same was in the vicinity of Rs.15,000/- per month, but that can hardly establish that the plaintiff's bungalow even after renovation could suit all the requirements of such foreigners and would have been rented out by them. Consequently, there is no evidence produced before the court to show the actual loss suffered by the plaintiff. In absence of such proof damages cannot be awarded to the plaintiff. No other issue has been raised. 23. Consequently, issues No.2,3,4,5 and 7 are answered as above. Issues No.l and 6 have not been pressed by the parlies and hence no findings are required to be given thereon. 24. In the result, the suit is dismissed with costs. (MBC) Suit dismissed.

PLJ 1990 Karachi 374 (DB) PLJ 1990 Karachi 374 (DB) Present: SYLD SAJ.IAD ALI SHAH, CJ, AND WAJIHUDDIN AHMAD, J. KALEEM HAIDER-Petitioner Versus GOVERNMENT OF SINDH and 2 others-Respondents Const. Petition No. D-71 of 1990, dismissed on 2.5.1990 Constitution of Pakistan, 1973-- —- Art. 199-Commercial area-Granted as residential area-Board of Revenue ordering disposal by open auction-Challenge to-Disputed area is of commercial nature being situated on corner of two main roads-It is located in front of a petrol pump which is currently in operation-Member Board of Revenue had duly examined record and his finding is based on site inspection-­ Meld: Such are findings of fact and cannot be disturbed in constitutional jurisdiction-Held further: This case is not a fit one for exercise of discretion in constitutional jurisdiction—Petition dismissed. [Pp.375&376]A,B&C Mr. Klialiq Hwnayun, Advocate for Petitioner. Mr. Jha/nat Jelhananil, Advocate for Respondent No.3. Dale of hearing: 2.5.1990 judgment Wajihuddin Ahmed, J.—The dispute in this petition pertains to a portion of revenue survey No.78, Ward B, Sujawal Town. It would appear that an application was moved on behalf of the petitioner, who was described as a minor, by his father, Dr. Mohammad Hidayat Fouzi, for grant of an area of 2422 sq.ft. out of the said survey No., describing the same as sikni. While the request for grant was recommended by the Mukhtiarkar and City Surveyor, Sujawal, to the Deputy Commissioner, Thatta, and "No Objection" was also obtained from the Town Committee. Sujawal, the Deputy Commissioner concerned, through his order dated 22.12.1986, notified such portion of the referred survey No. for auction, terming the same as commercial. Petitioner's father and guardian, Dr. Mohammad Hidayat Fouzi, on or about 3.2.1987 appealed to the Commissioner, Hyderabad Division, but that officer, on 15.9.1987, also directed that the subject matter of the request "should be disposed of in open public auction". However, for reasons, which are not available on the record, the Commissioner, Hyderabad Division, after making reference to his earlier order dated 15.9.1987 but without commenting thereupon, on re-consideration granted the referred portion of the survey No. to the petitioner for residential purpose at the rate of Rs.5/- per sq.ft. Acting on the order last mentioned, the Deputy Commissioner, Thatta, granted the land in question, on 3.10.1987, to the petitioner. The order dated 27.9.1987 was challenged in appeal by one Mst. Khairun Nisa before the Board of Revenue, Sind. Mr. Sycd Sardar Ahmad, Senior Member Board of Revenue, through his order dated 8.1.1989. set aside the grant and directed that the disputed portion, beinu; ot a commercial nature, be disposed of by open public auction. Review preferred b\ the petitioner also failed. In this petition the orders of the Senior Member of Board of Revenue are questioned, essentially, on the ground that the area in dispute was of a residential nature and should have been granted to the petitioner. Pre-admission notices were directed to be issued by this Court on 31.1.1990 and respondent No.3, Mst. Khairun Nisa. has filed a counter affidavit, in reply to which the petitioner has responded by filing a re-joinder. It is urged by the respondent No.3 that the disputed area is commercial in nature, being situated on the corner of two main roads namely, Thatta-Sujawal road and Sujuwal-Tando Mohammad Khan road. It is also located in front of a plot belonging to the respondent No.3 herself, where she has installed a Petrol Pump, which is currently in operation. We further find that the Senior Member Board of Revenue had duly examined the records and his finding that the disputed area was of a commercial nature is also based on site inspection. It is clear upon the facts of the case that the larger survey No. of which the disputed area is a portion comprises ol a good number of improvised sub-plots. It is not necessary that if some portions of the larger plot are of a residential nature and have been granted as such, the Government is precluded from treating other portions, if requirements are duly satisfied, to be of a commercial nature. Such are findings of fuel and cannot, in routine, be disturbed in constitutional jurisdiction. Besides, matters of policy arc also involved and orders of Government functionaries cannot be lightly disregarded if the object and purpose of the same is to ensure the interest of the exchequer. There are yet some other reasons why we have not been inclined to grant discretionary relief to the petitioner. The petitioner was shown to be a minor at the time the request for grant was made. We cannot understand the hurry why efforts should be made so early by or on behalf of a minor to obtain Government Ian4 for sikni purposes. At the outset such request was declined, both at the levels of the Deputy Commissioner, Thatta, and the Commissioner, Hyderabad Division, by successive orders in that behalf, each such officer opting for auction of the disputed area. As observed above, for reasons which are not explicit, the Commissioner, Hyderabad Division, retracted from his orders dated 15.9.1987, within a space of a fortnight, on 27.9.1987, re-calling the orders of auction and tilting in favour of a grant to the petitioner. This could be done, if at all, on the basis of a well reasoned order and on a fuller examination of the case. Administrative authorities are also expected to be consistent. On passing of due orders, if they choose to recall the same requisite reasons ought to be reflected, if not in the orders themselves, at least, on record. Such is not the case with the subsequent orders of the Commissioner. On the other hand, the Board of Revenue has examined the case in due detail. The orders of putting the disputed land to public auction were first passed by the Deputy Commissioner, Thalta, affirmed initially by the Commissioner, Hyderabad Division, before retracting the same and have been confirmed by the Board of Revenue, first in appeal and then in review. Plainly no one is prejudiced or favoured as a result of such orders. Auctioning of Government land normally is unexceptionable unless some vested rights arc impinged thereby or the rules and law are transgressed. The disputed land having been found to be commercial none of the parties had any preferential right and no legal requirements/were impinged. This case, therefore, is not a fit one for exercise of discretion in the constitutional jurisdiction of the Court, | favouring the petitioner. For such reasons as have been recorded above the petition was dismissed by us on 2.5.1990 and with it the application for stay namely, Misc. 178/90. Misc. 117/90, which was for exemption for filing of original documents, was granted subject to all just exceptions. (MBC) Petition dismissed.

PLJ 1990 Karachi 376 PLJ 1990 Karachi 376 Present: tanzilur rahman, J Kliawaja MUHAMMAD ISMAIL-Appellant versus GANI & TAYUB LIMITED-Respondent FRA NO. 481 of 1984, accepted -on 1.3.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 2(f)—Landlord—Definition of—Whether only owner can file ejectment petition and whether production of power of attorney by landlord is necessary- -Question of—Landlord means owner of premises and includes a person who is for time being authorised or entitled to receive rent as per Section 2(f) of Ordinance-Held: For purpose of filing an ejectment petition, a landlord need not necessarily be owner-Held further: No power of attorney is required to be produced by a landlord if an application has been moved by him for ejectment of a tenant." [P.380JC&D PLD 1976 Karachi 857, PLD 1977 Lahore 516 and PLD 1987 Karachi 180 rel. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 15-Ejectment petition-Maintainability of-Challenge to-Whether tenant, after accepting appellant as landlord and paying rent to him, could deny relationship of landlord and tenant-Question ofr-Rent Controller has completely disregarded evidence produced before him in this behalf- Intimation of change of ownership was communicated to respondent by previous landlord in writing-Same was also communicated by appellant's advocate-Held: In view of respondent's accepting appellant as landlord and paying rent to him, it docs not lie in month of respondent to deny relationship of landlord and tenant. |P.379|A&B PLJ 1981 SC 40,1984 SCMR 1226 and PLD 1986 SC 154 rel. (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15 read with Section 2(g)-Tenant—Ejectment of—Personal use—Ground of--Admittedly landlord is husband" of one of co-owners and also son of another co-o\vner--There is no bar in claiming ejectment of respondent for him as personal use means use of premises by owner thereof or his wife (or husband), son or daughter—Appellant has produced evidence that his business has expanded and he requires more place for storing his merchandise in godown—Hcld: Finding of Rent Controller on issue of personal bonalide use, is perverse—Appeal accepted and ejectment ordered. [Pp.384,385&386],l,K&L 1982 CLC 149 and PLD 1976 Karachi 180-rel. (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 15(2)-Tenant-Ejcctment of-Default-Ground of-VVhcther default was proved-Question of-Word. "may" has been substituted by word "shall" in Ordinance which lakes away discretion of Rent Controller as provided in earlier statute—Under existing law, if tenant is proved to be a wilful defaulter, he must face consequence and an order of ejectment must follow-Hcld: Finding on issue of default as given by Rent Controller, is illegal |P.384]H (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15(2)(ii)~Tcnant—Ejcclmcnf of—Application for—Default—Ground of— Contention that it was a practice to make payment of rent in lump sum and so default cannot be attributed to respondent-Held: As established on record, right from days of previous landlord, it has been practice to pay rent in advance in lump sum and not of arrears. JP.383JG . 1987 SCMR 1313 and X986 SCMR 1156 distinguished. PLI 1981 SC 214,1980 SCMR 506, 1971 SCMR 598 and PLD 1976 Karachi 1156 rel. (vi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- -—S. 15(2)(ii)--Tcnant~Ejectment of--Applicalion for--Dcfault-Ground of~It is apparent that rent was tendered by cheque,sent by money order or deposited in court, was after a clear default of about 9 or 1.0 months had taken place—Appellant was not bound to accept said rent alter default had been commillcd—Rent Controller has failed to take notice of these facts and came to erroneous conclusion that respondent was i\ot a wilful defaulter. [P.382|E (vii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15(2)(ii)-Tcnant~Ejcctmcnt of~Application for-Dcfault-Ground of~ Whether there was any security deposit—Question of—Admittedly there is no mention of security deposit of Rs: Five Lacs in written statement filed by respondent—Me came with this plea for first lime in his affidavit filed by him in rebuttal It) appellant's evidence—Held: Plea appears to be not only an after thought but also false—Held further: No amount of evidence can be looked in plea which was not put forward in pleadings. [P.382JF AIR 1930 PC 57, PLD 1976 SC 469 and NLR 1978 Civil 644 rel. Mr. Khnrshecd Anwar Shaikh, Advocate for Appellant. Mr. N.A. F(iro(>(/iii, Advocate for Respondent. Dale of hearing: 1.3.1990 JUXi.MHNT This is a First Rent Appeal against ihe order dated 8.4.1984 passed by the XII Sr. Civil Judge and Rent Controller, Karachi in Rent Case No.6307/1980 filed by the appellant against the respondent. The facts giving rise to ihe above appeal briefly, staled, are that ihe appellant purchased property consisting of a building on plot No.G.K.7/22-23, Kharadar, Karachi from its previous owner, Qazi Muhammad Ali, in Ihe year 1972 in ihe name of his wife Mst. Musarral Zuhra, his mother Mst. Sharif Begum and his brother's wife Msl. Ria/. Fatima. The respondent was already in occupation of the premises in question as a tenant at the monthly rent of Rs.3()0/- and continued to be so, on payment of rent to (he appellant at ihe same rale. The respondent paid rent lo ihe appellant upto June, 1977. The respondent, as alleged, committed default in payment of rent lo the appellant from July, 1977. The appellant filed an application under Section 15 of the Sind Renled Premises Ordinance, 1979 for (he ejcclmcnl of ihe respondent on the grounds of default and personnel bona-fide requirement. Wriiten statement was filed by ihc respondent. The learned Rent Controller on the pleadings of the parlies framed the following issues: 1. "Whether this application is not maintainable under the law? 2. Whether the opponents have commillcd default in payment ol renl? 3. Whether ihe applicant requires the premises in case for his personal bonalide use in good faith? 4. What should the order be?" The appellant examined himself whereas the respondent examined its General Manager only. The learned Rent Controller dismissed the said application by its order dated 8.4.1984 against which the appellant has preferred this appeal. 1 have heard Mr. Khurshid Anwar Sheikh, Advocate for the appellant and Mr. N.A. Farooqui Advocate for the respondent and with their assistance gone through the evidence, both oral and documentary, led by the parties in the case and I am of the considered view that this appeal must succeed, for the discussion appearing below: As regard the first issue about the maintainability of the ejectment application, the finding of the learned Rent Controller is erroneous. He has completely dis-rcgarded the evidence produced before him in this behalf. The intimation of the change of ownership was communicated to the respondent by the previous landlord, in writing, which was duly acknowledged by the respondent vide Ex.P/17. Intimation of the change of the ownership was also communicated by the appellant's advocate, in writing, on 8.7.1972 which was also duly acknowledged in writing by the respondent vide Ex.P/18. In this notice, the respondent was also informed that the appellant was a legally constituted attorney and he was authorised to collect the rent and issue proper receipt thereof. After this intimation, the respondent paid the rent to the appellant upto June, 1977. In view of the respondent's accepting the appellant as landlord and paying rent to him, it does not lie in the mouth of the respondent to deny the relationship of the landlord and tenant. Reliance has been placed on a number of authorities, namely, Muhammad Rafique vs. Mian Nadir Jang Bahadur and others (1984 SCMR 1226). Mehraj Din vs. Muhammad Ismail (PLJ 1981 S.C. 40) and Yousiif and another vs. Muhammad Zubair and another (PLD 1986 S.C. 154). In the first case (1984 SCMR 1226) the Honourable Supreme Court held that "no exception can be taken against the judgment of the High Court; for it stands proved from the documents produced in evidence that appellant had himself admitted the respondent as his landlord in respect of the demised premises, and he, therefore, cannot be permitted to deny his title to the property. This position has already been clarified by this Court in KaUnmllah .Amin Hazin and others (1976 SCMR 77.)." In the second case (PLJ 1981 S.C. 40) it was observed that "in these circumstances, We are not persuaded to differ with the finding of the High Court that the petitioner had remitted rent for the premises in dispute to the respondent and that as such he was his tenant, within the meaning of clause (i) of Section 2 of the Urban Rent Restriction Ordinance." In the .third case (PLD 1986 S.C. 154), the following observations of the Honourable S.C. are pertinent to the instant case. It reads as under:- "We are afraid this contention is wholly misconceived. The term 'landlord' has been specifically defined in Section 2(f) of the Sind Rented Premises Ordinance, 1979, and reads as follows:- "2. Definition.-In this Ordinance, unless there is anything repugnant nn the subject or context:- (a) to (e) ....................................... (f) landlord means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises." A reading of this provision clearly shows that the word 'landlord' has been given an extending meaning, to include not only the owners but also persons who, for the time being, are cither authorised or entitled to receive rent in respect of the premises in question and they need not be owner of the same." The objection of the respondent inter-linked with the first one that the appellant is not the owner and the application has been filed without any power of attorney executed in favour of the appellant by the owners in whose name the property has been shown to have been purchased' is also mis-conceived. As provided in Section 2(1) "landlord means the owner of the premises and includes a" person who is for the time being authorised or entitled to receive rent in respect of such premises". Therefore, a landlord for the purpose of filing an application under the provisions of Rent Restriction Ordinance need not necessarily be the owner. Reliance has been rightly placed by the counsel for the appellant on Mst. Kalsoom Akhtar and S others v. Muhammad Yaqub (PLD 1976 Karachi 992), wherein a learned Single Judge of this Court observed that- "this argument flows from an erroneous assumption that a landlord has, of necessity, to be the landlord of the premises in question. Section 2(c) declares a person to be the landlord who for the time being is entitled to receive rent. It does not insist that the condition of ownership of the building of rented land should be fulfilled before a person could be the landlord of the premises in dispute." As regard the production of the power of attorney by the appellant, it may be observed that no power of attorney is required to be produced by a landlord, if an application has been moved by him for the ejectment of a tenant. Reliance has been placed on Amir All v. Muhammad Hashim and 2 others (PLD 1976 Karachi 857), Muhammad Sharif v. Muhammad Amin (PLD 1977 Lah. 516) and Haji Muhammad Rafiq v. Shahenshah Jehan Begum (PLD 1987 Karachi 180). In the first case (PLD 1976 Karachi 857) Naeem-uddin, J., (now, Judge of the Supreme Court) observed that- "so for as the second ground is concerned, it is clear that the petitioner had taken the house on rent from. Mohammad Hashim and paid rents to him for five months. This position stands sufficiently proved on record. It is in evidence that the house was actually purchased by Hashim. He, however, got it registered in the name of his minor son, Hyder Khan. He was personally looking after this property and had rented out to petitioner, who had attorned to him as the landlord. Mohammad Hashim's application for ejectment is, therefore, to be treated as an application by landlord in the meaning of Section 2(c) of the West Pakistan Rent Restriction Ordinance, 1959, he being the person for the time being entitled to receive rent in respect of the house. Even otherwise he is entitled to receive rents as the guardian of his minor son who is the real owner of the property. It is, therefore, immaterial if he is not the owner of the house, for, so far as petition is concerned, he is estopped, by the bar of Section 116 of the Evidence Act, to deny the capacity of Mohammad Hashim as his landlord in view of the facts proved on record that he had been inducted into the premises by Mohammad Hashim and had attorned to him as the landlord by paying rents. There is, therefore, no merits in the second contention also." In the second case (PLD 1977 Lah. 516) Muhammad Afzal Zullah, J. (now Chief Justice of Pakistan) observed that-"I do not agree with the legal proposition put forward by the learned counsel that if a husband receives the rent on behalf and for the benefit of his wife, he cannot be treated as landlord unless he has' a formal authority from the wife to do so. There is no such requirement mentioned in the Ordinance. Section 2(c) reads as follows:- "'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sub-lets, any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord." "It is obvious that the expressions "on behalf or for the benefit of are very wide. There is no such rider in the statute that the entitlement of any person to receive rent on behalf of another person should be based on any writing. It is necessary to point out that wherever formalisalion through writing was felt necessary by the Law-maker, it was so provided. In Section 2(f) (definition of 'tenant') it is provided that a person placed in occupation of a popcrty by its tenant, "unless with the consent in writing of the landlord...', would not be included in the definition of "tenant" goes upto the limit of including a person by or on whose account rent is payable for a property, in this category the provision in the definition of "landlord" has gone further to include the extending provision, namely, "whether on his own account or on behalf or for the benefit of any other person...."The case-law shows that this provision has been given wide interpretation and sometimes even servants receiving rent on behalf of landlords and owners have been treated as landlords by virtue of the definition. It is accordingly held that the respondent, by virtue of the definition, has rightly been treated as landlord and the question of relationship of landlord and tenant has correctly been determined." In the third case (PLD 1987 Kar. 1980) a Learned Single Judge of this Court observed that "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 verify the eviction application as I have already earlier held that the words "duly authorised" in Order VI, rule 14 need not be restricted to mean authorised by proper written authority or by power of attorney. The objections are therefore overruled." In view of the facts and law stated above, I am clear in my mind that the application was clearly maitnainable under the provisions of Sind Rented Premises Ordinance, 1979. As regard the second issue above default, admittedly, the rent was tendered and paid to the appellant upto June, 1977. The rent, in fact, was being paid in advance. The case of the respondent, however, is that in January, 1978 the appellant demanded 100 per cent increase in the rent. As the respondent was not agreeable to it the appellant had to come to respondent's shop for deciding the increase in rent but he failed to turn up. The rent was, however, sent by the respondent to the appellant by money-order dated 5.4,1978, ExA/19-22, in the name of the appellant, as attorney, which was refused. The respondent also appears to have sent the rent by cheque dt: 4.4.1978 Ex.A/23 alongwith covering letter Ex.A/23. Upon refusal by the appellant, the respondent deposited the rent in Misc. application No. 1847 of 1978 on 18.4.1978 in the Court of the learned Rent Controller in the name of the appellant. It is, thus, apparent that the rent was tendered by cheque sent by money order or deposited in the Court was after a clear default of about 9 or 10 months had taken place. The appellant, in the circumstances, was not bound to accept the said rent after the default had been committed. The learned Rent Controller has failed to take notice of these facts as required by law and came to an erroneous conclusion that the respondent was not a wilful defaulter. Even if the demand of increased rent by the appellant, as urged on behalf of the respondent, is taken into consideration, the same, though denied was made in January, 1978, as admitted by the respondent himself. Even otherwise, the demand of increased rent by the landlord does not give right to the tenant ot withhold the rent legitimately due against him. Another point which weighed with the learned Rent Controller is the security deposit of Rs.5,00,000/- as alleged by the respondent. Admittedly, there is no mention of the security deposit of Rs. 5 lacs in the written statement filed by the respondent. It is for the first time that the respondent has come out with this plea in his affidavit of evidence filed by him in rebutlalto the appellant's evidence. The plea, to my mind appears to be not only after thought but also false. The intimation was received by the respondent from the previous owner as to the change of the ownership which was not only. received by him but also acknowledged/endorsed by him stating "no objection" thereon and moreover, the receipt of a proper notice under Section 13-A of the West Pakistan Rent Restriction Ordinance, 1959 was also acknowledged by the respondent as long back as 1972. At no point of time the respondent did make such an allegation during all these years right from 1972 to 1981 except when the affidavit of evidence was filed. Furthermore, notice of intimation as to the purchase of the property by the appellant dated 18.8.72 Ex.P/18 at page 131 of the trial Court record, clearly mentions that the property has been purchased by the new owners "free from all encumberances". It is also significant to note that the said notice under Section 13-A of the West Pakistan Rent Restriction Ordinance, 1959 was received by the Director of the respondent with an endorsement of "no objection". Even otherwise, no amount of evidence can be looked in a plea which was-not put forward in pleadings. Reliance is placed on Siddik Mahomed Shah-v-Mt. Saran and others (AIR 1930 P.C. 57), Government of West Pakistan (Now Punjab) through Collector, Bahawalpur-v-Haji Muhammad (PLD 1976 SC 469) and Nasim Shah-v-Mohammad All Batalvi (NLR 1978 Civil 644). In the first case (AIR 1930 P.C. 57) it was held that ... " and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners, therefore^ very truly found that no amount of evidence can be looked into upon a plea which was never put forward." In the second case 9PLD 1976 SC 469) it was observed by the Hon'blc Supreme Court that "it is a well established rule that if a plea of fact is not pleaded no case can be founded on it." In the third case (NLR 1978 Civil 644) a learned Single Judge of the Lahore High Court relying on the principle of secondum allegata probata held "that a party cannot be allowed to prove a fact which he never alleged in pleadings." Learned counsel for the respondent submitted lastly that it was a practice to make payment in lump sum and so deault cannot be attributed to the respondent. Reliance is placed by him on Inayat Ullah v. Zahoor-ud-din & another (1987 SCMR 1313) and Fazalur Rehman v. Mst. Sarwari Begum & others (1986 SCMR 1156) as relied on in Inayatullah's case. The learned counsel for the respondent also referred to an un-reporled order of the Hon'ble Supreme Court in Civil Petition for leave to appeal No. 540-K/84 Batula Fida Hosain Shaikh & others v. M/s. Biimwh Oil Mills Ltd. I am afraid, all the three decisions are distinguishable inasmuch as they related to a practice of payment of rent in lump sum which had fallen in arrears, whereas in the instant case, as established on the record right from the days of the previous landlord, it has been the practice to pay rent in lump sum in advance and not of the arrears (Ex.O/2 to O/7). This plea rather goes against the respondent. Even otherwise, the practice as held by the Supreme Court in several cases, Abdul Rashid v. Saleli Muhammad (1980 SCMR 506). Sycd RiazAll v. Shabbir Ahmed Klian (1971 SCMR 598). M/s. Tar Muhammad Janoo & Co. v. TaherAli and others (PLJ 1981 SC 214) and Muhammad Saeed and five others v. Wazir Begum and another (PLD 1976 KJar. 1156), cannot ever-ride the provision of a statute to the contrary. In the first case 1980 SCMR 506) it was held by the Supreme Court that--"it has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month." In the second case (1971 SCMR 599) it was held that under Section 13, the Rent Controller had the discretion to condone delay in payment of rent. That is true. Discretion is to be exercised judicially and not in an arbitrary manner. Default of ten months could not be condoned on any hypothesis. No exception can. therefore, be taken to the judgment and order of the High Court." In the third case (PLJ 1981 SC 214) it was observed that-"it is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed lo plead 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 month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot, in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be»paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and ha/ards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in lime every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits." In the fourth case (PLD 1976 Kar. 1156), it was observed by a Learned Single Judge while referring to the provision of Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 that—"the discretion conferred by the West Pakistan Urban Rent Restriction Ordinance upon the Rent Controller is not an absolute or unbridled discretion. The Rent Controller cannot in all cases of default in the payment of rent declare that because he enjoys discretion whether to order or not to order the ejectment of the lenent and, therefore, he would exercise this discretion in favour of the tenant. This the Rent Controller cannot do. His is a judicial discretion, in whose exercise all the relevant factors are to be carefully taken into consideration and good grounds should exist for its exercise. It has not to be arbitrary, capricious or based on personal likes or dislikes; it has to be fair and in accordance with the common sense, of justice and equity." It may, however, be observed that the word 'may' as used in the old Rent Restriction Ordinance has been substituted by the word "shall" in the Sind Reined Premises Ordinance, 1979 which is presently in force in this part of the country, which, lo my mind, lakes away ihe discretion of the leanred Renl Controller, as provided in the earlier statute. In the existing law if the tenant has been proved to be a wilful defaulter, he must face the consequence, and an order of ejectment must follow against him. The learned Rent Controller shall order ejectmenl in accordance wiih the provision of Section 15(2) of the Ordinance. I have therefore, no doubt in my mind that finding on the issue of dcfaull as given by the learned Rent Controller is illegal and is accordingly reversed. The respondent is held to be a wilful defaulter and liable to be ejected on that ground. Nw dealing with third and last issue relating lo the bona-fide requirement of the landlord, learned counsel for the respondent submitted thai ihc ground of need, available to the owner is distinct from landlod. In this connection reference was made by the counsel lo clause (g) of Section 2 which reads as under: "(g) "personal use" means the use of the premises by ihc owner thereof or his wife (or husband), son or daughter." The submission, in principle seems to be correct but the same is not available to the respondent in the facts and circumstances of the case. Admittedly. the bnaiorJ is the husband of one of the co-owners and also son of another coowiut and. therefore, there is no bar in claiming ejectment of the respondent for him, u> itu personal use means the use of the premises by the owner thereof or hij uiie: for husband) son or daughter. However, it is to be looked into if the said neeJ ho> been proved in law. It has been shown by evidence that the premises in qi^-i! .< Ls a tvdown and the appellant needs a godown for his personal use. In 1'.n.1, h^ pr,«Juced a number or receipts of godown taken on rent by him. It was submiiud by the learned counsel for the respondent that this application for! ejectment has been filed nearly after seven years of the purchase of the property, j Had the properly been purchased for the personal use, there should not have! Ivcn such a delay in bringing action to the Court. The submission has no merits. The appellant has produced evidence that his business has expanded and he requires more place for storing his merchandise in the godown. In fact, a legal notice under the provisions of the Sind Rent Restriction Ordinance, 1979 (?) wasj alM> gixcn to ihe respondent in 1980 to that effect by the appellant requiring the premises on the ground of personal bona fide use. Reliance was placed by the learned counsel for the appellant on the cases namely, Abdul Rasliid vs. Mst.Adila Mitsamii (1982 CLC 149) and Haji Muhammad Rafique v. Shahcnshali Jehan Begun (PLD 1976 Kar.180). In the first case (1982 CLC 149), a learned Single Judge of the High Court of Lahore observed that—"in the dictionary the meaning assigned to the word 'use' is "to empkn to any purpose; act of using, the fact of serving a purpose." It is therefor^, a word of wide signification. It seems to me that the term 'use' is intended lo have a wider application than the word 'occupation' used in case of residential building. Can it, therefore, be said that the use of the shop by the husband who is head of the family and is maintaining the family is not the own use ol she wife who happens lo be the landlady of the non-residential building. The employment of the shop for running business by the husband from which the benefit is to accrue to the landlady, would necessarily amount to putting the shop lor the landlady's own benefit. Considering that in our society the family is the unit of our civilisation and the head of the family provides sustenance to the family and ihe wife, therefore, use of a shop belonging to wife, squarely falls within the purview of words 'own use' employed by the Legislature. In the precedent case of Muhammad Younus the learned Judge observed that 'husband is not one of the categories for whose benefit a non-residential building could be got vacated. The learned Judge, however, observed that the position would have been different in cos; the respondent had required the premises for doing her own business through siime agent or servant. According lo this line of reasoning in a case where assertion is made that the business lo be by Ihe husband would be run in partnership within the purview of the words "own use", but where a straighttor ard and true assertion is made thai the shop is to be used by the husband for conducting the business by him personally, ihe same would be outside the purview ol' the aforesaid clause." ll is. however, noticeable that ihe above case was decided under ihe West Pakistan L'rban Rent Restriction Ordinance, 1959 which did not contain a provision toj the husband's use. whereas ihe Sind Rent Restriction Ordinance , I 1 '"'' r.'i spucilkallv includes the husband's use as defined under clause (g) of section 2 in the personal use ol the owner, already quoted above. 3>S6 Kar. Khawaja Muhammad Ismail v. Gani & Tayub Ltd (Tan/ilur Rahman, J) In the oilier case (PLD 1987 Kar. 180) which has already been quoted in another context, a learned Single Judge of this Court observed that—"the other objection of the learned counsel for the appellant is that the landlady (was) 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 bonafide 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 her husband and the husband for whom the premises in dispute we required, had appeared in the witness-box and he was cross-examined. 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 such non-examination of the respondent would be of no consequence." The finding of the learned Controller on the issue of personal bona-fide use is, therefore, held to be perverse and is also reversed. For the above reasons, the impugned order is set aside and the appeal is allowed. I would, however, give four months' time to the respondent to vacate the premises and give its vacant and peaceful possession to the appellant as the premises in question is commercial, subject to his depositing monthly rent regularly in the Court. (MBC) Appeal accepted.

PLJ 1990 Karachi 386 PLJ 1990 Karachi 386 Present: MAMOON KA7.I, .1 INDUSTRIAL DEVELOPMENT BANK OF PAKJSTAN-Pclitioner Versus M/S MURTAZA FLOUR MILLS LTD and 4 others-Respondents J.M. No. 19 of 1976, decided on 22.3.1990 (i) Industrial Development Hank ol Pakistan Ordinance, 1961 (XXXI of 1%D- —S. 39—Loan—Repayment of—Petition for relief under section 39 of Ordinance—Moveable property in form of machinery etc not in existence— Whether transaction (of hypothecation) was valid transaction—Oucslion of— Contention that relief cannot be granted as there was no valid agreement of hypothecation executed by respondent No. 1 in favour of petitioner because moveable properties hypothecated were not in existence at lime of execution- It is not disputed that goods answering same description were subsequently acquired by respondent No. 1—Held: Mortgage can be enforced and contention of respondent No.l is not tenable. [Pp.388&390JA&B AIR 1933 Cal. 154, (1862) 10 HLC 191, AIR 1924 All. 833 and AIR 1926 All. 164 rel. (ii) Industrial Development Bank of Pakistan Ordinance, 1961 (XXXI of 1961)-- —-S. 39(l)(a)-Loan-Repaymcnt of-Pctition for relief under Section 39 of Ordinance-VVhcthcr bank guarantee can be sold under Section 39(l)(a) of Ordinance—Question of—A perusal of Section 39(l)(a) shows that Bank can proceed cither against borrower or any other person liable for payment of loan which may include his surety or guarantor, but court can pass an order only for sale of such property which has been pledged, mortgaged, hypothecated or assigned to Bank as security for loan—Held: bank guarantee cannot be sold in terms of clause (a) of Section 39(1) of the Ordinance, | P..W2|C (iii) Industrial Development Bank of Pakistan Ordinance, 1961 (XXXI of 1961)-- —-S. 39(l)(a)-Loan-Repayment of-Pctilion for relief under Section 39 of Ordinance-Whether relief under amended Section 39(l)(a) is available to petitioner-Question of-Comparison of provisions of Section 39(l)(a) before and alter their amendment shows that after amendment, any properties disclosed or undisclosed of persons liable for repayment of loan, including guarantors, can be ordered to be sold by court-Held: Since parties are to be governed by law as it stood before said amendments, no relief can be sought by petitioner against respondent No. 5 (the guarantor). [Pp. 3<>2&393]D&E Mr. A.I. Clumdiigar, Advocate for Petitioner. Mr. Muhammad AH Sayeed, Advocate for Respondent No.l Mr. Hainza I. AH, Advocate for Respondent No. 5 Date of hearing: 7.9.1989. judgment This judicial miscellaneous application under Section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961, has been filed by the Industrial Development Bank of Pakistan against M/s Murtaza Flour Mills Ltd., and four others. 2. The facts of the case are that in April, 1966 at the request of the respondents, the petitioner granted to the respondent No. 1 a foreign currency loan, of DM 7,14,200.00 (or any other available foreign line of credit), payable in twenty six-monthly instalments, to set up a flour mill at Nawabshah. As a security for repayment of the said loan, the respondents No. 1 to 4 executed a demand promissory note, dated 12.9.1966 in the sum of U.S. $ 1,77,050.00 payable in Pak upees to the petitioner and the respondent No. 1 hypothecated its plant and machinery imported with the said loan. The respondent No. 1 also undertook to mortgage the future fixed assets of the said project. The respondents No. 2 to 4 further guaranteed the payment of the said loan by the respondent No. 1 in accordance with the credit agreement executed by the respondent with the petitioners. 3. The respondent No. 5 is the successor of Standard Bank Limited which had then furnished a bank guarantee in favour of the petitioner for the payment of a sum of Rs. 14,38,000/-. The guarantee, according to clause (4) thereof, was to remain in force until the said borrower has:- i) invested a sum of Rs. 14,38,000/- in the project in the manner stated in the said Credit Agreement dated 12.9.1966 as well as any overrun in the financing of the cost of the project. ii) Installed and completed the factory for which the loan has been granted. iii) Created mortgage on the assets of the said project in your favour in terms of the Credit Agreement referred to above between you and the Borrowers." 4. The respondent No. 1, thereafter, neglected and failed to perform it's commiimenls and obligations under the said credit agreement and also committed default in payment of the instalments in consequence whereof, the petitioner vide their legal notice, dated 27.11.1975 (Ex.7/10), recalled the said loan and filed the present petition against the respondents. 5. I have heard Mr. Mohammad Ali Sayeed and Mr. Hamza l.Ali, learned counsel for the respondents No. 1 and 5 respectively, and Mr. A.I. Chundrigar, learned counsel for the petitioner. 6. Mr. Muhammad Ali Sayeed has firstly argued that some of the reliefs claimed by the petitioner cannot be granted by this Court. It may be pointed out that vide para No. 18 of the petition, the petitioner seeks an order directing the respondents to pay the petitioner's dues. This relief no doubt cannot be granted to the petitioner. According to Section 39 of the I.D.B.P. Ordinance the petitioner can apply to the Court for one or more of the following reliefs, namely: - a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan, or b) transfer of the management of the concern to the Bank, or c) an injunction ad-interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without the permission of the Board. However, there appears to be no controversy over this issue as Mr. A.I. Chundrigar, learned counsel for the petitioner has very fairly dropped the prayers made under para No. 18 of the petition. 7. The second contention of Mr. Mohammad Ali Sayeed is that even the relief sought by the petitioner under para No. 19 of the petition cannot be granted to it as there was no valid agreement of hypothecation executed by the respondent No. 1 hypothecating its goods in favour of the petitioner. Reference in this respect has been made to the evidence of Fasahat Ali Siddiqui, Manager Legal Department, I.D.B.P. (Ex.7), according to which, the moveable properties possessed or owned by the respondent No. 1 in the form of machinery etc. were not in existence till November, 1968, whereas admittedly, the agreement in question had been signed on behalf of the respondent No. 1 on 12.9.1966. Although the said factual position has not been denied by Mr. A.I. Chundrigar but his argument has been that such a transaction was a perfectly valid transaction and therefore, it cannot be called in question. Reliance in this respect has been placed by Mr. Chundrigar upon the case of H.V. Low & Co. Lid. Vs. Pulinbiliarilal Singlia and others (A.I.R. 1933 Cal. 154), wherein it was held that a valid hypothecation can he crcaicd in respect of not only such moveables as are existing on the premises at the lime, but also in respect of moveables which might be

iib.vequuitly acquired and brought there. In this case, the respondent had executed a 'kabulyal' containing the following stipulalions:- "Further the right I ha\ f e got on the basis of this settlement, the machineries of the said Kuthi, the engine and the boilers etc. will all along remain under first charge for the said reoyality (?) and minimum royablty." (?) It was observed by their lordships of the Calcutta High Court that: "In most modern systems of law, the hypothecation of moveables is either not permitted at all or is fenced in by a multitude of rules, which arc absolutely necessary for prevention of fraud The charge having been not merely of the moveables existing on the premises at the time, but also in respect of moveables which might be subsequently acquired and brought there, may be said to have been in respect of property which had not yet come into being. Though a transaction of this character is not governed by the Transfer of Property Act or by the Contract Ac;, ils validity can hard!) be disputed." Reference was made in this case to a number of precedents. In Holroyd Vs. Marshall ( 1S62). 10 HLC. 191. it was hcld:- "It is quite true that a deed which professes to convey property which is not in existence at the time is as a conveyance void at law, simply because there is nothing to convey. So in equity a contract which engages to transfer property,, which is not in existence, cannot operate as an immediate alienation-merely because there is nothing to transfer. But if a •vendor or mortgagor agrees to sell or mortgage properly, real or personal, of which he is not possessed at the lime, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt thai a Court of equity would compel him lo perform ihe contract, and that the contract would, in equity, Uansicr the beneficial interest to the mortgagee or purchaser immediately on I he properly being acquired. This of course assumes that the supposed contract is one of ihe class of which a Court of equity would decree the specific performance It follows that immediately on the new machinery and effects being fixed or placed in ihe mills they became subject to the operation of the contract and passed i:i equity to the mortgagees, to whom Taylor was bound to make a legal conveyance, and ior whom he in the meantime was a trustee of the property in question.". Similar views were expressed by the Allahabad High Court in Ram Samp Vs. Lai (AIR 1924 All. 833). It was held in ihe case as under: "A mortgage of a fulure crop, neither sown nor cultivated at the time, is recognised and enforced in this country as an executory agreement, binding on the parties to the transaction. The transaction is not governed by the Transfer of Property Act or by the Indian Contract Act, in so far as it is neither a mortgage of immovable properly nor a pledge of existing movable property. It is, to use the language adopted in Misri Lai V. Mazhar Hitssain in the nature of an agreement to mortgage moveable property that may come into existence in future and as such it creates an equitable charge which is valid and enforceable." In Babu Rain V. Ram Samp (AIR 1926 All. 164) the same court once again expressed similar views, thus: "There can be, no doubt, that under Section 3 of the Transfer of Properly Act growing crops arc nol immovable properly, and, therefore, that Act does not apply to this case. Further when the mortgage was made these crops were not in existence. The need originally amounted to a mere agreement to hypothecate the further crops when they do come into existence. Such an agreement was valid, as was poinled out by the Calcutta High Court in the case of Misri Lai V. Mazhar Hussain. But as soon as the crops grew, the hypothecation became complete and attached to the crops and created an equitable interest in the mortgagee." 8. The agreement of hypothecation of goods, executed by the respondenl No. 1 shows that it had hypothecated in favour of the petitioner all its plant, machinery, spare parts, accessories, equipment and all other moveable properties and assets as may thereafter be purchased by the respondent No.l together with ihc benefits of all rights appertaining as security for the repayment of the loan. o doubt, these goods, which had been hypothecated by the respondent No. 1 were not in existence at the time of the execution of the agreement but it is not disputed that goods answering the same description were subsequently acquired by the respondent No. 1. Consequently, in my opinion, the mortgage can be enforced and the argument of Mr. Mohammad All Suyeed is not tenable. 9. 1 now turn to the contentions raised by Mr. Hamza I.Ali on behalf of the respondent No. 5. The first contention of the learned counsel is thai according to clause (a) of Section 39(1) of the I.D.B.P. Ordinance, before its amendment by the I.D.B.P. (Amendment) Ordinance, 1981, only such property of the respondents or any other person liable for the payment of money could be sold as had been pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan. Consequently, according to the learned counsel, as the respondent No. 5 had nol mortgaged or pledged or hypothecated or assigned its properly to the Bank for payment of any loan, but had only furnished Bank Guarantee in favour of the petitioner, no order can be passed against the respondent No. 5 under Section 39(1) as a Bank Guarantee cannot be sold. There is no controversy on the point that the parties are to be governed by the law as it stood before the introduction of the said amendments in the Ordinance. The second contention of Mr. Hamza I.AH is that in any case, since the respondent No. 1 had created an equitable mortgage in respect of their immovable properties in favour of the petitioner, consequently, according to the terms of the bank guarantee, the same stood discharged. 10. In order to appreciate the first contention of Mr. Hanr/a I.Ali, it will be worthwhile to reproduce section 39(1) of the I.D.B.P. Ordinance, as it slood before the said amendments. This section provided as under: "39(1). Where the Bank becomes entitled to require the immediate payment of any loan (before the due dale) by reason of the breach of any condition of any agreement between the Bank and an industrial concern to which the loan has been granted or any person liable for payment of that loan, or where an industrial concern to which any loan has been granted or any person liable for payment of that loan fails to repay the loan by the due date or in compliance with the notice under Section 33, an officer of the Bank, generally or specially authorised by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the concern carries on the whole or a substantial part of its business, or the office or branch of the Bank from which the loan was disbursed is silualed. for one or more of the following reliefs, namcly:- a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan, or b) transfer of the management of the concern to the Bank, or c) an injunction ad-interim where there is apprehension that machinery or equipment may be removed from the premises of the concern without the permission of the Board." It is also pertinent to refer to sub-sections (3) and (9) of the said section, which provided as follows:- "(3) When the application is for the relief mentioned in clause (a) or clause (c) of sub-section (1), the District Judge shall pass an order adinierim attaching' the property referred to in clause (a) as aforesaid or such other property of the concern (or of the persons liable for payment of the loan or of both) as is likely in his estimation to fetch, on being sold, an amount equivalent to the outstanding liability of the concern to the Bank together with the costs of ihe proceedings taken under this section, with or without an injunction ad-interim restraining the concern from transferring or removing any machinery or equipment without the consent of the Bank (9) On completing an investigation under sub-section (.> ! the District Judge shall pass an order:- i.a) confirming the order of attachment or directing the sale of the attached properly, or ii\i \arying the order of attachment so as to release a portion of the property Irom attachment and directing the sale of the remainder of the attached properly, or (c) releasing the properly from attachment if he is satisfied that it is not necessary in the interests of the Bank to retain it under attachment, or (d) confirming or vacating the injunction, or (e) transferring or refusing to transfer the management of the concern to the Bank." 11. A perusal of clause (a) of Section 39(1) of the aforesaid Ordinance, no] doubt, shows that the Bank can proceed either against the borrower or any other I person liable for the payment of loan, which may include his surely or guarantor. I but clause (a) of Section 39(1) shows that llic Court can pass an order only lor the sale of such properly which has been pledged, mortgaged, hypothecated or' assigned to the Bank as security for the loan. No doubt, a bank guarantee is a kind I of security comparable to a pledge, mortgage or hypothecation, but at the samej j lime it cannot be classified as either of them. It also cannot be. sold in terms of I I clause (a) of Section 39(1) of the I.D.B.P. Ordinance. 12. Mr. Hamza I.Ali has invited my attention to the amendments introduced in Section 39 by Section 20 of the Industrial Development Bank of Pakistan (Amendment) Ordinance, 198]. The original clause (a) has now been substituted by a new one and it now provides as follows:- "(a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan and any other properties, disclosed or undisclosed, of the industrial concern or the properties, disclosed or undisclosed, of persons liable for the repayment of the loan, including guarantors." The contention of Mr. Hamza I.Ali is that, the object of the amendments introduced in Section 39 clearly was to remove and remedy the defects earlier occurring in that section. It has been pointed out by the learned counsel that there was no power vesting in the Court before the aforesaid amendments, whereby the property of the surely or a guarantor other than that which had been pledged, mortgaged, hypothecated or assigned to the Bank as security lor loan could be ordered to be sold. The comparison of the provisions of t Scction 39(l)(a) before iand after their amendmenl shows that after the amendment any properties i disclosed or undisclosed of the persons liable for the repayment of loan, including jthe guarantors can be ordered to be sold by the Court. However, such was clearly not the case before the said amendments. vSince the parties are to be governed by the law as it stood before the said amendments, no relief can be sought by the petitioners against the respondent No. 5 as the relief sought by them does not fall within ihe ambit of any of clauses (a), (b) or (c) of Section 39(1). No doubt, under sub-section (3) of Section 39, where relief has been sought under clause (a) or clause (c) ol sub-section (1) of Section 39, ihe Couit can pass an order ad-interim allaching the properly referred to in the said clauses, but aciain. such order can be passed where the Court can grant a final relief under such clauses. I am consequently of the view that the petitioners can only seek relief against the respondents No. 1 to 4, but no relief can be soufihl by them auainst the respondent No. 5. 13. In view of my conclusions, it is not necessary for me lo go into the second contention of Mr. Ham/a I.Ali. 14. In the result, the ad-interim order of attachment passed against the respondent No. 1 is confirmed and the attached properties belonging to the respondents may be sold in terms of 5>cclion 39 of the I.D.B.P. Ordinance. The order of attachment passed in respecl of the respondent No. 5, dated 17.4.1976, which was partially modified by the order ol' this Courl, dated 20.4. l l '7(>. cannot he confirmed. ' (MBC) accordmuiv

PLJ 1990 Karachi 393 PLJ 1990 Karachi 393 Present: SVi:D ABDLK R Ell MAX. J \I/S AHMAD CONSTRUCTIONS-Appiicants versus M/S NEPTUNE TEXTILE MILLS and anolhcr-Rcspondcnts. ,I.M. No. 13 of 1988 in Suit No. 185 of 1988, accepted on 9.2.1990 (i) Arbitration Act, 1940 (X of 1940)-- — S. 14 read wilh Sections 30 it 33— Award— Rule of court-Making of— Objections lo— Whether arbitrator misconducted himself and/or proceedings— Question of—Contention of Defendants is dial arbitrator took measurenicnls at site behind back of Defendant's Director and that they had not submitted documents before arbitrator— Plaintiffs stale that measurements -were, take'n, mailers were discussed in presence of parlies and that parties had submitted documents before arbitrator—Record of arbitrator supports plaintiffs' version-­ Held: It is settled law that in case of challenge to what happened before arbitrator, arbitrator should have been called by parly, making, challenge, k> ascertain as lo what had actually happened and what was ..actually (lone by arbitrator—Held further: Objections ol Defendants are Irivoloiis and baseless .iiul ha'n. Ken liLd lo avoid payment ol work done by plainliils. PLD 1970 Karachi 357 and PLD 1958 Karachi 145 re/. ( ii i Arbitration Act. 1940 (X ofHMO)-- — S. !4— Auard-Rule of court—Making of—Application fur— Objections to— VA helher construction work was done in accordance with approved plan, and if noi. what is its effect— Question of—Contention that work done by plaintiffs was not only against approved plan, but it was violalivc of Buildings Rules and Regulations— According to plaintiffs, architect was supervising work, bills were verified by him and one Director of Defendants was daily visiting site— Houevcr. this is no! material because arbitration agreement provides only for measurement of uork done—Held: Fact that Rs. ,X5/- per scj.fi. of covered art a is mentioned in arbitration agreement and that only measurement of work done wa-> lo be assessed, in itself shows thai construction, whether good or bad. was agreed to be paid at Rs. 85/- per sq. ft. of covered area. [P.397JB (iii) Arbitration Act, l l

40 (X «n94())-- — S. 14 read uiih Contract Act. KS72, Section 70 --Award— Rule of Court- Making of— Application for—Objections to—Whether there was any written agreement to l \eujlc uork between parties—Question of- Defendants have slated in allidavit liial construction vsork was assigned lo plaintilis verbally and they have denied that there was any written agreement for execution of work- ( .'onicntion of Defendants does not appear to be readily acceptable—It is impiobable that construction of a huge project like a textile mill could have Ixxn given without a written agreement particularly when architect was appointed to supervise same-It is, however admitted by Defendants that con) i act for construction of textile mill was given to plaintiffs which was oral- Held: Even if it is assumed that agreement was oral or had not been finalised. Dckndanls were bound to pay to plaintiffs for construction work done by them 'under Section 70 ol 'Contract Act. [P.396JA <iv) Arbitration Act, 1940 (X ofl940)-- — S. 14-- Award— Rule of Court—Making' of--Applicaiion for—Objections to— \ helher -writing dated 22.'.. 1987 is an arbitration agreement—Question of— Contention of Defendants is that there was no arbitration agreement between parties and document referred to by plaintiffs is a writing or a joint-note which is vaguO and does not amount to arbitration agreement—A perusal of document would-' show that it is in no way vague—It is an express writing authorising arbitrator to decide matter by measuring work done by plaintiffs and to assess same at the rate of Rs. 85/- per sq.ft. of covered area-Parlies had agreed to bind themselves by decision of arbitrator—Held: Agreement dated 22.9.|')87 clearly amounts to a valid arbitration agreement and decision of arbitratoi would amount to award. |P.397.39S&399|C,D&E PLD I'/7I Lahore 522. PLD 1971 SC 516 and AIR 1934 Sindh 200 distm-mslKd. AIR 1i/, Advocate lor Applicants. Rttjii //«</ \ciuu:, Ackoeatc lor Respondents. Dale .(.if heai ing. 2-U.1990 13 \ this application Sole-Arbitrator Mr. Sycd Ali has filed the award in Court undei Si:clion-I4 ol'ihe-Arbilralion Act. Brielly the lads as narrated by the plaintiffs are that the defendants intended to construe! their luclory in Nooriabad Industrial Area. District Dadu and for that purpose thev employed M/s. Two Stars Enterprises as their Architects. The I'kuntilK wv;l (.ni'aued as Contractors to execute the work of construction ol the laetor\ ,'iiul alln.il buiidmsi under the supervision of the said Architects. An agieeinv-nt '.\,ipi spared' describing the buildings It.) be constructed, the quantum ol \nik. -dudule of payment and description and items of the work to be carried out in each buildinii. as well as items of rates in case of any addition or deduction. The vi-ntrad \as estimated at a lump-sum Rs.21.43.000/- excluding the cost of steel, cement and water which was to be supplied by the defendant free of cost and stagewise payment was stipulated. Ten months period was stipulated for completion of the work. The work started on 15.12.1985. Mobili/alion advance of Rs.l.'sU.noo/- \as liiven to the plaintiffs. The Architects were supervising the work and diieclur S.ileem Usman of the Defendants was visiting the site regularly. The I'u --i rumiiii!.' account bill was submitted on 3.3.1986. checked bv the Architects and recommended for payment. The second running bill was submitted on 30.11.19S6 checked and recommended by the Architects. Thereafter the defendants asked the plaintiffs to slow down the work and ultimately'determined the contract, as there were differences between the Directors of the Defendant company. The Defendants delayed the payment of the running bills on the plea that the measurement should not be made by the Architects/Messrs. Two Stars Enterprises, but by their own friend, an Engineer Mr. Syed Ali. Consequently a meeting was held between the parlies wherein it was agreed that Syc.d Ali would be the Arbitrator to settle the dispute of payment to the plaintiffs, and that he will measure, assess and evaluate the work done at an agreed formula and that his decision shall be final and binding on both the parties. A writing to this effect was prepared and signed by the parlies. The Arbitrator fixed 26.9.1987 for taking the measurements and asked the parlies to be present there. Accordingly Hashim Director of the defendant and klrees of the Plaintiffs were present at the site where the Arbitrator took ihe daily measurements in their presence and obtained the relevant documents and plans from the parties. Thereafter the Arbitrator gave his Award on 6.1.1988 and then filed it in the Court on receipt of notice of J. Misc. No. 13/1988 filed by the Plaintiffs in this Court. The defendants denied that there was any written agreement executed between the parties for the execution of construction work. The Plaintiffs they alleged commenced the work in connivance with the Architects etc. before the parties could settle the terms and execute the agreement. The Defendants have denied that the typed, and signed agreement Annexure P/l filed by the Plaintiffs was settled between the parties or executed. They have alleged that il was an after thought. It is alleged by the Defendants that the work executed by the plaintiffs was against the approved plan and is violalive of Buildings Rules & Regulations. Besides, it is defective, useless and not according to specifications given in the approved plan. The execution of the document annexed to his application by the Arbitrator purporting to be a reference is admitted by the Defendants. They have, however, alleged that this docs not come within the definition of Arbitration Agreement. In this case only measurement and its valuation was assigned to Syed Ali, that too on his own persuation. This agreement is vague and uncertain as it does not cover the dispute which led to the stoppage of incomplete construction work. The so-called Arbitrator did not give notice to the Defendants. It is also denied that he had taken measurements on 26.9.1987 in presence of Hashim, Director of the Defendants, or on any other date in their presence. It was alleged that the Arbitrator had mis-conducted himself by holding the enquiry behind the back of the defendants. It is further alleged that the Arbitrator was neighbourer of the Plaintiffs and played fraud upon the Defendants. The Award was contested by the Defendants alone, who filed an application under Sections 13 and 30 read with Section 33 of the Arbitration Act 1940. This application was supported by an affidavit filed by Mohammad Hashim, their Director which contained the contentions shown above. A Counter-Affidavit was filed by Idress Ahmad, Sole-Proprietor of the Plaintiffs firm, which contained in detail the facts of the plaintiffs' case, which I have already briefly narrated above. The Defendants filed a rej'oinder wherein nothing new was stated, except denial of certain facts mentioned in the Counter-Affidavit and repetition of the facts contained in the affidavit. The Defendants" counsel has formulated the following points for decision in this case:- (n) Whether there is any written agreement to execute the work? (/)) Whether the Construction work has been clone • in accordance with approved plan? If not. its effect? (c) Whether there is any arbitration agreement? If not, what'is the position of writing daled 22.9-1987 claimed by the plaintiff to be Arbitration Agreement? ((/) In ease the writing dated 22.9.1987 is an Arbitration Agreement as claimed by the plaintiff, whether the Arbitrator misconducted himself and/or the proceedings. , For the sake of convenience 1 have also decided to deal with the various contentions raised by the parlies in accordance with these points. (a) Whether there was any written agreement to execute the work? The plaintiffs have produced pholo-stal copy of a typed document which bears the signature of Defendant alone and has. slated that this agreement was got prepared by the Defendants with the help of their said Architects. The original of this agreement was retained by Ihe Defendant after signing it himself also. He did not supply the photo-slat copy of the original alter it was singed by him to the Plaintiffs. The Defendants have, however, denied that any such agreement was executed. They have stated in their Affidavit that the construction work was assigned to the Plaintiffs verbally on the specific condition that the construction work shall be executed strictly in accordance with the approved plan. The Defendants have denied that there was any written agreement for execution of work, what to say of arbitration clause existing therein. In their Rejoinder Affidavit they have disowned Annexure 'A'. The contention of the Defendants does not appear to be readily acceptable. It appears improbable that the construction of a huge project like a Textile Mill could have been given on contract without a written agreement, particularly when an Architect was appointed to supervise the same. However, this point does not appear to be very material for the purposes of this case. Even if there was no agreement in writing, it is admitted by the Defendant thai contract for construction of the Textile Mill was given to the Plaintiffs to be constructed in accordance with this approved plan. It is also admitted thai the Defendants had constructed the Mill. Hence even if it is assumed that the contract was oral or had not been finalised, then also the Defendants were bound to pay to the plaintiffs for the construction work done by them. Section 70 of the Contract Act provides that "even if there was no contract, then also where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof the latler is bound to make compensation to the former in respect of or to restore the thing so done or deliver." (ft) Whether the construction work has been done in accordance with the approved plan? If not, what is the effect? The Defendants has stated in his affidavit that the plaintiffs were bound to do the work in accordance the approved plan. The work done by the plaintiffs was not only against the approved plan, but it was violalive of the Buildings Rules and Regulations. The work was defective and useless. The Plaintiffs have asserted that eir work was according to the approved plan. He has stated that the Architect was supervising the work. The bills were verified by him. Director Salcem Usman was visiting the site daily and was inspecting the same. Hence it does not appeal to reason that the plaintiffs would have been allowed to do sub-standard work or the ' work in violation of the approved plan or the Building Construction Rules against ; the wishes of the Defendants. However, for the purposes of this case even this | point is not material, because the Arbitration Agreement provides only for the measurement of the work done. There is no mention whatsoever of any ispute on the nature or quality of the work done in the Arbitration Agreement. The fact that s.85/- per sq. ft. of the covered area is mentioned in the Arbitration Agreement and that only measurement of the work done was to be assessed in itself shows hat the construction, whether it was good or bad, was agreed to be paid at Rs:85/- per sq. ft. of the covered area. (c) Whether there is any arbitration agreement? If not, what is the position of writing dated 22.9. 19S7 claimed by the plaintiff to be Arbitration Agreement?) The Defendants have asserted in their objections that there was no Arbitration Agreement between the parlies and the document referred to by the plaintiffs is a v, riling or a joint-note of the panics which is vague and does not amount to an Arbitration Agreement or a reference to the Arbitrator. The defendants' counsel cited a number of rulings in his support. The important lines are P-.L.D. 1971 Lali.522, (Pak. Cement Industries Lid Vs. Teekavea Trading Co.)>.L.D. 1971 S.C. 516 (Mohammad Salim vs. Mohammad tkramj and A.I.R. 1934 Sindh 200 (Hommsji vs. Local Board, Karachi). In the case of Pak. Cement Industries Ltd. vs. Teekavea Trading Co., there uas an application under Section 28 of Arbitration Act, 1940 for extension of time for making award. The application was resisted on the ground thai Arbitration Agreement was not stamped. No doubt it was held that there being no properly stamped Arbitration Agreement, the question of enlargement of time in terms of • Section 28 did not arise. The Courts, however, took notice of a subsequent event that is payment of duty and penalty on the stamp before the Administrative Civil Judize and held that it was competent for the arbitrator to proceed with the arbitration on the basis of that agreement. The case of Mohammad Salim vs. Mohammad Ikram goes against the defendants as it was held therein that once a document was admitted in evidence without objection, its admissibilily cannot subsequently be challenged on ihe technical ground such as non-payment of stamp duly. In ihis case also the agreement has been admitted in evidence without any objection being raised lo ils admissibility. Now ihe Defcndanls cannot raise objection as to its admissibility. The case of Hormusji vs. Local Board, Karachi is also distinguishable from the facts of the present case. In that it was held that the decision of the President of the Local Board, on any complaint of the contractor, was to be considered as final, but this did not mean that he could not go to the Civil Court on a claim which did not amount to a complaint to the chairman. The said document reads as unden- "We the undersigned both the parties have agreed that the rate of Rs.85/- (Rupees eighty five only) per square foot of covered area of the factory building and other structure on plot No. C-16 Road No.10 at Nooriabad Industrial Area, Nooriabad (Dadu District). The assessment of the work done shall be measured by Mr. Syed All and his decision shall be binding on both undersigned parties. The valuation of compound wall underground tank will be done on the basis of market rates." A perusal of this document would show that it is in no way vague. It is an express writing authorising Syed All, Engineer to decide the matter by measuring the work done by the plaintiffs and assess the same at the rate of Rs.85/- per sq. ft. of the covered area of the factory building and other, structure on Plot No. C-16, Road No. 10, Nooriabad Industrial Area, Dadu District. It was further agreed D therein that the valuation of the compound wall and under-ground tank will be done on the basis of the market rate. The parties had agreed to bind themselves by the decision of the Arbitrator.This document is signed by the Plaintiffs as well as the Defendants. It is dated 22.9.1987. The Defendants have not denied the execution of this document. Clause (a) of Section 2 of the Arbitration Act defines an Arbitration Agreement to mean "written agreement to submit present or future differences to arbitration, whether an Arbitrator is named therein or not." It is not necessary to use the words "Arbitrator" or "Arbitration Agreement" in the document. In A.I.R. 1947 Lahore 215 (Governor-General in Council vs. Simla Banking & Industrial Co. Ltd.), a clause in the agreement between the parties provided that the decision of the Superintending Engineer shall be final, conclusive and binding on all parties to the contract on all questions relating to the meaning of specifications etc. The Sub-Judge held that the agreement in the clause did not indicate any animus arbitrandi and was in the nature of a reference to a valuer or an assessor. It was held by a Division Bench consisting of two most eminent Judges Sir Abdul Rashid Ag. C..I. and Abdur Rahman, J. that:"the finding was not correct. A perusal of the clauses showed that not only questions about workmanship etc., but all questions whatsoever arising between the parties were agreed to be left to the decision of the Superintending Engineer. It was true that the words 'arbitration', 'arbitrator', or 'arbitration agreement' did not appear in the clause, but that was immaterial so long as the parties were found to have agreed to allow the matter to be decided by a person of their own selection, whose decision was to be final, conclusive and binding on them." In A.I.R. 1938 Sindh 45 (Harnam Singh vs. Parasram Lalchand) a Division Bench held that "when a member of the firm of Architects is holding an enquiry as to the cost of certain work done in a case of a dispute between the owner and Contractor, he acts in his capacity as an Arbitrator and is subject to the. provisions of the Arbitration Act." The facts of this ruling are similar to the facts of the present case and it applies to the present case with full force. The next ruling on this point is P.L.D. 1977 S.C. 644 (Sluuniin Akhiar vs. Niijum Bui/ui). It was observed in this ruling asJ'ollows:- "In lliis connection it is evident from the facts staled above that actually there was no bilateral instrument executed inler-se between parties as such for the appointment of the two arbitrators respectively nominated by them and reference of the dispute to their arbitration. The fact of the mailer is that, as explained above, on 16.10.1970 respondents 2 to 4 wrote lo (he Staff Officer, Deputy Sub-Administrator, Martial Law, Lahore, nominating Mr. Yaqoob Shah as their arbitrator in this dispute. Similarly on 4.11.1970 the appellant separately wrote to the Deputy Sub-Martial Law Administrator, Lahore nominating Capt. Shafiq Ahmad as her arbitrator for the settlement of the dispute. Afterwards respondent No.l also informed the Deputy Sub-Martial Law Administrator about her willingness to the appointment of Sycd Yaqoob Shah as their nominee to act as their arbitrator. In my opinion these letters unilaterally written by the respective parlies addressed to the Martial Law authorities read together constituted a valid "arbitration agreement" within the meanings ol Section 2(a) of the Arbitration Act, 1940 for the purposes of the reference of the dispute to the arbitration of the two arbitrators appointed by them. In Section 2(a) of the Arbitration Act, 1940 'arbitration atireemcnt' is defined to mean a 'written agreement' to submit present or future differences lo arbitration, whether an arbitrator is'named therein or not. In the past there has been a considerable divergence of opinion as to whether this 'written agreement' .was also required to be signed between the parlies. But of laic ihe Courts are unanimous in holding thai the written agreement of arbilralion need nol necessarily be signed by the parties as long as its terms and conditions can be readily ascertained and have been freely agreed to between ihe parlies. On the face of it Section 2(a) of the Act does not lay down and it is not a requirement of the law thai the arbitration agreement must also be signed by the parties." Similar view has been taken in P.L.D. 1978 Lahore 829 (Province of Punjab vs. The Industrial Machine Pool). The ratio dccidcndi of this ruling is thai though the Arbitration Act requires the Agreement of Arbitration to be in writing, it does nol require that it should be contained in a formal document. It may be in any form attributed to the parlies whereby their intention to reler their dispute lo Arbitration is manifestly proved in accordance with law. Even the correspondence between the parlies or a statement made by their counsel and recorded by ihe Ci.'iirt was considered sufficient to be treated as an Arbilralion Agreement. I am. therefore, of the clear view that the agreement dated 22.9.1987 amounts lo a valid 'arbitration agreement' and lhat ihe proceedings taken by Sycd Ali in pursuance of the said reference would amount lo arbitration proceedings and his decision would amount to an award. (d) In case the writing dated 22.9.1987 is an Arbitration Agreement as claimed by the plaintiff, whether the Arbitrator misconducted himself and/or the proceedings? It has been alleged by the defendants that the Asbilralor U'.vk liu measurements at site behind the back ot Defendants' Diiec'ior and >i L^ »iU • i been alleged by them that they had not submitted dncununis before ihe Arbitrator, whereas the plaintiff has alleged that the measisicmenis were taken, matters were discussed in the presence of the.parlies and ihe parlies fubmilted the documents before the Arbitrator. Thus it would appear that there is a word against word. The record of Arbitrator supports the pla'mtill's version. In this respect, the settled law is that if there is a challenge to whal happened before the Arbitrator and the procedure that he had adopted and whether evidence was taken by him or not, in such cases the Arbitrator should have been called by such parly to ascertain as to what had actually happened and what was aclually done b) the Arbitrator. In this respect reliance Was placed on a number of rulines, including PLD 1970 Karachi 357 (Tayab Vs. Eastern Textile Mills Lid). An Arbitrator is within his own right to fix a date and communicate to the parties even orally whereby ihc parlies were bound to attend him on the date so fixed and communicated. The Arbitrator in this case, after his appointment on 22.'>.l l ->;s7 had fixed 26.7.19X7 for the purpose of measurements at site and asked the paruc^ to be present on the dale fixed. The Arbitrator and the parties were present al ihe site of works where the detailed measurements were taken by the Arbitrator in the presence ot. Mr. Hasham on behalf of the defendant and Mr. Idrees on behall of the plaintiff. This is evident from the proceedings sheet of the Arbitrator as recorded by him on 22.9.W87 and 26.9.1987. Reliance was placed in PLD l';S:s Karachi 145 '(Ch. Alhlnl RinifVs. Mohammad Sliced Akhiui) where it was held a.s ..follows: - "1 would hold that Mohammad Ibrahim though he had not. been served wilh any notice by the arbitrators, had knowledge of the proceedings and had participated in the same. The Arbitration Act does not prescribe any procedure as to how proceedings before the Arbitrators should be conducted. All that it requires is that nothing should be done ex-parle, and that the parties should have notice in the sense that they know when the mailer is to be taken up by the arbitrators. It is open to the arbitrators to convey to the parties concerned even orally the dale fixed by them, under the Arbitration Act, the arbitrators cannot proceed ex pane in the absence of parlies who are affected by the award. 1 am inclined to hold that under the circumstances of ihe present case the arbitration proceedings against Ibrahim was not ex parie and that Ibrahim did participate in the proceedings before the arbitrators. This objection is accordingly disposed ol." In fact only M/S. Two Stars Enterprise Architects were appointed by the Defendants to supervise the work. M/S/ Ashrafi Abbasi Architect, who had no concern with the contract work is attempted to be introduced by the defendants unaulhorisdely to confuse the mailer and any thing done by (hem is liable to be ignored. In fact the dispute was in respect of the claim for payment made by the plaintiff for the work done which has been resolved in i' •.' manner agreed as aforestaled by the Arbitrator. From the objections of the defendants also one can deduce that the arbitrator was a man ol delendants own choice, but when he gave the award the defendant fell that he had been let down bv the arbitrator. The v lions of the (LLiiuaiit are frivolous and baseless and have been liled only to ;.o,,l the pa}mcnl ol the v\i'rk done and carried out by the plamlill, as such llie -''K :.-ii, ,;iv ai'e dismissed. A \ard is therelore made rule ol the Couil. i M '.'< . I'etilion accepted.

PLJ 1990 Karachi 401 (DID PLJ 1990 Karachi 401 (DID 1 AHMAD HASSAN-PelilioiM versus KiMAN M,( IIINH TOOLS FACTORY and anolhci•- Respondents Const. Petition No. D-3.V7 of 19VO, dismissed on ( ). < . !'/)!) l i Constitution ol' I'akislan, 1V73-- --'--.An. i ( 'V—Cxmtraclual obli»alions--EnforcemeiH or--f'ia\er ror—Ailernalive ;ideijualvj rcmciK--.\ailabiiily of—Whether [lelilimi lies--(.)uestioii of—Where an ailcrnale adequate remedy is provided by law. constitutional rel.i.1 cannot be Liiunlcd--ln this case, right conferred and obligation imposed being eoiitraetual in naluie, is inn'erned by ordinary law ol contracts and not by any specihc or special k> l .i.--lalion--OrdinariIy such remedy could !ia\e been sought liiiiuigh a suit and that should have been proper because minute details and coniiovuicd facts could best have been dealt with on recording and ..vuninaiu-n of due evidence—Held: Constitutional jurisdiction could not adi.i|Lialcl> be in\)ked-Fetition dismissed. '|l'p U 13.404^4()5]B»)tC PLD l9C.6SC6.Wn/ (ii) Cdiivlitiition ol'Pakistan, 1973-- —Ail 199—Contractual obligations—Enlorcemcnt ol —Prayer lor—Whether consiituiional jurisdicliim can be invoked—(^nestii)n ol--Sub|ecl to we!l i^xoLinized principles, certain categories ol contractual obligations can also be enloreed in constitutional jurisdiction, provided always that respondent part}' is subject to thai jurisdiction—Held: Constitutional jurisdiction, \vlnch, sul'---taniiailv. is also discretionary in nature, cannot plausibly be invoked in ni;ulu's irr.oiunii minute details and controverted and complicated lacls. [P.403JA lor Respondent Nt).l Dale oi heai ing: 9.5.1990. .lUK.MrNT \ajilin(Idin Ahmad J.--The grievance ol the petitioner is that a .contract dated. 2s. lu. J'isw. perlaininu to the puichase and lilVniL 1 . of Iron C'hijis 'Scraps Steel Shaxmgs 'between him.sell and the respondent Paki-lan Machine Tool Factory (Pinale) Ltd. (P.M.T.F.) \va<, from the outset, \iolaled \~<\ the latter an.!. ullimatcK. cancelled, (.'onstitutionai luiisdiclu.n ol this Court has been •T'.ol-xd jit.! ;!v do>ei mneiH c.j P.iK !•-!.;;) is citvd a-- the second respondent in this petition as. -accord-ing lo Mr. Ansar Hussain, respondent Pakistan Machine Tool Factory (Private) Ltd. was a lakcn-over Enterprise under the Economic Reforms Order, (I of 1972), and Article 3 of such Order over-rides all other laws, or anything to the contrary contained in any agreement, contract, memorandum or articles. It has further been urged that the respondent No.l, currently, is lunclioning as a company under the State Engineering Corporation and, ihcrcloic, performing functions in relation to the affairs of the Federation, thereby rendering itself amenable to the jurisdiction under Article 199 of the Constitution of Pakistan. At I he outset, we had issued pre-admission notice lo the respondent No. 1 and that respondent has submitted comments in response, which are on record. The lactual position, which is not entirely tree from controversy, as is now available on the record, is that the petitioner had contracted, with P.M.T.F. lo purchase and lift Steel Shaviims/C'hips (Scrap) on "as is where is" basis, of an uiispccilicd quantity, as be available upto June 30, 19 ( '0. the price being Rs.47.ll/- per Metric Tonne ex P.M.T.F. The petitioner deposited a sum of Rs.200,000/-, as earnest money, which was converted into security deposit lo be refunded on successful completion of the contract or adjusted, towards final payment. The liftiim was lo commence within a week from October 28, 19X9 at a minimum pace of 200 Metric Tonnes per month. In case of petitioner's failure to fulfil his obligations, P.M.T.F. was entitled to cancel the contract and forfeit the security deposit or to sell the un-lilled quantity, without notice, on the account and at the risk of the petitioner. Alternatively, the lifting period could be extended on such terms and conditions as P.M.T.F. may decide. The contract was not to be sub-let, except with the permission in writing from P.M.T.F. In case of any dispute, the mailer was lo 1.>c referred lo the Managing Director of P.M.T.F., whose decision was to be final and binding. Il is alleged by the petitioner that he could not lift the Iron Chips due to want of machinery and that, on 2.S.10.I9S9, he made an application to the respondent No. I to allow the requisite lifting with the help of necessary machinery. According lo the petitioner, no reply was rendered and the matter remained pending till 6.3.19 l ;o. when letter dated 21.1.1990 was received allowing the over­ due permission. As such, it is urged thai delay was caused by the respondent No.l and" that the refusal of ihe respondent to permit the petitioner lo enter the scrap­ yard, alter the petitioner on 10.3.1990 had purchased the cognate machinery, on the ground thai the- contract stood cancelled, constitutes improper exercise of power. The corresponding forfeiture of ihe security amount is also, likewise, termed nnilu fide and contrary to law. The respondent no. I, in reply, submits that under clause 5 of the Contract the petitioner'was obliged to arrange for loading and transportation at his own cost and his subsequent request lo bring in crushing machinery in the P.M.T.F. • scrap-yard, being extraneous to the terms of the contract was first, verbally, relused on 26.I1.19S9 hut, thereafter, as a result of a meeting between the parlies, was acceded lo subject to conditions recorded in ihe respondent's letter dated 21.1.1990, which, inter alia, included payment of electric charges at commercial rates, provision for cable panel and energy meter for the machinery,crushing to be on tarpaulin (as cement floor was not available), nearest to each keep and such (work) to he carried out diinnn the mornin« shilt on working days only, and the petitioner to be alone responsible lor any loss or damaue lo the machinery or to his stall. It is then said that the petitioner never maintained the minimum required lil'tinsi limit of 200 metric tonnes per month and was additsscd advisory telegrams daled 10.1.1990, 12.2.1990, and 20.2.1990 and, finally, letter dated 14.3.1990. In the meantime, on 6.3.1990, when the petitioner alleges lo have received letter dated 21.1.1990, he appointed one Haji Nisar Ahmad to obtain Steel Shavings/Chips upto 30.6.1990 and make corresponding deposits in that behalf. This was followed by the petitioner, on 14.3.1990, writing another letter counler-manding the authority of the said Haji Nisar Ahmad and appointing one Mohammad Khalid. The first respondent thereupon re-aeled by informing the petitioner that such appeared lo be a case of subletting, which was not permissible under the contract. This refusal is reflected in respondent's own letter dated 14.3.1990 wherein the petitioner was cautioned to ensure lifting of 250 Metric Tons, as agreed by him in his letter daled 6.3.1990 to be completed each month. The petitioner was warned that unless he improved his performance within one week such letter should be trealcd as final notice under the contract. The petitioner, according lo the respondent No.l. failed to relent and, accordingly, through letter dated 8.4.1990, was informed that clause 8 of the Contract was applied to his case. The respondent P.M.T.F. has expressly denied lhal the petitioner was refused cnlry in Ihc scrap-yard, as alleged. It also maintains that the security amount has not been forfeited but would be adjusted tosvards the loss suffered in the sale to a third party for which, as regards the un-liited and accumulated scrap, tenders were sought through the press. We have heard both Mr. Syed Ansar Hussain and Mr. H.A. Jafri for the petitioner and the respondent No.l, respectively. In the first place, it is not free from doubl whether the respondent No. 1, Pakistan Machine Tool Factory, is performing functions connected with the affairs of the Federation, within the meanings of the Conslilulional provision in Article 199. Even if lhat were so, the fact remains that it is a contractual dispute, which the petitioner seeks lo agilale in ihe present consliluliorial petition. The contract in question cannot be hit in terms of Article 3 of the Economic Reforms Order, 1972, for lhal contracl has been concluded pursuanl lo such Order itself and is enlircly in consonance therewith. Counsel's reliance, for atlack, on Anicle 3 of Presidents Order I of 1972 is, thus self dcfealiiig. We are not also unmindful lhat,. subject , to well recognized principles, certain categories of contractual obligations can also be enforced in Constitutional jurisdiction, provided always that the responding parly is subject lo that jurisdiction. However,there are contracts and contracts falling within this genus. It has never been the practice of the. Superior Courts to interfere in contractual disputes, where the controversy involves minute details or when controverted and complicated facts, not easy of resolution, are presented for adjudication. Without expressing ourselves on merits, we are afraid lhal Ihc prcscnl case is fraught with these difficulties. Conslilulional jurisdiction, which, substantially, is also discretionary in nature, cannot plausibly be invoked in such matters. There is, yet, another difficulty, in the petitioner's way. Where an alternative adequate remedy is provided by law, constitutional relief cannot be granted. Such B altcrnalive adequate remedy can be provided by a statute, which has conferred or created a right or, lor the mailer of that, imposed an obligation, in which case, unless the remedy provided is equally in-expensive, speedy ur cllicatious. constitutional jurisdiction may slill be invoked, as was opined by Hamoodur Rehman, .1.. as he then was, in Anjiiinan-c'-Alimadia Vs. D.C.Siirgodhu (P.L.D. 1966 S.C'. d.V), Manifestly, this principle does not apply to the case in hand, because I he right conferred and the obligation imposed, being contractual in jnulure, is governed by the ordinarily law of contracts and not by any specific or special legislation. It is axiomatic that Constitutional remedies are not to be resorted to in cases where a routine action at law will lie for complete satisfaction. The connotation is thai if the remedy applied for is essentially a remedy under the ordinary law then the normal remedy through a suit ought to be pressed, for Article 199 of the Constitution is not intended to be a substitute for ordinary forms of legal action. Now, ordinarily, such remedy, as be relevant in the instant case, could have been sought through a suit and that should have been proper Because the minute details and controverted facts could best have been dealt with, on recording and examination of due evidence. Another rule, thai in cases where the perlormance of a specific public duly is involved relief in Constitutional jurisdiction is not (to) be denied merely because some other remedy under the general law, such as a suit, is available, the laller remedy assumed to be equally efficacious, speedy and beneficial, itself stands displaced, when complicated questions of fact, disputes as to title to properly or relief, in csseiKv,, for damages or compensation etc. come to be confronted. We must, also, lake note of the fact thai the petitioner here has, at his disposal, a slill more effective and beneficial remedy by way of arbitration, as expressly stipulated in the contract intcipartcs.. Under the First Schedule to the Arbitration Act of 1940 an arbitrator- is required to decide disputes referred to him within four months from the date of his entering upon the reference. It cannot be gain-said that a constitutional petition, speaking generally, cannot be decided earlier than that; Besides, if interim relief in the nature of an injunction etc. be necessary Section 41 read-with the Second Schedule lo ihe Arbitration Act duly provides for seeking such relief from the concerned Court, upon the moving of requisite application. It may, however, be said that the arbitration, in this case, is to be thai of an officer of Ihc respondent Machine Tools Factory and that the petitioner may not succeed in obtaining a fair deal from such officer namely, the Managing Direclor, P.M.T.F. Such a nolion can easily be dispelled. This kind of arbitration clauses arc not uncommon of occurrence, particularly where one of the contracting parties is the Govl. or an agency connected with it. In such cases, usually, a high enough official is named in the arbitralion clause itself, the idea being that no individual has any personal slake or interest in Govt., or connected affairs and impartiality is assumed. Besides, with a view to check excesses, if any, in arbitralion proceedings, under ihc newly inserlcd Scclion 26-A of the Arbitration Act, an arbilrator is, now, required lo record reasons for the award and unless thai is done and ihe award is a speaking one, it is liable lo be remillecl back. Such reasons can come up for due scruliny before a Court of law, upon filing of objections by an aggrieved party and if found to be extraneous, un-just, illogical, fanciful, capricious or otherwise un-lawful can be deviated from in terms of Seclion 30 of the Act. At any event, it has been said before and may be reileraled lhal when a person is invesled wilh ihe high responsibility of arbilrating upon a dispule, both parlies reposing confidence in him, il would be in consonance with the trust bestowed that the repository of the trust should ranscend all petty considerations as could emerge on his being connected or associated more closely with one rather than the other party to the dispute. It is I - indeed for this reason and this assumption that both parties, before the emergence of disputes, place confidence in a named arbitrator, even though he may be an officer of or otherwise connected with one of them, the fact that he holds a high enough office, guaranteeing in itself co'mplete impartiality and untainted judiciousness. We have no doubt that the foregoing observations would remain paramount in the consideration of the named arbitrator, if and when that forum is approached. Being of the view that, for the foregoing reasons, constitutional jurisdiction could not adequately be invoked, we had dismissed this petition on 24.4.1990 and with it Misc. 868/90. We have now recorded the reasons for such dismissal. (MBC) Petition dismissed.

PLJ 1990 Karachi 405 PLJ 1990 Karachi 405 Present: SALEEM AKIITAR, J MUHAMMAD YASEEN and 4 others-Appellants versus ABDULLAH NIAZI-Rcspondent FRA No. 439 of 1988, dismissed on 17.6.1990 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15 read with Urban Immovable Property Tax Act, 1958, Section 14- Tenant—Ejectment of—Appeal against—Default—Ground of—Whether rent deposited by tenant with Department without notice, is adjustable—Question of—Section 14 of Act provides that prescribed officer may serve notice upon a tenant to make all future payments of rent to Department until arrears of taxes are satisfied—Protection to tenants who make payment in pursuance of such notice, is given—Any tenant who pays rent voluntarily to Department without any service of notice under Section 14 of Act, will be doing so at his own risk without any protection—Held: As appellants deposited rent from February 1985 to July 1986, with Excise and Taxation Department without any service of notice under Section 14, they are not entitled to any protection and have thus committed default in payment of rent—Appeal dismissed. Mr. Klialid M. Ishaq, Advocate for Appellants. [Pp.407&408]A Rao M. Shakir Naqishbandi, Advocate for Respondent. Date of hearing: 27.5.1990. judgment The respondent filed an application for ejectment against the appellants on grounds that they have defaulted in payment of rent from August 1984, impaired material value and utility of the premises by making unauthorised construction, causing nuisance to the tenants and that the premises is required in good faith for personal use. The appellants denied the allegations and pleaded that the premises was let out to previous tenants who were not paying rent to the respondent but were depositing the same in Court due to dispute between them. The respondent approached the appellants requesting that if they got the premises vacated the same will be let out to them. Accordingly the appellants got the premises vacated on payment of huge pugri and the respondent occupied the same. The tenancy was created by the respondent in favour of appellants on charging huge amount. The agreed rent was Rs. 1,000.00 per month for godpwns No. 1 to 5 and open space or compound. The appellants were allowed to construct two stores 25 feet high and to instal shutters on the gate ways. So far default is concerned it was denied and it was pleaded that as the respondent had failed to make payment of property tax, the Excise and Taxation Department; served notice under Rule 17 of the West Pakistan Urban Immovable Property Tax Rules in Form P.T. 14 and called upon the appellants to pay the rent to them. The appellants accordingly deposited rent with them. The appellants also tendered rent to respondent which he refused to accept and therefore it was remitted by money order which was refused. The learned Controller by the impugned order allowed the ejectment application only on the ground that the appellants have committed default in payment of rent. On all other issues the finding was in the negative. Mr. Mushtaq Memon the learned counsel for the appellants has contended that although in application the allegation was that rent was not paid from August 1984 in his affidavit in evidence the respondent has stated that default was from August 1985. Therefore the question is whether any default has been made from August 1985. So far payment position is concerned it is reflected from the statement submitted by the learned counsel for the appellants which has not been disputed by the learned counsel for the respondent. The same is reproduced as follows which is based on the documents produced in Court: 1. 01.02.79 Feb.79 to Jan.80 Rs.12,000/- 2. 08.12.79 Feb.80 to Jan.81 Rs.12,000/- 3. 28.05.80 Feb.81 Rs. 1,000/- 4. 31.01.81 Mar.81 Rs. l.OOO/- 5. 11.02.81 April.81 to Sept.81 Rs. 6,000/- 6. 05.10.81 Oct.81 to March.82 Rs. 6,000./- 7. 31.03.82 April.82 to June.82 Rs. 3,075/- 8. 11.08.82 July.82 to Dec.82 Rs. 6,925/- 9. 02.02.83 Jan.83 to March.83 Rs. 3,000/- 10. 19.03.83 April.83 to Sept.83 Rs. 6,000/- 11. 05.10.83 Oct.83 to Nov.83 Rs. 2,000/- 12. 30.11.83 Dec.83 to July.84 Rs. 8.000/- 13. 13.06.84 Aug.84 to Jan.85. Rs. 6,000/- 14. 06.02.85 Feb.85 to June.86 Rs. 5,000/- 15. 02.08.85 July.85 to Feb.86 Rs. 8,243/- 16. 26.08.86 March.86 to Part Rs.11,701/- of Feb.87 The dispute seems to be in respect of items No.14 and 15. According to the learned counsel for the appellants these amounts were paid to the Excise and Taxation Department which were adjusted towards the arrears of tax. The learned counsel for the appellants has further contended that it has been a practice and he respondent had allowed the appellants to pay the amount of tax and adjusted it in rent. It is an admitted position that the amounts of Rs.6,000/-, Rs.5,000/- and 8,243 were paid to the Excise and Taxation Department but the appellants have not been able to produce any notice under Section 14 of the West Pakistan Urban Immovable Property Tax Act 1958 calling upon the appellants to deposit the rent. The learned counsel for the respondent has contended that last payment of Rs. 8,243.00 was paid on 26.8.1985 representing the rent for the month of July 1985 to February, 1986. This amount was paid after the ejectment case had been filed on 22.8.1986. From the evidence on record the admitted position is that rent from February 1985 to February 1986 was not paid to the respondent but it was deposited with the Excise and Taxation Department. Although it has been alleged that the appellants deposited in pursuance of demand made by the Department no notice to this effect has been produced by the appellants nor any witness has been examined from the department to produce the record to establish that notice of demand under Section 14 was issued to the appellants and in pursuance thereof they have deposited the rent. Therefore the entire defence rests on interpretation of Section 14 of Urban Immovable Property Tax Act. If the rent was deposited with the Department in pursuance of a notice issued under this section the appellants have a complete defence. Section 14 reads as follows:- 'S.14. Where the tax due from any person on account of any building or land is in arrears, it shall be lawful for the prescribed aulhority to serve upon any person paying rent in respect of that building or land, or any part thereof, to the person from whom the arrears are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent (whether the same have already accrued due or not) by the person paying the rent to be made direct to the prescribed authority until such arrears shall have been duly paid, and such notice shall operate to transfer to the prescribed authority the right to recover, receive and give a discharge for such rent. If the person paying rent wilfully fails or neglects to comply with the notice aforementioned, the prescribed authority may, after giving him an opportunity of being heard, proceed against him as it would have proceeded under the provisions of this Act against the owner of the building or land in respect of which the tax is in According to this provision if any tax is due from any person on account of any building or land the prescribed Officer may serve a notice upon a tenant of the said building or land stating the amount of arrears of taxes and calling upon him to make all future payment of rent whether accrued or not to the prescribed authority until the arrears of taxes are satisfied. Protection has been given to such tenants who make payment in pursuance of such notice and such notice confers on the Department the right to recover receive and give discharge for such rent. It further imposes penalty in case of default in complying with the notice. Therefore service of notice is the initiating point for granting protection and discharge from liability. Unless a notice has been served by the Department on the tenant the prescribed aulhority can not have any right to recover receive or give discharge for rent paid to it. Consequently any tenant who pays the rent voluntarily and without any service of notice under Section 14, will be doing so at his own risk without any protection afforded under Section 14. The protection afforded to a tenant for payment of rent to the Department flows from service of notice which calls upon the tenant to deposit rent with the department till the satisfaction of the taxes. In the absence of any notice under Section 14 no tenant can claim protection. If a tenant is allowed to deposit rent voluntarily then it is bound to create great hardship to the landlords as a dishonest tenant may merely to harass the landlords start depositing rent with the Excise and Taxation Department without any demand being made and claim adjustment in rent. The appellants had not paid the rent to the respondent from February 1985 to July 1986 on the plea that it was deposited with the Excise and Taxation Department. As the appellants deposited it with the Excise and Taxation Department without any service of notice under section 14 they are not entitled to any protection and have thus committed default in payment of rent. The appeal is therefore dismissed. The appellants are allowed six months time to vacate and hand over vacant possession to the respondent. (MBC) Appeal dismissed.

PLJ 1990 Karachi 408 PLJ 1990 Karachi 408 Present: TANZILURREHMAN, J Syed ISRAR ALI-Applicant versus Mst. AHMED! BEGUM and another-Rcspondents • Civil Revision No. 135 of 1990, dismissed on 20.5.1990 (i) Limitation Act, 1908 (IX of 1908)-- —Art. 22-Damages-Suit for-Limitation for-Whether suit of applicant was time-barred—Question of—Complaint, on basis of which suit for damages was filed, was not decided on merits—Suit for damages was filed beyond one year's period as prescribed under Art. 22 of Limitation Act—Held: Suit filed by applicant was itself not maintainable as it was barred by limitation—Revision dismissed. [P.411]B,C&D (ii) Words & Phrases-- —Malicious prosecution-Term of-Definition of-A malicious prosecution briefly defined is one that begun in malice, without probable cause to believe it can succeed and that finally ends in failure. [P.410JA AIR 1946 All. 204, Black's Law Dictionary, Mehrotra's Law of Defamation, Malicious Prosecution, 3rd Edition P. 323 and Clerk and Lindsel on Torts, 9th Edition, Page 662 ref. Syed Sen-war All, Advocate for Applicant. Respondents: Not represented. Date of hearing: 20.5.1990. judgment This is a revision application under Section 115 C.P.C. 2. The brief facts giving rise to the above revision, are that the applicant was married with respondent No.l (Mst. Ahmedi Begum daughter of S.M.A. Bukhari, respondent No.2) on 6th June, 1975. Respondent No.l, as alleged, stayed with the applicant for a short period of about two months whereafter she went to the house of her parents and did not return to the applicant. As staled in the memo of revision, respondent No.l obtained divorce through Court, which decree was also confirmed in 1978. 3. On 21.11.1975 respondent No.l in collusion with respondent No.2 as alleged, filed a criminal complaint against the applicant in the Court of XI Additional City Magistrate, Karachi under Sections 4 &5 of the West Pakistan Dowery (Prohibition on Display) Act, 1967 (Act XVI of 1967) read with Section 403 P.P.C. The learned Magistrate took cognizance of the said complaint and a case was registered against the applicant under Sections 4 & 5 of the said Dowry Act. It appears that another case was filed by the applicant's father against the respondents under Section 379 P.P.C., alleging that the respondents had committed theft of ornaments and clothes etc. Both the.cases were proceeding before the same learned Magistrate. 4. On 13.12.1978 the respondents filed an application for withdrawal of the complaint. The learned Magistrate dismissed the said complaint as withdrawn and the applicant was acquitted. The other case filed by the applicant's father appears to have also been dismissed on the same day by the learned Magistrate. 5. The applicant on 17.12.1979 filed a suit for damages, praying for the following rcliels:- (a) 'Rs.23.500/- as general damages indicated above. (b) Rs.1,400/- as special damages indicated above. (c) Cost of the suit and interest at 12% p.a. from date of suit to that of payment of above ornaments claimed." The said sui.t was dismissed by the learned llnd Senior Civil Judge, Karachi by his judgment and decree on 10.12.1986. The appeal filed by the applicant before the IVth Addl. District Judge, South, Karachi was also dismissed by his judgment dated 21.3.1990 against which the applicant has filed the above revision. 6. Mr. Sycd Sarwar Ali, learned counsel for the applicant submits that the judgment of the learned trial Court suffers from an illegality in as much as it is \iolativc of the provision of Order 20, Rule 4(2), CPC, as the learned trial Court has failed to decide all the "issues. This point was also agitated before the learned Additional District Judge, who seems to have dis-agrccd with the submission of the learned counsel. " ! . The trial Court had framed a number of issues which for the sake of convenience are reproduced as under:- 1. "Whether the plaintiff was maliciously prosecuted? 2. Whether the plaintiff suffered damages as alleged? 3. What extent each defendant is liable? 4. What should be the decree?" The learned Judge discussed in detail issue No.l, which seems to be the basic issue and gave his finding in the negative, holding that "in my opinion the plaintiff has failed to prove that the complaint filed by defendant No.l against the plaintiff was with the intention of malicious prosecution. "In view of the clear finding on issue No.l there was no need for recording separate findings on the remaining issues, and, therefore, no exception can be taken on this ground. 8. Learned counsel further submits that the learned Courts below have misread the evidence and the finding on issue No.l is wrong, and has been given in disregard of the evidence. Reliance is placed by the counsel on Abdul Razzak vs. Abdul Rmif & others (PLD 1986 Karachi 476) which refers to a case reported in PLD 1970 Karachi 344, wherein "it was observed that in an action for malicious prosecution the plaintiff is under the onus to show that:- (a) he was prosecuted by the defendant on a criminal charge; (ft) the prosecution terminated in plaintiffs favour; (c) the prosecution was malicious; and (d) the prosecution was without reasonable and probable cause." The point of malicious prosecution requires examination in some detail: In Babu Sitmat Pmsad vs. Ram Samp Saxt/y, (A.I.R. 1946 All 204) a Division Bench of the Allahabad High Court observed: "Malice means the presence of some improper and wrongful motive that is to say, some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty." In Black's Law Dictionary, malicious prosecution is stated to be: "A judicial proceeding instituted against a person out of the prosecutor's malice and ill-will, with the intention of injuring him, without probable cause to sustain it, the process and proceedings being regular and formal, but not justified by the facts. For this injury an action on the case lies, called action of malicious prosecution." As staled in Mehrotra's Law of Defamation and Malicious Prosecution, 3rd Edition p. 323:- "Malicious prosecution is a tort, the liability of which consists in improperly instituting unsuccessful criminal proceedings for an improper purpose and without reasonable and probable cause. An action for damages can be maintained for the abuse of such legal process." A malicious prosecution may thus be briefly defined as one that is begun in malice, without probable cause to believe it can succeed, and that finally ends in failure. The law of malicious prosecution seems to be settled as stated in Clerk and Lindsell on Torts 9th Ed., at page 662: "It is obviously a grievance that an individual should be harassed by legal proceedings, improperly instituted against him. If there is no foundation for them no doubt they will not ultimately succeed, but during their progress they may cause great injury. It is the right of everyone to put the law in motion' it he docs so with the honest intention of protecting his own or the public interest, or if circumstances are such, be his motives what they may, as to render it probable piima facie that the law is on his side. But it is an abuse of that right to proceed maliciously, and without reasonable and probable cause for anticipating success. Such an abuse may of necessity by injurious, as involving damage to character, or it may in any particular case bring about damage to person or property." 9. Applying the above principle to the instant case it is noticed that the application for withdrawal of the complaint Ex.30, which has been referred to by the learned trial Court in his judgment, shows that the complaint was withdrawn by respondent as the parties had agreed to pursue their remedy in Civil Court. The complaint, was not decided on merits. It cannot, therefore, be concluded by the B events that have happened in the criminal Court that the complaint was false or malicious. In fact, the case of the father of the applicant (Syed Sarwar Ali, Advocate) pending in the same Court against respondent No. 1 was also dismissed as withdrawn with the consent of both the parties. In result, both the cases were eventually withdrawn. 10. As a further event, subsequent to the withdrawal of the said complaint, respondent No. 1 filed a suit for recovery of her dowery in this Court, which has been decreed in her favour for Rs. 40,000/- as also referred to by the learned Additional District Judge, in his aforementioned judgment. 11. It is also noticeable that the suit for damages filed by the applicant was itself not maintainable as it was barred by limitation. Admittedly this complaint was dismissed as withdrawn and the appellant was acquitted on 13.12.1978. The suit was filed on 17.12.1979, beyond one year's period as prescribed by Article 22 of the Limitation Act, 1908. 12. The revision application has no merits and is dismissed in limine. CMAm No. 484/90 is also dismissed as infructuous. ' 13. Before parting with the case, I would like to observe that the suit filed by the applicant furnishes an example of the mis-use of the concession granted by the law that no Court fees will be payable on suit involving amount not exceeding Rs. 25,000/- (MBC) Revision dismissed.

PLJ 1990 Karachi 411 PLJ 1990 Karachi 411 Present: SALEEM AK1ITAR, J DESIGN GROUP OF PAKISTAN, KARACHI-Plaintiff Versus CLIFTON CANTONMENT BOARD, KARACHl-Defendant C.M.A. No. 3413 of 1988 in Suit No. 396 of 1987, accepted on 31.5.1990 (i) Arbitration Act, 1940 (X of 1940)- = - —-S. 8-Solc arbitrator-Award by-Setting aside of-Whether dispute cannot be referred to arbitration again—Question of—Contention that after award was made by Sole Arbitrator, he has become fiinctits offico and cannot act as such- So long reference is not superseded, he can be re-appointed as arbitrator provided terms of agreement permit it—To supersede reference is discretion of court—Held: Court has" not superseded reference and there is nothing in arbitration agreement to indicate that dispute cannot be referred to arbitration again. [Pp.414&415]A&B. AIR 1962 SC 1123 ref. (ii) Arbitration Act, 1940 (X of 1940)-- —Ss. 8&11—Sole arbitrator—Award by-Setting aside of—Whether application under Section 8 can be treated as application under Section 11 of Act- Question of--A perusal of application under Section 8 would show that it substantially means removal of arbitrator appointed by court and for appointment of another arbitrator—It is possible to treat such application as an application under Section 11 provided facts and circumstances justify it—Held: If a party has made out a case for removal of arbitrator as provided by Section 11, then even if application has been filed under Section 8, it may be treated as an application under Section 11—Held further: Arbitrator did not conduct proceedings in a proper and legal manner and proceeded in post haste merely to frustrate plaintiffs action for his removal. [Pp.415&416] (iii) Arbitration Act, 1940 (X of 1940)-- —Ss. 8, 11 & 20—Sole arbitrator—Award by—Setting aside of—Whether sole arbitrator named in arbitration agreement can be substituted—Question of— Court will normally not substitute arbitrator for agreed arbitrator but such provisions in Arbitration Act do not curtail power of court to remove arbitrator and appoint a fresh arbitrator-Held: If requirements of Section 11 are satisfied, court can remove such arbitrator and appoint an arbitrator of its choice. [P.415]C PLD 1966 Karachi 197, PLD 1976 Karachi 496 and AIR 1955 Rajesthan 30 ref. (iv) Arbitration Act, 1940 (X of 1940)-- —S. 11-Sole arbitrator-Award by-Setting aside of-Whcthcr matter may be referred to same sole arbitrator or to any other arbitrator—Question of—If any person has been named as an arbitrator (in arbitration agreement) but is disqualified to act as arbitrator or has misconducted in earlier proceeding, court can come to rescue of aggrieved party by appointing impartial arbitrator in his place—Learned Single Judge, while considering award, had taken note of misconduct of arbitrator-Misconduct is not of formal or technical nature-He has already prejudged issues and during proceeding, misconducted leaving no room for plaintiff to expect justice from him-Application accepted and fresh sole arbitrator appointed. [Pp.416&417]E&F 1913 A.C. 214 rcl. Mr. Bilal Klunvaja, Advocate for Plaintiff. Mr. Slwkccl Z. Lari, Advocate for Defendant. Date of hearing: 23.5.1990. judgment This is an application under Section 8(2) of the Arbitration Act 1940. It has been filed in the following circumslanccs:- The plaintiff was engaged by the defendant to provide consultancy services under the agreement which included an arbitration clause which reads as follows:- "That in the event of a dispute between the Cantonment Board and Consultant, the mailer shall be referred for arbitration lo ihe President, Clifton Canlonment whose decision in the disputed matter shall be final and binding upon both the parties of this contract". As the dispute arose between ihe parlies, ihe plainliff filed an applicalion under Section 20 of the Arbitration Act for filing ihe agreement in court and refer the dispute between the parlies lo llie sole arbitrator under the agreement. On 4.11.19X7 ihe application was granted and the dispute was referred to the President Clifton Cantonment Board in terms of Arbitration Act. As the Arbitrator did not enter upon reference the plainliff addressed a leller dated 9.12.1987 inviting his attention to the order of the Court and requested him to fix a dale for entering upon the reference in terms of the appointment order. It also requested for fixing a date for commencement of arbitration proceedings. As no reply was received the plaintiffs advocate issued a reminder on 2nd January, 1988. On 3.1.1988 the Canlonment Executive Officer, Clifton Cantonment addressed a letter to the plaintiffs advocate asking him to appear before the Presidenl Clifton Canlonment Board, in his office on 17.1.1988 in connection with the arbitration proceedings. Another letter daled 23.1.1988 was issued by the same Officer intimating that ihe Sole Arbitrator has fixed the date of hearing on 6.2.1988. On that dale the plainliff filed statement of claim. On 7.1.1988 the Canlonment Executive Officer addressed a leller lo ihe plainliff that on 6.2.1989 (?) when the date of hearing was fixed neither the plaintiff nor its advocate appeared till 11.00 A.M. and il was asked to submit the claim and document by 13.2.1988 and ihe nexi dale was fixed on 20.2.1988. This leller was replied by ihe advocate for the plaintill in which he objected lo the issuance of letters and directions by the Cantonment Executive Officer, and slated that the conditions in Karachi were abnormal on 6.2.1988 but Mr. Ka/mi was able to reach office at about 11.15 A.M. and ihe claim was filed on 6.2.1988. Thereafter, it seems that no dale of hearing was fixed by ihe arbitrator and the plaintiffs advocate addressed a letter dated 9.4.1VJSS thai atler 2()lh February no dale has been fixed and the matter should be proceeded without delay. As no reply seems to have been received another letter daled 23.4.1988 was addressed requesting to proceed with the arbitration. It was, however, further staled that if the plainliff do not hear from the arbitrator in thai regard within seven days il will be assumed that he was not ready lo proceed with the above mailer and necessary proceedings shall be instituted lo protect ihe inieresi of the plainliff. The plaintiffs advocate addressed a letter to the Executive Officer, Clifton Cantonment Board on 21.5.1988 asking him to agree in the appointment ol sole arbitrator names of which were proposed in the leller as ihe Sole Arbitrator appointed by the. Court on 4.11.1987 had neglected or refused to act as sole arbitrator. The defendant was called upon to concur on the appointment of any one of the proposed names who were retired Judges of the High Court. Immediately on receipt of this letter the Cantonment Executive Officer addressed a letter to the plaintiffs advocate to appear before the Arbitrator on 29.5.1988. The advocate for the plaintiff by letter dated 28.5.1988 refused to acknowledge this letter as it was written by the defendant's Officer and not by the Sole Arbitrator. The Sole Arbitrator then addressed a letter on 1.0.1988 intimating the plaintiff that it did not appear on 29.5.1988 and the defendant had filed its reply copy of which was endorsed and the matter was fixed on 5.6.1988 for arguments. The plaintiffs advocate replied to the Sole Arbitrator that the time for giving the award has expired on 16.5.1988 and inspite of several requests made by the plaintiff no proceedings had taken place and requested him to refrain from proceeding with the matter. He also stated that he has been instructed to move an application in the High Court for proper relief. The Sole Arbitrator, however, made an award on 5.6.1988 without serving notice under Section 14 of the Arbitration Act. The plaintiff filed application under Section 8 of the Arbitration Act on 11.6.1988 and the Sole Arbitrator filed the award in court on 16.6.1988 which was registered as Suit No.557/88. It may be pointed out that the plaintiff filed objection to the award and by judgment dated 31.8.1989 the award has been set aside. It was observed as follows: "I would refrain from superseding the Sole Arbitrator and appointing a subsitute, which question shall engage the attention of this Court in manner and form indicated above. The factors which have weighed in the setting aside of the Award may, also come up for consideration, if need be, in relation to such application." In this background the learned counsel for the plaintiff has contended that any other independent and impartial person may be appointed as the Sole Arbitrator. Mr. Shakcel Lari the learned counsel for the defendant has contended that after the award was made by the Sole Arbitrator, he has become/»/;c7»,s ofjlcio.. In this regard the learned counsel has referred to Juggilal Kamlapat and another Vs. General Fibre Dealers Ltd. AIR 1962 S.C. 1123, where it was held that: "We have already said that generally speaking, the arbitrator becomes funclus officio after he has given the award; but that does not in our opinion mean that in no circumstances can there be further arbitration proceedings where an award is set aside or that the &ame arbitrator can never have anything to do with the award with respect to the same dispute. Section 13(d), for example, gives power to the arbitrator to correct in an award any clerical mistake or error arising from any accidental slip or omission. Further S.16 gives power to the court to remit the award to the arbitrator for reconsideration. Therefore, when it is said thai the arbitrator is generally funclus officio after he has made the award, it only means that he cannot change that award in any matter of substance himself. But that does not take away the court's power to remit the award for reconsideration under S.16 or to refuse to supersede the reference even though the award is set aside leaving it to the parlies to take such further action under the arbitration agreement for further arbitration if it is possible so to do under the terms of a particular arbitration agreement." After the award has been made the arbitrator becomes functus officio, and can not act as such except as provided under Section 13(d) or if the award is remitted by Court to him under Section 16. So long reference is not superseded he can be reappoinled as arbitrator provided the terms of agreement permit it. It is within the discretion of the Court to supersede the reference or not when the Award is set aside. When reference is superseded the arbitration proceeding ceases to have effect but where reference is not superseded the arbitration agreement exists provided contrary intention is not spelt out from it. The court has ample power to appoint him as arbitrator or remove him and appoint another arbitrator in his place. While setting aside the award court had not superseded the reference and there is nothing in the arbitration agreement to indicate that the dispute can not be referred to arbitration again. Therefore the arbitration agreement is in force and the dispute between the parties can be referred to arbitration. Mr. Shakil Lari has contended that as the agreement provides a named arbitrator, the Court can not substitute another arbitrator. He has referred to M/s. Hafiz Abdul Aziz Vs. Alt Mohammad Abbullali & Co PLD 1966 Kar. 197 in which it was observed that under Section 8(1) (b) the Court can appoint an arbitrator or umpire when an arbitrator appointed by the parlies "neglects or refuses to act or is in-capable of acting or dies." It was further observed that this power and power under Section 20(4) "docs not empower the court to substitute the original agreement of the parlies by an entirely new agreement of its choice. "To the same effect is the observation in Inter trade Ltd. Karachi Vs. T.C.P. PLD 1976 Kar. 496. Reference was also made to Chief Engineer Building and Roads Jaipur and another Vs. Harbans Singh AIR 1955 Rajasthan 30 where it was held that The fact therefore that the arbitrator is mentioned by office also points to an intention not to replace him by some other arbitrator". The sum and substance of the aforestaled authorities is thai where in an arbitration agreement the arbitralor is mentioned by name or by office then the court will not substitute a new arbitrator in place of the agreed arbitralor. The Courl will normally not substilule arbitrator for the agreed arbitrator but such provisions in the Arbitration Act do not curtail the power of the Court to remove the arbitrator and appoint a fresh arbitrator. The Arbitration Acl provides for such a situation and if the requirements of'Section 11 are satisfied the Court can remove such arbitralor and appoint an arbitrator of its choice. The above authorities arc relevant where cases under Section 8 or 20(4) of Arbitration Act and not Section 11 are under consideration. Mr. Khawaja Bilal the learned counsel for ihe plaintiff has referred to Stale of Orissu Vs Modem Construction Co. AIR 1972 Orissa 219 and Murera Lai Vs Gopal Cliand 1973 Delhi 251 where il was observed lhal besides removal of arbitralor there may be cases in which it may be necessary lo remove the arbitrator under the inherent powers to uphold justice and fair play. Mr. Khawaja has contended that application under Seclion 8 may be Ircalcd as application under Seclion 11 of the Arbitration Act. A perusal of the application under Seclion 8 will show that it substanlially means removal of arbitralor appointed by the Court and appointment of another arbitrator. It is possible to treat an application under Section 8 to be an application under Section 11 provided the facts and circumstances justify it. If a parly has made out a case for removal of the arbitrator as provided by Section 11 then even if the application has been filed under Section 8 it may be treated as an application under Section 11. Such technicalities should not obstruct the course of justice. In this particular case the facts as narrated above will show that the sole arbitrator has neglected to proceed with the case. He did not conduct in a proper and legal manner and proceeded in post haste merely to frustrate the plaintiffs action for his removal and appointment of any other arbitrator. In spite of protest the sole arbitrator made the award after the date of expiry without any notice to ihc parties. In fact he did not call the parlies to lead any evidence which was necessary in the facts and circumstances of the case, and straight away made the award on the basis of the claim and counter claim and documents filed by the parties. This procedure was completely unwarranted and showed lack of respect for the provisions of law and principles governing the arbitration proceedings. Now the question arises whether the matter may be referred to the same sole arbitrator or to any other arbitrator. The parties have no doubt agreed to a named arbitrator by the office, but it was subject to the legislative provisions which empower the court to remove the named arbitrator. This implies that the court will enforce the agreement so long the named arbitrator is not disqualified to act as arbitrator or is not hit by the provisions of law which empower the court to remove him. In this regard reference can be made to Bristol Corporation V&.Aird (Jhon i& Co.) 1913 A.C. 214 where considering thequestion whether in the face of an arbitration clause the action/suit filed (by) a party should be stayed, it was observed at page 257: "it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing law of the land, and the law of the land, applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore, to say that when we refuse to stay action we are not carrying out the bargain between the parties does not fairly describe the position, we are carrying out the bargain between the parties because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced." This principle can be applied in cases where question arises whether a named arbitrator be allowed to proceed with the arbitration or not. Therefore, if any person has been named as an arbitrator but is disqualified to act as arbitrator orj has misconducted in earlier proceeding which is not of formal or technical in nature then inspite of the agreement to refer the matter to such a named arbitrator the court can come to the rescue of the aggrieved party by appointing impartial arbitrator in his place. Section 11 provides that on an application made by any party to reference the Court can remove an arbitrator or umpire who fails to make the award or has mis-conducted himself. The learned Single Judge while considering the award had taken note of the misconduct on the part of the Arbitrator. The misconduct is not formal or technical in nature. The conduct of the arbitrator has been such that the applicant can not expect justice from him. Both the learned counsel have stated that the same person is still the President of the defendant. Perhaps if some other person would have been the President of the defendant the question of appointing any other person as arbitrator would not have arisen. But the same arbitrator against whom misconduct has been established, it would not be proper to appoint him as sole arbitrator again. He has already prejudged the issues and during the proceeding misconducted leaving no room for the plaintiff to expect justice from him. Therefore, in these circumstances, I supersede the arbitrator and appoint Mr. Justice (Rid) Agha Ali Haider as the Sole Arbitrator in the matter. The office should send notice to the arbitrator on court motion. The award should be made within tour months from the date the learned Sole Arbitrator enters upon the reference. Tentatively the parties shall pay Rs.2.5,000.00 to the learned Sole Arbitrator in equal proportion. (MBC) Application accepted.

PLJ 1990 Karachi 417 PLJ 1990 Karachi 417 Present: SYED ABDUR REHUMAN, J PAN OCEAN ENTERPRISES (Pvt.) LTD-PlainlilT versus THAI RAYON COMPANY LTD. THAILAND and 5 others-Defendants C.M.A. No. 7001 of 1989, in Suit No. 1161 of 1989, allowed on 1.4.1990 Civil Procedure Code, 1908 (V on908)» —O. XXXIX Rr. l&2-Temporary injunction-Grant of-Prayer for- Dcfcndant No.l has not denied that Bills of Lading contained wrong statements of facts, particularly about dates of shipping, vessels in which goods were loaded and that there was trans-shipment—Contention that by making incorrect statements, no loss was caused to plaintiff and that since plaintiff had taken delivery of goods, therefore, he was not entitled to injunction restraining encashment of Letter of Credit—Plaintiff had taken delivery under protest-­ Plaintiff had right to take delivery of goods inspile of protest not only for inspection but even for minimising loss—Matter is to be decided on basis of fraud alleged to have been perpetrated by defendant in issuing bills of lading containing false dates-Held: Since defendants arc foreign companies with no assets in Pakistan, plaintiff will be left without remedy if they withdraw moncy- -Injunction granted. [Pp.420,422&423]A,B,C,D&E 1970 (1) Lloyd's Law Reports Page 53 and 1987 CLC 1533 distinguished. AIR 1974 Mysore 20 and 1928 Volume 2, K.B. 604 rcl. Halsbury's Laws of England Illrd Edition Para 297 rcf. Mr. Klialid Anwar, Advocate for Plaintiff. Mr. M.H. Kaz/ni, Advocate for Defendant No.l Mr. Muhammad Naccm, Advocate for Defendant No.l. Mr. Hamza Ali, Advocate for Defendant No.4 Dates of hearing: 26.2.1990, 6 and 7.3.1990. ORDER This is an application under Ordcr-39 Rules 1 and 2 read with Seclion-151 CPC. praying that Defendant No.1 and 6 be restrained from claiming payment under L.C. in question and Defendants No.4 and 5 from making any payment thereunder. Briefly stated the case of plaintiff company is that it is carrying on the business of import of various items into Pakistan. The plaintiff company had entered into an arrangement with Defendant No.l for the import of 'Viscose Rayon Staple Fibre'. For this purpose the local agent of Defendant No.l issued an Indent on 26.12.1988. The plaintiff then obtained Import Licence and opened L.C. through Habib Bank Liiniled,Dcfendant No.4, in favour of Defendant No.l. The said L.C. as amended was for U.S.S 329,037.83 for payment (in) 120 days after the dale of Bill of Lading (u U.S. $ 2.4387 per Kg. The total quantity of 'Viscose Rayon Staple Fibre' was 1,41,217.95 Kgs. Shipment was to be made not later than 31.7.1989 and the goods were to be laden on board the vessel and to be signed by authorised representative of carrier of Master. Part shipment was allowed, but trans-shipment was prohibited. The local agent of Defendant No.l informed the plaintiff that 94,027.2 Kgs. in 336 bales of fibre was shipped on 25.6.1989 by vessel 'Al-Munia/.a', while 2,23,485.8 Kgs. in 84 bales was shipped on 28.7.1989 by vessel 'S.S. Paithoon'. The plaintiff came to know that the above information as also the statement contained in the Bill of Lading that the fibre was laden on board the vessel 'Al-Muntaza' on 25.6.1989 and in vessel 'Paithoon' on 28.7.1989 were false and fraudulent and made with a view to defraud payment under the L.C. In respect of the first consignment there was another breach of L.C. in that the goods were trans-shipped. The goods are apparently dis-colourcd and defective. Hence neither Defendant No.l nor its banker Defendant No.3 was cnlilled to claim payment under the L.C. Hence this suit with a prayer for such a permanent injunction and/or compensation amounting to Rs.2 crores. Along with the suit an application for interim injunction is made as stated above. I have heard Mr. Khalid Anwar Advocate for the Plaintiffs and Mr. M.H.Kazmi Advocate for the Defendants. It was contended by Mr. Khalid Anwar that according to the Indent Anncxure- 'A' and L.C. Annexure- 'B', it was clearly agreed that the Bill of Lading should show that the goods were shipped on board before 30.6.1989 which date was subsequently extended upto 31.7.1989 and that the trans-shipment was prohibited. These conditions were to be enforced strictly as these were underlined at two places on these documents. Letter dated 1.7.1989 Annexure- 'F' sent by the Defendants' local agent showed that the first consignment was shipped on 25.6.1989, but Bill of Lading Annexure- 'F-l' showed that it was loaded from Bangkok in vessel 'Al-Muntaza' and was certified in Bill of Lading to be laden on board. The second consignment, according to the Bill of Lading Anncxure- 'G' was sent by vessel 's.s. Paithoon' from Bangkok and shipped on board on 28.7.1989. The above letter of Defendants' agent and the entries in the Bill of Lading were proved to be false from a telex of Lloyd' London Annexure- 'H', which has given a complete record of the movements of vessels 'Al-Muntaza' and 's.s. Paithoon'. Mr. M.H.Kazmi has not challegcd the correctness of this telex. According 16 Lloyd's, 'Al-Munta/,a' was in Hongkong on 25.6.1989 and it had never touched Bangkok. Vessel 's.s. Paithoon' was between Bombay and Madras on 28.7.1989. It was never in Bangkok. From the positions given in Lolyd's above telex it is quite clear that it was not possible for any one of these two vessels to be on the alleged ports of booking on the dales shown in the Bills of Lading. Hence both the Bills of Lading are false, incorrect and fraudulent documents. The Defendants were, therefore, not entitled to encash these L.Cs. In this connection Mr. Khalid Anwar relied upon the following, authorities: - (1) Articles- 3,10, 15, 26, 27 and 29 of the I.C.C. - 400. (2) A citation from Letters of Credit by Sarna, which requires strict compliance of date of shipping necessary. (3) A citation from Law and Practice of Letters of Credit by PARVIS and DARVAS which provides that strict conformity between the Bill of Lading and the Letter of Credit was necessary. (4) An English decision reported in 2. K.B. 605/611 in which it was held that accuracy of Bill of Lading was essential otherwise buyer can reject the goods. At page- 612 of the same ruling stress has been laid on the accuracy of Bill of Lading. In reply it was pointed out by Mr. M.H. Kazmi that the plaintiffs sole contention was that the Bill of Lading was wrongly dated and as the terms of Letter of Credit were not strictly followed as to the boarding on ship and the nontrans-shipment, therefore, the Letter of Credit cannot be encashed. Conceding that the violations were there, he submitted that the violations did not entitle the Plaintiff to reject the goods. In this connection he had referred to Article-1, D-l, 25-B and 29 of I.C.C.- 400. The fact that the name of the ship was wrong or th'at trans-shipment was done, were immaterial as the shipment was made within the period prescribed under the Letter of Credit. Apart from that, according to him, the most significant question for the purpose of injunction application was, whether the plaint ill. after having taken delivery of the goods, having full knowledge that the breach has been committed, is entitled to get an injunction for prohibiting the payment under the Letter of Credit. He pointed out that it was admitted that the plaintiff had taken delivery of the entire goods on 10.8.1989. They had endorsed its acceptance on the relevant Bill of Exchange in order to get the document to enable them to take delivery of the goods. From the letters of the Plaintiff dated 27.7.1989. 29.7.1989 and 24.9.1989 and clearing and Forwarding Agent's letters dated 31.7.1989 and 18.9.1989, it was quite clear that the Plaintiff had full knowledge of the wrong date of shipping and trans-shipment inspitc of which he took the delivery. Alter having taken delivery of the goods and after retaining them in his possession for more than 2 1/2 months, the plaintiff has filed this suit on 18.10.1989. Hence the plaintiff was not entitled to an injunction for restraining the payment by Habib Bank Ltd. under the irrevocable Letter of Credit referred to above. He submitted that the Bill of Exchange was signed by the plaintiff and he had thereby authorised the bank to make payment. Now he was precluded from complaining that the shipment was not proper or there was delect in the Bill of Lading. In this regard he placed reliance on (1917) I Lloyd's Report Page-53, which is a leading decision by Lord Denning wherein he has held that by taking up the documents and paying for them the buyers in his judgment were precluded afterwards from complaining of the late shipment. He also relied upon a Division Bench's decision of this Court in the case of Koh-c-Noor Trading tPvt.) Lid. vs. Mangnini Trading Co. (1987 CLC 1511) where it was held that in a case where the appellant had taken delivery of the goods from the carrier without any protest, the question whether the goods were despatched in accordance with the description, given in the Letter of Credit or there was any breach as to the quality, would be an issue at the trial. Under irrevocable Letter of Credit payment cannot be stopped on the ground that there was some breach on the part of the vendor as to the quality of goods. An irrevocable Letter of Credit is a negotiable document in commercial world, which is negotiated, inter-alia, inter-se between the banks anil therefore, the Court cannot lightly cause its dishonouring by one bank to another,'unless prima-fucie a sufficiently grave cause is shown. Finally it was argued that the Plaintiffs had not come with clean hands. They had suppressed'that they had filed two suits on identical grounds wherein this Court had declined to restrain the bank from making payment on the ground that the goods had already been received. 1 have given my thoughtful consideration to the contentions raised by the learned counsel lor both the parlies. Defendant No.l has not denied that the Bills of Lading contained wrong statements of facts, particularly about the dales of shipping, vessels in which the goods were loaded and that iherc was trans­ shipment. II these Bills ol Lading would have staled correct facts, the payment would not have been made by the Bank under ihe Letters of Credit, as ihc conditions in ihe Letters of Credit were not complied with by the Defendant No.l, while despatching the goods. The defence of Defendant No.l is two-fold. The firsl is that he has not caused any loss to the plaintiff by making incorrect statements in the Bills of Lading and thai these incorrect statements were made bonafidely and as a business practice, so that ihe bank may not refuse lo make payment under the Letters of Credit. Alternately it was argued that since the plaintiff had taken delivery of ihe goods, which were lying in a bonded ware-house al ihe Port of Karachi, therefore, he was not entitled lo seek an injunction restraining the encashment of Lei lei of Credit. In support of his contention Defendant No.l has placed reliance on a decision of Lord Denning reported in 1970 (1) Lloyd's Law Reports pagc-53. This decision of Lord Denning is distinguishable from the facts of the prcscnl case. Al page-56 it is slated as under:- "Thereirpon ihe buyers for ihe first time- This was in 1968- 3years after lite .shipment - claimed to reject on the ground of late shipment and also on the ground of the lal.se date in the Bill of Lading. The sellers made this answer to buyers: 'By your conduct you have waived any complaint on this ground.' They also said: 'Your claim to reject on these grounds ought to have been made within (> months and you are out of lime.'" While in the present case (lie goods were delivered by Karachi Port Trust to the plaintiff on IO.S.I989. The plaintiff had already protested to Habib Bank Ltd. by letter dated 27.7.19-S9, thai the Bill of Lading was fraudulent and defective. Similarly ihe delivery of ihe second shipment was taken on 10.10.1989 and the plaintiff" had lodged'a protest with Habib Bank Ltd. by letter dated 24.9.1989. Hence in the present case the plaintiff had immediately protested with the bank and had filed the suit without much loss of time and even before the encashment )f Letter of Credit. This is in effect a case of sale of goods and would be governed by the provisions of Section-41 of the Sale of Goods Act, which reads as undcr:- "41 (1) where goods are delivered to the buyer which he has not previously examined he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract." Reliance is also placed on the judgment in the case of Mysore State Cooperative Marketing Society Ltd. Vs. Ko Mating Gyi and Sons (A.l.R. 1974 Mysore 20). It was held in this case that C.I.F. contracts are commonly resorted to in international trade. In such contracts the cost of goods, insurance charges and freight have to be borne by the buyers. Payment is gcneially arranged through Letter of Credit issued by a banker at the instance of the buyer and the banker arranges payment to the seller on his producing the invoice, Bill of Lading and the insurance policy, but the banker does not act as agent of either the buyer or the seller and neither the delivery of invoice etc. nor the receipt of money by the seller amounts to delivery of goods to buyer. It was held that there is authority for the proposition that in C.LF. contract the purchaser is entitled to reject the goods as not being in accordance with the terms of contract notwithstanding that the property in the goods had passed to him by delivery of Bill of Lading, if he had no opportunity to inspect the goods before. In this ruling reference has also been made to paragraph-297 of Volume- 34 of Halsbury's Laws of England (Illrd Edition) which deals with C.I.F. contract which provides that "the buyer by acceptance of the documents does not thereby lose his right to reject the goods on actual delivery if the goods are not in accordance with the contract. The place of delivery is prima-facie the proper place for inspection," Reliance was also placed on the English case of James Finlay and Co. vs. .V.r. Kwik Hoo Tong (1928 Volume 2, K.B. 604). In this case it was held that the seller under a C.I.F. contract is bound to procure and tender to the buyer a Bill of Lading which should correctly state the date of shipment. In this English case the buyer had not only taken the delivery, but had sold away the goods. It was held as follows:- "In my judgment it is an implied condition of the contract that the bill of lading sought to be tendered shall be a true and accurate document and correctly state the date of shipment. Such a condition seems to me to be absolutely necessary to give to the transaction such business efficacy as the parties must have intended. It is on the fate of bills of lading that the buyer is called upon to pay the price if he has to pay cash against documents, or to make himself liable for the price if he has opened a credit or otherwise agreed to give his acceptance against documents, and it is on the fate of the bill of lading that he accepts the goods, so far as the essential fact of shipment date is concerned. He is indeed entitled to a reasonable time to inspect the goods after discharge from the ship, but he has as a rule no independent means of checking the accuracy of Ihe bill of lading date, at least in any reasonable time, or before he has so acted as to have accepted the goods. In any case the buyer is, I think, entitled to rely on the accuracy of the bill of lading date, and to regard the seller as impliedlv guaranteeing its accuracy, unless there are express terms in the contract to the contrary. If that were not so, the buyer would in most cases be left without any effective remedy in respect of most serious losses sustained by him through misdated bills of lading." The decision in Koh-e-Noor Trading Lid. vs. Mangrani Trading Co. (1987 C.L.C. 1533) is distinguishable from the present case, because the only ground given by the plaintiff in this case was that the goods which had been supplied were defective..It was specifically held that once it is proved that the banker knows that any demand for payment was already made or may be made thereafter, will clearly be fraudulent. Then in such an event the Letter of Credit cannot be encashed. It is settled law that in cases of breach of contract the innocent party has a right to take'such steps as would minimise the loss or damage. The plaintiff had a right to take delivery of the goods inspite of his protest not only for inspection, but even for minimising the loss. In the present case the Defendant No.l is seeking to confuse two completely independent legal issues. One is the question of the letter of credit. The second is the question of the delivery of goods. In law these are completely independent and separate concepts and governed by different considerations. This can be seen by reference to the provisions of the Uniform Customs, and Practice for Documentary Credits which admittedly applies in the present case. Articles 3 and 4 are absolutely clear and read as under:- "3. Credits, by their nature, are separate transactions from the sales or other contract on which they may be based and banks are in no way concerned with or bound by such contracts, even if any reference whatsoever to such contracts is included in the credit." "4. In credit operations all parties concerned deal in documents, and not in goods, services and/or other performances to which the documents may relate." Thus it can be seen that there are two separate legal aspects of the matter. On the one hand the question is whether or not the encashment of the letter of credit should be stayed. This matter is to be decided on the basis of the fraud alleged to be perpetrated by the Defendant in issuing bills of lading containing false dates. In this case there can be no doubt about the fact that the provisions of the letter of credit have been violated and accordingly it cannot be encashed. The second completely independent question is that of damages by reason of the supply of defective goods. However, the Defendants are seeking to confuse these two separate issues so as to obtain the encashment of the letter of credit which will then enable them to successfully evade compliance with the requirements of law. Since the Defendants are foreign companies with no assets in Pakistan, it necessarily follows that once they have successfully withdrawn the money from Pakistan the plaintiff will be left without any remedy. I am, therefore, of the clear view that the plaintiff has a prima-facie case. (Hence in the circumstances mentioned above, they are entitled to be granted gjsome interim relief of the nature, so as to ensure that, if a decree is passed in their ] favour, the same shall not be defeated. Hence I restrain the Defendants No.l and 6 from claiming payment under the Letter of Credit in question and Defendants No.4 and 5 from making any payment thereunder until and unless the Defendants No.l and 6 furnish bank guarantee equivalent to the amount of Letter of Credit with regard to any decree that may be passed in the suit. (MBC) Injunction granted.

PLJ 1990 Karachi 423 [Sukkur Bench] PLJ 1990 Karachi 423 [Sukkur Bench] Present: QAISER AHMAD HAMIDI, J Msi. PER VEEN AKHTAR AND 3 Others-Appellants. Versus SHAFIQUE AHMAD and another-Respondents. FRA No. 65 of 1989, dismissed on 29.5.1990. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 2(J)—Tenant—Ejectment of—Appeal against—Whether appellants are tenants—Question of—Tenant means any person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf-Admittedly father of respondent No. 2 was tenant of disputed premises-After his death tenancy devolved upon his heirs-Respondent No.2 agreed to increase rent at Rs. 70/- and executed such acknowledgment—Held: Temporary absence of respondent No.2 from Pakistan in connection with his employment, will not change his status as tenant nor it will make appellants as tenants during his life time-Held further: Appellants are not aggrieved persons and appeal filed by them is not competent—Appeal dismissed. [Pp.424&425]A B&C PLJ 1987 Karachi 36 and PLD 1983 Karachi 598 re/. . 1990 CLC 122 not relevant. Mr. A.M. Mobecn KJian, Advocate for Appellants. Mr. Abdul Qadir Shaikh, Advocate; for Respondent No. 1. Nemo for Respondent No. 2. Date of hearing: 11.3.1990. judgment The main question that has been raised in this appeal filed under Section 21 of the Sind Rented Premises Ordinance, 1979, relates to the interpretation of the term 'tenant' used in the Section 2(J) of the Sind Rented Premises Ordinance, 1979. 2. The respondent No.l is the owner/landlord of premises bearing C.S.No.C-221, Necm-ki-chari, Sukkur. Muhammad Ali, father of respondent No.2 was the tenant of respondent No.l, in respect of one room situated on the ground floor of the said premises at a monthly rent of Rs.30/-. The said Muhammad Ali died on 23.3.1983, leaving behind respondent No.2, as one of his sons. In the year 1984, the respondent No.l filed an application for ejectment against Qurban Ali, brother of respondent No.2, but withdrew the same after the said Qurban AH made statement that the disputed premises was in occupation of respondent No.2. On 31.10.1987 the respondent No.2 agreed to enhance rent from Rs.30/- P.M. to Rs.70/- P.M. and executed such acknowledgment in writing. The respondent No.2, however, failed to pay or tender rent. The respondent No.l also required the disputed premises for his own use and consequently on 5.6.1988 the respondent No.l filed an application for eviction against respondent No.2 on the aforesaid grounds in the Court of I-Senior Civil Judge and Rent Controller, Sukkur. The 1 respondent No.2 who was serving in Saudi Arabia during those days resisted the application for ejectment through his brother/attorney Bagh Ali. According to him the appellants who are his wife and children are in fact the tenants of the said premises. It was also pleaded on his behalf that appellant No.l was depositing the rent regularly in the office of Rent Controller, Sukkur within the meaning of Section 10 of the Sind Rented Premises Ordinance, 1979. The personal requirement of respondent No.l was also questioned. The parties went to trial on the following issues:- (/) Whether there is existence of relationship of landlord and tenant between the parties? (//) Whether the opponent has committed wilful default in the payment of rent? . (Hi) Whether disputed premises is required by the applicant for his personal onafide use and use of his children? (n>) What should the order be? 3. The respondent No.l examined himself (P.W-1), Mr. Maqbool Ahmed Awan Advocate (P.W-2), Shamshad Ali (P.W-3), and Sajjad Ahmed (P.W-4), while the respondent No.2 examined Mansoor Ahmed (D.W-1) and Bagh Ali (D.W-2). 4. On the assessment of vidence both oral as well as documentary, the learned Rent Controller decided all the issues against respondent No.2 and directed his ejectment from the demised premises within a period of 45 days. This order dated 28.6.1989 was not challenged by respondent No.2, but the same was questioned by his wife and children who claimed to be the 'tenants' of the demised premises. 5. I have heard MrA.M.Mobeen Khan, learned"counsel for appellants and r. Abdul Qadir Shaikh, learned counsel for respondent No.l. 6. Under Section 2(J) of the Sind Rented Premises Ordinance, 1979, the 'tenant' 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:- (/) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (//') heirs of the tenant in possession or occupation of the premises after the death of the tenant. 7. Admittedly Muhammad Ali father of respondent No.2 was the tenant of the disputed premises. After the death of said Muhammad Ali the tenancy devolved upon his heirs. Since the respondent No.l was not aware about the heirs of said Muhammad Ali actually in occupation of the disputed premises, he instituted ejectment proceedings against Qurban Ali, brother of rcspondnet No.2, who disclosed for the first time that respondent No.2 who was one of the sons of ate Muhammad Ali was in actual possession/occupation of the disputed premises. It was thereafter that the respondent No.l accepted respondent No.2 as tenant who in fact agreed to increase the rent at Rs.70/- P.M. and executed such acknowledgment. The stand taken by respondent No.l gels support from cases reported as Kamal Afreen V. Mansoor Muhammd Qureshi (PLD 1983 Karachi 598), and Ghullam Nabi V. Muhammad Sachal (P.L.J. 1987 Karachi 36). the temporary absence of respondent No.2 from Pakistan in connection with employment will not change his status of tenant nor it will make the appellants as "tenants" during his life time. The term "heirs" means all persons who are entit'cd to the properly of another under the law of inheritance, and, therefore, the appellants are not the legal heirs of late Muhammad Ali during the life time of respondent No.2. The respondent No.2 had in fact accepted this position. The acknowledgment executed by him is on record and both the altesting witnesses have proved the contents thereof. One of them, namely, Mr. Maqbool Ahmed Awan (P.W-2) is a practicing advocate and appears to be a respectable person, as an advocate is considered to be. The evidence to this effect conclusively establishes that respondent No.2 was the tenant of respondent No.l, and not the appellants. The appellants again kept quiet during the pendency of ejectment case before the Rent Controller, allhough they were fully aware of these proceedings. They came forward only when the respondent No.2 lost the case. They are, therefore, not 'aggrieved person' and the appeal filed by them is not competent. The word 'aggrieved' connotes legal grievance which refers to a person prejudicially affected. The 'aggrieved person' was in fact respondent No.2 who had preferred to remain behind the curtain. In such circumstances the observations made in the case of Muhammad Azeem Qureshi V. Hakim Syed Akhtar Irshad and 4 others, reported, in 1990 C.L.C 122, are not relevant. The present appeal is liable to be dismissed on this score alone. 8. The appeal was admitted on a simple point that the learned I-Scnior Civil Judge and Rent Controller, Sukkur lacked jurisdiction and consequently it was a case of total absence of jurisdiction. This case was transferred to II-Scnior Civil Judtie. and Rent Controller, Sukkur on administrative ground. The notification No.GAZ/VI-2.47(2), dated 30.3.1989, which is referred lo on behalf of appellants does not have retrospective effect and consequently the.II-Senior Civil Judge and Rent Controller, Sukkur was well within his powers to decide this case. 9. The appeal being incompetent is dismissed with no order as lo costs. Two. months' time is, however, allowed to appellants who are family members of C respondent No.2, the actual tenant, to vacate the demised premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi 425 PLJ 1990 Karachi 425 [Sukkar Bench] Present: qaiser ahmad hamid!, J Msl. SHAH JAHAN-Appcllant versus MUHAMMAD RAFIQUE-Respondcnt FRA No. 55 of 1989, dismissed on 29.5.1990. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 16(2)~Tenant~Ejectment of—Appeal against—Default—Ground of— Whether defence was rightly struck of-Question of-Fact of default is not disputed but it is pleaded that appellant, on account of her illness, was unable to deposit rent for March, 1989-Medical certificate is placed on file-Medical certificate is not conclusive proof of what Medical Officer has stated when admittedly he was not examined by appellant—Held: There was no convincing evidence on record to show that default occurred due to reasons beyond control of appellant-Appeal dismissed. [Pp.427,428&429]A,B,C&D PLD 1967 SC 530 and 1985 CLC 41 rel. PLD 1987 Karachi 173 and PLD 1987 Karachi 524 not followed. Mr. Abdul Fateh Malik, Advocate for Appellant. Mr. Sardar Klian Lashari, Advocate for Respondent. Date of hearing: 2.4.1990. judgment This appeal under Section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 28.5.1989, passed by I-Senior Civil Judge and Rent Controller, Jacobabad, by which he struck off the defence of the appellant, directing her to vacate the demised premises within six months. 2. The appellant is tenant of the respondent in respect of a residential premises situated on portion of C.S.No.714, Ward No.2, Jacobabad, at a monthly rent of Rs.200/-. On 29.9.1987, the respondent filed an application under Section 15 of the Sind Rented Premises Ordinance, 1979, seeking the ejectment of appellant on the ground of default in payment of rent. The appellant admitted the tenancy, but disputed the quantum of rent. She also denied to have committed default in payment of rent. On 17.12.1988 the learned Rent Controller passed the following order directing the appellant to deposit arrears of rent and monthly rent due at the rate of Rs.80./-'P.M:- "This application u/s 16(2) S.R.P.O. 1979, has been filed by learned advocate for applicant. Both advocates are present for applicant and opponent. Learned advocate for applicant states that the rate of rent is Rs.200/- and the opponent/tenant has not paid the same to the applicant/landlord. The learned advocate for the opponent states that tenancy is admitted, the quantum of rent and period of rent is denied. The learned advocate for opponent states that the rate of rent is Rs.80/- and they have not paid the rent from October, 1985. In view of the above, I order the opponent/tenant to deposit the rent at the rate of Rs.80/- from January, 1985 till November, 1988 amounting to Rs.3760/- within 30 days and should continue to deposit the future rent at the above rale till the disposal of this rent application. The applicant/landlord would not withdraw the rent for the period from January to September, 1985 till the disposal of the. R.A." 3. The appellant failed to deposit the rent for the month of March 1989, and consequently an application under Section 16(2) of the Sind Rented Premises Ordinance, 1979, was moved for striking off her defence. This application was controverted by the appellant mainly on the ground that the default in deposit of rent was not intentional, as due to illness she was prevented from depositing the rent in time. After hearing the parties, the learned Rent Controller struck off the defence of the appellant. This order dated 28.5.1989 is the subject matter of this appeal. 4. I have heard Mr. Abdul Fateh Malik, learned counsel for appellant and Mr. Sardar Khan Lashari, learned counsel for respondent. 5. The fact that the appellant committed default in deposit of rent for the month of March, 1989 by about one month is not in dispute. She, however, pleaded that on account of illness she was unable to do so. A medical certificate dated llth April, 1989 is placed on record to show that the appellant was ill from 29th March 1989 to 10th April 1989. The medical certificate is not the conclusive evidence to what the Medical Officer has staled. Admittedly the Medical Officer was not examined by the appellant and, therefore, there was not convincing evidence on record to show that the default of one month in deposit of monthly rent occurred due to reasons beyond the control of appellant. 6. The question of default in compliance with the order of deposit of arrears of rent and monthly rent due was examined by the Supreme Court in the case of Ghulam Muhammad Kiian Lundkhor V. Safdw—Ali, reported in PLD 1967 S.C. 530, and it was observed: "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon hirn a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell page 285, llth Edition). Applying this principle in the present case the only interpretation that can be given to the provisions of sub-section (6) of Section 13 of the Ordinance is that its words are mandatory and the Court has no further discretion left in the matter, for, the tenant cannot be entitled to more than what the meaning of the words clearly import. But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Courts have purported to do in cases of this nature is to determine the true scope and meaning of the word "default and to see whether such default has in fact been committed." 7. While interpreting the word "default" the Supreme Court further held:- "The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere noncompliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lighily to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle loo the word "default" should mean an act done in breach of a duty or in disregard of an order or direction." 8. The ratio of the above authority of iae Supreme Court, which is the leading judgment on this point, is that the default is purely a relative term just like negligence and il wouid embrace every failure by the defendant to perform her obligation unless prevented by superior force over which she has no control. 9. The case of Nazir Ahmed V. Halaram, reported in 1985 C.L.C.41, is again relevant in a situation like under consideration. The learned Judge after examining a chain of authorities of the Supreme Court was of the view that default of two days on the ground of serious illness in compliance of the order of Rent Controller must result in summary ejectment.At page 43 it was observed:- "The pith and substance of the authorities is that the tenant can enjoy the special protection offered to him in this special statute only if he strictly complies with the reciprocal obligations prescribed in the Act. The question of non-compliance of the tentative order has arisen in a number of cases in different situations and the view has consistently prevailed that the default in complying with this order is not condonable by the Rent Controller and any lapse on the part of the tenant should result in the penal consequences that are prescribed for its noncompliance in the section itself." 10. Mr .Abdul Fateh Malik, learned counsel for appellant has cited the cases of Muhammad Sarwar V. Mumtaz AH Chandani, reported in PLD 1987 Karachi 173, and Mst. Sitghra Begum and 10 others v. Aftab Ahmed, reported in PLD 1987 Karachi 524, in an attempt to show that default committed in the above circumstances could be termed as technical default and was condonable. With profound respect, I am unable to persuade myself to follow the view taken in the above authorities. The Supreme Court has consistently followed the view taken in Ghulam Muhammad Khan Lundkhor's case and any attempt to make any deviation from the course set by the Supreme Court must be discouraged. 11. No case for interference is made out and the appeal is dismissed with no order as to costs. Two months' time is, however, allowed to the appellant to vacate the demised premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi 429 [Sukkar Bench] PLJ 1990 Karachi 429 [Sukkar Bench] Present: QAISER AHMAD HAMIDI, J GHULAM WARIS-Appellant versus RIAZ AHMAD-Respondent FRA No. 49 of 1989, dismissed on 29.5.1990. (i) Sind Rented Premises Ordinance 1979 (XVII of 1979)-- —S. 15-Tenant-Ejectrnent of-Appeal against-Personal requirement-Ground of--Rcspondent, a practising advocate, has got no office and has been using one of rooms of his residential premises as office—Objection that respondent having got favourable order of ejectment of another tenant on this ground, has suppressed this fact from court-Held: Respondent disclosed this fact in his affidavk-in-evidence and has not concealed anything from court—Held further: Landlord need not disclose all properties rented out to tenants and all that he is required to show, was that lie needed shop of a particular tenant—Appeal dismissed. [P.432]D&E 1984 CLC 755 and 1988 SCMR 819 rel. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 18—Tenant—Ejectment of—Appeal against—Change of ownership- Intimation of—Disputed signature on A.D. receipt—Whether it was obligatory upon Rent Controller to refer disputed document to hand-writing expert- Question of—Held: Respondent having proved delivery of notice to appellant through best evidence, it was not necessary to have referred disputed A.D. receipt to hand-writing expert. [Pp.431&432]A&B PLD 1989 Karachi 102 and 1972 SCMR 251 ref. (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 18-Tenant-Ejectment of--Appeal against-Change of ownership- Intimation of—Proof of—Section 18 only speaks of intimation of change of ownership--Appellant was present before Rent Controller on 5.5.1988, therefore, he had intimation of this change on that date but he deposited arrears of rent after tentative order of deposit of rrears of rent was passed on 23.10.1988-Held: Even if it be accepted that notice under Section 18 was not served upon appellant, he was still a defaulter. [P.432]C MLR 1980 Civil (Lahore) 134 and 1987 CLC 336 rel. Mr. Kadir Bux Memon, Advocate for Appellant. Mr. Riaz Ahmad, Advocate Respondent in person. Dale of hearing: 6.5.1990. judgment The facts which constitute the background of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, are that the respondent is the owner/landlord of commercial premises bearing C.S.No.332, situated in Ward 'B', Rohri, having purchased the same on 27.4.1987 through a registered sale-deed, which was in occupation of the appellant as tenant. The respondent served the appellant with a notice under Section 18 of the Sind Rented Premises Ordinance, 1979, calling him to pay rent at the rate of Rs.600/- P.M. The respondent who is a practising advocate also required this premises for his office. On 19.4.1988, the respondent filed an application under Section 15 of the Sind Rented Premises Ordinance, 1979, in the Court of Senior Civil Judge and Rent Controller, Sukkur, seeking the .eviction of the appellant on the aforesaid grounds. The appellant resisted his ejetment by controverting the allegations based on facts. He disputed the receipt of notice sent to him under Section 18 of the Sind Rented Premises Ordinance, 1979. The bonafide personal need of the disputed premises by the respondent was also questioned on the ground that he has already got vacated a commercial premises from one Gopaldas on the said ground. The parties went to trial on the following issues:- (/) Whether the opponent has committed wilful default in the payment of ent? (h) Whether the disputed premises is required by the applicant for his personal bonafide use? (Hi) What should the order be? 2. The respondent examined himself (P.W-1), and Moor Ahmed Postman (P.W-2), while the appellant examined himself (D.W-2). 3. On the assessment of evidence, both oral as well as documentary the learned Rent Controller (Mr. Khair Muhammad Talpur) decided all the issues against the appellant directing his ejectment from the demised premises within a period of 60 days. This order dated 18.5.1989 is the subject matter of this appeal. 4. I have heard Mr. Kadir Bux Memon, learned counsel for the appellant and the respondent in person. I have also gone through the record of this case carefully. 5. Section 18 of the Sind Rented Premises Ordinance, 1979, which deals with change in ownership provides as follows:- "18. Change in ownership. Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritarice or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of sub-section (2) of S.15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant." 6. The respondent claims to have served the appellant with the requisite notice dated 15.11.1987 which is on record. The postal receipt and A.D. receipt are also placed on record. Noor Ahmed Postman (P.W-2) who was examined by the respondent has testified as follows:- "I am working as a postman at Post Office, Rohri. I had received receipt No.869 dated 25.11.1987 for delivery to the addressee opponent Ghulam Waris Siddiuqi. I delivered the aforesaid receipt to addressee Ghulam Waris who is personally known to me. I had delivered the aforesaid receipt to the addressee at the address mentioned in the receipt. Ghulam Waris had put his signature on the said receipt in my presence. I had delivered the registered letter to Ghulam Waris. I used to deliver the other letters to Ghulam Waris on the same address which is mentioned in the aforesaid receipt." He was subjected to a searching cross-examination which had for its aim to condemn him as a dishonest person, but nothing has been- brought out which would shake his veracity or establish that the appellant was not served with the registered envelope containing notice. 7. Mr.Kadir Bux Mcmon, learned counsel for the appellant has contended with force that since the receipt of notice was contested .by the appellant who had disowned his signature on A.D. receipt, it was obligatory upon the learned Rent Controller to have referred the disputed document to the hand-writing expert. Reliance is placed upon cases reported as Dr. Major Abdul Ahad KSian V. Muhainind Iqbal (PLD 1989 Karachi 102), and Gulzar Begiim V. Mst. Sairah Bibi (1972 S.C.M.R. 251). In the first cited authority the risk involved in comparison of signatures by a Court in the absence of counsel for parties was highlighted. In the latter case the postman was not examined to prove the service of notice and it was in this context that the Supreme Court while remanding the case made the following observations:- "After hearing the learned counsel for the parties we are satisfied that in the. present case, the appellant has rebutted the presumption by appearing in Court and by denying the service of the notice. In these circumstances, the trial Court should have got the signature of the appellant compared with the signature on the admitted documents. It should have further given an opportunity to the respondent to produce the postman to prove that the notice and the acknowledgment due was offered to the appellant for service and that she signed it. In view of this, the learned trial Court has failed to approach the matter in accordance with law and has fallen into an error. We would, therefore, set aside the order of the learned trial Court dated the 13th September, 1968 and remand the case back to him for decision of the case in the light of the above observation." It may be noted that there are different modes of proving signature or hand­ writing. The respondent has proved the delivery of notice to the appellant through the best evidence and in my humble view it was not necessary in this particular case to have referred the disputed A.D. receipt to the hand-writing expert. 8. Again Section 18 of the Sind Rented Premises Ordinance, 1979, only speaks of intimation of change of ownership. The application for ejectment is, therefore, a sufficient notice of this change. The record shows that the application for ejectment was tiled on 19.4.1988. The order-sheet dated 5.5.1988 shows that the appellant was present before the Rent Controller on this date. He had, therefore, intimation of this changed ownership on 5.5.1988. The tentative order f deposit of arrears of rent and monthly rent due was passed on 23.10.1988, and it was thereafter that the appellant deposited the arrears of rent in the name of the respondent. So even if it is accepted for 'arguments sake that notice under Section 18 of the Sind Rented Premises Ordinance, 1979, was not served upon the appellant, he was still a defaulter in view of the rule laid down in Aziz Begum v, aiyaz Butt, reported in NLR 1980 Civil (Lahore) 134, and Jsrar Ahmed v Abdul Aziz, reported in 1987 C.L.C. 336. 9. The deposit of rent in the office of Rent Controller in the name of wrong person will again not absolve the tenant from the liability and such deposit cannot be accepted as a valid tender within the meaning of Section H) of the Sind Rented Premises Ordinance, 1979. The issue of default in payment of rent was. therefore, rightly decided by the learned Rent Controller, 10. I now address myself to the issue of personal requirement. Admittedly the respondent is a practising advocate. He lias testified that he has got no office and has been using one of the room of his residential premises as office. This position is admitted by the appellant himself. He also admits that the present office of the respondent is small one in comparison to his shop which is much larger. The requirement of the respondent is assailed on two-fold grounds, firstly, that he has suppressed the order of eviction passed against his other tenant, namely, Gopaldas in his application for ejectment, and secondly, he has got a favourable order against Gopaldas on the same ground. The fact that the respondent got a favourable order of ejectment against his other tenant Gopaldas is not in dispute. The respondent has, however, disclosed this fact in his affidavitin-evidence and he has not concealed any fact from the Court. The observations made in Mst. Begum Jan v. Abdul Rasool, reported in 1984 CLC 755, and in unreported judgment of this Court dated 9.2.1987 in FRA No.72 of 1984 (Mst. Madina Bibi v. Taseer Ahmed and anoUier) are thus not attracted in this case. As observed in Qamamddin through the legal heirs v. Hakim Mahrnood Khan, reported in 1988 S.C.M.R. 819, the landlord need not disclose all properties which he rented out to other tenants and all that he was required to show to Court was that he needed the shop of a particular tenant. 11. No doubt the respondent has got a favourable order against his other tenant Gopaidas almost on the same ground, but upto this time he has not been able to get possession of the said premises. The appeal filed by Gopaldas is being disposed of today and he has still a remedy before the Supreme Court. The ratio of Sabu Mai v, Kikaram alias Hemadas, reported in 1973 S.C.M.R. 185, is therefore, not attracted to the facts of the present case. On all the above scores the appeal has got no merits and is dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi 433 PLJ 1990 Karachi 433 Present: TANZILUR REHMAX, J Mrs. CHIAN FONG WU-Appellant versus ABUBAKAR A. CHHAYA-Rcspondcnt F.R.A. No. 549 of 198^ accepted on 15.5.1990 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 17--Tenant-Ejectment of-Application for-Wilhdrawal of-Costs— Whether could be awarded-Question of--Section 17 provides that "where Controller is satisfied that any application made by landlord, for eviction of tenant, is frivolous or vaxatious, he may direct that compensation not exceeding 10 times the monthly rent, be paid by such landlord to tenant"—In this case, application moved by appellant for ejectment cannot be said to have been filed vaxatiously or was a frivolous one, simply on ground that she had entered into an agreement for sale with another party—Held: Rent Controller has no power to award cost to other party either by disposing off application on merits or dismissing same for non-prosecution or its restoration or on allowing withdrawal of ejectment application-Appeal accepted. [P.4341A&B Mr. NisarAlfy, Advocate for Appellant. Mr. Salim Karamallv, Advocate for Respondent. Date of hearing: '15.5. 1990. judgment This appeal arises out of an order dated 9th July, 1989, whereby the learned IVth Senior Civil Judge & Rent Controller, Karachi East allowed the withdrawal of the ejectment application No. 146/88 under order 23 rule 1 C.P.C. on awarding cost of Rs. 1000/- to the respondent. 2. Mr. Nisar Ally ; learned counsel for the appellant submits that the learned Rent Controller has no power to .award cost under the Rent Restriction Ordinance. Reliance is placed by him on 1980 CLC 1062, wherein on a matter under the West Pakistan (Urban) Rent Restriction Ordinance, 1959, a learned Single Judge of this Court (as he than was) observed that the appellate court i.e. the District Judge under the suid Ordinance had no power to grant cost for adjournment in a case under the said Ordinance II was thus held that the learned District Judue. consequently, possessed no jurisdiction to dismiss the appeal on the ground oi non-payment of cost. 3. Mr. Salim Karamally, learned counsellor the respondent submits that the order impugned in this Appeal has been passed by the learned Rent Controller under Section 17. which gives him such power. Reliance is placed by him on two ea«x namely. 1983 CLC 2994 and 1986 MLD 227. In the First case (1983 CLC rNV4) it has been held by a Division Bench of this Court that the learned Rent Controller under the Sind Rented Premises Ordinance, 1979, has no power to award adjournment on cost in proceeding under the Ordinance. In the other case (1 (

!S6 MLD 227), it was held that the learned Rent Controller has no power to award cost on restoration of an application for ejectment under Sind Rented Premises Ordinance, 1979, dismissed for non-prosecution. None of the rulings are applicable to the facts of the case before me. In the instant case, an application for ejectment was filed on 22nd February, 1988 under Section 14 of the Sind Rented Premises Ordinance, 1979 on the ground that the Appellant required the premises rented out to the respondent for her personal use, as she had become widow. This application for ejectment proceeded in normal course. Appellant's affidavit-in-evidence was filed and she was also crossexamined. The affidavit-in-evidence of the appellant's son was also filed, but he was not cross-examined though attended the Court several times as adjournments were sought by the respondent. Before the side of the appellant was closed, she made an application, stating therein that the applicant withdraws the case and it may be disposed off as withdrawn with no order as to costs. The learned counsel for the respondent claimed cost as the applicant had sold away the case premises. The learned Rent Controller after hearing the learned counsel for the parties allowed the withdrawal of the ejectment application subject to cost of Rs.1000/- to the respondent. The ground, which appears to have prevailed with the learned Rent Controller for awarding cost was the attending of the Court by the respondent for about 1 1/2 years and bearing the fees of his counsel and misc. charges. On reading the order as a whole, I am of the view, that the learned Rent Controller did not pass the above order under Section 17 of the Rent Ordinance as the basic ingredient of the provision of Section 17, which provides that "where the Controller is satisfied that any application made by a landlord for eviction of the tenant is frivolous or vexatious, he may direct that compensation not exceeding 10 times the monthly rent be paid by such landlord to the tenant" is missing. The provision of Section 17 empowers a Rent Controller to award compensation, and not cost, in case he comes to a conclusion that the application has been made by the landlord vexatiously or is otherwise frivolous. In the instant case, the application moved by the appellant for ejectment cannot be said to have been moved vexatiously or it was a frivolus one, simply on the ground that she had entered into an agreement for sale with another party in respect of which litigation was pending in this Court. I am, therefore, of the considered view that the learned Rent Controller has no power to award cost to the other party either by disposing off the application on merits or dismissing the same for non-prosecution or its restoration or on allowing withdrawal of the ejectment application. The only power, which vests in the Rent Controller, is that which has been specifically provided under Section 17, jas aforesaid, as proceedings are governed by the Rent Ordinance, which is a iSpecial Law. The appeal is, therefore, allowed with no order as to costs. (MBC) Appeal accepted.

PLJ 1990 Karachi 435 PLJ 1990 Karachi 435 Present: saleem aki itar, ,T MOHIUDDIN ANSARI-Appellant versus MUHAMMAD ARIF SIDDIQUI-Respondent F.R.A. No. 243 of 1988, dismissed on 27.5.1.990 (i) Resjudicatu- — Resjudicala— Principal of—Whether applicable in rent case—Question of—A perusal of averments made in applications filed by respondent will show that causes of action in both of them are completely diffcrent-Although there is no provision in Sind Rented Premises Ordinance, 1979, like Section 14 in West Pakistan Urban Rent Restriction Ordinance, 1959, yet principle of resjitdicata will apply for fair administration of justice and to bring finality to litigation- Held: However, principle of resjiidicata will not apply to facts of this case where causes of action in both applications arc different. [Pp.436&437]A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15(2)(vii)~Tenant—Ejectment of—Appeal against—Personal need—Ground of—Whether mere negotiation for sale with tenant, can be a circumstance which militates against bona fides of landlord-Question of-Contention that requirement is not bona fide as before ejectment case was filed, respondent was negotiating for sale of house but as negotiation failed, he tiled this case-­ Held: this plea was not taken in written statement and furthermore, mere negotiation for sale cannot be a circumstance which militates against bonafides of landlord-Held further: Respondent has succeeded in making out a case for his requirement and for requirement of his family members-Appeal dismissed. [Pp.441 &442|G (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- -—S. 15(2)(vii)"TenaiH~Ejcctmenl of-Appeal against-Personal use-Ground of—Whether, respondent proved his illness-Question of-Rcspondcnt has staled that he was a personnel from CSP serving abroad and sought retirement earlier because of his ill health—He suffered heart trouble and had consulted doctor who had treated him—This statement has been supported by affidavit of his son—Held: Even if medical reports are excluded, it is sufficiently established that respondent has suffered heart trouble. [P.438JD (iv> Sind Rented Premises Ordinance, 1979 (XVII of 1979)— S. 15(2)(%ii)—Tenant—Ejectment of—Appeal against—Personal need—Ground of—Whether words "his own occupation" can be interpreted to include occupation by his mother or lather—Question of—So far as a "Muslim" is concerned, he is obliged to maintain his parents—He cannot deny this obligation enjoined upon him by Holy Quran—Need of parents of a landlord \vill be need of landlord provided parents reside with him—Held: If respondent wants premises for his residence as well as for his mother, it is covered by term "his own use". [P.438,439&44I]E&F PLD 1988 Karachi 363 and 1989 PTD 1 rcl. (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- S. 19--Tenant--Ejcctment of--Appeal against--Production of evidence-­ Procedure for-Contention that illness pleaded by respondent has not been — proved as documents filed by him were not proved through doctor who issued them-Section 19 of Ordinance has prescribed a special procedure for recording evidence and proving rent case-It does not override or exclude applicability of Qanoon-e-Shahadat Order-If a party objects to admissibility of and proof of a document filed by other party, it is duty of party producing it to prove document as provided by Qanoon-e-Shahadat Order-Held: It would not be sufficient to file document with affidavit and then contend that documents have been proved. [P.437&438]C (vi) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-S. 19~Tenant-Ejectment of-Appeal against-Production of evidence- Procedure for-Initially, party which requires to produce evidence, should file affidavit of such witness through whom he wants to prove his case-Appellant did not produce any affidavit of witness sought to be summoned nor there is any averment in application or in affidavit-in-evidence-Appellant only wanted opinion of doctor on documents filed by respondent about his illness-This would neither prove nor disprove any fact at all-Held: Application for summoning witnesses by appellant was rightly rejected. [P.437JB Mr. Nizam Ahmad, Advocate for Appellant. Mr. S.A. Jalib Chaudhiy, Advocate for Respondent. Date of hearing: 27.5.1990. judgment In the year 1987 the respondent filed an ejectment application against the appellant on ground of his personal bonafide requirement and that of his son, daughter, wife and mother. This claim was denied by the appellant but the learned Controller on assessment of evidence granted ejectment application by the impugned order. Mr. Nizam Ahmad the learned counsel for the appellant has contended that the respondent had filed ejectment application earlier which was dismissed and therefore this application was barred by resjudicata. Mr S.A. Jalib Choudhry the learned counsel for the respondent has contended that in the absence of any such provision under the Sind Rent Premises Ordinance 1979 as the two applications were on different causes of action and different grounds, principle of resjudicata will not apply. The first application was filed in 1975 on ground of default, damage to the rented premises and bonafide requirement of the respondent's sons and daughters. In the present application filed by the appellant (?) in the year 1987, the respondent has sought ejectment on ground of his bonafide requirement as he has retired from service in United Nations and has come from abroad for permanent residence at Karachi. He is a heart patient and unable to climb upstair as he is occupying the first floor of the same house. As his wife is ill and mother is an old lady of 75 years it is difficult for them to climb upstair. Further he wants the ground floor premises for his residence and the residence of his wife and mother and daughter. On the first floor he wants (to) accommodate his son after his marriage which is held up. A perusal of the averments made in the applications filed by the respondent will show that the causes of action in both of them are completely different and therefore question of applying principle of resjudicata does not arise. Although there is no provision like Section 14 of West Pakistan Urban (Rent) Restriction Ordinance in Sind Rented Premises Ordinance yet the principle of resjudicata will apply for fair administration of justice and to bring finality to litigation. No party can be allowed to litigate twice on the same cause of action if those disputes have been decided by a Court of competent jurisdiction. However this principle will not apply to the facts of the present case where causes of action in both the applications are different. Mr. Nizam Ahmad then contended that the appellant's evidence was illegally shut out by the learned Controller. It was pointed out that the respondent had filed documents with affidavit in evidence admissibility and proof of which were challenged before starting cross-examination. The learned Controller made a note that such objection regarding admissibility and proof of the documents shall be considered at the time of final hearing. The learned counsel contended that as no witness was produced to prove the medical certificates and reports, the appellant filed an application for summoning Dr. Hassan and also an Estate Broker to establish that the ground of illness pressed by the respondent and the documents produced by him are false and that respondent had been negotiating for ^ale of the disputed property to the appellant for Rs.40,00,000/- but as the transaction failed he filed ejectment application. This application was dismissed by the learned Controller on 28.11.1987. According to the learned counsel for the appellant by this order material evidence sought to be produced by the appellant has been shut out and therefore the order suffers for (?) infirmities and is liable to be set aside. The application for summoning the witnesses was moved by the learned counsel for the appellant at a stage when the respondent had closed his side. In the application and the affidavit no reason for summoning the witnesses had been given. Under Section 19 of Sind Rented Premises Ordinance 1979 procedure for proceeding with the rent cases has been provided. Section 19(4) provides that: "A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such party shall have the right to cross examine." Therefore initially the parly which requires to produce evidence should file affidavit of such witness through whom he wants to prove his case. The appellant did not produce any affidavit of witness sought to be summoned nor there is any 1 averment in the application or in the affidavit that these witnesses had refused to give their affidavit in evidence. Furthermore the plea sought to be proved by the B learned counsel through the Estate Broker was not pleaded in the written statement. So far the doelot i. 1 - concerned the appellant only wanted his opinion on the documents filed by the respondent about his illness. This would neither prove nor disprove any fan ai all. In these circumstances in my view the application for' summoning witnesse^ was rightly rejected. Coming to the mcr 's of ilu, case the learned counsel for the appellant I contended that illness pli aded by the respondent has not been proved as the documents filed by him were nut proved through the doctor which had issuedjthem. Mr. Jalib C'hudlity thi leatm;d counsel for the respondent contended that itj was not necessary to produce the doctor who had issued those documents as by producing them with ihc affidavit they stood proved, particularly as Sind Rented) Premises Ordinance while providing a special procedure for evidence does not require such method of proof. Section 19 has prescribed a special procedure for recording the evidence and proving the rent case. It does.not in any manner override or exclude the applicability of Qanoon-e-Shahdat Order which isu applicable to all proceedings before the Courts and prescribes a method for proving a particular document or fact. If a party objects to the admissibility and proof of a document filed by the other party, it is the duty of the party producing it to prove that document as provided by Qanoon-e-Shahadat Order. It would not be sufficient to file the document with the affidavit and then contend that the documents have been proved. If such a procedure is allowed then it will provide an open platform for producing forged and fictitious documents without any challenge. Such procedure was never intended by the Ordinance nor it will be permissible by any principle of law unless it is so specifically provided. We have now to see whether the respondent has proved his illness. He has stated that he was a personnel from the C.S.P. serving abroad and sought retirement earlier because of his ill health. In his evidence he has stated that he had suffered heart trouble and had consulted the doctor who had treated him. He has produced the electro-cardiogram taken out from time to time. According to his statement in one of ihe reports it has been indicated that he had suffered infaction. This statement has been supported by the affidavit produced by his son. D Therefore even if the medical reports are excluded from consideration, it is sufficiently established that the respondent has suffered heart trouble. He states that in this condition climbing up stairs will be harmful and therefore he requires the ground floor premises. The illness which has been alleged and sufficiently established is bound to be taken into consideration for his claim for the ground floor premises. An old man suffering from heart disease is bound to exhaust by climbing stairs. But this is not the only ground for ejectment as the respondent has pleaded that his wife is also ill and can not climb the first floor. So is the case with his mother also. Mr. Ni/am Ahmad the learned counsel for the appellant has contended that the term 'personal use' has been defined in Section 2(g) which does not cover the requirement of the mother. Section 2(g) reads as follows:- ''personal use' means the use of the premises by the owner thereof or his wife or husband son or daughter.' According to the learned counsel when the premises is required for personal use it will cover the use b\ the owner, his wife or husband son or daughter but will not include the mother. The cjectm'ent has been sought under Section 15(2) (vii) which reads as follows:-- "J5(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 I lie order, if he is satisfied that; (vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." It is significant ,to note that the term 'personal use' has not bcnn used in it. Therefore to import the definition of 'personal use' will not be relevant for the purposes of excluding ihe mother from Section 15(2)(i7/). The words used are 'his own occupation' or for the occupation or use of his spouse.' Therefore the question is whether the words 'his own occupation' can be interpreted to include occupation by mother and father. The need of a landlord for his own occupation is to be judged from his social, cultural, moral and legal obligations cast upon him. So far a 'Muslim' is concerned he is obliged to maintain his parents. He can not deny this obligation enjoined upon him by Holy Quran. A son is obliged to maintain and provide accommodation lo his parents particularly old parents. The need of the parents of a landlord will be the need of the landlord provided the parents reside with the landlord. In this regard reference can be made to Asif v. Raisa KJiatoon PLD 1988 Kar 363 where referring to Section 15(2)(w7) the following observation was made: 'It is true that the above clause does not mention any other close relation than the spouse and the children, the effect of the above omission would be that a landlord will not be entitled to apply for ejectment on the ground of personal requirement of any other relations than those mentioned in the above clause independently but if the other close relations have been living as members of the family, the personal requirement of the landlord or the landlady would include the provision for the above close relation. It is not uncommon that the married sons keep their parents with them. In my view, it cannot be urged that a married son is not entitled lo include in his personal requirement a provision for his parents. A distinction is to be drawn between relations mentioned in the above clause and the relations, who are not covered by the above clause. In the case of former a landlord may apply for ejectment on the ground of independent personal requirement of his spouse or for anyone of his children, but in the latter case the landlord cannot seek ejectment on the ground of independent personal requirement of any of his relations not covered by the above clause. However, a landlord's personal requirement may include the requirement of his any close relation, who has been residing with him as a member of his family. If any authority is needed reference to the case of Wall Muhammad v. Zainab Kliatoon, reported in 1983 CLC 321 and the case of Messrs .Tiger Wire Product Ltd. v. S. Abrar Hussain reported in 1983 SCMR 402 may be made." Reference can be made to the Commissioner of Income Tax Central Zone Karachi v. Mushtaq Ahmad 1989 PTD 1 where the question arose whether the term 'his own residence' will cover the residence and occupation by the parents of the owner. Speaking for the Bench I had observed as follows:- The learned counsel for the Department desires to restrict the meaning of the expression 'his own residence' to exclusively personal occupation and residence of the assessee. If this limited meaning is accepted then even the occupation and residence of assessee's wife and children will be excluded. The term 'his own residence' cannot be given a limited construction to restrict it to the person of the assessee only. It has to be given a liberal meaning to include members of the family like assessee's wile, children, parents and such dependent blood relations who are residing with him as his family members. A man cannot be expected to live in seclusion detached from his social, moral, legal and religious obligations nor can he be expected to completely exclude his family members from the enjoyment of his r property particularly when he is legally bound to maintain, provide shelter and abode to them. While interpreting the provision under consideration one cannot close his eyes to the realities of life and human and social aspects of our day to day life. Considering from this aspect one would be reluctant to give a limited and restricted interpretation to the term 'his own residence' to exclude husband, wife, children, parents and dependent blood relations living with the assessee. The meaning of the term 'his own residence' has also to be considered in the social, economic and religious background of the assessee. This is an era of renaissance of Islam and we would be failing in our duty if the question relating to personal and family life of a Muslim is not interpreted in the light of injunctions of Islam. Keeping this principle in view while interpreting the term 'his own residence' and 'family members' the legal, social and religious obligations of the assessee have to be given due weight. It is now well settled that the words 'own residence' will include the family members of the owner as well. Therefore, it has to be seen whether as in the present case the parents can be called family members and their residence in the house owned by their son can be treated as his own residence. The assessee is a Muslim and, therefore, the obligations which are enjoined upon him under the injunctions of Holy Our'an should be obeyed and followed by him. In this regard it may be mentioned that the Holy Quran enjoins a Muslim to be kind and respectful to his parents and also to maintain them. This is a message of universal application irrespective of caste, creed or religion. It is the duty of the son to provide shelter, abode, maintenance and comfort to his parents. They are members of his family and cannot be separated as a separate and distinct family unit. In this regard reference can be made to Muhammad Nawaz and four others v. Altaf Rasool and others PLD 1985 Karachi 353. This was a case under Fatal Accidents Act where question arose whether in the case of accidental death of a boy aged eight years the parents can claim compensation. Naimuddin, .1. (as he then was) repelling the contentions based on the judgment which had followed English cases that parents of a minor son cannot be termed to have suffered any damages and were not entitled to compensation, observed: "Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economic conditions in which it was professing, for in oriental or Muslim society service to or maintenance of parents by their children or vice versa is a must as it is an article of faith with every member of Muslim family. Here 1 may quote English translation of three verses from holy Our'an which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance: "The Lord hath decreed That ye worship none but Him, and that \v be kind to parents. Whether one or both of them attain old age in the life, say not to them a word of contempt, nor repel them, but address them in terms of honour.' (S.XVII-23). "And kind to his parents, and he was not overbearing or rebellious." (S.XIX-14) 'We have enjoined on man kindness to his parents. In pain did his mother bear him, and in pain did she give him birth. The carrying of the (child) to his weaning is (A period of) thirty months. At length, when he reaches the age of full strength and attains forty years, He says 'O my Lord grateful for Thy favour which Thou hast bestowed Upon me, and upon both my parents, and that I may work righteousness such as Thou mayest approve, and be gracious to me in my issue, truly have I turned to Thee and truly do I bow (To Thee) in Isium.' (S.XLVI-15) Further, it is common experience that in Muslim society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning.' The rule propounded by Islamic Law for maintenance of the parents may equally apply not only to Muslims but to the entire Universe as it is a rule ol justice and affords security to the old parents mostly those who may be dcpcmknt. In view of ilie above disct?ssion we are of the view that the term 'his own residence' will iiuliKk i ik- -residence and occupation of the house by the parcnlv " On the same reasoning requirement 'for residence of the mother who is residin with the landlord or is to reside \ith him will be covered .by Section ? -".her is not an old lady. It has been pointed th.i! she is KMtlmii with her daughter on the respondent h,'-! been abroad in service and But now as thv. Kspondenl has come back reside with his son. In om -s <cial and cultural background the sons are required 10 maintain their parents and iu i the daughters. Therefore in these circumstances 'if the respondent wants the"I'umises for his residence as well as for her (?) mother it is covered by the term 'his own use.' The respondent requires the premises for his daughter and for his son also. So far as the son is concerned admittedly at the lime of filing the ejectment application he was of a marriageable age and was to be married. The respondent wants to accommodate him on the first floor and he himself would reside with his mother wife and daughter on the ground floor. Mr. Ni/am Ahmad has contended that the son has been married and he is residing in an other house and has produced an additional affidavit. Firstly such an affidavit can not be entertained as evidence and secondly even the documents produced do not show that the house in which he is allegedly residing belongs to the respondent or his son. The respondent's son has filed has affidavit supporting him. The need of his son and daughter has been fully established. The learned counsel for the appellant contended that the requirement is not bonafide as before the ejectment case was filed the respondent was negotiating for sale of the house and had demanded Rs. 40 lacs but as the negotiation failed he filed this case. This plea was not taken in the written statement and furthermore mere negotiation for sale can not be a circumstance which militates against the bonafides of the landlord. The over all evidence produced by the respondent is— consistent and supported by the witnesses. I am therefore of the view that the respondent has succeeded in making out a case for his requirement and for the requirement of his family members enumerated above. The impugned order does not require any interference. The appeal is therefore dismissed. The appellant is granted four months time to handover vacant possession of the disputed premises to the respondent. (MBC) Appeal dismissed.

PLJ 1990 Karachi 442 PLJ 1990 Karachi 442 [Sukkur Bench] Present: qaiser ahmad hamidi, J GOPALDAS-Appellant versus RIAZ AHMAD QURESHI-Respondent F.R.A. No. 80 of 1987, dismissed on 29.5.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII «f 1979)-- —S. 15—Tenant—Ejectment of—Appeal against—Default—Ground of—Whether an agreement of sale entitles tenant not to pay rent-Question of-Even if it is accepted for arguments sake that an agreement of sale was in existence, still appellant was bound to pay rent—Held: Since appellant failed to pay rent from July 1984, finding of Rent Controller on issue ,of default is not open to exception. [P.445JA PLD 1986 Karachi 74 rel. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15-Tenant-Ejectment of-Agpeal against-Personal need-Ground of- Respondent is a practising advocate and he has testified that disputed premises s required by him for purpose of his office-Appellant has controverted this fact by stating that respondent owns number of properties-There is, however, nothing on. record to substantiate it-Held: Statement of respondent on issue of personal need, appears to be consistent and to some extent, it gets support from appellant himself—Appeal dismissed. [Pp.445&446]B,C&D 1973 SCMR 185 not relevant. Mr. Muhammad Hanif Mangi, Advocate for Appellant. Mr. Riaz Ahmad Qnreshi, Respondent (Advocate) in person. Date of hearing: 6.5.1990. judgment The material facts culminating in this appeal filed under Section 21 of the Sind Rented Premises Ordinance, 1979, briefly, are that premises bearing C.S.No. 969, Ward 'B', Shahi Bazar, Rohri is the property of Mst. Azra Qureshi, having urchased the same through registered sale-deed on 24.6.1984. The respondent who is the husband of said Mst. Azra Qureshi and landlord of the above premises served the appellant with a notice under Section 18 of the Sind Rent Premises Ordinance, 1979, calling upon him to pay the arrears of rent and monthly rent due at the rate of Rs. 140/-P.M. There was exchange of notices and it is the case of , the respondent that the appellant paid rent upto June 1984 in lump-sum and then defaulted in making payment. The respondent who is an advocate by profession also required the said premises for his office. On. 29.10.1985 the respondent filed an application under Section 15 of the Sind Rented Premises Ordinance, 1979, in the Court of Senior Civil Judge and Rent Controller, Sukkur, seeking the ejectment of the appellant on the aforesaid grounds. The appellant resisted his eviction. According to him the respondent had promised to sell the disputed premises to him after having received a sum of Rs. 7000/- in advance. The default in payment of rent and personal requirement of the respondent were also disputed. The parties went to trial on the following issues:— (/) Whether there exists relationship of landlord and tenant between the parties? (//') Whether opponent committed default in payment of rent since June 1984? •(Hi) Whether applicant requires the premises for his personal bonafide use in good faith? 2. The respondent tendered his evidence through affidavit-in-evidcnce (P.W-1), while the appellant tendered evidence through his affidavit-in-evidence (D.W-1), and those of Bhimandas (D.W-2), and Arjandas (D.W-3). 3. On the assessment of evidence both oral as well as documentary, the learned Rent Controller decided all the issues against the appellant and consequently directed his ejectment from the demised premises within a period of 60 days. This order dated 18.6.1987 is the subject matter of the present appeal. 4. I have heard Mr. Muhammad Hanif Mangi, learned counsel for appellant and the respondent in person. I have also gone through the record of this case carefully. 5. Admittedly the disputed premises belongs to Mst. Azra Qureshi wife of the respondent. The respondent claims to be the landlord of the premises and a landlord need not be the owner of the premises. Section 2(/) of the Sind Rented Premises Ordinance, 1979, defines 'landlord' in the following words:— "Landlord' means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises." The definition of 'landlord' is wide enough to include a person who is for the time being authorised to receive rent. The authorization need not be in writing. Admittedly the respondent is the husband of Mst. Azra Qureshi, the owner of the premises and there is nothing on record to even faintly suggest that he has not been authorised by his wife to collect rent. In Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqitb, reported in PLD 1976 Karachi 992, the definition of landlord was examined by M.A. Rashid J (as he then was), who was pleased to observe:-- "The learned counsel for the appellant has laid great stress on the point that the respondent-landlord has failed to prove his title over the property and has contended that admittedly the plot under the hut belongs to the Karachi Municipal Corporation and, therefore, the respondent-landlord does not have any title over the property and as such he is devoid of the character of a landlord. This argument flows from an erroneous assumption that a landlord has, of necessity, to be the owner of the premises in question. Section 2(c) declares a person to be the landlord who for the time being is entitled to receive rent. It does not insist that the condition of ownership of the building or rented land should be fulfilled before a person could be the landlord of the premises in dispute." 6. This position was not seriously disputed by the appellant himself. The contents of his affidavit-in-evidence are self explanatory. In these circumstances the case of Manzoor Ahmad . Nazir Ahmad Khan, reported in 1984 CLC 819 cited on behalf of appellant is not relevant. 7. The issue of default in payment of rent need not detain me long. The respondent as his own witness (P.W-1) has testified that the appellant has failed to pay rent to him from July 1984. This position is virtually admitted by the appellant, which is evident from the following extracts of his cross-examination:— "It is correct that I received the notices which were replied by me. It is correct that rent was not deposited after receipt of notice. It is neither paid to applicant nor it was sent through money orders" 8. In order to cover up the default the appellant raised number of pleas but evetually confined the same to the following:-- (/') That the respondent had accepted a sum of Rs. 7000/- from him on behalf of previous owner, viz Mst. Batool Begum, as advance of the sale consideration, but he backed out. (Para 2 of reply of notice dated 16.5.1985, Annexure"H". (/'/') That the respondent had accepted a sum of Rs. 7000/-from him on behalf of present owner, viz, Mst. Azra Qureshi. as advance of the sale consideration against a receipt, but resiled from his commitment (Para Nos. 6, 7 and 8 of the affidavit-in-evidence of Gopaldas). (Hi) That lhe arrears of rent could be adjusted out of Rs. 7000/- lying with the respondent (Para 3 of reply of notice dated 16.5.1985, Annexure 'H' (?)). <>. The -point al S.No.(/) was abandoned by the appellant in his affidavit-inevidcnce and consequently no further discussion is necessary. 10. The point al S.No. (//) is seriously agitated on behalf of appellant. Besides appellant Gopaldas (D.W-1), there is evidence of Bhimandas (D.W-2), and Arjandas (D.W-3) on record and they speak of execution of an undated receipt by respondent, the original of which was not placed on record. This aspect of the case was examined by the learned Rent Controller, who finally came to the following conclusion:— "As a Rent Controller I need not to go to in deep and sit over to oral agreement as a Civil Court because rights of the parties will be highly effected if a suit for specific performance is ever filed by the opponent. However from the face of the evidence it is clear that opponent has not been able to prove the execution of the receipt. Oral agreement requires strict oral evidence but there are fatal contradictions in the evidence. Opponent Gopaldas has stated in his affidavit vide para No. 7 that he paid Rs. 7000/- in presence of witnesses Arjandas and Muhammad Anis. Witness Muhammad Anis has not been examined. However Arjandas has been examined but in cross he denied the presence of Muhammad Anis. "Amount was paid 5 years back. None was present there. "In addition to it opponent.was not able to give the time and day when he paid the amount. It is also strange that receipt does not bear the date, and signatures of the witnesses. After the denial of the signature of the applicant all this evidence became fatal and made to say that there was no such oral agreement." I fully endorse the view taken by the learned Rent Controller. 11. round 16 of the memorandum of this appeal further shows that the appellant has filed a suit for specific performance of contract against the respondent. In this view of the matter, the plea of adjustment raised at S.No. (Hi) could not be available to appellant. Even otherwise both these pleas are destructive to each other. 12. The effect of agreement of sale was examined in KJiwaja Ammar Hussain v. Muhammad Shabbimddin Khan, reported in PLD 1986 Karachi 74, and it was held that such contract would not create any interest in or charge on such property and the tenant of premises would continue to be tenant unless and until relationship was determined by agreement, by decree of Court or by operation of law. So even if it is accepted for arguments sake that an agreement of sale was in existence, still the appellant was bound to pay rent. Since the appellant failed to pay rent from July 1984, the finding of learned Rent Controller on issue No. 2 is not open to exception. 13. The respondent is a practising advocate. He has testified that the disputed premises is required by him for the purpose of his office. The appellant has controverted this fact by stating that the respondent owns number of properties including a cinema house. There is, however, nothing on record to substantiate it. The admissions made by the appellant in this behalf are relevant and are reproduced below to understand the correct position. "I do not know where is the office of Mr. Riaz. I cannot say whether it is' in a room of the residential house. I have seen the house of Riaz. I do not know whether Riaz has some other shop. I do not know whether Mr. Riaz requires the premises for his personal bonafide use to run the office. It is correct that the applicant is the advocate." The statement of respondent on this issue appears to be consistent and to some extent it gets support from the appellant himself. The case of Sabu Mai v. \Kikaram alias Hemandas, reported in 1973 S.C.M.R. 185, is, therefore, not I relevant. 14. A point which was touched upon by learned counsel for appellant during the arguments may now be dealt with. Admittedly Mst. Azra Qureshi wife of respondent has expired during the pendency of this appeal. An appellate Court can take note of subsequent events that might occur during the pendency of the matter provided no prejudice is caused to the other side. The status of respondent as a landlord is, however, not effected due to the death of his wife. On the other hand he now becomes a co-owner. The death of Mst. Azra Qureshi is, therefore, not going to effect the merits of this case. 15. Having regard to the above factual and legal position, I find no force in this appeal which is accordingly dismissed with no order as to costs. Two months' time is, however allowed to appellant to vacate the demised premises. (MBC) Appeal dismissed.

PLJ 1990 Karachi 446 PLJ 1990 Karachi 446 [Sukkur Bench] Present: QAISER AHMAD HAMIDI, J ASMAT ALI KHAN and 5 others-Appellants versus MANZOOR AHMAD and another-Respondents Civil Misc. Appeal No. 4 of 1988, partly allowed on 29.5.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XXXIX Rr. 1&2—Temporary injunction—Grant of—Prayer for—Principle for grant of injunction—In order to find out whether plaintiffs have got aprima facie case for grant of interim injunction, courts are not expected to go into details to extent mentioned in para 5 of this judgment-Held: At this stage, High Court cannot enter into niceties nor into details-Held further: Order by which appellants were restrained from interfering with possession of respondents on suit land, cannot be sustained—Appeal partly allowed and status quo ordered to be maintained. [Pp.448&449]A,B&C PLD 1983 Karachi 387 re/. Mr. M.A. Rashid, Advocate for Appellants. Mr. Haji Shah Nawaz Chachai; Advocate for Respondents. Date of hearing: 27.2.1990. judgment It is desirable to state briefly certain facts giving rise to this litigation. 2. Asmat AH Khan, the appellant No. 1 and others owned 50 paisa share in agricultural land bearing, S. No. 261(5-21), 262(3-14), 263(3-30), 264(4-20), 271(5- 08), 272(5-23), 258(2-38), 260(3-39) and 270(3-22), admeasuring 38-15 acres (i.e., 19-7 1/4 acres), situated in deh Mithri, Talukha Ghotki. Wahid All Khan, appellant No.2, owned 4-22 acres of agricultural land comprising of S.No. 258(4- 00) and 246(0-16), situated in deh Mithri, Taluka Ghotki. The remaining appellants owned agricultural land measuring 60-02 acres, comprising of S.No. 243(2-22), 244(3-22), 245(6-20), 246(5-17), 247(5-04), 248(3-19), 249(4-09), 250(3- 13), 251(2-31), 253(3-10), 254(3-08), 255(3-30), 256(4-22), 257(3-28) and 259(5-3), situated in deh Mithri, Taluka Ghotki. The appellants by an agreement of sale dated 17.12.1987 agreed to sell the above land to Mir Muhammad , Gul Muhammad , Nazir Ahmad and Naseer Ahmad for a consideration of Rs. 4,27,316-25, at the rate of Rs. 5100/- per acre. A sum of Rs. 2,00,000/- was received by the appellants and the balance was to be paid at the time of execution of registered sale-deed. The possession of the said land was also delivered to the said purchasers. The respondents who were annoyed with this deal threatened the purchasers to dispossess them, whereupon they were forced to file Suit No. 28 of 1988 against the respondents for permanent injunction in the Court of Civil Judge, Ghotki. An application for interim injunction was also moved by the said purchasers, whereupon the learned Civil Judge passed an order directing the parties to maintain status quo. 3. On 14.9.1988, the respondents filed a suit for specific performance against the appellants in respect of an agreement alleged to have been executed by them in their favour on 5.5.1987, claiming that the appellants had agreed to sell the suit land to them for a consideration of Rs. 3,35,100/-, out of which a sum of Rs. 2,25,100/- was received by them. The respondents further alleged that the possession of the suit land was also delivered to them on 5.5.1987. An application under Order 39, Rules 1 and 2, read with Section 151, C.P.C. was also moved on behalf of respondents seeking interim injunction. The appellants ontested this pplication and appellant Wahid Ali Khan in his counter affidavit categorically denied the execution of an agreement dated 5.51987. It was stated that the appellants had sold this land to Mir Muhammad and others, to whom possession was also delivered and they had cultivated Phutti and Jantar over a portion of this land. The learned Senior Civil Judge, Ghotki before whom the suit was pending allowed this application vide order dated 26.9.1988. This order is the subject matter of the present appeal filed under Order 43, C.P.C. 4. I have heard Mr. M.A. Rashid, learned counsel for appellants and Mr. Haji Shah Nawaz Chachar, learned counsel for respondents. 5. The respondents had made two-fold prayers in their application filed under Order 39, Rules 1 and 2, C.P.C., firstly, to restrain the appellants from interfering with their possession over the suit land, and secondly, to restrain them from alienating the same to other person till the disposal of the suit. The appellants have questioned the genuineness of agreement dated 5.5.1987 on the following grounds:- (/) Absence of any address of appellants No. 3 to 6 in this agreement. (//) Appellant Asmat Ali Khan and others, not being the owners of the entire S. Nos. could not have sold the same to respondents. (//'/) The fact that 50 paisa share of above S.No. have (?) been sold by its owner Muhammad Umar to Mir Muhammad and others further creates doubt about the genuineness of the agreement dated 5.5.1987. (/v) That appellant Asmat Ali Khan who works as Accountant in National Bank of Pakistan Ltd., Ghotki branch was on duty in the bank on 5.5.1987 till 5.30 P.M.and, as such, it was not possible for him to have executed the agreement on the same day at Sukkur. 6. In order to find out, whether the plaintiffs have got aprima facie case for the grant of interim injunction the Courts are not expected to go into the details to he extent indicated above. At this stage the Court cannot enter into niceties nor into the details. It was so held by a Division Bench of our own High Court in Muhammad Matin v. Mrs. Dino Manekji Chinoy and others, reported in PLD 1983 Karachi 387, in the following words:— "In pursuit of a finding, the Court has not to enter into minute and detailed discussion in regard to merits, although a limited examination of the legal aspects in the case would be permissible. On the other hand, the Court will only look to the difficulty in resolving the points that arise in the case, and, if it is of the view that a substantial, or serious question of law. or, fact arises, the requirement of having apiima facie case would be satisfied. This may be termed even as the plaintiff having an arguable case, as distinct from the plaintiff having no right at all, or, the plaint making fanciful,or, frivolous claims. In such an enquiry, the Court will also keep in its mind the substance of the stake involved. (of example, the value of the property, and the loss that might be occasioned to one, or, the other part by the refusal to grant an injunction." 7. The record, however, shows that the said Mir Muhammad and others who according to the appellants had purchased the suit land from them and who laim to be in possession thereof, had iled Civil Suit No. 28 of 1988 against the espondents and others in the Court of Civil Judge, Ghotki, who on 6.8.1988 directed the parties to maintain status quo. The order sheet dated 6.8.1988 (Annexure-L) further shows that respondents were present and they had filed an application for adjournment on that day. The present suit out of which this appeal has arisen was filed by respondents on 14.9.1988, but they concealed this fact .and have not made the purchasers of suit land, namely, Mir Muhammad and others as party in this suit. The Wharton's Law Lexicon defines status quo as "the existing state of things at any given date." The order dated 26.9.1988, by which learned Senior Civil Judge, Ghotki, had issued temporary injunction is, therefore, destructive to the order of learned Civil Judge, Ghotki, dated 6.8.1988 passed in Civil Suit No. 28 of 1988, by which parties in that suit were directed to maintain slants quo. The respondents have for obvious reasons suppressed this material fact. In order to seek an equitable relief of this nature, the parties must come to Court with clean hands. In this view of the matter the order dated 26.9.1988, by which the appellants were restrained from interferring with the possession of respondents on the suit land cannot be sustained and is accordingly set aside. The parties shall, however, maintain 'status quo' for which the order passed by learned Civil Judge, Ghotki is already in field. 8. The respondents also claim to have entered into agreement of sale with the appellants which is prior in time. The are likely to be prejudiced if the property is allowed to be alienated in any manner to any person. Balance of convenience to this extent, therefore, lies in their favour. The case of Shaikh Muhammad Rafiq Akhtar v. Sqn/Ldr (Rtd) Shaikh Ghu/ain Sadiq, reported in 1981 C.L.C. 453, is relevant on this point. The points in issue arc to be adjudicated at the trial and till the same are decided one way or the other the interest of justice demands that the appellants be restrained from alienating the suit land to any person in any manner. To this extent the order of learned Senior Civil Judge, Ghotki is maintained. 9. In the result the appeal is partly allowed in the above terms with no order as to costs. .Since a huge money is involved it will be desirable if the suit is disposed of expeditiously. (MBC) Appeal partly allowed.

PLJ 1990 Karachi 449 PLJ 1990 Karachi 449 Present: MAMOON KA7.I, J TRADING CORPORATION OF PAKISTAN LTD-Plaintiff Versus INTERNATIONAL TRADING & SALES INC.-Defcndant Suit No. 560 of 1987, decided on 6.2.1990 Arbitration Act, 1940 (X of 1940)-- —S. 14—Award—Making rule of Court of—Objections to—Whether plaintiffs were entitled to nominal damages in absence of evidence about market price of coal at time of breach of contract-Question of-Arbitrators concluded that breach had been committed by defendant but onus to establish market price of coal at time of breach having not been discharged by plaintiffs, no damages could be awarded-Plaintiffs contended that even then they were entitled to nominal damages-There is nothing to indicate that plaintiffs have suffered any loss on account of breach committed by defendants-Held: C'ontcntion of plaintiffs with regard to awarding of nominal damages cannot be accepted. [Pp.450&453JA,B&C ILR 26 Bom. 744, ILR 41 Mad. 709 and 1973 SCMR 555 distinguished. Mr. Mansoorul Arifin, Advocate for Plaintiff. Mr. Muhammad Muzaffand Haque, Advocate for Defendant. Date of hearing: 7.11.1989. judgment The facts of the case nre that on 7.2.1982 the plaintiffs invited tenders for purchase of "10,000 metiu t-ns of steam coal for prompt shipment". The particulars of the coal required and the terms and conditions of the offer were contained in the plaintiffs tender document. The defendant, a company incorporated in the United States of America, submitted the lowest tender and its offer was accepted. The price quoted by the defendant through its local agent Pakistan Industries Limited, was U.S.$ 117 per ton. 2. Thereafter, breach was committed by the defendant as the goods could not be supplied by it. Consequently, the plaintiff claimed damaces amounting to Rs. 32,53,758/-. 3. The matter was ultimately referred to arbitration and Mr. Justice (Rtd) Dorab Patel and Mr. Nizam Ahmed advocate were nominated as Arbitrators by the plaintiff and the defendant respectively. 4. Thereafter, both the Arbitrators gave a unanimous Award, dated 12.11.1986, for Rs. 343,549/- which included Rs. 3,02,445/- as cost of the Import Licence fee -incurred by the plaintiff and Rs. 41,104/- which were paid by the plaintiff to M/s. Muslim Commercial Bank for opening of the letter of credit. 5. Since the commission of the breach of the contract by the defendant was not denied by the latter, the plaintiff claimed damages on the basis of the difference between the price of coal and its market price on the date of the breach of the contract. In this regard, the plaintiff had placed reliance on quotations received from two dealers viz., F.H.Nagi and Transocean Asia Limited. The former had offered coal at U.S. $ 163 and 160 per ton whereas the latter offered the same for U.S.S 141 per ton. Consequently, the plaintiff claimed U.S.$ 24,000/- (equivalent to Pak. Rs. 2,795,232/-) as damages and a further amount of Rs. 458,526/- as special damages. 6. Although the arbitrators concluded that breach had been committed by the defendant, but they were of the view that the onus to establish the market price of coal at the time of the commission of the breach was on the plaintiff which had not been discharged. The damages, according to them, could not be proved by mere production of the said two quotations in evidence. In the final analysis the arbitrators were of the view that since the market price of coal at the time of the breach could not be established by the plaintiffs, no damages could be awarded to them on such basis. However, some compensation was awarded to the plaintiffs by the arbitrators as pointed out earlier. 7. It is pertinent to point out that none appeared o behalf of the defendants when the matter came up for arguments before this court on 7.11.1989. 8. Mr..Mansoor-ul-Arfeen, learned counsel for the plaintiffs has argued that assuming that sufficient evidence in regard to the market price of the coal at the time of the breach had not been placed by the plaintiffs before the arbitrators, the plaintiffs were still entitled to nominal damages. Reliance in this respect was placed by the learned counsel on Jag Mohandas Vwji Wandas v. Nusserwanji Jcliangir KJiambata (I.L.R. 26 Bom. 744), Hajee Ismail & Sons v. Messrs Wilson & Co. (I.L.R. 41 Mad. 709) and West Pakistan Industrial Development Coiporalion Karachi v.Aziz Quicshi (1973 S.C.M.R.555). 9. In the first case, on 21.10.1899 the defendant contracted to deliver to the plaintiff at Bombay 1,000 tons of coal by January to May shipments, 200 tons to be supplied each month. The first shipment was due in middle of February. The defendant failed to deliver any of the coal and the plaintiff did not purchase any coal against the defendant's contract. The plaintiff then sued for damages for the alleged breach of contract. The only question was as to the mode of assessing damages. There was practically no coal in Bombay of the description contracted for on the dates on which delivery should have been given and .consequently no market rate could be proved. At the hearing, the plaintiff produced a statement showing the rates at which they had, during the contract period, settled certain contracts for the coal. It was held that under the special circumstances of the case, and in the absence of any evidence as to market rate, the figures given in the statement might properly be received in evidence for the purpose of fixing the actual value of the coal on the dates of the breach, thus affording a measure of the damages suffered. 10. In the Madras case, the defendants agreed to sell certain quantity of molasses to the plaintiffs by monthly instalments and failed to deliver one of the instalments assigning as a reason the difficulty of obtaining freight. The plaintiff did not purchase other molasses against the contract and there was no market for the goods at the place of delivery. The plaintiffs, who were not found to have incurred any actual loss from.the non-delivery sued the defendants for the breach of the contract. They were awarded damages by the court. It was held that the plaintiffs were entitled to damages as the case fell within illustration (a) of Section 73 of the Indian Contract Act which lays down that the measure of damages in a case like ibis is the sum by which the contract price falls short of the price for which the purchaser might have obtained goods of like quality at the time when they ouuht to be delivered. 11.1 would like to point out that the facts of the two cases just referred to by me arc somewhat distinguishable from those of the present case. In the Bombay case the damages were assessed by the court on the basis of the statement prepared by the plaintiff itself showing the rates at which the price of coal was settled with the Bombay Company in view of the absence of the market rate. Jenkins, CJ.. therefore, accepted that as the evidence of the actual value. Consequently, although no exact measure was available before the Court, but the statement was relied upon to give to the plaintiff a fair compensation for the loss suffered by him. Similarly, in the Madras case the measure of damages was determined, thus:-- "On the other hand, looking at the evidence as a whole, and especially at Exhibit G-1, 1 think there is evidence from which I am justified in concluding that the hypothetical value of 800 tons in Madras, at the end of November must have exceeded the c.uf. contract price by not less than Rs. 5.000. It is very likely that the figure would be higher if all the evidence were before us, but we are agreed that sum may safely be awarded on the evidence before us. I would accordingly allow the appeal and increase the damages to Rs. 5,000." 12. The difficulty in the present case is that the only evidence produced by the plaintiffs is the two quotations, reference to which has been made earlier. No doubt, the third quotation for the supply of identical coal had also been received by the plaintiff from the defendant itself and the price quoted by the defendant was U.S.S 125 per metric ton but even the learned counsel for the plaintiff conceded that none of such evidence could fairly be relied upon by the arbitrators for assessing ihe measure of damages at the time of the breach of the contract. However, according to him, the third case relied upon by him, reported in 1973 SCMR 555, fully supports his contention. 13. In this case, the respondent was appointed sole distributor for all the products of the appellant's woolen mills. Subsequently the offer of appointment was unilaterally withdrawn by the appellants. The respondent then instituted a suit in the then High Court of West Pakistan for recovery of Rs. 2,0(),000/- as damages. The suit was decreed for Rs. 40,000/-. The Letters Patent appeal filed by the appellants against the decree was dismissed. The matter than want before the Supreme Court and the Court while proceeding on the premises that breach of the contract had been committed by the appellants and the appellants by virtue of Sections • 203, 204 and 205 of the Contract Act were liable to make compensation to the respondent, then went on to hold as follows:- "Compensation is payable for the actual loss of damage caused; the loss or damage must be the proximate result of the breach, and foreseeable by the defendant. In estimating the loss or damage, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Speaking generally the underlying principle is rcstilulio in integnun. There is no specific rule upon the matter, and it is left to the good sense of the Court to assess as best it can what it considers to be an adequate recompense for the loss suffered by the plaintiff. Every injuiia, although without loss or damage, would entitle the plaintiff to judgment. It is not always necessary that actual damage should be proved in order that damages may be awarded. In actions for breach of conlracl nominal damages are recoverable although no actual damage can be proved." 14. Salahuddin Ahmed, J. who delivered the judgment of the Supreme Court, while quoting from Halsbury's Laws of England (Hailsham), Second Edition para 101, has observcd:-- "The best statement as to the meaning and incidence of nominal damages is given by Loard Halsbury L.C. in the Mediana where he said: "Nominal damages' is a technical phase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though gives you no right, to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed." The quotation further runs:-- "There are a very few scattered illustrations of this type of. nominal damages. This paucity of case-law warrants the inclusion of Dixon v. Dcvcriilgc, although'it was an action for the price of goods sold and delivered and not strictly, therefore, an action for damages. In that case there was evidence which went to show that some amount was due from the dcfentl-anl, but nominal damages were awar.ded since the plaintiff did not give evidence as to what the amount was. And in Tmvnan .'v. Kiiowles an action by the plaintiff lessee against the defendant for trespass to land, it appeared lhat five days after his trespass the defendant had obtained a lease of the properly from the plaintiffs lessor. In the absence of evidence of the duration of the plaintiffs lease, it being admitted that the fee was in sonic third parly, the jury concluded that the plaintiffs lease only lasted : tUl «lhe dale of the defendant's lease and awarded nominal damages." '' 15. It maybe painted out that the dictum laid down by the Supreme Court in 1973 S.C.M.R. 555 i.v mil;attracted to the facts of the instant case because in order that nominal damages way be awarded by the Court, it must be shown that some loss was suffered by the plaintiff on account of the breach. As has been pointed out earlier, the Supreme Court in the reported case proceeded on the premises that-the appellants were liable lo make compensation to the respondent for revocation of his cofHract of agency without any sufficient cause, before the expiration of the perkxt mentioned in (he contract. However, since no evidence had been produced by the respondent vis-a-vis the actual damages suffered by him, nominal damages were awarded There can even be cases where it is not possible lo prove actual damages. In such cases also the Court can, in its discretion award nominal damages. However, when there is no evidence that a parly has suffered any kxss on account of the breach, no damages can be awarded unless the actual damages are proved. In the instant case, there is nothing to indicate that the plaintiffs have suffered any loss on account of the breach committed by the defendants. The only evidence produced by the plaintiffs was the quotations said lo have been received by Ihem from the two dealers. F.H.Nagi and M/s Transi>cean Asia Limited, which, as pointed out earlier, could not C discharge the onus, which was upon the plaintiffs to prove the loss allegedly suffered by them. Consequently, the contention of Mr. Mansoor-ul-Arfin in regard to awarding of nominal damages in the instant'case cannot be accepted. The objections therefore have no force. 16. In the result, the objections are overruled and the award is made the rule of the Court. (MBC) Order accordingly.

PLJ 1990 Karachi 453 PLJ 1990 Karachi 453 Present: SALEEM AKIITAR, J KASSIM-Plaintiff versus BUDHA SOOMAR and anothcr-Defendants Misc. Application in Suit No. 323 of 1980, accepted on 29.5.1990 Civil Procedure Code, 1908 (V of 1908)-- —O. XXXIX Rr. l&2--Stay of execution proceedings-Grant of-Prayer for- Contention that as Defendant No. 1 had entered into agreement prior to execution of sale died and in part performance thereof, plaintiff continued.in possession as owner, i therefore, ejectment proceedings should be stayed till title of properly is decided by civil court—Plaintiff has succeeded in making out a piinw facie case and irreparable loss in case he is ejected—An order of injunction "to slay proceedings of court is issued sparingly and to prevent multiplicity of proceedings-Held: Decision in two suits pending, one for specific performance and other for cancellation of registered sale deed, will directly affect result of execution appiicalion—Injunclion restraining execution of ejcclmcnl order granted. l tJ P-4.\4570,000/- out of which a sum of Rs. 43,9()()/- was paid by the plaintiff to defendant No. 1 who had executed an agreement and also issued a receipt acknowledging the said payment. Under the agreement balance of sale consideration was to be paid by the plaintiff to defendant No. 1 at ihc time of registration of the sale deed. One of the conditions of the agreement was that from 1.7.1978 the plaintiff had ceased to be the tenanl and would not be liable to pay rent in future. The plaintiffs grievance is that defendant No.l, did not execute the conveyance deed and conclusively transferred the property by a registered sale deed to defendant No. 2. Defendant No. 1, filed written statement denying execution of the sale agreement. After some time he filed a second writtenslalemenl in which he admilled the agreement and receipt of the part of the sale consideralion. However, ihc court did not permit him to substitute this writlen statement in place of earlier writlen statement. Defendant No.2 filed a case for ejectment against the plaintiff, and thereafter defendant No. 1 filed a suit for cancellation of sale deed execuled in favour of defendant No. 2 which suit is still pending. In the case filed before the Controller in 1980 the defendant No. 2, obtained ejectment order against ihe plainliff and appeal filed before the High Court was dismissed. The petition for special leave to appeal filed before the Supreme Court was dismissed with the following observations: We have carefully considered the contentions of ihe learned counsel in Ihe light of ihe order passed by the Rent Controller and the judgment of ihe High Court, and ihe evidence brought on record. We find that the most important wilness in this case is the previous owner Budha son of Soomar. He has admitted his signature on the sale deed and the factum of sale made by him in favour of the respondent, bill according to him he had inlended to sell only five tenements out of 16 tenements standing on the land comprising the properly commonly called Budha Soomar Compound. This witness has admitted thai he had not obtained partition of the properly before the sale deed and has also admitlcd his signature on the tellers of altornment addressed to his tenants for recogni/.ing the respondent as their landlord. Bui his allegation is that his signature on these documents were obtained byfraud. We have perused the deed of conveyance executed in favour of respondent and registered on llth August, 1979 which Allows that the entire property comprising land admeasure 1213 sq. \d. bearing Survey No. 38, L.R.8, Lawrence Quarters of the city of Karachi with old structure standing thereon, was the subject mailer of ihc sale as fully described in the Schedule annexed to the sale deed. Therefore, the document purports to transfer the entire right and interest of Budha in favour of the rcspondenl and thai is why he has filed a suit for cancellation of the instrument. His evidence further shows that he has stopped dealing with the property after the dale of the sale although according to him he had entrusted the collection of rents from the tenants of the portion not covered by the sale deed to the respondent. All this evidence, priina facie, supports the plea of the respondent that he had acquired the right of the ownership in the properly through sale deed. Until the sale deed is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale deed, by virtue of Section 50 the registered sale deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the civil court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter we find no reason to interfere with the decision of the High Court, which is unexceptionable." Mr. Shaikh Abdul Azi/., learned counsel for the plaintiff has contended that as defendant No. 1, had entered into agreement prior to the execution of the sale deed and in part performance thereof the plaintiff continued in possession of the disputed property as an owner therefore, ejectment proceeding should be stayed till such time the title of the properly is decided .by the Civil Court. On the other hand Mr. A.R. Mirza, learned counsel for the respondent has contended that the sale deed has been registered in favour of respondent No. 2, and having priina facie title and ownership of the properly he cannot be restrained from executing order of ejectment which has been passed by the Controller holding him to be landlord of the premises, which order has been confirmed by the Supreme Court. In this regard, learned counsel has referred to ihe following observation in Allah Yar and others v. Additional Disl/ict Judge and others 1984 SCMR 741:-- "It is true that neither the learned Rent Controller nor the learned Appellate Court finally decided the question of gertuineness or otherwise of the receipt produced from the petitioner-side. The question of fact in this behalf is still open. They have, however, rendered concurrent findings that even if the husband of the previous owner/ landlord executed the receipt in token of an agreement to'sell the property, there was no proof of the fact that he was authorized by his wife to do so. And because the purchase by the respondents through registered deed was not denied therefore, the petitioners were not entitled to retain the possession in any other capacity than as tenants of the respondents the purchase by whom through registered deed is not being disputed even now. Reliance of the learned counsel on Section 53-A of the Transfer of Property Act in the circumstances of this case is of no help to the petkioners. According to him they have filed a suit for specific performance so as to establish the genuineness, validity and effect of the so-called receipt. Till they are able to obtain a decree from the Civil Court, they could not have lawfully denied the relationship of landlord and tenant. In this context their failure/refusal to pay the rent for a long period cannot be treated as bona fide. In this behalf, it may further be mentioned that according to the learned counsel the suit was filed on 28.11.1981, nearly a year after the petitioners had become aware of the sale through the registered deed in favour of the respondents.' They have rightly been adjudged as tenants as also defaulters in payment of rent." "Learned counsel also sought time so as to make an application before the Rent Controller for obtaining interim relief for the protection of petitioner's possession. This prayer is against the rule laid down by this Court in the case of Rehmatullah v. All Miihammdd and another (1983 SCMR 1064), The respondents have been adjudged in these proceedings as entitled to receive rent without any doubt. Regarding their right to do so the issue of relationship of landlord and tenant has rightly been decided against the petitioner. For the time being Accordingly they have no right to retain the possession after the eviction orders have been passed in duly constituted proceedings under a special law. The stay of eviction by a Civil Court even as interim measure would obviously be in aid of injustice. The prayer made by the learned counsel in this behalf therefore, is refused." In this judgment the principles laid down in Rehmatuallah v. AH Muhammad 1983 SCMR 1064 were clarified and explained. In the referred case the tenant was claiming to have purchased the property through a receipt allegedly executed by the husband of the owner who was not authorized by the owner/wife to sell the property. The execution of registered sale deed was not denied. In my view on facts this case is distinguishable as here an agreement eists which though first denied by defendant No. 1 has been admitted subsequently. He has filed suit for cancellation of the registered sale deed executed in favour of defendant No.2, and further that the relationship of landlord and tenant between plaintiff and defendant No. 1 ceased on execution of agreement to sell. The learned counsel also referred to Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PEB 1988 SC 221, where the principles laid down in Rehamtuallah case have further been explained as follows:-- " In order to appreciate the argument of the learned counsel it is necessary to briefly re-state the rule laid down in the case of Rehmatuallah. It is that: A matter involving even a dispute of title-having once obtained finality in the Rent Controller's forum (including the hierarchy of appeals and thus the appellate and superior Courts) cannot be reagitated in a suit before a civil Court of general judicate (?); the provisions contained in Section 12(2) C.P.C. read with Section 9, C.P.C. and, the provisions contained in Section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 (as Amended). Some possible exceptions to this rule have also been spelled out in the same case of Rchmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be 'neutralised when the order itself says that it is not final regarding a particular issue and that the same could be reagitated in the Court of general jurisdiction; or, when otherwise the said order in itself conveys a clear undisputed intendment that it is not final and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah, or, when the relevant issue is determined on the basis of doubts; or, when the party concerned itself instead of getting the final determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before Court of general . jurisdiction which course in some cases would, be at the risk of a temporary adverse conclusion and/or action against him." It is thus clear that where Controller passes an order deciding the relationship of landlord and tenant on basis of ownership which the hierarchy of Courts in appeal confirm but the question of title is kept open for determination by Civil Court of competent jurisdiction, such finding of the Controller though confirmed by the appellate Court is not binding on the Civil Court. The main reason being that the superior Courts have left such determination to the Civil Court. Applying this principle I find that while dismissing the petition for leave to appeal, the question of titie of the plaintiff was kept (?) upon as is obvious from the observation quoted above. This position would continue to remain till such time Civil Court decrees the suit against defendant No. 1. The plaintiff has thus succeeded in making out a prima facie case. In case he is ejected irreperable injury will be caused to him and he will suffer irreparable loss. The principles for grant of stay of judicial proceedings are will settled. An order of injunction to stay proceeding of Court is issued sparingly and to prevent multiplicity of proceedings. In such case the order of injunction is issued against a party and not the Court. Two suits viz one for specific performance of agreement and the other for cancellation of registered sale deed in favour of defendant No. 2, are pending. The decision in these suits will directly affect the result of the execution application. If the plaintiff is ejected and thereafter succeeds in his suit he will have to institute proceedings for restoration of possession. I therefore restrain defendant No. 2 from executing the ejectment order passed by the Controller in respect of tenant (?) No. 9, 11 and 12 on Plot No. L-8/38, Lotus - Street Karachi. (MBC) Injunction granted.

PLJ 1990 Karachi 458 (DB) PLJ 1990 Karachi 458 (DB) Present: MUKHTAR AHMAD JUNEJO and SYED HAIDER ALI PlRZADA, JJ EJAZ HUSSAIN and another-Petitioners versus M/S HOTEL JABEES LTD. and another-Respondents Const, petition No. D-525 of 1988, accepted on 4.2.1990 Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (W.P.Ord-VIofWSS)-- —S.O. 13~Hotel employees—Services of—Termination of—Challenge to— Whether, while making retrenchment, S.O. 13 was complied with-Question of-According to S.O. 13, workman last employed in his category is to be retrenched-Management of respondent No.l and Funland, play land and Kababish Restaurant did not follow S.O. 13 while retrenching petitioners- There is no basis for finding recorded by respondent No. 2 that plea about three waiters working on daily wages had no relevancy with admitted category of petitioners-Held: Impugned order passed by tribunal is of no legal effect-Petition accepted and order of Labour Court restored. [Pp.460&461]A,B&C Raja Shamsuzzaman, Advocate for Petitioners. Mr. Qamar Abbas, Advocate for Respondent No.l. Date of hearing: 15.1.1990. judgment Mukhtar Ahmad Junejo, J.~This Constitution Petition challenges an order dated 1.3.1988 passed by learned Sind Labour Appellate Tribunal (hereinafter to be referred to as the Tribunal) in Appeal No. KAR-464 of 1987. 2. Admittedly Petitioners Ejaz Hussain and Zareen Shah were employees of respondent No. 1 M/s. Hotel Jabees Limited Karachi from 1986, till 16.5.1987 when their services were terminated on the ground of "reorganization in establishment of respondent No. 1". Both the petitioners invoked jurisdiction of the Labour Court under Section 25-A of the I.R.O. and moved their grievance applications, challenging termination of their services. Under an order dated 15.12.1987 learned Labour Court accepted both the grievance applications and ordered the petitioners to be reinstated in service, without allowing them back benefits. Aforesaid order directing reinstatement of the petitioners was challenged by the respondent No. 1 under appeal No. KAR-464/87. Said order in respect of disallowing of back benefits was challenged by the petitioners in appeals No. KAR-503 and KAR-504 of 1987. Under the impugned order dated 1.3.1988, the appeal filed by the respondent No. 1 was accepted. The appeals filed by the petitioners were dismissed on 17.3.1988. However, it is the former order dated 1.3.1988 that has been challenged in this petition. 3. Mr. Raja Shams-uz-Zaman, learned Counsel for the petitioners argued that the services of the petitioners were terminated under Standing Order 13 without following the principle of last to go first. Learned Counsel for the petitioners referred to cross-examination of Wali Mohammad, witness for the respondent No. 1 and argued that room bearers, waiters and bearers elonged to the same category of employees. It was further argued that as per admission by witness for "the respondent No. 1, the respondent No. 1 consisted of Hotel Jabees, Fun Land, Play Land and Kababish and if there was need for retrenchment in May, 1987 then the Junior employees in the category of Room Bearers, Waiters and Bearers of all the four concerns, should have been removed from the service and not the petitioners. It was further argued that no evidence was produced by the respondent No. 1 to rebut the allegation made by. the petitioners that the persons junior to them were retained, while services of the petitioners were terminated. In support, learned Counsel for the petitioners cited the cases of M/s. Conforce Limited v. Workers Union (1974 PLC 59) and I/fan AH v. M/s. Hotel Jabees, Karachi (1987 PLC 830). 4. Mr. Qamar Abbas, learned Counsel for respondent No.l argued that services of the petitioners were terminated due to retrenchment in Hotel Jabees and that it had not been brought on record to show that action of the respondent No.l in terminating services of the petitioners was fraught with mala fides or it was colourable exercise of the powers. Learned Cou sel for the respondent No.l further argued that at a later stage the petitioners were offered employment when there were vacancies but they declined the offer. Learned Counsel for the respondent No.l defended the impugned order to be legal and proper and went on to argue that the onus was on the petitioners to establish that termination of their sendees was an act of victimization. Learned Counsel took legal bjection hat the employees of the respondent No.l alleged to be junior to the petitioners but retained in service, should have been joined as parties. Reference was made to the affidavit of Wali Ahmed witness for respondent No. 1 and it was argued that contents of the same were not challenged. 5. Each of the petitioners in his case filed in evidence his own affidavit as well as affidavit of his co-worker Abdullah. In each of the two cases the respondent No.l examined its Assistant Manager Syed Wali Ahmed Maulai. In his identically worded affidavits, one filed in each case, Syed Wali Ahmed stated that services of the petitioners and some other Room Bearers were terminated on 16.4.1987 as they were found surplus to the requirements of the respondent No.l stablishment and that the principle of "last-in-first-out" was strictly observed, while terminating services of the petitioners. It was admitted that Siddique, Amin and Waheed Ali, mentioned in para-5 of the affidavits of the petitioners, were employed by the respondent No.l but not as Room Bearers. That they were employed at Clifton. Wali Ahmed further stated that after the month of Ramazan while the management felt the need to fill two posts, such notices were issued in accordance with the provisions contained by Standing Order 14 to the petitioners who did not agree to fresh employment. Consequently the two posts were offered to the workers next junior to the Petitioners namely Wali Mohammad and Rashid who accepted the same and who were re-employed. Syed Wali Ahmed defended retrenchment of the petitioners by the respondent No.l as legal and said that the same was done in accordance with the law and it was neither illegal nor malafide. 6. According to the Standing Order 13 whereby workman is to be retrenched and he belongs to a particular category of workmen, the employer shall retrench the workman who is the last person employed in that category. In this way all workers of a particular category in an establishment are to form one body out of whom the junior most would go first, if there is retrenchment. It was argued on behalf of the respondent No.l that the petitioners being room bearers did not come in the category of waiters, bearers and table-boys. In his crossexamination, the respondent's witness Syed Wali Ahmed dmitted in both the ases that the respondent No. 1 establishment consisted of Hotel Jabees, Funland at Clifton, Play land and Kababish Restaurant, and that the room bearers, waiters and bearers belonged to the same category and they can be transferred to Kababish Restaurant also, as the nature of their service was the same. In view of these adrrtissions it is clear that the petitioners and the bearers, the table boys, the waiters etc. working at Funland, Playland and Kababish restaurant belonged to the same category of workmen for the purposes of Standing Order 13. As such the respondent No.l while terminating services of the petitioners should have, for the purposes of the Standing Order 13, considered all the waiters, bearers, table boys and room bearers employed by him to be belonging to one category. In other words, if any waiter, bearer or table boy working in Hotel Jabees or in Fun land at Glifton or Play land or in Kababish Restaurant was junior to the petitioners then he should have been restrenched first before retrenchment of any of the petitioners. 7. Allegation of the petitioners in their affidavits was that Siddique, Amin and Waheed All were appointed in their place on daily wages. Wali Ahmed in his two affidavit's admitted that Siddique, Amin and Waheed Ali were employed at Clifton and moreover they were not employed as room bearers. Facts and circumstances of the case, however, show that the respondent No.l retrenched the petitioners without following the letter and spirit of the Standing Order 13. Learned Tribunal appears to have misinterpreted the evidence by observing that the petitioners had admitted in their cross-examination that when their services were terminated on 16.5.1986 alongwith few other workers they were junior most in their category. In his cross-examination Ejaz Hussain said that on 16.5.1987 the services of junior most persons were terminated and no worker junior to him emained in service on or after 16.5.1986, Learned Tribunal over looked the fact that this was in respect of Jabees Hotel only. This was clarified by Zarin Shah who said in his cross-examination that in the Saddar Branch of Jabees Hotel there was no junior to him and to other petitioner but there were some juniors in Clifton Branch where Siddique, Amin and Waheed were working. This shows that the management of Jabees Hotel, Funland, Play land and Kababish restaurant did not follow Standing Order 13 while retrenching the petitioners. 8. The main point which appears to have influenced the mind of learned Tribunal was that the petitioners were offered re-employment under Standing Order 14. In this respect no cognizance appears to have been taken of the allegations made by the petitioners that they were called by the respondent No. 1 formally for re-employment, but were not taken on duty and that they were asked to tender their resignation and realize the arrears of pay etc. 9. Learned Tribunal appears to have ignored the cross-examination of respondent No.l's witness Syed Wall Ahmed, while holding that the question of transfer of the petitioners to Kababish Restaurant as waiters did not arise. Case of the respondent No.l that the petitioners being room bearers were not entitled to be transferred to Kababish Restaurant as waiters has been completely demolished " due to the admissions made by Syed Wall Ahmed in the cross-examination, discussed above. Consequently, there is no basis for the finding recorded by learned Tribunal that the plea about three waiters working on daily wages had no relevancy with the admitted category of the Petitioners. 10. Although we agree with learned Tribunal that the petitioners had not been able to make out that they were victim of alleged union activities, but we are of the considered view that there was no full compliance with the letter and spirit of Standing Order 13, when services of the petitioners were terminated. Fresh offer of re-appointment cannot legalize illegal termination of service, even if respondent No.l be accepted in toto. Aforesaid discussion shows that services of the petitioners were terminated illegally. 11. There is no evidence on record to show that the petitioners remained all along unemployed or that they did not work for gain during the period after termination of their services. No such evidence was brought on record. 12. As a result of the above discussion, we would accept this Petition and , declare the impugned order passed by the Tribunal to be of no legal effect. Consequently the order passed by the Labour Court on 15.12.1987 stands estored, except that the Petitioners cannot be allowed back benefits. No order as to costs. (MBC) Petition accepted.

PLJ 1990 Karachi 461 (DB) PLJ 1990 Karachi 461 (DB) [Sukkur Bench] Present: qaiser ahmad hamidi and abdul rahim kazi, JJ WAZIR AHMAD-Petitioner versus S.H.O. POLICE STATION MEHBOOB KALHORO and others-Respondents Const. Petition No. D-288 of 1989, dismissed on 23.5.1990 (i)Crirainal Procedure Code, 1898 (V of 1898)-- —S. 154--Cognizable offence-Making out of-Refusal to register case- Challenge to-In earlier petition for registration of case, petitioner and his witnesses sworn affidavits that they had gone to SHO Gambat who refused to register FIR-They took a complete somersault in this petition stating on oath that they had gone to SHO Mehboob Kalhoro P.S. who refused to register FIR—Held: In order to seek relief under Article 199 of Constitution, petitioner must come to court with clean hands and if he is found to have suppressed a material fact, such relief should be refused-Petition dismissed with observation that petitioner can get relief by filing complaint before court of competent jurisdiction: [Pp.466&467]B&C 1982 SCMR 853,1985 CLC 1897,1985 CLC 2805, PLD 1976 Lahore 1412, PLD 1977 Lahore 424 and 1979 SCMR 490 rel. (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 154 read with Police Rules, 1934, R. 24.4-Cognizable offence-Making out of—Whether Police Officer can refuse to register a case—Question of—It is well settled that a Police Officer cannot refuse to register a case where a cognizable offence is made out—He cannot refuse to do so even if he considers version as false—Held: It is well settled that where powers or rights are granted with a direction to comply with same in a specified manner, it is not unjust to expect rigid observance of same. [P.465]A 1977 P. Cr. LJ 2, PLD 1976 Lahore 1348, 1988 P. Cr. LJ 915(1), PLD 1975 Lahore 733. PLD 1976 Lahore 1412, PLD 1977 Lahore 424, and 1989 P. Cr. LJ 1129 ref. Mr. Gul Bahar Komi, Advocate for Petitioner. Mr. Abdul Fateh Malik, Advocate for Respondents 1 & 2. Mr. Muhammad Siddiq Kharal, Addl. A.G. for Respondent No.3. Date of hearing: 28.3.1990. judgment Qaisar Ahmed Hamidi, J.~It is desirable to state briefly certain facts giving rise to this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 2. On 29.10.1989 some dacoits abducted Dr. Shafi Muhammad Soomro and 2 others. A case being Crime No. 32 of 1989, under Section 365-A/34 PPC was registered at Mahboob Kalhoro P.S. It is alleged that a police party headed by Nazir Ahmed Jagirani D.S.P. ransacked the village of petitioner Wazir Ahmed Narejo. They abducted and wrongfully confined number of persons including women folk and during this process looted valuables and took away cattle with them. On 31.10.1989, the petitioner approached S.H.O., Mehboob Kalhoro P.S, the respondent No.l for lodging the F.I.R., but he refused to do so. The s'~~!erintendent of Police, Khairpur was also contacted, but with no result. The petitioner has, therefore, invoked the constitutional jurisdiction of this Court. 3. Section 154, Cr.P.C., which relates to information in cognizable cases provides as follows:— "Information in cognizable cases-Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf." 4. Rule 24.4 of the Police Rules, 1934 which deals with actions to be taken when reports are doubtful lays down as follows:- "24.4. Action when reports are doubtful-(l) If the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated. (2) If the Inspector or other superior officer, on receipt of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders. (3) ............................................ " 5. This rule was examined in the case of Ch. Shah Muhammad v. S.H.O., Rahimyar KJian and 2 others, reported in 1977 P.Cr.L.J.2, and the following observations were made by a single Judge:-- "from the averments in the petition, it appears that the petitioner made a report of the alleged incident to the Police, but they refused to register the case or make any investigation in that respect and simply made an entry in the daily diary of the police station. According to rule 24.4 of the Punjab Police Rules" if the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officcr-incharge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated", In sub-rule (3) of Rule 24.4, it is further written that "when reasonable suspicion of such commissioner (?) arises a First Information Report shall be recorded in the police station concerned and investigation under Section 157, Criminal Procedure Code, shall be made". To the same strain is Rule 24.1 of the Punjab Police Rules. These Rules are in line with the proviso to Section 157 and Section 154 of the Cr.P.C. In that view of the matter, if the Police, suspecting that there was no reasonable ground for recording the F.I.R. or making the investigation, has refused to proceed in the matter, the action of the police cannot be said to be without lawful authority." 6. This view was reiterated by Karam Elahee Chauhan, J (as he then was) in the case of Haji Muhammad Klian v. Ch. JQiizar Hayat KJian and 3 others, reported in PLD 1976 Lahore 1348. 7. In Jandodah v. S.H.O., P.S. Kliairpur, Bahawalpur, reported in 1988 P.Cr.L J. 915(1), a single Judge of the Lahore High Court observed as follows: "A case has been registered against the petitioner under sections 307/148/149, PPC and they have been challaned. As a counter blast, they also moved this Writ Petition to register a case against the complainant party, alleging that their crops had been damaged and the other party had also resorted to firing. Nobody has been injured in the latter case. The police has reported that the application of the petitioner is wrong and suspicious. In the circumstances, the efficacious remedy for the petitioner is to lodge a private complaint. This Writ Petition is, therefore, not maintainable and is dismissed." 8. A contrary view was, however, taken in Sawant v. S.H.O., Police Station Saddar, Kasur and another, reported in PLD 1975 Lahore 733, and it was held by a single Bench that:- "1 also say with great respect that the language of Section 154, Cr.P.C. is imperative and a police officer cannot dub the counter version as false without first inve tigating the matter. His duty is to make investigation. I, therefore, allow both the petitions and direct the S.H.O to register a report at the instance of Sawant petitioner and to make investigation therein according to law." 9. The view taken in Ch.Shah Muhammad v. S.H.O., Rahimvar Khan and 2 others, reported in 1977 P.Cr.L.J.2, however, did not find favour with a Division Bench in Intra-Court Appeal (Ch.Shah Muhammad v. S.H.O, Police, City Police Station, Rahimyar Klran and 2 others, reported in PLD 1976 Lahore 1412), wherein it was held that where allegations as raised do spell out the commission of a cognizable offence, the police officer is obliged to register a case. It was further noted that any police officer who neglects or refuses to register a case if the information 'supplied to him does reveal the commission of a cognizable offence exposes himself to an action under Section 29 of the Police Act, 1861. 10. The view taken in Haji Muhammad Klian v. Ch. Klrizar Hayat Khan and 3 others, reported in PLD 1976 Lahore 1348, was also not approved by a Division Bench consisting of Sardar Muhammad Iqbal, C.J. and Aftab Hussain, J, in Intra- Court Appeal {Haji Muhammad Klwn v. Ch. KJiizar Hayat and 3 others, reported in PLD 1977 Lahore 424), wherein it was held:- "The first question is whether the police officer can refuse to record an F.I.R. even if it discloses a cognizable offence. The answer to this question is furnished by the mandatory provisions of Section 154 of the Cr.P.C. which provides "that every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf." This provision, mandatory as it is, leaves no scope for exercise of any discretion by the police officer concerned in recording the First Information Report or i refusing to record the same." 11. The latter view gels further support from a judgment of Division Bench ol our own High'Court reported as Muhammad Ilyas \: Senior Superintendent of Police and another (1989 P.Cr.LJ. 1129), in which following observations were made:— "The controversial point involved in this petition is whether it is mandatory for S.H.O. or any other officer at police station authorized in this behalf to register F.I.R. of the complainant or it is open to him to refuse registration on the ground that no offence is made out. In this context reference can be made to Sections 154 and 155, Cr.P.C. as they both relate to registration of F.I.Rs. Section 154, Cr.P.C. relates to information in cogni/ablc cases and Section 155, Cr.P.C, relates to information in non-cogni/able cases. Perusal of Section 155, Cr.P.C. clearly shows that it is mandatory in nature and in the said section at three places word" shall" is used by Legislature to emphasise the fact that officer at police station is mandatorily bound by law to register the F.I.R. in cognizable cases and he cannol refuse registration on any ground. Reading of this section clearly shows that every inlormaiion relating lo the commission ol a cogni/able olfence, il uivcn orally lo an ollicer incharge of police station shall be reduced to writing by him or under his direction and be read over to the informant. First "shall" as staled above very clearly in unequivocal terms requires (he Police Ollicer lo reduce into writing information wilh regard lo ihe cogni/abic offence. He cannol wrmgle out of it on any ground and cannol say that offence is-not made out Second "shall" is used in lhat section, when il goes on further to read that such statement shall be signed by (he person giving it, .which makes it compulsory for the Police Officer lo get thai inlormaiion or complaint' signed by the complainant and the third" shall used in the same section is to the effect that such report shall be entered in a book lo be kept by such officer in such form as provincial Government may prescribe in this behalf. The third "shall" contemplates maintenance of register under Section 154, Cr.P.C. at police station'. Section 154 is very clear and leaves no room at all for doubt or dispute about live fact llial il is mandatory for Police Officer at police slalion lo register report <>l I he" complainant- in a cognizable offence and not only that but (lie procedure is also prescribed that report is to be reduced into writing and is to be signed, by the complainant and is to be entered in 154, Cr.P.C. register." 12. SVe had ihe advantage of lull arguments' on this subject at this preliminary stage, and on a careful review of ihe case law on the point, we are clearly of the view lhat it is almost well settled that a police officer cannot refuse lo register a case where a cogni/able offence is made out. He cannol refuse lo register a case even if he considers the version as false. In that exigency, the law empowers him to prosecute ihe complainant, if the result of investigation discloses that a false information in respect of a cogni/able offence was given. Il is well settled that where powers or rights are granted with a direction to comply wilh ihe same in a specified manner, il is not unjust to expect rigid observance of the same. 13. The matter, however, does not end here. The petitioner had filed C.r.No.D-264 of 1989 on 12.11.1989, which was withdrawn by him on 21,11.1989, with permission to refile the same. In the earlier petition the petitioner and his witnesses, namely, Ali Shcr, Allah Bux and Ghullam Abbas had sworn affidavits slating therein that they had gone to S.H.O, Gambat P.S. who refused to register ihe F.I.R. They look a complete somersaull in this petition by slating on oath that they had gone lo S.H.O. Mchboob Kalhoro P.S., who refused to register the F.I.R. The relief under Article 199 of the Constitution of Islamic Republic of Pakislan, 1973, being discretionary relief, the wril cannot be issued as of righl or in routine. In order lo seek a relief of ihis nature, a petitioner must come to Court with clean hands and if he is found to have suppressed a material fact such relief should be refused. The cases reported as Saifullali Khan and another v. Settlement Commissioner, Punjab Lahore and 5 others, (1982 S.C.M.R. 853), Muhammad Siddiq and 2 others . Settlement Commissioner, Punjab and others, (1985 C.L.C 1897), and Abdul Rahim Khan . Town Committee, Makhdoompur Pahooran and other (1985 C.L.C. 2805) are relevant in this behalf. 14. Again an alternate remedy is available to petitioner who can file direct complaint for seeking redress. Although it has been held in number of cases that the existence of alternate remedy docs not affect the writ jurisdiction, yet it is an important circumstance. In both the cases reported as Ch. Shah Muhammad v. S.H.O. City Police Station, Rahimyar Kli'an and 2 others (PLD 1976 Lahore 1412), and Haji Muhammad Khan v. Ch. Kliizar Havat Klian and 3 others (PLD 1977 Lahore 424), referred to above, writ was refused mainly on the ground that an alternate remedy which was equally efficacious was available to the complainant. The following course suggested in the latter citation appears lo be more appropriate and with respect, we approve the same:— "The principle of law lhat has been enunciated in the Intra-Court Appeal No. 31 of 1976 is, however, unexceptionable. The exercise of power under Article 199 of Ihe Constitution is subject lo the condition thai there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under Section 190 read with Sections 200 to 203, Cf.P.C. Section 190 provides that a Magistrate may lake cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in Sections 200 to 203, Cr.P.C. There may be cases where the evidence to prove the commission of an offence cannol be collected except through the police agency. Similarly there may be cases where the entire evidence to prove the commission of such offence, is with the complainant. In the second category of cases it cannol be doubled that the complaint before the Magistrate is an adequate remedy. In such case the High Court refuses to exercise in writ jurisdiction under Article 199 of the Conslitution. The advisability of exercising a discretion in favour a petilioner can be considered only in a case where ihe evidence can be collected through the agency of the police" We are also fortified in our view by the case of Muhammad Ijaz v. S.H.O., Poliee Station, Rajana, Faisalabad, reported in 1979 S.C.M.R. 4 ( X). Vic 15. In the case under review the petitioner has got all the evidence which is material, available with him. He can get the relief by filing a complaint before the Court having jurisdiction. The fact that the petitioner and his witnesses in their above said affidavits have made inconsistent and self contradictory Statements also shows that they have not come to the Court with clean hands. In such circumstances we do not consider it a fit case for the exercise of constitutional jurisdiction, 16. The petition has got no merits and is accordingly dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Karachi 467 (DB) PLJ 1990 Karachi 467 (DB) [Sukkur Bench] Present: qaisi :r ahmad hamidi and abdul raiiim ka/j, JJ MASHOOQ ALI-Petitioner versus STATE-Rcspondent Const, petition No. D-37 of 1990, dismissed on 23.5.1990 Sind Children Act. 1955 (XIV of 1955)-- ----Ss. 4(2), 68 and 94 read with Constitution of Pakistan 1973, Art. 199-Juvenilc offcnder—Offence by—Reference to Provincial Government or order of Provincial Government under Section 68--Whcthcr appeal is competent against such order—Question of—Appeal lies only against a final order and not otherwise—Final order means an order, passed by a Juvenile Court or any court empowered under Section 8 to exercise powers of a Juvenile Court-Reference under Section 68(2) or order passed by Provincial Government do not fall within definition of final order and appeal against such order is not competent- -Pelilioner had a remedy by way of criminal revision-Held: Existence of another adequate remedy is a bar to exercise of extra-ordinary constitutional remedy and petition is liable to be dismissed on this score alone. [P.468JA Mr. Awan Rehmaiullcih Nadccni, Advocate for Petitioner. Mr. Muhammad Siddic/ue Kluiral, Acldl. A.G. for Respondent. Dale of hearing: 23.4.1990. JLDCiMlM Qaisar Ahmed Hamidi, J.-The question that has been raised in this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, relates lo the interpretation of Section 68(2) of the Sind Children Act, 1955. 2. The facts of the case arc fairly simple. On 29.3.1984 complainant Mchrab went lo his lands alongwilh M.sl. Sukhan. wife of his brother and niece Msl. Suhagan. At about noon time the petitioner armed with a gun went there alnngwilh his father co-accused Ghouso. The petitioner is alleged to have fired a gun shot at the instigation of his father causing injuries to Mst. Suliagan who (ell down. The sister of petitioner was declared as KARI by complainant and his relatives and this incident is the outcome of that allegation. The case of the applicant who was admittedly a juvenile was bifurcated from that of co-accused Ghouso. The petitioner was tried by Mr. Ahmed Nawaz Shaikh, Assistant Sessions Judge, Kandlikol, under the provisions of Sind Children Ad. 1955, who made a reference to the Provincial Government under Section 68(2) of the Sind Children Act, 1955 for necessary orders. The petitioner was detained in Judicial Lock up, Kandhkot till the reference was disposed of. This order dated 18.4.1989 passed by Assistant Sessions Judge, Kandhkot, was challenged in Cr. Revision No. 27 of 1989, which was, however, converted as a criminal appeal. By this lime the orders passed by the Provincial Government directing the detention of petitioner in Juvenile jail Landhi for a period of five years commencing from 18.4.1989, where received. On 29.1.1990 the appeal was withdrawn by the petitioner and both the above orders were challenged in this constitutional petition. 3. Section 94 of the Sind Children Act, 1955, deals with appeals. The appeal lies only against a final order and not otherwise. The 'final order' as defined by Section 4(2) of the Sind Children Act, 1955, means an order passed by a Juvenile Court or any Court empowered under Section 8 to exercise the powers of a Juvenile Court, under the following sections, namely 45 to 47, 71 to 76, 79, 81 lo 84, 90 to 92 and 103. A reference made under Section 68(2) to the Provincial Cjovernment or the order passed by the Provincial Government under this section, therefore, do not fall within the definition of "final order" and consequently an appeal against such an order is not competent. The petitioner had a remedy by 'way of criminal revision. He actually filed a criminal revision, but abandoned it I subsequently. Under the Constitution of Islamic Republic of Pakistan, 1973, the 'existence of another adequate remedy is a bar to the exercise of this cxtrajordinary constitutional remedy, though the Court will have to consider a variety of jcircumstances including the efficacy of such remedy. The present petition is liable jto be dismissed on this score alone. 4. On merits also the petitioner has got no case. Section 71 of the Sind Children Act, 1955, provides for commitment of child to certified school or recognised institution in the following words:— "71. Commitment of child to certified school or recognised institution.— Where a child is found to have committed an offence, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him lo be committed lo a certified school or recognised institution for such period of detention as will not, subject to the provisions of Section 5, extend beyond the time when the child will attain the age of eighteen years or in exceptional cases for a shorter period, the reasons for such shorter period lo be recorded in writing." 5. It is again not incumbent upon the Court to send a 'child' to a certified school or recogni/ed institution and in a suitable case recourse can be had to the provisions of Section 72 of the Sind Children Act, 1955, which lays down that:- "72. Other orders of the Court. -A Court may, if il shall ihink fit instead of directing any youthful offender to be detained in a certified school or recognised institution under Section 71- order him to be discharged after due admonition; without passing any i'inal order, direct that he be released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or . without sureties, as the Court may require, to be responsible for the iood behaviour and well-being ol. the youthful offender tor any period not exceeding three years and for the observance of such other conditions as the Court may impose for securing that the youthful offender may lead an honest virtuous and industrious life; (Hi) it the offence committed by the youthful offender is punishable with fine and youthful offender himself is over the age of fourteen yeais, order the offender to pay a fine." 6. Section S u of the Sind Children Act, 1 ( )5.\ provides lor period of detention in the following words:-- "Period of detention.--Notwithstanding anything contained in this Act, the period of detention in the case of a person under the age of fifteen years shall he such as will result in the person being detained, until he reaches tru. age of ck'.htcen years: Provided that the period ol detention in the case of a child over fifteen yeais of age shall be not less than two years: Provided further that where special circumstances exist and the interest of the child so demands, it shall be open to the Court for reason's to be recorded in .writing, to pass an ordei for a shorter period of. detention.' 7. It is obviously on the strength of this provision of law that Mr. A wan Rchmaluilah Nadeem, learned counsel for petitioner has contended that no child after the attainment of the age of 18 years (like the petitioner) can be kept in detention. This argument is effectively answered by the language of Section 5 of the Sind Children Act, 1955, which reads as follows:— "Continuation of proceedings against child on his attaining specified age.- -For the purpose of this Act, a person shall be deemed to be a child, if at the lime of the initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings arc initialed against him under this Act, such person has not attained the age of sixteen years: Provided that if during the course of the proceedings under this • Act such person attains the age of sixteen years the proceedings already commenced shall be continued and orders may be passed in respect of uch person under this Act as if such person was a child notwithstanding nything to the contrary in this Act." 8. In the Case of Sh: Muhammad Yousif v. The State, reported in l l

71 P.Cr.L.J. 786, it was held that a Juvenile Court cannot order detention of youthful accused for a period exceeding beyond the age of 18 years. It may, however, be added that ihis restriction relates lo the power of Court and not to the power of ihe Provincial Government. 1 cannot do heller than quoting Section 68 of the Sind Children Act. 1955, in exlenso:— "68. Sentences that may not be passed on child.—(1) Notwithstanding anything lo the contrary contained in any law, no youthful offender shall he senlenced lo death or transportation or imprisonment. (2) When a child is found lo have committed an offence of so serious a nature that the Court is of opinion that no punishment, which under Ihe provisions ol this Au it is authorised to inflict, is sufficient or when the Court is satisfied that the child is of so unruly or of so depraved a character that he cannot he committed lo a certified school or detained in a place of safety and thai none of the other methods in which the case may he legally dealt wilh is ^uilahle. (he Court shall order the offender lo he kept in sale custody in such place or manner as it thinks fit and shall report ihe case lor the orders of (he Provincial (iovernmenl." '). This question was again examined in the case ol Ashii/ All alias (Uni/lam MitrtdZd Sooinro v. The Slate and 2 others, reported in 1984 P.Cr.L.J.2000, by a Division Bench of this 'Court and was answered in the following words:-- ."The last submission ol ihe learned counsel is thai the detention of the petitioner could nol he made for a period extending beyond ihe period of their attaining ihe age of IX years and reliance was placed on ihe provisions of Section 71 of the Act, reproduced above. Il appears from (he hare reading of the Section 71 thai it confers powers tin the Court trying a youthful offender of making an order of commitment of a youthful offender to a certified school or a recognised institution lor a period not extending beyond Ihe limit specified therein; but it does not impose any restriction on the powers of the Government. II ihe inlenlion of the Legislature were to impose same restrictions on the powers of the (.iovernmenl, there could be no wisdom in making ihe provisions under Section 68 of the Act lhal if ihe Court finds thai ihe punishment it can award under ihe provisions of the Act would nol be sufficient, il mayrefer the case for order of the Government. Il would be pertinent to make reference to Section W) of the Ad which lays down that notwithstanding anything contained in the Act ihe period of det&ntion in the case ol a person under the age of 15 years shall be such as will result in the person being detained until he reaches the age of 18 years; but the . period of detention in the case of a child over 15 years of age shall be not less than two years; provided thai the Court may, in special circumstances for reasons lo he recorded in writing, pass an order for a shorter period ol detention. Bui this section also relates to the orders of the Court and not to those passed by the Government." 10. Lastly it was half heariedly suggested lhal the depositions of ihe witnesses recorded in this case are the verbatim copies of the depositions recorded in the case againsi co-accused Ghouso (since acquitted), which practice amounts to all illegalily vitiating the trial of the present petitioner. Reliance is placed upon the case ol'Hassan Gul v. The Stale, reported in 1975 P.Cr.L.J. 437. There is, however, nothing on record to substantiate this contention. Even otherwise a disputed question of fact cannot be gone into in this petition. 11. On all the above scores the petition has got no merits and is dismissed. (MBC) Petition dismissed.

PLJ 1990 Karachi 471 (DB) PLJ 1990 Karachi 471 (DB) ISukkur Bench] Present: ABDUL R.MiiM K/Y/l AND Q.MsrR ahmad hamidi, JJ MUHAMMAD ISMAIL and others-Petitioners versus MUHAMMAD HUSSAIN and others-Respondents Const, petition No. D-45 of 1988, accepted on 22.5.1990 (i) Civil Procedure Code. 1W8 (V of 1908)-- —O. IX R. 9-Suit-Dismissal fur non-prosecution of-Resloration ol- Chullcngc to—Contention that because of late diary by Reader on an adjourned date, it should be presumed that suit was fixed on 26.6.1982 (date of dismissal of suit for non-prosecution) only for purpose of filing objections (to application under O. Vll Rule 11) and for hearing of injunction application and suit could not be dismissed—On 21.6.1982, suit was adjourned for hearing of arguments on injunction application as well as for settlement of issues and late diary written by Reader would not be a substitute for earlier diary—It cannot be said that suit on 26.6.1982 was not fixed lor settlement of issues-­ Held: Order passed on this dale is quite lawful and finding of Additional District Judge that it is a void order, is without lawful authority. [PP.474&475JD&E NLR 1987 Civil 645 and PLD 1970 Lahore 412 distinguished. (ii) Civil Procedure Code, 1908 (V of 1908)-- —O. IX R. 9—Suit—Dismissal for non-prosecution of—Restoration of— Challenge to—Whether application for restoration was time-barred—Question of-Suit was initially dismissed on 26.6.1982 and thereafter two applications for restoration of suit were made at different times and were dismissed-Third application was made on 21.11.1984, i.e. about 2 years and 5 months after dismissal of suit—Held: Application was hopelessly time-barred and even inherent jurisdiction of court is not to be exercised to grant relief of restoration in such cases—Petition accepted. |Pp.475&476]F&G PLD 1970 Lahore 412 rcl. (iii)Civil Procedure Code, 1908 (\ 7 of 1908)-- —O. IX R. 9—Suit—Dismissal for non-prosecution of—Restoration of— Challenge to—Whether initial order dismissing suit for non-prosecution, was valid or void order—Question of—Contention that when a suit is fixed for settlement of issues, it is supposed to be a date of hearing and suit can be dismissed for non-prosecution—Held: Date fixed for settlement of issues is a dale of hearing and thereafter if any dale is obtained or mailer is adjourned, il is supposed to be adjourned lor a date of hearing and suit could lie dismissed for non-prosecution on adjourned dale, [Pp.-173iV.474|A.I.5\:C PLD 1981 Lahore 95 and PLD 1981 (\T) Karachi. 145 n-l. Mr. M.A. Rashitl Advocate for Petitioners. •Mr. Paiyarwn, Advocate for Respondents No. I to 4 Mr. Muhammad Siddiq Kluiral, Addl. A.C!. for Re^pondenlN 5 to l

. Date of hearing: 18.4.1990. JUDGMENT Abdul Rahini Kazi, J.—The present petition has been filed with the following prayer:— "(a) To declare that the order dated 2.3.1985 passed by the .Senior Civil Judge, Ghotki on an application u/o 9 Rule 9 CPC dated 24.1 1.1984 moved on behalf of the ancestors of the respondents No. 1 to 4 in F.C. Suit No. 119 of 1978 and judgment dated 3.2.1988 passed by the IV-Addl: District Judge. Sukkur in (.'.Rev: No. 13 of 1985 are void ab'inilio and without jurisdiction and lawful authority and are ol no legal ellecl. (/>) Any other declaration or direction or order, that this Hon'blc Court deems fit to grant in facts and circumstances of ihis case." The chequered history of the case is that the ancestor of the present respondents Nos.l to 4 had filed a civil suit being suit No. 119/75 in the court of Senior Civil Judge, Ghotki for the relief of declaration. This suit ultimately came up for hearing on 15.5.1982 from which dale the same was adjourned It) 8.6.1882 for arguments on injunction application and issues. The mailer came up for hearing on 8.6.1982 on which date the Judge was on leave and the case was adjourned to 21.6.1982. The order of Additional District Judge shows thai from this date the matter was postponed to 26.6.1982 for arguments on injunction application and also for the purpose of settlement of issues. However, there is a late diary written by the Reader of the Court which shows that one application under Order 7 Rule 11 CPC was moved on behalf of the petitioners the notice of which was ordered to be issued and the mailer was postponed to 26.6.1982 for arguments on injunction application as well as for the purpose of objections on the application moved on behalf of petitioners under Order 7 Rule 11 CPC. On 26.6.1982 the plaintiff and this advocate were repeatedly called absent while the advocate for the present petitioners (defendants 4 to 7) was present and the suit was ultimately dismissed at 1-10 p.m. An application for restoration was moved by the plaintiff under Order 9 Rule 9 CPC on 1.8.1982. The only ground advanced in this application was that the suit was nol fixed for hearing and as such it could not have been dismissed for non-prosecution and that the suit was fixed only for hearing of interlocutory applications. This application was dismissed on 12.10.1982 by a short order as the plaintiff and his advocate were called absent without intimation and also that the cost for service of the notice of said application on defendants was not paid. The plaintiff thereafter moved another application under Order 9 Rule 9 CPC for restoration of trie suit alongwith an application under Section 5 of the Limitation Act. In this application for the first time the plaintiff introduced a new ground of illness also. This application was contested and was ultimately dismissed on 9.8.1984 on the ground that it was barred by limitation and that this application is not maintainable as a similar application for restoration of suit was previously dismissed. The plaintiff thereafter moved a third application under Order 9 Rule 9 CPC on 21.11.1984. This application was also supported with an application under Section 5 of the limitation Act. This application was allowed by the Senior Civil Judge, Ghotki by an order passed by him on 2.3.1985 and suit was restored on the ground that no objections have been filed to this application by the other side and that the grounds shown in the application are satisfactory. The present petitioners being aggrieved from the said order submitted a civil revision application being Civil Revision No. 13/85 before the Court of District Judge, Sukkur which was heard by the learned IVth Additional District Judge, Sukkur who was pleased to dismiss the said revision application concurring with the findings of the Senior Civil Judge. He has further held that the question of period of limitation will not come in the way of the ancestor of the present respondents Nos. 1 to 4 (plaintiff) as the order of dismissal of suit on 26.6.1982 is a void order. The present petitioners having no other remedy available to them have filed this Constitutional Petition. We have heard Mr. M.A. Rashid, the learned counsel for the petitioners and Mr. Paryaram, the learned counsel appearing for the present respondents Nos. 1. to 4 and also Mr. Muhammad Siddiq Kharal, Learned Addl. A.G. for the official respondents. The basic point which requires consideration in the present matter is as to whether the initial order passed by Senior Civil Judge, Gholki on 26.6.1982 dismissing the suit of the plaintiff was a valid order or void order as held'by the IVth Additional District Judge, Sukkur. The contention of Mr. M.A. Rashid, the learned counsel for the petitioners is that when a suit is fixed for settlement of issues then that is supposed to be a date of hearing in the suit and a suit can be dismissed on this date for non-prosecution if the plaintiff and his counsel are absent. In this behalf reference may be had to the case of Muhammad Hanif v. Province of Punjab (PLD 1981 Lahore 95) wherein a learned single Judge of Lahore High Court has held: "3. Learned counsel for the petitioner contended that the date on which the suit was dismissed in default was not the date fixed for its hearing and, therefore the dismissal of the suit was void ab initio and a nullity. It was pointed out by him that on 15th March 1978 the case was' adjourned to 15th April 1978, the date when it was dismissed for non-prosecution, and that while so adjourning the case it was directed by the learned Senior Civil Judge that summons shall issue to defendant No.l for 15th April 1978. It was conceded by the learned counsel for the petitioner that when suit was registered the learned Senior Civil Judge had ordered issuance of summonses to the defendants for settlement of issues. Thus the summons mentioned in order, dated the 15th March 1978, was of the same category which was referred to in the order by which the case had been 'registered' by the learned trial Court. In view of the provisions of Order IX, rule 1 of the Code of Civil Procedure, the date fixed for framing of issues in a suit is a date of its hearing. The case reported as Shaikh Abdul Hague v. Sycd Muhammad Anwar (PLD 1979 Lahore 332), is an authority in point. In this connection reference can also be made, with advantage, to the provisions of Order X, rule 1, of the Code of Civil Procedure relating to the first hearing of the suit which, according to Chidambaram Chettiar v. Paivathi Achi (AIR 1926 Madras 347), is the date on which issues are framed. Learned counsel for the petitioner did not cite any authority to the contrary. I, therefore, entertain no manner of doubt that 15th April 1978, on which date the suit of the petitioner was dismissed in default, was a date of hearing of the suit and, therefore, it could be dismissed due to the absence of the petitioner and his counsel." Also in the case of Abdul Shokoor-Haji Ammuddin v. Miss Mumtaz and others (PLD 1961 (W.P.) Karachi 145) M.R.Kayani, CJ (as he then was) has observed: "17. Personally I think that apart from rule 1 of Order XVII there is no other provision which provides for an adjournment of the case and that consequently whenever there is an adjournment for "sufficient cause", it is the adjournment of a hearing and something in relation to the case has to be done at the next hearing. As regards the defendant's conduct I reproduce what I observed in Kama! Din v. Muhammad Bashir (PLD 1952 Lahore 456), sitting with S. A Rahman, J:- "We think it appears to have been understood that once a parly receives intimation of an action, it is for him to pursue it and to keep himself in touch with the proceedings, either personally or through his counsel" From the observations made in the above two decisions it is clear that a date fixed for settlement of issues is a date for hearing and once the matter comes up for settlement of issues, thereafter if any date is obtained and the matter is adjourned, it is supposed to be adjourned for a date of hearing and the suit could be dismissed for non-prosecution on such adjourned date. It would be pertinent to note that in the present case the suit had come up for hearing on 15.5.1982. The order on order sheet reads as under:— "Junior of Advocate for plaintiff present. Defendant No.3 is exparte. Advocate for defendants No.4 to 8 present. Defendant No.l and 2 called absent since morning. The suit is fixed for W.S. of defendant 1 and 2. Since defendants No.l and 2 are absent without intimation, let the suit to proceed exparte against defendant$>No.l and 2. Advocate for plaintiff has sent adjournment application on personal ground. Order thereon. Last chance granted. Put off to 8.6.82 for arguments on injunction application and issues." This shows that matter was adjourned to 8.6.1982 for issues also and then it is admitted by Mr. Paryaram, learned counsel for the present respondents Nos. 1 to 4 that on this date the Judge being on leave suit was adjourned to 21.6.1982 from which date it was again adjourned to 26.6.1982 for arguments and issues and thereafter a late diary was written by the Reader of the Court wherein it is mentioned that the suit is adjourned for filing of abjections to the application under Order 7 Rule 11 CPC and arguments on injunction application. Mr. Paryaram, the learned counsel for the respondents, therefore, has submitted that because of late diary it should be presumed that suit was fixed on 26.6.1982 only for the purpose of filing of objections and for hearing of injunction application and, therefore, the suit itself could not have been dismissed and that the order of dismissal of the suit on this date is a void order and therefore, the question of limitation is also not involved in the case. He has placed reliance on the case of Lilhocraft Corporation v.A Habib (NLR 1987 Civil 645). In our view this case does not help the present respondents as in this matter the second application for restoration of the main case was also moved within the period of limitation as permissible under law. The learned counsel for respondents has further placed reliance on the case of Mst. Ghulam Sakina v. Karim Bakhsh (PLD 1970 Lahore 412). In our view this case also does not help the present respondents as in this case it was observed that the suit cannot be dismissed when it is fixed for determining some interlocutory matter such as filing of replication. In this case also Nasim Hasan Shah, J (as he then was) was pleased to observe: "4. In this revision petition Ch. Abdul Rahman, Advocate has contended that Section 5 of the limitation Act has not been made applicable by any enactment or rule to an application under Order IX, rule 9 of the C.P.C. and, therefore, the Court had no jurisdiction to admit the application after the period of limitation had expired. He further urges that if an application to set aside a dismissal for default under Order IX,_ rule 9,. C.P.C. is made after the period prescribed for making such application has expired, even the inherent jurisdiction of the Court cannot be invoked to set aside the dismissal." From the above discussion it may be observed that on 21.6.1982 the suit was adjourned for hearing of arguments on injunction application as well as for settlement of issues and that late diary written by the Reader of the Court would not be a substitute for the earlier diary but can at the most be an extension or supplement to earlier case diary. It cannot, therefore, be said that the suit on 26.6.1982 was not fixed for settlement of issues but it can safely be assumed that suit was also fixed for settlement of issues and was rightly dismissed for non-prosecution. The order passed on this date is quite lawful and the findings of the learned additional District Judge to the effect that it is a void order is without lawful authority. The other aspect of the case is with regard to the period of limitation. The history of the case shows that the suit was initially dismissed on 26.6.82 and thereafter two applications under Order 9 Rule 9 CPC both for restoration of suit were moved at different times which were dismissed on merits and therefore, this third application under Order 9 Rule 9 CPC which was also moved for restoration of suit itself on 21.11.1984 i.e. about 2 years and 5 months after dismissal of the suit is hopelessly time barred and in such cases even the inherent jurisdiction of Court is not to be exercised to grant the relief of restoration of the suit as held in the above cited case of Mst. Ghulam Sakina v. Karim Bitx as from the very beginning the plaintiff had the knowledge of dismissal of his suit. For the above reasons we find that the orders passed by the respondents Nos. 8 and 9 are without lawful authority and the same are quashed with the result that suit No. 119/75 filed by the ancestor of the present respondents Nos. 1 to 41 stands dismissed. However, there will be no order as to costs as the mattcri involves legal points. Above are the reasons for our short order announced on 118.4.1990. (MBC) Petition accepted.

PLJ 1990 Karachi 476(DB) PLJ 1990 Karachi 476(DB) Present: imam Au G. kazi, AND sali;i-:m AKHTAR, JJ MUHAMMAD HISAMUDDIN ANSARI-Petitioner Versus CHIEF SECRETARY, SINDH and 8 others-Respondents Const, petition No. D-892 of 1987, accepted on 10.5.1990. (i) Constitution of Pakistan, 1973-- —Art. 199(a)(l)(i)~Constitutional petition—Maintainability of—Challenge to— Contention that as no order of any authority has been impugned, petition is not maintainable-Held: A High Court, under Article 199(l)(a)(i) .of Constitution, can always pass an order directing a person performing functions in connection with Federation or Province or a Local Authority, to do anything which he is required by law to do [Pp.480&481JA PLD 1979 SC 846 rel. (ii) Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)-- —-S. 2(2)(3) & (4)-Petitioner's claim for garden land-Whether a pending case- -Question of-Claim of petitioner in respect of garden land was transferred for satisfaction in Karachi District as early as 1962, and was pending for satisfaction at time of repeal of Evacuee Laws—Held: Petitioner's case was always considered to be pending case in terms of Section 2(2)(3) & (4) of Act- Held further: Survey No. 21 of Deh Bitti Amri is an unallotted and available evacuee land—Petition accepted and Respondents 1 & 2 directed to satisfy claim of petitioner out of said evacuee land. [P.481JB&C Mr. Ahmad YousiifAli Rizvi, Advocate for Petitioner. Mr. Abdul Ghafoor Mangi, Addl. A.G. and Mr. Mubarak Hussain Siddiqui, Advocate for Respondents. Dates of hearing: 10 & 15.1.1990. judgment Imam Ali G. Kazi, J.—The petitioner, Mohammad Hisamuddin Ansari, is a displaced person and claimant having migrated to Pakistan from India. On his migration to Pakistan, he obtained a verified claim for agricultural land equivalent to 1598 Produce Index Units and garden Land equivalent to 259 P.I.U. He succeeded in getting agricultural land in Taluka Shahdadkot and Ratodero of Larkana District while his claim for garden land remained un-satisficd. In orderto get garden land in satisfaction of his claim he occupied some portion of a garden known as Ghian Bagh in Larkana. He made repeated representations to the Rehabilitation Authorities to allot him garden land in his possession. Ultimately in the year 1962 his request lor allotment of that area out of Ghiun Bagh was turned down as it was a big garden and was transferred to Larkana Municipality to he used as a public park. He then made representations to the then Prime Minister (Mr.Z.A. Bhutto) and thereafter even assisted Martial Law Administration to facilitate satisfaction of his remaining claim. Certain favourable orders were passed by competent authorities to satisfy his such claim in Taluka Karachi. Survey No. 21 situated in deh Bitti Anvi of Taluka Karachi District Karachi (East) remained an unallotted evacuee property and the hastened to occupy some of its portion in the hope that his claim could be conveniently satisfied. His repeated representations to various concerned authorities bore no fruit and the Evacuee Laws were repealed. 2. On one occasion in 1974 it appears that the Senior Member, Board of Revenue passed an order that survey No. 521 and 524 of dch Gujro of Taluka Karachi be allotted to the petitioner. It was subsequently found that the said survey numbers were already allotted to some one else. Thereafter the Additional Commissioner, Karachi recommended allotment of some area mil of survey No. 21 of deh Bitti Amri to the petitioner. The survey No. 21, dch Bitti Aiwi was being claimed by Aligarh Muslim University Old Boys Housing Society and they started interfering with his possession. The petitioner when he failed to get a formal allotment order of that area, filed this petition with a prayer to direct the official respondents to allot him the said area. 3. The Aligarh Muslim University Old boys Housing Society claims that survey No.21 of deh Bitti Amri has been transferred to it. They were not initially made a party in the petition but were joined at their request as one of the respondents, 4. Mr. Shafiullah Siddiqui, Office Secretary of Aligarh Muslim University Old boys Housing Society filed a counter-affidavit in reply to the petition. According to the facts stated therein the said Society had purchased an area of 199.38 acres from certain individuals in deh Bitti Amri in the year 1970-71. Subsequently, after Scheme No. 33 was notified and framed for the purpose of allotting land to the bonafide Societies registered under the Co-operative Societies ct, 1925 the land purchased by them fell in sectors 5-A, 6-A, 7-A and 9-A of that Scheme. They had also made an application for grant of 500 acres of Government land in that Scheme. The Government of Sindh vide their letter No. 5881/73/6833-P.I. dated 18.7.1973 intimated the Deputy Commissioner, arachi that an area of 40 acres in KDA Scheme No.33 was sanctioned for allotment to the said Society. The detailed terms and conditions of the allotment and allocation of land according to that letter were to be intimated latter on. Yet by another letter bearing No.L.U.II/15/73-G(K)-I dated illegible .4.1977 whereby the Deputy Commissioner, Karachi was again intimated that an additional area of 40 acres at the revised rate to be fixed by the Government was sanctioned in favour of the said Society. It was clarified that the site allocation of the land will be done later on after the detailed sector-wise plan of the remaining land was prepared by the K.DA. The Society also applied that their land purchased from private persons was scattered and that it may be exchanged and consolidated with 80 acres of land granted to them by the Government of Sindh. They started correspondence with Deputy Commissioner, Karachi (East) and the K.D.A., for their such proposal and obtained certain lay out plans. 5. Mr.-Aya/ Hussain Ansari, Member, Board of Revenue (Land Utilization) Cioyefnmeni of Sindh has filed his counter-affidavit. According to him, the petitioner is noi entitled to relief claimed by him as his case does not come within the category of pending cases and his claim oi garden land equal to 259 PIUs. Can only cover less than 2 acres of area and not 4.50 acres as claimed by the petitioner. He further contended that area claimed by the petitioner is an area notified to be meant lor building sites and such land cannot be granted in satisfaction of claim for garden land. The petitioner, according to him, at best is entitled to cash compensation at the rate of Rs. 10/- per unit according to the Scheme applicable to his case.' 6. Mr. Ahmed Yousuf Ali Rizvi, the Advocate for the petitioner mainly contended that the case of the petitioner for the purposes of satisfaction (of) his claim for garden land remained pending long before the repeal of the Evacuee Laws and, therefore, ought to have been de ided on the basis of laws applicable before the repeal. He pointed out certain documents filed by the petitioner particularly the summary dated 22.10.1984 prepared by Mr. Altaf Hussain Qadri, Secretary to the Government of Sindh, Land Utili/.ation Department for the Governor and Martial Law Administrator shows that the case of the petitioner was indeed a pending case at the lime of repeal of Evacuee Laws and required to be decided under the relevant Scheme at that time. The summary is reproduced hercinbelow: "Government of Sind Board of Revenue, Hyderabad. SUMMARY FOR THE GOVERNOR MARTIAL LAW ADMINISTRATOR. 22.10.1984 SUBJECT: REQUEST FROM MUHAMMAD HISAMUDDIN FOR GRANT OF URBAN/GARDEN EVACUEE LAND IN KARACHI DIVISION. This case relates to the request of Mr. Muhammad Hisamuddin Ansari for grant of urban/Garden Evacuee land in Karachi, in lieu of his verified Garden units which have not yet been satisfied. 2. The facts of the case are that his entitlement for Agriculture land was settled in Taluka Shahdadkol, District Larkana. As regards U.R.V. i.e. Garden/Urban entitlement Certificate, Gayan Bagh Larkana was in possession of the applicant against his claim. In the meantime this Gayan Bagh was acquired and given to Municipal Committee, Larkana by the Government of Pakistan, Ministry of Rehabilitation. The applicant filed Writ Petition No.568/62 in the High Court. The case was remanded to the Settlement Commissioner, Khairpur. It was held that the claim of the applicant may be satisfied elsewhere provided a garden land is available. 3. The applicant from time to time made applications to the defunct Settlement Authorities as well as Ex^Prime Minister of Pakistan for llotment of land in Karachi in lieu of his garden land taken forcibly by the Municipal Committee, Larkana. 4. The Chief and (?) Rehabilitation Commissioner (Land), Pakistan under his letter dated 8.5.1971 directed the Deputy Commissioner/Additional Settlement Commissioner (Land), Larkana that the claim of the applicant should be settled in his District in the first instance. If, however, it is not possible to satisfy his claim in his District, same may be transferred to an other District of Khairpur Division having a surplus garden area with the approval of the Settlement Commissioner (Lands) of the Division for its satisfaction according to law. 5. The applicant in 1975 made an application to the Ex-Chief Minister of Sind for allotment of land in Karachi in lieu of his garden land taken over by the Municipal Committee Larkana. A decision was taken that he may be given cash compensation in lieu of claim as the Evacuee Laws were repealed. But it was not considered by the Settlement Authority as the case of the applicant was coming within purview of Section 2(2)(3)(4) of the Evacuee Properly Displaced Persons Laws Repeal (Acl)1975, whereunder the pending cases of the claims have to be settled by the Board of Revenue, Sind. 6. The Board of Revenue, Sind has examined the case of the petitioner in light of decision of Supreme Court as well as Law Department advice and found that his claim is pending one and land to the extent of 4-20 acres equivalent of 259 P.I. units may be granted to him in satisfaction of his units in District Karachi (East) or (West) from the available Evacuee Agriculture land. 7. A summary is, accordingly, submitted to the Govcrnor/MLA Zone 'C through the Chief Secretary for approval/orders on para f> supra. Sd/- (ALTAF HUSSAIN QADRI) SECRETARY TO GOVERNMENT OF SIND, LAND UTILIZATION DEPARTMENT." Reliance has been placed by him on the case reported as PLD 1979 SC 846. 7. Mr. Abdul Ghafoor Mangi, the Assistant Advocate General Sindh, contended that as no order passed by any of the official respondents has been impugned in the petition and as the case of the petitioner was rejected by the Settlement Commissioner in the year 1964, his claim cannot be considered to be a pending case. At best, according to him, the petitioner is entitled to cash compensation. 8. Mr. Mubarak Hussain Siddiqi, Advocate appearing for Aligarh Muslim University Old Boys Society contended that the case of allotment of land out of survey No.21 of deh Billi A/nri in favour of the petitioner cannot be considered as the said Society has paid the price of the entire land comprised in survey No.21 under orders of the Government. According to him, 80 acres of land was allotted to the said Society under the Statement of Conditions issued by the Government of Sindh (land Utilization Department) in exercise of their powers conferred by sub-section (2) of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 vide their notification No. 869/71 -4083.P.I. dated 22nd June, 1971 published in the extra-ordinary issue of the Sindh Government Gazette on 24th June, 1971. The land that was purchased by the Society from private persons was compacted with the area of 80 acres allotted to the Society in terms of Condition No. 7(2) of the said Statement of Conditions. He relied on two letters of Government of Sindh indicating that the said society was allotted 40 acres of land in the said scheme and additional area of 40 acres was also allotted to them in the same Scheme. The allocation of particular land according to both the letters was to be made later on. Both Mr. Mubarak Hussain Siddiqi, Advocate for the Society and Mr. Abdul Ghafoor Mangi, Assistant Advocate General have not been able to produce any order indicating that particular land including survey No.21 of deh Bitti Ainri was allotted to the said Society till this date. According to Condition No. 7 of the Statement of Conditions referred to hcrcinabove unit of allotment will not be less than 40(20) acres or more than 100 acres inclusive of anv land the applicant'/Society owns in the Scheme. The said Society according to their own showing already owned an area of over 199 acres within the Scheme and no Authority under the said Statement of Conditions was competent to allot a single acre to them. The intention of the Government of Sindh to allot 80 acres of land to the Society as conveyed in the two letters mentioned above remained to be a proposal and none of the Committees constituted under the Statement of Conditions ever scrutinised their applications and recommended allotment of actual land. The said Society is said to have purchased a substantial area of over 199 acres of land which cannot by any stretch of imagination be considered to be scattered land. In fact Master Plan Department of the K.D.A. had informed the Society that their land was included in particular Sectors. Exchange of land in any event could .only be allowed and other land allotted in lieu thereof in terms of provisions made in Condition No.7(2). The Society has also not been able to produce any order passed by the Government of Sindh allowing them exchange and allotting them land in lieu of that land. It seems that under the patronage of certain officers in the K.D.A., and Revenue Department the Society was able to grab valuable land without any valid orders. It need not be stressed that under Condition No.6 it is the Government of Sindh alone that has been conferred the power to allot land to any Society within the Scheme. No authority sub-ordinate to the Government can either allot land under Condition No.6 or permit exchange under Condition No. 7(2) of the said statement of conditions. Under these circumstances, we arc inclined to hold that survey No.21 of deh Bitti Amri or for that matter any other land was never allotted to the said Society. The survey No.21 of deh Bitti Amri continues to be unallotted evacuee land. 9. Mr.K.M. Nadeem, the Assistant Advocate General, Sindh during the course of hearing on 25.4.1989 stated, "petitioner's entitlement to allotment of land is not disputed in lieu of Gayan Bagh Property. The only question is whether land is available in District East and West, Karachi for allotment to the petitioner." 10. We are also unable to agree with the contention of Mr. Abdul Ghafoor Mangi, Assistant Advocate General Sindh that as no order of any authority has been impugned in this petition, the petition itself is not maintainable. A High Court under Article 199(l)(fl)(0 of the Constitution can always pass an order directing a person performing functions in connection with the Federation or Province or ' a Local Authority to do anything which he is required by law to do. Such a direction can always be issued if an authority either omits to take decision or avoids to decide a matter to pass appropriate orders in accordance with law. We. therefore, direct that the claim of the petitioner in respect of garden land shall be satisfied out of land survey No.21 of deh Billi Amri as far as it may be possible. By following the above course, we are fortified by the guide line indicated in the case reported as PLD 1979 S.C. 846. 11. We in view of above are inclined to hold that the claim of the petitioner in respect of garden land was transferred for satisfaction in Karachi District as early as 1962 and was pending for satisfaction at the time of repeal of Evacuee Laws to be decided by the notified authorised officer under the Scheme then relevant for the purpose. The case of the petitioner as pointed out above was B always considered to be pending case in terms of Section 2(2)(3)(4) of the Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. As indicated above, we have also reached the conclusion that survey No.21 of deh Bitti Amri is an unallotted and available evacuee land. 12. In view ut above, we allow this petition and direct the respondents No.l and 2 to direct the notified authorised officer lo satisfy the claim of the petitioner C out of evacuee land comprised in survey No.21 of deh Bitti Amri as far as it may be possible under the Scheme applicable at the relevant time. 13. Before parting wilh the case as we have noticed that the Society with the active assistance of certain officers of the K.D.A. and Revenue Department succeeded to illcuullv occupy valuable Government land, we would leave it open to the respondent No.l to order or conduct a probe in the matter and take appropriate action against the delinquent officers. A copy of this judgment shall be sent to him. (MBCj Petition accepted.

PLJ 1990 Karachi 481 PLJ 1990 Karachi 481 Present: muhammad ma/iiar Au, J EHSAN-Appellant versus Mrs. MAIMOONA-Respondent F.R.A Nos. 349 and 376 of 1985, dismissed on 2.6.1990 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- — -S. 15 (2)(vi) read with S. 15-A(4)-Tenant-Ejectment of-Appeal against- Bonafidc requirement for reconstruction of building-Ground of-Whether respondent is legally obliged to construct a composite building to make • provisions of Section 15-A(4) workable— Question of—Plain and unambiguous ! language of Section 15(2)(vi) leaves no manner of doubt that landlord is under no legal bar to reconstruct or erect a new building or site, of same type which he had demolished— Held: It is manifestly clear that landlord has an absolute and unfettered right to restore or erect a new building of any type, either of same type as one demolished or of a different type than that of demolished building on site of demolished building-Both appeals dismissed. |Pp.4X3&4S4]A&B 1988 CLC 1363 and PLD 1983 SC 342 rcl. Syed Inayat All, Advocate for Appellant (in FRA 349/85). Mr. B.M.Bangesh, Advocate for Appellant (in FRA 376/85) Mr. N.K. Jatoi, Advocate for Respondent (in both appeals). D ate of hearing: 23.4. ] 99(1 judgment For the sake of convenience, I propose to decide these two appeals by this single order as they involve common questions of law and facts. Mrs. Maimoona Begum, the respondent in both the appeals is the owner of the property bearing No.R-483, Block 2, Federal 'B' Area, Karachi, consisting of two shops and a residential portion. Ehsan son of Shafi, appellant in F.R.A. No.349/1985 is the tenant of shop (Hamam) on a monthly rent of Rs.80/-; whereas Habccb son of Bandeh Ali, appellant in F.R.A. No.376/1985 is also a tenant of one shop on a monthly rent of Rs.85/-. On 20.7.1981, the respondent filed two separate applications u/s. 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") for eviction of the appellants from their respective premises on the sole ground of reconstruction of building after demolishing the existing old structure for her own use. The appellants contested the ejectment applications by filing separate written statements commonly pleading, intcr-alia, that the existing structure is sound enough for raising first floor residential accommodation for her (respondent's) use, that if she would desire to demolish it then she should either re-accommodate the appellants in the newly constructed building or give them a-suitable alternative accommodation. The approved plan of the proposed building was alleged to have been obtained fraudulently by suppression of facts. 2. After recording the evidence of the parties and hearing the arguments of both the counsel for the parties the learned Rent Controller vide impugned orders, has held that the respondent requires the premises in-qucstion for reconstruction, for her bonafide personal use and hence he has allowed the ejectment applications with a direction to the appellants to vacate their respective premises within two months from the date of his order. Hence these appeals; 3. Mr. Syed Inayat Ali, learned counsel for appellant Ehsan, in F.R.A. No.349 of 1985, contended that the respondent has got the plan approved for

reconstruction of the residential uilding at the site thereby providing no provision for construction of a shop. She has thus acted in a manner which would result in depriving the appellant of his vested legal right under sub-section (4) of Section 15A of the Ordinance, which lays down that the tenant, who is directed to put the landlord in possession of the premises for reconstruction or erection of the

building at the site, would be entitled to apply to the Controller for an order directing the landlord that he be put in possession of such area in the new building which does not exceed the area as the old building of which he was in occupation and the Controller shall make an order accordingly in respect of the areaapplied for or such smaller area, as considering the location, and type of the new building and the needs of the tenant, he deems just. The counsel, therefore, emphasi/ecl that since in the instant case, the construction of the new building would result in complete ouster of the appellant from the non-residential premises presently occupied by him, and it being in derogation of the specific provision of law made for the protection of the tenant, the learned Rent Controller should not have allowed the ejectment application. The counsel also drew my attention to a Single Bench authority of Baluchistan High Court in the case of Muhammad Hafeez and another vs. Muhammad Azeem and 9 others reported in 1984 CLC 1983, to contend that the respondent having failed to establish or prove her bonafide need for personal requirement, as pleaded by her in paragraph 2 of the ejectment application, hence the application for ejectment on the sole ground of reconstruction of the building was not a valid ground for ejectment. The shop in occupation of the appellant is being used exclusively for non-residential purposes and hence, according to Mr. Inayat Ali, it could not be got vacated for the use of respondent landlady for construction of residential building. 4. Mr. B.N. Bangash, learned counsel for the appellant in F.R.A. No.376 of 1985, besides adopting the arguments of Mr. Syed Inayat Ali, Advocate also contended that since the respondent has failed to establish a case of her personal need, by not disclosing the number of her family members the particulars of the accommodation presently in her occupation, the respondent could not ask for the eviction of the appellant from the demised shop for reconstruction of the building. elying upon the case of Muhammad Ahmed vs. Rana Muhammad Rafique, 1986 MLD 175 f

. wherein Mamoon Ka/i, ,1. has held that "when insufficiency of existing accommodation was being pleaded by the appellant, then it became incumbent upon him to provide details about the accommodation available with him with particular reference to the number of rooms or total area covered by the uilding." It is further held in this reported case that in order to deprive the tenant of the rented premises on the ground of personal requirement, the landlord has to establish his bona fides and good faith clearly and definitely and where he fails to do no his application is liable to be dismissed. In the instant case, Mr. Bangash so contended, the respondent has utterly failed to establish her bonafide requirement of the demised premises. Inviting my attention to the legal notice, dated 29.4.1981 (E.S) served upon the appellant on ehalf of the respondent, Mr. Bangash submitted that there is no mention therein of the alleged fact that the premises then occupied by the respondent was not sufficient for her needs and that she required the demised premises for reconstruction for her personal use. The counsel also submitted that in the ejectment application the respondent has given her residential address to be of a house in Kharadar, whereas in paragraph 2 of the Application she has stated that she was residing in her in laws' house without disclosing the particulars thereof. 5. None appeared on behalf of the respondent at the hearing of the appeal. Having given due consideration to the submissions made by the learned counsel lor the appellants and have (?) also carefully perused the evidence of the parties as well as the impugned Order, I have reached the conclusion that there was no merit in these appeals. On the conclusion of hearing on 23rd April, 1990, I dismissed both the appeals by passing short Order as unden- "For reasons to follow, the appeals are held to be devoid of force and they are accordingly dismissed. The appellant is, however, allowed 3 (three) months' time to vacate the premises." I, therefore, now proceed to record my reasons therefor. The existing building is admittedly a commercial cum residential one. On the ground floor there are shops while in the upper floor there are residential tenements. This building is proposed to be demolished and on the site thereof a new building is intended to be constructed as per duly sanctioned plan (Ex.7). The approved plan is only for residential building and there is no provision in it for the construction of shops on the ground floor. The first question therefore, arises is as to whether the respondent is legally obliged to construct a composit building on the site so as to make the provision of Section 15-A(4) of the Ordinance workable. The plain and B unambiguous language of Section 15(2)(vi) of the Ordinance leaves no manner of doubt that the landlord is under no legal bar to reconstruct or erect a new building on the site of the same type which he has demolished for the purpose of reconstruction or erection of a new building at the site. It is not even so provided in any other law for the time being in force nor has the learned counsel for the appellants assailed the approval of the plan for new building on the ground of its being in derogation of some legal provision. It is thus manifestly clear that the landlord has an absolute and unfettered right to restore or erect a new building of any type either of the same type as the one demolished or of a different type than that of the demolished building on the site of the demolished building. It seems appropriate to refer to the following observations made by the learned Singl Judge of the Lahore High Court in the case of Messrs Delite House Ltd. vs. Fayyaz Akbar (1988 CLC 1363). At page 1369 of the report in this judgment it is held as follows:- "On the plain language of the statute, if the landlord succeeds in proving that he "intends" to demolish the building to construct a new one in its place and has obtained the necessary sanction from the competent authority, he may not be asked to show that his intent lacked good faith or reasonableness. Section 17(2) (vi) of Rent Act, 1963 as regards its language was identical with Section 13(2)(vi) of the West Pakistan Urban Rent Restriction Act, (?) 1959 (it is, in turn, identical with Section 15(2)(vi) of the Ordinance). Cantonments Rent Restriction Act as has been said above by me does not limit or restrict the right of the owner to develope his property and it is this right which the respondent seeks to exercise. Comparative requirement of the premises by the tenant and his inconvenience in this behalf are immaterial. Therefore, even if elements of good faith and reasonableness are to be read in the context of Section 17(2) (vi), there is nothing to doubt the credentials of the respondent in regard to his good faith and his requirement being reasonable." 6. At this stage, fortunately, I have been able to lay hands, of my own, to an authority of the Hon'ble Supreme Court in the case of Abdul Hadi alias Abdul Hadi Hasan and 2 others vs. Syed All Haider and others (PLD 1983 S.C. 342), wherein a similar issue was involved. It was a case under Section 13(2) (vi) r/w. 5- • B of the West Pakistan Urban Rent Restriction Ordinance, 1959, which is identical to Section 15(2)(vi) of the Ordinance. In that case also it was argued on behalf of the tenants that they were occupying the shop in the old building and the new building shall be a residential building, it will not be possible for them to obtain the possession of the area in the new building corresponding to what they were occupying in the old building in view of the fact that there will be no shop in the new building. Repelling this contention, the Supreme Court held as under:- "We observe that clause (vi) or subsection (2) of Section 13 of the Ordinance also does not impose any restrictions or limitations as to that type of a new building may be built on the site of the old building, after reconstruction. We also note that there is no law which prevents a non-residential building from being converted, after reconstruction, into a residential one. Consequently, if the contention raised by the petitioners was accepted and subsection (5-B) of Section 13 was held to debar the landlord from making reconstruction, whereby shops could not be demolished and. a residential building constructed on the site, this would amount to imposing a limitation which does not exist in law. The reading of both the provisions in harmony would yield the result that sub-section (5-B) of Section 13 comes into play only where the old building consisting of shops even after reconstruction retains the character of shops and also in those cases where the old building is a residential building and new building on re-construction is again built as a residential building. This subsection would not apply in cases where a non-residential building is, after reconstruction, converted into a residential building. In Abdul Bari vs. KJiadiin Hussain (1) this Court has already pointed out that the acceptance of the plea that shops cannot on reconstruction be converted into a residential building would result in preventing future development of the property, even though its environment and the requirements of the community at large may have changed. Similarly, in Chulam Nabi vs Muslitaq Ahmad (2) it was pointed out that "whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develope his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature." In the instant case as the reconstruction in the building sought to be made by the landlord is to substantially develop and improve the property the landlord's requirement must be held to be bonafide and reasonable." (1) PLD 1978 S.C. 78 (2) PLD 1980 S.C. 206." 7. The above authority of the Supreme Court is a complete answer to the contentions raised by the learned counsel for the appellants. I do not, therefore, feel call upon now to deal with this aspect of the case any longer in view of the above reproduced authoritative judgment of the Hon'ble Supreme Court. In the result, the appeals and stand disposed of as indicated above. (MBC) Both appeals dismissed.

PLJ 1990 Karachi 485 PLJ 1990 Karachi 485 Present: HAZfiEKUL KHAIRI, J -Plaintiff Versus M/S RIZWAN BUILDERS LTD-Defendant CMA Nos. 3907 and 3908 of 1988 in Suit No. 421 of 1988, and CMA Nos. 3280 and 3281 of 1988 in Suit No. 156 of 1988, decided on 18.3.1990 (i) Arbitration Act, 1940 (X of 1940)-- —-S. 34 read with Civil Procedure Code, 1908, Order XXXVII Rule 3~ Recovery suit-Proceedings of-Staying of-Prayer for-A bare reading of arbitration clause will reveal that there is an agreement to refer to arbitration— Evidently there is a dispute which is also subject matter of suit—Held: Since defendants have not taken any steps in proceedings, they have made out a case for stay of suit-Application for stay in Suit No. 156 of 1988 accepted. [Pp.495&496JD (ii) Arbitration Act, 1940 (X of 1940)-- —- S. 34 read with Civil Procedure Code, 1908, Order XXXVII R. 3-Recovery suit—Proceedings of—Staying of—Prayer lor—Though agreement refers to "dispute" between parties, yet there is nothing to suggest that there was an arbitration agreement or that "architect" mentioned therein was to act as arbitrator—There is nothing to indicate ouster of jurisdiction of court—Held: Application for stay of proceedings is mis-conceived—Application rejected but application for leave to appear and defend suit No. 421 of 1988 accepted. [Pp.494&495]C (Hi) Civil Procedure Code, 1908, (V of 1908)-- —-O. XXXVII R. 3 read with Arbitration Act. 1940, Section 34-Leave to appear and defend—Application for—Stay of proceedings in suit—Simultaneously filing of—Whether application under O. XXXVII R. 3 will tantamount to taking a step in proceedings within meaning of Section 34 of Act—Ouestion of—Fact that defendant has filed an application under Section 34 of Act simultaneously with his application for leave to appear and defend suit, establishes his unequivocal intention not to submit to jurisdiction of court—Held: II cannot be said that defendant has taken steps in proceedings within meaning of Section 34 of Arbitration Act. [P.490JA PLD 1981 SC 553, PLD 1967 Dacca 250, PLD 1956 Lahore 442, AIR 1950 Bom. 127, AIR 1962 Cal. 541, AIR 1925 Cal. 801, and 1913 Vol. 108 Law Times 921 rcf. (iv) Civil Procedure Code, 1908 (V of 1908)-- —-O. XXXVII R. 3 read with Arbitration Act, 1940, Section 34-Lcave to appear and defend—Application for—Stay of proceedings in suit—Application for— Simultaneously filing of—Which application has precedence over other to be first taken up, heard and decided—Ouestion of—Held: Application under Section 34 of Act is a substantive application and if no other step is being taken in proceedings by defendant, his application under Section 34 shall have precedence over an application under Order XXXVII Rule 3 CPC for being taken up and decided first. [Pp.493&494]B PLD 1982 Karachi 745, PLD 1987 Karachi 102, PLD 1985 Karachi 745 and 1940 All E.R. 151 rcf. M/S S.E. Hmsuin, Salalnulilin and S. Mamnoon Hmsain, Advocates for (not written in judgment whom they represent). Mr. KamalAzfai; Advocate and Mr. ,!.,!. Sharif, Advocate, as umicus airiac. Date of hearing: (not given). By this order I will dispose of C.M.A. No.3907/88 and C.M.A. No.3908/88 in Suit No.421/88 and C.M.A. No.3280/88 and C.M.A. No.3281/88 in Suit No. 156/88. Both the said suits are under Order 37 CPC and in both the defendants have simultaneously filed two applications, one under Order 37 Rule 3 CPC for leave to appear and defend the suit and the other under Section 34 of Arbitration Act, 1940 for stay of the suit. The crucial point which came up for consideration while the said two applications were put up for hearing in both the said suits was which of them be taken up, heard and decided first. In order to fully appreciate the legal implications it would be worthwhile to reproduce relevant provisions of Order XXXVII CPC as well as Section 34 of Arbitration Act as under:- "Order XXXVII Rule 2 CPC. Institution of summary suits upon bills of exchange, etc.- (1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaint ill desires to proceed hcreunder, be instituted by presenting a plaint in the form prescribed, but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed. (2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend, and, 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— (a) ....................................... (c) ....................................... (3) ....................................... O.XXXVII Rule 3 CPC. Defendant showing defence on merits to have leave to appear. (1) The Court shall upon application by the defendant, give leave to appear and to delend the suit, upon affidavits which disclose such tacts as would make it incumbent on the holder to prove consideration, or such other faels as the Court may deem sufficient to support the application, (2) Leave to defend' may be given unconditionally or subject to such terms as to payment into Court, giving .lecurily, framing and recording issues or otherwise as the court thinks lit. (3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)." S.34 of Arbitration Act.-- Power to stay legal proceedings where there is an arbitration agreement. Where any .party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings, may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason any (?) the matter should not be referred in accordance with the arbitration agreement and that the applicant, was, at the time when the proceedings were commenced, and still remains ready and willing to do all things necessary to the properly conduct of the arbitration, such authority may taken (?) an order staying the proceedings." It will thus be seen that under the above provisions of Order XXXVII Rule 3 CPC a defendant will only be entitled to appear and defend the suit if permission is granted lo him by the Court. In other words if permission is not granted or is not applied for or conditional order granting leave is not complied "with by the defendant a decree in consequence will follow as provided under Order XXXVII Rule 2 CPC. Section 34 of the Arbitration Act on the other hand enables a parly to an arbitration agreement to apply lo the judicial aulhority for stay of suit before filing of written statement or taking any step in the proceedings so thai the dispute between Ihe parlies may be resolved through arbitration instead of Court. There is however nothing in Order XXXVII CPC or anywhere in C.P.C. which expressly bars an application for stay of summary suits although it may be argued that stay of suit without first obtaining leave to defend the suit under Order XXXVII Rule 3 CPC is barred by necessary implication. Similarly it may be urged from the other side that under Section 34 of the Arbitration Act, the proceedings in the suit may be ordered to be stayed by a Court irrespective of the suit being regular or summary the legislature making no distinction between the two. These questions alongwith others came up for discussion during the course of argumenls when Mr.A.A. Sharif and Mr. Kamal Azfar Senior Advocates of this Court were requested lo act as amicus curiae and the following questions were formulated:- 1. Whether in the face of Order XXXVII Rule 3 CPC requiring the defendant first to oblain leave to appear and defend the suil, an application for stay of suit under Section 34 of the Arbitration Acl is maintainable? 2. Whether filing an application under Order XXXVII Rule 3 CPC for leave to appear and defend the suit will tantamount lo taking a slep in Ihe proceedings wilhin the meaning of Section 34 of the Arbitration Act? 3. Which of the said applications has precedence over (he olher to be first taken up heard and decided? 4. Whether Section 34 of the Arbitration Act is made applicable to summary suits under Order XXXVII Rule 2 CPC? 5. What is the significance, effect and consequence when both the said applicalions are filed simultaneously? Learned counsel for the parties as well as learned amicus curiae candidly conceded that there is no direct case law on the points involved but in a few cases situation such as this has been anticipated by Courts laying down certain guide lines which might be helpful in the instant case.I will however take up the question No.2 first. According to Mr.A.A.Sharif, learned amicus curae, the conduct of the defendants is to be objectively assessed in determining this question and if their conduct shows unequivocally their intention to defend the suit they would be disentitled to press into service provisions of Section 34 of the Arbitration Act. In support reliance was placed on P.IA. Corporation VS: Pak-Saf dry cleaners Limited reported in PLD 1981 S.C.553 in which it was held as follows:- "In my opinion, the true tests for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be satisfactory test in many cases but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to have the matter disposed of by arbitration." In Badshah Meah Sodagar Vs: Noorul Haq PLD 1967 Dacca 250 it was held as follows:- It has been ,if I may say so with respect, very rightly held, "The true test for determining whether an act is a step in the proceedings is not so much the question as to whether there has been an application in the suit although, of course, that would be a satisfactory test in many cases -but whether the act displays an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration." It was also held in the case that the filing of an unconditional appearance in Court was not a step in the proceedings as it was an act which was incumbent upon the defendant in order to prevent the suit from being set down as being undefended. The ratio decidendi of the case is that a Court must apply its mind to the facts and circumstances of each case and to decide for itself whether the conduct displayed by the defendant can be construed as acquiescence in the proceedings that have been instituted in the suit." Other cases relied upon are Badshah Meal Sodagar Vs: Nooml Haq and others PLD 1967 Dacca 250, province of Punjab v. M/S. Irfan and Co. PLD1956 Lah: 442, Nooniddin Abdul Hassain v. Abu Ahmed Abdul Mil, A.I.R. 1950 Bom. 127, Dunichand Sons & Co. v. Fort Gloster Industries Ltd. A.I.R.1962 Cal:541, Bhawanidas Ramgovind vi premchand Lachhmipat A.I.R. 1925:Cal: 801, Austin & whetley Ltd. v. S. Bowley & Co. 1913 Vol:108, Law Times 921. It will be seen that special emphasis has been laid by the courts of law on words "Unequivocal" and "Acquiescence"in the context of Section 34 of the Arbitration act. Accordingly it will be worthwhile to refer to the definitions and meanings of words "Unequivocal and acquiescence", which according to Black's Law Dictionary (Fifth Edition) are as under:- "Unequivocal":-clear, Plan, capable of being understood in only one way, or as clearly demonstrated. Free from uncertainty, or without doubt; and when used with reference to the burden of proof, it implies proof of the highest possible character and it imports proof of the nature of mathematical certainty. Berry v. Maywood Mut. Water Co.No. 1 11 Cal; APP,2d 479, 53 P.2d 1032, Molyneux V:Twin Falls Canal Co. 54 Idaho 619, 35 P.2d 651,656." "Acquiescence:-It arises where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. A form of equitable estoppel. Schmitt v. Wright, 317 III.App. 384, 46 N.E.2d 184,192." Halsbury's Laws of England (4th Edition) Paragraph 1473 defines "acquiescence" as follows:- "The term "acquiescence" is used where a person refrains from seeking redress when there is brought to his notice a violation of his rights of which he did not know at the time, and in that sense acquiescence is an element in laches. Subject to this, a person whose rights have been - infringed without any knowledge or assent on his part has vested in him a right of action which, as a general rule, cannot be divested without and satisfaction or release under seal. The term is,however,properly used where a person having a right, and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it,to believe that he assents to its being committed, a person so standing by cannot afterwards be heard to complain of the act. In that sense the doctrine of acquiescence may be defined as quiescence under such circumstances that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by word or conduct.

---." No doubt the two applications one under Order XXXVII Rule 3 CPC for leave to appear and defend the suit and the other under Section 34 of the Arbitration Act for stay of legal proceedings are mutually destructive. However the contradiction in term thereof may lead to fruitful results. The defendant when filing the former is mindful that in case of his failure to do so, a decree will necessarily follow against him under Order XXXVII Rule 2 CPC, while he is aware at the same time that upon his failure to file the latter, he will be deprived of his right to seek stay of proceedings and get the dispute resolved through an agreed forum. Under the circumstances it cannot be said that the defendant has taken steps in the proceedings within the meaning of Section 34 of Arbitration Act. On the other hand the very fact that the defendant has filed an application under Section 34 of Arbitration act simultaneously with his application under Order XXXVII Rule 3 CPC establishes his unequivocal intention not to submit to the jurisdiction of the Cout. Query No.2 is answered accordingly Both Mr. Kamal Azfar and Mr.A.A.Sharif have brought to my notice conflicting judgments of two learned Judges of this Court sitting singly which might be relevant here. In both these cases the defendants simultaneously with their application under Order XXXVII Rule 3 CPC had filed another application under Section 10 CPC for stay of suit and the question involved was which of the two shall have precedence over the other. In S.MAkil Fikree Vs. Mohammad Qamaruzzaman PLD 1982 Karachi 745 it was held that unless the defendant files an application under Order XXXVII Rule 3 CPC and obtains leave to defend the suit, he would have no locus-standi to file even an interlocutory application. The learned judge observed:- "From a perusal of the case cited above it seems that clear that proceeding under Section 10 does not relate to the matter in controversy in suit or the merits of the case and it does not constitute a defence. It has been contended that as Section 10 bars the trial and does not form a defence, the defendant can press his application under Section 10 CPC. This objection overlooks the mandatory provision of Order XXXVII, rule 2, sub-clause (2) CPC under which a defendant cannot appear and defend the suit without the leave of the Court. Mr. Fazeel is justified in contending that unless the bar imposed by Order XXXVII, rule 2, is removed the suit will not be ripe for trial and the question of stay will not arise at all." In Habib Bank Ltd., v. All Mohtarim Naqvi PLD 1987 Karachi 102 the other learned Judge of this Court took entirely a different view and held that "the mandate postulated in Section 10, C.P.C. 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 provisions of Section 10 would become a dead letter from the point of view of the defendant who was entitled to the protection of Section 10 C.P.C. on account of the previous action which he had filed in the Court." While disagreeing with the earlier decision, it was further observed:- "It appears to me that the learned Judge has treated the application under Section 10, C.P.C. as an interlocutory application in the suit. With great respect to the learned Judge my approach is different. The interlocutory 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/interlocutory relief. Conceptually speaking such an application is not the application is 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 disagonally (?) opposed to those which Section 10 seeks to achieve. As discussed by me 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." Reference may here be made to M/s. Aslo Marine Limited Vs: M.T.Magta and another reported in PLD 1985 Karachi 745. In this case a vessel was arrested and the defendants upon service filed a counter affidavit against the arrest of the vessel dealing also with the allegations made in the plaint and setting out their own defence. Security was also furnished by them upon the arrest of the vessel. At a subsequent stage however the defendants filed an application under Section 34 of the Arbitration Act. It was held by Naimuddin, J. (as he then was):- "The counter affidavit was filed in reply to the application for arrest of the vessel. I am of the view that filing of the counter-affidavit containing matters pertaining to 'defence of the case and also a statement that the defendants will deal with the allegations made in the plaint in the written statement, and furnishing security without simultaneously applying for stay are all steps in the proceedings. I am fortified in my conclusion by the observations of Russell on Arbitration, 19th Edition page 182 which reads as follows:- "The filing of an affidavit, on a summons for judgment under Order XIV, disputing the claim and asserting a right to submit the dispute to arbitration, is probably a "step in the action", so that if this is done a summons to stay ought to be taken out at the same time." Here it would be worthwhile to see how the;English Courts visualized a situation when summon to stay would be taken out at the same time. In Pitcher Ltd., v. Plaza (Queensbury) Limited 1940 All E.R. 151 Slesser L.J. observed as under:- "The substance of this case, however, has been perhaps argued rather more upon the basis that the defendants here have taken a step in the action. I entertain myself no doubt whatever that they took a step in the action when they appeared before the master and asked for leave (to quote their affidavit) to defend the action. It is true that there may be difficult cases where an application to stay is made at the same time as leave is asked to defend, upon which I do not propose, for myself, to pass judgment in this case, and where there may be a question as to whether or not those two matters, taken together, would constitute such a step in the action as to preclude the defendants from relying upon their requests for a stay. Here, however, one has on entirely different case. One has a summons under R.S.C., Ord.14, for final judgment, and one has an affidavit in support of leave to defend the action, with a vague intimation that they might not object, as appears in one of the affidavits, to the matter being referred in the action to the official referee. It is only when the matter comes before the Judge that the Judge, not in order to preclude the argument of counsel for the respondents whether this was a step in the action, but so as to have everything before him, says: "De bene esse, you may now take out a summons for a stay. "In truth and in fact, however, a step in the action was taken when the summons to sign final judgment was answered by affidavit, and no application was made to stay the action on the ground of the arbitration clause". Another Judge Goddar L.J. made the following observation:- "The only other thing which I went to say is that THE ANNUAL PRACTICE, 1940,P.2520, states as follows:- In Allied Artists Corpn, V. Jacobson (I) it was held that where On a • summons for judgment under R.S.C., Ord.14, the defendant had filed an affidavit disputing the claim and claiming the right to submit the dispute to arbitration, he had not taken a step in the action, but as the defendant had alleged fraud in his affidavit, a stay was refused. For myself, I should say that is a somewhat dangerous passage to follow. In the first place as the stay was refused on the ground that the defendant had alleged fraud, any view which the Judge may have expressed as to whether or not the affidavit was insufficient to justify a stay is in the nature of an obiter dictum. The position was that, as the defendant alleged fraud, a stay had been refused. For myself, I am not at all satisfied that, if the defendant filed an affidavit in answer to an application for judgment under R.S.C. Ord.,14, although he may raise the arbitration clause, it may not be said that he has taken a step in the action unless at the same time he has taken out a summons to stay the action. Of course, if he has taken out a summons to stay the action which comes on (as, in the ordinary course, it would) at the same time as the summons for judgment, and the master refuses the application to stay, and on says, "on the plaintiffs summons, I give judgment," I should say that there could be no doubt that, in appealing against both the refusal of the master to stay and the order giving leave to sign judgment, the defendant is not taking a step in the action. He has done what he can, by taking out the summons to stay, to get the action referred. If the master has refused that, and the defendant goes to the Judge on that, he must at the same tune, of course, also, go to the Judge and say: Set aside the judgment, because, if this had gone to arbitration, it would follow that the master would not have given judgment. "I myself feel great doubt as to whether, if SWIFT, J, did say what he is reported to have said, it is right. It seems to me that, if a defendant who is sued wants an action stayed, he should take out a substantive application at the earliest possible moment." In all probability the learned Judges would have given the verdict as above if confronted with a controversy as real and living as before me. A survey of the legal proposition reveals preponderance of opinion that an application under Section 34 of Arbitration act is a substantive application fortifying me to conclude that if no other step in being taken in the proceedings by the defendant his application under Section 34 of Arbitration Act shall have precedence over an application under Order XXXVII Rule 3 CPC for being taken up and decided first notwithstanding the embargo placed on the defendant to first obtain leave to appear and defend the suit. Surely, this jurisdictional question can also be understood by reference to the intention of the parties as embodied in t the arbitration agreement to resolve their uispute through a forum of their choice and not by a decision of a judicial authority. Unless other requirements of Section 34 have not been violated by a defendant a Court of law ordinarily should not allow a plaintiff to act contrary to his commitments to refer to arbitration. Accordingly I hold that Section 34 of the arbitration act is an over riding provision of law and cannot be allowed to be struck off when confronted face to face with the provisions relating to leave to appear and defend the suit under Order XXXVII CPC. It would not be out of place to mention here the observation made by learned Single Judge in Habib Bank Ltd. . All Mohatarim Naqvi, PLD 1987 Karachi 102. referred to above, that an application under Section 10 CPC is an. application out of ambit of the suit and rates higher then the application for interim/interlocutory relief and if leave under Order 37 Rule 3 C.P.C. is refused a decree would immediately be passed against the defendant and there will be nothing to be stayed. The queries having being answered, now I will deal with the facts of both the above named suits. In Suit No.421 of 1988 the defendants had accepted the quotations of the plaintiffs for Rs.98,60,000/- for the construction of Rizwan Plaza vide Agreement dated 24.8.85 which was to be completed within 30 months and the plaintiffs were required to maintain the same for six months after completion. While the plaintiffs were executing the work, the defendants unilaterally stopped execution of the work in November 1985, took forcible and illegal possession of the site of work from the plaintiffs and asked them to finalize the accounts with them. The defendants' architect after verification and adjustment found a sum of Rs.1,32009,44 payable by them to the plaintiffs for which amount the defendants issued a cheque in favour of the plaintiffs. The said cheque was presented by the plaintiffs to the defendant's bank but was dishonoured. The plaintiffs thereupon sent a legal notice dated 6.3.1986 to the defendants and upon their failure to repay the amount, the suit was filed by the plaintiffs. The defendants, while admitting the execution as well as consideration under the cheque, have contended that the amount of cheque was payable by them only upon the plaintiffs prior undertaking that they have received full and final payment of all their claims against the defendants. Since the plaintiff backed out of their undertaking they were disentitled to the amount of the cheque. It is further urged by them that the interest claimed by the plaintiffs is illegal and contrary to Sharia and cannot be granted in view of the provisions of Article 2-A of the Constitution of Islamic Republic of Pakistan. The defendants have further alleged that they have a claim against the plaintiffs for damages caused to them as a result of breach of contract by the plaintiffs. In support of their application under Section 34 of Arbitration Act, the defendants have filed an agreement dated 28.4.1985 entered into between the parties wherein, as per clause 29, it is stated as follows:- "In case of any dispute between the contractor and the owner the decision of architect shall be final and binding upon contractor and owner." The plaintiffs, while opposing both the applications of the defendants, have contended that the archiect of the defendants had checked and scrutinized the bills submitted by the plaintiffs and under Clause 29 passed the bills of a net sum of Rs.1,32,009.44 for which the cheque in question was issued by the defendants in favour of the plaintiffs. According to them the application under Section 34 of the Arbitration Act is misconceived as there is nothing to refer to arbitration. In view of the discussion above I will take up the defendants application bearing C.M.A.No. 3908/88 under Section 34 of Arbitration Act first. Although C this application is under Section 34 of the Arbitration Act and the agreement dated 28.4.1985 refers to "dispute" between the parlies, there is nothing to suggest there was an arbitration agreement or that the "architect" mentioned therein was to act as arbitrator. Similarly there is nothing to indicate ouster of the jurisdiction of the Court. Hence this application is misconceived and hereby rejected. With regard to the defendants' application C.M.A.No.3907/88 under Order 37 Rule 3 CPC for leave to appear and defend the suit, the pleas raised by the defendants furnish plausible ground for defence I therefore grant permission to the defendants to appear and defend the suit upon furnishing security in the sum of Rs.132009.44 within four weeks, whereafter the defendants may file their written statement within the next two weeks. The other suit bearing No.156 of 1988 is for recovery of Rs.206,498/- with mark up at Rs.0.43 per one thousand per day from 1.1.1988 till payment. In September/October, 1985, the plaintiffs negotiated to purchase from defendant No.l, the entire production of cotton ginned and fully pressed by them at their factory during the year 1985-86 Cotton Crop Season and on 12.10.1985 an agreement was executed between the parties. On 24.10.1985, the plaintiffs granted an advance of Rs. One Million to defendant No.l, who, as a security for repayment thereof executed a Demand Promissory Note of the said amount. Earlier, vide letter of guarantee dated 22.10.1985, the defendant No.6 guaranteed repayment of the said amount with mark up payable within two days of receipts of demand from the plaintiffs. It was stipulated that in case of default on the part of the defendants to supply the cotton as per the agreement, the defendants would be liable to repay the entire amount of advance or such balance thereof as remains unadjusted by 31.1.1986 together with mark up at the said rate till payment. It is averred that the defendants have adjusted Rs.8,63,445/- leaving a balance of Rs.126,555/-, together with accumulated mark up of Rs.206,498/- as on 31.12.1987. Defendant No.l is a Partnership Firm and defendants No.2 to 5 are its partners. In their application bearing C.M.A.No.3280 of 1988 under Section 34 of Arbitration Act, 1940, the defendants have prayed for stay of the suit in terms of Clause (8) of the agreement dated 12.10.1985 which states as follows:- "Any dispute/difference touching terms and conditions contained in this contract, failing mutual amicable settlement shall be referred to Arbitrator to be nominated by each party (buyer and seller). Should the so nominated Arbitrators failed (?) to arrive at an agreement, they (the Arbitrators) will nominate an Umpire whose findings shall be final and binding on both the parties." According to them the plaintiffs have arbitrarily deducted Rs.227.606/- in respect of 28 lots of cotton supplied by them to the plaintiffs from 14.11.1985 to 26.2.1986. Besides they are entitled to receive back Rs.30,000/- from the plaintiffs for 1984- 85 Season and Rs.184,295.30 for 1985-87 Season. It is also alleged that the demand promissory note is not properly stamped. A bare reading of the arbitration clause will reveal that there is an agreement to refer to arbitration. Evidently there is a dispute between the parties which is also the subject matter of the suit. This dispute ought to have been referred to arbitration by the parties. Since the defendants have also not taken any steps in the proceedings as held by me above and otherwise are ready and willing to submit to. arbitration, I am satisfied that the defendants have made out a case for stay of the suit. Accordingly I grant this application and order stay of suit in terms of Section 34 of arbitration act. C.M.A.No.3281/88 has now become infructuous. The parties are left to bear their own costs. (MBC) Orders accordingly.

PLJ 1990 Karachi 496 (DB) PLJ 1990 Karachi 496 (DB) Present: SYED ABDUR REHMAN AND ABDUL RAHIM KAZI, JJ NOOR MOHAMMAD-Petitioner versus DISTRICT MAGISTRATE, HYDERABAD and 2. others-Respondents Const. Petition No. D-539 of 1990, accepted on 24.6.1990 (i) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- —S.3-Detention in jail-Challenge to-Associating with, and harbouring, providing ammunition and conveyance to notorious dacoits—Ground of— Allegations do not specify as to when, where and how alleged detenu had harboured dacoits and provided food and ammunition to them or had assisted dacoits in committing serious crimes and had informed them about police department-A.A.G. conceded that there was no record to substantiate these allegations—Held: Allegations are not only vague, but are also not supported by any record. [P.497]A i (ii) Maintenance of Public Order Ordinance, 1960 (W.P Ord. XXXI of 1960)-- —S.3 Detention in jail-Challenge to-Involvement in certain cases-Ground of —Petitioner has filed an affidavit that cases are very old and detenu has been acquitted in all of them—There is no counter affidavit in rebuttal—No documents have been produced to falsify statement of facts contained in affidavit-Held: Ground of involvement of detenu in criminal cases is insufficient and unsupported—Detention order quashed. [P.497&498]B&C 1988 P.Cr.L.J. 486,1988 P.Cr. LJ. 1087 and 1988 P.Cr. LJ. 1451 rel. Mr. Nibhando Klian, Advocate for Petitioner. Mr. Muhammad Siddique Kliaral, AAG for respondents. Date of hearing : 24.6.1990 judgment Syed Abdur Rehman, J. This is a petition under Article 199 of theConstitution whereby the detention under M.P.O. of Bachoo s/o Noor Mohammad Gahelo has been challenged by the petitioner, who is the father of detenu Bachoo. The order is dated 26.5.1990 and has been passed for a period of thirty (30) days. The detenue was taken from his village by the Police of Sekhat Police Station, District Hyderabad on 20.5.1990 and was first detained at the Police Station and thereafter lodged in Central Jail, Hyderabad. The above order of detention passed on 26.5.1990 by the District Magistrate, Hyderabad was v.rvcd on him on 30.5.1990. The detention order is based on the following grounds (1) That he is associate of notorious dacoits Photo Khaskheli, Hussain Panhwar, Anoo Khoso and .other dacoit gangs whom he harbours, provides food, ammunition and conveyance. (2) That he assists the dacoits in committing serious crimes and informs them about Police department. (.3) Thai he is involved in the following cases of Police station Sekhat:- (1) Case Crime No.43/73 U/s 216-A PPC- (2) Challaned u .•- 110 Cr.P.C. in year 1965. (31 Chalbrurd u;s 110 Cr.P.C. in \ ear 1974. (4) Challancd u/s 14 SCC Act in year 1979. (5) Chalhmed u/s. 78 MLO in year 1982. i 6) Challaned u/s 110 Cr.P.C. in year 1985. (7) Challaned u/s 3 MPO in year 1987. (4j That he has been indulging in anti-social activities prejudicial to public order and as such his remaining at large will be hazardous to the public peace and tranquility. So far as the first two grounds are concerned, these are allegations with regard to the detenu associating with notorious dacoits Photo Khaskheli. Hu;.sam Panhwar. Anno Khoso and other gangs ot dacoits, whom he harboured, provided ammunition and conveyance and assisted them in committing serious crimes and mlormed them about the Police department. These allegations do not specify a< to when, where and how the alleged detenu had harboured these dacoits an.! provided food and ammunition lo them, or had assisted the dacoits in comniiUiiU'. serious crimes and had informed them about Police department. When we asked Mr. Mefajmmad Siddique Kharal, the le,lined A.A.G. as to whether he had any niaterui available with him in support of these allegations, he hankly conceded that there was no record to substantiate these allegations and as such the allegations are not only vague, but are also not supportable from any rccoid. Ground No.3 relates lo the allegation that the detenu was involved in certain criminal cases. Mr. Nibhando Khan Advocate for the petitioner has stated that these are very old cases and the detenu has already been acquitted in all these cases. The petitioner has filed an affidavit to that effect against which no Countcr- Affidavit has been filed by the learned A.A.G., nor any documents have been produced falsifying the above statement of facts contained in the affidavit. Even the security proceedings shown in the list of criminal cases are very old. These do not involve any conviction. Final order had to be passed in these for furnishing security for a limited period of time, which must have expired, even if any such order was passed. Apart from that Mr. Nibhando Khan has stated at the bar that in none of these security proceedings the detenu was ever directed to furnish security. It is, therefore, quite clear that grounds No.l and 2 are vague and indefinite, whereas ground No.3 is insufficient and unsupported. Reliance was placed in the Division Bench decision of this Court in the well known case of Dr. Saleem Haider reported in 1988 P.Cr.LJ. 486, where it was held following the decision in the cases of, inter-alia, Hyderbux Jatoi (P.L.D. 1969 S.C. 210), Ghulam Jilani (P.L.D. 1967 S.C. 373) Abdul Baqi Baloch (PLD 1968 S.C. 313), Begum Shorish Kashmiri (PLD 1969 S.C. 14) and Muhammad Younus vs. Province of Sind (P.L.D. 1973 Kar 694) that the grounds of detention to be communicated to the detenu must contain particulars of facts which would enable him to make representation. If the grounds are not precise and lack particulars, this would constitute an omission to comply with the requirements of law and therefore, cannot be considered as sufficient and valid in the eyes of law. It was further held in the case of Dr. Saleem Haider supra that if one of the grounds of detention is found to be unsustainable, the entire detention order would be vitiated since in that case it would be hard to determine which of the grounds had led to the passing of the detention order or whether the same was the result of all the grounds taken together. Even in subsequent D.B. decisions of this Court reported in 1988 P.Cr.LJ. 1087 (Mohammad Abdullah vs. D.M.) and 1988 P.Cr.LJ. 1451 .(Tariq Klian Akbar vs. Govl of sin d) the same view is taken. So far as the fourth ground of detention is concerned, which alleges that the detenu had been indulging in anti social activities prejudicial to public order and as such his remaining at large will be hazardous to the public peace and tranquility, the same only gives reasons for his detention and is in fact not a ground of detention. The learned A.A.G. has conceded that on the basis of material available with him he is unable to support the order of detention. The petitioner's counsel also brought to our notice an unreported judgment in the case of detenu Menhoon son of Haroon (C.P. No.558/1990), who was detained by the District Magistrate alongwith the present petitioner and two others on the same day and in the same manner and on nearly the same grounds, in which the detention order was also quashed by a Division Bench of this Court consisting of the Hon'ble Chief Justice and one of us namely Mr. Justice Abdur Rahim Kazi. We, therefore, quash this order of detention and-allow this petition. The detenu is ordered to be released forthwith, if he is not required in any other case. These are the reasons of our short order passed today. (MBC) Petition accepted.

PLJ 1990 Karachi 498 PLJ 1990 Karachi 498 Present: MUHAMMAD MAZIIAR ALI, J MUHAMMAD YAMEENULLAH PERVEZ MALIK-Appellant versus Mrs. SYEDA HAB1BA RlZVI-Respondent F.RA. No. 855 of 1988, dismissed on 17.4.1990. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —Ss. 16(2) & 18—Tenant—Ejectment of—Appeal against—Defence of tenant- Striking of—Challenge to—Contention that notice under Section 18 having not been served on appellant, no relationship of landlord and tenant had come into being, and that gift deed was also invalid-Held: In presence of title documents filed alongwith ejectment application, objection raised by appellant that Rent Controller erred in deciding issue of relationship of landlord and tenant between parties without recording evidence, is without substance and is repelled—Held further: Other objection regarding non-service of notice is also without substance as filing of ejectment application was tantamount to notice of change of ownership-Appeal dismissed. [Pp. 501 & 503]A,B,C&D PLD 1988 SC 734, PLD 1989 SC 353,1985 SCMR 24 and 1986 SCMR 751 rel. Mr. Moinuddin Ahmad, Advocate ior Appellant. Mr. Nisarally, Advocate for Respondent. Dates of hearing: 9 and 16.4.1990. judgment The relevant facts giving rise to this appeal against the order of the learned IVth Senior Civil Judge & Rent Controller, Karachi East, dated 7.9.1988, are these:- On 10.2.1988, the respondent filed an application under Section 15 of the Sind Rented Premises Ordinance, 1979, (hereinafter called 'the Ordinance') for eviction of the appellant from the half portion of the house comprising of three rooms, attached bath and kitchen, on ground floor of the building standing on Plot No.lS5-A. Block No.2, P.E.C.H. Society, Karachi (hereinafter referred to as 'the demised premises') on the grounds of default in payment of rent, unauthorised conversion, additions and alterations carried out in the demised premises and personal bonafide need for herself and for her family members. It was pleaded in the application that the aforesaid building was owned by Mr. SJvI. Jamil, who had let out the demised premises to the appellant on a monthly rent of Rs.275/- Which was, later on increased to Rs.520/- p m. exclusive of gas. electricity, water, conservancy and maintenance charges. The said building including the demised premises was orally gifted by Mr. S.M. Jamil to the respondent on 24.11.1985, and confirmation of the oral gift was registered on 31.7.1986 in the City Survey Office, Karachi, and in the Record of Excise & Taxation Department. It has also been transferred in her favour in the record of P.E.C.H. Society, Karachi, vide its letter dated 15.4.1986. The respondent had sent notices dated 30th April 1986, 19.6.1986 and 21.8.1986 by registered post A/D to the appellant according to law. The last mentioned notice was 'refused' by the appellant. The second one having been sent under certificate of posting was not received back, whereas the first notice was returned with postal endorsement •left'. The appellant filed written statement contending inter-alia, that the application was not properly instituted as the person, who has filed it was not authorised to do so inasmuch as no power of attorney was brought on record despite the objection raised by him through an application dated 8th March, 1988. It was, however, admitted that he is the tenant of Mr. S.M. Jamil, the original owner of the premises in question. The rent of the premises was admitted to he Rs.520/- but it was claimed to he inclusive of water conservancy and electricity charges and not exclusive thereof as pleaded in the application. It was stated that the oral gift made by the previous landlord abovenamcd in favour of the appellant was not valid. It was asserted that it was a device to make out grounds of eviction and that it being collusive, fraudulent, fake, malafide had no binding force in law. The facts regarding service of nut ices, default in payment of rent and the ownership right having vested in the appellant were denied. It was further claimed that the previous landlord refused to accept the rent for the months of June, July and August, 1986, and consequently the same was remitted by money order. Upon his refusal to accept the money order, the rent \viien due was deposited in Court on 9.10.1989 and that it was since then being deposited in Court. It was also denied that the demised premises was required by the respondent reasonably and in good faith for ban a fide use and occupation for herself and for her family members. It was further sated that she has sufficient accommodation for her and her family members residence. It was also pleaded that she has a number of other properties which she had not disclosed. The other allegations made in the application were also denied. On 12th March, 1988, an'application under section 1(«(1) of the Ordinance was presented on behalf of the respondent for a direction to the appellant to deposit the arrears of rent for the period from 1.12.1985 to 29.2.1988 at the rale of Rs.520/- per month, amounting to Rs.14040/-, and the future rent at the aforesaid rate, from 1.3.1988 onwards. The appellant filed objections to the said application stating, inter-alia, that the rent uplo April, 1988 had already been deposited in Misc. Rent Case No.774/1986 in favour of S.M. Jamil. The respondent, in turn, also filed a reply to the objections filed by the appellant. The learned Rent Controller vide his order dated 23rd May, 1988, passed after hearing the learned counsel for the parties, repelled the appellant's plea that the respondent was not the absolute owner of the demised premises. Relying upon the copies of the documents filed alongwith the application, such as, the confirmation of oral deck-ration of gift made in her favour by S.M. Jamil, a letter of transfer of disputed premises in her favour and the copies of the notices sent by the previous owner, S.M. Jamil to the appellant, held that she is the owner and landlady of the demised premises for all purposes and that the appellant had become her tenant. Consequently, he directed ihe appellant to deposit Rs.l50SO/- towards arrears of monthly rent at the rate of Rs.520/- per month for the period from 1.12.1985 to 30lh April, 1988 within 30 days and the future rent at the said rale on or before 10th of each calandcr month following (he month for which it becomes due. On the same day he passed an other order dismissing the application filed on behalf of ihe appellant praying for dismissal of Rent Application for its, having been filed by a person who had failed to file in Court the Power of Attorney authorising him to do so. Without complying with the tentative order for payment of rent, the appellant on 10.8.1988 filed an application for review of order passed under Section 16(1) In the meanwhile, on 21.7.1988. an application under Section 16(2) of the Ordinance had been filed by the respondent for striking off the defence of the appellant, on account of her failure to comply with the order passed on the application under Section 16(1) of the Ordinance. The learned Rent Controller has disposed of both the aforesaid applications, i.e. the application for . review of order passed under Section !'<(!) and the application under Section 16(2) of the Ordinance Tiled by the respondent, vide his impugned order thereby dismissing the review application filed by the appellant and allowing the respondent's application under Section H>(2) for striking off the defence of the appellant and direciiim the appellant to vacate the demised premises within 60 days from the date ol order. 1 have heard Mr. Moinuddin Ahmed, advocate, the learned counsel for the appellant as well as Mr Nisarally. learned counsel lor the respondent. With the assistance of '.he learned counsel for the parlies I have perused the Rent Controller's record and the impugned order. It was contended by Mr. Moinuddin Ahmed, advocate, that the ejectment application was not properly instituted inasmuch as it wa- filed by and through an attorney without filing the power of attorney allcnedlv executed by the respondent authorising him to institute the ejectment application. The power of attorney, according to the learned counsel, was to be annexed with the application. In short, he contended that there has been a non-compliance of the provisions of Order 3 C.P.C., which, in his submission, are applicable to the rent proceedings. He also contended that rule 32(1) (xii) of the Sind Civil Courts Rules was also not complied with. It was next urged by him that links- t : h^ question of relationship of landlord and tenant between the parlies was decided by the learned Rent Controller, no order under Section 16(1) could legally be passed. The counsel emphasised that the learned Rent Controller should have tr. med a preliminary issue regarding the existence or otherwise of the relationship ol landlord and tenant between the parlies, and after recording the evidence of i!k panics, decided the same bcl'oiv passing an order under Section 16(1), It having not Ken so done, the order passed on the application under Section ](>(!) is. ihcrelore, in Ins submission, improper ,,nd illegai. He also submitted that there had Ken no L_..nim of the application under Section 16(2) of the Ordinance and hence the impugned order striking oil' the appellant's delepee is illegal and without jurisdiction. The counsel also argued that notice under Section 18 of the Ordinance was not served upon the appellant and hence no relationship of landlord and tenant between the parties had come into being. He also attacked the validity of the gilt deed dated 31.7.1986 by contending lhal it was the respondent's attorney who had accepted the gilled property although the gift was allegedly made somewhere on 24th November. 1985. Lastly, the counsel submittc-d that the documents of title etc. filed alongvvith ihe application are fictitious documents. In support of his above contentions, the learned counsel made a relerence to the iollowinu case law;- 1. PLD 1987 Karachi 159: 2. PLD 1964 Lahore 648: 5. 1987 MLD 2818; 4. 1985 MLD 124; 5. 1989CLC6S2: '.. 19NSCLC 303: It was, on the other hand, submitted by Mr. Nisarally, learned counsel for the respondent that the impugned order is perfectly legal, proper and valid in law inasmuch the learned Rent Controller has, after giving proper opportunity of hearing to the parties, passed it. He contended with vehemence that the respondent has admitted that he was the tenant of S.M. Jamil, the original owner and donor of the property in question. He then submitted that the property in question has been, on the basis of the oral gift made by the aforesaid donor in his favour on 24th Nov.1985, duly mutated in the name of the appellant(?) A declaration of gift was also made on 8.12.1985 which too has been duly registered. The objection of the appellant in the written statement assailing the validity of the gift, according to the learned counsel, was wholly fallacious and untenable in law. In support of his last mentioned contention, the learned -counsel placed reliance on the cases of (1) Pervez Akhtar vs. Dr. Muliammad Ahsan & others (PLD 1988 S.C. 734), and, (2) Muhammad Ishaqne through his L.Rs. vs. S. Kliwshid Alam (PLD 1989 S.C. 353). In the first above-noted case, it was contended before the Supreme Court that the gift made by the donor was not approved by the Cantonment Board and hence it was invalid. Their Lordships held: "It is difficult to accept this contention for the reason that the validity or invalidity of the gift was a mailer between [he Cantonment Board and the respondents. The -Petitioner being an outsider had no locus standi to call in question its validity." The facts of the second above-noted authority are almost identical to the facts of the case in hand. In that case also the tenant had admitted that he was tenant of the donor-landlord, who gifted the property in question to the respondent through a gift-deed registered with the Sub-Registrar. After the transfer of the property gifted to him, the transferee-landlord (respondent) filed an application for eviction against the appellants on the ground of default etc. In the written statement, it was, as already stated, admitted that the appellant's predecessor was the tenant of the house but it was denied for want of knowledge that the respondent (donee) was the owner and landlord of the house and further it was pleaded that no notice as provided under Section 18 of the Ordinance was given by the respondent. Their Lordships of the Supreme Court after reproducing the certain observations from their judgment in the case of Rehmatullah vs. All Muhammad and another (1983 S.C.M.R. 1064) held: "These observations though very weighty has(?) no application to the facts of this case as the tenancy of the house by the tenant was admitted in his written statement. The title of the property has been established by the production of registered deed." Dealing with the objection of the tenant that the gift was not valid, their Lordships observed: "It may be staled that once the properly was transferred by registered gift deed, the respondent has become the owner thereof, to receive the rent in accordance with the provisions of Section 55(6) clause (a) of the Transfer of Property Act, 1882; and thus he became the landlord of the house within the meaning of Section 2(1) of the Ordinance." It was further held by the Supreme Court in this case that it was not open to the tenant to question the validity of the gift made in favour of the respondent. Respectfully following the above authorities of the Supreme Court and in the presence of the title documents filed alongwith the Ejectment Application, I do not feel hesitant to hold that the objection raised by the learned counsel for the 3 appellant that the Rent Controller erred in deciding the issue of relationship of landlord and tenant between the parties without recording the evidence is without substance. It is accordingly repelled. Now I proceed to take the other objection raised by the learned counsel with regard to the non-service of the notice and its effect. This objection is also without substance for at least two reasons. Firstly, the notices had been sent by the respondent to the appellant as noted above, although he refused to accept the last one. Secondly, the filing of the ejectment application as such was tantamount to notice of change of ownership as held by the Supreme Court in the cases of (1) SyedAzliar Imam Rizvi vs A/it Salina Khatami (1985 S.C.M.R. 24), and (2) Maj. Retd. Muhammad Yousitf vs. Mehrajuddin (1986 S.C.M.R. 751). The learned counsel for the respondent submitted that both these authorities are distinguishable on their facts. I do not find any substance in this contention of the learned counsel for the appellant. A bare reading of both these two authorities manifestly indicates that they do lend support to the contention of Mr. Nisarally. Before parting with this case, I would also like to shortly deal with and dispose of the contention raised by the learned counsel for the appellant with regard to the non-compliance of the provisions of C.P.C. and the Sind Civil Courts Rules as well as his last contention that no hearing of the application under Section 16(2) was given. In this connection it may be noted that in so far as the non-compliance of the provisions of C.P.C. and the Sind Civil Court Rules is concerned, suffice it to say that they do not as such apply to the rent proceedings. Besides, it is a matter pertaining to the defence of the appellant and it could be pressed into service successfully, if at all, had the matter been decided on merits. The pleas set up in defence cannot be taken into consideration if there had been a default in compliance of an order under Section 16(1) of the Ordinance. In so far as his grievance that no hearing of Section 16(2) application was done is concerned, a reference to the record shows that it is also unfounded. Several dates were fixed for hearing of application under Section 16(2). Moreover, the appellant had noC even filed any objections to the application under Section 16(2) of the Ordinance. The only course adopted by the appellant was, as already indicated, to file an application for review of the order passed on the application under Section 16(1). For the foregoing reasons, the appeal is held to be without substance and it is ID dismissed accordingly with cost. I would, however, allow two months' time to the appellant to vacate the demised premises and hand over its vacant and peaceful possession to the respondent, subject to his making the payment of monthly rent to the respondent, failing which he will be liable to be evicted forthwith without notice. (MBC) Appeal dismissed.

PLJ 1990 Karachi 504 [1)B] PLJ 1990 Karachi 504 [1)B] Present: SYED ABDUR REHMAN AND. ABDUR REHMAN KAZ i, JJ GHULAM SIDIMQUE-Pctilioncr versus DISTRICT MAGISTRATE, THATTA and another-Respondents Const. Petition No. D-372 of .1990, dismissed on 28.61990 Constitution of Pakistan, 1973— —Art. 199-Constitutional petition- Filing of--Remedy of appeal-Not availing of—Effect of—It was obligatory for petitioner to first exhaust remedy of appeal provided to him—Held: By not filing an appeal before Horn:;• Department of Federal Government, petitioner has lost his right to lile a writ petition in High Court-Petition dismissed. [P.504&505JA Mr. Inainul Haq, Advocate lor Petitioner. Mr. Muhammad Siddiqne Kharal, AAG for Respondents. Date of hearing: 28.6.1990. order The petitioner had applied for grant of P.R.C. in form 'C' from Thatta District, which was rejected by District Magistrate, Thatta on 28.1.1989 on the grounds, which, in the words of the District Magistrate himself, are as follows:- "Enquiries made in the matter revealed that the applicant is not permanent resident of Mchran Farm Taluka Sujawal. Fie was born in 1969 in District Larkana and acquired his primary as well as Secondary education from there. He has passed Higher Secondary Examination from Govl. College, Hyderabad in 1988. Neither lie nor his father possess any property in this District to show their permanent interest. Both the Mukhtiarkar and the Assistant Commissioner Sujawal have not recommended the request of the applicant for grant of PRC." The petitioner filed an appeal before Commi.-sioiiei, Hyderabad against the said order on 3.4.1989, who refused to entertain the same. Hence !he petitioner filed this writ petition on 22.4,19VO. According to the Rules an appeal against the order of District Magistrate is to be filed before Home Department of Federal Government. Mr. Inamul Haq Advocate tor the petitioner concedes to this legal position. He, however, states that since he had tiled the appeal in a wrong forum and wasted one year there, therefore, now he should be absolved from filing an appeal betore the Federal Home Department and should be permitted to assail the order of the District Magistrate, impugned m this petition, directly in the High Court. We are un.tbic to agree with thi.s .-itrange argument of the learned counsel for the pclitionei. It wa^ obligatory upon the petitioner to first exhaust the remedy of appeal provided to him. No recourse to the writ jurisdiction could be had by a petitioner without first resorting to all the remedies available to him under the law. Hence by not filing an appeal before the Home Department of Federal Government, the petitioner has lost his right to file a writ petition in this Court. Apart from that the impugned order was passed on 28.1.1989. Even the Commissioner had refused to entertain the petition long back. Hence this petition also suffers from laches. Apart from that the findings of fact of the impugned order have been challenged very lightly which cannot be allowed ordinarily in writ jurisdiction. The grounds mentioned in the order of District Magistrate are cogent and the order on the face of it appears to be convincing and appropriate. These are the reasons for which today we had dismissed this writ petition. (MBC) Petition dismissed.

PLJ 1990 Karachi 505 [DB] PLJ 1990 Karachi 505 [DB] Present:SALEEM AKIITAR AND WAJIHUDDIN AHMAD, JJ M/s. F. RAHIMTOOLA LTD.-Petitioners versus GOVERNMENT OF SIND and 3 others-Respondents Const. Petition No. D-770 of 1985, accepted on 28.2.1990 Finance Act, 1963 (W.P. Act-IXof 1963)

S.16(1)—Industrial plot—Assignment in favour of company—Imposition of capital Gains Tax-Challenge to—Claim of petitioners before Taxation authorities was that there was no actual transfer but mere change of name (property remaining vested in same persons as partners of company)—A company by fiction of law, is a juristic person, but in order to assess its true import and character, veil of incorporation can be lifted-Petitioner as incorporated, represented same individuals/persons to whom assignment was made-Held: There was, in reality, no transfer to attract levy of Capital Gains Tax-Held further: Impugned orders are grounded on exceeding jurisdiction conferred by law and are thus illegal and without lawful authority-Petition accepted.

[Pp.507,508&509]A,B,C 1953 I QB 438, PLD 1959 SC 219, PLD 1971 SC 585, PLD 1975 Kar. 128 and PLD 1985 SC 97 re/. Mr. A. LatifA. Shakoor, Advocate for Petitioners. Mr. K.M. Nadeem, AA.G. for Respondents. Date of hearing: 19.10.1989. judgment Wajihuddin Ahmed, J.--Petitioner herein challenges imposition of Capital Gains Tax on an assignment, dated 8.4.1982, whereby industrial plot bearing No.D/84, situated at Sind Industrial Trading Estate Limited, (SITE) Karachi was assigned in favour of M/s. Arbi Industries. The case of the petitioner is that such assignment was made by M/s. Abdul Majeed, Mohammad Iqbal, Mohammad Farooq and Mst. Zubeda, acting on behfalf of the petitioner Company, in favour of the refered Arbi Industries, the partnership firm of the same parties and having its Registered office at the same place as that of the petitioner and, further, that such assignment was made, in anticipation of liquidation of the petitioner Company, in such manner that there was no real transfer but a mere change of name, the property remaining, all the time, vested in the same persons. In support is cited, a letter dated 28.1.1982 whereby SITE recoreded its consent to the change of the Unit in the new name. Liquidation of the Company, through a Special Resolution dated 22.1.1983 was, subsequently, brought about, as reflected in the Gazette of Pakistan, dated 9.2.1983. In the meantime, however, per order, dated 1.4.1982, the Excise and Taxation Officer, L-Division, Karachi, had assessed Capital Gains Tax in the sum of Rs.53,312/-. Appeal before the Director, Excise and Taxation, Karachi, failed on 30.3.1983, that officer observing that the appeal was preferred on 21.4.1982 whereas liquidation of the petitioner Company came about subsequently, indicating an after-thought and disentitling the petitioner to any relief on account of such liquidation. Revision against such order before the Director General, Excise and Taxation, Sind, also, failed on 23.4.1985. This petition was preferred on 4.11.1985, that is, within around 6 months of the order impugned in the proceedings which, by practice, as evolved, is the approximate period of time, within the perimeters whereof, Constitutional remedies should, normally, be resorted to. 2. Capital Gains Tax was introduced through the West Pakistan Finance Act, 1963, and resulted upon Section 16 of that Act. Such Taxation measure has, since, been repealed and the element of revenue thus lost seems to have been covered by enhanced stamp duty on transfers etc. Still the rights and obligations of the parties, under Section 4 of the W.P.General Clauses Act, 1956, are to be determined on the basis of the law, as it prevailed at the time of the transaction and passing of incidental orders, for such transactions are governed by the substantive law, as in force at the time the same were concluded and, pending proceedings while substanative law under-goes repeal or amendment, are to be decided, in accordance with the un-repealed or un-amended law, as these proceedings, carry their own law, until brought to conclusion under such law. 3. Accordingly, it would be proper to reproduce herein relevant portions of Section 16 of the West Pakistan Finance Act, 1963, in order to appreciate the implications, incidence and effect of such provision:- "16. Capital gains tax.-(l) A capital gains tax shall be levied on any profits or gains arising from the sale, exchange or transfer of immovable property effected after the 30th day of June 1963, within urban areas specified by Government under Section 3 of the West Pakistan Urban Immovabe Property Tax Act, 1958 (West Pakistan Act No.V of 1958): Provided that the tax shall not be levied on the transfer of immovable property in consequence of the compulsory acquisition thereof under any law for the time being in force relating to compulsory acquisition of property for public purpose or the distribution of immovable property on the total or partial partition of a Hindu undivided family or the distribution of such property on the dissolution of a firm or other association of persons or on the liquidation of a company or under a deed of gift, bequest, will or transfer on irrevocable trust." Mr. Abdul Latif A. Shakoor relies on the proviso to Section 16(1) above to contend that the assignment in question here was not a transfer, as contemplated by Section 16(1), and, in any case, the transaction, being in the nature of distribution of property on liquidation, was immune from the levy of Capital Gains Tax. 4. The petitioer alleges and it has not, effectively, been countered that the only directors/share-holders in the petitioner Company were the persons named above, who alone became partners in the firm of M/s. Arbi Industries. Indeed, no Counter Affidavit has been filed to question these averments. The contention of the petitioner is that the assignment was no more than a mere change of name and not a transfer stricto senso, incidental whereto the same individuals, acting for the Company, are shown to have assigned their rights and entitlements in their own favour though, in so acting they have used different characters. The concept of a firm, under the Partnership Act, 1932, is not that of a legal entity but of a mere combination of persons, who join hands to carry on business with a view to share in profits and to contribute in losses, if any. resulting upon the carrying on of such business. Thus, as regards a firm there is no particular difference between the assumed firm name and those who combine to acquire such name. Difficulty, however, arises in relation to a company, registered under the Companies Act, 1913, which was the statute then applicable or of such registration, under the present dispensation, which is governed by the Companies Ordinance, 1984. Such a company is a legal entity and a legal person, different and distinct from its share­ holders. While a company can sue and be sued in its own name in much the same way as a registered firm, the difference, between the two concepts, lies in the location and incidence of the respective liabilities and obligations in relation to a company and a firm. A Limited Company is itself liable for its debts and obligations and share-holders cannot be reached except to the extent of their share contributions or holdings or of the moneys that may be due towards the shares acquired by them or, in case of a company, limited by guarantee, to the extent of the amounts guaranteed by the contributories to the company. On the other hand, the liability of partners in a firm is co-extensive with that of the firm itself and is unlimited, so much so that, any of the partners can be made to pay all the liabilities of the firm, irrespective of his capital contribution in such firm or even the proportion in which he is liable to contribution in losses and this may happen in complete disregard of the liability of the other partners who, of course, may ultimately be made to contribute by the partner, actualy, taken recourse to, to make good the liability of the firm. 5. Since the claim of the petitioner before the Taxation authorities was that there was no actual transfer but a mere change of name, we are called upon to examine the real character of the assignment and this we can do by delving and penetrating into the relevant documents with a view to see, as to who constituted the petitioner company. As observed above, while a company, by fiction of law,is a juristic person and an entity, in appropriate cases, in order to assess its true import and character, the veil of in-corporation can be lifted. Reference on the point may be made to Bacus S.R.L Vs. S. Seivico National Del Trigo (1953 IQB 438>, Commissioner of Income Tax Vs; E.K Miller (PLD 1959 SC 219), President Vs; Mr. Justice Shaukat All (PLD 1971 SC 585), West Pakistan Road Transport. Board Vs. Tlie Commissioner of Income Tax (PLD 1974 nile 9), Sind Industrial Trading Estate Limited Vs; Central Board of Revenue (PLD 1975 Kar; 128) and Central Board of Revenue Vs; S.I.T.E. (PLD 19S5 SC 97). Resorting to this dicta and examining the relevant entity of the petitioner, we find that the petitioner, as incorporated, represented the same individuals/persons to whom the disputed assignment was made and, therefore, in reality, there was no transfer, so as to attract the levy of Capital Gains Tax in the context of the assignment under the reference. 6. Taking up the question of liquidation of the petitioner and disregard of such development by the Director, Excise and Taxation, in appeal, the sole ground which carried weight with that learned officer was the factum of the liquidation taking shape at the stage when the appeal, against the levy of the Capital Gains Tax was pending. In relation to such aspect of the matter, it may, relevantly, be pointed out that the deed of Assignment in question was concluded on 8.4.1982 nd admitted to registration on 10.4.1982. However, the Excise and Taxation officer had already,imposed the levy vide his rder dated 1.4.1982. It would, herefore, seem that the Taxmen themselves did not wait for the Assignment to come about and conclude and patently acted not only in haste but even prematurely. The subsequent liquidation could, therefore, be an event, which ame about at an enforced leisurely pace largely, perhaps, as the petitioner found itself in the Tax Web, before it had even taken the leap. On this pre-emptive perspective alone the subsequent event of liquidation of the petitioner company should have been viewed, even though that occured after the appeal had been filed, since the petitioner, in all appearances, was not allowed due chance to take follow up action con-committant upon the Assignment. 7. As to the observation of the Director that the liquidation was an after­ thought all that can be said is that no Assignment could conveniently be made unless the petitioner Company was a subsisting entity and it was, evidently, thus that first, the Assignment and then liquidation was gone into. It is settled law that supervening facts, events and developments occuring during the course of proceedings can be looked into and considered, so as to give effect to the realities of the situation as it prevails, at the time when effective orders are to be passed. None-the-less in cases where the subsequent developments are engineered and wrought with a view to commit fraud the same are to be looked at with suspicion and even decried. However, looking to the substance of what had transpired it has to be determined whether the Director was right in taking the view that such liquidation, as aforesaid, was a mere after-thought. It was manifestly a development in consonance with a scheme of folding up of the petitione Company and transfering its assets to the constituents. Matters in liquidation take time to finalise and it was, apparently, with this view that the Assignment was made in anticipation of liquidation but the transaction was hardly a transfer in view of what has been observed above. The subsequent liquidation was, therefore, clearly an event of which proper notice should have (been) taken and given effect to. 8. A bare perusal of the proviso to Section 16(1) (of) the W.P. Finance Act, 1963, makes it clear that devolution of property, on liquidation, of a company is not (to) be subjected to Capital Gains Tax. Since the petitioner company was 8 actually liquidated and no different result was brought about by taking recourse to the Assignment, there does not seem to have been any justification to visit the levy of Capital Gains Tax in the context of the disposition in dispute. 9. The orders questioned herein are grounded on exceeding the jurisdiction conferred by law and are thus illegal and without lawful authority. In the result, this Petition has to be allowed. Such impugned orders are quashed. There will, however, be no orders as to costs. (MBC) Petition accepted.

PLJ 1990 Karachi 509 [DB] PLJ 1990 Karachi 509 [DB] Present: SYED abdur rp.hman and abdul rahim kazi, JJ NOOR MUHAMMAD --Appellant versus MUHAMMAD KAM1L and another-Respondents CMA No. 654 of 1990 in Rich Court Appeal No. 31 of 1989, dismissed on 25.6.1990. Civil Procedure Code, 1908 <Y of 1908)-- -—S.12(2) read with Sind Rented Premises Ordinance, 1979, Section 22-Rent case—Written compromise in—Existence of oral agreement also and its \iolation—Allegation of—Allegation that there was an oralagreement besides written compromise application, is on face of it unbelievable and absurd- Held: This application is improper, malafide and has been made only to protract and abuse process of court—Appliction dismissed. [P.510]A&B 1990 CLC 366 rel. Syed 4shfaque Hussain, Advocate for Applicant. Date of hearing: 25.6.1990. order C.MA.No.654/1990 is an application under Scc.l2(2) CPC. read with Order-XXIII Rules 1 & 2 and Section 151 CPC. Facts forming the back-ground of this application are that appellant Noor Muhammad is transferee from the Settlement Department of the premises in dispute and as such a landlord thereof. He filed an ejectment application (Rent Case No.690/1981) against Respondent No.l Muhammad Kamil, which was initially dismissed by the Controller, but on remand by this Court came to be allowed by the Controller. The order of ejectment was up-held by this Court in F.RA. No.375/1986 decided on 15-12-1988. Respondent No.l filed Suit No.877/1987 for cancellation of the transfer documents issued in favour of the appellant by the Settlement Authority, on the original side of this Court. An application under Order-VIl Rule-11 C.P.C. was filed by the appellant in that suit which was dismissed by the learned Single Judge, who tried the suit. H.C.A. No.31/1989 was filed against the said order of dismissal which was admitted by the Division Bench. An application for withdrawal of appeal was filed stating that Re pondent No.l had withdrawn from the suit from which this High Court Appeal had arisen. The application was signed by the Respondent No.l as well as his counsel and no objection was recorded by the Advocate or the appellant. Consequently permission was granted for withdrawal of the appeal as well as the suit and the two were dismissed as such by the Division Bench consisting of Hon'ble Chief Justice and my learned brother Mr.Justice Salahuddin. It is alleged in the application u/s 12(2)CPC that simultaneously with the compromise an oral agreement was entered into between the parties in presence of four or five respectable witnesses that the appellant shall not disturb the possession of the Respondent No.l in respect of his portion. The appellant has not honoured the oral agreement and has filed the execution application. Hence this application under Section 12(2) C.P.C. We have heard Mr.Syed Ashfaque Hussain Advocate for the applicant at length. The compromise application was signed by the Respondent No.l who is plaintiff in the suit and his counsel. Even otherwise the settled law is that a counsel has power to compromise on behalf of his client, in the absence of specific bar to the contrary. Reliance in this connection may be placed in the case of Kulsoom Bai vs. Shireen Bai reported in 1989 C.L.C. 234 where, after referring to the law on the point in detail, it was held by one of us (Syed Abdur Reman J.) that a counsel had power to compromise the suit on behalf of his client, unless there was a specific bar to the contrary. The allegation that there was an oral agreement besides the written compromise application, is on the face of it unbelievable and absurd. With a view to discourage such a false plea from being raised in rent cases, which were being raised falsely in the past in abundance, Section-22 of the Sind Rented Premises Ordinance was re-enacted by Sind Act No.l of 1986 which makes it obligatory to obtain the permission of the authority passing the order whenever any agreement is made before or after such order. Admittedly in this case no such permission has been obtained. We are, therefore, satisfied that this application is improper, malafide and has been made only to protract and abuse the process of Court. In Iqbal Sultan vs. Chand Sultana reported in 1990 C.L.C. 366, it was held that an application for setting aside decree allegedly obtained by fraud and mis­ representation under Section-12 (2) CPC., if found to be improper, malafide and having been made only to protract the proceedings and to abuse the process of the Court, could be dismissed by the Court without framing any issue or recording any .evidence. We are of the clear view that this false plea of oral agreement as well as the application u/sec.!2(2) CPC. which is based on it, are false, malafide and have •g been made in order to harass the appellant and to protract the proceedings and the unauthorised possession of Respondent No.l. These are the reasons for which today we dismissed C.M.A. No.654/1990 in limine. (MBC) Application dismissed.

PLJ 1990 Karachi-511 PLJ 1990 Karachi-511 Present: SALAHUDDIN MlRZA, J ASAD AHMAD SIDDIQUI-Appellant versus Mst. WILAYATI BEGUM deceased, through her L.Rs.-Respondents FRA No. 123 of 1990, dismissed on 12.7.1990 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —Ss. 5 & 16(2)—Tenant—Ejectment of—Defence—Striking off-Whether rent agreement was void—Question of—Objection was raised that rent agreement was void because it was not signed by Rent Controller-Held: Objection was obviously based on Section 5 but Section 5 of Ordinance is directory in nature and its non-compliance.docs not render agreement void or illegal. [P.513]B (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.16(l)-Tenant--Ejectment of-Dcfence-Striking off-Whether tentative rent order was justified-Question of-Appellant took on rent demised premises at his own free will and he cannot be suffered to complain that he did not find house suitable for his needs and wanted to vacate it after a week-Just as a landlord cannot act arbitrarily and unilaterally terminate contract of tenancy', so tenant can also not do same-Appellant wanted to vacate premises subject to first refund of Rs. 40,000/- in which he was not justified—Held: Since appellant remained in effective control and possession of premises, Rent ControDer was justified in passing tentative rent order. [P.513JC (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S.16(2)-Tenant-Ejectment of-Defence-Striking off-Challenge to-Claim of appellant is that he paid Rs.20,000/- as fixed deposit and Rs. 20000/- as advance rent—There is a written rent agreement between parties—When rent agreement provides that full amount of rent (Rs.1700/-) is payable in advance each month, appellant is estopped from saying that Rs.20000/- were paid as advance rent-Other amount of Rs.20000/- having been deposited by appellant as security, is refundable at time of delivery of possession, but arrears of rent being Rs. 20,400/-, it is adjusted against rent-Held: Since tentative rent order was prefectly valid, and appellant having not complied with it, his defence was rightly struck off-Appeal dismissed. [Pp.513&514]D,E&F (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 16(2) read with Civil Procedure Code, 1908, Order XXII Rule 3-Tenant- Ejectment of-Defence-Striking off-Whether order striking off defence is illegal-Question of-Contention that respondent having died on 6.2.1990, her counsel was not authorised to file application for early disposal of application under Section 16(2) on 11.2.1990-Application was filed within five days of death of landlady and the counsel might very well have been ignorant of her death and moved application in good faith-He was competent to do so under Order XXII Rule 3 of C.P.C.—Application was just a miscellaneous application for early disposal of case—Held: Objection that impugned order (striking off defence) is illegal, is devoid of any force. tPp?512&513] Mr. Sulcman Habibullah, Advocate for Appellant. Respondents through Respondent No.l. Date of hearing: 9.7.1990. judgment Respondent A/it. Wilayati Begum rented out her house No.A-167-Block-H, North Nazimabad, Karachi, to appellant Asad Ahmad Siddiqui on a monthly rent of Rs.1,700/- vide Rent Agreement dated 1st July 1989. The rent was payable in advance on or before the 5th of every month. However, the appellant did not pay any rent whatsoever and on 8-10-1989 the respondent instituted ejectment petition on the ground of default. The appellant in his written statement raised an objection that the rent agreement was invalid because it was "neither signed nor attested by the Rent Controller". He also stated that he had paid Rs.20,000/- as security deposit and Rs.20,000/- as advance-rent which was to be adjusted in monthly rent at the rate of Rs.1,000/- per month and thus he was to pay only Rs.700/- per month instead of Rs.1,700/- per month for the first 20 months of tenancy. He also stated that he vacated the premises on 9th July 1989, that is, after one week of commencement of tenancy and offered to deliver possession to the landlady if she returned the security deposit and the advance rent and since the landlady did not return the money, the possession was perforce retained by him but, under these circumstances, he was not under any obligation to pay any rent. On 17th December 1989 learned Rent Controller passed the tenative rent order under Section 16(1) of the Ordinance directing the appellant to deposit arrears of rent from July to November 1989 and to continue depositing future rent, with effect from 1st December, on the 10th of the following months. The appellant did not comply with this order and on 20th Jan.,1990, the respondent applied under Section 16(2) of the Ordinance for striking off the defence of the appellant and this the learned Rent Controller has done vide impugned order dated 25-2-1990 which is impugned in this appeal. 2. The landlady, late Mst.Wilayati Begum, had throughout acted through her husband and attorney Syed Khursheed Hyder Rizvi and the first point raised by learned counsel of the appellant is that advocate of the respondent moved a Misc. Application on 11-2-1990 before the learned Rent Controller for early disposal of Section 16(2) application whereas Mst. Wilayati Begum had admittedly died on 6- 2-1990 and therefore the counsel was not authorised to move this application and therefore action taken over it is illegal. Learned counsel is sadly mistaken in holding this view. Firstly, the application was moved within five days of the death of the lady and her counsel might very well have been ignorant of her death and moved this application in good faith and he was competent to do so under order 22 Rule 3 C.P.C. There was still enough time at the disposal of the LRs of the deceased to move the court for being impleaded. Secondly, under sub-rule (2) of rule 3, any order passed by the Court is valid and binding upon the LRs even though they were not brought on record. Thirdly, if at all should anyone have any grievance in this regard, it is the LRs of the deceased and not somebody else. Fourthly, this application is just a misc. application for early disposal of the case. No substantive order was passed on it. The only order passed on it was that report of office was called. All further proceedings were taken on application under Section 16(2) which was moved on 20th January 1990 when the lady was alive and order passed on this application is protected by Order 22 rule 3(2) of C.P.C. As such the objection that impugned order dated 25-2-1990 is illegal is devoid of any force and is rejected. 3. An objection was raised in the written statement that the Rent Agreement was void because it was not signed by Rent Controller. This objection was not taken up during hearing. Even otherwise it is un-tenable. The objection was obviously based on Section 5 of the Ordinance but Section 5 is directory in nature and non-compliance with it does not render the agreement void or illegal. 4. Learned counsel of the appellant then referred to the tentative order dated 7-12-1989 and pointed out to the following observations allegedly made by the learned Rent Controller " This is also yet to be seen that in these circumstances whether opponent is still tenant of the applicant" and on the basis of these observations argued that since the learned Rent Controller himself was yet not sure that the appellant was still the tenant, he could not, and should not, have passed tentative rent order without first determining' the relationship of landlord and tenant between the parties. I am constrained to observe that learned counsel of the appellant has raised a factually incorrect proposition because learned Rent Controller had not made any such observation; he had only reproduced "the conention of the opponent (that is, the present appellant) as per written-statement and the contentions of his counsel during the hearing of application under Section 16(2). It may be said that learned Rend Controller had not expressed himself in appropriate language but it is clear from the tentative order dated 17-12-1989 that he first reached the conclusion that relationship of landlord and tenant existed between the parties and only thereafter directed the appellant to deposit the arrears and to pay the future rent. This objection is also untenable and is rejected. 5. Lastly, learned counsel of the appellant referred to appellant's letter dated 9- 7-1989 sent to the chairman of the area in which the appellant had stated that he was not satisfied with the house and offered to return the key to respondent's attorney but he refused to receive it. This letter had no evidentiary value at the stage of passing the tentative order and learned Rent Controller rightly ignored it while passing the tentative order. 6. The simple facts of the case are that the appellant took on rent the demised premises vide Rent Agreement dated 1st July 1989 and obtained possession of the house the same day. He did so at his own free will and he cannot be suffered to complain that he did not find the house suitable for his needs and wanted to vacate it after a week. Just as a landlord cannot act arbitrarily and unilaterally terminate the contract of tenancy, so the tenant can also not do the same. If the appellant wanted to terminate the contract of tenancy, he should have negotiated with' the landlady or her attorney. At any rate, it is clear from his written statement that he did not unconditionally offer to deliver possession of the premises to the respondent. He wanted the refund of Rs.40,000/- first. In this he was not justified. Firstly, he could not unilaterally and arbitrarily terminate the tenancy agreement. Secondly, even if he had a mind to do so, he should have unconditionally delivered possession to the landlady and seek the refund afterwards. Since he remained in effective control and possession of the premises, learned Rent Controller was justified in passing the tentative rent order. 7. As for the claim of Rs.40,000/-, the appellant's case is that he paid Rs.20,000/- as fixed deposit and Rs.20,000/- as advance rent. Now there is a written rent agreement between the parlies and in view of Sections 91 and 92 of Evidence Act (or their corresponding sections in Qanoon-e-Shahadat) the terms and conditions of the rent-agreement cannot be modified by an oral agreement between the parties. When the rent-agreement provides per para 3 thereof that full amount of rent (Rs.1,700) is payable in advance by the 5th of the month, the appellant is estopped from saying that Rs.20,000/- were paid as advance rent. Such a claim contradicts and over-rides para-3 of rent-agreement and therefore such a claim must be rejected outright. What prevented the appellant from getting incorporated the payment of Rs.20,000/- advance rent in the rent-agreement ? Since the claim is itself untenable the alleged receipt is of no value. The attorney of the respondent has denied the genuineness of this receipt and in view of what has been stated above, it is a worthless piece of paper. This leaves the sum of Rs.20,000/- received by the respondent as security deposit vide para-2 of the rentagreement. It is refundable at the time of delivery of possession of the premises by the appellant and I would have asked the respondent to deposit this amount in Court or pay it to appellant before obtaining possession but the appellant admittedly has not paid any rent since 1st July 1989 and since he has been in effective control and possession of the premises, notwithstanding the fact that he has abandoned residing in it and it is lying vacant and locked, he is bound to pay rent. Uptodate rent from 1st July 1989 to 30th June 1990 (12 months) comes to Rs.20.400/-. This security deposit of Rs.20,000/- thus stands adjusted in the arrears of rent and even after its adjustment the appellant owes Rs.400/- to the respondent. Rent from 1st July 1990 till the delivery of the possession is also payable by the appellant. Since the tentative rent order dated 17-2-1989 is perfectly valid, the appellant was bound to comply with it and since he did not comply with it his defence was rightly struck off under Section 16(2) of the Ordinance vide order dated 25-2- 1990. 9. For the above-noted reasons I find no force in the appeal and the same is dismissed with costs. Since the premises are already lying vacant and abandoned, the appellant is directed to deliver possession forthwith. (MBC) Appeal dismissed.

PLJ 1990 Karachi 514 [DB] PLJ 1990 Karachi 514 [DB] Present: SALEEM AKHTAR AND IMAM ALI G. KAZI, JJ PROVINCE OF SIND and 4 others--Appellants versus M/s. WASEEM CONSTRUCTION Co.-Respondent H.C. Appeal No. 91 of 1987, partly allowed on 31.5.1990 (i) Arbitration Act, 1940 (X of 1940)-- —S.28--Award—Making of—Time for—Extension of—Contention that award having not been made within time fixed by court, it has no legal value-It is clear that award was not made within two months and for that purpose, an application under Section 28 was filed which was granted and two weaks time from 7.4.1985 was allowed-Umpire made award on 3.4.1985-Held: Award was made within extended period—Held further: Order of extension of time operated retrospectively validating all actions done from 10.1.1985 to 21.4.1985. [P.515JA (ii) Arbitration Act, 1940 (X of 1940)-- —Ss.28&29--Award--Making of-Time for-Extension of-Contention that interest from date of award till payment could not have been granted by umpire—Held: An arbitrator is not authorised to grant interest beyond date of award, but if it was granted and has been made rule of court, then it shall be deemed to have been adopted by court under Section 29—Held further: This technical illegality stands cured as learned Single Judge has granted decree in terms of award-Appeal partly allowed and award/decree modified. [Pp.519&520]B&C PLD 1987 SC 393 rel. Mr. Abdul Ghafoor Afangi, AAG for Appellants. Mr. Iqbal Kazi, Advocate for Respondent. Dates of hearing: 3,7 and 10.5.1990. Sudgment Saleem Aklitur, J.~The respondent was awarded construction work by the appellant under an agreement which provided for an arbitration clause. A dispute arose between the parties whereupon the respondent filed an application under Section 20 of the Arbitration Act on 8.11.1974 which was registered as suit No.3 of 1975. It was alleged that the appellant has refused to pay Rs.15,18,613.00 and has neglected to refer the dispute to the arbitrator in terms of agreement. The respondent's prayer for filing of the arbitration agreement and appointment of the arbitrator was granted. The appellant appointed Mr.Ghulam Mohammad .lunejo as its arbitrator while with the consent of the respondent Mr.Shamsul Arfin, the then Deputy Secretary, Home Department, was appointed as an arbitrator on behalf of the respondent. Both the arbitrators gave conflicting award. According to Mr.Ghulam Mohammad Junejo the respondent was entitled to Rs.25,380.90 while Mr.Shamsul Arfin awarded Rs. 13,38,700.14 with interest at the rate of 12% from the date of award till payment. The appellant required to appoint umpire first appointed Mr.Shah Nasiin as umpire but his appointment was recalled and Mr.Sajjad Haider was appointed as umpire who failed to make his award and therefore on 11.11.1984 the court appointed Mr.Justice (Retd) Agha Imdad Ali as umpire and further ordered that award may be made within two months of the receipt of the notice. An application was filed for extention of time for making the award and by order dated 7.4.1985 time was extended by two weeks to be computed from the date of the order. The learned umpire submitted his award dated 3.4.1985 alongwith i.he application for filing it in Court which was presented on 8.5.1985. The learned umpire concurred with the award made by Mr.Shamsul Arfin. After award was filed the appellant filed objections while the respondent did not file any objection. After hearing the learned counsel for the parties, the learned Sinele Judge, by the impugned judgment made award of the umpire as rule of the court and decree in terms thereof was passed. MrAbdul Ghafoor Mangi the learned A.A.G. has contended that as award was not made within the time fixed by the Court it has no legal value and could not have been confirmed. In support of this contention the learned counsel pointed out that the umpire was appointed on 11.11.1984 for making award within two months which expired on 10.1.1985 and the application under Section 28 was granted on 7.4.1985 for making award within two weeks. The learned umpire had signed the award on 3.4.1985. The learned counsel further contended that after 10.1.1985 umpire had become functus officio and on 3.4.1985 he had no jurisdiction to make the award. From the above facts it is clear that the award was not made within two months and for that purpose an application under Section 28 was filed for extension of time which was granted on 7.4.1985 and two weeks time from 7.4.1985 was allowed. This means that the time was extended upto 21.4.1985. The learned umpire made the award on 3.4.1985 and therefore by virtue of order dated 7.4.1985 it was made within the extended period. The learned counsel contended that on 3.4.1985 the learned umpire did not have the authority to make the award. Such authority was conferred by virtue of extension of time granted by the Court and the umpire was authorised to make the award upto 21.4.1985. The order of extension of time operated retrospectively validating all actions done from 10.1.1985 to 21.4.1985. The learned counsel then contended that the award was filed on 8.5.1985 which was beyond the period extended by the Court. This contention completely over-looks the fact that making of the award is different from filing of the award. The time was extended for making the award and filing the award. The period for filing the award is computed from the date when the award is made as provided by the Limitation Act. The learned counsel for the appellant has not been able to show how the award when filed by the learned umpire on 8.5.1985 was beyond time. Reference can be made to article 178 of the Limitation Act under which award can be filed in court within a period of 90 days from the date of service of the notice of the making of the award. Mr.A.G.Mangi the learned counsel for the appellant has referred to PLD 1953 Sind 18, where award made on expiry of date fixed by Bye Law was held to be invalid. In PLD 1956 Sind 195 it was held that award made beyond four months as provided by para 3 of Sch.I to the Arbitration Act is not void but voidable. These authorities do not apply to the facts of this case as the award was made within the time extended by the court under Section 28 of the Arbitration (Act). The fact that the award was signed on a date before the time was extended does not invalidate the award as the extension operated with retrospective effect. }vIr.Abdul Ghafoor Mangi the learned counsel then challenged items of claims under issues No.3 and 4 which according to him were awarded without any proof or any evidence on record. In this regard he has first referred to claim No.l- A and 1-B. Under this heading the respondent had claimed Rs.1,39,209.08 as follows: I. Cartage of sand, bajri, lime, moruin, manure, earth, building rubbish including loading, unloading and stacking at site lead 12 miles. 3,19,525 Cft. @ Rs.36.10% Cft = Rs.1,16,307/10 II. Carriage of sand, bajri, lime, manure, earth, building rubbish etc; including loading unloading and stacking at site lead above 12 miles. Rs.42,558/92 Rs.1,58,866.02 Rs.19,656.94 Rs.1,39,209.08 1 90 2,06,396.33Cft.@Rs.62%Cft. Total of I & II Less already paid Net claim of the Plaintiff The respondent's claim was that the cartage of all kind of material as specified in the description of item No.48 of schedule B namely sand, bajri, lime, manure, earth, building rubbish etc. was to be paid at the rate quoted by it but the Executive Engineer paid it cartage of only building rubbish and earth. This claim was denied by the appellant on the plea that respondent No.3 was not entitled to claim the payment for cartage of materials required in the construction work either brought at site of work by them or supplied by the Department. Under clause 3 of the additional conditions, part-1 appended with the agreement it was provided as under: "The contractor will not be paid for the carriage of material either brought by him to the site of work or supplied by the department." The claim was based on item 48. but this item was meant for clearance of site, excavated earth and construction debris which was to be disposed of at a distance of 12 miles. In paragraphs 16 and 18 of the affidavit of the respondent the claims under items 1-A and 1-B were in respect of cartage of sand, bajri, lime, manure, earth building rubbish etc. for loading and unloading and stacking at site lead 12 miles and above. Therefore besides the amount paid by the appellant in respect of cartage for removing building rubbish further cartage is claimed for removing sand, bajri, lime, morum, manure, etc at the site. According to the appellant in terms of clause 3 the contractor was not to be paid for carriage of material brought by him within the site and further that as per instructions of the Standing Rates Committee Sind, cartage of material was not tendered for but added to the estimated cost of the work to include the carriage of material to the site. Therefore in our view there is error apparent on the face of the award when such provisions of the contract documents have not been properly appreciated and considered. Mr.Iqbal Qazi the learned counsel for the respondent contended that in the objections filed by the appellant no such specific plea had been taken and therefore it can not raise at this stage. We have seen the objections. The appellant has challenged it in a general manner by stating that the claims awarded are not supported by any evidence. We would not knock out this objection on technical grounds. The learned umpire has awarded Rs.96650/-. In 'our view this amount should not have been awarded. The learned counsel for the appellant has challenged the award made on claim No.2 which relates to deform steel bars of 60,000 PSI per drawings and includes the cost of binding wire wastage overlapping etc for a quantity of 57.34 tons at the rate of Rs.6,620 per ton amounting to Rs.3,79,590.80 less Rs.130505.84 already paid. The balance amount claimed was Rs.249084.96 which has been awarded. The finding of the learned umpire which concurs with the finding of Mr.Shamsul Arfin is based on proper appreciation of evidence on record. The Executive Engineer in the 4th running bill approved the rate of Rs.6,620.00 per ton but provisionally allowed payment at the rale of Rs.4,200. Therefore so far the determination of the rate is concerned it finds support from the approval of the Executive Engineer. Thus the award can not be challenged on the ground that there was no evidence on record. It may be pointed out that while considering objections on the award the Court does not act as a Court of appeal. If on the face of the award the finding does not appear to be supported by any evidence, the court can interfere but if there is evidence which can support the conclusion then the award made by the arbitrator can not be interfered. The appellants contention in this regard is therefore rejected. The learned counsel for the appellant also challenged claim No.3 for Rs.29610 as an extra work for using S.R.C. in all RCC and CC work of foundation and plinth under sub-soil water level. Here also the full rate claimed by the respondent at Rs.300 per ton was approved by the Engineer Incharge but payment was made at the rate of Rs.200.00 per ton. In this regard the award for the reasons stated in the preceding paragraph can not be challenged. The appellant's counsel then challenged certain claims from No.4 to 34. First he took up claims No.4 to 11 for Rs.2834.65. The learned umpire while allowing this claim has approved the finding of Mr.Shamsul Arfin which is based merely on inferences and presumptions. From the award of Mr. Ghulam Mohammad Junejo it seems that from the last running bill (he claims under serial No.4 to 11 which according to the respondents were paid at reduced rate, were paid at full rate and no claim in this regard was made by the respondent. We therefore agree with the contention of the appellant's counsel that this amount has been awarded without any basis. The learned counsel then referred to claim No.27 to 33 for Rs.6,729.39 pertaining to the construction of over head tank with a height of 75 feet. This claim has been allowed by ihe umpire but Mr.Ghulam Mohammad Junejo has disallowed to the extent of Rs.902.66 on the basis of certain presumption. No illegality or infirmity has been shown to compel us to interfere with this part of the award. Mr.Abdul Ghafoor Mangi contended that the amount of escalation granted under issue No.2 is without any basis and should not have been granted. In this regard we have examined the awards of both the arbitrators, the award of the umpire and the documents produced by the parties. We find that the learned umpire has taken into consideration various facts and evidence brought on record and also relevant documents which supported the claim for escalation. As the award is based on evidence and is a result of proper appreciation of evidence no interference is required. The learned counsel then referred to claim 46 and 47. Claim 46 relates to loss of hire charges for remaining idle of all machineries and loss of salaries paid to the drivers amounting Rs.2,11,920.00 and claim 47 relates to loss of salaries of staff due to continuous suspension of work amounting to Rs.1,71,492.00. The learned umpire while agreeing with Mr.Shamsul Arfin has come to the conclusion that the appellant had delayed the work and the delay was due to its own default which could not be compensated by extension of time. Arriving at this conclusion reliance has been placed on evidence which was produced on record and nothing has been shown to us that the evidence was ignored or there was no evidence to support this finding. The work was delayed for 17 months which according to the learned umpire has caused loss to the respondent. This loss under both the items has been assessed and awarded at Rs.1,00.000/-. The reasoning of the learned umpire and the arbitrator are based on evidence on record and the same can not be challenged. So far claim No.53 is concerned the only objection raised by the learned counsel for the appellant is that the interest from the date of award till payment could not have been granted by the umpire. The learned counsel for the respondent further contended that interest could not have been granted beyond the date of the award and as interest has been granted from the date of award till payment it is without jurisdiction. In this regard the learned counsel has relied on PLD 1986 Kar.21,1983 CLC 513 and PLD 1987 S.C. 393. Mr.Iqbal Qazi the learned counsel for the respondent has also relied on Ghulam Abbas Vs Trustee of the Port of Karachi P.L.D. 1987 S.C. 393 paragraph 22 at page 412 which reads as follows: As far as the grant of interest from the date of the award until the payment of the principal sum it may be observed that the Arbitrator can under no circumstances award interest for the period beyond the passing of the decree by the Court on the award for the simple reason that the statutory provisions contained in Section 29 of the Arbitration Act take over and it is the Court within whose discretion lies the power to order interest from the date of the decree at such rate as the Court deemed reasonable, to be paid on the principal sum as adjudged by the award and confirmed by the decree. From this it necessarily follows that future interest with effect from the date of the decree could not legally be awarded by the Arbitrator. However, the facts are that the award was made the rule of the Court by the learned Single Judge with the result that the part of the award granting interest beyond the date of the decree until payment was also incorporated in the decree passed by tht Court. As held in Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad P.L.i - 1956 Lahore 276, although, the court could set aside this part of the award, it was open to it to exercise its own power under Section 29 of the Arbitration Act and grant interest. Therefore, in making this portion of the award a part of the decree the court must be deemed to have adopted it in the exercise of its own power under Section 29. However, in his statement of claim the appellant had claimed interest only upto 3rd October. 1973. The issues were framed by the learned Arbitrator on the pleadings of the parties and therefore, interest beyond 3rd October,1973, was not the subject matter of reference for adjudication before the Arbitrator. The Arbitrator, therefore, exceeded his authority, in any case, to have awarded future interest for the period between the date of the award and the date of the decree on any basis. The reference was also earlier mad,e to the case of Union of India and another v. M/s.D.P.Wadia and Sons AIR 1977 Bombay 10, in which the award of interest was upheld on the ground that no reasons were assigned by the Arbitrator. We are unable to agree with that view of the law and also feel that the facts in the present case are different. The award on the face of it refers to the statement of the claim in which the contractor claimed interest by way of damages and it is on that basis that the decision of the Arbitrator apparently proceeds. As we have held that the Arbitrator in the facts of the present case could not according to law grant interest as claimed, there would be an error of law apparent on the face of the record. The - mere fact that pleadings were filed before the Arbitrator and issues were then settled on the pleadings of the parties incorporating the question of interest does not necessarily give rise to the inference that the parties had agreed to refer specifically the question of grant of interest as a question of law for the decision of the Arbitrator, so as to preclude any party to the arbitration from challenging the award on the ground of error of law on the face of the award." An arbitrator is not authorised to grant interest beyond the date of award but if it was granted and has been made rule of the Court then in view of the observation of the Supreme Court it shall be deemed to have been adopted by the Court under Section 29. Therefore this technical illegality stands cured as the learned Single Judge has granted decree in terms of the award. The net result is that the appeal is partly allowed and award/decree is modified by excluding Rs.96650.00 and Rs.2834.65 (total Rs.99484.65) from Rs.1338700.14. We therefore make the award rule of the Court to the extent of Rs.12,39,215.49 and decree the suit for the said amount with interest @ 12% P.A. from the date of the award till payment with no order as to costs. (MBC) Appeal partly allowed.

PLJ 1990 Karachi 520 PLJ 1990 Karachi 520 Present: SYED ABDUR REHMAN, J SARDAR SALEEM JAN KHAN-Petitioner versus KARO KHAN and 2 others-Respondents Election Petition No. 102 of 1988, decided on 10.7.1990 (i) Representation of Peoples Act, 1976 (LXXXV of 1976)-- —S.75-Provincial Assembly-Election to-Setting aside of-Prayer for- Petitioner in prayer clause seeks to declare election of Constituency in dispute as void as a whole on ground of extensive corrupt and illegal practices, natural consequences of which will be re-election which purpose has been achieved by death of returned candidate-It is not possible to declare petitioner as elected because he was not only candidate against returned candidate-Petitioner had polled only 429 votes against 9058 votes polled by respondent No.2-Petitioner has submitted himself to bye-election and has filed in nomination form—Held: It will not be in interest of justice, equity and fair play to allow petition and declare petitioner as elected. [Pp.522&523 ]A,B,C&D Mr. Zaheeruddin KJian, Advocate for Petitioner. Syed Zaki Muhammad and Qazi Faiz Essa, Advocates for Respondents. Deputy Attorney General on court notice. Date of hearing: 10.7.1990. judgment This is an election petition under Section-52 of the Representation of Peoples Act,1976. 2. The facts giving rise to this petition are that an election was held in respect of Constituency No.P.S.-lO Jacobabad-I, wherein the petitioner, Respondent No.l Karo Khan Mari and Respondent No.2 Mir Shah Ali Khan Dombki had contested. Gazette of Pakistan Notification No.F.2(67)88-Cord, dated 26-11-1988 declared Mir Shah Ali Khan Dombki, Respondent No.2 as Returned Candidate at the said election. Dis-satisfied with the said result the petitioner has filed the above petition and prayed as under:- "(0 To declare that the election of Constituency P.S.-10, Jacobabad-I as a whole is void in view of the fact that provisions of the Act and Rules have not been complied with and prevalence of extensive corrupt pr illegal practice at the election was caused. (ii) Or in the alternative after setting aside the election of the Respondent No.2, declare the Petitioner as elected; (///) Any other relief that this Hon'ble Court may deem fit and proper in the circurr stances of the case. (iV) And cost be allowed." 3. Respondent No.2 Mir Shah Ali Khan Dombki was represented by Mr.Zaki Mohammad Advocate, while there was no appearance for Respondents No.l and 2. Respondent No.2 filed written-statement which was taken on record and the case was adjourned for framing of issues. On 17-5-1990 issues were framed and the case was adjourned to 25-6-1990 for recording of evidence thereon. On 25-6-1990 it was stated by Mr.Zaheeruddin Khan Advocate for the etitioner that Respondents No.l and 2 both have expired, which fact was also onfirmed by Mr.Zaki Mohammad. He then made n application under Section- 75 of the Representation of People's Act,1976 praying that the petition be decided exparte and after ascertaining the facts mentioned in paras 7 to 13 and 16 and on finding violation of the provisions of various sections of the Representation of People's Act it may be held that there had been rigging at the said election at the hands of the Returned Candidate. 4. Notices of the above petition were issued to the Advocate of Respondent No.2 as well as Dy. Attorney General Mr. Zaki Mohammad Advocate for Respondent No.2 and for Ghalib Hussain filed objections to the application and pointed out that after the death of Respondent No.2 Mir Shah Ali Khan Dombki, the seat was declared vacant and the schedule for bye-election to the said seat has been notified, according to which elections arc going to be held on 11-10-1990. The date of nomination was 7-7-1990. On this date nomination papers have been filed by various candidates including the petitioner Sardar Saleem-Jan Khan Mazari. Hence this petition has become infructuous on account of the death of Mir Shah Ali Khan Dombki, the Returned Candidate, as well as on account of the petitioner having filed nomination papers at the bye-election. 5. Mr.Zaheeruddin Khan has contended that the death of the Respondents would not result in the abatement of the petition and the Tribunal is bound to ecide the petition exparte without any further hearing or after giving such person as it may think fit. an opportunity of being heard. In this connection he relied upon Section-75 of the Representation of People's Act,1976 which reads as under:- "75. Death or withdrawal of respondent. If, before the conclusion of the trial of an election petition, a respondent dies or gives notice in the prescribed form that h'e does not intend to contest the petition, and no respondent remains to contest the petition, the Tribunal shall, without any further hearing, or after giving such person as it may think fit an opportunity of being heard, decide the case exparte." He then relied upon the-decision in Election Petition No.38/1988 of the Election Tribunal Punjab, presided over by Mr. Justice Mohammad Ilyas of Lahore High Court. In this case one of the respondents Capt.(Retd.) Sanaullah, who was a non-Muslim, had died and it was held that Section-75 of the Representation of People's Act was applicable to the case and the petition can be decided not-withstanding the death of Capt.(Retd.) Sanaullah, who was one of the Respondents mentioned therein. 6. The case of Capt. (Retd.) Sanaullah referred to above is distinguishable from the present case in that the trial of the Election Petition had concluded and the case was at the stage of judgment which was yet to be announced, whereas in the present case the trial is not over. Only issues have been framed, but no evidence has been recorded as yet. In fact the Trial has not started as yet. 7. After giving my thoughtful consideration to the facts and circumstances of the case, I have decided to dispose the petition on the following interalia, for having grounds, become infructuous:- That the petitioner in prayer clause No.l seeks to declare the election of the Constituency in dispute as void as a whole on the ground of extensive corrupt and illegal practices, the natural consequences of which will be re-election, which purpose has been achieved by the death of returned candidate. The second alternative prayer is that after setting aside the election of Respondent No.2, the petitioner be declared as elected. This is not possible because the petitioner was not the only candidate against Respondent No.2, the Returned Candidate. Hence even if the election of Respondent No.2, the Returned Candidate is set-aside, the petitioner cannot claim the right to be declared elected in preference to Respondent No.l, who was also one of the candidates and had lost election as against Respondent No.2. Besides this the petitioner had polled only 429 votes as against 9058 votes polled by the Respondent No.2. It would be most unfair to declare a candidate, who has got only 429 votes at his credit, as a Returned Candidate from a Constituency where 9487 votes were cast. Section 108 of the Representation of People's Act provides that when a seat of a member becomes vacant, the Commission shall by Notification in the official gazette, call upon the Constituency concerned to elect a person to fill the seat for such Constituency. This provision of Section-108 of the Representation of People's Act is mandatory. (MBC) Order accordingly granted against the said election. The petitioner has not even applied for any stay. The petitioner has on the contrary submitted himself to the said bye-election and has filed in nomination form. He has thereby impliedly accepted the fact that the seat has become vacant. Under these circumstances it will not be in the interest of justice, equity and fair-play to allow the petition, and to declare the petitioner as elected. Order accordingly.

PLJ 1990 Karachi 528 PLJ 1990 Karachi 528 Present: SALEEM AKIITAR, J SOLO SUSICE NARODNI PODNIK-Appellant Versus SIND MATCH WORKS (PVT.) LTD. and another-Respondents Misc. Appeal No. 27 of 1987, dismissed on 17.6.1990 Trade Marks Act, 1940 (V of 1940)-- —S.10(2)—Identical trade mark-Registration of—Challenge to—Controversy v eems to be well settled that if goods of a manufacturer are not available in market for a long time and during this period, another manufacturer sells same goods under similar trade mark, question of deception and confusion will not arise—Evidence is sufficient to establish that respondent No. 1 as been elling matches with trade mark from year 1977—Appellant did not object from 1977 to 1981 till application was filed-Continuous silence on part of appellant and raising no object till 1981 establishes honest user of respondent-Held: Registrar, in exercise of his discretion, can grant registration to more than one proprietors of trade mark which is identical or resemble each other' in special circumstances—Held further: Facts do constitute other "special circumstance" and discretion exercised by respondent No. 2 is legal and proper-Appeal dismissed. [Pp.531,532,533&535]A,B,C,D,&E PLD 1962 Kar. 355, PLD 1969 SC 477, PLD 1970 SC 460, PLD 1975 Kar. 478, Narayanan on Trade Mark and Passing off (2nd Ed.) at page 209, para 626, Kerly's Law of Trade Mark and Trade Names (12lh Ed.) at page 160 ref. Mr. Khawaja Mansoor, Advocate for Appellant. Mr. AshmfAvoob, Advocate for Respondent No. 1 (called absent). Date of hearing: 1.4.1990. judgment The appellant claims to carry on a world wide and reputable business in the manufacture of matches which are sold and marketed throughout Pakistan in container bearing various Iradc marks and in particular bearing the trade mark comprising the word THE SCISSORS' and the device of scissor. The appellant is the proprietor of label trade mark comprising the word "SCISSOR" and the device of a pair of scissors. The appellant registered the trade mark of THE SCISSOR bearing registration No.6957 in class 34 for matches on 1st July, 1949. The appellant claims to have used this trade mark for manufacture of matches in prepartition India including the territories now forming Pakistan and has a valuable reputation and goodwill in respect thereof. The matches bearing appellant's trade mark had been exported to Pakistan and continued to export in Pakistan. In 1973 the import of matches into Pakistan was restricted with the result that thereafter the appellant has not exported its goods to Pakistan. On 13.5.1981 respondent No.l filed application in class 34 for registration of a label trade mark comprising as its essential feature the words "T.HE SCISSOR" and the device of pair of scissors in respect of safely matches which was advertised in Trade Mark Journal on 1st November, 1982. The appellant filed notice of opposition on 28lh August, 1983 with documents and objected to its registration. On 20th October, 1983 respondent No.l filed counter statement accompanied by affidavits and documents alleging that it had adopted and introduced "THE SCISSOR" mark in 1977 and that the question of confusion and deception did not arise as the appellant had abandoned this trade mark. Alongwith its counter statement respondent No.l also filed application under Section 37 of the Trade Marks Act to remove the registered trade mark of the appellant. The appellant filed counter statement and supporting documents in that rectification proceeding case No.52/83. The learned Deputy Registrar, respondent No.2, by the impugned order rejected the opposition of the appellant and allowed the application of respondent No.l for registration of the mark with amendment by indicating the name of respondent No.l on the front side of the label. The rectification application filed by respondent No.l was disallowed. The appellant has filed M. A. 27/87 challenging the order by which its opposition was rejected. The respondent has filed M.A. 30/87 againsl the rejection of the rectification application which is being disposed of by a separate judgment. Mr. Khawaja the learned counsel for the appellant has contended that as the appellant is a proprietor of registered trade mark, the learned Deputy Registrar should have taken into consideration the prohibitions and bars provided by Sections 6, 8(a) and 10(1) of the Trade Marks Act. It was further contended that respondent No.l has failed to satisfy the pre-conditions laid down for registration of an identical mark in respect of the same goods. The learned counsel for the appellant has contended that the marks of respondent No.l are not distinctive as required by Section 6(2). In this regard Mr. Syed has contended that in view of its user from 1977 and non-availability of appellant's goods in market from 1973, respondent's mark has achieved distinctivencss. In this regard reference has been made to the affidavits filed on behalf of the respondent in which similar averments have been made. It is established that appellant's goods are not available in market from 1973. The goods with the trade mark in Pakistan markets are know to be the products of respondent No.l. When with reference to a mark the goods of a manufacturer are distinguished from the goods of other producers, the mark achieves distinctiveness. It is the local market where the mark should be known and recognised to represent a particular person and the goods bearing the said mark to belong to him and none else. Mr. Syed has referred to S.M. Taiifiq Vs. National Biscuit Co. PLD 1962 Kar. 355 in which while relying on Impex Electrical Ltd. V. Weinbawn 44 R.P.C. 405 Wahiduddin J.(as he then was) a most eminent Judge, observed as follows:- "In English Courts, il is now well settled rule of law that for the purpose of finding out whether the mark is distinctive, one should look to the local market and not to foreign markets, as it is wholly irrelevant consideration." From the evidence produced by the parlies which will be discussed later it is established that the appellant was exporting safely matches with registered trade mark to Pakislan which completely stopped in 1973. Thereafter appellant's goods are not available in the matkel. In the absence ol appellant's products respondent No.l started manufacturing safety matches from the year 1977 under a trade mark which is similar to the appellant's registered mark. Respondent No.l has developed sizable business and has continuously(bcen) using this mark and has achieved distinctivcness without any objection by the appellant. In Pakistan ihe Irade mark is associated with respondent No.l. The affidavits filed on behalf of the appellant prove that its goods with the registered trade mark were available in Pakistan upto 1972. The particulars of sales of the same goods in other countries upto 1983 is not relevant. It is pertinent lo note ihat no affidavit of any consumer or shopkeeper of Pakislan has been filed to prove thai even now alter more than eighl years ihe consumers Ireal the safety match with trade mark THE SCISSOR and with device of scissors as goods manufactured by the appellant. There is no iota of evidence lo prove that even in the absence of any market in Pakistan the appellant carries any reputation which may deprive the Irade mark of respondenl No.l from its dislinclivcness. A mark while retaining ils distinctiveness in a country may become 'public juris' in another country. Reference can be made to National Starch Manufacturing Co. Vs. Munir's Patent Maizcna and Starch Co. (1894) 11 RRC 281. The learned counsel for the appellant next contended thai as ihe mark is similar lo its mark, it is likely lo deceive or cause confusion and thus regislration can not be allowed under Section 8(a). The respondent on the olher hand denied il on the plea thai ihe reputation acquired by the appellant has ceased from 1973 onwards and as the appellant's goods are not available in Pakistan markets the question of deception and confusion does not arise. Bui according lo Mr. Khawaja there is a residue goodwill and reputation which was acquired, persists even after use of mark has ceased. He has referred to (1954) 71 RPC 348 and 1957 RPC 84. Mr. Sycd has referred to AklriboUigct Jonkoping Volume Sweden Vs. Registrar of Trade Mark, Karachi and another PLD 1975 K. 478. In this case facts are similar. The appellant was a manufacturer of safety matches and proprietor of a trade mark of word THREE STAR and device of three, stars. It supplied the matches in East Pakislan upto 1954 when import was banned by Ihe Government. Respondent No.2 applied for registration of trade mark Five Star and device of Slars. The appellant filed opposition which was rejected. Similar objection as raised by Mr. Khawaja was repelled in I he following words:- "The next submission of Mr. Nomani is thai the burden was on ihe applicant lo prove the absence of likelihood of deception and confusion and thai the respondent had failed to discharge it. There is no force in ihe submission. Since the appellant admittedly discontinued use of its Three Stars trade mark in Pakistan since 195.1 and in the absence of ihe appellant's goods in the market, the burden, of proving absence of likchood ol deception or conlusion has been easily discharged by the respondenl." The learned counsel for the appellant contended that as honest concurrent use has not been established the mark of respondent No.l can not be registered. Section 10(1) provides for registration of identical mark in respect of similar or same goods on conditions prescribed under Section 10(2). These arc exceptions to the rule prohibiting registration of same, similar or identical marks in respect of the same or similar goods belonging to other person. Such registration is permitted if there is honest concurrent user or other special circumstances justifying exercise of discretion by the Registrar. Reference has also been made to A//5. Bengal Friends & Co. Dacca Vs. M/s. Goitr Bcnodc Shall & Co. Calcutta & another PLD 1969 S.C. 477 where it was observed as follows: - "It has been noticedijiai the supplies made by respondent No.l to East Pakistan since 194v- were scanty and stopped together in 1952. Consequently when the appellant applied for registration of his mark in 1953 the goods of respondent No.l 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 No.l 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 good 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 dale alone were to satisfy the requirements of Section 8, then no one need have his mark registered under the Trade Marks Act at all." This controversy seems to be well settled that if the goods of manufacturer are not available in the market for a long time and during this period another manufacturer sells the same goods under similar trade mark the question of deception and confusion, depending on the facts of case, will not arise. So far the honest concurrent user is concerned according to the appellant it has not been proved by respondent No.l. According to the learned counsel as the appellant's mark was in market from 1949 and continued iipto 1973 it has acquired good-will and respondent No.l has adopted it only for the purposes of reaping on the goodwill of the appellant. In this regard the learned counsel has referred to Glaxo Laboratories Ltd. England Vs. Assistant Registrar of Trade Marks and another PLD 1977 Kar. 858 and 1981 SCMR 1(139 and'7 Up Co. Vs. Re^ixlmr NLR 1987 AC 115. On the other hand the learned counsel for the respondent has pointed out to the evidence on record to show that the appellant's mark is not available in the market Irom 1973 and after making inquiries and satisfying that the appellant's goods were not available in the market since long it started manufacturing in 1977. The learned counsel criticised the evidence produced by respondent No.l on the ground that it is insufficient and unatilhenlic. An examination of the evidence will show that respondent No.l had produced affidavits alongwith documents which were photo copies of receipts, voucher and a letter issued by the Excise Department. It had also produced the receipt and vouchers of the press which had been printing the label. The affidavit of a shop keeper was also filed who sells the respondent's goods. Before the mark was published for inviting objections, the Registrar had asked for particulars of material with regard to production from 1977 and certain vouchers and receipts ol 1977 onwards were produced through a letter of the advocate for respondent No.l. After ihe opposition was filed respondent No.l filed affidavit in which it was stated that all the documents and evidence produced before the Registrar at the lime of filing application for registration should be taken as evidence for the purposes of opposition. This was a reasonable and proper request. A perusal of this evidence will show that respondent had been producing the goods from 1977 with the trade mark for which it has applied for registration. Mr. Khawaja has taken a serious objection to the production of documents alongwilh the letter of advocate for respondent No.l which are credit bills from 1977 to 1979. However, even if those bills are excluded from consideration the certificate of the Excise Department confirms that respondent No.l has been manufacturing the brand from 27.9.1977. There is one receipt of 14.2.78 of Samir Arts for printing these labels. The other receipt is dated 7.3.1979. The affidavit of Fero/ Ahmad who is a partner of Hafeez & Co., has stated that he is selling safety matches under the trade mark from 1977 and this device has been associated with (he respondent No.l and no one else in the market is recognised as ils owner. Mr. Khawaja has contended that the statement of Feroz Ahmad is false as it speaks of selling matches from the- year 1975 although production of respondent No.l started from 1977. This contention is based on mis-construction of para 1 of the affidavit in which he has stated that he started business of selling match boxes from the year 1975 and respondent's brand in also sold by him. His statement does not mean that from 1975 he has been selling the match boxes manufactured by respondent No.l. In para 2 of the affidavit it has been explained that trade mark THE SCISSOR and device was introduced in the year 1977 and he has been selling matches under this trade mark continuously from the year 1977. The entire affidavit has to be read as a whole and the overall impression is that he is selling (he matches manufactured by the respondent No.l from 1977. The evidence filed by respondent No.l and the letter of Excise Department are sufficient to establish that respondent No.l has been selling the matches with the trade mark from llie year 1977. The volume of sale as stated in the affidavit also reflects the production capacity and the business respondent No.l has acquired during the year 1977 to 1981. In these circumstances it seems thai the appellant did not object from 1977 to 1981 till the application was filed. Therefore, the inquiry that was made by respondent No.l before using the trade mark, continuous silence on the part of the appellant and raising no objection till 1981 establishes the honest user of the respondent. The learned counsel for the appellant has referred to Kerly's Law of Trade Mark and Trade Names 12th Ed. p.157 and Narayanan on Trade Mark and Passing Off 2nd Ed. p.280-281. The learned counsel for the appellant also referred to Cooper's Incorporated (Now named Jockey International Inc. Vs. Pakistan General Store and another 1981 S.C.M.R. 1039 which proceeds on the basis and finding of the Deputy Registrar that the user by the respondent was dishonest. There is no such finding in this case. In '1 Up case NLR 1987 A.C. 119 dishonesty of purpose was established and therefore registration of identical mark though for different goods was not allowed. On the other hand ihe learned counsel for respondent No.l has referred to Pakistan Soap Factoiy Vs. Chitagong Factoiy and others PLD 1970 S.C. 460. In this case application for registration of trade mark 1947 on soaps manufactured by 'P' and sold in market for a number of year was opposed by another manufacturer on ihe ground thai he was proprietor of a registered mark 1937 in respect of similarly shaped washing soap. The registration was refused and the appeal was dismissed by the High Court. The appellant agitated the matter before the Supreme Court where taking note of the fact that the trade mark has been in use of the appellant's predecessor from 1949 it was observed as follows:- "It ca'h be reasonably presumed that the appellant's trade mark in question was in use since 1949, if not earlier. In any case, it was put into use by the appellant on their purchase of the concern in March, 1960, after which they renewed their application for registration in August, 1960. The concurrent use of this trade mark by the appellant without any challenge from the opposite side for a long period of time is thus clear. That it has been in such a use innocuously without prejudice to the respondents interests would be manifest from the circumstance that the respondent has netfcr thought of taking step to restrain the appellant from using this trade mark nor was any incident of the fraudulent use of their trade mark or of deception by the appellant brought to light." The Supreme Court on assessment of evidence allowed the registration. InAktit'bolagcl Jonkoping Vs. Registrar of Trade Mark PLD 1975 Kar.478 the appellant a foreign company was holder of trade mark of 3 Star not available in the market for a long time. The respondent started manufacturing matches with trade mark 5 Stars and Label and developed a sizeable trade without objection from the foreign firm. The Court allowed the registration. From these authorities it is fully established that where a manufacturer is proprietor of registered .trade mark but his goods are not available in the market for sufficiently long time and if any oilier manufacturer uses that trade mark after obtaining full information about the non-availability of those goods in the market and develops a sizeable market tor his goods for sufficiently long time without any objection from the proprietor of registered mark then his adoption will not amount to dishonest user. These are such questions of facts which have to be proved by cogent, clear and convincing evidence and decided on its own merits. In view of the evidence discussed above use of respondent No.l can not be termed as dishonest. Under Section 10(2) in special circumstances the Registrar in exercise of h;s discretion (can) grant registration to more than one proprietors of trade mark which is identical or resemble each other in respect of the same or similar goods. Term "special circumstances" has not been defined nor specified. What are 'special circumstances' in a particular case is a question of fact and has been left to the discretion of the Registrar. It is well settled that Trade Marks Act does not encourage dishonesty, deception, confusion and fraud. Its object is' to maintain purity of mark and safeguard the interest of public, consumers and proprietors of trade marks. Where dishonesty is established even in special circumstances registration of same or similar mark can not be granted. Special circumstances can be pleaded where honesty of purpose is not lacking. In this regard the learned counsel for the appellant has referred to Narayanan on Trade Mark and Passing off (3rd Ed) Art.616, 618, 1621, AIR 1967 Madras 116, NLR 1987 AC 119, 1981 SCM.R 1039, AIR 1969 Bom. 24 and 63 RFC 187. In Narayanan on Trade Mark and Passing Off (2nd Ed) at page 209 para 626 the term "Other Special Circumstances", has been analysed as follows:- "Any circumstances peculiar to the applicant in relation to the subject matter of the application may be considered a special circumstance under Section 12(3). Thus the use by an applicant of his mark before the conflicting mark was registered are used in the special circumstances for the purpose. Holt ancTCoy. (Leeds) Ld.'s Apptn., (1957) RFC 289 at p.294 relied on in London Rubber Co. Lt. Vs. Durcx Products Inc., AIR 1963 S.C. 1882 at p.1890. If the plaintiffs own registered trade mark was in peril of removal from the register on the ground of non-use throughout the whole of the period of the defendant's user of his mark, this fact may be special circumstance of which the tribunal should take account. Elctrolux Ld., v. Elcctrix Ld., (1953) R.P.C. 127 at p.133. This expression of opinion appears to be obiter as the issue of concurrent registration was not properly before the Court for its decision. When the use of applicant's mark is proved to be dishonest, it is not open to the Registrar to allow registration on the basis of "other special circumstances". Bengal Immunity Co. Ld. vs. Denver Chemical Mfg. Co., AIR 1959 Cal. 636 at p.640. The use of the word 'other' shows that 'hosest concurrent use' itself is a special circumstance. Other cases of special circumstances arise :(a) when the mark happens to form the essential part of the applicant's company's name; (b) when the mark has ben used for a considerable period of time and denial of registration would cause hardship to the applicant; and (c) when the goods are different. But socio-economic considerations would not constitute a special circumstance under S.12(3). A special circumstance must be connected with the use of the mark. London Rubber Co. Ld. v. Durex Products Inc. AIR 1963 SC 1882 at p. 1890. The general principle lor granting registration of same or similar trade marks was set out in Kcrly's Law of Trade Mark and Trade Names (12th Ed) at page 160 as a follows:- "The main matters which the Tribunal should take into account under this sub-section were laid down by Lord Tomlin in Piric. Briefly these matters are:- (1) The extent of use in time and quantity and the area of the trade, (2) the degree of confusion likely to ensue from the resemblance of the mark which is to a large extent indicative of the measure of public inconvenience, (3) the honesty of concurrent use; (4) whether any instances of confusion have in fact been proved; and (5) the relative inconvenience which would be caused if the mark were registered, subject if necessary to any condition and limitations, but not, probably the effect in foreign countries of registration in the United Kingdom. The discretion of the Tribunal is unfettered and concurrent registration may be allowed even then the probability of confusion is concerned. Every case has to be determined on its own particular, merits and circumstances". In Anliebolaget Jon King Vulcan Sweden Vs. Registrar of Trade Marks and another PLD 1975 Kar. 478 referred above in similar facts the following observation was made:- "The 'other special circumstances' relied on in Lullhhai Amichand's case were identical with those in the present ease vi/. that the goods of the foreign registered proprietor were not available for sale or consumption in Pakistan and in the vacuum so created a national firm of manufacturer had built up a si/.cablc business by using the trade mark in question over the last several years without any objection. These circumstances, in the view of the Court, were registered as "special circumstances" within the meaning of Section 10(2) of the Act". The facts of the case as discussed above establish sufficiently long honest user by respondent No.l without any objection. It has also developed a sizeable market and the appellant is neither manufacturing in Pakistan nor has been importing here from 1973, These facts do constitute other 'special circumstance' and therefore, the discretion exercised by respondent No.2 is legal and proper. This Appeal is dismissed. (MBC) Appeal dismissed.

PLJ 1990 Karachi 535 PLJ 1990 Karachi 535 Present: Syed haidhR ALI pirzada, J KARACHI CATHOLIC CO-OPERATIVE HOUSING SOCIETY LTD.- Pelitioner/Applicant Versus Mrs. DAPHNE MARY MENDONCA and 6 others-Respondents Revision Petition No. 210 of 1989, dismissed on 16.7.1990 (i) Civil Procedure Code, 1908 (V of'1908)- —-O. XXXIX Rr. 1 & 2-Tcmporary injunction-Grant of-Prayer for-Whether discretion is properly exercised—Question of—It is no doubt true that it is discretion of court to issue or refuse an njunction—Discretion is to be exercised in accordance with reason and on sound judicial principles—Held: Learned Civil Judge failed to exercise jurisdiction on question of well established principle of law and thus appellate court had jurisdiction to interfere with said order—Held further: Learned Additional District Judge was justified in allowing respondents Nos. 1 to 5 to raise construction at their own risk and cost-Petition dismissed. [Pp.539,540,541,542&543]B,C,D,E&F 1974 SCMR 504, (1975) 2 WLR 310= (1975) 1 AER 504 re/ (ii) Civil Procedure Code, 1908 (V of 1908)- —O.XXXIX Rr. 1&2—Temporary injunction—Grant of—principles for—Relief is both temporary and discretionary-Held: Before a temporary injunction is granted, court must be satisfied thai (1) applicant has a prima fade case, (2) protection is necessary from species of injuries known as irreparable, before legal right can be established, and (3) mischief or inconvenience likely to arise Irom withholding of injunction is greater than by granting it. [Pp.539]A Mr. R.F. Vccrjec, Advocate for Petitioner. Mr. H.A. Rahinuni, Advocate for Respondents 1 to 5. Mr. Muslim Naqvi, Advocate for Respondent No. 7. Dates of hearing: 19,22,27 and 28.3.1990. JUDGMHNT This revision petition is directed against the judgment dated 29.8.1989 of the Vth Additional District Judge, Karachi East, allowing the appeal filed "by the respondents No.l to 5 against the order dated 3.5.1989 of the IVlh Senior Civil Judge, Karachi East. The facts giving rise to the present petition are that the petitioner society filed a suit for declaration and permanent/mandatory injunction against the respondents. The case of the petitioner, as set out in the plaint, was that the petitioner society was registered on 4.3.1921 with the avowed objective of providing accommodation to the Catholic/Christian community at Karachi. For this purpose, the Government had allocated land to the petitioner on a lease of 99 years and subsequent thereto the petitioner had given registered sublease to its sub-lessee members for a period of 99 years. The Society was formed decades ago predomihantely for the purpose of accommodating members of the Catholic/Christian community, it became widely known as the Catholic Colony. To all intents and purposes, the public has come to know this Colony as one meant exclusively for the purpose of accommodating members of the Christian community. The society was established for the members of Catholic Christian community and bye-laws of the Society provided that the membership could only be made eligible to this community which became a condition precedent to the grant of any sub-lease. It was only on account of the petitioner that the respondents No.l to 3 were able to get the land without paying price for the same and today they arc obviously making huge profits at the expense of the petitioner Society. Hence the sale through this oblique, subterfuge/surreptitious manner is not binding on the petitioner. It is the further case of the petitioner that the members of community have lived in the Society since long being bound by its environment, customs practices, traditions that essentially envelope the same. The Society became symptomatic of and epitomized the cohesive tendencies of the Catholic community who have lived in peace and harmony within their traditional environment. It is the further case of the petitioner that this illegal act has become a great concern to the minority Christian community and the occupants therein. It is the further case of the petitioner that it has been one of the conditions whereupon the lessors viz Karachi Metropolitan Corporation, had given lease to the petitioner Society that no part of the premises or any building constructed thereon shall be let to any person who is not a member of the Society. In fact, all actions taken by any member have to be within the aegis of the Society and all members are bound by the bye-laws of the Society and the principal body that governed the members and their properties was the petitioner Society and all the members had attorned to abide by the directives, rules and bye-laws of the Society. In the same manner, the petitioner had given a sub-lease to the. members of its Society and one of the essential conditions that the sub-lease has been that the sub-lessee shall not transfer his or her plot in the Society to any person who is not a member and without the permission of the Socicly. It is the further case of the petitioner that it was lately found that certain members of the Society in order to make money at the expense of ihc Society have deemed it convenient to flout the covenants of the lease as well as the conditions of the live-laws whereby they have decided lo sell their property to persons who cannot be members of the Society. This has been done with a main fide objective of making money at the expense of petitioner Society. It is the further case of the petitioner that respondents No. 1 and 3 who are not residents of Karachi and in fact migrated lo U.S.A., and respondent No.2 who is residing in home for the handicapped, have recently through their attorney executed an irrevocable general power of attorney obviously followed by an agreement of sale, as is generally done under the practice of transferring of properties. Respondents No. 4 and 5 knowing fully well that they cannot purchase the properly have surreptitiously entered into this type of a transaction to blatantly flout the bye-laws of the Society as the terms and conditions of the lease/sub­ lease. It is the case of the petitioner that the respondent No. 1 and 3, who are not at all present in Karachi, and who have apparently recovered their shares of the sale price abroad with the connivance ot respondents No.4 and 5, have sold their property by giving an irrevocable general power of attorney. The Secretary of the petitioner's Society has issued a Teller lo respondent No. 4 with a copy lo the Controller of Butldinus. Karachi Development Authority, advising that the uilding pUm for new construction on ihc plot should have been submitted to them for approval prior to any construction being made. It is the further case of the petitioner that the President and the Secretary of the petitioner had.also visited the Controller of Buildings, KDA advising them that irregularities;'illegalities were being committed and that the terms and conditions of the sub-lease were being wantonly violated. The Authority had advised the petitioner that the mailer would be properly looked into. Apparently nothing has been done. Il is the usual practice that no plan is approved by the Controller of Buildings unless it is channeled through the Society. There is a distinct departure from this established norm and practice and the petitioner is seriously aggrieved b\ this unusual action of the office ol the Controller ol the Buildings. The petitioner addressed a letter daled 22.11.1WS lo Ilaji Suleman informing that the building plan should have been submitted lo them for approval and also it was mentioned that Mrs. Dephne Mendonca has migrated lo USA and that this power of attorney is subterfuge. This action is a violation of the sub-lease and mala fides stand manifested. The aforesaid letter replied to vide letter daled 4.12.1988 wherein an irrevocable general power of attorney made out by Mrs. Daphne Mendonca in favour of respondents No. 4 and 5 was enclosed, togclhcr with the copies of the buildings plans for the new construction. It is the further case of the petitioner lhal ihe petitioner is seriously aggrieved by the actions of the respondent No.6 who has approved the construction plans despite the approach made by the petitioner and hence are being impleaded as respondents. It is the case of the petitioner that it is therefore clear that in the guise of an irrevocable general power of attorney with an agreement of sale to support ihe same Ihc sale transaction has been effected. Apparently Mrs. Mendonca has come from U.S.A. to execute this document and has left again for USA and probably ihe purchase price stands transmitted lo the sellers in the USA. The power of attorney should have been stamped ad valorem and its legal validity is questioned. That even otherwise respondents No. I and 3 have acquired American nationality having migrated to USA. A foreigner cannot hold properly without the approval of the Government of Sindh. The case of the petitioner was that the respondent Nos. 4 and 5 have gone with a demolition plan which would he followed by new construction on the properly. The occupants ol this new construction would be non-members of the society ' as the membership is restricted to the Catholic/Christian community. Thus, the sub-lease as well as bye-laws of the Society would be violated. The respondents No. 4 and 5 would be achieving their ends in an indirect manner which they knew could not be done directly. All efforts made by the petitioner Society to prevail on respondents No. 4 and 5 that construction be made to accommodate Catholic/Christian community failed. The petitioner Society has been a haven exclusively for Catholic/Christian for decades and the respondents No. 1 and 3 have deliberately and with ulterior motives crealed conditions thai would change the entity of the Society. Under these circumstances, the petitioner Society filed the above suit for declaration that the irrevocable general power of attorney is illegal and consequently for the cancellation of the same. The petitioner also sought permanent injunction restraining the respondents No. 4 and 5 from raising any construction on the plot in question. In trie alternative a declaration and mandatory injunction sought thai if any construction is raised, then such construction be used only for accommodation on leave or ownership basis ol members ol the Catholic/Christian who are eligible membership ol the Society at the reasonable prices acceptable to the petitioner Society. Along with the plaint the petitioner moved application under Order XXXIX Rules 1 and 2 CPC for restraining the respondents No. 1 to 5 Irom raising any construction on the plot in question and also Irom selling out ol the same to any non-meiiiber of the Society. The respondents 1 to 5 contested the injunction application. The learned trial Court alter taking into consideration the arguments advanced by the learned counsel for the parties, allowed the application vide its impugned order dated 3.5.'198 l

. The respondents No. 1 to 5 were restrained from raising any construction as well as from selling the same to any non-member of the Society lill the disposal ol the suit. The respondents No. 1 to 5 went in appeal before the District Judge, Karachi East which was ultimately heard by the Vlh Additional District Judge, Karachi East. The learned Additional District Judge, taking into consideration of the arguments advanced by the learned counsel for the parties, allowed the appeal partly. He came to the conclusion that the learned trial Court was not justified in restraining the appellants/respondents Nos.l to 5 from raising construction over the plot and ihe impugned order was improper to that extent. In view of that the appeal was partly allowed. It is advantageous to reproduce the conclusion portion of the judgment which reads as lollows:— "The appellants shall he at liberty to raise construction of the building according to the plan at their own risk and costs however as undertook by them they shall not sell or transfer ihe newly constructed building or any portion thcreol to any non-member o! the society or to a non-Christian." The petitioner Society being aggrieved has filed the above revision petition. 1 ha\e heard Mr. R.F. Virjce advocate in support of the revision petition and Mr H.A. Rehmani learned counsel for respondents No. 1 to 5. Mr. Muslim Naqvi for respondent No. 7. I have gone through the impugned order and judgment of the Courts below. 1 have also perused the pleadings, applications, affidavits, counter-affidavits and rejoinder affidavits filed by the parties before the trial Court, I have also considered the following decisions cited by the learned counsel lor the parties in support of their respective contentions:-- A.l.R. 1980 Calcutta 140, PLD 1970 S.C. 181, 1989 CLC 1801, AIR 1933 Rangoon 18. AIR 195(> Bombay 476, AIR 1980 S.C. 892, AIR 1983 (iauhali 8. 1989 CLC 2178. l')8s"CLC 362. AIR 1958 SC 789. AIR 1973 Bombay 148. AIR 1M57 Bombay 94. 1985 SCMR 1928, PLD 1983 Karachi 11. PLD Wl SC' 4S1. I l .s2 CLC 416, PLD 1970 SC 139, PLD 1983 SC 53, 1'iNj SCMR 3o<\ 1'JSii CLC 1873. PLD 1962 Karachi 59. (1968) 3 AER 54?. PLD iviti Karachi 1. l l «2 CLC 1647, 1985 CLC 217, PLD 1959 Dacca 4''i>. PLD lv73 A.kvK <>2. 1988 CLC 362, AIR 1973 Delhi 143, {'<^'' SCMR k 4>>. PLD N71 SC 481, PLD 1983 Karachi 1 1, 1984 CLC 340 . SC 1 FLD mn,: SCMR 542. PL.l 1986 Karachi 214, NLR 1985 CJ NO. AIR 1"32 P.C. 15s, AIR l l (>0 Assam 178. PLD I960 Karachi 139, ]-,s4 e LC 340 and PLD I l ,s7 s( 447. guiding ihe grant of iiilcrloculory injunctions are fairly well is botli temporary and discretionary. Before a temporary inji-ncu.. is jil 1 lind in the impugned order, lie failed to consider the above three cviidilioiiv tor ihe grant of injunction. The question is whether the Court is bound I..- consider iv, >! onh that llie api'Ticani has a i>ri/iui facie case but also the other t'.ui intirediLnl^.'piinciiiles. \ineli \ere set lorih above. In Svcd AkhUufuc Hussain v. Habib Ismail Bajwa, Advocate (1974 SCMR 504) il is staled that in order to obtain an interlocutory injunction, it is not enough for the plaintiff to show that he lias a prinia facie case. He must further show the following ingredients:-- (/) In the event of withholding the relief of temporary injunction he will suffer an irreparable injury. (»') In the event of his success in the suit in establishing his alleged legal right, the encroachment whereof is complained against, he will not have the proper remedy in being awarded adequate damages. (//;') In taking into consideration the comparative mischief or inconveniences to the parties, the balance of convenience is in his favour, in other words, that his inconvenience, in the event ol withholding the relief of temporary injunction, in all events, exceed to thai of the defendant in case he is restrained. This condition can, under circumstances, be so adjusted as not to deprive either party of the benefits he is entitled to in the event it turns out that the party in whose favour the order is made shall be in the wrong, by imposing of terms on one parly or the other as condition of cither granting or withholding the injunction. (iv) Lastly, the plaintiff must show a clear necessity for affording immediate protection of his alleged right or interest which would otherwise be seriously injured or impaired. It is no doubt true that under Order XXXIX Rule I CPC, it is the discretion of the Court to issue or refuse an injunction and the appellate Court would not normally interfere in the exercise of the discretion. The discretion should, however, like other cases of discretion vested in the Courts, have to be considered to be exercised in accordance with ihc reason and on sound judicial principles. The grant of injunction is a serious matter and Courts should always lake good care to grant an injunction in cases only where such an injunction is essential. In my opinion, therefore, the learned Civil Judge has failed to exercise jurisdiction on the question of well established principle of law. Thus, the appellate Court had the jurisdiction to interfere with the said order under its appellate jurisdiction. Now I proceed to examine the impugned judgment daled 29.8.1989, ihe relevant portion of which is contained on page 4 which reads lhus:~ "In absence ol any restriction in the sub-lease or the bye-laws of the society, regarding re-construction of the building, il was not proper for the learned trial court to impose such restriction particularly when no irreparable loss would be caused to the respondent's society by allowing the construction of the building. In case the society succeeds in its suit, ihe appellant shall be directed by way of mandatory injunction to accommodate only the Christians in the light of ihe alternate prayer made in the suit. The balance of inconvenience will also be on the side of the appellants as they shall be put to great inconvenience in the event of the grant of the injunction." Again at page 5 ol the impugned judgment, il is mentioned as under:-- "Learned counsel for llie appellants argued that the appellants had no intention to sell or transfer the newly constructed building or any portion thereof to any non-member of the society and in order to obviate any apprehension of the respondent No. 1 he filed his undertaking in wiling to the effect that pending disposal of the suit the appellants shall not sell or transler the new building or Hals whereol to non-members of the society or lo non-Christian. "Learned counsel for the respondent No. 1 argued that the undertaking given by the learned advocate for the appellants was not acceptable lo the society inasmuch as it would be .difficult for the poor Christians to purchase the flats in the newly constructed building, and therefore, according lo him il would be in the interest of Christian society at large that the plot was sold out to I lie respondent No. 1 at the reasonable price. I am alraicl. the contention ol the learned counsel is devoid of any force insomuch as the court cannol be a parly to compel the appellants to sell their property lo the respondent No. 1 al a cheap rate." In that view of the mailer the appellate Court allowed the appeal and passed ihe following order:- "Thc appellants shall be at liberty to raise construction of the building according lo the approved plan al iheir own risk and cost. However, as undertook by them, they shall not sell or transfer the newly constructed buildiim or any portion thereof lo any non-member of the society or lo a non-Christian. Now [ turn lo consider whether on the facts and circumstances of the case, the learned Additional District .Indue was juslilied in allowing the respondents No. ! lo 5 lo raise cons!ruction of the building according lo llie approved plan al their own risk and cost. I have already observed and quoted the relevant portion ol the impugned judgment. In llie present case I proceed on the assumption that the petitioner society has made out. what according lo its counsel, "a very strong/v//7jrinni fuck' case and lo ihe balance of convenience. Mere tiling ol an undertaking uould nol absolve the -Court Irom considering the two vital answer's to the traditional questions relating to the balance of convenience and the existence of a prinni facie ease. Tlie Court has, therefore, to consider what the plaintill/petitioner's prinui facie ease is and where the balance of convenience lies. The respondents 1 in 3 are sub-lessees in respect ol the plot in suit. This properly cannoi be made use ol by [he petitioner. In those circumstances, il the respondent:. 1 lo 5 are permitted to construct on the basis of their unconditional undertaking to construct the building at their own risk and cost without insisting upon any equity in their lavour in case the petitioner society succeeds in the suit, the petitioner society suffers no injury. In the above circumstances ol the case, the lower appellate Court would have been lolalh unjustified if it had granted an injunction against the respondents 1 lo 5 and prevented them Irom constructing: upon the land. It would have amounted lo an unjustifiable invasion of the respondents 1 to 3"s rights to use their property without an adverse findine as to then rights to properly. In the nature ol things, postponement ol llu izranl I ;'\.i:cl '.-1 injunction till the rights are lully established ma> work o^t in -.mu ...-.-• ^r.^u and irreparable injury to a suitor. But on the other hand, indiscriminate and .a-.v urant ol temporary injunctions, without the ascertainment ol tacis. mav injure the ritihl ol respondents 1 it) 3 by altering Ihcir cxislinn nsirit". 'Ai;h.»ut inai. 1 ik order ol lower appellate Court suffers Irom no infirmity. Thus there s> no merit m this revision petition and it is accordingly dismissed | but in ihe circifm.-umcc-, ol the case, there will be no orders as to costs. Be lore I par! with this case, i would like lo make il clear lhal whatever obsenaliens made In the appellate Court and by me while disposing of this petition, should not ailed in any way the disposal of ihe suil itself on merits. Whatever observations I have made, are only lor the purpose of examining whether tt \va> a lit case lor restraining ihe respondents No. I to 5 from raising any construction on the plot or not. l.MBCt Petition dismissed.

PLJ 1990 Karachi 543 (DB) PLJ 1990 Karachi 543 (DB) [Admiralty Jurisdiction] Present: SALEEM AKlHTARAR AND IMAM ALI G. KAZI, J.I KUWAIT FLOUR MILLS CO.-Appcllant versus M.V. KASHMIR and 2 others-Respondents Admiralty Appeal No. 1 of 1990, accepted on 12.7.1990 Civil Procedure Code, 1908 (V of 19.08)-- —O.I R.10—Necessary or proper parlies—Substitution or addition of—Whether respondent No. 3 was a necessary and proper parly—Question of—Court is empowered to add or substitute—parlies in hose absence no effective decree can be passed—Persons who have interest in subject mailer of suit can also be joined as parlies—In admiralty suil where action in rein has been instituted, vessel is rex against which decree can be passed—Any person having any interest in re.f can join proceedings—From documents, priina facie, respondent No. 3 does not seem to have any interest in res— Held: Respondent o. 3 having no interest in res, is neither a necessary nor a proper party and cannot be joined as a defendant-Appeal accepted. [P.548]A&B PLJ 1985 SC461/-tY. Mr. M.H. Ku:ini, Advocate for Appellant. Mr. Alison Zalieer Ri:ri, Advocate for Respondents. Dates of hearinu: 8 and 9.5. 1990. JUDGEMENT This appeal arises from the order of the learned Single Judge exercising admiralty jurisdiction whereby the application of respondent No. 3 to be joined as a defendant in the suit has been granted. This case seems to have a chequered history. The appellant filed an admiralty suit against m.v. 'KASHMIR' and Swat Shipping Corporation described as owner of the vessel, for damages due to breach of aureemenl lor carriatie of goods. Alonuwiih the suit an application for arrest of the vessel was also filed which was granted and writ ol arrest was served on 14.5.1988. Mr. Lakhani appeared on behalf of Swal Shipping Company and took lime to file counter affidavit. However, vessel m.v. KASHMIR violated order of arrest and was clandestinely removed Irom the jurisdiction ol the court on or about 26.5.1988. After some lime the appellant came to know that m.v. KASHMIR under the assumed name of m.v. ,\ARAN has entered the porl of Karachi. It applied for her arrest and on 23.7.8S she was again arrested. At this stage Afrah Shipping Co., respondent No. 3 filed application as inlervenor under Rule 743 of the Sindh Chief Court Rules (O.S.) for release of the vessel on the ground that it is ihe owner of the ship which was sold to il on 2(>.5.19,SS and therefore, the action //; rein does not lie. It was also pleaded that the vessel was not lawiully arrested as she was outside the territorial jurisdiction of the Court. The learned Single .Judge recorded evidence of the witnesses and by order dated 30.11.1988 reported in PLD 1988 Kar. 757 dismissed the application. The vessel which had entered the port with the name ol m.v. NARAN ol which respondent No. 3 claims to be the owner made unsuccessful attempt to escape from arrest and was removed from the jurisdiction of the court but by timely action of Maritime Security Agency she was brought back under escort to Karachi Port on or before 23.12.1988. The ship remained under arrest and on 27.5.1989 respondent No.3 filed application under Order I rule 10 C.P.C. for being joined as a party on the ground that il is the owner of the vessel having purchased il from Swat Shipping Co. on 26.5.88. This application has been allowed by the impugned order dated 21.11.1989. Mr. M.H. Kaxmi the learned counsel for the appellant has contended that only that person can be joined as defendant in a suil who has any interest in the subject matter or is a necessary or proper parly. Respondent No. 3 claims to be the owner and enlilled'to be joined as a parly. However, the learned counsel for the appellant has challenged this claim and contended that from the documents produced on record respondent No. 3 is not ihe owner and the documents produced by it are false and fictitious. According to ihe learned counsel for the appellant respondent No.3 has no interest in the vessel and therefore, can not be joined as a parly. Respondent No.3 has relied on photo copies of bill of sale and registration certificate issued by the Port and Customs Department, Emarates of Ajman L.A.E. According to respondent No. 3 m.v. KALAM was sold by Swat Shipping Co.. under a bill ol sale dated 2(O.1'ASS. The description of the vessel in the bill of sale shows that earlier name of (he vessel-was ANNA T TBR which was changed I m.v. K.-\SHM1R. Accordin.ii to respondent No.3 it was then changed to m.v. AL-iiL-l.W and was re-named as m.v. NARAN. The word KALAM seems to have been added in the bill of sale in a manner which makes this entry suspicious and unr,.Ii.i!>!c. The established marine practice is that in a bill of sale first the present n.in-. .'•!" uk •'hip is mentioned which is followed by her previous name supcrfixcd with word 'E\'. In the bill of sale produced by respondent No.3 the name of the vessel has been described as lollows:— "KASHMIR-EX ANNA T TBR KALAM". Bv i;ii> Jesenpiion it i- clear thai Al-i.SWA///?'s previous name was ANNA T TBR bul it ekx> noi indicate thai KASHMIR is the previous name of KALAM. If this would hj%c he 1 en ihe position the name of the vessel should have been described as !ollpcct of m.v. KASHMIR whose affidavit and supporting documents were filed before the L-arned Single Judge. They reveal that MI 7 . KASHMIR was first registered at Ajman on H. 12.19S7 and Swat Shipping Corporation of Panama are and were the owner. M.]'. KASHMIR did not change her name till 21.9.1988 when inquiries were made. From the^e documents it appears that m.v. KASHMIR has never changed her name as A/. I . KALAM but for the purposes of defeating the appellant's claim respondent No.3 produced fictitious bill of sale merely to set up a deience that the purchaser can not be held liable for the claim in the suit. The ownership of vessel is not to be treated like the ownership of an ordinary chatile or goods. Like persons and corporations the ship also acquires a "Nationality of the port of registry. Such registration is regulated by Municipal Law of the country, where it is registered. Some countries have strict rules of registration but in several countries registration rules seem to be very liberal where even a loieigner can get his ship registered. The ship register is kept and maintained at the port of registry which contains particulars of the ship viz, owner's name present and previous names, of the ship and tonnage. Any change, in the name of the vessel or its transfer is notified and registered in the Register. The extract from this register or certificate of registration serves the purpose of a document of litlc of a ship. When a ship registered at a port is sold and changes her nationals!v ihen alter entering such transfer the register is closed and the ship is required to b-e registered at the new port of registry. Therefore, the documents obtained from the port of registry in respect of a vessel serve a prima facie proof of her ownership and particulars which can be rebutted. In the present case from the document- il is clear that m.v. KASHMIR did not change her name to KALAM or N'ARAN and prima facie forged bill of sale has been produced. Respondent .V.i.3 does not deny that the vessel under arrest had called earlier and when urrusted was known as KASHMIR. Respondent No.3 has entered the vessel under a fictitious name with intention to defeat the process of law. The learned single Judge did not take into consideration this aspect of the case and decided the application on the plea that m.v. KASHMIR was transferred to respondcni No.3 and has been renamed as M.V. NARAN. It was on this assumption that the principles as enunciated by section 64 and Order XXI Rule 46 C.P.C. were applied. A transfer alter attachment is not wholly void but it can not defeat the claim to the extent of attachment. Such transfer would be void to the extent it comes in conflict with the attachment. The attached property to the extent of claim in suit can be auctioned irrespective of the subsequent sale. The appellant has filed an action //; rein under Section. 4(4) ol Admiralty Jurisdiction of High Courts Ordinance 1980 (Order XLII of 1980) against the vessel which was attached. This attachment has not been withdrawn. Removal of the attached/arrested vessel from the jurisdiction of the court does not discharge or defeat the order of arrest. Whenever such a delinquent ship arrives within the jurisdiction of the court, whether under a changed name or changed ownership the court would be competent to rearrest her. Furthermore, if the writ of arrest has been issued or served, a subsequent change in name or ownership will be subject to the claim as decreed by the Court, Mr. Kazmi has referred to THE MONICA S. (1967)2 Lloyd's Law Rep.l 13 where the plaintiff, a cargo owner filed an action in rein and a writ in rein was issued against the vessel. Before the service of the writ of arrest the vessel was transferred to T and her name was changed from MONICA SMITH lo MONICA S. The writ was amended to describe the ship as 'MONICA SMITH now known as MONICA S. and served on the ship. T entered conditional appearance and applied for setting aside the writ of arrest on the plea that by mere issuing writ no charge or lien was created on the ship as T was not the owner of the vessel on the date of service, the claim did not give rise to a maritime lien and it had no notice ol the claim. It was held that "change of ownership alter the issue of writ but helorc its service or arrest did not defeat statutory riizht ol action in rein." It was further held that as on the date of service T was the owner it has substantive interest in the case. Respondent No. 3 could claim interest in the action only if it would have succeeded lo establish substantive interest in the vessel. Under Order I rule 10 C.P.C. the court is empowered to add or substitute as parties in whose absence no effective decree can be passed and are necessary or proper parlies. Furthermore persons who have interest in the subject matter of the suit can also be joined as parties. In an admiralty suit where action //; rcm has been insliluled the vessel is the res against which decree can be passed. Any person having any interest in the res can join the proceeding. In an action in rein If any person claiming to be the owner of the vessel joins as a defendant, and the decree passed can not be satisfied from the rex then such owner would be ; personally liable to satisfy it. However, for the present controversy we have only to j see whether the respondent has any interest in the res. From the documents /wy/;i« \facie it does not seem to have any interest. Mr. Kazmi has referred to Pakistan Bunking Council v. All Mohtrum PLJ 1985 S.C. 461 in which while observing that under Order 1 rule 10 persons who are necessary or proper parlies should be joined il was held:— "No parly can be allowed lo argue that as the Courl has a wide discretion in the matter of the joinder of parlies, any persons who is neither a necessary nor a proper party may be joined at ihe convenience of the applicant. Il is in this context that the Courts have held that in exercising (heir powers under this rule. Courts ought to see lhal the suit and thai ihe (rial of ihe suit is not embarrassed by the simultaneous investigation of totally unconnected controversies." Applying the principles laid down by the Hon'ble Supreme Court, on the facts as discussed above, we are of ihe opinion that respondent No.3 having no interest in the res is neither a necessary nor a proper party and can not be joined as a defendant. We therefore, set aside ihe order of the learned Single Judge and allow the appeal with cost. (MBC) Appeal accepted.

PLJ 1990 Karachi 549 (DB) PLJ 1990 Karachi 549 (DB) Present: S. SAJ.IAD ALI SlIAII, CJ AND WA.IIIIUDDIN AHMAD, .1 Mrs. YASMEEN LARI-Pelitioner versus REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KARACHI- Rcspondcnt Const. Petitions No. D-355 and D-356 of 1990, dismissed on 19.7.1990 Constitution of Pakistan, 1973— — Art.199w read \vith Income Tax Ordinance, 1979, Sections 59 & 136-Sclf ai>e>smcni--Scruliny of-Sclection of return for scrutiny-Challenge to~ \helhcr proceedings initiated by I.T.O. suffered jurisdiclional errors and were mala fide and whether alternate remedy byway of reference under Section 136 ol Ordinance, is not adequate remedy— Questions ol— Mailer of selection of specific returns for detailed scrutiny does not lie within domain of I.T.O. and he is only to acl in compliance and in furtherance of relevant selection— Held: I.T.O. had acted within scope of his authority— Held further: High Court would be tulK competent to grant ancillary relief or set into niolion interim measures ol r_Jre>.> while exercising power by way ol reference under Section 136 of Ordinance- Petitions dismissed. [Pp.550.5.\l&553]A,B,C,&D JUDGEMENT \Vajihuddin Ahmad, J.--Petilioners in these two constitutional petitions are husbjnJ jnd wile. As individuals, the petitioners submitted llieir respective return^ of Income under Section 59 of the Income Tax Ordinance in the asse^smenl war 1987-88. Such returns were selected for detailed scrutiny through compuler ballot in terms of paragraph 5 ol Circular No. 9, issued by the Central B'lXardi of Revenue, pertaining to the Sell Assessment Scheme for the assessment vear lltoT-Nv Each of the petitioners was inlormed ol the above lact and statutory notices under Section 61 of the Income Tax Ordinance, l l ^79, were served for appearance on 21.1.1988. Either assessee objected to the selection ol the case for detailed

uiuin\ and claimed that the relevant matter be processed on self av^ssmcnl ba>is alone. The Income Tax Officer addressed, declined to accede to ihe ^cq!JL^t^ and proceeded to linah/e the assessment by making additions under '<.arious clauses of Section 13 of the income Tax Ordinance etc. Appeals preferred by ;he petitioners before ihe Commissioner of Income Tax where dismissed. Aucricved and dis-satisfied, ihe petitioners moved the Income Tax Appellate Tribunal, which Tribunal allowed each of the appeals, remanding the matters to ihe Income Tax Officer lor fresh assessments alter providing due opportunity for ihe petitioners to take part in the assessment proceedings. Petitioners assail such orders ol remand belore us. Questions of fact and law raised in these petitions are similar and, therefore, such are disposed of through a common consolidated order. The contentions raised before us may now be summarized. Mr. Shakil Zahcer Lari, who has appeared for the petitioners, has raised the following points for considcration:- 1. The proceedings initiated under ihe Self Assessment Scheme for detailed scrutiny of the returns submitted by the petitioners are mala fide, in violation of the principles of natural justice and statutory requirements and, thus, contrary to law and of no legal effect. 2. The appeals of the petitioners before the Commissioner of Income Tax (Appeals), Zone I. who had jurisdiction in the matter, were arbitrarily transferred to the Commissioner of Income Tax (Appeals), Zone III, who was responsible for the selection through computer ballot and having taken offence to the petitioners' agitating against the computer ballot was motivated by malice. 3. The Income Tax Appellate Tribunal erred in law in remanding the cases to the Income Tax Olliccr and deviating Irom its earlier pronouncements on the subject in not deleting the offending additions. It does not seem desirable to delve deep into the factual controversies, for the primary question before us is one of jurisdiction as regards the compet nce and maintainability of these petitions. Such question is simple enough and consists in the apparent availability of an alternative remedy to the petitioners under Section 136 of Income Tax Ordinance, 1979, by seeking or, on failure of grant, themselves making a reference to this Court against the grievance, if any, in relation to the orders of the Income Tax Appellate Tribunal. To this Dr. S.A. Wadood, Deputy Attorney General for Pakistan, subscribes but, understandably. Mr. Shakeel Zahcer Lari does not. Now, it is to be conceded that in cases of absence or excess of jurisdiction or abuse there-of or where an order, falling within the ambit of Article 199 of the Constitution, suffers from illegality on the face of the record, interference in this Court can be made. Like would be the result in matters where a statutory functionary acts in a mala fide, un-just, partial or oppressive manner. However, it remains to be seen whether the proceedings initiated by the Income Tax Officer calling upon the petitioners to sumbil to detailed scrutiny, following upon the outcome of a computer ballot, suffered from jurisdictional errors or were illegal or in bad faith and whether the alternative remedy, by way of reference to this Court under Section 136 of the Income Tax Ordinance, 1979, is not adequate. In the first instance, we have to examine whether the notices served on the petitioners under Section 61 of the Income Tax Ordinance, 1979, were or were not with jurisdiction. In order to approach that controversy, Section 59 of the Ordinance requires to.be construed. Such Section envisages the introduction of Self Assessment Schemes by the Central Board of Revenue for each given year. Invoking sub-section (1A) of Section 59, the Central Board of Revenue or an authority subordinate to it, if so authorised by the Board, may, in accordance with a scheme framed under Section 59(1), select out of returns, relcrrcd to in that sub-seclion. any cases or classes of cases or persons or classes of persons, howsoever determined, for assessment under Section 62, and the Income Tax Officer shall then proceed to mark the assessment under that Section or if the circumstances so warrant, under Section 63, accordingly. It is an admitted position that the returns of the petitioners, submitted under the Self Assessment Scheme, for the assessment year 1987-88, were selected on the basis of a computer ballot. This could only be done by or under the authority of the Central Board of Revenue. It is no-body's case that the computer balloting was conducted by the Income Tax Officer involved in these proceedings. In actuality that, perhaps, could not even be in terms of sub-seclion (1A) of Section 59. The Income Tax Officer can only proceed to make the assessment once the relevant returns are selected pursuant to the first part of that sub-section. In other words, the matter of selection of specific returns for detailed scrutiny does not lie within the domain ol the Income Tax Officer at all and such officer is only to act in compliance and in furtherance of the relevant selection. The grievance of the petitioners, if any, or such as it may have been, could only be redressed by another authority namely, the Centra! Board of Revenue or an authority subordinate to it, if duly authorised. The objections of the petitioners, therefore, before the Income Tax Officer regarding the selection for detailed scrutiny were mis-directed and mis-placed. In so far as lhat Officer is concerned he. ex-fade, had acted within the scope of his authority, \lijt is more, no relief has been claimed either against the Board or its i nominee acting under Section 59 (1A) ibid. The next question, without unduly dilating upon details, concerns the petitioners" initial appeals, lodged before the Commissioner of Income Tax (Appeals), Zone I. their avowed arbitrary transfer to the Commissioner of Income Tax {Appeals}. Zone III, and that officer's, allegedly, coining to be infested with mdia fides because o! the petitioners' making grievance against selection by computer ballot, since such officer himself was, supposedly, responsible for that selection. Nothing more need be said on the subject than that the orders of the Commissioner of Income Tax (Appeals), Zone-Ill have been set-aside by the Tribunal and the matters stand remanded to the Income Tax Officer concerned, thereby, for the present, foreclosing all objections as pertinent to the exercise of jurisdiction by that ollicer subject, however, to examination, if due, on a reference under Section 136 of the Ordinance. Lastly, coming to the orders of the Income Tax Appellate Tribunal, the contention, based on a decision of that Tribunal itself, as reported in 1989 P.T.D. {Tribunal) 150. is that if the additions made by the Income Tax Officer were found by the Income Tax Appellate Tribunal to be in contravention of the provisions of Section 13 of the Income Tax Ordinance, 1979, the Tribunal should have deleted such additions altogether and could not have opted to remand the cases to the Income Tax Officer on the, purported, ground that it was the altitude and the conduct of the petitioners, which had precluded the Income Tax Officer from following due procedure in accordance with Section 13 ibid. We do not wish to say anything, at this stage, about the correctness or otherwise of the Tribunal's opinion, as reflected in 1989 P.T.D. (Tribunal) 150 or even the competence of the order of remand here involved and would limit ourselves by observing that such questions, being questions of law, can patently be agitated in the other jurisdiction of this Court under Section 136 of the Income Tax Ordinance by making due reference. Learned counsel has, however, drawn our attention to a Division Bench decision of the His>,h Court at Lahore, as reported in the case of SHAIKH AKHTAR ALI Vs. ^FEDERATION OF PAKISTAN AND 4 OTHERS (1980) 42 TAX 47. This case is distinguishable for more than one reason. Firstly, manifest mala fides were involved in the initial exercise of jurisdiction by the Income Tax Officer in that case, there being violent disputes and even criminal proceedings between the asscssce and such officer. Secondly, contention in thai case was that scope of a reference was very much limited as "in a reference application under Section 66(1) only questions which arise out of the order of the Appellate Tribunal may be raised—." Lastly, the reference application filed by the petitioner in the cited case was withdrawn by him in view of the pendency of the constitution petition. Except on the question of mala fides and jurisdiction the learned judges in the Lahore High Court rendered no findings and on that premises alone found the remedy by way of reference to the (?) inadequate. In a case patently involving malice at the core, where even the Income Tax Appellate Tribunal chose to give no findings on the question, assumption of jurisdiction by the High Court at Lahore could have been warranted. However, argument of counsel in that case that "only questions which arise out of the order of the Appellate Tribunal may be raised" in an application under Section 66(1) of the Income Tax Act, l')22. as it then stood, was ill lounded. In such context the relevancy is of tads and circumstances ol the "case", which implies the "case" as a whole- from its inception uplo the level of the Tribunal, the only condition being that a particular question was duly raised and urged. II the Tribunal fails to consider it that omission by itself would give rise to a question of law, fittingly, a subject lor relerence. Much as this court, in its constitutional jurisdiction, does not enquire into disputed facts, it is not for the Court, in exercise of jurisdiction under Section 136 of the Income Tax Ordinance, to go behind the Tribunal's findings on fads, the latter being the final court of fact. However, relevant to Section 136, where findings of facts are based on conjectures or surmises or on material which has no evidential value, or partly so. in such manner that it is not possible to conclude which part resulted in the relevant finding, such finding has no sanction in law and a question of law arises. This is so as the question whether there is any evidence to support a finding of fact is a question of law and can be raised on a reference. Even where, on proved or admitted facts, further deductions or conclusions of pure fact are drawn, it is always a question of law whether such proved or admitted facts provide due evidence for further conclusions of fact. Similarly, the purport or construction of a document can only be a question of law. The Tribunal's misdirecting itself in arriving at a finding such as by overlooking or ignoring a crucial fact or document or affirming an assessment order in violation of the fundamental principles of justice would also vitiate its findings and give rise to, questions of law. Accordingly, while the jurisdiction emanating from Section 136 of the Income Tax Ordinance is limited to consideration of questions of law alone the scope and ambit of such questions is wide enough to include a variety of matters, substantially, buttressing the efficacy and adequacy of that remedy. It will also not be out ol place here to point out that a number of cases, having bearing on the interpretation of Section 66 of the Income Tax Act, 1922, were either decided prior to the Pakistan amendments, as successively made through the Finance Ordinance, 1971, and the Finance Act of 1974 etc. or in which the amended version did not come up for consideration. These amendments were a radical departure from the concept of a reference to a High Court, as the same stood in the Act of 1922 prior to those promulgations. Such amended version of Section 66 of the Income Tax Act, 1922, has been, more or less, re-enacted in Section 136 of the Income Tax Ordinance, 1979, which is applicable to the instant case. No more, therefore, the supposedly cumbersome procedure in the original statutory provision of Section 66 of the Income Tax Act, 1922. can be claimed to impinge upon the adequacy of remedy by way of a reference under Section 136 of the Income Tax Ordinance, 1979. We are, therefore, of the view that the remedy under Section 136 of the Income Tax Ordinance, 1979, as it now stands, no longer being riddled with any procedural bottlenecks, is a substantial independent remedy for the tax payer as well as the Revenue. Such being directed to the High Court itself, if a case has travelled as far as the Appellate Tribunal and a decision is rendered therein, it woi>!d be a rare case, wanting in or exceeding or abusing jurisdiction or beset with illegalities or inescapably tainted with mala fides, which could warrant interference in constitutional jurisdiction rather than upon a reference. As implicit in Section 136(7), may it- be stated that when exercising powers, in the way of reference, a High Court would be fully competent to grant ancillary relief(s) or set into motion interim measures of redress, like any other Court exercising jurisdiction at the apex of a judicial hierarchy. In point also are the observations in a Full Bench decision of this Court in ABDUL BARI Vs GOVERNMENT OF SIND (P.L.D. 1981 Kar. 290) which, in our view equally apply to the exercise of powers under Section 136 of the Income Tax Ordinance, 1979. This is what, on the authority of SIND EMPLOYEES SOCIAL SECURITY Vs. ADAMJEE COTTON MILLS LTD. (P.L.D 1975 S.C. 32), was said in that casc:- "The learned Deputy Attorney General njade a categorical concession that the Services Tribunal is fully empowered to pass orders for an interim relief as such orders are ancillary to the power of final adjudication conferred on (lie Tribunal as held in the case SIND EMPLOYEES' SOCIAL SECURITY Vs. ADAMJEE COTTON MILLS LTD. (1)" For the reasons recorded herein and on coming to the conclusion that an equally efficacious and adequate remedy was available to the petitioners, we had, through a court order, dismissed these petitions. (MBC) Petitions dismissed.

PLJ 1990 Karachi 553 (DB) PLJ 1990 Karachi 553 (DB) Present: S. sajjad Au shah CJ and wajihuddin ahmad, J ABDUL MAROOF KHAN AFRIDI-Petitioner versus KARACHI DEVELOPMENT AUTHORITY-Respondent Const. Petition No. D-15 of 1990, dismissed on 19.7.1990 Constitution of Pakistan, 1973-- -—Art. 199 read with Civil Procedure Code, 1908, Order II, Rr. 1, 2 & 3 and Order XXXIX Rr. 1 & 2-Temporary injunction-Grant of-Demolition of structure by K.D.A --Challenge to—Whether petition is maintainable-­ Question of—If any action having a clear nexus with civil suit already instituted, was initiated or continued, such grievance should have been raised in suit itself—K.DA. could also have been impleaded in suit—Provisions of Order II of C.P.C. do not countenance any unnecessary duplication of proceedings—It was obligatory for petitioner to state all facts and implead all necessary or proper parties—Relief under Article 199 (l)(a),(b) and (c) is a discretionary jurisdiction which is always to be exercised in aid of justice and never to perpetuate injustice-Held: Petition can be dismissed on short ground for not duly detailing material facts and on account of studious evasion on part of petitioner to implead necessary or proper parties-Held further: Not only availability of an alternative adequate remedy but actual pendency of suit bars this petition-Petition dismissed. [Pp.556&557]A,B,C,D,&E M/s. Shehenshah Hussain, Anwar Hassan Pasha and S.H. Qazilbash, Advocates (for whom not mentioned in judgment). Date of-hearing: 19.7.1990. order Wajihuddin Ahmad, J.~The case of petitioner in this constitutional petition is that since 1947 he is in possession of a piece of land bearing No.A-26/195, admeasuring 135' x 65', situated in Takri Colony, Bath Island, Karachi. Such piece of land is stated to be located opposite plots Nos. B/4 and B/8, Bath Island, Karachi, in Katchi Abadi, adjacent to the P.W.R. boundary. The petitioner, allegedly, upon filling up of the land, constructed a pacca house thereon and has been putting up in such house with his two sons and a brother-in-law. Takri Colony aforesaid is claimed to be a Katchi Abadi. However, a notice dated 9.4.1981, under M.L.O. 130 of 1980 (Removal of Encroachments Order, 1980), was served upon the petitioner at the instance of Gulshan-e-Faisal Cooperative Housing Society, which society is said to be unlawfully claiming the disputed area. The Petitioner was thereupon constrained to file Suit No.1608 of 1983 in the Court of the XVth Senior Civil Judge at Karachi praying for necessary Declaration and Permanent Injunction. A copy of the plaint in such suit has been appended to the petition wherein Gulshan-e-Faisal Cooperative Society Ltd, the Commissioner of Karachi and Director Katchi Abadis are cited as co-defendants. Speaking briefly, the plaintiff-petitioner in the referred suit urged, in addition to what he has stated in this petition, that having raised constructions on the disputed plot and putting up therein he was issued National Identity Card bearing No.510- 23-210570 in the year 1977 and, also, was accorded electricity and telephone connections in the said premises in 1980' and 1983, respectively. However, petitioner's possession was not regularized on the ground that the land in question stood reserved by the Government. At any event, Takri Colony, according to the plaintiff-petitioner, stood declared as Katchi Abadi under the provisions of M.L.O. 110 (Regularisation and Development of Kalchi Abadis Order). Still notice dated 9.4.1981 was received by the petitioner on 18.4.1983 purportedly under M.L.O. 130.' The plaintiff-petitioner in such suit pleaded that he could be removed, if at all, under M.L.O. 110 and not under M.L.O. 130, as was sought to be done. Reverting to the present petition the petitioner maintains that, on an application under Order 39 Rules 1&2, C.P.C, the defendants in the said suit were restrained from disturbing the petitioner's possession, as projected in such suit. However, on 7.1.1990 at 2.30 p.m. some persons, claiming to be K.DA. officials and accompanied by policemen, who were equipped with a bulldozer and other implements descended on the disputed plot and demolished and damaged parts of the structure standing thereon. On intercession by the neighbours such people had to withdraw, threatening to come back and carrying out further demolition. These persons included Ameerzada Kohati, Additional Director, Anti Encroachment Cell, K.DA. and S.H.O. Gul Rehman of K.D.A. police alongwith a truck full of policemen plus a lady searcher. Mobile police of Civil Lines police station was with them. Such contingent was also accompanied by Zia Mohammad Khatri, Executive Engineer in the Water and Sewerage Board, who is stated to be interested in the said plot. Aijazul Yakeen, General Secretary of Gulshan-e-Faisal Cooperative Society, and Aijaz Ali Khan, S.D.M. (South) Karachi, the last named claimed to be over-seeing and supervising the operation. Relief against such action is sought on the ground that the land does not belong to respondent K.DA, which is acting in a mala fide manner at the behest of interested persons, without so much as even issuing a notice. To start with, pre-admission notice was issued to the respondent. Subsequently, an order of status quo was passed in the petition. In response, respondent K.DA has filed a counter affidavit, through Ameerzada Kohati, Additional Director (Anti Encroachment Cell). In such counter affidavit, it is urged that the land in dispute has not been declared as Katchi Abadi nor has any notification to that effect been issued. Such land is stated to be belonging to Gulshan-e-Faisal Cooperative Housing Society Limited. Notice, as required under M.L.O. 130. is said to have been served on 9.4.1981 and removal of the alleged encroachment was made thereafter, under the supervision of the S.D.M. Civil Lines. As regards Suit No.1608/83, it is claimed that in relation to the interlocutory proceedings therein Civil Misc. Appeal No.32/85 was filed by the Gulshan-e-Faisal Cooperative Housing Society and, finally, the matter came upto this Court in Civil Revision No.89 of 1989, which was dismissed on 24.8.1989. Gukhan-e-Faisal Cooperative Housing Society is said to be a necessary party to these proceedings. In the meantime, Gulshan-e-Faisal Cooperative Housing Society also applied for being joined as a party to this constitutional petition. In support, inter alia, it is urged that the petitioner was an encroacher of plots No.98- B and 99-B of the intervenor society in respect whereof he was litigating since 1983 and has suppressed several orders in that behalf including those of this Court itself. From the copies of such orders, which have been brought on record by the intervenor society, it would appear that the orders of interim injunction granted in favour of the petitioner in Suit No.1608/83 on 31.5.84 were questioned in an application under Order 39 Rule 4 C.P.C. but that application having been disallowed, Gulshan-e-Faisal Co-operative Housing Society preferred Civil Miscellaneous Appeal No.32 of 1985, which was allowed on 31.7.1986 and the case was remanded for re-consideration, upon site inspection, if that was found to be desirable or necessary. Such inspection was made on 9.8.1988. On 12.1.1989, the Ilnd Senior Civil Judge, Karachi, disposed of the application under Order 39 Rule 4 C.P.C. in Suit No.1608/83, observing that the stay granted to the petitionerplaintiff shall not operate in respect of plots Nos.81-B to 99-B of the Gulshan-e- Faisal Cooperative Housing Society. Against such orders another Civil Misc. Appeal namely, C.M.A. 4/89 seems to have been preferred, this time by the petitioner herein, but the same was dismissed on 21.3.1989. Assailing the appellate order, Revisional Jurisdiction of this Court was invoked through Civil Revision Application No.89/89 but the same also was dismissed on 24.8.1989. In reply to the application U/O.l Rule 10, C.P.C. filed by the Gulshan-e- Faisal Cooperative Society Ltd., the petitioner has submitted a counter affidavit wherein, without denying the factum of the referred proceedings, he maintains that the question in this petition is not whether the disputed plot is or is not situated in a Katchi Abadi or whether it belongs or does not belong to the intervenor society but the sole question of consideration is whether Despondent K.D.A. is competent to demolish the disputed construction on the plot in question and whether it is acting lawfully in doing so. Drawing upon the above factual recitals, it seems clear to us that the action of respondent-K.D.A., which has been questioned in this constitutional petition, is directly relatable to the notice dated 9.4.1981 under M.L.O. 130, alleged to have been served on the petitioner on 18.4.1983. Manifestly, proceedings assailing that notice were initiated in Suit No.1608/83 and are still pending. If, therefore, any action, whether lawful or otherwise, having a clear nexus with such suit, was initiated or continued, by or at the behest of parties to that suit, such grievance, if any, should have been raised in that suit itself. If necessary or proper, respondent-K.D.A. could also have been impleadcd in the suit. One of the salutory provisions enshrined in Order II Rule 1 C.P.C. is that a suit shall be so framed as to afford ground for final decision upon all the subjects in dispute and prevent further litigation concerning them. Rule 2 of the same Order explains that successive claims arising under the same obligation shall be deemed to constitute but one cause of action. With a view to curtail the controversies a plaintiff, under Order II Rule 3 C.P.C. may, in the same suit, unite several causes of action against the same defendant or defendants. Law, thus, does not countenance any unnecessary duplication of proceedings. Even when a fresh cause accrues, pcndente lite, which could be part of the same transaction or scries of transactions and relief may, conveniently, be sought in the pending litigation and parties can be confined to such proceedings, without doing any violence to procedural requirements, such eminently due process ought to be followed. In situations where a fresh action be called for or is found to be in order, a suit in the same or similar forum, where the earlier LIS is pending would be a more logical exercise of choice, if any. Like, principles, mutatis mutandis apply to constitution petitions. Adherence to such rule ensures confinement of the LIS in the same proceedings or, where necessary, at least in the same or similar forum, thereby precluding inconsistency or even possible conflict in decisions. Clearly, none of this was observed or followed and this petition was brought, without so much as implcading even the Gulshan-e-Faisal Cooperative Housing Society Ltd. as a party herein. Such conduct has resulted in the intervenor society coming forward, applying lor joinder in these proceedings "and placing on record detailed facts which, obviously, were necessary for recital on the part of the petitioner himself, in order to place the controversy, in its totality, before this Court. We do not approve this conduct. To say the least, it was obligatory for the petitioner to state all facts, albeit briefly, and implead all necessary or proper parties. In fact, from what has been stated in the petition itself, it is obvious that not merely the intervenor society but even a purported allottee of such society, claiming interest in the disputed land, was also a necessary party to this petition, but was likewise, unaccountably, left out. This, substantially, is a discretionary jurisdiction. Sub clauses (a), (b) and (c)| of clause (1) of Article 199, which visualise the various reliefs grantable in constitutional jurisdiction, arc predicated by the word "may 1 ' in the opening part of such Article. The intention is to allow a degree of flexibility in the exercise of constitutional jurisdiction. The discretionary element in the exercise of such jurisdiction is. however, not the equivalent of arbitrariness or fancifulness. It is a judicial discretion, controlled by judicial norms, conditioned by centuries of conventions and precedents and is always to be exercised in aid of justice and never to perpetuate injustice. Those who approach this jurisdiction are expected to do so not other-wise/ than \vith clean hands. All relevant facts are required to be disclosed in making of the invocation. Nothing material is to be suppressed. Every person, who is a necessary party, must be impleaded. This constitutional petition can, therefore, be dismissed on the short ground for not duly detailing material facts and on account of an apparently studious evasion on the part of the petitioner to implead necessary or proper parties. Relief cannot also be granted in the petition because another equally efficacious remedy namely, a properly instituted suit is already pending in which suit any act of commission or omission on the part of any of the defendants therein or of any other person or persons acting on behalf of the defendants or in furtherance of the defendants objectives can easily be agitated. As it is, the case of the petitioner is that an order of injunction is still operative in such suit in respect of that portion of the plot, which does not belong to the intervenor society. If a subsisting interim injunction is transgressed, as would appear to be implicitly urged here, recourse to contempt proceedings, if relevant, can be made. There is I also nothing to preclude the plaintiff-petitioner from seeking amplification of the interim orders in the pending suit or, so to say, what may tantamount to altogether fresh orders, provided such are duly and lawfully called for. If need be, even due amendments in the suit can be sought. Not only availability of an alternative adequate remedy but, in actual fact, pendency of one in a Court of competent jurisdiction bars this constitutional petition, which must be dismissed on that score, as well. Finally, we cannot fail to observe that, as claimed by the rcspondent-K.D.A., demolition work of the disputed portion has already been completed. The petitioner has tailed to repudiate such assertion. If this be so, this petition is, additionally, liable to be dismissed, being infructuous. In the remote alternative of such not being the case the petitioner, as observed above, would be free to seek relief in the above referred suit still acknowledged to be pending. With these observations, we dismiss this constitutional petition and with it C.M.As .1059/1990 and 38/1990, both having served their respective purposes. Status Quo earlier granted would stand vacated. (MBC) Petition dismissed.

PLJ 1990 Karachi 558 (DB) PLJ 1990 Karachi 558 (DB) Present: SALEEM AKHTAR AND WA.JIHUDDIN AHMAD, .J.J M/s. REPUBLIC MOTORS (PRIVATE) LTD-Pelitioner versus INCOME TAX. OFFICER and anolher-Respondents Const. Petition No. 710 of 1987. accepted on 30.4.1990 Income Tax Ordinance, 1979 (XXXI of 1979)-- —-S. 65 read with Constitution of Pakistan, 1973, Art. 199-Corporate status of petitioner was not properly determined—Whether provisions of Section 65 could be invoked and whether writ jurisdiction could be invoked without exhausting alternate remedy—Questions of—It is well settled that receiving or obtaining certain interpretation of a particular provision of law from any department would not constitute information as required by Section 65— Contention that petitioner having not availed alternate remedy, is not entitled to invoke constitutional jurisdiction—Preconditions for invoking Section 65 were absent and action taken by respondent No.l and confirmed by respondent No.2 lacked in jurisdiction—Held: Where action ol an authority is challenged on ground of lack of jurisdiction, aggrieved parly is entitled to invoke constitutional jurisdiction without availing or exhausting alternate remedies-Petition accepted. (Pp. 563,564&565|A,B,C&D (1971) 80 (TR 188, PUD 1990 SC 349. PLD 1971 SC 205, 1972 SCMR 257, 1989 PTD 1141, 40 1TR 191, 40 ITR 170 and 101 ITR 637 rcl. Mr. Jawaid Ahmad Siddiqui, Advocate for Petitioner. Mr. Shaikh Haider, Advocate for Respondents. Dates of hearing: 12.2 1990 and 19.3.1990. judgment Saleem Akhtar, J.--The petitioner was originally incorporated under the name and style of Pak Autos Ltd. Thereafter, it came to be known as Haii ?>n Industries Ltd.. a private limited company in respect of which a certificate was issued by the Registrar Joint Stock Companies, Karachi. On 29.11.1973 it was nationalised under the Economic Reform Order 1972 and its name was changed to Republic Motors Ltd. By an order passed in exercise of the powers conferred by Article 7B (l)(a)(/) of the Economic Reform Order 1972 the Federal Government acquired the whole of the shares from all the share holders of the Republic Motors. By an order dated 12.7.1974 the management of the Republic Motors Limited and the shares or proprietor}' interest acquired by the Federal Government were transferred to PACO. According to the petitioner the PACO is wholly and solely owned by the Federal Government for all practical purposes and thus the petitioner is a corporation owned by the Government. The Income Tax assessments of the petitioner from the date of nationalisation uplo the year 1985- Sd \,ere framed treating it a company owned by the Government. The rate of Income Tax and Super Tax charged from "public company" as provided by Income Tax Act 1922 and Income Tax Order (?) 1979 were applied. After the promulgation of the Companies Ordinance 1984 it became obligatory on the petitioner to print the word "private' with its name. On 9lh March, 1987 respondent No.l issued a letter in which it was staled that as majority shares of the petitioner are held by PACO which is not the Federal Government, the petitioner company has wrongly been taxed as public limited company and therefore he intended to rectify the assessment for the assessment years 1979-80 to 1985-86 under Section 156 of the Income Tax Ordinance, 1979. It may be mentioned that if the petitioner were lo be treated as private limited company it had to pay 5 ( 'f. more tax than was assessed. The petitioner replied the notice repudiating the claim and it was further slated thai the assessment for the years 1978-79, 1979-80 and 1981-82 could not be brought within the pale of Section 156 of the Income Tax Ordinance and such action was barred by time. In regard to 19S2-83 to S l 'S:"-M> it \vas stated that due to certain addition appeals were filed before the Commissioner of Income Tax (Appeals) who by decision dated l^.lU.1'^5 has set aside the assessments therefore, these assessments require «v,'H';;i proceeding and were beyond the scope of Seel ion 156. Respondent No. 1 withdrew the action initiated under Section 156 and expressed his intention to reopen the case under Section 65 of the Income Tax Ordinance and finalise the assessment by enhancing tax rate to 55%. Respondent No. 1 by letter dated l 1 '.^.^" stated that he intended to reopen (he assessment under Section 65 of the Income Tax Ordinance and the petitioner was required to file objections or explanations alongwith necessary evidence within a week of the receipt of the letter. The petitioner wrote a detailed letter to the Chairma'n, Central Board of Revenue and cop\ was endorsed to respondent No.l. This letter was forwarded by CBR I.- the Regional Commissioner. Thereafter the petitioner sent several letters lo the Regional Commissioner and the CBR but no reply seems to have been rctei'ied. On 21.5.S7 the petitioner, received a demand notice from respondent No.l and order^, passed under Section 65 of the Income Tax Ordinance in respect of Assessment years 1979-80, 1980-81, 1981-82, 1982-83 and 1985-86. The petitioner hied appeals against these order on 18.6.89. During the pendency of the appeals the petitioner liled this constitution petition on 9.7,1987. The appeals filed b;- the petitioner were dismissed and copy (?) of orders were received on 14.~.l k . J ^. The matter proceeded in this court when the pelilioner filed an application for amendment of the petition impleading the Commissioner of InconK Tax (Appeals) as respondent No.2 and also challenging the order passed in appeal. Amendment was, however, allowed subject to all just exceptions. Mr. Ja\ed Siddiqui the learned counsel for the pelilioner has conlended thai respondent No.l had no jurisdiction to open the case under Section 65 ol the Income Tax Ordinance. According to the learned counsel the pelilioner was treated from 1974 onwards a.s a public limited company and there being no change in the structure or the constitution oi the company, by mere change ol opinion Section 65 could not be invoked. It is not disputed that from 1974 onwards the petitioner was trea ed a public limited company and on that basis assessments were made. It was only on 9.3.1987 when for the first time respondent No, 1 issued notice under Section 156 lor rectifying the orders for assessment years 1979-80 to 1982-83 and 1985-86 on the ground that the petitioner is a private limited company. However on objection being raised that such action is barred by time respondent No.l changed his course of action and issued notice dated 19.3.87 for reopening the case under Section 65. It reads as follows: "SUBJECT: PROCEEDINGS FOR THE ASSESSMENT YEARS 1979-80, 1980-81, 1981-82, 1982-83, & 1.9X5-86. Please refer to this officer letter dated 4.3.19S7 wherein it was staled that during the assessment years noted above, the tax as applicable to the public limited Companies have been applied in your case. Whereas 509r shares in your case are held by M/s. Pakistan Automobile Corporation Limited which is not Federal Government. In the light of your counsel's letter No. RPM/I.T/522/493 dated 15.3.1987 certain objections regarding dates of assessment were raised. It is therefore, pointed out that assessment and revised assessments have been completed in this case for the assessment years noted above as under: ]979-80 Original order U/S.62 dated 18.10.1980. Rectified order U/S.156 dated 30.c applied for determining the rate ol tax it amounts to information oii the basis ol which action under Section 65 can be initiated. In both the cases the reply should be in the negative. It is merely a change of opinion and not an information available Irom the record or Irom outside agency which can be made basis ot such action. In this regard reference can be made to Eduljce Dinshaw Lid. v. Income Tax Officer PLD 1990 S.C. 399 where alter reviewing and referring to various judgments ol our Supreme Court and High Courts and Indian Courts it was held as follows: 'Once all the facts have been fully disclosed by the assessee and considered by the Income Tax Authorities and the assessments have been consciously completed, and no new fact has been discovered there can be no scope for interference with these concluded transactions under the provisions of Section 65 of the Ordinance on the ground that the income chargeable to tax under the Ordinance- has escaped assessment or has been under assessed, etc., in the meaning of clause (a) or (b) of subsection (1) of Section 65 of the Ordinance." We may also refer to the following judgments: (1) C.P.D-447/1988. Bhambhore Ceramic Industries Ltd. v. Income Tax Officer. (2) C.P.No.D-372/1987 N.V, Philips •Ciloeilam Pcufabricken v. Income Tax Officer and another. (31 Jason International (Pvl) Limited v. Income Tax Officer & others, 1989 PTD 1141. Respondent No. 1 has invoked Section 65 only because the corporate status of the petitioner w t ts not properly determined therefore it is a question of interpretation ui law which is bcinsj pressed now lor purposes ol invoking Section 65. The queMJon arises whether such discovery can be called an information sufficient to exercise jurisdiction under Section 65. In Kasturbhai Lalbhai v. R.K. Malhotra. Income Tax Officer Group Circle II (1), Ahmadabad (1971) 80 ITR 188 the question arose whether a certain information received by the Income Tax Officer expressing the opinion of the Audit Department as to the correct interpretation ot Section 23(2) can be said to constitute inlormation on which the Income Tax Officer could act for the purpose of initiating proceedings for reassessment against the petitioner under Section 147(h) of the Indian Income Tax Act 1961 which is equivalent to Section 65 of the Income Ordinance. The following observation was made: "There may be a case where the Income-tax Officer realises from some expression of opinion by an income tax lawyer at a seminar or by reason of an argument advanced by an income tax lawyer in the case of another assessee that the view taken by him in regard to the interpretation of a Section was wrong. Could ii be said that he has received 'information' so as to entitle him to take action under Section 147(t>)? The view canvassed by the learned Advocate-General on behalf of the revenue, if taken to its logical end, would mean that, even in cases such as ihcse, the Income-lax Officer would be entitled to re-open the assessment. The safeguard which is introduced by the legislature by insisting on the requirement that the Income-tax Officer must have reason to believe in consequence of some information received after the assessment would be rendered illusory. The dividing line between mere change of opinion on the part of the Income-tax Officer and 'inlormation' received from an external source would become blurred. If the opinion of any person as to the state of the law were to be regarded as 'information' irrespective of the fact whether such person has- competence or authority to pronounce upon the law, it would be easy to disguise mere change of opinion on the part of the Income-tax Officer under the cover of opinion of some other person. Moreover, if opinion of any other person can be regarded as sufficient to warrant initiation of proceedings for reopening an assessment, it is difficult to imagine why change of opinion on the part of the Income-tax Officer himself should not be so regarded by the legislature. 'Information' connotes, as pointed out by the Supreme Court, "information or knowledge derived from an external source' and obviously such instruction or knowledge must be from a person, body or authority competent and authorized to give it. It must have an element of authority behind it." It is therefore well settled that receiving or obtaining certain interpretations of a particular provision of law from any department, be it, Ministry of Law or CBR or any legal Advisor or from his own knowledge and reading of the law books would not constitute information as required by Section 65. Bhagwati C.J. (as he then was) has pointed out to the dangerous results which may follow from a liberal interpretation of the word 'information' as sought by the Department as it will give unrestricted discretion in the hands of the Assessing Officers who may on their own interpretation of law set at naught the settled and final assessments. Mr. Shaikh Haider's contention that as the petitioner has not availed the alternate remedy it is not entitled to invoke the constitutional jurisdiction does not seenl to be well founded. The petitioner brought this action after the income Tax Officer had passed the assessment order under Section 65. The petitioner filed an appeal but during the pendency of this petition, the appeal was dismissed which order has also been impugned by amending the petition. Both the orders are before us and we find that the original as well as the appellate orders have not taken into consideration the provisions of Section 65. The preconditions for invoking Section 65 were absent and the action taken by respondent No.l and confirmed by respondent No.2 lacked in jurisdiction. In view of the rule laid down in Edulji Dinshaw's case PLD 1990 S.C. 349 and Usmani Glass Sheet Factory v. Sales Tax Officer, PLD 1971 S.C. 205, we are of the view that where the action of any authority is challenged on the ground of lack of jurisdiction, the aggrieved party is entitled to invoke constitutional jurisdiction without availing or exhausting the alternate remedies. In the case of Premier Cloth Mills Ltd. v. Sales Tax Officer, 1972 S.C.M.R. 257 the order of the High Court dismissing the writ petition on the ground that appeal was pending before the Special Tribunal was set aside with direction to decide the case on merits. In the present case also the petitioner has challenged the jurisdiction of the respondents to invoke Section 65. In such circumstances particularly in fiscal matters the High Courts inspite of availability of alternate remedy or the petitioner having resorted to it which is still pending can grant relief provided the action complained of is without jurisdiction. Similar view has been expressed in C.P.D-447/1988, Bhuinbhore Ceramic Industries Lid. v. Income Tax Officer, C.P.No.D-372/1987 N.V. Philips Gloeilam Peufabricken v. Income Tax Officer & anolher and Jason International (Pvt) Ltd. v. Income Tax Officer & others, 1989 PTD 1141. As notice under Section 65 was without jurisdiction all subsequent orders passed by the same authority or other authorities the whole series of such orders will be void. If the notice and assessment order based on it is void how can an appellate order which confirms such order can (?) become valid. Reference can also be made to Calcutta Discount Co. Ltd v. Income Tax Officer 40 ITR 191 (208) S.C., Seetliai Aclii v. Income Tax Officer 40 ITR 170 and Modi Spinning and Weaving Mills v. Income Tax Officer 101 ITR 637 (646), where assessment made during the pendency of the writ petition was also quashed. Mr. Shaikh Haider has referred to AIR 1948 P.C. 102 and (1%3) 50 ITR 87 in which it was observed that where the appellate order is passed the original order is merged in it and it is the appellate order which is final and operative. There can be no cavil with this proposition but the fact remains lhal where the original and appellate orders suffer from want of jurisdiction they can be challenged under the constitutional jurisdiction of the High Court. In this case respondent No.l having no jurisdiction under Section 65 made reassessment and respondent No.2 without correctly adverting to it or applying her mind confirmed the illegal order. The inherent illegality has thus travelled upto the appellate order and its confirmation by respondent No.2 will not make it legal. The learned counsel contended lhal amendment in petition was made after 2 years of the passing of the order by respondent No.2 and such belated amendment should not be allowed and the petitioner should be deemed to have waived his right. We do not agree with this contention. The petitioner has been agitating against the impugned action from the very beginning. It has never submitted to the order passedIby the respondents and as explained by Mr. Javaid Siddiqui that he has always been under the impression lhal once the notice and the assessment order passed under Section 65 are set aside it will automatically result in vitiating the appellate order. The impression was not correct but the mistake wusbonafide. In our view as ihe petition can be disposed of on question of lack of jurisdiction we do nol propose to deal wilh the question whether the petitioner is a public limited company. We leave this question open which may be decided by the Income Tax officer while framing assessments in respect of the years which are not subject matter of this petition. In these circumstances and in view of the above discussion we declare that the action taken and the assessments made by the respondents are without lawful authority and of no legal effect. (MBC) Petition accepted.

PLJ 1990 Karachi 565 (DB) PLJ 1990 Karachi 565 (DB) Present: SAEEDUZZAMAN SADDIQUI AND imam ali kaZi, JJ AHMAD SAEED and 16 others-Petitioners versus SIND LABOUR APPELLATE TRIBUNAL and unotlier-Respondcnts Const. Petitions Nos. U>72 of 1987 and 2 to 13 of 1989, decided on 6.5.1990 (i) Apprenticeship Rules, 1966- —-Rr. 18 & 19-Apprenliccsliip period-Expiry ol-Extcnsion in apprenticeship period-Whether amounts to amendment or alteration of original contract of apprenticeship requiring prior approval of competent authority—Question of— It is true that all subsequent alterations and amendments in contract of apprenticeship require prior approval of competent authority under Rule 18(4) which is a general provision— Case of extension in period of apprenticeship falls under special provision of Rule 19--Held: Prior approval of comptent authority is not necessary in case of extension of apprenticeship period of a trainee and such approval can be accorded by competent authority under Rule 19(3) even after commencement of extended period of apprenticeship. [P.571JA PLJ 1979 Lahore 214 ref. (ii) Apprenticeship Rules, 1966— — Rr. 21&22-Apprenticeship period-Expiry of-Extension in apprenticeship period— Whether prior approval of competent authority for extension of apprenticeship is necessary— Question of— After completion of probationary period by apprentice, prescribed under Rule 21, neither apprentice nor employer can terminate apprenticeship contract except with prior written consent of competent aulhority-Any breach of this condition may result in penal consequences-After completion of prescribed period, neither employer is obliged to offer employment to apprentice nor latter is bound to serve employer— Held: A prior approval of competent authority is not essential for extending period of apprenticeship. (Pp. 571&572JB (iii) Industrial Relations Ordinance, 1969 (Wp Ord.XXIII ol 1969)-- — S.2>A read with Apprenticeship Rules 1966, Rr. 18 & 19—Apprenliceship period— Expiry of—Extension in apprenticeship period—Whether, alter expiry of original apprenticeship period, petitioners continued to work as apprentices or they were absorbed as permanent employees of Zeal Pak—Qucstion of— Tribunals are required to determine this question in each case according to evidence on record— Held: These important factual aspects of case having not been resolved by tribunals below, orders passed by Sind Labour Appellate Tribunal and Sind Labour Court are illegal and of no legal effect-Petitions under Section 25-A of Ordinance to be disposed of afresh. jpp. 572&573]C Mr, Alt Amjid, Advocate for Petitioners. Mr. Talmiz Biimey and Cli. Rashid Ahmad, Advocates for Respondents. Dates of hearing:' 20,22 and 28.2.1990 and 12.3.1990. judgment Saiduzzaman Siddiqui, J.--We propose to dispose of the above noted 13 petitions by a consolidated order as the points of law involved therein are common. Petition No. 1672/87 is filed by 17 persons jointly to challenge the order dated 4.10.1987 passed by the Sind Labour Appellate Tribunal allowing the appeals of respondent No.2 (A//v. Zeal Pak Cement Factory) holding re­ instatement of petitioners in service ordered by the IV Labour Court, Hyderabad, as illegal. Petitions No. 2 to 13/89 are filed by M/s Zeal Pak Cement Factory, to challenge the order dated 7.12.1988 passed by Sind Labour Appellate Tribunal, allowing appeals of 12 workmen, holding that the termination of their services by the petitioner was not legal. For the sake of convenience, we will hereinafter refer the 17 petitioners in petition No. 1672/87 as "the petitioners" respondent No. 2 in petition No. 1672/87 and petitioner in petitions No. 2 to 13/89 as "Zeal Pak" and 12 respondents/workmen in petitions No. 2 to 13 of 1989 as "respondent No. 1" only respectively. The circumstances under which the above mentioned petitions are filed may be staled as follows: The petitioners were appointed as apprentice-mechanics by Zeal Pak in or about 1st January, 1983. Under the apprenticeship agreement executed between the petitioners and Zeal Pak the apprenticeship period was fixed as 3 years which expired on 31.12.1985. It is alleged by the petitioners that on completion of their apprenticeship period they continued to work with Zeal Pak on permanent job but they wire not issued any appointment letter. They further alleged that on 30th September, 1986 Zeal Pak terminated their services without any casue. Zeal Pak on the other hand contended that 3 years' apprenticeship period of petitioners fixed under the contract was extended for a further period of 9 months with the approval,, of competent authority and as such the apprenticeship period of the petitioners expired on 30th Sept., 1986, and accordingly termination letters dated 30th Sept., 1986 were served on the petitioners by Zeal Pak on expiry of their above apprenticeship period. The petitioners challenged the letter dated 30th Sept., 1986, issued to them by Zeal Pak terminating their employment, before 6lh Sind Labour Court, Hyderabad, under Section 25-A of the I.R.O. which were allowed. The Labour Court held that the evidence on record did not show that after expiry of the initial period of 3 years' apprenticeship, fixed under the contract, ihe same was extended with the approval of any competent authority. It was further held that the alleged approval of competent authority relied by Zeal Pak was not legal as the same was accorded after about 6 months of the expiry of the period of apprenticeship fixed under the contract, on an application of Zeal Pak, made after about 2 months of the expiry of the period of apprenticeship. The Labour Court also found that Zeal pak never informed the petitioners after expiry of their initial period of 3 years' apprenticeship, that their apprenticeship period was extended lor 9 months and that the record of Zeal Pak produced in the case did not show that alter completion of 3 years' period of apprenticeship fixed in the contract, the petitioners were continued to be treated as apprentices. On appeal by Zeal Pak the above order of Labour Court was reversed by the Sind Labour Appellate Tribunal. The Appellate Tribunal took the view that there was no legal requirement for communication of the extension in the period of apprenticeship to the petitioners and it was sufficient if it was shown that the competent authority had approved the extension. The Appellate Tribunal also took into consideration the admission made by one of the petitioners in his evidence that the petitioners were not allotted any residential accommodation and other facilities by Zeal Pak which arc normally allowed to a regular employee, and, accordingly, it was concluded that in these circumstances after termination of initial 3 years period of apprenticeship in the absence of a fresh appointment letter, the petitioners continued t:> serve Zeal Pak as apprentices and as there was no legal obligation on Zeal Pak tc employ the petitioners in the establishment on completion of their apprenticeship period, their termination of service after completion of apprenticeship period was legally valid. In Petitions No.2 to 13/89 the initial period of 3 years' apprenticeship of respondent No, 1, mentioned in the contract of apprenticeship, expired on or about 15th November, 1986. This period was twice extended by Zeal Pak, once uplo 15th Feb.. 87 and then up to 15th May, 1987. Respondent No. 1 in the above cases, like the petitioners in Petition 1672 of 1987 also took the plea that after expiry of their initial period of 3 years' apprenticeship they were not informed about any extension in the period of llieir apprenticeship and as such they became permanent employees of Zeal Pak on expiry of 3 years' apprenticeship period. They accordingly, challenged their terminal ion of service by Zeal Pak in May, 1987, before the VI Labour Court at Hyderabad. Zeal Pak on the other hand pleaded in these cases that on expiry of 3 years' apprenticeship period on 15.11.1986, the period of apprenticeship of respondent, No.l were (?) first extended upto 15lh Feb., 1987 on 15.11.1986 and, thereafter, it was further extended on 7.2.1987 upto 15.5.1987. It was also pleaded that the above two extensions made by Zeal Pak in the apprenticeship period of respondent No.l were duly approved by the competent authority and as such respondent No.l were/served with termination letters in May, 1987 on completion of their respective period of apprenticeship. The Labour Court after recording evidence of the parties and hearing them reached the conclusion that respondent. No. 1 continued to serve the petitioners as apprentices after expiry of their initial three years period and that they were fully aware of the same. The Labour Court also reached the conclusion that the above two extensions in the apprenticeship period of respondent No.l were made with the approval of competent authority and as such the letter dated 15th May, 1987, served on respondent No.l, terminating their apprenticeship was legal and valid. The Labour Court, accordingly, dismissed the grievance petitions filed by respondent No. 1. Against the order of Labour Court respondent. No.l filed separate appeals before the Sind Labour Appellate Tribunal, Karachi, which were allowed by the impugned order. The Sind Labour Appellate Court this time look the view, that in view of Rules 18 and 19 of the Apprenticeship Rules, 1966 (hereinafter called as "the Rules" only) the extension in the period of upprenliceship of respondent No, 1 should have been in writing and with the prior approval of competent authority and as there was no such subsequent agreement incorporating the extension in the period of apprenticeship beyond three years, the respondents No.l on expiry of their initial apprenticeship period of three years became permanent employees ol Zeal Pak. The Labour Appellate Tribunal further held that as il was admitted by ihc witness of Zeal Pak in his evidence thai the services of respondent No. 1 were terminated on account of their unsatisfactory work, the action was not sustainable in law. The order of the Labour Court was accordingly reversed and respondent No.l were directed to be reinstated in service with lull back benefits. Zeal Pak has challenged the above order of Labour Appellate Tribunal in the above petitions. From the above narration of facts it would appear that the successive Presiding Officers of Sind Labour Appellate Tribunal have taken different view while interpreting the Rules. Mr. Ali Amjid, Learned counsel for the petitioners and respondent No.l contended before us thai as the petitioners and respondent No.l were not served with the termination letter on ihe expiry of iheir initial period of aprenliceship of three years and were allowed to continue in the job withpul any condition, they shall be deemed to have become the permanent workmen in the establishment from the date of completion of their apf ircnticeship period of 3 years. It is, accordingly, contended by the learned counsel that termination of the services of petitioners and respondent No.l, much after expiry of the period of their apprenticeship, by Zeal Pak, was not legally s,Uf,lainable and as such they were rightly reinstated in service with full benefits. Leu rued counsel in support of his above contention relied on the case ol A//y. Sargodlta Vegetable Ghee Mills v. Mohammad Mukhtar Klwn (PLJ 1979 Lahore 214). Mr. All Amjid further contended that it is an admitted position in the above cases that the initial period of apprenticeship fixed under the contract of apprenticeship, executed between the parties, was three years, and, therefore, any alteration or amendment in the terms and conditions of the said contract, subsequent to its execution, required prior approval of the competent authority under the Rules. It is accordingly urged by the learned counsel that the alleged approval of competent authority relied by Zeal Pak in the above cases which purportedly approved the extensions in the apprenticeship period of petitioners and respondent No. 1 had no legal effect. Mr. Talmix Burney, learned counsel for Zeal Pak on the other hand contended that there is no requirement under rule 19 of the Rules for obtaining period (?) approval of the competent authority for extension in the apprenticeship period and as such the subsequent approval given by the competent authority for extension in the period of apprenticeship of petitioners and respondent No.l was valid. It is, accordingly, contended by Mr. Talmix Burney, that the termination of the apprenticeship of petitioners and respondent No.l after completion of their extended apprenticeship period was fully justified and valid in law and no exception could be taken to it. It is an admitted position in the above cases thai ihe petitioners and respondents No.l were initially appointed as apprentices by Zeal Pak for a period of 3 years. Zeal Pak claimed that the period of apprenticeship was extended in all the cases with the approval of competent authority while petitioners and respondent .No.l claimed that, firstly, no such extensions were made, and, secondly, if any such extension was made it was without the knowledge and consent of apprentices and without prior approval of competent authority and as such the same was invalid. In order to appreciate the above contentions il is necessary to cxemine in some detail the relevant provisions in the Rules. In support of their respective arguments the learned- counsel for the parlies have relied on rules 18 and 19 of the Rules which read as follovvs:-- "18. Apprenticeship Contract.-(l) The employer and the apprentice shall, on ihe eve of the apprentice's recruitment, enter into a written contract to be known as the 'Apprenticeship Contract' on the prescribed I'orm given in Appendix I. (2) In case of the apprentice being a minor, the contract shall be signed by the parent/guardian as well as by such minor apprentice. (3) The contract shall be prepared in triplicate and submitted to ihe compelent authority for registration, and after endorsement of registration on all three copies the original shall be sent to the apprentice, a copy sent to the employer and a copy retained by the competent authority. (4) No subsequent alteration or amendment in the contract shall be made except with the prior approval of the competent authority. (5) Apprenticeship contracts shall be exempt from slamp duly. 19. Duration of apprenticeship.-(l) The duration of apprenticeship for such trade declared as apprcnticeable shall he determined by the competent authority after having taken into account the following factors:-- (/') the nature and the job description of the trade; (it) the expected degree of skill and knowledge of the trade to be achieved by a worker before entering the employment market as a skilled worker in the trade. (Hi)' the likely duration required for attaining the desired, proficiency in the trade: (/V) the practical training, related (theoretical) instruction and the job practice needed for the development of the desired skill and knowledge; (v) the minimum educational qualifications laid down for entrance as an apprentice in the trade. (2) The duration of apprenticeship shall invariably be specified in the apprenticeship contract. (3) Any extension in the aprcnticeship period, in individual cases, if considered essential in the interest of apprentice's training, shall be made with the approval of the competent authority. The extension granted shall in no case be more than l/4lh of the original duration of apprenticeship. A careful examination of rule 18 ibid will show that on the eve of recruitment of an apprentice, an apprenticeship contract is to be executed by the empolyer and the apprentice or by the parents or guardian of apprentice on behalf of apprentice, if the apprentice happened to be a minor, in the form prescribed under the rules. Sub-rule (4) of rule 18, prohibits any subsequent alteration or amendment in the contract of apprenticeship after it is executed, except with the prior approval of the competent authority. Rule W ibid which deals with the duration of apprenticeship perid, provides in its sub-rule. (1) that the competent authority shall determine the duration of apprenticeship-period for each trade, which -is declared as apprcnliceab'le on consideration of factors enumerated in clauses (/) to (r) of the said sub-rule. Sub-rule (2) of Rule 19 makes it obligatory on the parlies to state/specify the apprenticeship period in the contract of apprenticeship. Sub-rule (3) of rule 19- provides that any exlenlion in the apprenticeship period, if it is considered essential in the interest of apprentice trainee, in . individual cases, shall be made with the approval of competent authority. This sub-rule further provides, that in no case the extension in the apprenticeship period shall exceed more than 1/4 of the original duration of apprenticeship. From reading of above two rules, it is clear that while rule 18 deals generally with the form and manner of execution of the contract of apprenticeship by the parties and the .mode in which amendment and alteration can be'made therein after execution; rule 19 deals only with the prescription of the period of apprenticeship and its extension in.certain cases, by the competent authority. Rule 18, therefore, in our view contains general provision governing the contract of apprenticeship; while rule 19 is in the nature of a special provision, dealing only with the prescription of the period of apprenticeship in respect of each apprenliceablc trade and extension in the prescribed period of apprenticeship in individual cases by the competent authority. Therefore, to the extent a case falls under the special provision of rule 19, the general provision contained in rules 18 will be inapplicable. The contention of Mr. Ali Amjid, in the above cases is that as extention in the period of apprenticeship amounts to an amendment or alteration of the original contract of apprenticeship, it could only be done with the prior approval of competent authority as provided in rule 1S(4) ibid. We are unable to accept the contention of Mr. Ali Amjid. It is true thai all subsequent alterations and amendments in the contract of apprenticeship require prior approval of competent authority under rule 18(4) of the Rules wich is a general provision, but as discussed above, the case of extension in the period of apprenticeship falls under the special provision of rule 19, therefore, it will not be governed under rule 18. The extension in the apprenticeship period under rule 19(3) ibid can be granted by the competent authority in individual case, if it is considered essential in the interest of apprentice trainee. The framers of rules though used the word "prior" before the expression "approval of competent authority" in rule 18(4), but deliberately omitted the word "prior" in the following rule 19(3) before the same expression "approval of competent authority". This deliberate omission of word "prior" in rule 19(3) clearly indicates the intention of the framers that in the case of extension in the period of apprenticeship no prior approval of competent athority was necesssary although such prior approval was needed in all other events of amendment and alteration in the contract of apprenticeship under rule 18(4). However , the extension, in the apprenticeship period to be granted by the competent authority under rule 19(3) is neither mechanical nor automatic in its nature. This extension is to be granted by the competent authority only on its salisiication in an individual case, that such extension is necessary in the interest of apprentice trainee and in no ease such extension can exceed 1/4, of the original period of apprenticeship. We are, therefore, of the view that prior approval of competent authority is not necessary in the case of extension in the period of apprenticeship of a trainee and such approval can be accorded by the competent authority under rule 19(3) of the Rules even alter commencement of the extended period of apprenticeship. It is not disputed before us that an extension in the period of apprenticeship can be granted by the competent authority on the request of employer but it is urged that such extension must necessarily precede expiry of the original period of apprenticeship. The question, therefore, which arises for consideration is that, upto what point of time it is open to an employer to approach the competent authority lor extension of the original period of apprenticeship of a trainee, provided in the contract of apprenticeship. A careful study of various provisions of Apprentice Ordinance of 1962 and the Rules made thereunder will show that alter completion of probationary period by the apprentice, prescribed under rule 21 of the Rules, neither the apprentice nor the employer can terminate the apprenticeship contract unilaterally, except with the prior written consent of the competent authority. Any breach of the above condition on the f.arl of employer may result in penal consequences, while in the event of breach by the apprentice, he, his parents or the surety as the case may be, may be jointly and severally liable for refund of expenses and compensation as may be prescribed. The provisions of the Ordinance and the Rules are also very clear on the point, that an apprentice cannot during the period of his apprenticeship become member of a trade union of any class of employees of the establishment where he is working as an apprentice and all disputes arising between the employer and apprentice under the apprenticeship contract during such period are to be referred lo competent authority which are to be decided in accordance with the provisions of rule 22 of the Rules and decision so arrived is final and binding on the parties. It is also clear from the rules that after completion of prescribed period of aprentiecship, neither the employer is obliged lo offer employment to the apprentice nor the apprentice is bound lo serve the employer. It is, therefore, in our view necessary, that where an employer seeks extension in the period of apprenticeship of a trainee, such request has to be made to the competent authority before completion of the original period of apprenticeship as otherwise the relationship between the employer and the trainee on completion of the period of apprenticeship is governed under the normal law. It is also necessary in a case where an employer approaches the competent authority for extension in the period of apprenticeship of a trainee, that the apprentice be informed about such application of employer to the competent authority, as in the absence of an extension in his period of apprenticeship the apprenticeship has a choice to continue or not in the employment of the employer. We arc therefore, of the view that where an employer approaches the competent authority for extension in the period of apprenticeship of a trainee on the ground thai such extension is necessary in the interest of trainee, he has to make such request to the competent authority before the period prescribed in the contract of apprenticeship expires. The employer in such a case is also obliged to inform the trainee about his request lo the competent authority for extension in the period of his apprenticeship. The competent authority in a case where it has been approached lor extension in the period of apprenticeship of a trainee before expiry of the period, of apprenticeship prescribed under the contract of apprentice, may extend the period if it is satisfied thai such exlension is necessary in the interest ol trainee, notwithstanding the fact, lhal the period prescribed under ihc contract of apprenticeship has expired. A prior approval of the competent aulhorily iherefore, is not essenlial for extending the period of apprenticeship. Whether in a particular case the employer approached the competent authority for extension in the period of apprenliceship of a trainee before or after the expiry of the perid of apprenticeship mentioned in the contract of apprenticeship is a question of fact, which can only be resolved with reference lo the evidence in each case in this regard. In the cases before us there is no clear finding by the Tribunals below on the point that, whether the application of Zeal Pak to the complenl authority for extension in the period of apprenliceship of petilioners and respondent No.I, was made before or alter expiry of ihcir respective period of apprenticeships. Il is also nol clear from the findings of the Tribunals below lhat whelher ihe pelilioners and rcspondenl No.l were informed by Zeal Pak, lhal ihe latter had approached the competent authority for exlension in their respective periods of apprenticeship, h may be mentioned here thai il is a mool question in the above cases, lhat whclhcr afler expiry of ihe original apprenticeship period the petilioners and respondent No.l, continued lo work as apprenlices or ihcy were absorbed as permenanl employees of Zeal Pak. The Tribunals below, iherefore, are required lo determine (his queslion in each case according lo evidence on record. No doubt, in a case, where an apprentice is allowed lo conlinue his employmcnl aflcr expiry of ihe original period, of his apprenticeship without any extension in the period of his apprenticeship a strong presumption may arise that after expiry of the original period of apprenticeship, he worked as a regular employee of establishment, but that too will depend on the evidence in each case. As these important factual aspects of the case have not been resolved by the tribunals below in the above cases, we declare the orders passed by the Sind (Labour) Appellate Tribunal as well as Sind Labour Court No.6, as illegal and of no legal effect. The reasult of the above declaration will be that the petitions filed by the petitioners and respondent N'o.l under Section 25-A of the IRO before the Labour Court shall be deemed to be pending which be disposed of afresh in the light of above observation, if necessary, by allowing the parties to lead further evidence. There will be no order as to costs. (MBC) Orders accordingly.

PLJ 1990 Karachi 573 PLJ 1990 Karachi 573 Present: haziql khairi, .1 M/s. ALPINE CONSTRUCTION Co. LTD--Plaintiff versus UNIVERSITY OF KARACHI-Defendant Suit No. 645 of 1984, decided on 13.5.1990 Arbitration Act. 1940 (X of 1940)-- —Ss. 14. 30 &. 33—Award-Making Rule of Court of-Objections to-Whether arbitrators have misconducted themselves and proceedings—Question of— Contention that despite request of plaintiff, no issues were framed, no evidence was recorded by arbitrators nor any document was produced or proved, hence arbitrators misconducted themselves and proceedings-Counter contention that this failure will not amount to misconduct—Arbitrator is not bound by any set rule of evidence nor he is required to frame issues and give his findings separately on each one of them-Held: There is no substance in objections and same are rejected—Award, after exclusion of escalation claim, made rule of Court. ' [Pp. 576,577,578&579]A,B,C&D PLD 1977 SC 237, PLD 1971 Lahore 38, PLD 1970 Karachi 357, PLD 1981 Karachi 236, PLD 1960 (WP) Peshawar 14, PLD 1960 Karachi 78 and 1981 CLC 1282 re/. Mr. Muhammad Sharif, Advocate for Plaintiff. Mr. R.H. Farooqui, Advocate for Defendant. Dates of hearing: 25.2.1.990, 11.3.1990 and 13.5.1990. judgment This award for Rs. 4,86,128/- in favour of the plaintiff is given by M/s. (Reid) Major Rifatullah Khawaja and Mr.Hussan Siddiqui who were appointed as arbitrators by the plaintiff and defendant respectively in terms of arbitration agreement read with order passed in J.M.No. 19/81 by the High Court of Sind. The said sum of Rs. 4,86,128/- is arrived at after adjustment of Rs. 53,662,50 awarded to the defendant towards their counter claim against the plaintiff. Briefly the facts of the case are that the plaintiff being lowest tenderer were awarded work of construction of Federal Government Hostel at the campus of the University of Karachi through written agreement dated 30.5.1979 at a costs of Rs. 27,60,342/-. The said construction work was to be completed within 12 months. This work, however, could not be completed within time but was completed within the next five month being the agreed extended period. Before the Arbitrators, the plaintiffs had lodged a claim for Rs. 28,43,592/-and the defendants filed a counter claim for Rs. 18,62,355.50 the details whereof are as follows:- "PLAINTIFFS CLAIM: (1) Balance of cost of work done Rs. 9,87,918/- (2) Escalation in prices Rs. 8.86,976/- (3) Interest at 14% Rs. 9,18,698/- (4) Costs of proceedings Rs. 50,000/- Total. Rs. 28,43,592/- DEPENDANT'S COUNTER CLAIM: (1) Defects in works got removed Rs. 53,802.50 (2) Liquidated Damages Rs. 18,08,553.00 (3) Costs of proceedings Rs. 1,00,000.00 Total. Rs. 19,62,355.50 The plaintiff lodged their claim on 19.11.1983 and the defendants filed their counter claim/written statement on 5.12.1983 and the proceedings continued till 7.10.1984 for about 10^ months. The plaintiffs have not filed any objection to the awards but the defendant in their application under Sections 30 and 33 of the Arbitration Act while praying for setting aside/modification of the award have raised the following objections:— 1. That the proceedings before the arbitrators continued for 10^ months. In the said proceedings the arbitrators were requested vide application filed on 7.1.1984 to frame issues arising from the assertions and denials of the parties and to record evidence but no evidence of the parties was recorded, no witness was produced, no document was produced exhibited or proved. 2. That the aribtrators had adopted a procedure not warranted by the record and facts of the case, is opposed to natural justice and breach of duty and have as such committed misconduct. The arbitrators cannot be absolved of the duty of recording evidence. 3. That the award is based on no evidence and depart from the basic principle of Evidence Act. 4. That the Award is liable to be set aside as the arbitrators based their deductions as to escalation in price on material outside the ambit of the agreement and have relied upon the decisions of Government of Sind and guidlines of the Government of Pakistan although they were not parties to the proceedings. 5. That there is an error on the face of the record inasmuch as in terms of Agreement no claim on account of escalation or raise or fluctuation in prices of relevant material can be entertained but the arbitrators while overlooking the said agreed term proceeded to examine the said claim and thus have acted beyond the terms of reference. 6. That the work was found defective incomplete and contrary to specification in terms of the joint inspection report. 7. That the arbitrators did not apply their mind honestly and completely ignored the provisions as contained in Section 26A of Arbitration Act. The plaintiffs opposing the defendant's said application have stated that the defendants are not entitled to any compensation from them as the contract was completed within time and their responsibility to the defect of the building in question is confined to the maintenance period. According to them both oral and documentary evidence was duly considered by the learned arbitrators. Reference was made to the examination of Mirza Ayub Baig on behalf of the plaintiff and Mr. Azeem and Akhtar defendant's witnesses have signed as token of their examinauon in the proceedings. Mr. Kamil Gulzar Tharani, consultant was also examined during course of inspection of site and further documentary evidence as at Serial No.15 to Page 272 was filed. It is contended by them that although no issues were framed, the plaintiff and defendant had agreed to follow the procedure indicated by the arbitrators at page 5, para 2 of the award. With regard to compensation on account of escalation, it is stated that the same was approved by the Government of Pakistan for their project in execution under the contract as per reference quoted in the award. Other allegations made by the defendant were also denied by them as contrary to the factual position. Before I proceed further it will be fruitful to refer to the arbitration clause which is as follows:-- •7.64 ARBITRATION (/) Subject to Clause 7.64 (/V) all disputes, claims, questions arising out of or under or in connection with the Contract or in connection with the interpretation or application thereof between the parties thereto shall be referred to Arbitration in pursuance of and under the provisions of the Pakistan Arbitration Act, 1940 any modification, amendment and rules made thereto or thereunder in force. Both the parties shall be entitled to appoint an Umpire before entering upon the Reference. Only if the Arbitrators are unable to agree with the Reference be made to the Umpire for his decision. The Arbitrator's Award or upon failure of the Arbitrators to agree on Award, the decision of the Umpire shall be final and binding upon the parties. (ii) The Contractor and the arbitration proceedings under it shall be governed by Pakistan Law and the Arbitration language shall be English. (Hi) The venue of any Arbitration shall be in Karachi, Pakistan. (/V) Provided, however, that the following matter shall not be liable to the referred to Arbitration as contemplated under Clause 7.64 (/) hereof:— (a) Any decision of Owner Architect/Engineer or its authorized representative as contemplated in the Contract. (b) Owner right to permit or refuse any assignment or sub-contracting by the Contractor. (c) Any decision by owner/Architect/Engineer or its authorized representative regarding variation or modification of the scope of Work and/or any decision as to the meaning and implementation of the specifications. (d) Owner right to delegate any powers and rights in respect thereto. (v) In the event of any valid reference to Arbitration prior to the completion of the Work, the Contractor shall not stop the progress of the Work during the pendency of the arbitration proceedings, but he shall continue to execute the Work with due diligence. However, the Engineer shall have the power to ask the Contractor in writing to stop the Work in full or in part, if he considers this necessary." Objections 1,2&3. At the outset the award refers to consensus reached between the parties with regard to the manner in which proceedings before the arbitrators were to be conducted. Relevant portion is reproduced as under:— "However, after submission of statement of claim, counter claim, documentary evidence, the parties agreed that instead of the whole evidence of each party, being recorded on all questions, each item of Memo of Claim and counter claim may be taken up and inquiry recorded on it for separate consideration as these will ultimately help in resolving the general issue. We have followed the above agreement." The case of the plaintiff is that despite request made by them in their application dated 7.1.1984 to frame issues and record evidence, no issues were framed by the arbitrator, no evidence was recorded nor any document was produced or proved. Further the arbitrators had adopted a procedure not warranted by the record and facts of the case. As such it is contended by Mr. Rehanul Hassan Farooqui learned counsel for the defendant that the arbitrators have misconducted themselves and the proceedings. In support he first placed reliance on Brooke Bond (Pakistan) Limited v. Conciliator and 6 others, PLD 1977 S.C. 237 where it was held:- "The term misconduct used in connection with arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. In the judicial sense the misconduct of an Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. According to Atkin, J. the words "misconducted the proceedings" means such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice. In the American Jurisprudence it is observed that awards which are valid on their faces may be set aside in equity for misconduct on the part of the arbitrators, and the extrinsic evidence is admissible to prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the arbitrators, either at the hearing or in reaching their conclusions will frequently constitute misconduct as will impeach an award." In M/s. Qamar Din Ahmed & Co. v. Pakistan and another reported in PLD 1971 Lahore 38 it was held:- "It is the duty of the arbitrator to act fairly to both the parlies, and in the proceedings throughout the reference, he must not favour one party more than another, or do anything for one party which he does not do or offer to do for the other and he must observe in this the ordinary wellunderstood rule for the administration of justice. In order to render the award bad, evidence whether material or not must have been improperly taken or admitted. Naturally, if the decision of the dispute is dependent on a particular question or issue raised before the arbitrator, it is the duty of the arbitrator to adjudicate upon that particular issue and then to give a decision in the case but that does not mean that the arbitrators are bound to give a reasoned judgment on each and every tissue and point raised in the controversy before them." To further substantiate his contention learned counsel referred to Haji Tavab and 2 others . Eastern Textile Mills Ltd., Chittagong and 12 others, PLD 1970 Karachi 357 in which it was held as follows:- "Although the arbitrator is allowed considerable latitude in the procedure to be followed by him at the hearing, it is his paramount duty to afford the parties a reasonable opportunity to know the case against them. He cannot condemn a party without letting him know the case. If he makes an award without complying with this elementary principle of natural justice, he does so at the risk and peril of award being set aside on grounds of misconduct. It has been repeatedly held that unless the terms of reference dispense with holding an enquiry, the right of hearing is to be presumed. In any case, the arbitrator cannot hold secret enquiries behind the back of the parties and if he does so the award will be vitiated." In reply learned counsel for the plaintiff Mr. Mohammad Sharif has urged before me that although the learned arbitrators did not frame issues they took up each item of claim and counter claim made by the parties and gave their findings B thereon as is evident from the award itself. It is contended by him that failure on the part of the arbitrators to frame issues and give finding thereon will not amount to misconduct. In Ibad & Co. v. Government of Si/id and others PLD 1981, Karachi 236, Nasir Aslam Zahid, J. had held as follows:-- "I am of the view that it is not necessary for an arbitrator to frame issues and even if issues are framed by the arbitrator it is not necessary for him to give separate findings on each issue but the law permits him to give one but same award without separate findings on each issue." In Gul Hassan Shah v. Sardarali Shah & Others PLD 1960 (W.P) Peshawar 14 it was held that: "there is nothing in the arbitration act which compels an arbitrator to record oral evidence or the statements of the witnesses or admissions of the parties. There is not bar in the act against relying on oral evidence. The failure of the arbitrator to reduce the evidence into writing is not an omission fatal to the award and does not constitute misconduct on the arbitrators part." Similar view was taken in Province of Baluchistan and another v. Malik Haji Gul Hassan, PLD 1982 Ouetta 52. In Mst. Ameer Begum v. Syed Badanil Hitssain and others reported in A.I.R. 1914 P.C. (?) it was held as follows:-- "If irregularities in proceeding can be proved which would amount to no proper hearing of the matters in dispute, there would be misconduct sufficient to vitiate the award but any imputation on the honesty or partiality of the arbitrator, but the onus of proving the irregularities in procedure is on the person alleging the same." In Suleman Haji Muhammad & Co. v. State Bank of Pakistan, PLD 1960 Karachi 78 following the decision of the Privy Council in the case of Champsey & Co. v. Jirsay Baloo, A.I.R. 1923 P.C., (?) the late Wahiduddin J, observed as follows:-- "I have already cited the view of their lordships of the Privy Council that arbitrators are both judges of law and (?) facts and in my view once the matter is found to be within the jurisdiction of the arbitrators, it is not jpermissible for Courts of law (?) and find out whether their decision is right or wrong on the facts urged before them by travelling outside the award for finding out what evidence was led before them and whether their conclusions are based on sufficient evidence." The over all legal position emerging from the case law cited above leaves no doubt that the arbitrator is not bound by any set rule of evidence nor he is required to frame issues and give his findings separately on each one of them. In the present case, the arbitrators with the consent of the parties have taken up each item of the claim and counter claim and have given their finding thereon. According to the defendants as early as 7.1.84, an application for framing issues was moved by them before the arbitrators and since this application was not taken up and disposed of by the arbitrators, it was again a clear case of their misconduct. I do not agree. The award spells out the tacit consensus between the parties as to the manner in which the proceedings were to be conducted by the arbitrators which it is pertinent to note, have not been specifically denied by the defendants. The award refers to evidence, inquiry and inspection which form the basis of the award. The award was given on 7.10.84 after more than nine months of the date of the said application during which period the defendants admittedly had given their assent before the court to extension of time for giving the award and throughout the defendants never rai'sed any objection to the alleged illegal manner in which arbitration proceedings were being conducted by the arbitrators. It appears that the defendants rather elected to wait and see if the award was favourable to them and upon coming to know that it was not, as an after thought, took up a plea not consistent with their conduct. Hence I find no substance in these objections which are hereby rejected. Objections 4 & 5: Next it is contended by the learned counsel for the defendants that the learned arbitrators while awarding escalation claim of the plaintiff have acted outside the ambit of the arbitration agreement, as no claim on account of escalation of rise or fluctuation in prices can be made by the plaintiff in terms of para 7.56 of Tender Documents which is follows: "The contract price as determined on the basis of quantities is fixed and firm and so also all the rates and prices in the bill of quantities and no claim on account of fluctuations in the prices of material, labour rates, equipment or on account of increases in certain Sale Tax, Toll Tax, or other taxes levied by contract or provincial Government or Corporate bodies or on account of any fresh taxes, levies or charges will be entertained." However, the reasons given by the abritrators for awarding escalation claim are as under:-- "(;') In fact the major reason for the increasing in prices is due to the high cost of oil and imposition of taxes/duty by the Government of Pakistan. (if) This increase in the cost of oil have (?) been effected by the Government at various occasions resulting thereby, there have been constant rise in the cost of materials as well as wages of labour. This position have (?) been testified by the monthly statistical bulliten issued by the Statistical Division, Government of Pakistan and Energy Year Book 1983 issued by the Ministry of Petroleum and Natural Resources Government of Pakistan. The plaintiff/Claimant also placed before us the Memorandum issued by the Government of Pakistan Finance Division Regulation Wing for grant of compensation on account of escalation, similar decision have also been taken by Government of Sind. (//'/) Such claims on account of rise in market prices of material as well as wages had not been denied by the Defendant/Opponent in the past". According to the plaintiff this objection is mis-conceived as their claim is not bassed upon fluctuations but on account of escalation of market prices of material and cost of wages and the difference between the two is poles apart. Learned counsel, however, has failed to point out if there was any clause in the agreement or Tender documents with regard to "escalation" in prices as opposed to "fluctuation in prices". As to how a claim which is barred on the basis of fluctuations can be justified on account of "escalation" has not been explained by the learned arbitrators. In Sind Construction Co. v. Karachi Poii Tmst 1981 CLC 1282 Karachi which has been relied upon by the learned arbitrators, clause 80 of the General Conditions of the contract relating to arbitration covers "any dispute of whatsoever nature (including interpretation of this or any other relevant document) arising under this contract". In this context Nasir Aslam Zahid, J, (as he then was) had held that instruction and memoranda of the Government were relevant documents and the applicability or otherwise of such documents is within the scope of the arbitration clause. Further, it was held "the contract between the parties was subject to Government approval and although Government may not directly be a party as a signatury to the contract the contract came into existence only when approval was given by the Government. The Government had every right to issue instructions regarding payment of additional amounts on account of escalation and the Government instructions and memoranda entitled him to additional payments in respect of the work done under the contract. In the present case, the position is entirely different. Firstly, there is a clear cut embargo placed upon the plaintiffs by virtue of para 7.56 of Tender Documents referred to above whereby the planfltfffs are not entitled to claim any fluctuation in price. Learned arbitrators have neither considered this bar nor given any reasons for not considering the same. Besides in the above cited case escalation was awarded to the plaintiff on the basis of instructions, memoranda and approval given by the Government as contained in the relevant documents which were produced before the arbitrators and as such were not documents extratneous to the award. The contract was dependant upon the approval of the Government. On the other hand, it is admitted by the learned counsel for the parties that the defendant namely, University of Karachi, is a statutory body and there is nothing to show that the contract required Government approval or the parties were bound in any manner by any Government directive, instruction, memoranda or documents. Learned arbitrators have completely misread the judgment dated 27-10-1980 in Suit No. 672/76 reported in 1981 CLC Kar. which in fact goes against the plaintiff. Hence I set aside the claim of the plaintiff on account of escalation of prices. Objections pertaining to all other claims awarded by the arbitrators have not impressed me as these claims relate to questions of facts and come within the exclusive domain of the arbitrators who have considered them and given sufficient reasons for coming to their conclusions. As a result, the award after the exclusion of escalation claim stands at Rs. 2,01,946 is hereby made rule of the court with proportionate cost and interest at the rate of 14% per annum from the date of the decree till the date of payment. (MBC) Orders accordingly.

PLJ 1990 Karachi 580 (DB) PLJ 1990 Karachi 580 (DB) Present: SYED SAJJAD ALI SHAH C.I AND HAZEEQUL KHAIRI, J HATIMBHAI-Appellant versus KARlMBHAI-Respondent H.CA. No. 257 of 1989, dismissed on 13.3.1990. Civil Procedure Code, 1908 (V of 1908)-- —-S. 12(2) read with Order XXXVIJ Rule 4--Leave to appear and defend suit-­ Security not furnished-Suit dccreed-Whethcr decree could be set aside on application under Section 12(2) CPC-Question of-Defence of appellant was struck off upon non-compliance of Court's order and he also failed to apply for setting aside decree as provided under Order XXXVII Rule 4 CPC-Held: Appellant cannot be allowed to delay or defeat a decree passed against him by invoking Section 12(2) CPC in face of mandatory provisions of Order XXXVII CPC so as to render latter nugatory and redundant-Appeal dismissed. [P.582JA Mr. S.A. Samad Kltan, Advocate for Appellant. Mr. K.A. Wahab, Advocate for Respondent. Date of hearing: 13.3.1990. order Hazeequl Khairi, J.--By this appeal under Section 3 of LRO 1972 the appellant has challenged the order dated 7.11.1989 of a Learned single Judge refusing to set aside the decree dated 29.9.1986 passed in suit No. 437 of 1985. On or obout 25.7.1985, the respondent filed the said suit under order 37 rule 2 CPC praying for a decree for Rs. 6,OU,000/- alternatively the respondent prayed for a decree under Order 34 CPC against the respondent. In the said suit the respondent filed an application under Order 37 rule 3 CPC seeking permission to appear and defend the suit. Leave was granted to the appcallanl upon furnishing security. Since the appellant had failed to furnish security the suit was decreed vide judgment dated 29.9.86, Thereafter on or about 6.3.1988, the respondent filed an Execution Application No.23 of 1987 against the appellant. Some time after filing of the said Execution Application the appellant filed an application under Section 12(2) CPC for selling aside the decree passed in the said Suit No. 437 of 1985 on the ground that the money advanced to the appellant belong (?) lo one Amanullali Khan and not to the respondent. Reference was also made by the appellant to a letter written by him it) Dawoodi Bohra Jamaat Fai/-e- Hakimi, Karachi, to find out how the respondent was claiming interest on a loan in the face ol a mandatory injunction issued against il by llie revered Head of Jamaat, His Holiness Syedna Mohammad Burhanuddin. The contentions raised by ihe appellant before the learned single Judge of this Court were considered and rightly rejected by him. It may, however, be mentioned here that upon the failure of the appellant to furnish security, a decree was passed against him but he took no steps either for extension of time to furnish security or for setting aside the decree as provided under Order 37 rule 4 CPC as under: "4. Power lo sel aside decree.—After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or sel aside execution, and may give leave lo ihe defendant lo appear lo the summons and ii> defend ihe suit, if it seems reasonable lo ihe Court so to-do, and on such terms as the Court thinks fit." It appears to us extremely doubtful if the provisions of Section 12(2) CPC are made availabe to the appellant whose defence was struck off upon noncompliance of court's order and who has also failed to apply for setting aside the decree as provided under Order 37 Rule 4 CPC. The appellant cannot be allowed to delay or defeat a decree passed against him by invoking Section 12(2) CPC in the face of mandatory provisions of order XXXVII CPC so as to render the latter nugatory and redundunl. We will, however, refrain from expressing our views as to the maintainability of the appeal itself under Section 3 of LRO 1972 which according to the learned counsel for the respondent does not lie in view of express provisions as to appeals under Section 12(1) of the Banking (Companies) (Recovery of Loan) Ordinance, 1979. The appeal is, therefore, dismissed in limine. (MBC) Appeal dismissed.

PLJ 1990 Karachi 582 PLJ 1990 Karachi 582 Present: imam Ali G. kaz.i, J Mst. MEHRUN NISA--Applicant versus KARACHI CANTONMENT BOARD and anolher-Respondents Civil Revision No. 174 of 1984, dismissed on 18.3.1990 Civil Procedure Code, 1908 (V of 1908)-- —-O. XXIII Rule 1(3) read with O. VII R. II-Plaint-Rejection of-Challenge to—Whether a fresh suit could be filed when no permission was sought to file a fresh suit at time of withdrawal of previous suit-Question of-Permission to file a suit is granted in respect of a"subject matter" as distinct from "cause of action"--Legislalure, in rule 1, rub-sule (2) of Order XXIII CPC, has intentionally used term "subject matter" instead of cause of action—On examination of two plaints, it transpires that both plaints related to same subject matter—Held: Since applicant had withdrawn earlier suit without seeking permission to file a fresh suit, second suit filed by her is barred under O. XXIII R. 1(3) CPC and plaint was rightly rejected. ' [Pp. 584&585JA AIR 1959 Calcutta 715 ret. PLD 1964 Karachi 587 not relevant. Mii-za Muhammad Kazim, Advocate for Applicant. Mr. Turab Ahmad, Advocate for Respondent No. 2 Dale of iiearing: 18.2.1990. judgment The dispute in this ease relates to a plot of land bearing No. 160 (New No. A-44/3) situated in Delhi Colony No. 1. Karachi. The entire area of Delhi Colony has been in unautorLscd possession of a large number of persons. This area comes within the territorial jurisdiction of the Karachi Cantonment board. The Karachi Cantonment Board decided to regularise such occupation of plots by granting leases ib respect of plots held by individuals. They announced such policy through press ob 2.4.1973 and invited applications from unauthorised occupants of plots in tbe said Colony for being regularised by [hem. Mst. Meharunnisa the applicant herein applied for regulari/ation of a plot of land in her possession mentioned hereinabove. The Karachi Cantonment Board by their decision dated 18.7.1974 declined to accept her to be eligible for grant of lease in respect of that plot. The plot in question according to them belonged to one Haji Mohammad Shafi, the grand father of Mst. Rukhsana Begum, the respondent No. 2 and he had transferred it to her. 2. Mst. Meharunnisa then filed a suit on 2.8.1974 in the Court of III Senior Civil Judge, Karachi which was registered as Suit No. 1717 of 1974 implcading the Karachi Cantonment Board and aforesaid Mst. Rukhsana as defendants in that suit. An application under Order VII rule 11 Civil Procedure Code was filed on behalf of the Karachi Cantonment Board seeking rejection of the plaint on the grounds that as Mst. Meharunnisa had filed an appeal in respect of the regularization of plot in her favour and was pending before the President. Karachi Camonmeni Board and as no notice required by law to be given to them before iling (his suit was given by her the suit filed by her was premature. In order to overcome such objections, an application under Order XXIII rule 1 Civil Procedure Code was filed on behalf ol Msl. Meharunnisa seeking permission to withdraw the suit. The III Senior Civil Judge, Karachi passed an order on 4 th December. 1974 in the following terms; "Learned Advocates of parties are present. Defendant No. 1 has filed an application u/o VII rule 11 CPC and C.A. Plaintiffs have applied u/o 23 rule 1 CPC for withdrawal of suit. Defendanl No. 2 has not filed W.S. Suil dismissed as withdrawn with no order as to costs." 3. The appeal filed by Mst. Meharunnisa reffercd to hereinabove was rejected by the President, Karachi Cantonment Board on 6.3.1975. She then filed another suit seeking a declaration that both the orders (original and appellate) in respect of the said plot be declared as inoperative and also sought an injunction restraining them from executing the lease in favour of Mst. Rukhsana. This suit was regisiered as suit No. 706 of 1975 in (he Court of III Senior Civil Judge, Karachi. Alongwiih the plaint, an application under Order XXXIX rule 1 and 2 Civil Procedure Code was filed on behalf of the plaintiff for grant of interim injunction. During the course of hearing of such application the defendants in the suit no< only opposed the grant of injunction but also questioned the maintainability of the second suit on the ground that as the plaintiff had withdrawn the previous suit without seeking permission lo institute a fresh suit, the suit was barred under Section 12 and Order XXIII rule 1(3) Civil Procedure Code. The trial Judge by his order dated 31st March, 1976 held that the suit was barred by sub-rule (3) of rule 1 of Order XXIII read with Section 12 Civil rocedure Code and, therefore, he rejected the plaint under Order VII rule 11 Civil Procedure Code. Mst. Meharunnisa being aggrieved by such order filed an appeal, which was registered as Civil Appeal No. 200 of 1976 in the Court of District Judge, Karachi. Her appeal was ultimately taken up by Vth Additional District Judge, Karachi, who by his judgment dated 24.4.1984 dismissed it. Mst. Meharunnisa has now filed the present application under Section 115 Civil Procedure Code impugning the orders mentioned hereinabove. 4. Mr. Mirza Mohammad Kazim, the Advocate for the applicant contended that second suit was filed after the decision was taken by the President, Karachi Cantonment Board in Appeal which according to him, constituted a fresh cause of action and the second suit was competent. In support of his contention, he has relied on cases reported in PLD 1964 Kar. 587, and 1959 AIR Calcutta 715. 5. Mr. Turab Ahmed, Advocate appearing for respondent No. 2 contended that Mst. Meharunnisa had in fact filed her first suit after she had already filed an appeal before the President, Karachi Cantonment Board. She had withdrawn the suit without seeking permission from the Court to institute a fresh suit. Under the circumstances, the second suit in respect of the same claim is barred by Order XXIII rule 1(3) Civil Procedure Code and the Courts below have passed correct orders. 6. The only point that has been urged in this revision is whether the decision in appeal will constitute a fresh and independent cause of action to a party to file a fresh suit where that party had withdrawn the suit in respect of the original order without seeking permission to institute a fresh suit. In order to appreciate the point in controversy in this revision, it is necessary to examine the provisions contained in Order XXIII rule 1 Civil Procedure Code, which is reproduced hereinbelow; "1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied-- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liabcrty in institute a fresh suit in respect of the subjectmatter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4).. 7. The only point that needs to be considered in this revision application is whether in the circumstances of the present case when no permission was sought to file a fresh suit at a time when the previous suit was withdrawn a fresh suit can be filed in respect of same subject-matter. Mr. Mir/a Mohammad Kazim, Advocate for the applicant argued that the second suit was competent as it was filed after the appellate authority had decided the case against the applicant which constituted a fresh cause of action. In order to ascertain if the filing of the second suit is barred by Order XXIII rule 1(3) Civil Procedure Code, one has to carefully examine the substance of the two suits and not to the form and language used in the plaint. The permission to file a suit is granted in respect of a "subject-matter" as dstint from "cause of action". "Cause of action" includes all facts that may be refevat to a subject-matter to entitle a plaintiff to get the relief claimed by him in the plaint. The facts that constituted the cause of action in respect of a subject-matter may be wider than the subject-matter itself. The legislature in rule 1 subrule (3) of Order XXIII Civil Procedure Code has intentionally used the term 'subject-matter" instead of cause of action. On examination of the two plain is filed in this particular case it transpires that both ihe plaints related to the same subject-matter i.e., refusal of the Karachi Cantonment Board to recognise the applicant to be in unauthorised possession of the plot in dispute so as to entitle her to the grant of lease in respect thereof. The case of Alberd Judali Judah v. Ramapata Gupta (AIR 1959 Calcutta 715) relied on by Mr. Mohammad Kay.im, Advocate for the applicant also supports such a-view. The other case cited by the learned Advocate for the applicant is not relevant to the facts of the present case. Since Mst. Meharunnisa had withdrawn the earlier suit filed by her without seeking any permission to file a fresh suit, the second suit filed by her on the same subject-matter is barred by sub-rule (3) of rule 1 of Order XXIII Civil Procedure Code. Under the circumstances her plaint was rightly rejected. 8. For the foregoing reasons, this revision application is dismissed with no order as to costs. (MBC) Revision dismissed.

PLJ 1990 Karachi 585 PLJ 1990 Karachi 585 Present: MUHAMMAD MAZHAR Ali, J M/s NADIR BROTHERS-Appellanls versus Haji MUHAMMAD and another-Respondenls First Rent Appeal Nos. 761 & 762 of 1988, accepted on 15.3.1990 (i) Sind Reuted Premises Ordinance, 1979 (XVII of 1979)-- — -S. 21"Tcnant"Ejectmcnl of-Challenge to-Whether impugned orders were interlocutory orders—Ouestion of—Rent Controller erred in dismissing appellants' applications and thereby not allowing an apportunity to appellants In file appropriate written statements or their defence so as to enable Rent Controller to decide case on merits—Held: Impugned orders passed by Rent Controller are of an interim nature in asmuch as real controversy between parlies still remained to be decided and proceedings were necessarily to be continued lo achieve (fiat cud— Impugned orders sc( aside and eases for decision on merits. [P.590]C NLR 1981 Civil 692, PLD 1981 Kar. 500 and 1986 CLC 43 ml. NLR 1985 UR 448 not relevant. (ii) Words and Phrases-- —Word "interim"—Meaning of—Word "interim" means intervening time, intervening, provisional, temporary or lor lime being. [P— |A Oxford Dictionary and Strouds Judicial Dictionary, 3rd Ed. ref. (iii) Words and Phrases— —Word "interlocutory"—Meaning of—Word "interlocutory" means an application or order or judgment which is made during pendency of litigation or final determation. " [P.587JB Mannual of Law Terms & Phrases by H.Sarkar (7th Ed.) ref. Mr. Naseem Ahmad, Advocate for Appellants. Mr. N.K. Jatoi, Advocate for Respondents. Dates of hearing: 1, 14 and 15.3.1990. judgment For the sake of convenience, 1 propose to decide these two appeals brought at the instance of tenants to call in question the orders dated 1st November, 1987 and 9th August, 1988 passed by the learned 1st Senior Civil Judge & Rent Controller, Karachi-South, in Rent Case Nos. 841 and 842 both of 1987. The facts in so for as they are relevant to decide these appeals are these. The respondents are owners/landlords of Agaria Building, situated on plot No.L.R.4-1-2, off Nishtar Road, Karachi and the appellants are their tenants in respect of shop Nos. 3 and 4 on a monthly rent of Rs. 300/- and Rs. 400/- respectively. 2. On 21.5.1987, the respondents filed two separate applications under Section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordnance") for evidction of the appellants from the aforesaid premises on the grounds of (1) personal bonafide requirement of their two grown up sons named Sabir Hussain (29 years) and Zafar Yab Hussain (27 years), respectively, and (2) carrying out alterations and addition in the demised premises thereby impairing the value thereof. The appellants put in appearance through their attorney Moulana Abdul Quddus Bihari and presented an application (which is available at pages 25 and 27, respectively, of the second part of the R &• P), slating that the property in question is an avacuee property and hence no rent case could be filed in respect thereof. 3. On behalf of respondents affidavit-in-evidence was filed by Haji Muhammad son of Nathu Bhai, the respondent No. 1 and attorney of the respondent No. 2. On 19.7.1987, as per order sheet entry, the Rent Controller put off the cases to 15.8.1987 for written statement and cross. On the above mentioned last date, Mr. Zahid Alvi, advocate filed power on behalf of the appellants and also filed an application under Section 151 read with Section 148 C.P.C., separately in both the cases seeking permission to file written statement. The learned Rent Controller after issuing notice of these applications to the respondents dismissed them on 1.11.1987, with the observations that the application in each case, filed by Mr. Abdul Quddus Bihari was in fact written statement and since there is no provision in Rent Restriction Ord. for filing any written statement or additional written statement, hence the application was without merit. The appellants' counsel then cross-examined the writnesses of the rcjjHHadenis and also filed the affidavits of (1) Badruddin and (2) Salahuddin in R.C. No. 841/87 and (1) Nasir Khan, (2) Salahuddin (3) Dr. Anjum Sohail Ra-sheed and (4) Abdul Majeed in Rent Case No. 842/87. 4. The learned Rent Controller vide his identical impugned orders dated 9.8.1988 passed separately in each case, has allowed the applications and directed the appellants to vacate the respective demised premises as slated above. Hence these appeals. The learned Rent Controller formulated three isssues in each case, of which the issue No. 1 regarding the existance of relationship of landlord and tenant between the parties and the issue No. 2. as to whether the premises is rcqurired by the respondents for use of their son in good faith, have been answered in the affirmative; whereas the 3rd issue pertaining to carrying out the alterations and additions in the demised premises without the consent of the respondents, has been replied in the negative. 5. When these appeals came up for hearing before me on 1st March, 1990, the learned counsel for the appellants attempted to argue that the order dated 1 st November. 1987 passed by the learned Rent Controller in each case, was improper and illegal. It was, however, contended by Mr. N.K. Jatoi, advocate, the learned counsel for the respondents that the appellants were not legally entitled to do so on account of their having failed to file appeals against those orders within the Salmon period of thirty days. According to Mr. N.K. Jaloi, the said orders dated 1st November. 1987, being final orders were appealable. Mr. Nacem Ahmed, advocate, the learned counsel for the appellants, on ihe other hand, submitted tha,t they were interlocutory orders and hence no appeal could legally be filed against them. The hearing was, therefore, adjourned to provide an opportunity to Mr. N.K. .fatoi to study the case law and make his submissions in this behalf. It has now been argued by the learned counsel for the respondents that the word 'interim' as per Concise Oxford Dictionary means 'intervening lime; intervening; provisional, temporary'. The same word is defined in the Slrouds' Judicial Dictionary, 3rd Ed. as "for the time being". He then referred lo ihe meaning of the word 'interlocutory' as given in the Mannual of Law Terms & Phrases by H. Sarkar (7th Ed.). It reads as follows: 'an application or order or B judgment which is made during the pendency of litigation or finally determining it.' Mr. N.K. Jatoi also relied on ihe following cases:— (/) Wahid Bux Soomro v. Glutlain Muhammad Baluch. (NJL.R. 198.1 Civil 692) 6. In this case the ex-parte order of ejectment was passed on 28.2.1980 and the respondent was ejected in execution ihcreof on 14.5.1980. The respondent filed an application on 15.5.1980 for setting aside the ex-parte order and for restoration of possession which was granted by the learned Renl Controller on 20th may, 1980. The appellant-landlord hereupon filed an appeal in this Court. A preliminary objection was raised by the counsel for the respondent that the impugned order, being interim order was not appealable. It was, on the other hand, pleaded by appellants' counsel, thai order under appeal was inlerloculory order, bul not an interim order, and hence the appeal was competent u/s. 21(1) of the Ordinance. Ajmal Mian, J. (as he then was), alter referring to ihe definitions of the words 'interim' and 'interlocutory' as given in Ballcntincs Dictionary, 3rd Ed. and the case law cited before him, reached the conclusion that it was an interim or an interlocutory order &as the case remained pending before the Rent Controller; hence he held that the appeal was not competent because of the express provisions provided for in Sec. 21(2) of the Ordinance. Consequently the appeal was dismissed being incompetanl. (//') Hafeezuddin v. Muhammad Suleman. (PLD 1981 Kar. 500) 7. This appeal was filed to assail the order passed by the teamed Rent Controller dated 13th May, 1980 whereby it was held thai there existed a relationship of landlord and tenant between the appellant and the respondent. The question before this Court was whether the said order was an 'interim order or a final order and, consequently, whether the appeal was competent under Section 21 of the Ordinance. It was contended on behalf of the appellant-tenant that since preliminary issue, which related to the assumption of jurisdiction by the Rent Controller, was disposed of, after recording the evidence, it cannot be considered as an "interim order" as envisaged by Section 21 of le Ordinance. According to the counsel for the appellant, the decision of the Controller on the preliminary issue was final and on the basis of analogy of Section 11 C.P.C. it would be res jttdicata and cannot be agitated in subsequent appeal, if any, filed on merits. It was, on the other hand, contended by the counsel for the respondent-landlord that the appeal was not competent as it had been filed against an interim order of the Controller passed on preliminary issue relating to relationship between the prlics and the appellant had a legal right to assail the finding on the disposal of the original ejectment application. The learned Single Jiidg held as under:— "The mere fact, that an issue as to jurisdiction has been decided, cannot be ground for granting a right of appeal, when on the wording of relevant provisions, it is not possible to do so keeping in view (xic) laid down by Hon'ble Supreme Court in this authority, since Section 21 of the Sind Rented Premises Ordinance, 1979, has not provided an appeal in respect of such orders, which do not dispose of the entire application initialed under the provisions of the said Ordinance. herefore, I am of the opinion, thai impugned order is only an "interim order" for purposes of assuming jurisdiction and as such the appellant has a legal right to challenge the finding whin is a subject-mailer of the impugned order, in a regular appeal, on disposal of the ejectment application on meris, if such disposal goes against him and as such the above appeal is not maintainable, as being one against an "interim order", which is only related to the assumption of jurisdiction and does not dispose of ejectment applialion filed by the respondent." (///') Syctl Muintaz Hmsain v. Muhammad Ismail. (N.L.R. 1985 U.R. 448) 8. This appeal in this Court was filed against the order of the Controller, dated 14th October, 1982 whereby he ordered that the rent case filed before him be stayed till the decision of another case filed earlier by the landlord. The landlord in ihis case filed a rent application on the ground of defaull, which was pending before another Rent Controller, hence vide his impugned order he stayed ihc proceedings of ihc case filed before him under Section 14 of the Sind Rented Premises Ordinance, 1979 with thhc observations that there is likelihood of conflict in judgments between two Courts, ll was agitated in appeal before this Court that the impugned order that 14th October, 1982, was not a final order and hence it was not appealable. Reliance was placed on the case of Hafi/uddin (supra). A learned Singe Judge held the appeal to be competent with the following passing observations:— " The judgment of the Rent Controller by staying the proceedings sine die is arbitrary and contrary to law therefore in my view it is appealable." 9. No case law or process of reasoning is available in the above judgment which persuaded the learned Single Judge to hold the impugned order to be final, ll is, therefore, in my opinion, not of much assistance in resolving the issue in hand. And 1. therefore, find it difficult to follow il. (/V) (jimlaxinal . Pahlaj Rain and another (1986 C.L.C. 43). 10. In this mailer ihc order passed by the Controller, dated 14.10.1984, refusing to strike off the defence of ihe lenanl-respondenl in a pending rent case, was the subject matter of appeal. The appeal came up lor hearing before my brother Saceduz/aman Siddiqui. .1.. who inquired from the counsel of the appellant as to how the appeal was maintainable nder Section 21 of the Ordinance, as the impugned order did not have the effect of having concluded the controversy before the Controller and, therefore, for all practical purposes il was an interim order within the meaning of Section 21 ibid. The appellants counsel cited 1110 decisions, both recorded on appeals filed under Section 15 of the repeated Ordinance VI of 1979. to contend that the appeal was maintainable. My learned brother Sacedu//aman Siddiqui also proceeded to note the other two authorities cited in two authorities on which the counsel for the appellant placed reliance as well as other several reported cases. His lordship also at length examined the difference between the repealed Ordinance VI of 1979 and ihe present Ordinance XVII of 1979 and ultimately held that the order under appeal aaainsi ihe tenant was not a final order but only an interim order and, consequently, the appeal against it was not maintainable. 1 think it appropriate rather advantageous to reproduce the following observations made in the said judgment appearing at pagc-52 of ihe report:-- "Further, in my humble view the real test to hold whether an order passed by the Rent Controller is (of) interim nature or a final order will depend Iuriivl\ on the consequences (lowing Irom that order. In my most humble view il the order appealed auainsl did not terminate the proceedings Ivl'ore the Rent Controller il should be treated for all practical purposes as an order interim in nature whereas if the effect of such an order is to terminate the proceedings finally pending before ihe Rent Controller il .should be held to be an order which is final in nature, ll, therefore, necessarily follows that an order which only decides the matter which is incidental and collateral to the main proceedings is to be treated as interim/ interlocutory order whereas if the order passed by the Controller encompasses the whole gamut of the dispute before the Controller it is a final order." In all the above cases cited by the learned counsel for the appellant barring the case reported in N.L.R. 1985 U.R. 448. it is held that all orders which do not result in finally deciding the main mailer or dispule are inlerim orders and appeals againsl them are nol maintainable. 11. In the instant case the impugned orders passed by the Rent Controller on 1st Nov.. 1987 are in my opinion, of an inlerim nature inasmuch 'as ihe real conlroversy between ihe parlies still remained lo bv decided and proceedings were necessarily lo be continued lo achieve that end. It would not be out of place lo slress here thai ihe said applicalions filed by Moulana Abdul Ouddus Bihar], ihe attorney of the appellanls, have been placed in the second part of ihe Controllers' record, which by itself manifestly indicates that they were treated as miscellaneous applications. Had they been taken to be ihe written statements then they would have been filed in the 1st part of the R&P. Even otherwise. 1 do nol entertain any doubt whatsoever that the objections filed by the attorney of ihe appellanl were in the nature of preliminary objections to the jurisdiction of the Renl Controller. If ihe learned Controller would have upheld the preliminary objections ihen, of course, il would have been final orders so as to give a right to ihc respondents/landlords to file appeals againsl ihem under Section 21 of ihe Ordinance. The learned Rent Controller, therefore, erred in dismissing ihe appellants' applications vide his orders dated 1.11.1987 and thereby not allowing an opportunity to the appellants to file appropriate written statements or their defence so as lo enable the Renl Controller It) decide the case on merits. The order dated 1.11.1987 passed by the learned Renl Controller, therefore, deserves lo be set-aside. The proceedings from that stage onwards adopted by the Rent Controller, and culminating in ihe passing of the impugned orders dated 9th August, 1988 are. therefore, also to be held bad in law. The result, therefore, is thai both ihe appeals are allowed and the impugned orders dated 1st November, 1987 passed on the applicalions of the appellanl and so also ihe final orders dated 9.8.1988 are set-aside and ihe cases are remilled lo ihe learned Rent Controller with a direction lo provide the appellanls an opportunity to file written statements within reasonable lime and ihen lo proceed further from that stage ownards lo dispose of the case as expediliously as possible in accordance with law. The parlies are left lo bear iheir own cosls. (MBC) Appeals accepted.

PLJ 1990 Karachi 590 (DK) PLJ 1990 Karachi 590 (DK) Present: NASIR ASLAM ZAHID AND saLahUddin mirZa JJ Syed TANWEER HUSSAIN ZA1DI ADVOCATE-Pelitioner versus FEDERAL GOVERNMENT OF PAKISTAN-Rcspondent. Const Petition No.825 of 1990, dismissed on 21.10.1990. Coastitotion of Pakistan 1973- -Arts39, 243, 244, 245 and 259--Sending of Troops to Saudi Arabia-Challenge to--Whether provisions of Constitution were violatcd-Question of-- Contention lhat Federal Government has given impression that Pakistani troops have been sent to Saudi Arabia for protection of holy places but in fact, they will be deployed in war against Iraq-No reason has been advanced why statement on behalf of Federal Government should not be accepted-No material has been brought on record except bare statement of petitioner that troops have been sent for some other purpose—Held: Government has not violated any provision of Constitution by sending iroops to Saudi Arabia to protect holy places-Petition dismissed. |Pp.592.5 l M.5 t

5 < &59()|A.B.C&D Mr. Slwukat Muhammad, Advocate for Petitioner. Mr. S. Sharifuddin Pinada, Advocate for Respondent. Date of hearing. 17.10.1990. order Nasir Aslam Zahid, J.—We had heard the arguments of Mr. Shaukat Muhammad, learned counsel for the petitioner, on 10.10.1990, when this matter had come up before us for katcha peslii. We had also heard Mr. Syed Sharifuddin Pir/ada, learned counsel appearing for Federal Government pursuant to notice. On conclusion of the submissions of the learned counsel, by a short order, this petition was dismissed in limine. Reasons for dismissal of the petition are contained in this order. 2. The petitioner in this Const. Petition is aggrieved by the action of the Federal Government of Pakistan (the respondent) in sending Pakistani troops to Saudi Arabia. The petitioner has made the following prayer in the petilion:- "It is respectfully prayed lhat this Hon'blc Court may be pleased to declare that the despatch of our troops to a foreign country is ultra vires of the Constitution of Islamic Republic of Pakistan, 1973. 3. There are olnly three (3) grounds taken in the petition and these arc (a) the mobilisation of our troops to Saudi Arabia is un-conslitutional; (b) the Iraqi invasion of Kuwait or threat of Iraqi invasion on Saudi Arabia or danger to the Pakistanis living in Saudi Arabia, does not empower the respondent to dispatch our troops to Saudi Arabia and (c) the Constitution contains only five Articles vix. Articles 39, 243, 244, 245 and 259 which do not allow the respondent to send our troops to another country except a country with which Pakistan is at war and the Constitution docs not empower the respondent to send troops to defend our holy places. 4. As Mr. Syed Sharifuddin Pir/ada was representing the Federal Government of Pakistan, we had asked him about the reasons for the despatch of Pakistani troops to Saudi Arabia. Mr. Syed Sharifuddin Pir/ada iformed that some Pakistani troops have been sent to Saudi Arabia to protect the holy places at Mecca and Medina and this, has ben done on the request of Saudi Arabian Government. It was made clear by Mr. Syed Sharifuddin Pir/ada lhat Pakistani troops have been sent to Saudi Arabia solely for the purpose of prolection of ihe holy places and for no other purpose. 5. Mr, Shaukat Muhammad, learned counsel for the petitioner, submitted that the Federal Government has given the impression that Pakistani troops have been sent to Saudi Arabia for protection of the holy places but in fact Pakistani troops will be deployed in the war against Iraq. In the matter of foreign relations, generally, the statement on behalf of the Federal Government is accepted. On behalf of the Federal Government, a clear and unambiguous statement has been made that, on'the reuqcsl of Saudi Arabian Government, Pakistan has sent troops to Saudi Arabia for the sole purpose of protecting the holy places. No reason has been advanced why this statement should not be accepted. This statement cannot be challenged by the petitioner. Even olhcwise, no material has been placed on record by the pertilioncr, except a bare allegation, that troops have been sent for some other purpose. Ground No. 2 taken in the petition has accordingly no merit. 6. Ground No. 1 taken in the petition is connected with ground No. 3. The petitioner has relied upon five Articles of the Constitution to contend that Pakistani troops could not be sent to Saudi Arabia. The Articles relied upon by the petitioner are reproduced as unden- "39. Participation of people in Anncd Forces. The State shall enable people from all parts of Pakistan to participate in the Armed Forces of Pakistan. 243. Command of Aimed Forces. (1) The Federal Government shall have control and command of the Armed Forces. (IA) Without prejudice to the generality of the foregoing provision the Supreme Command of the Armed Forces shall vest in the President. (3) The President shall, subject to law, have power;- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan, and the Reserves of such Forces. (b) to grant Commissions in such Forces, and (c) to appoint in his discretion the Chairman, Joint Chiefs of Staff Committee, the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff, and determine their salaries and allowances. 244. Oath of Armed Forces. Every member of the Armed Forces shall make oath in the form set out in the Third Schedule. 245. Function of Armed Forces.() The Armed Forces shall, under directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. (2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court. (3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan arc, for the time being, acting in aid of civil power in pursuance of Article 245. Provided that this clause shall not he deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power. (4) any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting. 259. Awards. (1) No cilix.cn shall accept any title, honour or decoration from any foreign State except with the approval of the Federal Government. (2) No title, honour or decoration shall be conferred by the Federal Government or any Provincial Government or any cili/cn, but the President may award decorations in recognition of gallantry, meritorious service in the Armed Forces, academic distinction or distinction in the field of sports or nursing, as provided by Federal law. (3) All titles, honours and decorations awarded to cili/cns by any authority in Pakistan before the commencing day otherwise than in recognition of gallantry, meritorious service in the Armed Forces or academic distinction shall stand annulled." 7. Mr. Syed Sharifuddin Pir/.ada, .appearing for the Federal Government pursuant to notice, has submitted that none of the articles of the Constitution, relied upon by the petitioner, placed any restriction on Pakistan Government to send troops to Saudi Arabia for protection of our holy places. He further submitted that as member of the Organisation of Islamic Conference (QIC) and United Nations, Pakistan is obliged to send armed forces abroad if required by such Organisation or the United Nations. It was also submitted that Pakistan was a member of South East Asia Treaty Organisation (SEATO) and CENTO and that Pakistan had sent its troops to Congo in 1962 and Nimibia in October 1960 in compliance with the resolutions passed by the United Nations. It was also informed that in 1983, at the request of Saudi Arabia, Government of Pakistan had sent its troops to Saudi Arabia and such troops remained there till February, 1988. Reference. was also made to the deployment of troops by the Indian Government to Maklevcs at the request of the Government of Maldcves. Reference was also made to the scige of the Haram in 1980 for about 3 days and (hat to deal with such emergency, Pakistan Government had been requested to send its troops but before such troops could be sent, situation was brought under control. Reference was also made to Article 40 of the Constitution, which reads as follows: - "40. Strengthening bonds with Muslim world and promoting international peace. The Slate shall endeavour to preserve and strength fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly rdbliuws among all nations and encourage the settlement of international disputes hy peaceful means. 8. Article V) relied upon by the pctiiioncr provides th cnahkr people from all parts of Pakistan to pjnkipjtc in the Pakistan. This article is not relevant to the issue nmscd K line 259 makes provision about awards, and is afco Kit. ndkxui ita line at the State shall Armed Forces of petitioner. Article : in question. Article 243 makes provision about o; According to clause (1) of Article 243, the Federal and command of the Armed Forces. By clause (l%)dtT Command of the Armed Forces shall vest in the Article 243 makes provision about raising and main! by the President and about the grant of commission appointment of the Chairman. Joint Chiefs of Staff Com the Army, Naval and Air Staff and to determine their Article 243 also does not help the contention raised on bahalf ID. Article 244 requires making of oath by all the me; Forces. The form of the oalh is set out in Third Schedule to the oalh. inter alia, provides that the members of ihe Armed Forces si faithfully serve Pakistan in the Pakistan Army, Navy or Air Force and under the law. By serving as part of the contingent senl lo Sa protect the holy places there, the members of our Armed Forces contingent have not violated their oath. c 11. Article 245 (1) provides that the Armed'Forces shall, under the dir of the Federal Government, defend Pakistan against external aggression or t| of war. and, subject lev law, act in aid ol civil power when called upon to dol Other clauses of Article 245 have reference lo a .'situation where Armed Fore have been called to act in aid of civil power. Article 245 does not restrain Pakistan 1 from enlerring into military pacts or to become member of ..International or Muslim Organi/ations. Under the charter of QIC and the United ations, Pakistan can be required to act in aid of the Muslim Umma or the World Body through deployment abroad of Pakistan Troops. In our view, if ihe people of Pakistan wanted to place any restriction on the deployment of Armed Forces of Pakistan at the call of the Muslim Umma or ihe World Body under the United Nations Charier or entering into military pacts with foreign countries, specific restraint .to that effect would have been incorporated in the Constitution. 12. We are of ihe view lhat Pakistan- Government has not violated any provision of the Constitution by sending its troops to Saudi Arabia to protect the holy places there at ihe requet of the Saudi Arabian Government. Such action is not unconstitutional. For the aforesaid reasons ihis petition was dismissed in liniinc by our short order dated lO.lO.lW). Sulahucldin Mirza, J.~I had the benefit of seeing ihe order of my learned brother Mr. Nasir Aslam Zahid, J. and. while 1 agree with his observations I would like to add a few lines of my own. 2. The petitioner is aggric%'ed from the decision of the Government of Pakislan to send military personnel to Saudi Arabia at the request of the Saudi Government. According to him Pakistan has no business to meddle in the dispute between Saudi Arabia and Iraq, the troops are being sent to lake part in the war between the two countries and not to protect the Holy places ol Mecca and Medina, as claimed by the Government, because Iraqis are Muslims who cannot commit aggression against the Holy places of Islam. According to ihe petitioner, action of the Government is ultra vires of the constitution of the Country and violates the provisions of Articles 39, 243, 244, 245 and 259 thereof. He. therefore, prays for the following relief: It is respectfully prayed thai this Hon'ble Courl may be pleased to declare that the despatch of our Iroops to a foreign country is ultra \irc.\ of the Constitution of Islamic Republic of Pakistan. 1973". 3. With the help of learned counsel of the petitioner, we have gone through all those, Articles of the Constitution which, according to the learned counsel, have been violated by the impugned decision of the Government, namely, Articles 39, 243, 244, 245 and 259. A persual of these Articles shows that they do not place any embargo on the power of the Government to end military personnel over-seas. The Government is therefore free to send them anywhere in the world, and not merely to Muslim countries only, and for any purpose whatsoever, not just the defence of the Holy places of Islam. Perhaps learned counsel of the petitioner was not aware that till recently Japan was the only country of the world whose Constitution forbade its Government to send its military personnel over-seas but even "il" has amended ils Constitution, permitting the sending of Japanese military personnel oter-scas and falling in line with the countries of the rest of the world. 4. Mr. Sfaarifuddin Pri/ada, learned counsel of the respondents, also pointed out thai sending troops over-seas is not a new phenomenon and that Pakistani troops bad been sent over-seas even in the past, for example to Nimibia in I960, to Congo in 1962 and even to Saudi Arabia in 1983. either at the initiation of the Governinat of tht>sc countries or at the call of International Organisations or under ireatt 1 obligations, and that as a member of Organisation of Islamic Con/ercBce (O.I.C). United Nations, South East Asia Treaty Organisation and C E N TO, Pakistan was under obligation to send its military personnel over-seas at the call of (hose Organisations, and not merely for defensive purposes or to defend Holy Ma^Iim places and no Constitution, either the past ones or the current, came in the way of these decisions or these treaties. Learned counsel of ihe respondents also pointed out the sending out by the Indian Government of its Naval, Air Fiwcc and Army personnel to Maldevc Islands, at the request of the Government of the Archipelago to repulse an attack by some mercenaries from Srilanka in collusion with local insurgents. To this we may add the sending by India of its armed forces to Srilanka at the invitation of its Government or the stationing of the troops in Germany by Americans and other European nalions nder the umbrella of North Atlantic Treaty Organisation or Ihe stationing of Soviet troops in Eastern Europe under the umbrella of Warsaw Pact. j 5. We note thai Government of Pakistan has repeatedly made it celar that our troops have been sent to Saudi Arabia purely for the defence of Mecca and Medina, the two most Holy places of Islam. Learned counsel of the respondents also made this very clear in his address to the Court. The petitioner has not placed any material before the Courl to doubt the veracity of the statements of the Federal Government and we see no reason nol to lake them al their race-value. However. \ve are of the view lhat there was no occasion for the Government lo be apologetic on this issue as the Constitution places no restrictions on its power to send its military personnel anywhere in the world and tor whatever purpose, whether under t ; niled Nations Charter, under regional treaties or under bilaleral agreements. 6. We are of the firm view that the impugned action of the Government has not violated any provision of the Constitution and there is no merit in the (contentions raised by learned counsel of the petitioner. 7. These arc the reasons for the short order by which we had dismissed this petition in liininc after hearing learned counsel of the parties on 1()lh October 1WO. (MBC) Petition dismissed.

PLJ 1990 Lahore 1 (DB) PLJ 1990 Lahore 1 (DB) Present: abdul shakurul salam, CJ AND fazal KAR1M, J MUHAMMAD TUFAIL-Petitioner versus PUNJAB LOCAL COUNCILS ELECTION AUTHORITY and 4 others- . Respondents. Writ Petition No. 6255 of 1989, allowed on 5-11-1989. (i) Punjab Local Government Ordinance, 1979 (VI of 1979)- —-S.17~Election of Chairman Union Council-Setting aside of--Challenge to- Whether Election Authority had jurisdiction—Question of—If some people boycott an election and others remain absent, result of election cannot be nullified-Held: Once election is held and return of election is submitted by Presiding Officer to Deputy Commissioner for publication, then election caa only be challenged through an election Petition—Held further: Election having been held in this case, whether it was illegal or void, neither respondent No. 5 nor Deputy Commissioner had any right to invoke jurisdiction of Election Authority under Section 17(1) of Ordinance—Petition accepted. [Pp. 12&13]F, G&H (ii) Punjab Local Government Ordinance, 1979 (VI of 1979)- —S.17-Election of Chairman Union Council-Settuig aside of~Challenge to— Whether Election Authority had jurisdiction—Question of—Once an election • is held, only method to challenge it is through an election petition before Election Tribunal and no recourse can be had to Section 17(1) of Ordinance- -Held: Until election is held, jurisdiction of Election Authority is pervasive but once election is held, whether election is illegal or void, jurisdiction vests with Election Tribunal and that of Election Authority under Section 17(1),% excluded by express provisions of Section 17(2). [Pp. 9&10]C • a \ (iii) Punjab Local Government Ordinance, 1979 (VI of 1979)- \S.17~Election of Chairman Union Council—Setting aside of—Challenge to-Whether Election Authority had jurisdiction—Question of—Presiding Officer had submitted return and declared Petitioner as elected on basis of votes received by hini--If respondent No. 5 could not file election petition due to non-issuance of notification, he could wait-Held: Hurry and non-awaiting of event for commencement of an action will not confer jurisdiction on Election Authority which it did not possess, nor denude Tribunal who would iave exclusive jurisdiction on commencement of action. [Pp. 10&11JD&E PLD 1963 SC 652 re/, (iv) Punjab Local Government Ordinance, 1979 (VI of 1979)- —S.17~Election of Chairman Union Council—Setting aside of~Challenge to— Whether Election Authority had jurisdiction—Question of-Sub-section (1) of Section 17 authorizes Election Authority to issue instructions or pass orders for conducting election honestly, justly, and fairly—Held: It does not envisage adjudication of election held—whether legally or otherwise—Held further: Impugned election could be challenged under Sub-section (2) before Election Tribunal by an election petition and jurisdiction of Election Authority under sub-section (1) stood excluded. [Pp. 6&7JA&B 1981 SCMR 919,1982 SCMR 1086 and PLD 1983 Lahore 488 distinguished 1985 SCMR 729 relied Mr. Faqir Muhammad Khokhar, Advocate for Petitioner. Mr. Irshad Ahmad Qureshi, Advocate for Respondent No. 5. Nemo for Respondents Nos. 1 to 4. Dates of hearing: 4 & 5-11-1989. judgment Abdul Shakuml Salam, CJ.-Relevant facts for disposal of this petlliaA are that election to the office of Chairman, Union Council BaOaimaJft ^rapM-and District Sialkot was scheduled for 6th March, 1989. Tune fixed was 1140 aan. By 10.45 a.m all the 24 Councillors were present. Before the flirt of actual proceedings a scuffle broke out between the parties and some CoMlKilkxs started beating each other. On receipt of a wireless message from the Fresidug Officer, Returning Officer and the D.S.P. reached the spot at about 1130 ajn. and controlled the situation. Some of the Councillors in the meanwhile had left the election hall. The Returning Officer directed the candidates to btwg the Councillors to the hall by 12.30 p.m. and announced that election wtild be held at that time. Twenty councillors appeared. Ten voted for the petitioner. Qtili$r ien boycotted. The Presiding Officer declared the petitioner elected. He forwarded the return to the Deputy Commissioner who signed a draft Notification and sent it for publication to the Secretary, Punjab Local Councils Election Authority, Lahore along with a covering letter giving aforesaid facts vide memo, dated 9-3- 1989. A day earlier the other candidate, respondent No. 5.had sent a notice along with copy of Election Petition to the petitioner intimating that the was going to fie an Election Petition before the Election Tribunal against the election of the petitioner as a Chairman. According to the learned counsel for the respondent: No, 5 no Election Petition was, in fact, filed. Instead an application under S,17(l) • of the Punjab Local Government Ordinance, 1979 was filed before the Election ':» Authority on 15-3-1989. 2. The Election Authority has passed the following order:-- "12. So far as the factual position is concerned not only pleadings of the '4 jf parties and oral arguments but the record also shows that the proceedings of the poll could not be commenced at the stipulated time viz. 11.00 AM. and stood adjourned for whatever reason it may be. The fact is that the poll was started at 12.30 P.M. There is no doubt that some of the members/voters entered into scuffle and also threw chairs on each other. The proceedings of the poll were seriously obstructed. The ablation was so tense inside as well as outside the hall of the building ; tike poll was to be conducted that the intervention of police under 1107/151 of Cr. P.C. was necessitated. The copy of report of fte 1 by the petitioner, the parawise comments of I a copy of the police report No. 18 dated 6-3- Pofice Station Hajipura, District Sialkot abundantly prove the existence of an abnormal situation and the occurrence of quarrel between the contesting candidate!; and their supporters. 13. The proceedings of the poll were essentially interrupted to such an extent which created a situation envisaged by Rule 28 of the Punjab Local CooncOs (Election) Rules, 1979. The occurrence of violence coupled with' the fact that all the 24 members could not reassemble in the later session had in fact rendered it obligatory for the Presiding Officer or the Returning Officer to adjourn the poll and seek necessary instructions from the Election Authority for further action in the matter. The Returning Officer was not competent to fix fresh schedule for taking the adjourned poll. 14. Even otherwise, the poll as held has no genuine bearing. Only 10 ot£ .- 33 of the 24 members of a local council cannot be allowed to determine && fate of the election of Chairman particularly when 4 members were not ; present at the time of adjourned poll who were admittedly present earlier •" and not shown to have been served for the poll allegedly held at 1230 ' P.M. and 10 did not participate in the poll and not marked present out of, the 20 present. The subsequent meeting was, therefore, no meeting in the eyes of law. The result of election drawn by the eturning Officer of the Presiding Officer on the basis of such a meeting would also be a nullity. . The irresistable conclusion that can be drawn in such a situation is that in the legal sense there was neither a determination of the result of election nor could there be any question of its announcement. 15 The result of election having not been drawn and announced in accordance with law, the previsions of sub-section (2) of Section 17 do not come into operation and the Election Authority is fully possessed of jurisdiction to make such an order as may in its opinion be necessary for' ensuring that the election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."The petition was accordingly accepted, the proceedings of the election in dispute were set aside and fresh election was directed to be held. This is vide order dated 18.9.1989. This is challenged by the petitioner through the afore-titled petition. 3. Learned counsel for the petitioner read out Section 17 of the Punjab Local Government Ordinance, 1979 which is to the following effect:- "(1) The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the Rules and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules. (2) Nothing contained in sub-section (1) shall be construed to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance." He submitted with reference to sub-section (2) that sub-section (1) of Section 17 shall not be construed "to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance. The contention of the learned counsel for the petitioner is that the election held at 1230 PJvl. was perfectly valid and even if at worst it was void, it could still be challenged under Rule IS of Punjab Local Councils(Election Petitions) Rule, 1979 which provides that:- The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of- (a) the failure of any person to comply with the previsions of theX5rd»nance or the Election Rules; or (b) the prevalence of extensive corrupt or illegal practice at the election." This being so, the Election Authority did not have the jurisdiction to invoke or exercise power under Section 17(1) of the Ordinance. 4. The contention of the learned counsel for the contesting respondent No.5 is that since the result of the election was not published in official Gazette as required under Rule 61 of the Punjab Local Council (Election) Rules,l979, no election petition could be filed under Rule 3(1) of the Election Petition Rules, 1979; therefore, the jurisdiction of the learned Election Authority under Section 17(1) of the Ordinance was rightly invoked. Rule 61, sub-rule(l) reads as follows: "(1) The Presiding Officer shall record the proceedings in writing and obtain thereon the signatures of such candidates as have witnessed the proceedings and may desire to sign the same and shall submit a return of election to the Deputy Commissioner, who shall publish the names of the elected chairman and vice-chairman in the Official Gazette—" Rule 3(1) of the Election Petition Rules is to the following effect: "An election petition shall be presented within thirty days next after the publication of the result in the official Gazette." Learned counsel referred to James Ilyas Masih vs. Punjab Local Councils Election Authority, Lahore and others (1981 SCMR 919) and read out the following observations at page 920: "Admittedly, no notification pertaining to the result of the election was issued in the instant case. Rule 3 of the Election Petition Rules lays down that an election petition shall be presented within 30 days next after the publication of the result in the official Gazette. Since no election petition could be preferred by respondent No.3 at that stage before the Election Tribunal, the provisions of section 17(2) of the Ordinance were not attracted to the case. The only course left open, in the circumstances, for respondent No.3 was to prefer a petition under Section 17(1) of the Ordinance before the Election Authority." He also referred to Tlie Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another (1982 SCMR 1086) and read out at page 1090: "Sub-section (2) of Section 17 does not appear to be a provision which was intended to restrict the general and plenary power of superintendence conferred by section 17(1) of the Ordinance and there appears to be force in the submission that the interpretation placed by the Division Bench of the High Court ousting the jurisdiction of the appellant Election Authority to take any remedial action until after the election has taken place i.e. when the result of the poll has been notified under Rule 41(2) of the Punjab Local Councik(Election) Rules, 1979 would appear to defeat the mandate of the law given in section 17(l)"lhat the Election Authority must see that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance, and Rules." It was further observed: "It is true that in the terms in which section 17(1) is couched all disputes and election irregularities could be dealt with thereunder. However, Section 24 of the Ordinance provided that 'no election shall be called in question except by the election petition'. Therefore, in order to clarify the kind of matters which can be enquired into by the Election Authority under subsection (1) and those matters which are to be enquired into by the Election Tribunals, subsection (2) of section 17 was added. This is evident from the terms of subsection (2) which provides that 'nothing contained in subsection (1) shall be construed to mean—' The use of the word 'construed' is clearly intended to clarify further that this provision is in the nature of a declaratory or a clarificatory provision, whereby the law. maker has interpreted subsection (1) of section 17, so as to ensure thatthe Election Authority remains on the right path. Irregularities, violation Election Tribunal. Undeniably, the impugned election could be challenged Uwww, the Election Tribunal by an election petition. This being so, jurisdiction under! sob-section (1) stood excluded. 6. Precedent cases relied upon by the learned counsel for the contesting. Despondent may now be referred to. In the case of James Ifyas Masih v. Punjab local Councils Election Authority, Lahore and others (1981 S.C.M.R. 919) there , were two candidates. Nomination of one was rejected by the Returning Officer. ib spite of acceptance of his appeal by the Deputy Commissioner, the Returning, Officer refused to honour the ordei and declared the other candidate elected. The . person whose nomination was rejected approached the Election Authority who directed the Returning Officer to consider him validly nominated candidate but the Returning Officer still refused to comply with order saying that he had already declared the result. The Election Authority on a petition under Section 17(1) of the Ordinance set aside the election and ordered fresh election. The declared famfcilffffchallenged the order of the Election Authority before the High Court. It was orged that since the result of the election had been declared it could only be . 1 through an election petition. The High Court rejected the plea on the flint the other person had not challenged the election of the petitioner in I'llUp term bat he had challenged the illegal rejection of his own a that neither candidate was a peasant and set aside the order of the ' Returning Officer accepting the nomination papers. The order was upheld by the Jearoed Supreme Court highlighting the powers of the Election Authority. It may, aoavacr, fc»' anted that no election, whether legal or otherwise, had been held. , it was stayed before being held. Further, it was observed in conclusion " it

oar/ those post election disputes, which can be taken up by Election Tdbaaoi by an election petition that have been excluded from the jurisdiction of lie Pf <i iT" Authorities and no other." Putting it differently in respect of pre the Election Authority wifll have juradklion \maet S.n\l) Wft is held and the dispute is post election in respect of anything relating jfe fag t6adcaseAA'A7tm0a f v. Efection Aufnorfty, fltnfad Locat Gavemmettt 2 often. (PLD 1983 Lah. 488) the Chairman had tendered his resignation but before its acceptance it was withdrawn. Nonetheless it was accepted and communication sent to Election Authority for Notification. The Chairman applied to the Election Authority saying that he had withdrawn his resignation. After enquiry, the Election Authority issued a memo, to the Deputy Commissioner that since the Chan-man had withdrawn the resignation before the meeting he continues to remain Chairman. This order was challenged in the High Court. The petition was dismissed holding that the Election Authority had the jurisdiction before issuing the Notification as to whether there was, in fact, an election, resignation or removal. Further, it was held that even if there were any doubt about its jurisdiction to do so, we are of the view that this is not a fit case for exercise of discretion in Constitutional jurisdiction because it will involve holding of fresh inquiry into facts and more importantly fresh election to the Local Council, are likely to be held were announced in October or November, this year and it is not desirable to upset the working of the Council and creating uncertainty". The case, it may be noticed, clearly did not relate to election. The latest pronouncement of the learned Supreme Court of Pakistan in Emmanual Masih v. The Punjab Local Council Election Authority and others (1985 SCMR 729) may be referred to: "The purpose of the entire exercise provided by the Election Laws beginning with the preparation of the Electoral Rolls and ending with the announcement of Election results is to hold elections in order to enable the voters to choose their representatives for the purpose of carrying out the Local Bodies or to the Provincial or Central Legislatives, as the case may be. This (purpose) constitutes the very foundation of the democratic process, as envisaged at present. All the measures in the Election Laws and Rules framed thereunder are directed towards this purpose and every effort has been made (by the Legislature) to ensure that nothing should impede the holding of elections. The law provides that it is only after the elections are over, that they can be challenged in a forum specifically provided by the said law itself and that too only on the grounds enumerated in the relevant rules. All provisions of the Punjab Local Government Ordinance, 1979 and the rules framed thereunder must, therefore, be read in the light of this all-pervading intention. It is indeed envisaged that the conduct of elections should be fair and honest and that is why the Election Authority has been given vast powers under section 17(1) of the Ordinance for ensuring that dishonest, unjust or unfair means-are not used during the conduct of the election. As held by this Court in the case of Malik Muhammad Aslam 1982 SCMR 108, the Election Authority "cannot be expected to stand by as an idle spectator" and can interfere in the process of elections whenever any dishonesty, illegality or malpractice etc., are brought to the notice during the conduct of the elections. The power of the Election Authority under section 1?(1), however comes to an end after the result of the election is announced (emphasis is ours) and from then onwards it is only the Election Tribunals set up under section 25 of the Local Government Ordinance, 1979 which, when moved by an appropriate person, can go into the question of the validity of the election of any particular person from any Electoral Unit and has the power to declare it void. This division of powers to deal with pre and post election complaints arose from the addition of three more subsections, i.e. subsection (2), (3) and (4) which were added to Section 17 of the Punjab Local Government Ordinance, 1979, by Ordinance XII of 1979. These have already been reproduced in paragraph No. 7 above. The reason for adding these subsections and the consequent division of powers is obvious. It would be recalled that the (fust) elections to the Local Bodies under Ordinance XII of 1979 took place on 25-9-1979, while these subsections were added to Section 17 of the Ordinance (through the 3rd Amendment), on 29-10-1979, i.e., about a month after the elections were over. The successful candidates had been notified 20 days earlier, on 9-10-1979 and it appears, that within those 20 days after the results were announced, a number of aggrieved persons i.e. the defeated candidates or their partymen, had filed complaints before the Election Authority under section 17(1) of the Ordinance, instead of resorting to the Election Tribunals through Election Petitions. Apparently it was to rectify this situation that the above noted provisions i.e. subsections (2), (3) and (4) were added to Section 17 of the Punjab Local Government Ordinance (XII) 1979. This view is reinforced by the provision of the newly added subsection (3) of Section 17, which lays down that any complaint under subsection (1) of Section 17 pending before the Election Authority on the date of the commencement of Ordinance XH of 1979 (Le. on 29-10-1979) shall be deemed to have abated. The net result of this amendment was that while the Election Authority was given extensive power to ensure impartiality, honesty and fairness while the elections where being conducted, it (i.e. Election Authority), became functus offico after the elections were over, and the validity of die elections could then be challenged by aggrieved persons only through election petitions, on grounds which during the pre-election period could be made the basis of complaints to the Election Authority under section 17(1).' Thus, it would be abundantly clear that once an election has been held the only 1 method to challenge it is through an election petition before the Election Tribunal and no recourse can be had to Section 17(1) of the Ordinance. By this section the Election Authority is conferred the jurisdiction "to issue instructions and exercise powers for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance." This is more in the nature of prospective operation for conducting the election. Once the election is held, subsection (2) lays down that subsection (1) shall not be "construed to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance." In other words, in respect of anything relating to an election, which has been held, invocation of subsection (1) of Section 17 of the Ordinance is not permissible and any matter relating to an election can then be called in question only before an Election Tribunal by an election petition. Not only the statutory provisions are clear but the judgments referred to above make it manifest that until the election is held the jurisdiction of the Election Authority is pervasive but once the election I is held, then whether the election is illegal or void that can be challenged only ! through an election petition before the Election Tribunal and the jurisdiction of 'the Election Authority under Section 17(1) of the Ordinance is excluded by ! express provisions of subsection (2) of Section 17. 7. A word may be said about he contention of the learned counsel for the respondent that since the result of the election had not been published by the Deputy Commissioner in the official Gazette as required under Rule 61(1) of the Election Rules and an election petition can only be filed under Rule 3(1) of the Election Petition Rules, 1979 within thirty days after the publication of the result in the official Gazette the contesting respondent No. 5 could not, therefore, file an election petition, hence the jurisdiction of the Election Authority under Section 17(1) of the Ordinance was available. Not only by circuitous argument no jurisdiction can be conferred on the Election Authority which was expressly excluded' in respect of anything relating to an election' which can be challenged only through an election petition before Election Tribunal nor can any rule operate to annul or amend the statutory provision, but also publication of the result in official Gazette is a ministerial act and Rule 61 of the Election Rules, 1979, relating to the election of a Chairman and Vice Chairman, Expressly lays down that the Presiding Officer "shall submit a return of the election to the Deputy Commissioner who shall publish the narre of the elected Chairman in the , official gazette.'The word "return" of election is a technical term and means that I the Presiding Officer shall tabulate who has got how many votes? In the case in hand, the Presiding Officer had submitted the return and declared the petitioner as elected on the basis of the votes received by him (See Annx.B), particularly the certificate at the end "Mr. Mohammad Tufail s/o Ch. Fazal Kariin who has j received the highest number of votes is hereby declared elected—". Further, if on | the submission of the return of the election the respondent No. 5 could not file an {election petition as contended and could only do so on the publication of the jname of the elected Chairman in the official Gazette, he could wait to file the D[ election petition. Hurry and non-awaiting of an event for commencement of an ' action will not confer jurisdiction on the Authority which it did not possess nor denude the Tribunal who would have exclusive jurisdiction on commencement of the action. The observations about non-notification in the precedent cases is with ! reference to the fact that election had not, in fact, taken place. Nowhere it was in ! issue that if election was held and was challengeable through an election petition before the Election Tribunal simply because of non-notification of the result the election can be challenged through an application under Section 17(1) of the Ordinance before the Election Authority. Reference may be made to Manziir-ul- Haq v. Controlling Authority (PLD 1963 S.C. 652 at 657) where it was held:- "It has to be pointed out at the same time that the mere existence of a provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand hi the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect —. Unless there be something in the language of a statute which shows that the person concerned will not commence to hold an office till there is a notification in the Gazette, a provision for a notification should not be interpreted as a condition precedent to the holding of an office." What is excluded from the jurisdiction of the Election Authority is anything! relating to an election which can be challenged by means of an election petition j before an Election Tribunal; and not necessarily straight away. The test therefore,; is whether the matter raised before the learned Election Authority was a matter I relating to an election, which can be called in question before the Election! Tribunal by means of an election petition. In other words, in view of the language; of section 17(2), the question that must be asked is whether the respondent No. 5 j could call in question the election before the Election Tribunal by means of anjE election petition? It is not denied that if the process had proceeded in due course 1 and notification of the result on the basis of 'return of the election' had been I issued and the Election Authority had not intervened under Section 17(1) of the I Ordinance, the respondent No. 5 could have challenged the election before the! Election Tribunal through an election petition. This is indisputable as well. '• Therefore, invocation or exercise of power under Section 17(1) of the Ordinance \ cannot have the effect of nullifying or stultifying the statutory provision under j SrelVMi 17(2) which had expressly excluded the operation of Section 17(1) and I conferred exclusive jurisdiction on the Election Tribunal. i 8. Although we have no intention of sitting on appeal over the order of the learned Election Authority and have no right to rejudge the facts, but in order to determine the scope of the jurisdiction of the Election Authority under Section 17(1) and of the Election Tribunal under Section 17(2) of the Ordinance, we may refer to certain facts and the observations of the learned Chairman of the Election Authority in the impugned order. The election time fixed was 11.00 a.m. At 10.45 a.m. all the 24 Councillors gathered and started quarrelling. The Presiding Officer could not control the situation, sent a message to the Returning Officer. The latter reached at 11.30 a.m. and controlled the situation. He asked the candidates to bring the Councillors by 12.30 p.m. for holding of election. Twenty attended. Ten voted in favour of the petitioner. Ten boycotted. Four were absent. Petitioner was declared elected. 'On facts', the learned Election Authority held in para 12 that The copy of report of the Presiding Officer produced by the petitioner, the parawise comments of the Returning Officer and a copy of the police report No. 18 dated 6-3-1989 registered at Police Station Hajipura, District Sialkot abundantly prove the existence of an abnormal situation and the occurrence of quarrel between the contesting candidates and their supporters." It may, however, be noted that the quarrel was at 10.45 a.m. before commencement of poll at 11.00 a.m. When it was held at 12.30 p.m. it is nobody's case that there was a quarrel. In para. 13, it was observed that: "The proceedings of the poll were essentially interrupted to such an extent which created a situation envisaged by Rule 28 of the Punjab Local Councils (Election) Rules, 1979. The occurrence of violence coupled with the fact that all the 24 members could not reassemble in the later session -.-:•• had in fact rendered it obligatory for the Presiding Officer or the Returning Officer to adjourn the poll and seek necessary instructions from the Election Authority for further action in the matter. The Returning Officer was not competent to fix fresh schedule for taking the adjourned poll." 9. Besides that Rule 28 relating to election of members did not apply to the election of the Chairman for which there were specific rules from 58 to 61 under Chapter VII of the Rules and only "the provisions of Chapter VI in regard to poll as far as may be, shall mutatis mutandis apply to the election of Chairman or Vice-Chairman of a Local Council" vide Rule 60(3) and Chapter VI related to Election to the seats of Special Interest viz. Peasant, Workers and Women. The polling was not held peacefully at the fixed time of 11.00 a.m. because of disturbance but was held peacefully at 12.30 p.m. when Returning Officer had already arrived and established order. The polling at 12.30 p.m. was not fixing of fresh schedule for the adjourned poll. The schedule given by the Election Authority was the date viz. 6-3-1989. Timing was fixed in the first instance too by the Returning Officer. Nor there was any adjourned poll. Poll started at 1230 pJi. It was observed in para. 14 that:- "Even otherwise, the poll as held has no genuine bearing. Only 10 out of the 24 members of a local council cannot be allowed to determine the fate of the election of the Chairman particularly when 4 members were not present at the time of adjourned poll who were admittedly present earlier and not shown to have been served for the poll allegedly held at 12.30 P.M. and 10 did not participate in the poll and not marked present out of the 20 present. The subsequent meeting was, therefore, no meeting in the eyes of law. The result of election drawn by the Returning Officer or the Presiding Officer on the basis of such a meeting would also be a nullity. The irresistable conclusion that can be drawn in such a situation is that in the legal sense there was neither a determination of the result of election nor could there be any question of its announcement." It may, however, be noticed that if some people boycott an election and other remain absent, the result of the election cannot be nullified. No premium is to be put on the default or non-participation of some in a democratic process nor who follow the law can be deprived of their rights having followed the due process, Further, if there was no meeting in the eyes of law and 'in legal sense there was neither a determination of the result of election nor could there be any question H of its announcement', then the legal effect of the election has to be tested in an election petition under Section 17(2) by the Election Tribunal which has been conferred exclusive jurisdiction expressly saying that jurisdiction under Section 17(1) will not be construed to mean that the Election Authority has power to enquire into any matter or pass any order in relation to anything relating to an election which can be called in question before an Election Tribunal by an election petition. 10. With respect to the learned Chairman of the Election Authority for whose learning and expertise we have great regard, the election having been held at 12.30 p.m. without any disturbance and result declared, the aggrieved party should have been left to have recourse to regular procedure of filing an election petition. We may not, however, be understood to say that in no event the Election Aothority can intervene under Section 17(1) of the Ordinance in the matter of ekction even if result is declared e.g. if no election is in fact held, force is used, ' resok declared falsely and fraudulently, the Election Authority may pass an order annulling the proceedings under Section 17(1) of the Ordinance. But if the election has been held peacefully at the time and result declared, then even if the election is liable to be declared as a whole void, recourse has to be had to the Election Tribunal by an election petition under Rule 15 of the Election Petition Rules, 1979. In fact, the respondent No. 5 gave a notice alongwith the election petition intended to be filed before the Election Tribunal in which he said that he had deposited Rs. 500/- in the government treasury (See Annex. F&G). The notice, copy of the petition and deposit of the amount was required by the relevant Rules. But the learned counsel for the respondent No. 5 says that the election petition was not filed before the Election Tribunal but an application under Section 17(1) of the Ordinance was filed before the Election Authority. It may be noticed that the aforesaid facts about election petition were not disclosed in the application before the Election Authority. Suppression of material fact does not augar well about the conduct of the respondent No. 5. For the reasons given earlier, we have come to the conclusion that once' an election is held and return of election is submitted by the Presiding Officer to the Deputy Commissioner for publication, then the election can only be challenged through an election petition before the Election Tribunal and; provisions of subsection (1) of Section 17 of the Ordinance are not attracted. If it j were otherwise, it would be possible that after the elections have been held and j return of election submitted, instead of waiting for the publication which thej learned counsel for the respondent No. 5 contends is a must, the parties may run, to the Election Authority and the latter is inundated with petitions under Section 17(1). Subsections (2), (3) and (4) were added to Section 17(1) by an amending I Ordinance VI of 1979 to avoid such a situation, as was observed in the; aforequoted judgment of the learned Supreme Court of Pakistan (1985 SCMR j 729). 1 For the reasons given above we have come to the conclusion that since the election was held-whether it was illegal or void, it was challengeable through an election petition before the Election Tribunal and the respondent No. 5 nor the Deputy Commissioner had any right to invoke the jurisdiction of the learned Election Authority under Section 17(1) of the Ordinance. Therefore, the impugned order is not in accordance with law and, therefore, is without lawful authority and of no legal effect. It is so declared. The petition is thus allowed but, in the circumstances, the parties will bear their own costs. (MBC) Petition accepted

PLJ 1990 Lahore 14 PLJ 1990 Lahore 14 Present: ABDUL SlIAKURUL SALAM, CJ Mian MUHAMMAD NAWAB--Petitioner versus . RIFAT SHARIF and another-Respondents T .A No.469/C and 470/C of 1989, dismissed on 11-10-1989 Civil Procedure Code, 1908 (V of 1908)- —S. 24 read with S. 23~Suits--Transfer of-Prayer for-Transfer applications are not maintainable under Section 24 read with Section 23 of CPC after establishment of Benches of Lahore High Court—Same lie under Lahore High Court (Establishment of Benches) Rules, 1981~In view of facts that respondent No. 1 herself had filed suits at Islamabad, it appeared that three . suits filed by her and one by her father at R.Y. Khan should be transferred to Islamabad but keeping in view her inconvenience in covering long journies from R.Y Khan to Islamabad and her miseries (she having become widow at a young age within 1 \ years of marriage), ends of justice will be better served if all cases are heard at Rahimyar Khan. [Pp. 15&16JA Ch. Noor Muhammad Fazil, Advocate for Petitioner. Syed Sharif Hussaiii Bokhari, Advocate for Respondents. Date of hearing : 11-10-1989. judgment This order will dispose of TA.No. 469-C/89 and TA.No.470-C/89 as these are inter parties. 2. I have heard the learned counsel for the parties and the principal actors, the petitioner Mian Muhammad Nawab and his cousin Mian Muhammad Sharif, respondent No.2. The unfortunate facts are that Mian Muhammad Nawab's son Ehteshamul Haq was earlier married with a lady which marriage had r ended in divorce. On 19.4.1986 he was married with Mst. Riffat Sharif daughter of Mian Mohammad Sharif. According to her as stated in her plaint, Ehteshamul Haq was a Computer Programmer working in Saudi Arabia where he was operated upon for blood cancer in 1984 and it was then pointed out that he would live for not more than two years. But these facts were concealed. In July, 1987 Ehteshamul Haq was sent abroad for medical treatment on State expense. He died in London on 23rd November, 1987 and his body was brought back and buried in Islamabad on 25th November, 1987. It was proposed that Mst. Riffat Sharif the widow be married with the brother of her deceased husband. That having not come about an agreement and affidavit were got executed from the widow about her l/4th share in the properties as an heir of her deceased husband. Settleraent having not effected finally, the widow filed a suit for cancellation of the agreement and affidavit and partition of the immoveable properties, before the learned Senior Civil Judge, Islamabad on 15.9.1988. Before the same Court she also filed a suit for her l/4th share in the moveable assets of her deceased nusband. She had also fled suits one for the recovery of Rs. 6000/- as dower amount and the other for the recovery of articles of dowry and gifts worth Rs. 73,460/- before the same Court. The latter two suits were withdrawn on the ground that there were some technical defects for which fresh suits were required. The Court dismissed the suits as withdrawn with permission to file fresh suits on payment of Rs. 100/- as costs, vide order dated 2.1.1989. 3. Thereafter, the widow filed (a) a suit for the recovery of dowry of Rs. 34,898/-, (&) her father filed a suit for recovery of Rs. 25,000/- as damages for having been led to give his daughter in marriage to the deceased Ehteshamul Haq when the latter was suffering from blood cancer and (c) suit by the widow for recovery of dower amount of Rs. 6000/- and (d) a suit for the recovery of an amount of Rs. 5,00,000/- as damages on account of having been misled in the wedlock. All these suits were filed before the learned Senior Civil Judge, Rahimyar Khan. 4. Mian Muhammad Nawab. father of Ehteshamul Haq the deceased husband of Mst. Riffat Sharif, has filed the afore-titled Transfer Applications for transfer of the four suits mentioned in the last paragraph from Rahimyar Khan to Islamabad under Section 24 read with Section 23 of the C.P.C. Replies to the applications have been filed by the widow and her father praying for the dismissal of the Applications and further that the suits by the widow pending before the Senior Civil Judge, Islamabad be transferred to any Court of competent jurisdiction at Rahimyar Khan. 5. As stated earlier I have heard the learned counsel for the parties and the responsible persons Mian Muhammad Nawab the petitioner and his cousin Mian Muhammad Sharif, the respondent No.2 at great length to see if the parties could sort out the consequences of the unfortunate tragedy but to no avail. It is clear that it is in the interest of the parties and justice that all suits are tried together and at one place. The question is at which place whether at Islamabad or Rahimyar Khan? The widow had filed four suits, at Islamabad; two of which are still pending there. She has filed three and her father one suit at Rahimyar Khan. The widow is residing with her parents at Rahimyar Khan. The properties in dispute are located in Islamabad. 6. Technically the Transfer applications of Mian Muhammad Nawab filed under Section 24 read with Section 23 C.P.C. for transfer of the cases pending before the subordinate Court in Rahimyar Khan to a similar Court in Islamabad, are not maintainable as after the establishment of the Benches of the Lahore High Court at Bahawalpur and Rawalpindi the applications seeking transfer of proceedings from a subordinate Court in an area assigned to a Bench to another subordinate court in the area assigned to another Bench do not lie under the C.P.C. but under the Lahore High Court (Establishment of Benches) Rules, 1981. Nonetheless the invocation of not the relevant provision but an old provision need not necessarily lead to refusal of relief if otherwise justice would so demand. Having heard the learned counsel and the principal parties I proceed to determine as to where all the suits arising out of the unfortunate circumstances should be tried so that inheritance and rights of a young widow without issue are determined without adding to the agony. In view of the facts that she herself had filed suits at Islamabad two of which are still pending there and that the properties are located (there, it appeared that the three suits filed by her and one by her father at jRahimyar Khan should be transferred to Islamabad. But it is evident that she living with her parents in Rahimyar Khan will not be in a position to pursue her rights and remedies effectively if she were to go from Rahimyar Khan to Islamabad for each date of hearing of the suit. Her misery of having become widow at a young age within a year and half of marriage will be accentuated and the memories will haunt her over the long journies to & fro from Rahimyar Khan to Islamabad and back. It is true that she has appointed her father as her attorney to pursue the cases but his going and coming in old age would not soften the sufferings during the trial of the suits. These are not merely sentimental reasons but have practical consequences. There is every likelihood of losing hope and giving up the struggle to pursue the rights and inheritance effectively and diligently. On the other hand is the father-in-law. He too is old, no doubt But he is possessed of the properties in dispute. Balancing the parties—a young widow living with parents in Rahimyar Khan and an old father-in-law possessed of properties living in Islamabad , it is clear that the widow is likely to lose heart and her rights if she were to come to Islamabad whereas the father-in-law is not likely to loose much if he were to come to Rahimyar Khan. May be in this even there is more chance of understanding and settlement and die widow gets her rights. In all the circumstances, I believe, the ends of justice will be better served if all the cases are heard at Rahimyar Khan. Consequently, the Transfer Applications of Mian Muhammad Nawab are dismissed but, it is directed that the suits filed by the widow Mst. Riffat Sharif pending before the learned Senior Civil Judge, Islamabad are transferred to the Court of the learned District Judge, Rahimyar Khan for entrustment of the same to a competent Court directing hearing and disposal of all the cases inter parties as expeditiously as possible but not later than a year. Observations made in this order are obviously confined to these proceedings. The suits shall be decided on the evidence recorded therein. Nothing said in this order shall have any relevance or impact in the decision of the suits. The applications are thus disposed of. In the circumstances, the parties are left to bear their own costs. (MBC) Applications dismissed

PLJ 1990 Lahore 18 PLJ 1990 Lahore 18 Present: IRSHAD hassan khan, J M/sPAK CEMENT COMPANY LTD--Petitioner versus PUNJAB LABOUR APPELLATE TRIBUNAL and Another-Respondents Writ Petition No.6516 of 1988, accepted on 3.10.1989 (i) Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 (WP Or d.VI of 1968)— —S.O. 12(3)-Probationer-Services of--Termination of~Challenge to~ Whether requirements of Standing Order 12(3) were complied with- Question of~It has explicitly been stated in termination order that respondent No.2 was not found suitable for job assigned to him~This was after assessing his aptitude and suitability-Order of termination is a termination simpliciter and not dismissal or removal in garb of termination-­ Held: Reasons for termination were explicitly stated in termination order and it did conform to requirement of Standing Order 12(3). [P. 21]B PLD 1983 Lahore 531 and 1979 SCMR 382 ref. 1977 PLC 402 distinguished. (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)— -S.25-A-read with Standing Orders 1 & 12~Grievance petition-Whether a probationer can Tile grievance petition-Question of--A probationer is also one of categories of workmen within purview of clause (3) of Standing Order 12 and his services cannot be terminated without order in writing explicitly stating reasons for such termination-Held: A probationer can competently file an application under Section 25-A of Ordinance if his rights under Standing Order 12(3) have been infringed. [P. 20]A PLD 1980 SC 323 followed. Mr. Abdul Rab, Advocate for Petitioner. C/i. M.KJialid Farooq, Advocate for Respondent No. 2. Date of hearing: 3-10-1989. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order dated 12.12.1988 of the Punjab Labour Appellate Tribunal, Lahore , whereby he set aside the decision of the Labour Court No.V, Sargoclha, dated 9.8.1988, relating to the termination of services of respondent No.2. 2. Briefly, the facts are that the petitioner, Pak Cement Company Limited, appointed Waris Masih respondent No.2 as helper in their establishment vide appointment order dated 26.12.1987. The appointment was on probation for a period of three months in the first instance, and during the probation period, his services were terminated. 3. The case of the petitioner is that respondent No.2 was not found suitable for the job assigned to him. Consequently, his services were terminated on 24-1- 1988. Respondent No.2 challenged the order of termination before the Punjab Labour Court No.5, Sargodha, by means of a grievance petition under Section 25- A (4) of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance). The Punjab Labour Court, after appreciating the evidence produced by the parties and perusing the material available on record, by his order dated 9- 8^1988, dismissed the petition, holding that the provisions of the Standing Order 12(3) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, were duly complied with, inasmuch as, reasons were assigned for the termination of the petitioner's service that "he was found unsuitable for the job assigned to him and was not found upto the standard of the employment." On appeal, Punjab Labour Appellate Tribunal, Lahore, vide its judgment dated 12-12- 1988, set aside the order of the Labour Court with the direction that the petitioner be reinstated in service as helper with back benefits and be allowed to complete the remaining period of probation. The grounds which weighed with the Punjab Labour Appellate Tribunal were that adequate reasons were not assigned for terminating the services of respondent No.2, within the purview of Standing Order 12 (3) and that the order of termination was not supported by any material and data, on the basis of which the petitioner-employer concluded that respondent No.2 was not fit for the job of helper. 4. Learned counsel for the petitioner contended that the termination of service of respondent No.2 during the probation period on ground of unsuitability for the post does not involve violation of any right guaranteed or secured to respondent No.2 under the law, award or settlement which is a sine qua non for invoking the provisions of Section 25-A of the Ordinance. The precise submission is that respondent No.2 was a probationer to whom the provisions of Para 12 (3) of the Standing Order, which provides that the services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken, are not applicable. 5. The contention is devoid of any force. The definition and classification of workmen are to be found in Standing Order No.l in the Schedule to the said Ordinance which reads thus: 1. Classification of workmen- (a) Workmen shall be classified as- (1) Permanent, (2) Probationers, (3) Badlis, (4) Temporary, (5) Apprentices. (b) A "permanent workman" is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment " By an amendment promulgated in 1973, the following words were added to this definition:-- "and includes a Badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months. (c) A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a higher post he may, at any time during the probationary period of three months, be reverted to his old permanent post. (d) A "Badli" is a workman who is appointed in post of a permanent workman or probationer, who is temporarily absent. (e) A "temporary workman" is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months. (/) An "apprentice" is a person who is an apprentice within the meaning of the Apprenticeship Ordinance, 1962 (LVI of 1962)". "• 6. A bare reading of clause (3) of Standing Order 12 with clause (1) of Standing Order No.l would show that a probationer is also one of the category of workman within the purview of clause (3) of the Standing Order 12 and, therefore, his services cannot be terminated by the employer without an order in writing explicitly stating therein the reasons for such termination. Thus visualized, the benefit of Standing Orders 12 (3) is available to all workmen including a probationer. The said provision of law refers to all category of workmen defined in clause (1) of the Standing Orders without any qualification. The same view is taken in Pakistan International Airlines v. Sind Labour Court No.5 and others (P.L.D. 1980 S.C. 323), which I respectfully follow. It is, therefore, evident that a probationer can competently file an application under Section 25-A of the Ordinance, if his rights under Standing Order 12 (3) have been infringed. 7. The sole point which requires consideration is as to whether or not the order of termination passed by the petitioner can be treated to have explicitly stated the reasons for terminating the services of respondent No.2 in conformity with the provisions of clause (3) of the Standing Orders 12. 8. For facility of reference, the order of termination is reproduced below: "Reference our appointment order No. PC/Admn/ Estt/87/8851, dated 26.12.1987, we regret to inform you that your aptitude and suitability has been assessed during your probation period and it has been observed that you have not been found suitable for the job assigned to you. Therefore, your services are hereby terminated with immediate effect. You are advised to collect your dues, if any, from our Finance Department after producing NOC from the head of department." 9. The dictionary meaning of the term 'explicit' is, "not obscure or ambiguous, having no disguised meaning or reservation. Clear in understanding." (Black's Law Dictionary 1979). As per the Oxford English Dictionary, the term 'explicit' means, "Hence of persons, their qualities, etc. Speaking out fully all that is meant; definite and unreserved in expression; outspoken." "The word 'explicit' means As a matter of 'explicit' knowledge, belief, or statement; expressly and not merely by implication, Opposed to implicity, With detailed exposition. 10. In the instant case, it has been explicitly stated in the termination order' that the aptitude and suitability of respondent No. 2 had been assessed during his probation period and he was not found suitable for the job assigned to him. The order of termination did not cast any stigma, inasmuch as, the services of respondent No.2 were not terminated on account of any unsatisfactory work but after assessing his aptitude and suitability. I am, therefore, inclined to hold that the reasons for termination were explicitly stated in the termination order and thus it did conform to the requirement of Standing Order 12 (3). Refer Punjab Road Transport Board v. Muhammad Fazil Hussain and another (P.L.D. 1983 „ Lahore 531), wherein it was held that having regard to the nature of the employment of a probationer, reference to the probation in the termination order would constitute sufficient reason for termination of his services where no stigma is attached, within the purview of Standing Order 12 (3). The order of termination passed in the instant case is a termination simpliciter and not dismissal or removal in the garb of termination. Needless to say, where termination order amounts to dismissal and not merely an order of termination, the same would not be sustainable under Standing Order 12 (3). Refer Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and another (1979 S.C.M.R. 382). In the instant. case, there is no finding in the impugned order that the termination order was either mala fide or passed in colourable exercise of powers. 11. Learned counsel for the respondent No.2 placed reliance on the observations made by the Punjab Labour Appellate Tribunal in the impugned judgment that "very strong evidence is required to show that the workman is not fit for the job in cases where his services are terminated before he completes the period of probation. Reliance was also placed on Sethi Straw Board Mills Ltd., Rawalpindi v. Punjab Labour Court, Lahore and 2 others (1977 P.L.C. 402), to contend that the mere word of the employer in tne absence of any material produced before the Labour Court justifying the termination of an employee is not a sufficient compliance of the Standing Order 12 (3). The submission is that in the instant case as well except the termination order, no other material was produced before the Labour Court justifying the termination of the respondentemployee. The contention is unsustainable. The Sethi's case supra is distinguishable, in that, in the precedent case the order of termination was found to be mala fide and in colourable exercise of powers by the Labour Appellate Tribunal. The High Court refused to interfere in the matter in the exercise of Constitutional jurisdiction, in the absence of any material on record, in support of the contention of the employer. The instant case relates to probation and the ratio laid down in Punjab Road Transport Board's case supra is fully attracted to the facts of the present case. 12. In view of the above, the writ petition is accepted. The impugned judgment is declared to have been passed without lawful authority and of no legal effect. However, the parties shall bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 22 PLJ 1990 Lahore 22 Present: KHALIL-UR-REHMAN KHAN, J Malik IMTIAZ AHMAD and 2 Others-Petitioners versus DEPUTY COMMISSIONER/COLLECTOR, Khushab and 4 others-­Respondents Writ Petition No. 5702 of 1989, decided on 1.11.1989. Demarcation— —Land of petitioners-Demarcation of~Challenge to-Forum for. demarcation under Punjab Land Revenue Act cannot be substituted—Nature of dispute justifies demarcation of land in order to know whether assertions of Town Committee (about encroachment of green belt and road) are correct or not-Held: Collector Khushab, instead of Naib Tehsildar, to undertake demarcations but he will be assisted by Superintending Engineer, Irrigation, Depalpur Canal Circle , Lahore . [P. 24]A Ch. KJiurshid Ahmad, Advocate for Petitioners. Air. Farooq Bedar, AddLA.G. for Collector Khushab. Mian Dilawar Mahmood, Advocate forRespondent No.5. Date of hearing: 1.11.1989. order The petitioners, in this constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have challenged the order dated 10.9.1989 of the Collector, Khushab and the proceedings initiated in pursuant thereto by the Colony Naib Tehsildar, Jauharabad, on an application of the Chairman, Town Committee, Jauharabad on the grounds that the proceedings of demarcation, earlier initiated on the application dated 12.1.1989, having been consigned to record, no fresh proceedings can legally be initiated on the second application; that the proceedings held by the Revenue Officer are illegal and without jurisdiction as the provisions of the Punjab Land Revenue Act, 1967, being not applicable, could not be invoked for demarcating the land in dispute; that the land in dispute vests fully in the petitioners and does not contain any green-belt or road and as such the Tov. n Committee has no locus standi to seek demarcation; that the green-belt, if any, vests in the Housing and Physical Planning Department, Government of Punjab, which Department has in clear terms already declared that the land of the petitioners does not fall in any such area and that they have no grievance whatsoever in respect of any alleged violation of green-belt or open space and that initiation of proceedings on the behest of the Chairman, who is a political rival of the petitioners, is mala fide and these proceedings are being used to deprive the petitioners of their valuable rights in the property. 2. The Collector, Khushab as well as the Chairman, Town Committee in the report and parawise comments filed by them, pursuant to the order of this Court, have denied the factual assertions and legal objections raised by the petitioners. Their case is that the pleas taken and factual controversies raised themselves show that demarcation of the land is necessary to find out, whether the petitioners have encroached upon the green-belt or the road vesting in the Town Committee or not and that neither the Revenue authorities nor the Town Committee, Jauharabad are in any way interested in depriving the petitioners of their rights legally vesting in them. 3. Mian Dilawar Mehmood, Advocate, learned counsel for the Town Committee stated that in the demarcation proceedings, the vires of the sale in favour of the petitioners will not be gone into as the question of title is not to be determined by the Revenue Officer. He added that the proceedings of demarcation being held on the application of the Town Committee are legal and with jurisdiction and that the assertion made in this regard by the learned counsel for the petitioners is not sound. 4. Mr.Farooq Bedar, learned Additional Advocate General appearing on behalf of the Collector, Khushab, submitted that no valid basis existed to support the plea of mala fide; that the Revenue Officers are not biased against the petitioners and that they are performing their functions strictly in accordance with the Punjab Land Revenue Act, 1967. He added that in order to obviate any alleged apprehension of the petitioners, this Court may direct the Collector, Khushab to hold demarcation proceedings himself. 5. Learned counsel for the petitioners, on the other hand, suggests that any independent agency/person be appointed to hold demarcation proceedings for determining, whether the petitioners have encroached upon any green-belt or the road. This is not acceptable, either to the learned Additional Advocate General or the learned counsel for the Town Committee. They state that the demarcation proceedings have to be held and the property demarcated by the Revenue Officer under the Land Revenue Act and that the forum provided by law cannot be substituted. At this stage, learned Additional Advocate General suggests that an engineer of the Building Department or of Local Council may be nominated by his Court to render assistance to the Collector, Khushab in the matter of demarcation. Learned counsel for the petitioners, accepting the suggestion, added that an engineer of Pakistan P.W.D. or of any other Federal Government Department, may be nominated instead of appointing any engineer of any Provincial Government Department, available at Sargodha or Khushab. 6. Obviously, the forum cannot be substituted if the provisions of Punjab Land Revenue Act are available for demarcating the land in dispute. The nature of the dispute raised, in any case, justifies the demarcation of the land so that it could be known, whether the assertions of the Town Committee are correct or not. If these assertions are found to be baseless, the petitioners will have no grievance to make, and if the finding goes against them, they will have the right to avail of the remedies provided by law and be at liberty to raise all pleas available to them under law including the objection as to the jurisdiction of the Revenue Officer to demarcate the land in dispute. The Collector Khushab, instead of Naib Tchsildar, as agreed to by the learned Additional Advocate General and learned counsel for the Committee, may undertake the demarcation proceedings but he will be assisted in this task by Mr. Riaz Ahmad Khan, Superintending Engineer, Irrigation, Dcpalpur Canal Circle, Lahore. The fee and expenses of Mr.Riaz Ahmad Khan, S.E. is fixed at Rs.5000/- which will be equally shared by the petitioners and Town Committee-respondent. The Collector, Khushab, will of course, provide full opportunity to the parties to present their point of view. He will also obtain the opinion of the above named engineer and will decide the matter of demarcation in accordance with law. With these observations, this petition stands disposed of. (MBC) Orders Accordingly

PLJ 1990 Lahore 24 PLJ 1990 Lahore 24 Present: I RSI IAD HASSAN kiian, J ALLIED BANK OF PAKISTAN LTD-Petitioner Versus Raja M. ZAHEERUL HASSAN and 3 others-Respondents Writ Petition No.4653 of 1982, dismissed on 4.10.1989. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —-S. 25-A(4)&(5)~Labour Court-Jurisdiction of~Challenge to—Whether labour court can go behind a dismissal—Question of—Sub-section (5) of Section 25-A provides "in adjudicating and determining a grievance under Section 25-A(4), labour court shall go into all facts of case and pass such order as may be just and proper in the circumstances of the case"~Held: Jurisdiction of labour court to go behind a dismissal order is unquestionable—In this case, Labour Appellate Tribunal, after re-appraisal of evidence, recorded a finding of fact that respondent No.l was not guilty of misappropriation—Held further: Impugned orders of courts below setting aside punishment of dismissal cannot be treated as without lawful authority-­ Petition dismissed. [Pp. 25,26&27]A, B & C PLJ 1982 SC 516, PLD 1978 SC 207, PLD 1980 SC 22 and PLD 1978 SC 239 rcl. PLJ 1980 SC 223 and 1976 PLC 392 distinguished. Mian Saecd-ur-Reliman Famikh, Advocate for Petitioner. Mr.Munawar Ahmad Javid, Advocate of Faisalabad for Respondents. Date of hearing: 4.10.1989. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order dated 19.8.1982 passed by the Punjab Labour Court No.V, Faisalabad, whereby respondent No.l was re-instated without back benefits and the order dated 14.11.1982 of the Punjab Labour Appellate Tribunal, whereby the appeal filed by the petitioner against the said order was dismissed. 2. The brief facts are that respondent No.l was an employee of the petitioner and serving as a cashier in its Katchehry Bazar Branch, at Sargodha. He was charge-sheeted for misconduct, in that, he allegedly misappropriated certain amount. During the departmental proceedings, respondent No.l was found guilty, which led to his dismissal on 1.11.1981. 3. Respondent No.l filed an application under Section 2'5-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) for the redress of his grievance. The Labour Court after appreciating the evidence produced by the parties, accepted the application and held that the petitioner was not guilty of misappropriation of money. Consequently, the dismissal order was set aside. Respondent No.l was directed to be reinstated with back benefits vide order dated 19.8.1982 of the Labour Court. The appeal was also dismissed on 14.11.1982 by the Labour Appellate Tribunal, who concurred with the finding of fact recorded by the Labour Court that respondent No.l was not guilty of misappropriation. It was held that the case was one of omission and not misconduct and , therefore, respondent No.l was not liable to dismissal. 4. Mr. Saeed-ur-Rehman Farrukh, learned counsel for the petitioner relied on Punjab Road Transport Board v. Punjab Labour Court No.2 (1976 PLC 392) and Pakistan Tobacco Co. Ltd. v. Channan Hian (PLJ 1980 S.C. 223), to contend that once an employee is found guilty of misconduct, the employer alone is the sole Judge of what penalty is to be awarded to the delinquent and the discretion exercised by the employer in awarding the punishment is not open to interference by the Labour Appellate Tribunal in the exercise of its jurisdiction under Section 25-A of the Ordinance. 5. The contention is devoid of any force. Sub-section (5) of Section 25-A of! the Ordinance provides: "in adjudication and determining a grievance under sub- j section (4), the Labour Court shall go into all the facts of the case and pass such j order as may be just and proper in the circumstances of the case". This being so, the jurisdiction of the Labour Court to go behind a dismissal order and to see for; itself as to whether on the facts and in the circumstances of the concerned case it was justified or not, both on merits, as well as, on law, is unquestionable. Refer Crescent Jute Products Lid. v. Muhammad Yaqub (PLD 1978 S.C. 207). Also refer Inspector-General of Police v. Muhammad Farid (PLJ 1982 S.C. 516), wherein it was held that it is within the powers of a tribunal to interfere in appropriate cases with punishment imposed by the departmental authorities in disciplinary proceedings. In the case of Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22) it was held that:- "It goes without saying that it lies within the jurisdiction of the Tribunal and, indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the tribunal but also to inspect all relevant records which might have been taken into consideration by the competent authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against." 6. In the instant case, the Labour Appellate Tribunal after re-appraisal of • the evidence on record, recorded a finding of fact that respondent No.l was not guilty of misappropriation, but only of omission to follow the bank instructions. i This being so, the impugned orders of Courts below setting aside the punishment j of dismissal, cannot be treated as without lawful authority. Refer Pakistan \ International Airlines Corporation, Karachi v. Junior Labour Court No.JV, Karachi \ (PLD 1978 SC 239), wherein it was held that violation of a rule per se does not i amount to misconduct so as to entail the major penalty of dismissal from service. 7. The case of Pakistan Tobbacco Co.Ltd. (supra) is distinguishable, in that, in the precedent case a concurrent finding of fact was recorded by the Courts below that the employee was guilty of misconduct and it was in these circumstances the Supreme Court held that the Labour Court cannot sit in judgment on punishment awarded by an employer and substitute with a lenient punishment. Here, there is a concurrent finding of fact that respondent No.l was not guilty of misappropriation. This finding is not open to challenge in writ jurisdiction. Clearly, the ratio laid down in Pakistan Tobbacco Co. Ltd.'s case is distinguishable and not attracted to the facts of the present case. 8. In Punjab Road Transport Board's case (supra) it was held that in awarding the punishment permitted by law, the employer is exercising a discretion, which is not open to review by any outside authority. It is only when he does not observe the law, or exceeds its limits that the intervention of an outside authority or tribunal is called for. In the precedent case, the charge of fraud in respect of employer's money was established which led to the punishment of dismissal. Here, the charge of embezzlement against respondent No.l in respect of employer's money having not been established, the petitioner clearly exceeded its limits in passing the order of dismissal against respondent No.l and rendered himself to scrutiny and interference by the Labour Court under Section 25-A of the Ordinance. Therefore, the rule laid down in Punjab Road Transport Board's case is of no avail to the petitioner. 9. The Labour Court has wide powers under Section 25-A of the Ordinance. A duty is cast on it to go into all the facts of the case and pass such order as may be just and proper in the circumstances of the case. An appeal is in continuation of the original trial before the Labour Court and the Labour Appellate Tribunal is competent to pass, under Section 38 (3) of the Ordinance, any order which the Labour Court ought to have passed in a given case. It may, on appeal confirm, set aside, vary or modify the decision given under Section 25-A appealed against. 10 It would thus appear that the Punjab Labour Court No.V, Sargodha, as j well as, the Labour Appellate Tribunal acted within their jurisdiction in] interfering with the punishment of dismissal imposed by the petitioner upon respondent No.l and directed his re-instatement without back benefits. The discretion exercised by the Courts below in interfering with the punishment of dismissal awarded to respondent No.l by the petitioner does not suffer from any illegality warranting interference by the High Court in the exercise of writ jurisdiction. The writ petition, therefore, fails and is hereby dismissed, but there shall be no order as to costs. (MBC) Petition dismissed

PLJ 1990 Lahore 27 PLJ 1990 Lahore 27 Present: IlISANUL HAQ ClIAUDHARY, J RAUNAQ ALI KHAN and another-Petitioners versus PROVINCIAL GOVERNMENT through COLLECTOR, Gujranwala and 9 others—Respondents Writ Petition No. 1149 of 1989, dismissed on 13-11-1989 (i) Constitution of Pakistan, 1973— -—Art. 199-Action taken under Section 133 Cr. PC-Suppression of-Whether petitioners are entitled to discretionary relief under Art. 199-Question of—It is established on record that petitioners had made statements before respondent No. 2 (in proceedings under Section 133 Cr. P.C.) and signed those statements-They did not disclose in their plaint that action under Section 133 Cr.PC was taken against them-They did not implead all the complainants in their civil suit-Petitioners have not uptill this date, challenged order passed under Section 133 Cr. P.C--They have failed to prove any vested right to clandestinely occupy portion of Shamilat Deh and raise construction-Held: These facts are sufficient to refuse them any discretionary relief in constitutional jurisdiction. [P. 32]C (ii) Constitution of Pakistan, 1973-- —-Art. 199 read with Criminal Procedure Code, 1898, Sections 435, 439-A and 440-Appropriate and adequate remedy-Availability of~Whether writ petition is maintainable—Question of—Objection that since revision was competent, petitioners are not entitled to any relief in constitutional jurisdiction~Cr. P.C. was enacted in 1898 and throughout period of 90 years, revision was deemed competent against orders passed under Section 133 Cr. P. C.—Held: From whatever angle proposition is approached, revision is competent. [Pp. 32&34]D, E&F AIR 1952 Allahabad 215, AIR 1928 Lahore 95, 1987 P. Cr. LJ 263, 1985 P. Cr. LJ. 2409 and AIR 1924 Allahabad 1 relied. (iii) Constitution of Pakistan, 1973-- —Art. 199—Disputed facts—Whether can be made subject matter of Constitutional petition-Question of-Objection that petition raises controversial and disputed questions of facts which cannot be made subject matter of this petition—Held: It is not for High Court to determine whether water is stagnant or flowing-Held further: This is beyond scope of Constitutional petition and it is not possible to make determination of structure demolished and then to have it reconstructed. [P. 31&32JA&B (iv) Constitution of Pakistan , 1973-- —-Art. 199-Writ Petition-Maintainability of~Challenge to-Qucstion whether village pond is stagnant or it is a drain, is a question of fact— Similarly, nature of structure and damage cannot be mooted in extra­ordinary proceedings-Held: Only irregularities in proceedings are not enough or sufficient for interference in constitutional jurisdiction of High Court-Petition dismissed. [P. 34JG PLD 1975 Peshawar 199, AIR (29) 1942 Allahabad 443 and AIR 1921 Calcutta 76 relied. Dr. A. Basil, Advocate for Petitioners. Mr. Muhammad Rashid Malik, Advocate for Respondents 1 to 3. Mr. Abid Hassan Minlo, Advocate for Respondents 4 to 9. Date of hearing: 13-11-1989. judgment The petitioners through this Constitutional petition have impugned order dated 23.2.89. The necessary back-ground is that Haji Muhammad Saleem and 95 other inhabitants of village Nauniankey Tehsil and District Gujranwala submitted an application to the Deputy Commissioner, Gujranwala. It was complained that the petitioners and 2 others have started filling part of village pond which is the only source of drainage. This application was sent to respondent No. 2 with a direction to visit this site and take necessary action. Respondent No. 2 proceeded to the spot, recorded the statements of the complainant as well as the petitioners and thereafter served the petitioners with notice dated 23.2.89 whereby the petitioners were called upon to do away with the encroachment by 2.00 p.m on 25.2.89 otherwise the S.H.O was directed to do the needful. The petitioners filed a suit for permanent injunction in the Court of Senior Civil Judge, Gujranwala who entrusted the same to Sheikh Ahmad Farooq, the then Civil Judge. The suit was filed against the Province and 6 others. The learned Civil Judge issued the injunction against respondents No. 2 to 7, the private parties. Since neither the petitioners complied with the orders dated 23.2.89 nor obtained injunction therefore, respondent No. 2 proceeded to make the order dated 23.2.89 absolute on 26.2.89 as required under Section 136 Cr. P.C. The result was that the structure of the petitioners was demolished on the same day. 2. The petitioners filed this petition on 1.3.89 and prayed for following declarations and directions— "Declarations: (/) It be declared that the respondent Illaqa Magistrate had no lawful authority to demolish the houses and the compound wall of the petitioners under the colour of the impugned order dated 23.2.1989. (//) It be further declared that the impugned order is without lawful authority on the ground that it has been made in violation of the mandatory provisions contained in Chapter X Cr.P.C. (///) It be also declared that the respondents are liable to be punished in accordance with the law for offences committed by them in pursuit of their demolition conspiracy. (iv) The respondent SHO has a duty to register an F.I.R as per written report made to him. (v) It be further declared that no proceedings can be taken on the basis of the impugned orders in question which are liable to be set aside as void ab-initio. Directions. (/) Respondent Illaqa Magistrate be directed to refrain from carrying out any further action on the basis of the impugned order purportedly made by him on 23-2-89 under section 133 Cr. P.C. It be set aside as void abinitio. (//) The official respondents be directed to reconstruct the building and other structure got demolished by them in an illegal manner. They be directed to do so at their own expense unless the respondent Government is prepared to pay for it. (//'/) The respondent Provincial Government be directed to ensure that the respondent-officials restore the house demolished by them at their own expense within a reasonable time failing which it be directed to restore the petitioners to their original condition at its own expense. (/V) Respondent Government be directed to make suitable amends as the damage has been caused under the colour of Governmental authority. (v) Respondent SHO be directed to register a criminal case in accordance with the written report made to him and attached above at Annexure 'IX. (w) Any other relief deemed appropriate in the circumstances of this case may also be afforded to the petitioners." 3. The petition was admitted to regular hearing and notice was issued to the respondents, who have entered appearance and contested the petition. I have heard the learned counsel for the parties. The learned counsel for the petitioner in support of the petition, has argued that respondent No. 2 failed to pass an interim order in accordance with the provisions of section 133 Cr.P.C. He also failed to fix the matter for making the conditional order absolute in terms of section 136 Cr.P.C. It is added that the proceedings were without justification and not warranted by section 133 Cr.P.C. as the construction was made in the village pond, which is neither way nor river nor channel. It is concluded that the whole exercise was malafide. On the other hand, Mr. Abid Hassan Minto, Advocate, counsel for respondents No. 4 to 9 has raised following preliminary objections as to the competency of the petition:— (/) That the petition for the most part raises disputed questions of fact, which cannot be the subject-matter of a Constitutional petition. It is (not) explained that whether the structure was raised by the petitioners in a village pond, which is stagnant and not serving as drain for the village and what was the nature of the structure raised by the petitioners and lastly whether it interfered in the flow of the water as alleged by the complainants or not; (//) That the petitioners have not come with clean hands. In this behalf it is stated that the petitioners appeared before respondent No.2, their statements were recorded and they instead of complying with the order or taking proceedings in the appropriate forum, proceeded to institute a civil suit. The petitioners also alleged that the Government and private defendants are out to demolish their structure raised on 9 marlas but did not disclose that respondent No.2 has taken proceedings under section 133 Cr.P.C. and directed the petitioners to demolish the structure. The same is the position in the present writ petition. It is added that the complaint was lodged by as many as 96 persons while the petitioners have impleaded only six of them as respondents, others have not been impleaded as party to this petition; (Hi) That the petitioners have a remedy by way of revision, which was adequate and appropriate in the circumstances but they did not avail the same, therefore, they cannot maintain this petition; and, (/v) That the petitioners have not challenged the order dated 26-2-89 in any forum including this writ petition, therefore, they are not entitled to any relief. On merits it was argued that the petitioners started filling a portion of the village pond and raising structure in such a manner that it interfered with the flow of the water. The respondents No.4 to 9 and the other inhabitants of the village were compelled to petition to the District Magistrate for relief. The application was marked to respondent No.2, who visited the spot, recorded the statements of the parties and it was thereafter that he found that the petitioners are guilty of causing public nuisance and directed them to remove the structure by 25-2-1989. The petitioners did not impugne this order in any forum. On the other hand they tried to secure an injunction from the Civil Court by suppression of true facts. It is added that the petitioners have raised disputed questions of fact which cannot be made subject-matter of this Constitutional petition, therefore, they are not entitled to any relief. 4. Mr. Muhammad Rashid Malik, Advocate, appeared for respondents No. 1 to 3 and adopted the arguments as well as preliminary objections raised by Mr. Abid Hassan Minto. It is added that since final order has been passed and executed, therefore, the present proceedings amount to flogging a dead horse. 5. The learned counsel for the petitioners in reply to the arguments of the learned counsel for the respondents has argued that availability of alternative remedy is no bar. It only regulates discretion in the matter. It is added that once the Constitutional petition is admitted, then this objection will not be available at subsequent stage. More-over revision was not adequate remedy because there is no right of hearing as per section 440 Cr.P.C. It is added that respondent No. 2 did not act in a judicial capacity, therefore, writ was only proper remedy in addition to the fact that there was no record which could be summoned and examined by the revisional Court. In this behalf reliance is placed on the case of Muhammad Nazir KJian v. Dr. Mubasliar Hasan & another (P.L.D. 1974 Lahore 49). The argument on preliminary objections was concluded with the submission that if reference is made to the prayer clause of the petitioners, then it is clear that the petitioners have sought reliefs, which neither could have been subject-matter of the revision petition nor could have been granted. On merits it was explained that actually it is the respondents No.4 to 9, who are guilty of suppressing the facts from the Civil Court because when they appeared on the very first date, they did not disclose to the learned Civil Court that the structure is being demolished in proceedings under section 133 Cr.P.C. This silence alone proves that the alleged proceedings conducted by respondent No. 2 were all fake and bogus. It is added that respondent No. 2 acted illegally and malafide, therefore, writ should be issued. 6. I have given my anxious considerations to the arguments of the learned counsel for the petitioner and gone through the record as well as provisions of law. Now before proceeding any-further I would deal with the preliminary objections raised by the learned counsel for the respondents. The first preliminary objection was that the petition raises controversial and disputed questions of facts which cannot be made subject-matter of this petition. The whole arguments of the learned counsel for the petitioners on merits revolve around the fact that the disputed structure was raised in a village pond. It was added that it is a matter of common knowledge that stagnant water is there but on the other hand respondent No. 2 after spot visit and enquiry has concluded that the structure has obstructed the flow of water. Respondents No.4 to 9 have also maintained that the pond was serving as a drainage system which presupposes flow of water. Even the plan annexed by the petitioners alongwith the plaint supports this view because according to this plan the village pond is divided by the road into two portions and both are connected by a culvert. If the water is stagnant then the provision for the culvert is meaningless. Any-how it is not for this Court to determine whether the water is stagnant or flowing. This is beyond the scope of the Constitutional petition and once this conclusion is reached at then on merits the petitioners have nothing to say. 7. This is not all. The petitioners have sought direction to the effect for

B restoration of the structures. It is not clear what was the exact nature of the structure. The learned counsel for the petitioners when confronted with this difficulty candidly conceded that the detail of the structure is not available and submitted that the petitioners will be fully satisfied if only boundary walls are reconstructed. I am afraid that it is not possible for this Court to make a l determination of the structure demolished and then to have it reconstructed. 8. It is established on record that the petitioners appeared before respondent No. 2 on 23-2-1989 and their statements were recorded. This is not all. The petitioner No.l signed at the foot of the interim order while the other petitioner had affixed his thumb impression. This is in acknowledgment of the contents of the interim order but inspite of this when they filed suit on 25-2-89 against the Province as well as respondents No. 4 to 9, they did not disclose in the plaint that action is being taken under section 133 Cr.P.C, on the one hand and on the other hand they neither impleaded respondent No. 2 nor other complainants. ( They have clearly alleged in paras 3 of the plaint that defendants No. 2 to 7 are influential persons, who have good relations with respondent No. 1, and they are taking benefit of this and are out to demolish their structure. The same position was maintained in the present petition. This is not all. The petitioners uptill this date have not challenged the final order dated 26-2-89 in any forum. They have also failed to implead all the complainants as respondents in this Constitutional petition. Above all they have failed to prove any vested right to calendestinely occupy the portion of Shamlat Deh and raise construction. These facts are .sufficient to refuse them any discretionary relief in Constitutional jurisdiction. i 9. This brings us to the main preliminary objection raised by Mr. Abid 'Hassan Minto, counsel for respondents. The objection was that since revision was competent, appropriate and adequate remedy, therefore, the petitioners are not entitled to any relief in Constitutional jurisdiction. The learned counsel for the petitioners, on the other hand, as already noted, proceeded to submit that the D revision was not competent because it was not a judicial order and it was not an adequate remedy because the petitioners have no right of hearing as provided by section 440 Cr.P.C. Before proceeding any-further with the matter it is worthwhile to refer to the provisions of sections, 435, 439-A and 440 Cr.P.C. The same reads .as under:- Section 435 Cr.P.C. "The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the Provincial Govt. in this behalf, may call for and examine the records of any proceedings before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.—All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of Section 437," Section 439-A Cr.P.C. "In case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439." Section 440 Cr.P.C. "No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision: Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect section 439, subsection (2)." 10. It was added that the term Criminal Court as used in section 435 Cr.P.C. has not been defined in the Criminal Procedure Code, therefore, the definition as given in the Pakistan Penal Code will be applicable. On the other hand, learned counsel for the respondents has referred to section 6 of the Criminal Procedure Code wherein detail of the Criminal Courts have been given. The same reads as under:— "Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan namely:-- I. Courts of Session; II. Magistrate of the First class; HI. Magistrate of the second class; IV. Magistrate of the third class." 11. The learned counsel thereafter referred to Explanation 2 sub-section (1) of Section 435 Cr.P.C. to urge that it covers all Magistrates irrespective of their - duties. In the last it was submitted that respondent No.2 exercised the powers under Chapter X of Cr.P.C, therefore, his orders are all amenable to revisional jurisdiction. 12.1 have given my anxious considerations to the arguments of both sides on preliminary objections. Criminal Procedure Code was enacted in 1898 and throughout the period of about 90 years the revision was deemed competent against the orders passed under section 133 of the Criminal Procedure Code. In this behalf reference can be made on the cases of Muhammad Ayub ad others Vs. ,E Tfie State (A.I.R. 1952 Allahabad 215), Brahman Water Mills Vs. Mangladha Mai (A.I.R. 1928 Lahore 95), Lai Din Vs. State and 2 others (1987 P.Cr.LJ 263), Atta Ullah Kiwi Vs. Muhammad Akram and 5 others (1985 P.Cr.LJ 2409) and Abdul Wahid KJian Vs. Abdullah KSian- (A.I.R 1924 Allahabad 1). 13. It is otherwise against the scheme of the law to presume that a party aggrieved by order under section 133 Cr.P.C. had no remedy before Country entered Constitutional era as civil suit was clearly barred under snlH^t»pn (2) of section 133 Cr.P.C. 14. The learned counsel for the respondents rightly pointed out that the legislature has given the detail of the classes of Criminal Courts ill section 6 while in the explanation to sub-section (1) to Section 435 Cr.P.C. it was made dear that all such Courts are inferior to the Sessions Courts for purpose of this sub-section. This coupled with the fact that the legislature has used the words "may call for and examine the records of any proceedings before any inferior criminal Court". The wording is wide enough to cover in its folds all actions and proceedings, orders of the criminal Court. Even otherwise law leans in favour of interpretation which is beneficial rather rendering the citizens without a remedy. This way from what­ ever angle the proposition is approached revision is competent. 13. The question, whether the village pond is stagant or it is a drain, is a question of fact which this Court cannot go into in the Constitutional procee<$$Qg&, , Similarly, the nature of the structure and the damage cannot be mootejEfifctdSfra^' ordinary proceedings. In this way we are left' with the irregularity in the G proceedings pointed out by the learned counsel for the petitioners but the same are not enough or sufficient for interference in the Constitutional jurisdiction of this Court. I am fortified in my view by the judgment in the case of Haq Nawaz and others Vs. Ramzan and others (P.L.D. 1975 Peshawar 199). The relevant portion of the judgment reads as under:-- "Assuming, however, that the order in question was defective in some measure, Section 537 Cr.P.C. would have cured it, as the parties in this case were allowed full opportunity to adduce their respective evidence and then argue the case on merit. However, since the conditional order of learned Magistrate in this case has been found by me to be in accord with the requirement of Section 133 Cr.P.C., reference to Section 537 Cr.P.C. would not arise." Further reliance can be placed on the case of Ram Dayal Misra Vs. Mt. Jaqdamba Debi and another (A.I.R. (29) 1942 Allahabad 443). The relevant portion reads as under:-- "It is argued before me that the procedure of the Magistrate was irregular. This Court, however, is not a Court of criminal appeal and it will only interfere if substantial justice has (not) been done." Calcutta High Court in the case of Rash Behari Saha Vs. Phani Bhusan Haldar (A.I.R. 1921 Calcutta 76) held that the aggrieved party should first move Sessions Judge. The relevant portion reads as under:- "It is not the practice of this Court to entertain applications unless the party has first moved the Sessions Judge to make a to this Court." 15. Now once again reverting to the merits of the case, learned counsel for the petitioners has argued that since the pond is neither river mat therefore, the proceedings were not covered by Section 133 Cr-P.CLfj such, illegal. The argument is clearly misconceived, because it looses j second part of sub-section (1) of section 133 Cr.P.C. It is clear from I" that unlawful obstruction or nuisance should be in respect of:~ (/) way; (//) river or channel which is or may be lawfully used by public; and (///) any public place 16. The term 'public place' has been defined in explanation at the end of sut> section (2). It covers property belonging to State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. The definition is BQt exhaustive or restrictive. The pond in dispute is admittedly a part of Shamlat Deh - left unoccupied and used as storage of sullage water. Therefore, it will be fairl^- and squarely covered by the definition as given in explanation. The construction by the petitioners is obstruction, therefore, amenable to action under Chapter X. this-; is not all. Even the action of the petitioners will be covered by nuisance as defiae4 in section 268 of Pakistan Penal Code. The same reads as under;-- "A person is guilty of a public nuisance who does any act or is guilty 0f,i&. >-| illegal omission which causes any common injury, danger or annoyance to - iii '« f'lfcc pubik or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. , A common nuisance is not excused on the ground that it causes some convenience or advantage."

• It is clear from the definition of the nuisance that the construction in the pond also amounted to nuisance and the complainants rightly took exception ta the same, therefore, proceedings by respondent No. 2 are fully justified. 17. The petitioners have further sought declaration to the effect that the respondents are liable to be punished and respondent No. 10 was under legal duty, • to record F.I.R. Since the petition is liable to be dismissed both on facts as well aS on law points, therefore, the petitioners are not entitled to declaration as te punishment of respondents. The grievance of the petitioners that respondent Mo,"" 10 has not registered the case does not call for any declaration from this Court; ttrespondent No.10 has failed to register a case then the petitioners have an 1 alternative remedy of private complaint. If so advised they can pursue their.' remedy. No declaration is necessary from this Court. 18. Now coming to the directions part, the first prayer was that respondent No.2 be restrained from carrying out any further action. The proceedings before' respondent No. 2 had come to an end and order executed, therefore, this part of the prayer has become infructuous. As for .directions 2, 3 and 4 are concerned since the action has been adjudged to be valid, therefore, there is no occasion for, issuing such directions. In the end it was prayed for a direction to S.H.O to register a case. The petitioners have a remedy by way of private complaint, %& - already noted, therefore, they are not entitled to any relief in this behalf. 19. The result is that there is no merit in this petition. The same is dismissed with costs. Petition dismissed

PLJ 1990 Lahore 36 PLJ 1990 Lahore 36 [Rawalpindi Bench] Present: Mian allah nawaz, J SUHAIL HANIF-Petitioner versus PAKISTAN and another-Respondents Writ Petition No. 442 of 1989 (also 20 other writ petitions) dismissed on 22- 10-1989. Civil Servants (Appointment, Promotion & Transfer) Rules, 1973- —Rr. 3 & 10 read with Federal Public Service Commission Ordinance, 1977, Section 7-Ad hoc appointees-Written test of—Whether necessary-Question of-Argument that petitioners should be judged for their suitability on basis of their experience, qualifications and supportive documents without recourse to written test—Held: Petitioners, intending applicants have no legal right to question right of Commission in holding examination as a method for judging suitability of petitioners—Petitions dismissed. [P. 40,41,42&43] A, B&C PLD 1973 SC 144 relied. Mr. Bashir Ahmad Ansati, Advocate for Petitioners. Mr. Muhammad Afzal Siddiqui, Deputy Attorney General for Respondents. Date of hearing: 21-10-1989 order Writ petition Nos. 442/89, 445/89, 446/89, 447/89, 448/89, 449/89, 450/89,. 451/89, 452/89, 453/89, 454/89, 455/89, 456/89, 457/89, 458/89, 459/89, 460/89, 461/89, 462/89, 463/89, and 464/89 are proposed to be disposed of by this single order as the questions raised in all these petitions and reliefs claimed are same. 2. The dispute in these petitions relates to the right of the Public Service Commission to hold competitive examination for the appointments to 36 posts in the Economists Group Planning and Development Division, Government of Pakistan. 3. The facts in these petitions are not disputed. A few uncontested facts are that Sohail Hanif and others, herein the petitioners, are serving as Research Officers/Planning Officers/Survey Officers in EPS 17 in Economists Group in the Planning and Development Division, Government of Pakistan, as adhoc appointees till the nominees from the Federal Public Service Commission are made available for appointment by the competent authority. The Federal Public Service Commission (hereinafter referred to as Commission), issued advertisement for receiving applications to judge suitability of the applicants in respect of 36 posts of Research Officers/Planning Officers/Survey Officers in1" Department of Planning, hereinafter referred to as posts vide Advertisement No.P IV. 122/87-R. Amongst others, the petitioners have applied to the Commission. The tests are being conducted by the Commission for the purpose of framing Us recommendation in respect of suitability of intending candidates. The petitioners -• lodged a representation before the Commission to the effect that no competitive - test was provided in the Rules relating to Appointment Rules 1973. It was represented that the written tests were not even provided in the instructions issued by the Commission whereby the applications from the intending candidates were - called. The Commission rejected the representation and asked the petitioners to • participate in the competitive test. Hence these constitutional petitions. 4. Learned counsel for the petitioners in support of the petitions raised the following points:— (a) It was contended that the petitioners were to be inducted into service within the letter and spirit of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, wherein the method for appointment to a post " by initial recruitment in respect of post in the pay scale No.17 is provided, ; Reliance was placed on rules 3 and 10 of the said Rules. It was contended? I that rule 10 ibid envisages test and examination which meant the aptitude test and screening and not the written test. According to him the , combined reading of these two rules indicated that the written tests wete't, excluded, . (b) It was suggested that the written tests were even not provided under para 20-A of the instructions issued by the Commission. According to the learned counsel for the petitioners, para 20-A had a statutory force and was mandatory in nature. The Commission had no authority to depart from para 20-A and hold written test on the basis of a syllabus which was- callously made and was beyond any proportion. (c) Reliance was placed on the Recruitment Rules made by the Ministry of •_ Planning and Development Division wherein the method for appointment " in respect of the post is provided in detail but here too the competitive examination is excluded. Strength was sought from the precedent eases .' reported as Shahzad Gul and 9 others v. Government of NWFP "and another (PLD 1979 Peshawar 224) and Muhammad Zaman Klian V. Government of Punjab and others (1981 PLC (CS) 434). (d) It was urged that it was an established principle of interpretation that • whenever something was provided in statute it was to be done in the' same manner. Any non-compliance with the condition of the statute amounted to contravention of the statute rendering the action illegal and invalid on account of having been done without lawful authority. In this - respect Umar Draz Cheema v. Nazar Muhammad and others (1980 SCMR 156) Mazliar Hussain v. Province of Punjab (PLD 1985 Lahore 394) '. Musaddaq Ahmed Shah v. Federal Public Se/vice Commission Karachi (1978 SCMR 197) Tlie Principal Cadet College Kohat and another v/ Muhammad Shoab Qureshi (PLD 1984 SC 170) and Abdul Ghaffar v?;- Azad Government of the State of Jammu and Kashmir and 2 others ,(1985 ' CLC 832) were pressed into service. (e) It was finally contended that the Commission was baundJjyfffic-previous practice by which the adhoc appointees were n iiialiM lull il to be appointed without taking such test. In this respect the cample of . Zaka Ullah Baluch was cited. No other point was raised by the learned counsel for the 5. On the other hand learned Deputy Attorney General 'whothe respondents in pursuance of a pre-admission notice supported the Commission. Parawise comments on behalf of the Commission furnished wherein the objections were taken to the effect that the had advisory authority. It had to make recommendation in consequence < respect of suitability of the candidates for appointment. Till the appointment the competent authority on the basis of recommendation of Public Service Commission applicants had no right to file any constitutional petition. The kaoted Deputy Attorney General submitted that the petitions were not competent j&jWGNr; applicant had a legal right to insist upon a particular method of assessnfeirt for fits suitability, therefore, the petitioners had no vested legal right capable of enforcement through the jurisdiction of this Court. It was-next contended that the commission was a statutory authority deriving its powers under the constitution. Its principal function was to conduct test and examination for recruitment of persons to All Pakistan Service or the civil service of Federation and such posts in connection with the affairs of the Federation as may be prescribed by Rules made under Section 10 of Civil Servants (Appointment, Promotion, Transfer) Rules, 1973. Reliance was placed upon Government of the Punjab and another v. Sufi Malik Muhammad Sarfraz (PLD 1988 SC 280). 6. I have heard the learned counsel for both the parties at length. The learned Deputy Attorney General assisted the court in pursuance of the pre­ admission notice and has shown the original file relating to Mr.Baluch and other 16 persons against whom the allegation was ma,de that they were appointed otherwise than through test. 7. The questions calling for determination are :- (i) Whether the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 exclude the right of Commission to hold competitive test in respect of recruitment to the posts? (ii) Whether the Commission has no right to hold test under the Ordinance? (iii) Whether the adhoc appointees have any right to be regularized without the process of competitive test? 9. Rules 3 and 10 of the Civil Servants (Appointment, Prom 8. Now I-will proceed to determine the first point. Before examining the question in legal perspective it will be appropriate to mention the relevant applicable laws. The Civil Servants Act 1973 was promulgated to regulate the appointment of persons provide terms and conditions of service of persons in the service of Pakistan. In exercise of powers conferred under Section 25 of the Civil Servants Act, the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 were framed by the President of Pakistan. Transfcr)Rules, 1973 are relevant for the purpose of examination controversy. These two rules are as follows:- 3. (1) Appointments to posts shall be made by any of the following namely:- (a) by promotion or transfer in accordance with Part II of these rules : and (b) by initial appointment in accordance with Part III of these rules. (2) The methods of appointment and the qualifications and other conditions" applicable to a post shall be as laid down by the Ministry of Divisioa' concerned in consultation with the Establishment Division. 10. Initial appointment to the All Pakistan Services, the Civil Services Federation and posts in connection with the affairs of the Federation J basic pay scales 16 to 22 and equivalent, except those which, under tbe. 'J Federal Public Service Commission (Functions)Rules, 1978, do not ft81 within the purview of the Commission, shall be made on the basis of tester and examinations to be conducted by the Commission. 10. A plain reading of rules 3 and 10 ibid indicates two methods q£j appointment i.e. (i) appointment by promotion or transfer in accordance with park-II of the Rules,(ii) by initial appointment in accordance with part III of the Rules, ~ The rule 10 ibid in an un-ambiguous manner prescribes that the appointment to- the post carrying basic pay scales 16 to 20 have to be made on the basis of tests and examinations to be conducted by the Commission. The Commission was givea 'i powers to perform its duties under the Federal Public Service Commission Ordinance 1977. Under Section 7 the functions of the Commission are provide!' which are as follows:- 7. Functions of the Commission: The functions of the Commission shall be;, ." a) to conduct test and examinations for recruitment of persons, than officers of the Armed Forces of Pakistan who are appointed to~V such services or posts on the recommendation of the High Poweire<Jf,f ^ Selection Board constituted by the President for the purpose to aft? Pakistan services, the civil services of the Federation and suchin connection with the affairs of the federation as may be prescri&etff |S by rules made under Section 10, and b) to advise the President on matters relating to qualifications for, methods of recruitment, to the services and posts referred to clause (a), and any other matter which the President may refer commission. Commission (Functions) Rules 1978 were framed. In the relevant rule the definition of test is given in sub-clause (f) of rule 2 which is as follows:- Test: includes written examination, interview and viva voce. 13. Rule 3 of the Federal Public Service Commission (Functions) Rules, 1978 is as follows:- 3. The Commission shall conduct tests and examinations for recruitment to civil posts in connection with affairs of the Federation in basic pay scales 16 and above or carrying pay with the maximum of Rs. 2,250 and above other than posts - a) specified in the Schedule to these Rules— b) filled by appointing a person on contract for a specified period not exceeding two years; c) filled on adhoc basis for a period of six months or less pending recruitment through the Commission; Provided that the said period may be extended - (i) for a further period of six months with the approval of the Commission if requisition for filling the post was sent to the Commission within two months of the filling of the post on adhoc basis and the Commission had failed to nominate a candidate; and (ii) in any other case, by order of the President or a person authorised by him in this behalf; d) filled by re-employing a retired officer, provided that the re-employment is made for a specified period not exceeding two years in a post not higher than the post in which the person was employed on regular basis before retirement. 11. It follows from rules 3 and 10 of the Rules read with section 7 of the Ordinance, that appointments to the post by initial recruitment have to be made. by the process of determination of suitability by a Very high forum i.e. the Commission. The objective underlying these aforenoted laws is to induct the persons in service on the basis of merit and competitive efficiency adjudged by a very high forum in order to ensure highest standard in the Services of Pakistan. The interpretation put forth by the learned counsel for the petitioners is completely negatived by a bare reading of Section 7-A of the Ordinance and the definition of test given in clause (f) of rule 2 of the Federal Public Service A Commission (Functions) Rules, 1978,(hereinafter referred to as functions rules 19.78), therefore, according to my view the argument that the petitioners should be judged for their suitability on the basis of their experience, qualifications and supportive documents without recourse to written test is completely misconceived and is totally contrary to express language of Functions Rules 1978, the Section 7 of the Ordinance and Rules 3 and 10 of the Appointment Rules 1973. Therefore, the argument is repelled. I, therefore, hold that the Public Service Commission is completely justified in insisting that all the intending applicants including the present petitioners must appear in the examination which is being conducted |j the Commission. 12. There is yet another aspect of the case which needs examination. The petitioners are still adhoc appointees, have no legal right per se their adhoc appointment to claim regularization of appointment. Under no stretch of circumstances they have right to claim a specific method of assessment as I have noticed earlier that Public Service Commission is a forum of High Value to report in respect of the suitability of intending applicants. It has an advisory jurisdiction. The pre-rogativc of the appointment squarely lies with the competent authority who has been given the option to differ with the findings of the Commission subject to the condition that it may inform the Commission itself, if it differs within the frame work of Section 8. The only pre-rogative of the Commission is to test the suitability of the candidate for framing recommendation to competent authority. This question was examined in Dr. Habib-ur-Rchman vs. Tlte West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144). In this case one Dr. Habib-ur-Rehman challenged the recommendation made by the West Pakistan Public Service Commission and action taken by the Provincial Government for appointment to the post of Professor of urgery. The challenge was based upon the grievance of the petitioners that instructions issued by the Public Service Commission considered at the time of interview were made the basis of recommendation. As a matter of fact the instructions issued by the Commission at the time of inviting applications must have been considered for the purpose of framing the recommendation. Repelling the argument, the Supreme Court observed as follows:- "While considering the question whether relevant rules/instructions have been infringed in any manner in the matter of assessing the respective merit of the competing candidates, it has to be borne in mind that the reference must be to instructions current at the time the interviews are held by the Public Service Commission. An attempt was made during the course of arguments at the Bar to assert that the instructions applicable should be those which were in force at the time the posts were advertised. This position cannot be accepted, as it is difficult to hold that candidates applying for recruitment by interview have any vested right in the method of assessing their merit. Accordingly, we intend to examine this aspect of the case with reference to the instructions which were in force at the time the two interviews were held." 13. Guided by enunciation of law by the Supreme Court, I am clear in my" mind that the petitioners, intending applicants, have no legal right to question the B right of Commission in holding examination as a method for judging suitability of the petitioners. 14. Reverting to the next question that only test relating to screening experience and qualifications is concerned, I find no material to support this interpretation. Section 7 of the Ordinance lays emphasis upon to conduct test and examination, the definition of test given in the Functions Rules 1978 says "the test includes written examination interview and viva voce." 15. The definition of test and competitive examination as given in the Black's Law Dictionary (Fifth Edition) is as follows :- Test: To bring one to a trial and examination,or to ascertain the truth or the quality or fitness of a thing .... a Criterion, gauge, standard, or norm " Competitive civil service examination: Examination which conforms to measure standards which are sufficiently objective to be capable of being challenged and reviewed by other examiners of equal ability and experience. Such exam, may be open in which case all may take it or may be promotional in which case only those in service may compete against others in service." 16. A reference to plain reading of Section 7 and rule 2 makes it clear that the Commission has been given the task of judging the suitability of the intending candidates and emphasis has been placed upon the word "test" and "examination". Very plainly test and examination means the standard or a gauge whereby the intending applicants have to be scrutinized. No interpretation placing curb on the Commission to judge the candidates can be convassed in the context of insistence upon a specific method of tests. The precedent authorities quoted by the learned counsel for the petitioners are not relevant to the questions involved in these petitions and proceed on distinguishable facts. Despite my finding that the applicants have no right to challenge the right of Commission to hold test, it is necessary to lay down that the Commission is a statutory authority and has to conduct its functions in accordance with the law. If the Commission travels beyond the statutory authority or performs any act which is in contravention of the laws it is subject to the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. 17. For whatever has been stated above, I have come to the conclusion that | these petitions are without any merits, therefore, these are dismissed in limine. (MBC) Petitions dismissed.

PLJ 1990 Lahore 42 PLJ 1990 Lahore 42 [Bahawalpur Bench] Present: MUHAMMAD SHARIF, J NAS1R AHMAD-Petitioner versus DEPUTY COMMISSIONER, Bahawalnagar and 2 others-Respondents Writ Petition No. 670/BWP of 1988, accepted on 13-5-1989. Punjab Local Councils (Appeal) Rules, 1980— —R.l-Employees of Local Government-Service matters of-Whether appeal lies to Deputy Commissioner-Question of-On appeal of respondent No. 2, he' was ordered by Deputy Commissioner to be given post of Octroi Clerk within 2 months and if no post was available within two months, he should get post of petitioner-Appeal obviously did not lie as respondent No. 2 was not penalised- Having been appointed against a leave vacancy, Respondent No. 2 was to revert to post of Naib Qasid on termination of leave vacancy—Petition accepted and impugned order quashed. [Pp. 45&46]A,B&C PLD 1977 Lahore 1082 relied. Mr. M. Rahim, Advocate for Petitioner. Ch. Muhammad Akhtar Shabbir, Advocate for Respondent No. 2. Date of hearing: 13-5-1989. judgment Naseer Ahmad, the petitioner, was appointed as an octroi clerk in the Municipal Committee, Bahawalnagar, on 3.5.1986. The petitioner look over the charge of the post of an octroi clerk and had been performing his duty efficiently and honestly. Respondent No.2 filed an appeal against the appointment order of the petitioner which was dismissed on 12.5.1987 by the Deputy Commissioner, Bahawalnagar. 2. Muhammad Iqbal, respondent No.2, continued to pursue the matter and obtained the impugned order dated 27.5.1988 passed by respondent No. 1 by virtue of which the appeal filed by him was accepted in the terms that he should be given a post within two months of the impugned order and if no post was available to him within two months then he should get the post of the petitioner according to letter No. 11.70/(43)6-(Admn) LSE dated 23.9.1970. Against the said order, this constitutional petition has been moved. 3. It may be noted that according to the facts of this case, Muhammad Iqbal was serving as a Naib Qasid in the Municipal Committee, Bahawalnagar, On the leave vacancy caused by Saeed Ahmad, an octroi clerk, he was temporarily appointed as an octroi clerk in that leave vacancy. Muhammad Iqbal was once suspended from service for over-charging and on account of his unsatisfactory record and after the conclusion of the leave of Saeed Ahmad, he was reverted to the post of Naib Qasid. The Deputy Commissioner, Bahawalnagar, by referring to the afore-mentioned Notification passed the impugned order that he should be posted in place of the petitioner if Muhammad Iqbal did not get any employment in the Municipal Committee as an octroi clerk within two months. 4. The first appeal lodged by Muhammad Iqbal was unsucccssiui and obviously on the same point, the second appeal did not lie. Appeals are provided in Section 166 of the Punjab Local Government Ordinance, 1979, which states that any person aggrieved by any order passed by a local council or its Chairman (or its Vice-Chairman or Officer) in pursuance of the Ordinance or the rules or byelaws, may appeal to such authority, in such manner and within such period as may be prescribed and any order passed in appeal shall be final. Rules have been framed under the said Ordinance which have been called as Punjab Local Councils (Appeal) Rules, 1980. According to para 3 of Rule 1, of these rules, they shall apply to all appeals preferred against orders passed under the Punjab Local Government Ordinance, 1979, and the rules or bye-laws framed thereunder except appeals by servants of Local Councils in matters relating to their service. 5. According to the aforc-mcntioncd rule, no appeal lies in matters relating to the service of the employees of the Local Government. In this manner, ihe appeal did not lie to the Deputy Commissioner in matters relating to the service of the petitioner and Muhammad Iqbal. Muhammad Ashraf. v. Muhammad .Siddique and 2 others (PLD 1977 Lahore 1082) also enunciates the same principle. 6. It has been contended that the Punjab Local Councils (Appeal) Rules, 1980, contradict section 166 of the Punjab Local Government Ordinance, 1979, and appeal should have been provided in all matters. I do not countenance this argument because Rule 1 of the Punjab Local Councils (Appeal) Rules 1980, is not inconsistent with section 166 ibid. There are clear rules that an appeal by the Deputy Commissioner cannot be heard in matters relating to their service. The implication behind this exception seems to be that service matters are dealt with by the Efficiency and Discipline Rules. 7. Again Muhammad Iqbal took refuge under Notification No. ll-70/(43)6- (Admn) LSE dated 23-9-1970 which bars direct recruitment of the employees in a Municipal Committee. This Notification cannot be given the status of law or rules because the Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983, have been framed which envisage initial recruitment, recruitment by promotion or transfer by the authority. The said Notification is, therefore, ultra vires of the said Rules and does not merit any consideration. 8. The appeal obviously did not lie because Muhammad Iqbal was not penalised. He was appointed against a leave vacancy and he was to revert to the post of a Naib Qasid on the termination of the leave vacancy. 9. This being so, the impugned order is quashed. The Municipal Committee may, however, appoint Muhammad Iqbal to the post of the octori clerk whenever it occurs on the basis of efficiency cum fitness and according to Punjab Local Council Service (Appointment and Conditions of Service) Rules 1983. Due to legal complexities involved in this writ petition, 1 make no order as to costs. (MBC) Petition accepted

PLJ 1990 Lahore 44 PLJ 1990 Lahore 44 Present: malik muiiammad qayyum, j A/A. BASCO ENTERPRISES (Pvt) Ltd-Petilioncr versus MUHAMMAD SIDDIQ and 2 others-Respondents FAO No. 175 of 1989, dismissed on 15-10-1989. Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —-S.24 read with Limitation Act, 1908 Section 5-Appeal to High Court-­ Limitation for-Whether Section 5 of Limitation Act is applicable-Question of-Cantonmcnt Rent Restriction Act, 1963 is a special and local law and limitation of 30 days for filing appeal in High Court has been prescribed in it—Held: Section 5 of Limitation Act having not been mentioned in clause (a) of sub-section (2) of Section 3, provisions of Section 5 do not pply to appeals arising under Cantonment Rent Restriction Act, 1963-Appcal dismissed as time barred. [Pp. 45&46JA & B 1988 SCMR 1863 and 1983 SCMR 1239 relied. S/i. Sikandar Iqbal, Advocate for Appellant. Sh. Muhammad Asadullah, Advocate for Respondents. Dale of hearing: 15-10-1989. order This appeal under Section 24 of the Cantonment Rent Restriction Act, 1963, against order dated 2nd August, 1989 passed by the Additional Rent Controller, Lahore Cantt. is barred by lime. It is accompanied by an application (CM. No. 4021/89) under Section 5 of the Limitation Act, for condonation of the delay in filing the appeal on the ground that the representative of the appellant, namely, Hafi/ Rana, its General Manager, had fallen seriously ill and could not file the appeal earlier. 2. A preliminary objection has been raised by Sh. Muhammad Asadullah, the learned counsel appearing on behalf of the respondent, that the provisions of Section 5 of the Limitation Act are not applicable to appeals arising out of the Cantonment Rent Restriction Ordinance, 1963 and therefore, the question of condoning delay in filing the appeal does not arise. 3. According to Section 29(2) of the Limitation Act, 1908, if any special or local law prescribes a period of limitation different from that prescribed by the First Schedule to the Limitation Act for filing any suit, appeal or application, the provisions of Section 3 shall apply, as if such period were prescribed in the chedule itself. Clause (a) of sub-section (2) ordains that the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply to the extent to which they are not expressly excluded by such special or local law. Clause (b) of the sub section provides that the remaining provisions of the Limitation Act shall not apply. Section 5 of the Limitation Act, is not one of the provisions mentioned in r \ clause (a) and, therefore, by virtue of clause (b) it has no applicability to the proceedings arising under any special or local law, if the period of limitation prescribed therein is different from that prescribed by the First Schedule to the Limitation Act. There can be no manner of doubt that the Cantonment Rent Restriction Act, 1963, is a special and local law and further that it prescribes a period of limitation for filing an appeal different from that provided by the Limitation Act. According to Section 24 of the Cantonment Rent Restriction Act, appeal, to the High Court has to be filed within 30 days of the impugned order while Article 156 of the Limitation Act allows the period of 90 days during which an appeal can be filed in the High Court. This being the position, the provisions of Section 5 of the Limitation Act, do not apply to the appeals arising under the Cantonment Rent Restriction Ordinance, 1963. This view finds full support from the judgment of the Supreme Court in Hafiz Muhammad KJian v. Salim and another (1988 SCMR 1863) and AH Muhammad v. Fazal Hussain (1983 SCMR J239). 4. 4. For the reasons aforesaid, I hod that the petition under Section 5 of the Limitation Act is not competent which is accordingly dismissed. As a result H thereof, appeal is also dismissed as being time barred. The petitioner shall vacate the premises within four months from today. (MBC) Appeal dismissed.

PLJ 1990 Lahore 46 PLJ 1990 Lahore 46 Present: iiisanul haq qiaudiiary, J. MUHAMMAD AKRAM-- Petitioner Versus ADDITIONAL DISTRICT JUDGE, Lahore and 2 others-Respondents Writ Edition No. 7366 of 1989, dismissed on 29.11.1989. (i) Urban Rent Restriction Ordinance, 1959 (W.P.Ord. VI of 1959-- —S.2--Landlord--Definition of—Ejectment petition by owner—Maintainability of—Challenge to—It is clear from definition of landlord that it covers in its fold not only persons who actually receive rent but also a person who is entitled to receive rent-In this case, admitted position is that respondent No. 3 is owner of premises in dispute—Held: Entitlement of respondent No. 3 to receive rent cannot be denied if she had made any other arrangement (of collection of rent by her father). [P. 49]A (ii) Urban Rent Restriction Ordinance, 1959 (W.P.Ord. VI of 1959)-- —S.2—Landlord—Definition of—Relationship of landlady and tenant—Denial of—Contention that Haji Muhammad Younas (father of landlady) was landlord for all practical purposes—No writing from landlord is required to receive rent-Petitioner categorically admitted in suit and also in writ petition that he is tenant in premises-Held: Denial of tenancy is clearly malafide and contumacious [Pp. 49,50&51]B, C&D PLJ 1983 SC 546, PLD 1977 Lahore 516, and PLD 1987 Lahore 280 ref. (iii) Urban Rent Restriction Ordinance, 1959 (W.P.Ord. VI of 1959)-- —S.13—Tenant—Ejectment of—Landlady and tenant—Relationship of—Denial of—On one hand, petitioner admitted that Haji Muhammad Younas is his landlord but on other hand, he proceeded to lead evidence that premises were handed over to him on care-taker basis-He claimed that rate of rent was Rs. 2500/- and not Rs. 3500/- as alleged in ejectment petition- Petitioner is alleged to have produced forged and fabricated receipts in civil suit to secure injunction—Held: Petitioner seems to be a man of no scruple-­ Held further: Petitioner has taken contradictory and false pleas and made court proceedings mockery-Petition dismissed with special costs of Rs. 10000/-. [Pp- 51&52JE&F Mr. Riaz Karim Qureshi, Advocate for Petitioner. Mr. Iftikhar Ahmad Malik, Advocate for Respondent No. 3. Dates of hearing: 20, 21 and 29-11-1989. order The petitioner, in this Constitutional petition was cited as respondent in the ejectment proceedings initiated by respondent No. 3. The petition was filed on 9- 1-1988. The land-lady alleged that the premises were let out to the petitioner w.e.f 1-5-1985 at a monthly rent of Rs. 3500/-. The petitioner paid rent for a year in advance against duly executed receipt dated 6-5-85. It was alleged that the petitioner has neither paid nor tendered any rent thereafter. The ejectment of the petitioner was sought on the grounds of default in the payment of rent since May, 1986 and personal use. The petitioner resisted the petition on facts as well as on legal points. He denied the existence of relationship of land-lady and tenant. The learned Rent Controller accordingly framed the following preliminary issues:- (/) Whether the relationship of landlord and tenant exists between the parties? O.P.A. (//) Relief. 2. The land-lady in support of the issue examined AW 1 Muhammad Ishtiaq, AW 2 Muhammad Sharif and Haji Muhammad Younas father and general attorney of the land-lady appeared as AW 3. The petitioner in rebuttal examined RW 1, Ashafaq and himself appeared as RW 2 and closed the side. The learned Rent Controller after hearing the arguments answered preliminary issue No. 1 in positive and thereafter proceeded to order ejectment of the petitioner forthwith. The order of the Rent Controller is dated 8-7-1989. The same was assailed through an appeal before the appellate authority, who dismissed the appeal of the petitioner vide order dated 22-10-1989 and confirmed the findings recorded by the learned Rent Controller. Now the petitioner through this Constitutional petition has assailed the orders of the Courts below. 3. The petition came up for preliminary hearing on 21-11-1989 and notice for pre-admission hearing was issued to respondent No. 3, who has entered appearance through an Advocate. 4. The learned counsel for the petitioner in support of the petition has argued that the land-lady miserably failed to prove preliminary issue, therefore, the Courts below acted illegally and wrongly decided the issue against him. It is maintained that it is clear from whole of the evidence on record inclusive of the statements of AWs that it was Haji Muhammad Younas, who let out the premises to the petitioner and it is he, who has been receiving rent from the petitioner throughout, therefore, he was his landlord and not respondent No.3. The learned counsel in support of the argument relied on a case reported as Rehmatiillah v. All Muhammad and another (P.L.J 1983 SC 546). 5. On the other hand the learned counsel for respondent No. 3 has argued that the premises were let out by Haji Muhammad Younas, who is the father of his client, on her behalf. It is added that admittedly the owner of the properly is his client. The learned counsel further submitted that by authorising some-body else to receive rent or to manage the property the owner does not loose status of landlord. The learned counsel in support of the argument has relied on the judgment in the cases of Sved Amjad All Shah v. Muhammad Afzal and 3 others (P.L.D 1987 Lahore 280), Muhammad Aslam v. Muhammad Younas and another (1983 C.L.C. 2304), Muhammad Sharif v. Sh. Muhammad Amin (P.L.D 1977 Lahore 516), Hakim Din v. Muhammad Irshad (P.L.D 1978 Lahore 333) and Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqub (P.L.D. 1976 Karachi 992). The learned counsel on the strength of these precedent cases, it is concluded that respondent No. 3 was the land-lady and jhe petitioner wrongly, malafide and contumaciously denied the relationship. 6. The next submission on behalf of respondent No. 3 was that the petitioner has not come with clean hands and in-fact his hands are tainted with fraud, therefore, not entitled to any relief in extraordinary proceedings. The learned counsel went on to submit that the premises were let out at a monthly rent of Rs. 3500/- and the petitioner paid advance for a period from 1-5-1985 to 30-4-1986 against duly executed receipt dated 6-5-1985 but thereafter he did not pay or tender any rent what-so-over to any-one. On the other hand in order to cover the default he took up the plea that the rate of rent is Rs. 2500/- per month and he had paid advance of Rs. 90,000/-. It is added that the petitioner also instituted a suit for permanent injunction and produced a forged receipt to secure interim relief but when the defendant took exception to the same the learned Civil Judge directed the petitioner vide order dated 24-2-88 to produce the original receipt. This order was not complied. The direction was repeated on 19-3-88 and 28-4-88 but remained uncomplicd. Ultimately this suit was got dismissed for nonprosecution on 5-5-88. 7. The learned counsel for respondent No. 3 has submitted that the rate of rent is Rs. 3500/- per month. The same is rightly incorporated in para 2 of the rit petition. It is added that even if the rate is worked out from receipt Ex: CW/1, then it comes to Rs.3500/- and not Rs.2500/-. The petitioner during the limine hearing tendered this receipt together with another cash memo. I put these documents to Haji Muhammad Younas, who was present in the Court today. He admitted that receipt dated 6.5.85 was issued by him when the premises were let out. The advance rent for one year was received while he has denied the cash memo, therefore, this receipt was exhibited as Ex: CW 1. The learned counsel further demonstrated with reference to the statement of petitioner as RW 2 that petitioner in the first instance denied the tenancy altogether. He took up the position that the premises were made over to him by Haji Muhammad Younas just for proper custody and there was no arrangement for the payment of rent. It is added that the statement of the petitioner is full of ontradictions. On the one and the petitioner maintained that he did not pay any amount to Haji Muhammad Younas in the rent account. On the other hand, he admitted the issuance of cheques Ex: A/1, A/2 and A/4 and also the undertaking AW 4. This is not all. The learned counsel has further referred to the cash memo produced by the petitioner to argue that on the one hand it is alleged that no amount was paid towards rent, on the other hand from this cash memo the petitioner tried to prove that rent has been paid in advance upto 15.12.89. It is added that this is besides the fact that the relationship of land-lady and tenant was malafide and contumaciously denied. 8. I have given my anxious considerations to the arguments of the learned < counsel for the parties and gone through the record as well as precedent cases. The crucial question involved in this Constitutional petition is maintainability of the ejectment petition by the owner, therefore, it is worthwhile to refer to the definitions of landlord and tenant as given in sections 2-c and 2-i of Rent Restriction Ordinance. It is clear from the definition of the landlord that it covers in its fold not only persons who actually receive rent but (also) who is entitled to receive rent. In the present case the admitted position is that respondent No.3 is the owner of the premises in dispute, therefore, her entitlement to receive rent cannot be denied or taken away if she had made any other arrangement. The A learned counsel for the petitioner while making the submission did not bear in mind the mischief likely to be created if such position is accepted. Now for example, a Manager is appointed to receive rent for the premises and he is found guilty of defalcation of funds and owner removes him. If the contention of the learned counsel for the petitioner is accepted then even after his removal the owner will not be entitled to deal with the tenants. Now taking the present case if Haji Muhammad Younas father of the respondent land-lady is to be treated as landlord for all times to come, .then it will amount to depriving the owner of her disposition and control over the property. It will amount to subtracting or impairing material rights of ownership. This cannot be object of law. Now coming to the argument of the learned counsel for the petitioner with! counter-reference to the arguments on behalf of respondent No.3, learned counsel for the petitioner argued that for all practical purposes Haji Muhammad Younas ; was the landlord especially power of attorney in his favour was given subsequently, g The learned counsel for the petitioner in support of the argument has referred to the case of Rehmat Ullah. The same if gone through minutely goes against the: petitioner rather supporting his argument. The relevant portion reads as under:- , "Sometimes in order to support the plea that the Rent Controller has only to form a tentative opinion regarding relationship of landlord and'tenant because it is not always necessary for the landlord, under the wide and extended definition of the term 'Landlord' to establish 'ownership' of the property concerned. Therefore, the Rent Controller need not go into the disputed questions of title. It is true that the definition of the landlord, as held in many cases, in the said law is very wide and a person in various capacities can be deemed to be a landlord even if he is not owner of the property. But it cannot be denied that in large majority of the cases the claim of the applicant before the Controller as landlord is based on the ownership of the property, because the right to recover rent in those cases is based on the title in the property. Tlris category of landlord is visualized in the very opening part of the definition of the landlord "any person for the time being entitled to receive rent whether on his own account or " is a landlord. 9. On the other hand, learned counsel for respondent No.3 has referred a'c 'large number of cases as noted in earlier paragraph of this order. It is not relevant ;to refer to all the decisions, suffice here to refer the case of Muhammad Sharif \ibid. In this case, the husband had been receiving rent on behalf of and for benefits of the wife. There was nothing in-writing. This Court held that no-writing is required for entitlement to receive rent. The relevant portion of the judgment reads as under:- It is obvious that the expressions "on behalf or for the benefits of are very wide. There is no such rider in the statute that the entitlement of any person to receive rent on behalf of another person should be based on any writing. It is necessary to point out that wherever formalisation through writing was felt necessary by the law maker, it was so provided. 10. Now I take up the case of Syed Amjad Ali Shah. This is applicable on all fours to the present case. In the precedent case, the petitioner was residing at Oslo, Norway and his father rented out the shop to respondent No.l through rent note. The ejectment petition was filed bv the father of the owner acting as general attorney. The petition was contested, the ejectment petition was accepted and ejectment ordered. This order was assailed through an appeal by the tenant. The appeal was accepted and ejectment order set aside on the finding that the petitioner was not the landlord and not competent to seek ejectment. This order was assailed through Constitutional petition and while dealing with the point of relationship my learned brother Falak Sher J, held as under:- "A perusal of the above reveals that the rubric to this clause is the expression "entitled". The intention of the framers of this piece of legislation is clearly beyond any ambiguity that a person to be a landlord within the meanings of the above clause is not restricted to a person who actually receives rent, but it also contemplates within its ambit, a person who is eligible to receive rent, though he might have never in fact received rent in the past. To illustrate this point, one may say that, an attorney, an estate Manager, owner, co-owner etc. are the persons who simultaneously at a given point of time, are entitled to receive rent and thus landlords." 11. Now coming to the merits of the plea, the petitioner categorically .admitted in the suit that he is tenant in the premises. The same is the position in Ipara 2 of this writ petition where the petitioner admitted that he is a tenant in the premises at rate of Rs.3500/-. This way the factual controversy raised by the petitioner in his own statement as RW 2 and his witness RW 1 is of no consequence. The legal position has already been dealt at length. It is relevant to add here that the so-called landlord Haji Muhammad Younas has not taken any undue advantage. The bonafide of the landlord is crystal clear of the fact that even the ejectment petition was filed through Haji Muhammad Younas as real father and general attorney, therefore, the denial of tenancy cannot be held to be genuine. The same was clearly malafide and contumacious. This is not all but the jwhole conduct of the petitioner is fraudulent. 12. The petitioner on the one hand admitted that Haji Muhammad Younas is his landlord, on the other hand proceeded to lead evidence to the effect that the premises were handed over to him on care taker basis and no amount was paid in the rent account. This was clear departure from his written reply and even (contradicted by the contents of the present petition. The petitioner also denied the rate of rent. He claimed that rate of rent is Rs.2500/- per month and not 3500/-as alleged in the ejectment petition. The petitioner tried to prove this assertion but ultimately also conceded the rate in this writ petition. The petitioner withheld the receipt of the advance rent. The purpose seems to be two fold, firstly to avoid the payment of arrears, secondly to conceal the rate of rent. Photo copy of this receipt was ultimately produced by his learned counsel at the limine hearing. The same was admitted as correct by Haji Muhammad Younas and has been marked as CW1. The rent in advance for a year was paid through this receipt. The total amount was Rs.42,000/-, therefore, rate of rent is established as Rs.3500/- per month. The petitioner is alleged to have produced forged and fabricated receipts in the civil suit to secure injunction and when he was asked to produce the original he absented himself and got the suit dismissed for non-prosecution. This is not all. The petitioner has produced a cash memo dated 14.9.88, according to which Haji Muhammad Younas purchased ornaments worth Rs.45,000/- and on the foot an endorsement was alleged to have been made by Haji Muhammad Younas that this amount is treated as advance rent w.e.f 15.7.88 to 15.12.89. This was obviously at the rate of Rs.2500/- per month. This cash memo is patently forged and fabricated document for the following reasons:- Firstly, 'the relation between the parties became strained and even according to the allegations of the petitioner Haji Muhammad Younus pressurised the petitioner through local police and in order to ward of this harassment the petitioner filed a civil suit on 8.11.87, in which he impleaded the Sub Inspector Muhammad Amir and ASI Farzan Ali as defendants besides Haji Muhammad Younas; Secondly, the ejectment petition was filed on 9.1.88 and the same was also pending. It is not possible to believe that inspite of strained relations and matter being pcrsued before police, Civil Court and Rent Controller, the petitioner was such a gentleman who paid the advance rent out of Court. The rent was paid through this alleged cash memo at Rs.2500/- per month while in this petition the petitioner has conceded that rate of rent is Rs.3500/- per month as claimed by the land-lady. This fact alone is sufficient to disbelieve this cash memo. 13. The petitioner seems to be a man of no scruple. He has taken contradictory and false pleas and made the Court proceedings a mockery. There is no merit in this writ petition. The same seems to be an effort to enjoy maximum rent free period. 14. The result is that the petition is dismissed with special costs of Rs.10,000/- (Ten thousand). (MBC) Petition dismissed

PLJ 1990 Lahore 51 PLJ 1990 Lahore 51 Present: GUL ZARIN kay AM, J. DAULAT ALI-Petitioner Versus SHAGUFTA RANI and another—Respondents Writ Petition No.5380 of 1989, dismissed on 9-10-1989 (i) Family Courts Act, 1964 (W.P Act XXXV of 1964)-- —S.12 (1)—Post trial reconciliation—Efforts of—Non-adhering to—Effect of— From evidence it appears that respondent No. 1 was not prepared to rejoin petitioner—She expressed her unequivocal determined disinclination for petitioner—Held: Efforts for reconciliation at post trial stage would have been a mere formality. [P. 53] B (ii) Khula- —Marriage—Dissolution of— KJiiila— Ground of—Challenge to—Respondent No. 1 insisted on divorce and was not prepared under any circumstances to live with petitioner as his wife—Marriage appears to have irretrievably broken down—There were no prospects of reconciliation between them— Hatred between them is deep rooted—Held: No exception can be taken to impugned judgment which proceeds on correct analysis of evidence and suffers from no misapplication of law—Held further: It was a fit case for grant ofKJmla divorce—Petition dismissed. [Pp. 53&54JC (ill) Natural Justice— —Evidence—Closure of—Whether petitioner was condemned unheard- Question of—Record indicates enough opportunity to petitioner to lead his evidence—Provisions of Family Courts Act arc aimed at quick settlement of family disputes—There was no justification for not producing evidence on date fixed for recording it-Held: Argument that petitioner was condemned unheard and had not been afforded adequate opportunity, carriesno substance in it—Held further: Covrt appears to have acted rightly in closing petitioner's evidence. [P. 53]A Air. Tahir Qurcshi, Advocal< : r Petitioner. Mr. Inamullah Klian, Advocate for Respondent No. 1. Date of hearing: 9-10-1989. judgment By this petition under Article 199 of the Constitution, Daulat Ali petitioner who was defendant in the trial Court seeks to challenge judgment dated 22-6-1989 of Judge Family Court Narowal decreeing Khula divorce to Shagufta Rani respondent No. 1. Daulat Ali was married to Shagufta Rani on 23-9-1983. From this marriage, two daughters were born to them. They are living with the mother. Though the parties had children, yet for some unfortunate events to which reference has been made in the plaint, they could not pull on well and live a happy matrimonial life. In result, respondent No. 1 left the house of her husband and took up residence with her parents. She also took children with her. Seeing no prospects for reconciliation, she approached the Court to seek divorce from the petitioner. It was averred that petitioner had developed illegitimate relations with his brother's wife and on the objection raised, maltreated respondent No. 1 and even gave actual beatings. It was also averred that petitioner was a heroin addict and had neglected to pay maintenance for a period of 2\ years to respondent No. 1. Petitioner denied the averments in the plaint and stated that a year before, respondent No. 1 had left his house on her own to attend a marriage ceremony and had also removed valuables belonging to him. At the pre-trial hearing, trial Court attempted at reconciliation between the parties but it bore no useful results. Thereafter, trial Court settled necessary issues for determination and adjourned the case for recording of evidence by the parties. Plaintiff concluded her evidence on 6-2-1989. Thereafter, suit was adjourned more than once to enable the defendant/petitioner to produce his evidence. He failed. Consequently, Court closed his defence, on 22-6-1989 and upon examination of the material brought on file by the plaintiff-respondent No. 1, gave khula divorce to her. This decision has been challenged by the petitioner. Three points were urged. (1) Trial Court could not have justifiably closed petitioner's evidence. (2) After close of evidence, trial Court made no efforts for a compromise or reconciliation between the parties. Section 12(1) of the Family Courts Act is mandatory. Its non-compliance vitiates the judgment. (3) Existing evidence did not justify grant of khula divorce. Upon hearing learned counsel and examination of available records, I see no substance in the contentions. Record indicated enough opportunity to the petitioner to lead his defence. Provisions in Family Courts Act are aimed at quick settlement of family disputes. In view of their peculiar nature and effect on family life, these disputes cannot be permitted to drag on and suffer unnecessary long A delays. Argument that petitioner was condemned unheard and had not been afforded adequate opportunity carried no substance in it. There was no justification for not producing the evidence on the date fixed for recording it. On the record, Court appears to have acted rightly in closing the petitioner's evidence and refusing to adjourn the case further for him to lead his evidence. As far the second point, suffice to say that it was a mere irregularity which did not affect the decision on merits. From the tenor of the proceedings and what was stated in' evidence by respondent No.l, efforts for reconciliation at post trial would have been a mere formality. From the evidence, it appears that respondent was not prepared to rejoin the petitioner. She expressed her unequivocal determined b disinclination for the petitioner. Presence of children which could otherwise have served as a uniting factor also did not succeed to bring them together. Much before the commencement oflitigation, parlies were living separately. Respondent No. 1 claimed maintenance for herself and for minor children and filed a suit against the petitioner. Family Court awarded maintenance at the stated rate to two minor daughters but dismissed the claim of respondent No. 1. Copy of the judgment in the maintenance suit is not on record. Court litigation alsocontributed to already existing bitter relationship between the parties. Passage of time could not bridge their differences. Respondent No. 1 insisted on divorce and was not prepared under any circumstances to live with the petitioner as his wife. Marriage between them appears to have irretrievably broken down. There are no prospects for reconciliation between them. Hatred between them is deep rooted. In the existing circumstances, it shall be of no use to compel the parties to live q together as husband and wife in an atmosphere surcharged with mutual distrust and dislike. When such are the circumstances, it is better to separate to enable the parties to chalk out a fresh programme in life. Since defendant-petitioner gave no evidence to rebut what was stated against him in evidence produced by respondent No.l, no exception can be taken to the impugned judgment which proceeds on correct analysis of the evidence and suffered from no misapplication of law. It was, a fit case for grant of Khula divorce to respondent No. 1. In view of the aforesaid, I see no reason to interfere. Writ petition being without merits is dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 54 PLJ 1990 Lahore 54 Present: GUL zarin KlANl, J Dr. MUHAMMAD SIDDIQUE-Petitioner versus ADDITIONAL DISTRICT JUDGE, FAISALABAD and 3 others-Respondents Writ Petitions Nos 1204 and 1225 of 1989, dismissed on 22-10-1989. (i) Urban Rent Restriction Ordinance, 1959 (WP Ord.Vl of 1959)- —S. 13—Tenant—Ejectment of—Challenge to—Whether a co-owner could intervene in proceedings—Question of—Co-owner claimed in his application for impleadment that he was a necessary party—Relationship of landlord and tenant existed between parties—Held: A mere co-owner had no right to intervene in proceedings-Held further: On merits correct adjudication has been made and requires no interference in exercise of equitable jurisdiction- Petitions dismissed. [Pp. 58&59JC&D (ii) Urban Rent Restriction Ordinance, 1959 (WP Ord.Vl of 1959)-- —S. 13(6)— Tenant—Ejectment of—Defence—Striking of—Contention that adequate opportunity to submit defence to application for striking of defence having not been afforded, petitioners were condemned unheard—Order for deposit of rent was passed in presence of parties—There was no ambiguity in it and none was pleaded—There is no good explanation for condonation of default—Record indicates that petitioners were sufficiently heard—Held: Contention that opportunity of defence was denied, is without substance. [P. 58]B (iii) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)- —S.13(6)—Tenant—Ejectment of—Landlord and tenant—Relationship of~ Denial of-Whether order under Section 13(6) could be passed-Question of-On correct and true reading of pleadings, relationship of landlord and tenant existed between parties beyond doubt-Held: Argument that without prior determination of issue about relationship of landlord and tenant, direction for deposit of rent could not be made, is without real merits and cannot be accepted. [P. 57]A Malik Muhammad RashidAwan, Advocate for Petitioner (in both petitions). Mr. Zahid Hussain Khan, Advocate for Respondents (in both petitions) Date of hearing: 21-10-1989. judgment These two connected writ petitions 1204, 1225 of 1989 emerge from identical facts and have some common features also. Therefore, they are being dealt with and disposed of in a single order. However, for proper understanding of the points requiring determination, it appears necessary to narrate relevant facts in each case. Writ Petition 1204/]989:~Ranz Fazal Ahmad Khan sought ejectment of Dr. Mohammad Siddique (hereinafter referred to as the petitioner) from a shop in the premises known as Ilahi Manzil, Gul Bahar Colony, Sattiana Road, Faisalabad, on the grounds of rent-default since January, 1988 and its requirement for his self-use to set up his own office. Ejectment petition was instituted on 5-7- 1988. It was averred that the shop in question was owned by him and was let out to the petitioner upon payment of rent which in course of time was enhanced to the present rate of Rs. 1000/- per rnensum. Petitioner who had established Health centre in the premises resisted the ejectment case. It was submitted that in absence of other co-owners who were necessary parties, ejectment petition was imperfectly constituted and could not proceed; that as Health Centre was established in the rented premises, it had acquired the character of a 'scheduled building' and could not be got vacated for personal use. Other allegations in regard to rent-default and personal requirement were also controverted. Material defence was that rent initially fixed at Rs. 45/- per month and later enhanced to Rs. 225/- per month was regularly paid to one Mst. Irshad Begum widow of Taj Mohammad son of Ilahi Bakhsh and prior thereto was paid to Taj Muhammad Khan himself. Photo copies of rent-receipts and an extract from the register Excise and Taxation Records were appended in support. Here I may pause to observe that averments in paragraph 1 of the ejectment petition were admitted. Similarly, first portion of paragraph 2 of the ejectment petition was also admitted. Effect of these admissions in the written statements shall be adverted to and commented upon when the pleas raised about absence of relationship of landlord and tenant shall come up for examination. As there was dispute about the rate of monthly rent and the arrears claimed, Rent Controller, on 15-10-1988, tentatively assessed the monthly rent to Rs.500/- and directed the petitioner to deposit the arrears from January 1988 to September 1988 till 31st October, 1988 and future rent at the same rate before 15lh of each succeeding month till final adjudication of the ejectment petition. Petitioner was allowed to deduct the rent already deposited or paid in accordance with law. Thereafter, case was adjourned to 2-11- 1988 for verification about compliance with the direction for rent deposit. On the adjourned date, it was observed that since there was a dispute about the rate of rent, rent deposited shall not be withdrawn till final decision of the ejectment petition and case was further adjourned to 1-12-1988 for scrutiny of rent-receipts. Meanwhile, petitioner had applied for 're-looking' and elucidation of rent order dated 15-10-1988. Respondent contested the petition. It was submitted that direction about the rate of rent and arrears was unambiguous and could not be reviewed. It was further submitted that petitioner had already defaulted in complying with the direction for deposit of rent and had earned penalty for striking off his defence. Simultaneously, an application pleading default and praying for striking off defence was made by the respondent. Furthermore, on 4- 12-1988, one Shabbir Ahmad submitted an application for his impleadment as party stating that the petitioner paid the rent to his sister Mst. Irshad Begum and after her death, rent was paid to him and since he was a true owner-landlord, he was a necessary party and in his absence, not only his rights shall materially suffer but satisfactory decision of the ejectment petition could also not be made. All the three petitions were heard together and by order passed on 4-12-1988, Rent Controller found that Shabbir Ahmad though a co-owner was not a necessary party and declined his request for impleadment. Further found that petitioner had failed to comply with direction for deposit or arrears and future rent and consequent upon this conclusion, struck off his defence and directed him to vacate and deliver possession of the shop before 19-12-1988. Aggrieved by this decision, petitioner preferred an appeal. It failed on 6-2-1989 in the Court of learned Additional District Judge, Faisalabad. Writ Petition 1225/1989:- On 5-7-1988, Rana Fazal Ahmad Khan also commenced an action in ejectment against Javed Ahmad petitioner frorfl the shop in premises known as llahi Manzil, Gul Bahar Colony, Sattiana Road, Faisalabad upon the allegations of rent-default and his self-requirement. Petitioner contested the application and submitted identical defence as in the case of Dr. Mohammad Siddique that he paid rent to Mst. Irshad Begum at the rate of Rs. 200/- per month. In regard to the rest, facts pleaded were similar. Period of rent-default was identical but there was a slight difference in the tentative assessment of monthly rent by the Rent Controller. In case of Dr. Mohammad Siddique, monthly rent was assessed at Rs. 500/- whereas in the instant case, it was fixed at Rs. 600/- per month. On 15-10-1988, Rent Controller directed Javed Ahmad petitioner to deposit the arrears at the rate of Rs. 600/- pef month from January 1988 to September 1988 before 31-10-1988 and also future rent at the same rate before 15th of each succeeding month minus the amount already paid or deposited. As direction for deposit of rent was not complied with and rent was not deposited, Rent Controller struck off the defence of the petitioner and directed him to vacate and deliver possession of the shop before 19-12-1988. Appeal filed by the petitioner was dismissed on 6-2-1989, by learned Additional District Judge. In support of the petitions, learned counsel submitted:- (1) As the relationship of landlord and tenant was denied, in default of its proper determination, direction for deposit of rent could not have been made; (2) in presence of a dispute about the rate of monthly rent, its tentative assessment at Rs. 500/- in one case and Rs. 600/- in the other was grossly excessive and amounted to inflicting a foregone penalty; (3) petitioner in each case,, was not afforded adequate opportunity to submit defence to the application filed for striking off defence. In this view, petitioners shall be deemed to have been condemned unheard; (4) Shabbir Ahmad who supported payment of rent to Mst. Irshad Begum and upon her death to himself was a necessary party and the Rent Controller acted erroneously in declining his request for impleadment; (5) Rent Controller paid no heed to the receipts filed before him showing payment of rent to Mst. Irshad Begum and in absence of proper determination of the pieas taken in this behalf, direction for deposit of rent was untenable. Mian Muhammad Abdullah versus Sheikh Nawab Di/i-(1971 S.C.M.R 336) was relied upon. In reply, it was submitted by learned counsel for respondent that existence of relationship of landlord and tenant was admitted in the written statements and tentative assessment of rate of rent and amount of arrears being not incorrectly

PLJ 1990 Lahore 57 PLJ 1990 Lahore 57 Present: II ISANUL HAQ ClIAUDHARY, J. KARIM BAKHSH-Petitioner versus Haji GHULAM DASTGIR and 5 others-Respondents Writ Petition No. 6475 of 1989, dismissed on 26-11-1989 (i) Urban Rent Restriction Ordinance, 1959 (WP Ord.VI of 1959)- —Preamble-Rent Ordinance-Object of-Whether purpose of Ordinance is to restrict ejectment of tenants-Question of~Legislature has only regulated relationship of landlord and tenant and provided for a machinery for ejectment of tenants-Held: Ordinance is meant for safeguarding rights of both landlords and tenants.[P.64]F (ii) Urban Rent Restriction Ordinance, 1959 (WP Ord.VI of 1959)-- —S.13-Tenant--Ejectment of-Challenge to~Contention that during pendency of declaratory suit, ejectment proceedings are to be suspended-­ No such prayer made before Rent Controller—Even Civil Court not moved for injunction restraining landlord from ejecting him—Held: Proceedings in ejectment petition cannot be stayed the moment there is a civil suit. [Pp.61&62]A PLJ 1985 SC 1, 1983 SCMR 1064, 1988 SCMR 1241, 1988 SCMR 1347 and 1988 SCMR 1350 ref, (iii) Urban Rent Restriction Ordinance, 1959 (WP Ord.VI of 1959)-- —S.13--Tenant~Ejectment of~Challenge to~Landlord and tenant-­ Relationship of- Denial of~AW 1 was general attorney of vendors and he has stated that he used to receive rent from petitioner and other tenants— AW2 was Munshi (clerk) of previous owners and he has categorically stated that he had been receiving rent from petitioner and other tenants from 1958 to 1978-Held: These are all independent and natural witnesses and their statements were sufficient to decide issue in favour of landlords.[Pp.62&63]C (iv) Urban Rent Restriction Ordinance, 1959 (WP Ord .VI of 1959)- —S.13—Tenant-Ejectment of—Challenge to~Petitioner not entering into witness box-Whether adverse inference can be drawn—Question of— Petitioner was best witness of alleged gift in his favour and also of his status in premises-He produced his son in witness box who was not even born or was infant at time of alleged gift-Held: There is force in argument of landlords that non-appearance of petitioner should heavily weigh against him. [P.63JD 1987 SCMR 164 rel. (v) Urban Rent Restriction Ordinance, 1959 (WP Ord.VI of 1959)— —S.13~Tenant-Ejectment of—Challenge to—Whether ejectment proceedings are liable to be stayed due to pendency of civil suit-Question of—Previous ejectment petition was filed on 30-7-1981 while present petition was filed on ll-2-1985--Civil suit for declaration was instituted ob 18-3-1985-Petkioner did not promptly proceed to establish his claim-Nothing on record to support plea of petitioner about gift of property in dispute in his favour 30 years earlier—Held: No merit in argument that ejectment proceedings are liable to be stayed in view of pendency of civil suit. [P.62JB (vi) Urban Rent Restrictioa Ordinance, 1959 (WP Ord. VI of 1959)- —S.13-Tenant-Ejectment of-Challenge to—Whether copies of PTI are not sufficient to establish relationship of landlord and tenant-Question of— Copies of PTI are admissible per-^e-Held: It is true that copies of PTI all alone are not sufficient to establish relationship of landlord and tenant but they are good piece of corroborative evidence especially when they relate to period before dispute arose between parties. [P.63]E Mr. Hakam Qureshi, Advocate for Petitioner. Sh. Muhammad Asadullah, Advocate for Respondents 1 to 4. Respondents Nos. 5 & 6 Exports Date of hearing: 26-11-1989. judgment The petitioner in this Constitutional petition was cited as a respondent in an ejectment petition filed by respondents No.l to 4. The petition was filed on 11.2.85 and ejectment of the petitioner was sought on the grounds of default since 9.4.81 and personal use. The petitioner contested the ejectment petition on facts and also raised preliminary objections including objection as to the non-existance of relationship of landlord and tenant. The learned Rent Controller accordingly framed following preliminary issues:- "1. Whether the relationship of landlord and tenant exists between the parties? 2. Relief." 2. The respondents-landlords in order to prove the preliminary issues examined Syed Ghauer Hussain AW1, Muhammad Faazil AW 2, Muhammad Inayat Ullah Qadri AW 3, Sh: Noor Muhammad AW 4, Abdul Qayyum AW5 and respondent 1 Haji Ghulam Dastgir appeared as AW6. They also produced documentary evidence. Thereafter the petitioner examined Abdur Rashid as RW 1, Abdul Hafeez RW 2, Nasir All Girdezi RW 3, Ali Muhammad RW 4, Naveed Akhtar RW 5, Muhammad Ashraf RW 6 and Naeem Mahmood General Attorney of the petitioner as RW 7. The petitioner also produced documentary evidence and closed his side. The learned Rent Controller after hearing the arguments decided the preliminary issue on 24.1.89 in favour of the landlords and against the petitioner and as a result thereof proceeded to order ejectment of the petitioner. The petitioner assailed this order through an appeal before the District Judge as appellate authority under the Rent Restriction Ordinance. The learned District Judge made over the appeal to one of his Additional District Judges, who proceeded to dismiss the appeal vide Judgment dated 30.9.89, hence present Constitutional petition, 3. The petition was admitted to regular hearing and notices were issued to the respondents. Respondents No.l to 4 have appeared and contested the petition while the official respondents were proceeded ex-parte. 4. I have heard the learned counsel for the parties. The learned counsel for the petitioner in support of the petition has raised following points:- Firstly, that the respondents No.l to 4 earlier filed four ejectment petitions against the sons of the petitioner, namely Akhtar Mahmood, Nasim Mahmood, Abdul Waheed and Muhammad Mahmood. The said respondents denied the relationship and after some proceedings the landlords proceeded to pray for withdrawal of these petitions with permission to file fresh applications. The necessary permission was allowed by the learned Rent Controller vide orders dated 11.11.84 and 25.11.84 subject to payment of Rs.100/- as cost. However, the present petition was filed against the petitioner alone. It is added that the institution of the ejectment petition was kept top secret and the landlords did their best to have an ex-parte ejectment order. Secondly, that the petitioner has filed a suit for declaration, therefore, it is desirable to suspend the ejectment proceedings till the decision of the suit. It was added that the petitioner has already concluded his evidence while the defendants are yet to conclude their evidence. In this behalf reliance has been placed on the cases reported as Province of Punjab v. Abdul Ghani (P.LJ 1985 S.C 1) Rehmatullah v. All Muhammad and another (1983 S.C.M.R 1064); Thirdly, that to establish relationship of landlord and tenant evidence of very high order is required while in the present case there is no cogent evidence and the Courts below have based their orders on the copies of PT I,which are irrelevant documents; Fourthly, that the purpose of Rent Restriction Ordinance was to provide a special forum and to restrict the ejectment of the tenants. It being a special enactment, therefore, it will cover only those matters, which are clearly and specifically provided for. It is added that since neither the petitioner was 'tenant' nor respondents were landlords' as per definitions of these terms as incorporated in the Rent Restriction Ordinance therefore, all the proceedings were coram non judice; and Lastly, that the application of petitioner to produce additional evidence was illegally and wrongly rejected by respondent No.6. 5. On the other hand the learned counsel for contesting respondents has argued that the landlords purchased this property through registered sale deed from Syed Iqtidar Haider Shah and Shaheena Jabeen and thereafter proceeded to serve the petitioner and his sons with notices under section 13-A of the Rent Restriction Ordinance but as they did not pay any rent, therefore, the respondents were constrained to initiate the ejectment proceedings. The learned counsel for contesting respondents, in reply to the argument advanced on behalf of the petitioner that earlier four petitions were initiated, has submitted that in-fact earlier five petitions were filed. The fifth petition was against the present petitioner as is clear from Annexure 'A' with the writ petition. It is added that since the sons of the petitioner denied their possession in their own name and rightly, therefore, this time petition was filed against the present petitioner alone. It is added that the allegations as to the alleged efforts of his clients to secure exparte ejectment order are without basis and substance. The reply to the argument that ejectment proceedings are liable to be stayed in view of the pendency of the suit for declaration in the civil Court, is that the proceedings in the civil suit have no bearing on the proceedings in the ejectment petition. More-so when the ejectment is sought on the basis of a registered sale deed. Reliance in this behalf is placed on the cases reported as Ghulam Muhammad Vs Mst. Rashida Hamid and others (1989 S.C.M.R 1763), Bashir Ahmad v. District Judge, Faisalabad (1988 S.C.M.R 1241), Abdul Razzaq and another v. Shukria Parveen and 11 others (1988 SCMR 1343) and Mst. Aurangzeb Bibi v.AkhtarHussain (1988 SCMR 1350) 6. The learned counsel for contesting respondents on merits has argued that his clients in order to prove the issue, in addition to the documentary evidence, have examined AW 1 Syed Ghayur Hussain, who was the general attorney of the vendors and clearly deposed as to payment of rent by the petitioner. Similarly, AW 2 Muhammad Faazil, who was the Munshi(Clerk) of AW 1 stated that he has been collecting rent from the petitioner and other tenants of the building from 1958 to 1978. He further referred to the statement of AW 4 as to the payment of rent and statement of RW 1 Abdur Rashid to show that Muhammad Faazil AW 2 was serving as Munshi. It is added that even if the copies of FT 1 are excluded from consideration still this evidence was sufficient to answer the issue in favour of the landlords. The learned counsel for the contesting respondents argued that copies of PT I are admissible in evidence per-se and have a presumptive value atleast as to the entries made therein. In this behalf reliance is placed on the case reported as Muhammad Aslam and another v. Sardar Begum (1989 S.C.M.R 704) and Abdul Rehman & 7 others Vs Board of Revenue (1989 S.C.M.R 384). In the end it is submitted that the appraisal of the evidence is not possible in Constitutional jurisdiction. In this behalf reliance is placed on the cases of Taj Muhammad & others v. Muhammad Iqbal & others (1986 S.C.M.R 276), Mannoo Industries Ltd. v. Addl. Secy.& others (1987 S.C.M.R 1910) and Muhammad All v. Mumtaz Hussain Lali (P.L.D 1989 Lahore 187). 7. In the end it was argued that the application of the petitioner for production of additional evidence was rightly rejected by respondent No.6 because it was only an effort to delay the proceedings otherwise the documents sought to be produced were just duplication of the record. It is submitted that the plaint in the suit was just repetition of the plea in the written reply to the ejectment petition while written statement submitted by landlords was practically copy of the ejectment petition. It is added that the statements of the said witnesses having already been recorded independently in the ejectment petition, there was no occasion for bringing the statements recorded in the civil suit on the file of the ejectment petition. The statements even otherwise were not admissible. It is concluded with the submission that even the statements of the witnesses were just repetition of their statements in the ejectment petition. 8. Replying to the other point raised by the learned counsel for the petitioner, the learned counsel for the respondents submitted that object of Rent Restriction Ordinance is not to do away or bar the institution of the ejectment petitions against the tenants. It is only to restrict the same. The argument is clarified with the submission that now a tenant can only be ejected as per grounds specified in section 13 of Urban Rent Restriction Ordinance whereas previously, the ejectment could be effected just after serving notice under section 106 of Transfer of Property Act. It is concluded with the argument that so long the tenant behaves well he can stay and on the other hand the interest of the landlord has also been properly protected by the legislature while enumerating the grounds of ejectment. It is, therefore, clear that the Rent Restriction Ordinance is meant for to safeguard the rights of both landlord and tenant and it cannot be presumed even for arguments sake that legislature wanted to prefer one set of citizen over the others at their cost. 9. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. Now I proceed to deal with the arguments of the learned counsel for the petitioner with reference to the counter arguments of the learned counsel for contesting respondents. 10. The first point argued in support of the petition was that ejectment petition for whole of the premises was filed against the petitioner alone while earlier petitions were filed against four sons of the petitioner in respect of the same premises. The reply on behalf of the respondent was that since the sons of the petitioner denied independent possessio , therefore, petition was filed only against the head of the family, the petitioner. It was added that 5 ejectment petitions were filed which included a petition against the petitioner. The learned counsel in support of the arguments has referred to Annexures A2 to F/3. The objection advanced on behalf of the petitioner is falsified by the record. It is without any merit. 11. In the second place it was argued that since civil suit for declaration is pending, therefore, it is desirable to stay the ejectment proceedings. In this behalf learned counsel for the petitioner has referred to two judgments, which do not support the arguments advanced on behalf of the petitioner. 12. In the case of Mufti Abdul Ghani, the Hon'ble Supreme Court held that Rent Controller to make distinction between genuine, well founded, vexatious frivolous and without foundation dispute about the title. The present dispute, as per record of the ejectment petition, is without foundation. Even the exact nature of the alleged transfer in the name of the petitioner is not clear. Similarly, the case of Rehmat Ullah is not applicable because the petitioner on the one hand has failed to create the required reasonable doubt before the Rent Controller as to the title of the property and on the other hand he has proceeded to file an independent civil suit. Now whatever is the result of the civil suit the parties will be bound by the same. 13. On the other hand learned counsel for the landlords has argued that pendency of civil suit does not warrant automatic stay of the ejectment proceedings. It is added that the ejectment petition is to succeed on its own merits and to be decided on the basis of the evidence produced by the parties. The arguments are concluded with the submission that the petitioner did not make such prayer before the Rent Controller. The same is malafide. In any case, he could have moved the civil Court for injunction restraining the landlords from ejecting him. This having not been done, it is too late in the day to delay the ejectment proceedings. The cases relied by the learned counsel for the petitioner are not relevant because in both the cases the Honourable Supreme Court held that question of title was not clear and the landlord should get the same clarified from the civil Court and then initiate ejectment proceedings. The learned counsel for contesting respondents, on the other hand, referred to the cases as noted above. In the case of Bashir Ahmad, Hon'ble Supreme Court declined the request of the learned counsel for the tenant for making observation that the suit of the petitioner regarding title shall not be effected by the orders passed in the litigation on rent side while in the case of Abdur Razzaq and others, the petition was dismissed with the observation that the statement of counsel of the petitioner was without prejudice to his clients' right to pursue the other remedy now pending. In the case of Mst. Aurangzaib inspite of the pendency of the civil suit in respect of the title of the property the ejectment proceedings were not stayed and civil petition for Leave to Appeal by the tenant was dismissed by Honourable Supreme Court. It is, therefore, clear that ihere is no hard and fast rule. The proceeding in ejectment petition cannot be stayed the moment there is a civil suit. 14. The previous ejectment petitions were filed on 30.7.81 while the present petition was filed on 11.2.85 whereas suit for declaration was filed by the petitioner on 18.3.85. The petitioner inspite of the cloud on his alleged title did not proceed promptly to establish his claim. The plea of the petitioner, as already noted that part of the property in his possession was orally gifted to him by Aslam Ali Shah, its owner more than 30 years back. There is nothing on record to support this assertion. If the ejectment proceedings or ejectment petitions are stayed on such aprimafacie weak challenge then with the present moral fiber it is easily conceivable that ejectment proceedings will come to a stand still position everywhere. There is no merit in the argument that ejectment proceedings are liable to be stayed in view of the pendency of the civil suit. 15. The other argument of the learned counsel for the petitioner was that to establish the relationship of landlord and tenant evidence of very high order was required and copies of PT I were not relevant. On the other hand, it was argued by the learned counsel for contesting respondents that for arguments sake, if it is held that copies of PT I were not relevant still there was clear and strong evidence on record to prove the issue. The learned counsel in this behalf has rightly referred to the statements of A.Ws. Syed Ghyur Hussain appeared as AW1. He was general attorney of the vendors and he has stated that he used to receive the rent from the petitioner as well as the other tenants of the building. He is not related to the present landlords and they have failed to shake his credit in the cross-evidence. Then comes the statement of Muhammad Faazil who was the Munshi (Clerk) of the previous owners. He has categorically stated that he had been receiving rent from the petitioner as well as other tenants for a period from 1958 to end of 1978. He has no connection whatsoever with the contesting respondents. The fact that he was working as a Munshi is admitted by Abdur Rashid RW 1. AW 4 Sh. Noor Ahmad was also a tenant of a portion of the same house from 1970 to 1980. He also clearly deposed that the petitioner was a tenant sad they have bees paying rent to Muhammad Faazil AW 2. These are all independent and natural witnesses and their statements were sufficient to decide the issu'i in favour of the landlords. 16. The petitioner !sas tendered in evidence Annexure R 10 (copy of assessment for the year 1951-52 by L.M.C), a copy of the same has been placed as Aiaaesuts LL ofl die ilk of this writ petition. The name of the petitioner is clearly mea-aoccd as one of the occupants and not owner whereas according to the statement of RW 1 Abdur Rashid the original owner Aslam Ali Shah died in 1951 while RW 2 Abdul Hafeez has stated that petitioner was living as owner and AskUTi Shall never received real from him. The main witness produced by the petitioner to prove the gift is Nasir Ali Shah RW 3. He deposed that Aslam Shah gave the property to ths petitioner at the instance of his brother taking pity on the petitioner. He lias not: said a word as to gift. He has however, stated that Aslam Shah was his relative and died 2/3 years after the partition of the Sub-continent. The payment of rent after death of Aslam Shah was denied for want of knowledge. Similarly, the payment of rent to Aslam Ali Shah was also denied for want of knowledge. All these depositions were made by the witnesses of the petitioner in examination-in-chief. It is also admitted by RW 7 Naeem Mahmood attorney and son of the petitioner that neither any property tax was paid by the petitioner all these years nor ownership was got entered in the official record nor he challenged the ownership of the vendors namely, Syed Iqtidar Hussain Shah and Shaheena Jabeen. It is relevant to mention here that Aslam Ali Shah died issueless, therefore, son and daughter of his brother became the owners of the property. They got their names incorporated in the Excise and Taxation record. The petitioner even has not impleaded these persons as defendants in his civil suit. The evidence of the petitioner does not inspire any confidence. It is too weak, vague and bristles with inherent contradictions and was rightly brushed aside by the Courts below. The issue was rightly held proved. 17. The learned counsel for the respondent landlords submitted that the petitioner did not enter witness box and this should heavily weigh against him. It is submitted that the petitioner was the best witness of the alleged gift in his favour and also of his status hi the premises. He has referred to the case of Feroze KJtan and another v. Mst. Waziran Bibi (1987 S.C.M.R 164). The Honourable Supreme Court held that the High Court was justified in drawing adverse inference against Adalat Khan and Feroze Khan for not appearing in the witness box in support of then- assertions. The petitioner instead of entering the witness box produced his son Naeem Mahmood who is only 41 years old. It means that he was not even born when the petitioner occupied the house and was infant at the time of alleged gift. The argument of the learned counsel has merit. 18. It is true that copies of PT I all alone are not sufficient to establish the relationship of landlord and tenant but they are good piece of corroborative evidence especially when the same pertain to a period before the dispute arose between the parties. Copies of PT I are admissible per-se. The learned Rent Controller was, therefore, wrong to exclude them from evidence. The same should have been exhibited. In the present case the learned Rent Controller adopted two different standards for both the parties. Copy of PT I tendered by the petitioner as exhibit marked as R 10 while the same copy when tendered by the landlords was placed on record as mark 'A' while the other copies were also placed as mark 20. Now coming to the last point that the purpose of Rent Restriction Ordinance is to restrict the ejectment of tenants of Urban Immovable Property in the Province. The argument is clearly misconceived and without any merit. The legislature has only regulated the relationship of landlord and tenant and provided for a machinery for ejectment of the tenants and other allied matters. The legislature by promulgation of the Rent Restriction Ordinance on the one hand has permitted the ejectment of a tenant only on the specified grounds, on the other hand it has also kept in view the interest of the landlord. The grounds of ejectment as specified in Section 13 clearly support this view. The Ordinance is meant for the safeguard of the rights of both landlord and tenant. 20. The result is that there is no force in this petition. The same is dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 67 (DB) PLJ 1990 Lahore 67 (DB) Present: M. MAHBOOB AHMAD AND MALIK MUHAMMAD QAYYUM, JJ Mst. SURRAYA BEGUM-Appellant versus MUSLIM COMMERCIAL BANK Ltd. and 4 others-Respondents 'FAO No. 188 of 1984, accepted on 2-10-1989 (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XXI Rr. 58&59~Decree-Execution of- Objections to-Investigation of claims and objections—Whether necessary—Question of—No provision of law quoted under which application was filed before Special Judge (Banking Court) but contents thereof do spell out that it was filed under O XXI R.58— Investigation on lines indicated in Rules S8&59 has to be conducted before decision on objection application-Held: Obvious and only just procedure for investigation of claims and objections to attachment of property could be by allowing parties adequate and sufficient opportunity of establishing their respective claims-Held further: Impugned order being manifestly violative of provisions of law, is liable to be set aside on this short ground alone. [P.JA (ii) Civil Procedure Code, 1908 (V of 1908)- —O. XXI Rr.58 59-Decree-Execution of-Objections to—Rejection of~ Challenge to-Nothing on record to show as to how Special Judge (Banking Court) had drawn inferences that husband and wife were living together, having good relations and that wife had come to know about filing of suit-­ Lower Court assumed that registered sale deed (in favour of wife by husband) was executed after institution of suit (for recovery of loan)-- According to record, suit was instituted subsequent to registration of sale deed-Held: Impugned order is based on conjectures only and it cannot be maintained. [P-]B&C (iii) Civil Procedure Code, 1908 (V of 1908)- —O.XXI R.58(l)--Decree--Execution of-Objections to-Rejection of- Challenge to-Nothing on record to show any established inordinate delay as envisaged by proviso to Rule 58(1) which may entail rejection of claim/objection without resorting to investigation-Held: Proviso to any parent provision has to be read very cautiously and intended whittling effect thereof cannot be extended as to defeat provision itself-Appeal accepted and case remanded. [P-jD&E Mr. Ali Sibtain Fazli, Advocate for Appellant. Mr Shahid Hamid, Advocate for Respondent No.l Respondents 2 to 5; Exparte Date of hearing: 2-10-1989. judgment M. Mahboob Ahmad, J.~This first appeal is directed against order dated 11- 11-1984 passed by the learned Special Judge (Banking Court) Lahore, whereby he rejected the objection petition of the appellant against the execution of a decree passed by the said Court. 2. The facts necessary for the purposes of this appeal, briefly stated, are that on 14-11-1980 respondent No. 1, Muslim Commercial Bank Limited, filed a suit in the Court of Special Judge (Banking Court) Lahore against respondents Nos. 2 to 5 for recovery of Rs. 8,89,854/-. On 14-7-1981 (wrongly given as 2-2-1981 in the impugned order) an exparte decree was passed against respondents Nos. 2 to 5 by the said Special Judge. Respondent No. 1 instituted an application for execution of the decree, inter alia, claiming sale of property No. 17-A-III, Gulberg III, Lahore, stating that the said property was owned by respondent No. 5. The property was attached by order dated 19-11-1983 passed by the executing Court and the same was ordered to be sold through public auction on 26-4-1984. 3. The appellant filed an application on 29-4-1984 before the learned Special Judge (Banking Court) praying that auction orders in respect of the property in dispute may be set aside and that pending decision of the application the auction proceedings be suspended. 4. The learned executing Court by its order dated 12-9-1984 directed that before framing an issue on the petition it would like to examine the parties in person. In pursuance of this order, the appellant was examined and after recording her statement on 11-11-1984, impugned order was passed whereby the application of the appellant was dismissed. 5. The appellant feeling aggrieved of the above order has come up in the present appeal. 6. The learned counsel for the appellant has raised the following contentions:- (1) That the property was owned by the appellant even before the institution of the suit, having been purchased from respondent No. 5 on 18-3-1980 through a registered sale deed and for bona fide consideration and thus the same was not liable to attachment and sale in execution of the decree which was not against the appellant. (2) That no issues were framed although by order dated 12-9-1984 the executing Court itself had observed that the same would be framed after personal examination of the parties. The decision of the matter without framing the issues and without holding an investigation into the matter is against law and, therefore, not sustainable. (3) That the order is based on conjectures as is apparent from its bare perusal, for example, it has been presumed in the order that the registration of the sale deed in favour of the appellant was subsequent to the institution of the suit. (4) That the only material available on record was the statement of the appellant which abundantly established that the property was owned by her in her personal capacity and thus neither liable to attachment nor sale in auction proceedings in question. 7. On the contrary, the learned counsel for respondent No. 1 submitted that the transaction of sale which had been relied upon to seek the recall of the order of auction was neither bona fide nor for adequate consideration and was in fact a "Benami" transaction. 8. The next contention of the learned counsel for respondent No. 1 was that t e attachment order having been made on 19-11-1983 the making of an application by the appellant on 29-4-1984 for setting aside the order of auction is against the spirit of the proviso to Rule 58 of Order XXI of the Code of Civil Procedure and, therefore, the application of the appellant before the executing Court has been rightly rejected vide the impugned order. 9. We have given anxious consideration to the controversy involved and are of the view that the impunged order does not merit to be sustained. Although no provision of law has been quoted under which the application of the appellant was filed before the learned Special Judge (Banking Court) but the contents thereof do spell out that the same had been filed under Order XXI Rule 58 CP.C From a conjunctive reading of Rules 58 and 59 of Order XXI CPC it clearly emerges that an investigation on the lines indicated in the aforementioned provisions has to be conducted before a decision on such an objection application is made. The obvious and the only just procedure that could be adopted for an investigation of claims and objections to attachment of any property could be by allowing the parties adequate and sufficient opportunity of establishing their respective claims. The affording of an opportunity becomes all the more necessary rather mandatory in view of the provision contained in Rule 62 of Order XXI CP.C. which lays down that all claims relating to the rights, title or interest of the claimant or objector in the attached property shall be adjudicated upon and determined by the Court and that no separate suit shall lie to establish such title, right or interest. The perfunctory manner in which the matter has been dealt with by the learned executing Court through the impugned order is manifestly violative of the provisions of law governing the subject. The said order, therefore, on this short ground alone is liable to be set aside. 10. It may also be pertinently observed that it has been correctly pointed out by the learned counsel for the appellant that the impugned order is based on conjectures only. In para 2 of the impugned order the learned Special Judge (Banking Court) Lahore has observed that respondent No. 5 against whom the decree for the execution of which the house in dispute was attached had been sold to the appellant on 18th of March, 1980; whilst in para 3 of the said order it has been stated that the suit in the Special Court had been instituted hi 1980 and respondent No. 5 who is the husband of the objector/appellant being a party to the suit and living 24 hours in the house of the husband and having good relations with him must have known about the institution of the suit regarding the recovery of loan which had been obtained by her husband years before 1980. It appears that the learned Special Judge (Banking Court) on the basis of his above observations had refused to believe that the appellant (wife) living 24 hours in the house of her husband (judgment debtor) and having good relations with him had not known about the institution of the suit regarding recovery of loan which had been obtained by her husband and, therefore, recorded a finding that the sale was mala fide on the part of the husband and wife. Now we find nothing on record nor anything has been referred to us to show how the learned Special Judge (Banking Court) had drawn the inferences that the husband and wife were living together, were having good relations and that the wife had come to know about the filing of the satr Again the tenor of the language used in the impugned order also indicates that the learned lower Court was assuming that the registered sale deed as executed after the institution of the suit in 1980 whereas according to the record the suit hau been instituted subsequent to the registration of the sale deed on ISih of March, 1980 in that the suit as per record was instituted on 14th of September, 1980 1 1. Be that as U may, without going into the merits of the case lest it causes to any of the parties ia the subsequent proceedings, we suffice by -5;?s ving thai tie Special Judge (Banking Court) did not care to investigate the diiim of ihe appellant as required by Order XXI Rules 58, 59 and 62 of C.P.C. and thus die said order cannot be maintained. 12. Before parting with this case we may observe that the submissions of the learned counsel for the contesting respondent also cannot be considered by us in this appeal as there is nothing on record to show that the "Benami" status of transaction of sale in question in any manner stands established from the available record. In fact the learned counsel could urge nothing when we pointedly asked him as to how he can effectively argue that there was no adequate consideration In respect of the sale transaction of the house in dispute or for that matter it was a "benami" transaction. 13. The invocation of the proviso to Rule 58(1) of Order XXI C.P.C. is also not possible at the present stage as there is again nothing on record to show any established inordinate delay as envisaged by the said provision which may entail the rejection of the claim/ objection without resorting to investigation required to be undertaken by the parent rule. Needless to mention that a proviso to any parent provision has to be read very cautiously and the intended whittling effect thereof cannot be so extended as to defeat the provision itself inasmuch as it is not to be presumed that the Legislature intended to take away by one hand through ? proviso what it has basically conferred through the other hand by the parent provision. 14. In view of the foregoing discussion, accepting this appeal we set aside the impunged order of the learned Special Judge ( Banking Court ) Lahore dated 11- 1-1984 and remand the case to the said court for adjudication afresh in accordance with law. There will, however, be no order as to costs. 15. It is further directed that the learned Special Judge (Banking Court) Lahore who may become seized of the matter on remand shall decide the case within six moths from the date of this order and report compliance to the Registrar of this Court. 16. It is also directed that the property in dispute shall remain attached during the proceedings before the learned Special Judge (Banking Court) Lahore and that the attachment will remain in force only till the matter is decided afresh by the said Court. (MBC) Appeal accepted.

PLJ 1990 Lahore 72 PLJ 1990 Lahore 72 Present: FAZAL-I-MAHMOOD, J NEK MUHAMMAD-Petitioner versus MUHAMMAD ASLAM and 2 others-Respondents Writ Petition No. 832-R of 1977, accepted on 11-3-1989 Settlement and Rehabilitation Matters-- —Notified Officer—Order of—Challenge to—Clear stand of petitioner's counsel is that he had exhausted all his entitlement and nothing was available after 1961 and on contrary, it is being claimed that allotment in Chak No. 21/GD after his full entitlement stood exhausted against allotment—Despite this, Notified Officer has held petitioner entitled to satisfaction of further pending units—There is obvious incongruity and error of approach in findings of Notified Officer which have been arrived at in a rough shod manner- Held: Matter has not received proper treatment at hands of Notified Officer who has failed to decide matter judiciously and in a fair and just manner-­Petition accepted and case remanded. [P.73JA&B Mr. Muhammad Sharif Chauhan, Advocate for Petitioner. Ch. Muhammad Rafiq KJian, Advocate for Respondent No. 2. Date of hearing: 11-3-1989. order This writ petition is directed against the impugned order of the notified officer of the level of Settlement Commissioner (Land), Punjab . The order impugned is lengthy one running into 18 pages. Ch: Mohammad Rafiq Khan, Advocate represents respondent No. 2 informer who has been held not entitled to any benefit, therefore, I do not think he has any locus standi in the matter. The dispute, thus, boils down to two persons, that is, petitioner as well as respondent No. 1 Mohamad Aslam who claims to be a vendee of the land from the petitioner's allotment in Chak No. 21/GB district Okara. None has turned up on behalf of respondent No. 1 despite a specific order of this Court to the counsel to attend to the hearing of this case today. 2. Learned counsel for respondent No. 2 has drawn the attention of this Court to para 23 of the impugned order which is operative part of the decision and on a perusal thereof it is to be found that the notified officer has held that it could not be ascertained correctly as to how much units out of the claim of Nek Mohammad, that is, petitioner have been settled in village Ganga Singh. It was held by the notified officer; "The figure as given in para No. 13 above suggests that some of his units are still pending satisfaction. Similarly in his statement dated 18.9.67 before the Deputy Settlement Commissioner (Land) Sahiwal Nek Muhammad had contended that a part of his claim was still lying unsatisfied. In these circumstances I would order that allotment to the extent of 3639 P.I. Units as detailed below should be retained and excluded from the cancellation." 3. The clear stand of learned counsel for the petitioner before this Court is that he had exhausted all his entitlement and nothing was available after 1961 and on the contrary it is being claimed that the allotment in chak No. 21/GD after his full entitlement stood exhausted against the allotment. It, therefore, appears strange that despite the stand of the petitioner to this effect, the notifed officer has held the petitioner entitled to satisfaction of further pending units. There is obvious incongruity and error of approach in the findings of the notified officer which have been arrived at in a rough shod manner. The notified officer while dealing with peoples' rights in property is required to act judiciously, if not judicially and in a quasi judicial manner and he must attend to each crucial question and not to dispose of the matter through a whimsical approach or leave the matters at guess which appears to have happened in this case. The admission in the face of the Court by a counsel can furnish a ground for issuance of a writ in the nature of a ceniorari that is to declare the proceedings to be without lawful authority and of no legal effect. 4. The conclusion at which this Court in the facts and circumstances of this case has arrived is that the matter has not received proper treatment at the hands of the notified officer who has failed to decide the matter judiciously and in a fair and just manner. In this view of the matter, I am constrained to set aside the impugned order and to remand the case to the Member Board of Revenue (S & R) who shall hear the petitioner as well as respondent No. 1 and then dispose of the matter in accordance with law. Since none has turned up on behalf of respondent No. 1, there shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 73 PLJ 1990 Lahore 73 Present: AKHTAR HASSAN, J KHURSHID BEGUM-Petitioner versus MUNAWAR BIBI and 6 others-Respondents Civil Revision No. 544 of 1987, accepted on 9.12.1989 Civil Procedure Code, 1908 (V of 1908)- —-O. VII, R. 11 and Order XLI R. 33»Plamt--Rejection of--Challenge to-- Whether plaint could be rejected by appellate Court while deciding appeal against temporary injunction-Question of~Trial Court decided limited question of temporary injunction which, of course, could be assailed in an appeal—Trial Court deferred decision on maintainability of suit—This part of order of trial court could not be assailed in appeal-Jurisdiction of appellate court cannot be extended to cover those aspects which have been left for a decision to a future date-Held: Law does not intend to pre-empt powers of trial court at a higher level and thereby take opposite party by a surprise •- Appeal accepted and case remanded. [P.75JA&B PLD 1983 Lahore 46 re/. Mr. Muhammad Sharif Chauhan, Advocate for Petitioner. Ch. Shahbaz Khurshid and Ch. Rehtnat All, Advocates for Respondents 2 to 5. Nemo, for Respondent No. 1. Date of hearing: 9-12-1989. judgment This Civil Revision arises from the judgment/decree dated the 16th of February, 1987, of the learned Addl. District Judge, Lahore, whereby he accepted the appeal, rejected the plaint under Order VII, rule 11, C.P.C., and directed the plaintiff to approach the Revenue Court for partition of the land in dispute. 2. The land in question measuring 25 Kanals 10 Marias was stated to have been given by the Central Government to Nawab Din deceased who left behind the plaintiff and defendant No. 1 as daughters with their mother Mst. Fatima Bibi. The latter two allegedly appointed defendant No.2 as their attorney who sold therefrom specific Khasra Numbers measuring 12 Kanals 10. Marias to defendant No. 3, who in turn sold it further to defendants Nos. 4 and 5. Since they had inherited as co-sharers from the same propositus, the petitioner-plaintiff felt aggrieved of those sales, in that a specific Khasra Number or for that matter a plot could not have been sold by a co-sharer without partition. Likewise, she was further aggrieved of a sale of a specific area made by her mother and sister in favour of defendant No.6. She challenged those sales in the present suit to be ineffeceive against her interest, especially stating that the power of attorney in favour of defendant No.2 was fake, forged, based upon misrepresentation and concealment of facts, so that the attorney had no authority to pass on title on behalf of defendant No.l and her mother, to defendant No.3 and so on. She made a prayer for partition of the entire joint holding by declaring that all those alienations were of no effect against her interest in every inch of the joint property as a co-owner. 3. Respondents Nos. 1, 6 and 7 were proceeded against ex pane whereas respondents Nos. 2 to 5 contested the suit by making an application under Order VII, rule 11, C.P.C., praying that since the subject-matter thereof was agricultural land, the Civil Court had no authority to entertain it for its partition and that the plaint may be rejected. They further pleaded that M.L.R. 64 was also attracted, in that the land sought to be partitioned being less than a subsistence holding was impartible. 4. In the meantime the petitioner prayed for temporary injunction which the trial Court granted holding that the objection to the maintainability of the suit shall be decided in due course after recording evidence. The respondents preferred an appeal primarily against the temporary injunction. The lower appellate Court accepted the same, meaning thereby that the temporary injunction was set aside, but additionally it rejected the plaint also. 5. Reliance was placed on Chowniuhani College and another vs. M.D, Ismail Hossain and others (1971 D.L.C. 640 as also Order XLI rule 33 read with Order XLIII rule 2, C.P.C. to claim that it was open to the appellate Court to reject the plaint as a similar order ought to have been passed by the trial Court. I am afraid, the rule enunciated by this Court in Shahdev vs. Lehri Khan and others (PLD 1983 Lahore 46) seems to be more akin to the facts of the present case. The trial Court decided the limited question of temporary injunction, which, of course, could be assailed in an appeal. Conversely it deferred decision on the objection as to the maintainability of the suit to a future date. This part of the order of the trial Court obviously could not be assailed in appeal as it neither accpeted the objection nor turned it down. The appellate Court evidently had enough power to pass any order that the trial Court ought to have passed, but it essentially related only to the matter which was decided upon by the trial Court. It cannot be extended to cover those aspects which have been left for decision to a future date. The law insists that there should be a decision in the first instance by the trial Court. May be that when the Court addressed itself to the objection, it might have accepted the respondent's contention and rejected the plaint. In fact the law does not intend to pre-empt the powers of the trial Court at a higher level and thereby take the opposite party by a surprise. This is the genesis kept in view in the Shahdev's case and there was no reason to differ with it. The order which ought to have been passed in terms of rule 33 of Order XLI, C.P.C. would be deemed to be relating to the subject matter over which the trial Court expresses its opinion, and not to those questions which might be considered in due course. 6. As a result the revision petition is allowed, the impugned order is set aside and the case is remanded back to the learned District Judge, Lahore, for redecision of the limited question of the temporary injunction in complete isolation of the contention whether the plaint merited rejection. The latter B uestion has to be decided first by the trial Court. Parties shall appear before the learned District Judge, Lahore on 16-12-1989. It would be open to him to decide it either himself or entrust it to any Additional District Judge. (MBC) Petition accepted.

PLJ 1990 Lahore 75 PLJ 1990 Lahore 75 Present: MUNIR A.SHEIKH, J Dr. NAEEMUL ZAMAN-Petitioner versus PAKISTAN ATOMIC ENERGY COMMISSION and 3 others-Respondents Writ Petition No. 3197 of 1988, accepted on 12-9-1989 (i) Constitution of Pakistan, 1973- —Art. 199 read with Pakistan Atomic Energy Commission Ordinance, 1965, Section 3(2)--Writ Petition-Maintainability of-Challenge to-Objection that PAEC being an autonomous body was not a person performing functions in relation to affairs of Federation, Province or Local Authority, and was not amenable to jurisdiction of High Court-Under Section 3(2) of Pakistan Atomic Energy Commission Ordinance, 1965, Commission is a body corporate having perpetual succession and a common seal with powers to acquire and hold property and to sue and be sued against-Held: It is expressly clear that functions of Commission are co-related to various affairs of State-Objection repelled. [Pp.79&80]A, B&C (ii) Constitution of Pakistan, 1973- —Art. 199-Writ petition-Maintainability of-Challenge to—Objection that remedy of departmental appeal was available to petitioner which was not exhausted, therefore, petition is not maintainable-Under Rule 10 of Efficiency and Discipline Rules, 1973, a person on whom a penalty is imposed, has a right of appeal—Regulation 26 of PAEC Employees (Service) Regulations, 1974, does not itself provide for application and adoption of Civil Servants (Appeal) Rules, 1977 to employees of Commission—Held: It cannot be held that petitioner had adequate remedy of appeal before Commission-Petition accepted and petitioner re-instated in service. [Pp.85&86]L, M&N. (iii) Government Servants (Efficiency and Discipline) Rules, 1973- —Rr. 5 & 6-Employee of PAEC-Removal from service of—Challenge to-Objection that procedure as precribed in Efficiency and Discipline Rules, 1973 was not followed, therefore dismissal of petitioner is rendered without lawful authority-Decision of case on merits, revolves around question whether procedure prescribed in Rule 6 was required to be followed or not- Under Rule 5(i)(ii), authrorised officer is required to decide whether an enquiry should be conducted through Enquiry Committee and once it is decided so, procedure in Rule 6 shall apply-In this case, it was decided that enquiry should be conducted through an Enquiry Committee-Held: Disciplinary proceedings taken as also consequential order of dismissal of petitioner from service, were not taken and passed in accordance with law- Held further: Show cause notice requiring accused (petitioner) to defend himself was nothing but merely a colourable exercise and he having not been provided fair opportunity to defend himself, order of removal from service cannot be sustained. [Pp.83,84&85]F, G, H, J&K (iv) Master and Servant- —Master and Servant—Relationship of—Whether employees of PAEC are covered by this principle-Question of~Regulation 3 of PAEC Employees (Service) Regulations, 1974 is relevant for determination of question whether relationship of employees with Commission was governed by principle of Master and Servant-Regulation 26 provides that employees shall, for purpose of conduct and discipline, be governed by Government Servants (Conduct) Rules, 1964 and Government Servants (Efficiency and Discipline) Rules, 1973—HeId: Plea of applicability of principle of Master and Servant has no force. [P.82]D&E M/s Abdul Sattar Goraya andA.KDogar, Advocates for Petitioner. Mr. Asadullah Siddiqiti, Advocate for Respondents. Dates of hearing: 21, 25, 26 and 28-6-1989 and 3-7-1989. judgment Munir A. Sheikh, J.--In this constitutional petition, Dr. Naeem-ul-Zaman, the petitioner prays that the impugned order dated 3-1-1988 passed by respondent No. 1 for his removal from service of Pakistan Atomic energy Commission as also the proceedings for suspending him from service taken under the Efficiency and Discipline Rules be declared to have been passed and taken without jurisdiction, without lawful authority and of no legal effect and as a consequence thereof the petitioner be directed to be re-instated in service with full back benefits. 2. The facts relevant for the disposal of this writ petition in brief are that according to photo copies of various order/ letters placed on file by learned counsel of respondent No. 1 on the direction of the Court, the petitioner in March. 1965 joined service in the Pakistan Atomic Energy Commission as Assistant Scientific Officer at a pay of Rs. 455 P.M in the scale of Rs. 350-35-525- EB-40-925 plus usual allowances as per office memorandum dated 9-3-1965. The petitioner was a probationer and according to office memorandum dated 16-4- 1966 his probation period as Assistant Scientific Officer was terminated w.e.f. ID­ S'1966. Subsequently vide office order No. 349/66 dated 25-8-1966 the petitioner alongwith others was appointed as Assistant Scientific Officer Class-I Scale from the date of his joining the Commission i.e. 11-3- 1965. The petitioner was promoted as Senior Scientific Officer in the year 1970 at which post he was made permanent vide office memorandum of the Commission dated 8-11-1976. In the year 1977 he was promoted as Principal Scientific Officer in G.P-10 (NPS No. 19 PABC Group-10 and was posted at Dera Ghazi Khan as Manager. 3. The respondents decided to take disciplinary action against the petitioner and as an initial step through order dated 20-10-1986 Muhammad Aslam Project Manager intimated the petitioner advising him with the approval of the competent authority, to proceed on leave w.e.f 19-10-1986. The petitioner was advised not to leave the Station without his prior approval and make himself available for an inquiry which was likely to be initiated shortly. It was stated in this order that the inquiry was being conducted to lock into the reported misuse of his powers. The Chairman of the P.A.E.C. who was then the authorised Officer qua the petitioner, it appears passed an order for establishment of an Inquiry Committee comprising Director (DTP) as Inquiry Officer and Director (Finance) as Member which is evident from the note written by S.N. Burney, Member (Power) dated 5-11-1986 a photo copy of which has been placed on record by learned counsel for the respondents in pursuance to directions given by the Court during the hearing of the writ petition. Through order dated 11-5-1987, the petitioner was suspended from P.A.E.C. service w.e.f. and imtill further orders, with the direction to him to remain present at the station of duty. On 5-7-1987 directly a show cause notice was issued to the petitioner by the Chairman of the Commission as Authorised Officer accusing him to have committed acts of mis-conduct mentioned in the said notice and called upon him to show cause within 14 days of the receipt of the said notice as to why disciplinary action should not be taken against him under the Efficiency & Discipline Rules, 1973 as applicable to the employees of P.A.E.C by virtue of Regulation 26 of P.A.E.C employees (Service) Regulations, 1974 and why a major penalty should not be imposed upon him. To determine the question of legality of this notice, it would be beneficial to reproduce the alleged acts of mis-conduct mentioned in this notice which are as follows:-- 1, That Dr. Naeem-uJ-Zaman, Pr. Scientific Officer, Manager Plant, BC-1 Project had been abusing the inside information leading to the award of contracts worth Rs. 40 lacs for fabrication of items to M/s. Paramount Engg. Company partly owned by his brother having hardly any experience and workshop facilities to undertake the fabrication of the sophisticated items. 2. That emergency powers were given only to manager plant to meet emergent requirements for day to day operation of the Mill but Dr. Naeem-ul-Zaman widely misused his powers for building up stocks in store and due to his intentional slackness the following irregularities were committed during such emergency purchases:-- (/) That no set procedure was followed by him for the emergency purchases but instead it was made an appeasement package for the employees and the local suppliers to gain undue advantage. (//) That verbal orders were given by him to selected and known firms mostly owned by certain relatives of the employees of BC-1 without enquiring and settling rates in advance. (///) That more than one orders were given for the same items on the same day mainly to keep their procurement within the emergency powers of Rs. 3.000/- (/v) That no method for determining the reasonableness of prices was followed but instead it was made an established practice to allow 10- 15% more than the prevailing market prices which caused the loss and misuse of public funds. (v) That the emergency powers were limited upto Rs. 3,000/- but in certain cases the suppliers though supplied material for lesser amount but charged the said amount of Rs. 3,000.00 and sometimes the suppliers had been reducing the price to Rs. 3,000.00 to avoid reference to next higher authorities. (v/) That the procurement procedure and other formalities for such supply orders were used to be completed after supply of the material in total disregard of the rules on the subject. (v«) That purchases under emergency powers were made in some cases from fictitious firms. (yiii) That most of the supply orders under emergency powers were placed for items which were already available in the stores in large quantities and there was not any emergency for such items". The petitioner contested this notice by filing elaborate and detailed reply dated 22-7-1987 in which he also claimed the personal hearing. It may be mentioned here that in the meantime, the Chairman of the PAEC who issued show cause ccilce as authorised officer was designated as the authority whereas Member I'Admn) as the authorised officer. The petitioner was informed through office order No, 8/88 under establishment No. 21(1258) 86 dated 3-1-1988 that consequent upon disciplinary action taken against him as aforementioned and ha ing found him guilty of the charges of mis-conduct mentioned in the show Cause aoiice dated 5-7-1987, the competent authority was pleased to impose upon him thf; major penalty of removal from service w.e.f. 31-12-1987 in terms of rule •i;i}(b}(s«) of the Government Servants (Efficiency & Discipline) Rules, 1973. The petitioner was allowed compassionate allowance equivalent to two-third of she pension winds would have been admissible to him had he been invalidated fi oin service on the dale of liis removal, under the provisions of Section 19(3) of the Civil Servants Act, 1973, which has been challenged in this writ petition. 4. Before entering upon the adjudication on merits, it would be appropriate to dispose of the preliminary objections raised by the learned counsel for the respondents to the jurisdiction of the Court and also the maintainability of the writ petition. It was maintained by learned counsel for the respondents that the PAEC being an Autonomous Body as such was not a person performing functions hi relation to affairs of Federation, Province or Local Authority within the contemplation of Article 199 of the Constitution therefore, was not amenable to the jurisdiction of this Court in respect of performance of its functions and that the relationship between the Commission and its employees in the matters of service was governed by the principle of Master and Servant as such the petitioner could not invoke the constitutional jurisdiction under Article 199 and if his grievance was that he was wrongfully removed from service, the only remedy available to him was to maintain a suit for damages. 5. I have given anxious consideration to the argument. The Pakistan Atomic Energy Commission, has been created under the Pakistan Atomic Energy Commission Ordinance 1965 (Ordinance No. XXVII of 1965). Section 3(2) of this Ordinance provides that the Commission shall be a body corporate by the name of the Pakistan Atomic Energy Commission having perpetual succession and a common seal with powers, subject to the provisions of Ordinance, to acquire and hold property, both movable and immovable and shall by the said name sue and e sued. From this provision it is manifestly clear nd no doubt can be entertained that the commission has been constituted as a legal/juristic person having a regular name, common seal and capable of suing or being sued in its own name. It is thus a 'body corporate' and an artificial person established for preserving in perpetual succession certain rights. The next question which remains to be decided is as to whether the commission is a person within he contemplation of clause (v) of Article 199 of the Constitution performing functions in connection with the affairs of the Federation within the meaning of sub clauses (/) and (if) of clause (a) of Sub Article (1) thereof and from that point of view this Court could give declaration about its order or proceedings or issue any kind of directions to it. In order to determine this, reference to the relevant provisions of constitution shall have to be made. Under Article 97 of the Constitution the Executive Authority of the Federation extends in the matters with respect to which Majlis-e- Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan . The Majlise-Shoora (Parliament) has exclusive authority to make laws in respect of matters enumerated in part I and part II of Legislative lists given in 4th schedule. Item 18 of Part I of this list is as under:-- "18 Nuclear energy, including:— (a) mineral resources necessary for the generation of nuclear energy; (b) the production of nuclear fuels and the generation and use of nuclear energy; and (c) Ionizing radiations. Hem 2 of Part II of this list relates to mineral oil and natural gas; liquids and substances declared by federal law to be dangerously inflammable. These two items in the Legislative list if read with Article 97 of the Constitution leave no doubt that the executive authority of the federation extends to all these matters and the matters connected therewith and as such they are primarily the functions of the Federation. Section 6 of Ordinance 1965 prescribes the functions of the Commission which are, to do all acts and things, including the research work necessary for the promotion of the peaceful uses of Atomic Energy in the fields of agricultural medicines and industry and for the execution of development Project nuclear power station and the generation of electric powers thereat. According to sub section 2 of this Section the Commission is to perform such other functions with the approval of the Federal Government relating to the peaceful use of Atomic energy. Under Sub Section 2(a) of this Section it has been provided that the powers of the Federal Government under regulation of Mines and Oil Fields and Mineral Development (Government control) Act of 1948 in relation to Mines of nuclear substances and development of Sub Station shall be exerciseable by the Commission. If the functions performed by the Commission arc studied with reference to various items of the federal lists, it is explainably clear that the functions of the Commission are co-related to various affairs of state indicated in numerous items of Federal list mentioned above and as such no room is left to entertain any doubt that Commission can safely be held to be a person performing functions in connection with the affairs of Federation. The objection of want of jurisdiction raised by the learned counsel for the respondents on the ground that Commission was not a person performing functions in connection with affairs of the Federation within the contemplation of Article 199 of the Constitution has thus no merit and the same is hereby repelled. 6. Adverting to the second limb of the argument viz, that the relationship between the petitioner and the Commission in respect of his employment is governed by principle of Master and Servant, it may be stated that this subject has been dealt with by superior Courts in a number of reported cases and the principle of law governing such cases has been clearly laid down and no ambiguity has been left as such there is no difficulty to answer this question in the light of the law settled in these cases . Learned counsel for the respondents mainly relied upon judgment reported as Ch. Abdul Rashid v. Capital Development Authority Islamabad and another (P.L.D. 1979 Lahore. 803) in suppot of his contention that the relationship of an employee of a statutory Corporation even if such Corporation frames regulations making provisions for appointment and dismissal of its employees from service, providing for application of (Efficiency <& Discipline) Rules, would still be governed by principle of Master and Servant. I have undertaken detailed scrutiny of the ratio of this authority and find that the provision of Capital Development Authority Ordinance, 1960 and the Regulations framed by the Authority thereunder were examined and the learned judge arrived at the conclusion that keeping in view the provisions of the Ordinance, the Regulations framed thereunder by the Authority were non-statutory in character, therefore, it was held that relationship of an employee of Capital Development Authority and the Authority was governed by Principle of Master and Servant. The reasons for arriving at that conclusion are contained in para 11 of the judgment which is reproduced as under:— Para 11 "Coming back now to the provisions of the Ordinance which have already been reproduced in this judgment we find that by enacting section 50 the Legislature in express terms made provision for the framing of statutory rules by empowering an authority (Government) outside the Capital Development Authority, to frame rules and by indicating the manner of doing so that is by notification in the Gazette. What is, however, peculiar to this section is the manifest intention of the legislation that no rule shall be made by Government on service matters for which the Capital Development Authority was alone competent to frame regulations. The only meaning that can be given to this express provision is that the Authority was the sole arbiter of the terms and conditions of employees for which if it chose, it could frame regulations". 7. It may be pointed out that, as has been noticed in this reported judgment, that power of Government to frame rules in respect of service matters of the Capital Development Authority was specifically excluded, therefore, due to this provision it was held that the authority was the sole arbiter of the terms and conditions of the employee for which if it chose it could frame regulations. On the other hand, section 13 of the Pakistan Atomic Energy Commission, empowers the Commission to appoint such officers advisors and employees as it considers necessary for efficient performance of its functions on such terms and conditions as it may deem fit subject to such general or special orders as the Federal Government may give from time to time. It is thus clear that contrary to the provisions of the 'Capital Development Authority, Ordinance, I960 the Federal Government has been fully empowered under section 13 to control the power of the Commission in respect of appointment of its officers and employees which may include their terms and conditions and the Commission is bound to carry out such general or special orders which may be issued by the Federal Government in this respect therefore, in the case of employees of Commission the Commission has not been made the sole arbiter regarding appointment, Terms and Conditions of its officers and employees. Under section 20, the Commission has been given the power to frame regulations with the previous sanction of the Federal Government not inconsistently with the provisions of the Ordinance or the rules made thereunder. Whereas section 19 confers powers on the Federal Government to frame rules by notification in the official Gazette. From the perusal of regulation making power of the Commission under section 20 of the Ordinance it is also plainly clear that the same is controlled by the Federal Government, as it requires prior approval of Federal Government. The principle of law decided in Capital Development Authority's case supra is therefore not attracted to the present case, in view of substantial difference in the provisions of Capital Development Authority Ordinance and Pakistan Atomic Energy Commission, Ordinance, 1%5. 8. In the present case the Commission has framed regulations with the previous approval of the Federal Government named as the PA.E.C Employees (Service) Regulations, 1974. Regulation 3 of this Regulation is very significant and has material bearing upon the determination of the question whether the relationship of the employees with the Commission was governed by the principle of Master and Servant. This regulation provides that the Federal Government shall be the final authority for interpretation of these regulations and supplementary instructions issued in connection with these regulations and under this regulation even the authority of the Federal Government to apply these Regulations in respect of employees refcred to in clause (b) or sub section (1) of Section 23 of the Ordinance to their prejudice which may be derogatory to the terms and conditions of the service applicable to such employees before coming into force of the Ordinance has been prohibited. In these regulations detailed provisions have been made regarding employees and officials of the Commission prescribing procedure for their initial appointments upto the stage of retirement, regarding probationary period, pay, pay scales, allowances, travelling allowances, retirement, pension, promotions and disciplinary actions. Under Regulation No. 26, it has been provided that employees shall for the purpose of conduct and discipline be governed by the Government Servants (Conduct) Rules, 1964 and the Government Servants (Efficiency & Dsicipline) Rules, 1973. These regulations as discussed above having been framed with the prior approval of the Government and under Regulation No. 3 as noted above, the Federal Government being the exclusive authority to interpret these regulations which can safely be construed to be general direction of the Federal Government under section 13 of the Ordinance that terms and conditions of the employees and the officers of the Commission be regulated accordingly and not in any other manner therefore, it is possible to hold that the Commission has been left with no power, authority or discretion regarding the terms and conditions of its employees or officers who are to be dealt with as provided in these regulations. The plea of applicability of principle of Master and Servant has no force in the peculiar facts and circumstances of this case as discused above. One of the essential principles for the concept of relationship of Master and Servant is that there should be freedom of contract both for Master as well as Servant so as to act freely that is to say unfettered by any legal disability and where Master's pleasure to terminate service of his employees is curtailed or controlled by another authority by virtue of some law or otherwise then the case is no longer of a contract of service simplicitor and Master and Servant concept. As has been discussed above, the Regulations having been promulgated with the prior approval of the Federal Government and Federal Government under Regulation No. 3 has the exclusive authority to interpret the said Regulations and under section 13 the same have the force of directions issued to the Commission regarding appointment and other service conditions of employees, no discretion has been left with the Commission to terminate the service of the employee at its convenience as such the rule of Master and Servant is not attracted to this case. It may be pointed out here that under section 3-A of the Pakistan Atomic Energy Commission Ordinance, 1965, it has been provided that every employment under the Commission shall for the purpose of Pakistan Essential Services (Maintenance) Act 1952 be deemed to be employment under the Federal Government and the said Act has been made applicable accordingly. This view which I have taken is in accord with the principle of law iaid down in the judgment of Supreme Court reported as The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 S.C.M.R. 1275). In the light of the above discussion the argument of the learned counsel for the respondents that the relationship between the parties was governed by principle of Master and Servant is found to be without any substance. 9. Now I revert to the merits of the case. The main burden of the argument presented by the learned counsel for the petitioner was that the procedure as prescribed in the Efficiency & Discipline Rules 1973 under which the Disciplinary proceedings against the petitioner were taken was not followed as such the dismissal of the petitioner from service is thus rendered without lawful authority. He also maintained that the allegations against the petitioner as mentioned in show cause notice were vague and the petitioner was deprived of valuable right to defend the case properly, had the allegations been made specific and detailed with necessary particulars. His precise argument was that the procedure as prescribed in rule 6 of Government Servants (Efficiency & Discipline) Rules, 1973 was not followed which resulted in mis-carriage of justice. 10. The decision of the case on merits centres around the question whether the procedure prescribed in rule 6 of the Efficiency & Discipline Rules, 1973 was required to be followed or not. Learned counsel for the respondents submitted that the argument was mis-conceived inasmuch as the respondents hi exercise of their powers decided to apply the shorter procedure under rule 5(1) (///') (a&b). This submission gives rise to a further question whether in fact the respondents decided to do away with procedure prescribed in rule 6 and instead to follow the procedure under rule 5 as aforementioned. Under Rule 5(1)07) of the said rules the authorised officer is required to decide whether in the light of the facts of a case or in the interest of justice an enquiry should be conducted through an Enquiry Committee, and once it decides to do so then the procedure as prescribed in rule 6 shali apply. In order to determine as to whether the Authorised Officer decided that inquiry be conducted through an Enquiry Committee or to proceed against the petitioner under clause (Hi) of the said rule 5(1). I directed the learned counsel for the respondents to place on record copies of the relevant proceedings. The original order of the Authorised Officer i.e. the Chairman of the Commission as he then was has not been placed on the record. However, a copy of note deted 5-11-1986 recorded by Mr. S.M.N Zaidi Member (Power) has been produced and it will be useful to reproduce the said note in extenso for facility of ready reference:— "Chairman, PAEC had desired the establishment of an Inquiry Committee comprising Director (DTP) as Inquiry Officer and Director (Finance) as Member, The inquiry to be completed expeditiously. Please issue a formal office order including terms of reference." Sd/- (S.M.N Zaidi) Member (power) It is manifestly clear from this note that the Chairman i.e. the Authorised Officer took a decision that inquiry should be conducted through an Inquiry Committee comprising Director (D.T.P.) as Inquiry Officer and Director (Finance) as Member. Rule 6 of the Efficiency & Discipline Rules speaks of inquiry committee and Inquiry Officer to inquire into the charge therefore, this decision of the Chairman for appointment of Inquiry Committee comprising Inquiry Officer and another Member clearly establishes that the Authorised Officer took a positive decision to proceed under rule 5 (!)(//) as such the provisions of rule 6 of the Efficiency & Discipline Rules were to regulate all subsequent disciplinary proceedings and they were to be complied with. It was not the case of respondents nor it was argued by their learned counsel that the procedure as laid down in rule 6 of the said rules was followed as their case had throughout been as also reiterated during arguments was that Authorised Officer had decided not to conduct inquiry through Inquiry Committee as he decided in his discretion to follow the shorter procedure as envisaged by rule 5(l)(m) (a&b) of the (Efficiency & Discipline) Rule 1973, therefore in my opinion the disciplinary proceedings taken as also the consequential order of dismissal of petitioner from the service were not taken and passed in accordance with law. 11. Learned counsel for the respondents when faced with this difficulty tried to over-come it by arguing that the Inquiry Committee constituted was not a regular Inquiry Committee as envisaged by rule 5(l)(/i) but was a committee constituted for holding preliminary inquiry into the charges and was merely fact finding committee therefore, rule 6 of the disciplinary rules was not applicable. I am afraid, the argument in my opinion is plainly unsound. As a matter of fact as pointed out by the learned counsel for the petitioner, the findings of this inquiry Committee if read as a whole did not clearly find beyond reasonable doubts that the petitioner was guilty of charges levelled against him therefore, in order to justify action against the petitioner the stand was taken that in fact the authority did not decide to adopt the procedure of inquiry through Inquiry Committee so that provision of rule 6 may be circumvented, is not without force. Learned counsel for the respondents feebly argued that even if initially the Authorised Officer had decided to hold inquiry through Inquiry Committee as a result of which rule 6 became applicable, it was open to the Authorised Officer subsequently to take a decision that instead of following the procedure of rule 6 the disciplinary proceedings should be regulated under rule 5(1)(«7). This argument has been successfully met with by the petitioner on the strength of judgment reported as Ghulam Hadl Baloch v. Collector of Customs (Preventive) and others (1987 S.C.M.R. 602) in which their Lordships have taken the view that after having initially taken decision that regular inquiry should be conducted, the Authorised Officer could not adopt other procedure. Inspite of directions nothing has been produced on the record of this case whether the Authorised Officer in fact had passed an order for re-calling his earlier order for constitution of an Inquiry Committee consisting of an Officer and a Member and once an Inquiry Committee was appointed, the provisions of rule 6 as per its own force were attracted and it provides that where an Inquiry Committee is appointed the Authorised Officer shall comply with the provisions of Sub Rule (1) (2) (3) (4) (5) and (6). According to rule 6 a regular charge is required to be framed and communicated to the accused with statement of allegations requiring him to put in a written defence. The Inquiry Officer or the Committee was required to examine such oral and documentary evidence in support of the charges or any defence of the accused as may be considered necessary and the accused is entitled to crossexamine the witnesses to be examined against him. The petitioner thus was deprived of the benefit of provisions of rule 6 as such the disciplinary proceedings and consequential orders of removal of the petitioner from service were rendered without lawful authority. 12. The charges against the petitioner as reproduced above, also show that they were general in nature and as such were wanting in necessary details which also prejudiced the petitioner's right to defend himself. For example under various charges no details of the contracts were given. The other charges enumerated under para 2 were also in generalized form and vague in nature. No details of the orders of supply under emergency powers allegedly placed by the petitioner as mentioned in para 2(1) (//) (///') (/V) (v) (v/) (vii) and (v«V) were given. Such a show cause notice requiring the accused to defend himself was nothing but merely a colourable exercise. A valuable right of the petitioner regarding continuance or otherwise in service of the Commission was involved. He was not provided with fair opportunity to defend himself properly, due to adoption of shorter procedure illegally by diverting the course of disciplinary proceedings to procedure under rule 5(/)((/7) of Efficiency & Discipline Rules as against rule 6 under which they should have been conducted, as discussed above. The impugned order of removal of the petitioner from service therefore, cannot be sustained. 13. Learned counsel for the petitioner also challenged the legality of order placing him under suspension conveyed to him through letter dated 11-5-1987 on the ground that the same was not passed by competent authority. In support of this plea he argued that the said order (Anncxure 'B') was passed by Director Establishment whereas the competent authority was the Commission itself. This objection was also raised by the petitioner in a writ petition No. 760 of 1987 in which the order placing him under suspension was challenged. The record of the Commission was produced in that writ petition from which it emerged that as a matter of fact the Commission on 28-4-1987 approved the initial suspension of the petitioner from service which was conveyed to him through letter dated 11-5-1987 and the period of suspension was extended by the Commission on 17-8-1987. In view of this factual position obtaining on the record, the argument that order dated 11-5-1987 for placing the petitioner under suspension was not assed by competent authority has no force. It is hereby repelled. Nothing turns on this as for the foregoing reasons the disciplinary proceedings as also the consequential order of dismissal of the petitioner are not sustainable and the petitioner is to be reinstated in service with full back benefits. 14. Before closing this judgment, I would like to dispose of another objection raised by the learned counsel for the respondents which was to the effect that by virtue of rule 10 of Efficiency& Discipline Rules, 1973 the petitioner had a right of departmental appeal against the impugned order of dismissal therefore the writ petition having been filed without availing of the said remedy which was efficacious and adequate remedy within the contemplation of Article 199 of the Constitution as such, the writ petition should be dismissed. This argument has engaged my serious consideration. Under rule 10, it has been provided that a person on whom a penalty is imposed shall have such right of appeal as may be prescribed under the Civil Servant (Appeal) Rules 1977. According to Regulation 26 of the Regulations framed by the Commission the employees of the Commission for the purpose of conduct and discipline are to be governed by the Government Servants (Conduct) Rules, 1964 and the Government Servants (Efficiency & Discipline) Rules, 1973, This Regulation does not itself provide for application and adoption of Civil Servants (Appeal) Rules, 1977 to employees of Commission. The question which arises for determination is whether by virtue of rule 10 of Efficiency & Discipline Rules 1973 the Civil Servants (Appeal) Rules, 1977 shall automatically become applicable, in my view, the answer is in negative. If they were intended to be applied they must have been mentioned in Regulation 26 as is the case with Civil Servants (Conduct) Rules 1964. Even if it is assumed that Civil Servants (Appeal) Rules 1977 are applicable, the same provides that appeal shall be filed by aggrieved Civil Servant against imposition of penalty before the next higher authority. It has not been successfully demonstrated by learned counsel for the respondents that as against Chairman of the Commission who passed the impugned order of dismissal in this case, the Commission was by any rule or law constituted as the next higher authority. It may be pointed out that the Chairman is the administrative head of the Commission being its Chief Executive Officer under Section 4(3) of the Ordinance and being constituent part of the Commission itself therefore, qua the order of the Chairman the remaining members of the Commission cannot be treated to be the appellate authority. Apart from this, as I have noticed above the Commission as such had been approving the suspension of the petitioner from service therefore, even if it was a higher authority, the remedy of appeal if any in view of expression of opinion by the Commission in the case of the petitioner while suspending him was no more an adequate and efficacious remedy within the meaning of Article 199 of the Constitution. It may also be observed that in the proceedings before the Chairman two of the Members of the Commission were also joined. Learned counsel for the respondents when questioned submitted that the appeal could be heard by such members of the Commission other than those who were present with the Chairman as merely observer, because the Commission has such number of other members sufficient to constitute the corum. Considering the above circumstances, I am not persuaded to hold that the petitioner had adequate remedy of appeal before the Commission as argued and he connot be thrown at the mercy of the Commission which had already taken a decision in his case while suspending him from service. The argument is therefore found without any merit. 15. For the foregoing reasons, this writ petition is accepted with costs. The disciplinary proceedings taken by the respondents against the petitioner and consequential order dated 3-1-1988 of the removal of the petitioner from service are hereby declared to have been taken and passed without lawful authority and of no legal effect and are quashed. The respondents are directed to treat the pctitwmer to have never been removed from service and re-instate him with full bac^f benefits. Petition accepted.

PLJ 1990-Lahore 87 PLJ 1990-Lahore 87 {.Rawalpindi Renclij. Present: mian allah nawaz, J SYED AHMAD FAROOQ and 3 others-Petitioners versus MUIlATvlMAD ARIF (deceased) through his legal heirs and two others— Respondents T.... : < o.ico t-.». >A of i ! 83 allow d on 25-10-1989 (i) CastonHhTi R -at fejteitlyn Act !%.< (XI of 1963)-- —S.17—Tenant--Ejectment of~Personal requirements-Ground of—Petitioner (FW3) Clearly stated la bis statement under oath that he had no other shop aad that he wanted shop in good faith, for starting business in said shop-­ Held; Impugned orders have- been passed in defiance of Section 23 of Act as well as rule enunciated by superior judicial authorities in respect of personal requirement-Petition accepted and case remanded. [P.91JC&D (H) Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —S.23 read with Civil Procedure Code, 1908, Section ll~Ejectment petition-Constructive resjudicata-Principles of~Whethcr applicable-Question of— Principtes of rcsjudicata contained in Section 11 of CPC have not been totaliy engrafted into Act-Section 23 is not applicable to findings on basis of constructive resjudicata-Hcld: Additional District Judge as well as Rent Controller fell into error of law by extending principle of constructive resjudicata to facts of case as requirement of petitioners was not at ail adjudicated and cannot be deemed to have been decided by fictional operation of constructive resjudicata. [Pp.89,90&91]A&B PLD 1982 SC 201 rel. Mirza Anwar Beg, Advocate for Petitioners. Mr. Mansoor Ahmad, Advocate for Respondents. Date of hearing: 24-10-1989. judgment The constitutional jurisdiction of this court has been invoked by Syed Ahmad Farooq and others hereinafter the landlords/ petitioners, against the order of the Appellate Authority dated 26-7-1983 and the order of the Rent Controller dated 3-4-1983, whereby the eviction petition filed by the petitioners in respect of Shop No. 43(C) on the ground floor Kirparam Compound, Rawalpindi Cantonment, was dismissed. 2. The brief facts in the background of this petition are; that Sayed Ahmad Farooq and others, the petitioners are owners/ landlords in respect of the shop No. 43(C) Ground Floor, Kirparam Compound Rawalpindi Cantonment (hereinafter referred to as the rented premises) while Muhammad Arif was the original tenant. The present respondents are successors-in-interest of Muhammad Arif. On 16-12-1979, the petitioners filed eviction application under Section 17 of Cantonment Rent Restriction Act 1963 (Act No. XI of 1963), hereinafter referred to as Act, on the ground of personal requirement. 3. The application was resisted on the principal ground that the instant petition was barred under the principle of constructive resjudicata as the application filed by the petitioners for the personal requirement was dismissed by the learned Additional District Judge by order dated 21-11-1979. 4. The learned Rent Controller vide order dated 3-4-83 rejected the application holding that the application was barred in view of the order of the learned Additional District Judge dated 21-11-1979 wherein the previous application filed by the present petitioners on the ground of personal requirement of his wife was dismissed. Feeling aggrieved by the order of the Rent Controller dated 3-4-83, the petitioners filed appeal which was dismissed by the learned Additional District Judge vide impugned order dated 21-11-1979. This order is called in question in this, petition. 5. The learned counsel for the petitioners/landlords raised the following points in support of his case:— (/) It was contended that the learned first appellate authority fell into error of law by pressing into service the principle of constructive resjudicata in eviction proceedings being conducted under the provisions of the Act. It was argued that the provisions of Section 23 of the Act were not applicable to the facts of the present case as in the previous application only requirement of wife of petitioner No. 1 was adjudicated. Neither between the parties, question of personal requirement of Muhammad Arif was in dispute nor there was any issue in this respect. Strength was sought from Wasi Ahmad Rizvi v. Federation of Pakistan (PLD 1982 SC 20) Jabar etc. v. Hie State (1984 Law Notes (Lah) 996), Allah Rakha v. Muhammad Shaft (197S SCMR 437), Ghulam Bahauddin Qureshi v. Mrs. Hawa Bibi (PLD 1979 Karachi 597), Dr. Riaz ud Din Ahmad v. Mahboob ttahi (1985 SCMR 522) (k) It was submitted that the finding of the first appellate authority was based on conjectures and surmises. 6. On the other hand., the learned counsel for the respondents supported the decision of the Additional District Judge as well a s of Rent Controller. He adopted an argument that the Constitutional jurisdiction cannot be exercised in the instant case, as the conclusions of both, the Rent Controller and the Additional District Judge were eminently just and were not open to any interference. According to him, the approach of the Rent Controller and the Additional District Judge may be erroneous, but their conclusion was completely correct, in the context of the statement of the petitioner No. 1 who admitted that his requirement and the requirement of his wife were one and the same; that he had been in need of the rented premises since 1974, it was suggested that the statement was sufficient to lead to conclusion that in previous application, his requirement was in issue between the parties and had been adjudicated. , I have heard arguments of the parties, and perused both the impugned orders. Before I proceed to determine the respective contentions of the parties, it will not be without benefit to reproduce the findings of the Rent Controller, which are as under:-- "The petitioner No. 1 in his examination-in-chief has alleged that he needs the suit shop for his personal use. In his cross-examination he has deposed that he filed an ejectment petition against the respondent on the ground that the shop in question was required by him for personal use where his wife intended to run a clinic; and this petition was dismissed by the Additional District Judge. Moreover, the petitioner No. 1 admits that his requirement has been existing since 1974 and no change has occurred in his requirement since then. He also admits that he considers the requirement of his wife and his own as one and the same thing. This shows that the same old issue is being again opened which already has been decided by the honourable Additional District Judge in 1979". 8. On this point the learned Additional District Judge observed as follows:-- "The learned Rent Controller came to this conclusion that the same old issue was to be opened before him. The observation of the learned Rent Controller was not correct as I have stated above. The appellant/petitioner had produced their claim and in the light of the evidence the learned Rent Controller should have decided the matter in Dispute independently". 9. To my mind the following questions emerge from the contentions of the parties:-- (/) Whether the Rent Controller as well as the first appellate authority had decided the question of personal requirement within the frame work of sub-clause (b) (i) of sub-section 3 of Section 17 of the Act. (//) Whether the instant application was barred under the principle of constructive resjudicata. (//'/) Whether both the impugned orders are in contravention of the principles & rules laid down by the superior judiciary. 10. I accordingly proceed to determine the aforesaid questions. The first question can be answered by reference to section 23 of the Act and Section 11 of th Code of Civil Procedure. Section 23 of theAct is as follows:-- "23- Decisions which have become final not to be reopened—The Controller shall summarily reject any application under sub-section (2) or under subsection (4) of Section 17 or under Section 17-A which raises substantially the same issues as have been finally decided in a former proceeding under this Act". 11. A bare reading of Section 23 ibid makes it abundently clear that the principles of resjudicata contained in Section 11 of the Code of Civil Procedure have not been totally engrafted into the Act. Section 23 ibid on the plain reading is applicable to the findings in respect of which there has been express adjudication. It is not applicable to the findings on the basis of the constructive resjudicata. It will be appropriate to examine distinction between the constructive resjudicata and actual resjudicata within the framework of Section 11 of the Code of Civil Procedure. The doctrine of resjudicata is built upon the consideration of public olicy that there must be an end to the litigation and finality be given to adjudication at some stage. The principle of res-judicata is founded on the rule of estoppel. If there is a final adjudication between the same parties, in respect of the matter directly and substantially in issue between the parties by the court of competent jurisdiction, the parties are precluded to reopen the matter before the court for second round of litigation. The principle of constructive resjudicata embodied in Explanation IV to Section 11 of the Code of Civil Procedure is intended to compel both the parties to the suit to raise, before the Court in support of their contentions all grounds of attack and defence available to them and so get their whole case determined. It forbids piecemeal litigation and with­ holding of ground with the purpose of avoiding the principle of resjudicata. It is based upon the principle of an existing cause of action and does not relate to recurring causes of actions. On the basis of this very principle, the principle of res­ judicata has been excluded in Section 23 of the Act which only embodies the principle of actual resjudicata. The principle of resjudicata in terms of Section 14 of the Rent Restriction Ordinance 1959 came into consideration before the Supreme Court in Sh. Maula Bakhsh and another v. Fazal Din and another (PLD 1982 SC 201). In this case, Maula Bakhsh and others, appellants before the Supreme Court filed an eviction application on the ground of reconstruction. The application was accepted by the Rent Controller. In appeal by the tenants the Additional District Judge accepted the appeal and dismissed the eviction application on the ground that already the application on the basis of the reconstruction filed by the landlord was dismissed. The High Court by judgment dated 11-2-1967 dismissed the appeal Their Lordships of the Supreme Court while accepting the appeal, observed as under:— "Similar plea was raised from the respondents' side (as constituting a good defence) before the learn d Rent Controller which was repelled for the reason that the question raised in the fresh petition was not finally decided in the earlier proceedings. It seems that the respondents did not raise this plea again during the first appeal before the District Court. Be that as it may, apart from the fact that the plea was not finally adjudicated in the earlier proceedings, after going through the pleadings, we feel that there was a new cause of action that the bar of general resjudicata or for that matter, one in the provisions contained in Section 14 of the Ordinance, was not attracted". 14. This principle has been reiterated in a number of cases which are not necessary to be repeated. The ratio emerging from the aforesaid authority is that the principle of constructive resjudicata is not applicable to the proceedings under the Rent Laws. 15. Guided by the aforesaid rule I entertain no doubt in my mind that the Additional District Judge as well as the Rent Controller fell into error of law by extending the principle of constructive resjudicata to the facts of the case. In the aforesaid case it was the personal requirement of the wife of petitioner No. 1 which was adjudicated. The requirement of the petitioners was not at all adjudicated and cannot be deemed to have been decided by fictional operation of constructive resjudicata. 16. Reverting to next question it is necessary to repeat that the superior judiciary has enunciated the following rules for the purpose of deciding the question of personal requirement:-- The personal requirement of landlord is to be decided within the frame work of safeguards provided by section 17 of the Act. It is clearly provided in section 17 ibid that if eviction is sought in respect of commercial premises on the ground of personal requirement and the shop is re-let after the order of eviction, the tenant is entitled to restoration of his tenancy within the framework of Section 17 ibid. Reference may be made to Nasir ud Din v. Muhammad Siddique (1981 SCMR 709) and Abdul Majid v. Additional District Judge, Sahiwal and others (1983 SCMR 374). That the Rent Controller as well as the appellate authority have to give due weight to the statement of the landlord on Oath in respect of personal requirement. If the statement of the landlord on oath is in consonace with the averment in the application, his statement is to be ordinarily accepted as true, o PW3 petitioner clearly stated in his statement under oath that he had no other shop where he could start his business, that he wanted the shop in good faith for starting business in the said shop. His mere statement that his need and need of his wife are the same cannot lead to the conclusion that the question of his requirement stood established in the previous application. Therefore, I have no option in my mind that the impugned orders have been passed in defiance of Section 23 of the Act as well as the rule enunciated by the superior judicial authorities in respect of personal requirement. In the result, I have come to conclusion that the orders passed by the first appellate authority, as well as Rent Controller are totally without jurisdiction and are contrary to law. Therefore, I have no option but to accept the petition and declare the impugned orders as having been passed without any lawful authority. The petition is accepted and the impugned orders are set aside. The case is remanded to the District Judge, Rawalpindi who shall decide the appeal of the landlords in accordance with law. As the case has been pending for a long time, the District Judge is directed to decide the appeal within four months of the receipt of this order. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 92 PLJ 1990 Lahore 92 [Rawalpindi Bench] Present: MUHAMMAD AMIR MALIK, J MUHAMMAD AZIM QURESHI-Petitioner versus Hakim Sayed AKHTAR1RSHAD and 4 others-Respondents Writ Petition No. 194 of 1988, accepted on 18-10-1989 Constitution of Pakistan, 1973-- —Art.l99-Constitutional jurisdiction-Invokation of-Whether petitioner is an aggrieved person-Question of-Question that was to be addressed by Additional District Judge, was whether writ petitioner (appellant before him) was a necessary party to ejectment proceedings—He failed to take proper note of it—It is clear from pleadings that petitioner was admittedly owner of disputed shop and claim by his sons (respondents 3&4) was based upon gift deed in their favour by their father (Petitioner)-Impugned Order of Rent Controller, striking off defence of respondent No. 5 who was tenant of petitioner, certainly affected writ petitioner whose claim was that he had not made any gift and filed a civil suit challenging gift deed-Held: Petitioner was certainly an aggrieved party and thus had locus standi to file appeal-Petition accepted and case remanded to Additional District Judge for deciding appeal afresh. [Pp. 93 to 96]A, B, C, D, E&F PLD 1969 SC 65, PLD 1983 Lahore 234, 1985 SCMR 1991 & PLD 1979 Karachi 167 rel. Hafiz Saeed Ahmad Sheikh, Advocate for Petitioner. Mr. Nasir Saeed Shaikh, Advocate for Respondents. Dates of hearing: 7 and 11-10-1989. judgment Khawaja Ghulam Rabbani respondent is in occupation of shop No. V/485, Sauri Gali, Nimak Mandi, Rawalpindi , as a tenant. Muhammad Saleem Qureshi and Muhammd Saeed Qureshi respondents, claiming to be the landlords thereof, filed an ejectment petition on 18-4-1987 under the Rent Restriction Ordinance against above mentioned Khawaja Gulam Rabbani, who submitted reply on 6-7- 1987 and then on 26-7-1987. The case of the landlords was that the shop had been gifted to them by their father Muhammd Azeem Qureshi (the writ-petitioner) vide registered deed dated 26-4-1982, Khawaja Ghulam Rabbani had become a tenant under them at a monthly rent of Rs. 2500/- which he had failed to pay since April, 1982 and furthermore, the shop was required in good faith for personal use. The pleas were controverted by Khawaja Ghulam Rabbani. He denied the relationship of landlord and tenant and asserted that he was tenant since long under Muhammad Azeem Qureshi, the writ-petitioner, at a monthly rent of Rs. 1000/- which he had been paying regularly, rather he had advanced an amount of rupees two lacs lo him under an agreement dated 30-4-1987, rupees five hundred were adjusted from the said advance money and Rs. 500/- were paid each month. He also pleaded that the landlords must get their title cleared from the Civil Court and that he had learnt about their claim of gift when notice was served upon him by the said landlords in 1987. The ejectment petition was at the stage of framing of issues when on 26- 7-1987 the learned Rent Controller recorded the statement of Najam Naeem, the son and attorney of Ghulam Rabbani respondent (whose statement was again recorded on 4-10-1987) and the defence of the tenant was struck off and ejectment order passed. This order was not appealed against by Khawaja Ghulam Rabbani, the tenant. Instead, Muhammad Azcem Qureshi, the original owner and the father of the two landlords, preferred an appeal which was dismissed by a learned Addl. District Judge, Rawalpindi, vide order dated 5-3-88 mainly on the ground that he had no locus slandi to file the appeal. The order of the Rent Controller dated 4-10-1987 and that of the learned Addl. District Judge dated 5-3-1988 have been challenged by Muhammad Azeem Qureshi, the original owner of the property, in this writ petition. His case is that there is no gift from him to his sons, the gift deed was the subject of a civil suit filed by him, he was the actual landlord and not his sons and that the ejectment order adversely affected his interests and so he was an 'aggrieved person' and thus entitled to prefer the appeal. The foremost question that falls for determination is whether Muhammad Azeem Qureshi, the writ-petitioner, is an 'aggrieved person'. If the answer is in the positive, then the appeal against the order of the Rent Controller granting ejectment was competent on his behalf and the failure to dispose of the same on its merits amounted to refusal to exercise jurisdiction by the learned Addl. District Judge. Before the learned Addl. District Judge reliance was placed uponH.M. Saya & Co. v. Wazir AH Industries Ltd. (PLD 1969 SC 65) and Shehzad Ahmad v. Muhammad Hayat and others (PLD 1983 Lahore 234) by the learned counsel for the petitioner, but it appears from the impugned order that without appreciating and discussing the full scope of the reports and by making a passing reference to Haji Syed Ainullah v. Abdul Rashid (1985 SCMR 1991), relied upon by ;he opposite side, the learned Addl. District Judge proceeded to short-circuit the discussion to hold that the petitioner had no locus standi to file the appeal in the light of the statement of Najam Naeem, the attorney of Khawaja Ghulam Rabbani, the tenant. Even in the case relied upon by the respondents' side before the learned Addl. District Judge, the principle laid down was that where the petitioner who wanted to be impleaded as a parly under Order 1 Rule 10 CPC was not a necessary party to the proceedings, he could not be said to have the locus standi to file appeal in the High Court. So, the question that was to be addressed by the learned Addl. District Judge was whether the writ-petitioner (appellant before him) was a necessary party to the ejectment proceedings. This aspect he failed to take proper note of. In Soya's case it was clearly laid down that if the decree or order appealed from adversely affects a person, he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings. The same dictume seems to have been followed in Ghulam Hyder v. Muhammad Haneef and others (PLD 1979 Karachi 167). It was laid down that an 'aggrieved party' as used in section 15 of the Urban Rent Restriction Ordinance means not a party to a case, but any person aggrieved by an order and claiming that the order complained against is prejudicial to him and affects his interests adversely. Even in Shehzad Ahmad's case, referred to above, it was observed that section 15 of the Ordinance covered all orders passed by the Rent Controller, appellate authority or the High Court and these cannot be called in question except as provided under the Ordinance itself, either by the parties to the proceedings or by any person whose interest is adversely affected, although he may not be a party to the proceedings. 5. In view of the principles laid down and the observations made in the above cases, it is to be seen whether, in the circumstances of the case, the petitioner can be said to be an 'aggrieved party'. After hearing the learned counsel for the parties and going through the record, the answer must be in the positive. It is clear from the pleadings of the ejectment petition, that the petitioner was admittedly the owner of the disputed shop and the claim by his sons, i.e. the two landlords-respondents, was based upon a gift deed in their favour executed in 1982, who did not serve notice upon the tenant under section 13-A of the Ordinance until Aprill, 1987. It is also to be noted that right from the date of execution of the gift deed, i.e. since April, 1982, admittedly no rent was paid to the landlords by Ghulam Rabbani, the tenant. The case of the tenant also was that he was tenant under the petitioner and had been regularly paying rent, so much so that he had even advanced an amount of rupees two lacs to him under a written agreement and a part of the rent was to be deducted/adjusted from the said advance, as indicated above. But when the better statement of the attorney of the tenant was recorded by the Rent Controller, in an oblique manner, the tenancy which was previously denied, was admitted and it was in view of this admission that the defence was struck off and ejectment order passed by the learned Rent Controller. Not only this, but note must also be taken of the application made by the petitioner before the Addl. District Judge to bring on the record certain documents which had come into existence after the filing of the appeal. In this connection, we have on the record the statement of Khawaja Ghulam Rabbani as a witness for the respondents-landlords in another ejectment petition recorded on 14-12-1987 (Annexure 'H'), While going through this statement one can well imagine and judge the contradictory stand of Ghulam Rabbani respondent and even the falsehood which he dared to commit on oath. He stated that the property had been gifted to the sons under a registered gift deed by Muhammad Azeem Qureshi petitioner. He was an attesting witness to the gift deed. He admitted that previously he used to pay rent to the petitioner but when he received notice from the respondents-landlords he started paying rent to them. He admitted that Muhammad Saleem Qureshi respondent was the father-in-law of his son and he himself was in possession of shop No. V/485 (the disputed property of the present writ petition). He denied the suggestion that in the ejectment petition of the landlords (with respect to shop No. V/485) he had denied the title of the landlords and asserted that he had admitted them as landlords. Now this clearly is a false statement. He denied the suggestion and thus again told a lie by saying that in that ejectment petition he had denied the relationship of landlord and tenant. He admitted that the ejectment petition of the landlords had been granted against him vide order dated 4-10-1987 and that he had not filed any appeal against the same. He came up with the version that there had been compromise between them orally as they were all related, but he declined to give the details of the compromise on the plea that it was their family affair. He told that he had paid rent up to August 1987 to Muhammad Azeem Qureshi petitioner to whom he had advanced an amount of rupees two lacs under a written agreement in which it was recited that the advance money was with respect to the shop on rent with him, but at the same time he had the tongue in his cheeks to say that the advance was not with respect to his tenancy. When confronted with a definite question in this respect, he came out with the clear statement that the deduction was made from the advance money towards the rent of his shop. Thus, the position that crystalises is that the landlords claimed their relationship on the basis of the gift deed executed in their favour by their father and after more than five years of the execution thereof they served notice upon Ghulam Rabbani respondent (under section 13-A of the Ordinance) who, as is clear from his statement, is a close relative of the parties and he initially denied the tenancy but later on admitted the same, allowed his defence to be struck off and ejectment order passed, against which he did not file appeal, and thus the order certainly adversely affected the writ petitioner whose claim was that he had not made any gift, still continued to be the landlord and admittedly had filed a civil suit challenging the gift deed. The conclusion is, therefore, inescapable that the petitioner was certainly an 'aggrieved party' and thus had the locus standi to file the appeal. The failure to hear and adjudicate the appeal on merits was an abdication of the exercise of jurisdiction vesting in the learned Addl. District Judge, and so the writ petition is the only proper remedy for correcting the jurisdictional fault. 6. In view of the fact that the petitioner had already filed a civil suit challenging the gift deed, further argument was raised that the writ petition was not the proper remedy, rather the proper remedy (civil suit) had already been availed of by the petitioner. In this connection, learned counsel for the petitioner referred to Rehmatuallh v. All Muhammad and another (1983 SCMR 1064) and Mr. Salah-ud-Din v. Qazi Zaheer-ud-Din (1984 PSC 127) to highlight his difficulty in the situation. The question of title, even if decided by a Rent Controller, the decision is final and not open to challenge in civil Court on the principle of general res judicata, the provisions contained in section 12(2) read with section 9 CPC and section 15(7) of the West Pakistan Urban Rent Restriction Ordinance. The principle laid down and the exceptions thereto are well brought out by the Supreme Court in Rehmatidlah 's case (referred to above) and a passage quoted in Mir Salah-ud-Din's case may be reproduced with advantage:-- "A matter—involving even a dispute of title—having once obtained finality in the Rent Controller's forum (including the hierarchy of appeal/s and thus the appellate and superior Courts), cannot be reagitated in a suit before a civil Court of general jurisdiction, inter alia, because of principle of general res-judicata, the provisions contained in section 12(2) C.P.C. read with section 9 CPC and, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance 1959 (as amended). Exception: held some possible exceptions to this rule have also been spelled out in the same case of Rehmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralised when the order itself says that it is not final regarding a particular issue and that the same could be reagitated in the Court of general jurisdiction; or, when otherwise the said order in itself conveys a clear undisputed intendment that it is not final and visualises a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or, when the relevant issue is determined on the basis of doubts; or when the party concerned itself instead of getting the final determination in that heirarchy gives up the contest therein with a positive statement in this behalf, so as to agitate the question before Court of general jurisdiction which in some cases would, be at the risk of a temporary adverse conclusion and/ or action against him." In view of this legal position, the learned counsel for the petitioner offered to proceed with his civil suit if the respondents' side made statement at the bar that they had no objection to it, and when questioned, the learned counsel for the respondents declined to make any such commitment. So, unless the question of title is directed to be got determined in a separate civil suit, by the Rent Controller or the appellate authority, in general jurisdiction, the order in the ejectment proceedings would be final and would not be liable to challenge in any forum whatsoever. 7. I, therefore, accept the writ petition, set aside the impugned order of the learned Addl. District Judge and direct that the appeal filed by the petitioner shall be considered as pending, he being an 'aggrieved party', and the same would be decided on merits, including the application for production of additional documents. If the Addl. District Judge and/or the Rent Controller in their jurisdiction under the Rent Restriction Ordinance feel that the question of title is so complicated that it cannot be decided in the proceedings under the Ordinance before them, then the parties may be referred to get the same decided from the Civil Court in general jurisdiction. The parties are left to bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 96 PLJ 1990 Lahore 96 Present: MALIK MUHAMMAD QAYYUM, J A/it. HAMIDA BEGUM-Petitioner Versus Mst. NAZIR BANO and 4 others-Respondents Civil Revision No. 102-D of 1989, dismissed on 19-11-1989 (i) Civil Procedure Code, 1908 (V of 1908)-- —S.115—Evidence—Whether to be appraised in revision—Question of— Contention that findings of Courts below that petitioner had been divorced by deceased during his life time, are not well founded—Question as to whether she had been divorced, is of fact on which there is concurrent finding of courts below-Held: It is not possible to re-appraise evidence in exercise of revisional jurisdiction. [P. 98]B (ii) Civil Procedure Code, 1908 (V of 1908)- —S.115—Remand of case—Whether entire case re-opens—Question of— Contention that at time of remand of case by Additional District Judge, question of status of petitioner stood finally decided and it was not open to trial Court to give finding that she was not a widow of deceased-It is evident from statement of parties on basis of which case was remanded, that question as to who were heirs of deceased, was specifically left open and remanded to trial Court-Held: It is idle on part of petitioner to contend that her status was no longer in issue and could not be decided by trial Court. [P. 98]A (iii) Qanun-e-Shahadat, 1984 (PO 10 of 1984)-- —Art.lOO-Thirty years old document-Presumption of correctness-Whether attached to—Question of—Findings of Courts below that petitioner was divorced by deceased, are well founded—Apart from oral evidence, an agreement containing acknowledgment of petitioner that she had been divorced by her husband, was produced~This document bears date 16th of April, 1951—Held: Agreement being more than 30 years old, carries presumption of correctness under Article 100 of Qanun-e-Shahadat--HeId further: Concurrent findings based on this evidence cannot be said to be arbitrary or capricious and do not call for any interference by High Court-­ Petition dismissed. [P. 98]C Ch. Abdul Majid Tahir, Advocate for Petitioner. Mr. Muhammad Amin Kalanauri, Advocate for Respondents 1 to 4. Nemo, for Respondent No. 5. Date of hearing: 19-11-1989. judgment The dispute relates to inheritance of Tufail Muhammad son of Fazal Muhammad who died on 20th August 1972. On an application made by Mst. Hamida Begum, the petitioner, she was granted a succession certificate on 21st of June, 1973 by the Court of Mr. Badar-uz-Zaman Chatha, Civil Judge, Lahore . Mst. Nazir Begum and three others the respondents herein on 7th February, 1974 filed a suit for declaration to the effect that the succession certificate was obtained through fraud and misrepresentation inasmuch as Mst. Hamida Begum was not a widow of the deceased and was not entitled to any inheritance but on the other hand petitioner No. 1 Mst. Nazir Begum was his only widow and respondents No. 2 to 4 his daughters and son. Later on Altaf Hussain, respondent No. 5 was impleaded as a party to the suit being a son of Tufail Muhammad deceased from Mst. Hamida Begum petitioner. This suit was contested by petitioner but was decreed by the Court of Mr. Razi Abbas Bokhari, Civil Judge on 8th of January, 1978. 2. Aggrieved, the petitioner went in appeal which was decided by Mr. Ali Nawaz Chauhan, Addl. District Judge on 15-9-1980 on the statement made by the parties whereby they had agreed to the remand of the suit to the trial Court. In pursuance to the order of remand the learned trial Court recorded evidence of the parties and on 15-1-1986 decreed the suit in favour of respondents No. 1 to 4 holding that Mst. Hamida Begum petitioner had been divorced by Tufail Muhammad during his life time and she as such was not entitled to any inheritance of his estate. The petitioner Mst. Hamida Begum as also Altaf Hussain respondent No. 5 filed a joint appeal before the Additional District Judge where the claim of Altaf Hussain was conceded by respondents No. 1 to 4 . The learned Additional District Judge however, affirmed the findings of the trial Court, as regards Mst. Hamida Begum that she had been divorced by Tufail Muhammad during his life time. The decree of the tiral Court was therefore, modified to the extent of Altaf Hussain respondent No. 5 but the claim of the appellant was however rejected. She has now filed this petition under section 115 PPC. Mr. Abdul Majeed Tahir, learned counsel for the petitioner contented that at the time of remand of the suit by Mr. Ali Nawaz Chauhan, Additional District Judge the question as regards the status of Mst. Hamida Begum petitioner stood finally decided and therefore, it was not open to the trial Court in post remand proceedings to have given a finding that she was not a widow of the deceased. This argument of the learned counsel is without any merits. From a bare perusal of the statement made by the parties on 15th of September, 1980 on the basis of which remand order was passed it is evident that the question as to who were the heirs of the deceased was specifically left open and remanded to the trial Court. It is, therefore, idle on the part of the petitioner to contend that the status of Mst. Hamida Begum was no longer in issue and could not haVe been decided by the trial Court. The other contention of the learned counsel for the petitioner was that the findings of the Courts below that Mst. Hamida Begum had been divorced by Tufail Muhammad during his life time are not well founded. The question as to whether Mst. Hamida Begum was divorced by Tufail Muhammad is one of fact. Both the Courts below after appraising the evidence of the parties have recorded the concurrent finding, that Tufail Muhammad had divorced Mst. Hamida Begum in the year 1951-52. It is not possible to reappraise the evidence in the exercise of revisional jurisdiction. Even otherwise the findings of the Courts below in this respect are well founded. Apart from oral evidence the respondents No. 1 to 4 had produced in evidence an agreement Ex.P.l containing an acknowledgement of Mst. Hamida Begum that she has been divorced by her husband Muhammad Tufail. The document bears the date 16th of April, 1951 and being more than 30 years old carries the presumption of correctness under Article 100 of the Qanun-e- Shahadat. Significantly enough, after the document had been produced in evidence the petitioner did not appear as a witness nor did she deny her signatures on the said document. The two Courts below had relied upon the statement of PW1 Mst. Hussain Bibi the mother of Tufail Muhammad deceased and PW.2 Muhammad Iqbal, his brother-in-law. The concurrent findings which are based on this evidence cannot be said to be arbitrary or capricious and do not call for any interference by this Court. As a result of the above, this petition has no force and is dismissed leaving the parties to bear their own costs. (MBC) Peition dismissed.

PLJ 1990 Lahore 106 PLJ 1990 Lahore 106 Present: AMJAD KHAN, J Malik MUHAMMAD IQBAL-Petitioner versus GHULAM MUHAMMAD and another-Respondents Civil Revision No. 1740 of 1989, dismissed on 26.9.1989 (i) Lis Pendens- — Lis pendens-Prindple of -Applicability of~How long does it continue- Question of—Section 52 of" Transfer of Property Act embodies a rule of equity and good conscience which have always been applied in this province-­ It provides that no party to a suit may make any transfer to prejudice of other-It takes effect from very moment that a suit or proceeding is instituted and remains operative upto time that such suit or proceeding comes to its final end in all respects-Appeal is continuation of suit-Held: Neither of eventualities having taken place in the case at time of transfer made to petitioner, transaction cannot be saved from operation of rule of Us pendens. [P. 108]A ILR (1900) Calcutta 23/rf. (ii) Lis Pendens- — Lis pendens— Principle of—Applicability of—Whether a transferee acting bonafide to obtain a property involved in a pending litigation, may be out of purview of rule of Us pendens-Question of—Since respondent No. 2 was incapacitated by rule of Us pendens, he did not have anything for being lawfully transferred and therefore, petitioner would not be deemed to have acquired anything and muchless a lawful title qua other party respondent No. 1—Held: Respondent No. 2 will be deemed in law, continued to be vested with title in suit house-Petition dismissed. [Pp. 108&109JB&C Malik Allah YarKlian, Advocate for Petitioner Date of hearing: 26.9.1989. order Two short questions involved herein are:— (/) Until when may the rule of lis-pendens continue to remain operative? and, (//) Whether a transferee acting bonafide to obtain a property involved in a pending litigation may, on that account, be out of the purview of the rule of lis-pendens! The admitted facts are that a suit for specific performance of an agreement to sell a house was brought by Ghulam Muhammad respondent No. 1 against the promisor Ghulam Jaffar respondent No. 2. After trial, the suit was decreed on 31-7-1988 to the extent only of the earnest money of Rs. 1,00.000/- being required to be returned to the plaintiff who was denied the relief of specific performance. This decree of the trial Court was impugned in two appeals brought by the parties in the District Court which presumably are still pending there. However, during the interregnum of denial of the relief of specific performance to the plaintiff and the impugning'of the decree in either of the appeals, Ghulam Jaffar defendant purported to exchange the suit house with the present petitioner Muhammad Iqbal on the basis of a registered deed dated 16-8-1988 and on its basis latter brought a petition under Order I rul 10 of the C.P.C. for his being impleaded as a respondent in the appeal of the plaintiff Ghulam Muhammad. The transferor Ghulam Jaffar not only supported this application but also himself brought a separate identical application for impleadment of Muhammad Iqbal as a respondent. Plea made in these two applications was stoutly resisted by the plaintiff on the basis that rule of lis-pendens applies to the transaction. Learned Additional District Judge seized of the appeals took up both the applications together and by a consolidated order dated 11-4-1989 rejected both of them for the reason of the rule of lis-pendens getting attracted to the transfer made by Ghulam Jaffar. It is argued for the applicant Muhammad Iqbal that he entered into the transaction of. exchange only in good faith and without knowledge of the litigation to obtain the suit house in exchange for a valuable property and he had thereby acquired good title which deserved to be protected but rule of lis-pendens has been wrongly applied to defeat the petitioner's transaction which had actually been made at a time when there was no litigation pending in any Court and the plaintiff's claim to the house stood negatived. After duly considering these pleas, I have not found any substance in either of them. First of the above-mentioned points stands adequately answered in the Explanation appearing under Section 52 of the Transfer of Property Act reproduced hereunder:- "52. During the pendency in any Court having authority in Pakistan or established beyond the limits . of Pakistan by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation.-For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." This section embodies a rule of equity and good conscience which has always been applied in this Province. Reason for the Rule is too obvious to require any emphasis. Since in providing that no party to a suit or proceeding may make any transfer to the prejudice of the other, rule takes effect from the very moment that a suit or proceeding is instituted and remains operative upto the time that such suit or proceeding comes (to put it broadly) to its final end in all respects. Argument raised for the petitioner conveniently loses sight of the terms of section 52 (ibid) as also of the well established rule that appeal is a continuation of suit which cannot be considered to have come to an end until such time that either the limitation for filing of appeal therein expires or an appeal, if brought, is finally concluded. Neither of these eventualities having taken place in this case at the time of transfer made to the petitioner, his transaction cannot be saved from the operation of the rule of lis-pcndens. See I.L.R. XXVIII (1900) Calcutta 23. Once an appeal is actually maintained, its operation has to date back to the time of disposal of relevant suit or proceeding to rationalize the concept of continuance thereof or, else, the process of continuity would just not be there. Contention thus fails and is repelled. View of learned appellate Judge about the rule of lis-pendens applying to the transfer secured by the petitioner is correct in its entirety and is altogether unexceptionable. 6. The other contention with regard to bonafides, even if assumed to be correct on a factual plane, can be only irrelevant in relation to this rule which disables one party to a Us from acting to the prejudice of the other. It does not require any eleborate argument to demonstrate that since Ghulam Jaffar was incapacitated by the rule of lis-Pendens from doing any act prejudicial to the other party and he, hence, did not have anything for being lawfully transferred, therefore, Muhammad Iqbal would not be deemed to have acquired anything and muchless a lawful title qua the other party, Ghulam Muhammad against whom that transfer would just not exist. Defendant in the suit (Ghulam Jaffar) in law gave nothing as regards the plaintiff Ghulam Muhammad and Muhammad Iqbal got nothing as against him so that Ghulam Jaffar will be deemed in law to be continued to be vested with the title in the suit house. Even if Muhammad Iqbal could be accepted to have acted bonafide and in ignorance of the litigation to enter into the transaction with the defendant Ghulam Jaffar; he may, at best, have a claim against his alienor who might have allured him through suppression of facts to enter into such a transaction, to either get the refund of his money or sue him for a lawful title in the house itself if it may happen to remain his property in the end-result of the present litigation but he has none to urge against Ghulam Muhammad, the plaintiff whose litigation has to proceed with Muhammad Iqbal being simply kept out of it and a decree with regard to the house, if ultimately passed in favour of the plaintiff, will be proceeded to be executed uninfluenced by either the existence of Muhammed Iqbal or his so-called interest in the house. Otherwise, such results may follow as have been pointed out in Pir Abdullah Shah and 8 others v. Humayon and 5 others (P.L.D. 1957 Lahore 1054). Such situations had to be guarded against in the rule of lis-pendens for protecting the interests of justice because otherwise every case could have become liable to be easily defeated by creating interest in a third person during the pendency of litigation and no one might'have allowed any case to proceed smoothly for his being able to frustrate it by a simple device of transferring suit property to any one of reliable persons who may further transfer it to another one by an endless process, each in his turn claiming to be joined as a opponent to have the whole affair started anew each time. Law has not been ignorant of such alarming situations and has provided a safe-guard thereagainst by enacting the rule of lis-pendens which deserves to be followed in both its letter and spirit. Petitioner has not only^over-assessed the position in which he has landed himself by entering into the transaction regarding the suit-house but has also taken an altogether misguided step in applying for his being impleaded as a respondent in a pending appeal and that too by resort to the provisions of Order I rule 10 of the C.P.C. which apply only to suits and can have no application to appeals wherein it is not possible to, for the first time, implead a new person, who may not have been a party to the suit in the trial Court. Such a fresh impleadment is not permissible either under Rule 4 or under Rule 20 of Order XLI of he C.P.C. which alone are the provisions dealing with impleadment of parties in appeals and the conditions thereof do not countenance joining of new persons at appellate stages. (See A.I.R. 1925 Allahabad 768 and A.I.R. 1929 Bombey 793). Another authority from this court relevant hereto would be Shangara Singh and others v. Imam Din and others (A.I.R. 1940 Lahore 314). The other contention also fails in the above view of the matter. Result of the forgoing is that there is no substance in the revision-petition which is accordingly dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 109 [Bahawalpur Bench] PLJ 1990 Lahore 109 [ Bahawalpur Bench] Present: SAJJAD AHMAD SlPRA, J PROVINCE OF PUNJAB-Appellant versus, ABDUL LATIF and 2 others-Respondents RSA No. 402/BWP of 1972, (also RSAs 403 to 408 & 433 of 1972) dismissed on 18.12.1988 Jurisdiction-- —Civil Court—Jurisdiction of—Challenge to—Whether jurisdiction of civil court is barred under Colonization of Government Lands Act—Question of— Contention that jurisdiction of civil court was barred on ground that matter of allotment was within exclusive jurisdiction of Revenue Authorities—Held: Arguments of learned counsel for respondents are pertinent and establish beyond doubt that civil court had jurisdiction to entertain and adjudicate upon present suit-Appeals dismissed. [P. 113]A&B A.A.G. for Appellant (in all appeals). Ch. Naseer Ahmad, Advocate for Respondents judgment This judgment shall dispose of the following eight Regular Second Appeals (/) R.S.A. 402-72/LHR. (//) R.S.A. 403-72/LHR. (Hi) R.S.A. 404-72/LHR. (/v) R.S.A. 405-72/LHR. (v) R.S.A. 406-72/LHR. (v/) R.S.A. 407-72/LHR. (v/7) R.S.A. 408-72/LHR. (viii) R.S.A. 433-72/BWP. The points involved in these appeals are the same, and arise out of similar facts, identical issues, and decrees and judgment pronounced thereupon by the trial Court and thereafter in appeal by the 1st Appellate Court. These R.S.As. are directed against the judgments dated 18th November, 1971, passed by the learned District Judge, Bahawalpur, whereby he accepted the appeals of the present respondents and decreed the suits of the respondents/plaintiffs for a declaration that the plaintiffs are the owners in possession of the Ahatas in dispute and the order of cancellation passed by the Additional Commissioner dated 30th of September, 1967, is illegal, without jurisdiction, void and ineffective upon the rights of the plaintiffs, and that the plaintiffs had become the full owners of the Ahatas in dispute with consequential relief of mandatory injunction restraining the respondent (Province of Punjab, present appellant) from interfering with the plaintiffs' possession thereof. Brief facts of the appeals are that the Ahatas in dispute were allotted by the Collector vide order dated 26lh April, 1967 and the sale price of Rs. 400/- was deposited in the Government Treasury and the possession was handed over to the plaintiffs/respondents under the order of the Collector. Thereafter, one Bashir Ahmed filed an appeal against that allotment whereupon the Additional Commissioner by the impugned order cancelled the said allotments on 30th September, 1967. Therefore, the suits stated above were filed by the respondents/plaintiffs and were contested by the then respondent (now appellant), Government of the Punjab and issues were framed which are as follows:- (/) Whether this Court has jurisdiction to try the suit? OPP. (//') Whether the Ahata in question was allotted to the plaintiff? OPP. (//;') Whether the plaintiff paid the entire price of the Ahata and what is its effect? (/v) If issue No. 2 is in the affirmative, whether the allotment was made before 'Eezadi' line was sanctioned? OPD. (v) If issue No. 4 is in the affirmative, what is its effect on the allotment of Ahata to the plaintiff? OPD. (v/) Relief. -The learned trial Court vide its judgments and, decrees dated 22 nd February, 1971, dismissed the suits, whereby issue No. 1 was decided in favour of the then respondent/present appellant. The issue Nos. 2 and 3 were decided in favour of the respondents/plaintiffs. Issue Nos. 4 and 5 were also decided in favour of the respondents/plaintiffs, and it was only on the point of jurisdiction that the learned trial Court held that the Civil Court had no jurisdiction to entertain the suit and grant relief prayed for and thus dismissed the suits. Thereafter, the present respondents preferred appeals before the District Judge, Bahawalpur, who accepted the said appeals and decreed the suits of the respondents/plaintiffs vide judgments and decrees dated 18th November, 1971. Hence these R.S.As. were filed by the present appellant, the Government of the Punjab, and were admitted on 19-6-1972. The learned counsel for the appellant argued that the allotment of 'Ahata' was within the exclusive jurisdiction of the Revenue Authorities and, therefore, the Civil Court's jurisdiction was debarred under Section 36 of the Colonization of Government Lands Act, 1912. In this respect, he further contended that the respondents had contested the orders of-cancellation of the allotment by the Additional Commissioner (Revenue) upto the Board of Revenue and had failed, and that thereafter they had not challenged the final order in their suit before the Civil Court. The learned counsel for the respondents, however, points out that this ground was taken up by the present appellant in their written statement before the trial Judge, but no issue was framed to this effect nor was it urged to oppose the appeals before the lower appellate Court by the Government of the Punjab (the present appellant), and that this is not a ground even in the present R.S-As. Therefore, he argued that it will be deemed to have been given up by the appellant and it cannot be raised at this stage. The learned counsel for the respondents further argued that as regards the jurisdiction of he Civil Court in matters pertaining to the Colonization of Government Lands Act, 1912, it has been held by the superior Courts in their various decisions that the Civil Court has he jurisdiction. To support his contention, he relied upon DB case Jiwana v. Mst. Sahbi (PLD 1954 Lahore 253), wherein it was held that the Civil Court had the jurisdiction to decide whether act done validity under the Act or what is the legal affect of an order validly passed under the Act. The next contention of the learned counsel for the respondents was that as the respondents had deposited the money and as that was the only condition of the allotment of land for Ahatas, therefore, the allottees had become full owners of the said allotments and thereafter the Revenue Authorities had no cause under the relevant law and rules to interfere with their possession and ownership. To support his contention reliance was placed on Karim Dad v. ArifAli and another (PLD 1978 Lahore 679) which laid down that once the conditions are fulfilled, the proprietary rights stand conferred. This case referred to number of authorities on this point and on the point as to when the Civil Court has jurisdiction under Colonization of Government Lands Act, 1912. To support his contention that the Revenue Authorities could not cancel the allotment made after the condition thereof having been fulfilled, the learned counsel further relied upon Rehmat Ullah & others v. Muhammad Ismail & others (PLD 1958 W.P. (Rev) 77, which is to the effect that the date of deposit and acceptance by Government of purchase money is date of acquiring proprietary rights-Deed of sale not necessary. This authority had relied upon the decision reported as Faiz AH, deceased, represented by Mst. Nur Jan etc. v. Mst. Rafia Jan and 2 others (PLD 1956 Lahore 94). The next argument of the learned counsel for the respondents was that the land covered by the Colonization of Government Lands Act is governed by the said statute and if there are departmental instructions in respect of the said land and those departmental instructions are in conflict with provisions of the said statute, then in accordance with the established principle of law, the statute shall override»the said instructions. To support his contention he relied upon Ab'du ehman v. Secretary to the Government of West Pakistan, Colony Department and others (1980 CLC 1042). Therefore, he further contended that as it was for the Collector to designate a certain piece and parcel of the land under the Colonization of Government Lands Act to be Chiragafi, it was the Collector alone who could redesignate the same for allotment as Ahatas which in the instant case was duly done by the Collector concerned, and further-more that once the sale price had been deposited and the possession handed over to the allottees/respondents, then in accordance with the said statute no other Revenue Authorities even superior to the Collector could intervene in this matter and reverse the decision of the Collector. He further argued in this respect that the appeal filed by one Bashir Ahmed was not competent and that the learned Additional Commissioner (Revenue) was not empowered to deal with the same as the right of appeal has to be specifically conferred by the statute. Therefore, in the circumstances and facts of the present cases the allotments cannot be cancelled because the land for the 'Ahatas' was allotted out of the 'Chiragah'. The learned first appellate Court while accepting the appeals had held that the respondents/plaintiffs had become the full proprietors of the disputed Ahatas and had ceased to be tenants of the Government, therefore, they were no longer covered by the provisions of Colonization of Government Lands Act, 1912, and that it was within the competence of the Collector to change the 'Eezadi' line as was admitted in the written statements, and that no evidence was brought on the record to show that the Collector was legally incompetent to accord permission for the 'Eezadi' line and thus make allotment of the Ahatas. The learned District Judge has further held that there is no evidence on the record to show that the Collector was not competent to make allotment of Ahatas out of the Chiragah's land, and, therefore, it cannot be held that his order was void ab initio herefore, the Additional Commissioner was not justified to cancel the allotments. For these reasons the learned first appellate Court had accepted the appeals and set aside the decrees of the learned trial Judge and granted decrees in favour of the respondents/plaintiffs as prayed for. 10. These findings of the learned first appellate Court have not been challenged by the present appellants. Therefore, these finding are also upheld in the present appeal. The only point pressed in this appeal is that of lack of jurisdiction of the Civil Court to try the suits on the ground that the matter of allotment was within the exclusive jurisdiction of the Revenue Authorities. The learned counsel for the respondents has dealt with this point at length and his arguments are found to be pertinent and establish beyond doubt that the Civil Court had jurisdiction to entertain and adjudicate upon the present suit. This is an established principle of law and is supported by the authorities cited by the respondents. 11: In view of the above and as the learned counsel for the appellant had based this appeal primarily on the point of jurisdiction and as it has been held that the Civil Court had jurisdiction to entertain and decide the suits, therefore, I find no merit in these appeals and the same are dismissed without any» order as to costs. (MBC) ' , Appeals dismissed.

PLJ 1990 Lahore 113 PLJ 1990 Lahore 113 [ Bahawalpur Bench] Present: KlIALID PAUL KilAWAJA, J ABDUL MALIK GHAURI-Petitioner versus MUHAMMAD HUSSAIN SHAH and another-Respondents Writ Petition No. 970/BWP of 1988, dismissed on 11.4.1989 (i) Civil Procedure Code, 1908 (V of 1908)- —O.XXXVH R.3—Leave to appear and defend—Grant of—Conditional order —Challenge to—Whether condition was justified—Question of—Petitioner, in his application for leave, had admitted execution of promissory note—His claim of deductions is not supported by any receipt or other proof-Held: Impugned order of conditional leave cannot be considered as an order in which discretion had been exercised in an injudicious and improper manner-­ Held further: Proceedings cannot be considered as illegal and without jurisdiction. [Pp. 115&116]B,C&D 1986 MLD 614 (Lah) distinguished (ii) Civil Procedure Code, 1908 (V of 1908)-- —O. XXXVII R. 3-Leave to appear and defend-Grant of-Conditional order—Challenge to—Whether trial court was competent to pass conditional order-Question of-As regards competence of trial court to grant leave to defend suit subject to condition of furnishing bank guarantee or payment in court, of amount claimed, law laid down by superior courts is very clear and unambiguous. [P. 115]A 1988 SCMR 391,1982 CLC 108 (Lah.) and 1986 MLD 614 (Lah.) rel. (iii) Constitution of Pakistan, 1973-- —Art. 199~Adequate remedy-Availability of--Whether writ petition lies- Question of—It is an established principle of law that writ jurisdiction would be exercised by High Court only if no other adequate remedy is available to petitioner~In this case, remedy of revision against impugned order was available to petitioner which he did not exhaust before coming to High Court-Held: Writ Petition is not competent-Petition dismissed. [P. 116]E 1986 SCMR 959 rel. Mr.G.N. Gohar, Advocate for Petitioner. Mr. Saleemuddin Aftab, Advocate for Respondent No. 1. Date of hearing: 11.4.1989. judgment On 30-3-1988 Muhammad Hussain Shah respondent instituted a suit under Order XXXVII CPC against Abdul Malik Ghauri petitioner for the recovery of Rs. 40,000/- on the basis of promissory note dated 15-8-1985. Summons in Form-4 of Appendix-B as contemplated under rule 2 of Order XXXVII, CPC was issued against the petitioner. In response to the said summons the petitioner appeared before the learned trial court (District Judge, Bahawalpur) on 3-7-1988 and moved an application for grant of leave to appear and defend the suit maintaining that the promissory note in question was without consideration. He alleged that in fact he had borrowed pesticides of the value of Rs. 40,000/- from the respondent and had executed the promissory note by way of security and that he had returned to the respondent pesticides worth Rs. 12531, Rs. 600/- in cash and on his asking had paid Rs. 10,000/- to one Obaid, an employee of the Habib Bank Ltd. He, however, admitted that only sum of Rs. 16,869/- was due from him. The said application was resisted by the respondent who controverted the allegations contained therein. After hearing the parties on the said application, the learned trial court vide order dated 27-9-1988 granted leave to the petitioner to defend the suit subject to the furnishing of bank guarantee equal to the amount claimed in the suit or in the alternative to deposit the said amount in court before the 29th October, 1988 failing which the application for leave to defend the suit would be considered to have been dismissed. Through the instant writ petition the petitioner wants this court to declare the order dated 27-9-1988 passed by the learned District Judge, Bahawalpur to be illegal, arbitrary, void and in excess of jurisdiction. I have heard the parties' counsel and have gone through the record. Learned counsel for the petitioner has contended that the condition attached with the leave to defend the suit was harsh and not in accordance with the principles laid down by the Superior Courts. He maintained that unconditional leave to appear and to defend the suit should have been granted to the petitioner because he had shown a good prima facie case and has raised a triable issue. He further maintained that the learned trial court had not exercised its discretion in a judicious manner and thus the impugned order was illegal, arbitrary and in excess of jurisdiction. He placed reliance on Sli. Muhammad Ramzan v. Special Judge Banking Court (1986 MLD 614 Lah.). On the other hand learned counsel for the respondent contended that while granting leave to defend the suit under Order XXXVII, rule 3, CPC the trial court was competent to impose any condition including furnishing of bank guarantee or the payment in court of the amount claimed in suit and that the legality of the said condition could not be questioned as the same had been imposed by an order in exercise of discretion. He relied on Klialid Javed & Co. v. Javed Oil Industries (1988 SCMR 391) and International Food Centre Ltd. v. United Bank Limited Karachi and 2 others (1982 CLC 108 Lah.). Learned counsel further contended that the present writ petition was incompetent as ihe remedy of revision was availabe to the petitioner which he had not exhausted before approaching the High Court to invoke its constitutional jurisdiction. In this regard he placed reliance on Allah Ditto and others v. Malik Ijaz Hussain (1986 SCMR 959). As regards the competence of the trial court to grant leave to defend the suit subject to the condition of furnishing bank guarantee or payment in court of the amount claimed in suit the law laid down by the Surperior Courts is very clear and unmbiguous. In Klialid Javed & Co.'s case their lordships of the Supreme Court have held that a trial court was fully competent to impose such a condition. The same view was taken by this court in the case of International Food Centre Ltd wherein it was also held that the imposition of condition was well within the discretion and jurisdiction of the trial court. Even in Sh. Muhammad Ramzan's case, on which learned counsel for the petitioner has relied, it has been laid down that a trial court is competent to impose such a condition. The next question which falls for consideration is as to whether there was sufficient material available on record to justify the imposition of this condition. The petitioner in his application for leave to defend the sun had admitted the execution of the promissory note in question. He had also admitted his initial liability to pay Rs. 40,000/- to the respondent by saying that he. had borrowed pesticides of the value of the said amount from him. His claim of deductions is not supported by any receipt or other proof. In these circumstances contention raised by the learned counsel for the petitioner to the effect that the petitioner had shown a good prima facie case and as such unconditional leave should have been granted to him appears to be unconvincing and devoid of force. I am of the view that the impugned order of conditional leave, in the circumstances of the case, could not be considered as an order in which discretion had been exercised in an injudicious and improper manner and it was rather unkind on the part of the petitioner to complain that the order was harsh and grossly unfavourable to him. It would not be out of place to mention here the remark of the learned counsel for the respondent that it was an appropriate case where leave should have been refused to the petitioner but as leave had been granted the party which could have any grievance against the impugned order was the respondent and not the petitioner. As regards the case of Sh. Muhammad Ramzan, relied upon by the learned counsel for the petitioner, I am of the view that it is distinguishable and he facts of the said case are quite different from the facts of the present case. In the said case a suit under Order XXXVII CPC was instituted against the defendant but he was not summoned in the manner prescribed under rule 2 inasmuch as summons in Form-4 of Appendix-B had not been issued to him and the trial court without having heard the parties had passed a mechanical order granting leave to defend the suit subject to the condition that he deposited in court the amount claimed in suit which was more than one lac of rupees. It was held that issuance of summons in Form-4 of Appendix-B in suqh cases was a condition precedent to confer jurisdiction upon the courts to consider the grant or refusal of leave to defend the suit and as the said condition had not been fulfilled the entire proceedings before the trial court were illegal, arbitrary and without jurisdiction. In the present case the position is altogether different. The petitioner had been served with summons in Form-4 of Appendix-B and the conditional order for the grant of leave to defend the suit was passed after hearing the parties' counsel. Further-more the amount involved in this case is not as big as in the said case. As such proceedings before the trial court in the present case could by no stretch of imagination be considered as illegal and without jurisdiction nor it could be said that the impugned order had been passed in a mechanical way. As such the decision taken in the said case is of no help to the petitioner. In view of the authorities relied upon by the learned counsel for the respondent and the material available on record I am of the considered opinion that the learned trial court in the present case was competent to grant conditional leave to defend the suit and the imposition of the said condition was perfectly justified. I am also of the opinion that as the impugned order was passed in exercise of discretion its legality could not be interfered with In writ jurisdiction. Reliance in this regard is placed on the case of JQialid Javed & Co. (1988 SCMR 391). It is an established principle of law that writ jurisdiction would be exercised only if the High Court is satisfied that no other adequate remedy provided by law is available to the petitioner and if the High Court considers that writ petition could not be entertained on account of failure of aggrieved party to avail of another adequate remedy such a decision would not only be entirely legitimate but would indeed be in furtherance of intendment of Article 199 of the Constitution of Islamic Republic of Pakistan. This view was taken by the Supreme Court in Allah Ditto and others v. Malik Ijaz Hussain (1986 SCMR 959). In the present case remedy of revision against the impugned order was available to the petitioner which he did not exhaust before coming to this court. This petition, therefore, is not competent. In view of above discussion there is no merit in this writ petition which is dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 117 (DB) PLJ 1990 Lahore 117 (DB) Present: M. mahboob ahmad and malik muhammad qayyum, JJ M/s. NIRALA & COMPANY-Appellant Versus COMMISSIONER OF INCOME TAX-Respondent PTR No. 11 of 1989, dismissed on 8.10.1989 (i) Income Tax Ordinance, 1979 (XXXI of 1979)-- —S.136(2)—Assessment—Reference to High Court—Prayer for—Rejection of— Challenge to-Whcthcr estimate of sales at excessive level was legal and justified when purchases were confirmed and accepted—Appellate Tribunal has applied full application of mind—Held: Question as formulated, is essentially a'question of fact and cannot in any manner be taken as one referable to High Court for answer as a question of law—Reference application dismissed. [Pp. 119&120]D,E&F (ii) Income Tax Ordinance, 1979 (XXXI of 1979)-- —Ss. 136(2), 56 and 65—Income Tax return—Filing of—Time for—Contention that period of notice under Section 65 of Ordinance must be 35 days as given in Circular No. 10 of 1975 of CBR-Return envisaged by notice under Section 65 has to be filed as provided by Section 56 of Ordinance-It provides period "within 30 days" and said period can be curtailed or increased as may be deemed fit in circumstances of case by ITO-Held: Notices under Section 65 calling upon petitioner to file return within a period less than 35 days as given in clause (d) of Circular No. 10 of 1975 of Central Board of,Revcnue, cannot be held to be invalid or suffering from a legal infirmity--Helcrfurther: Income Tax Appellate Tribunal has rightly refused to refer questions 1,2&3 to High Court. [P. 119]A,B&C. Dr. llyas Zafar, Advocate for Petitioner. Date of hearing: 8-10-1989. order By this order, we propose to deal with PTR No. 11/89 and PTR No. 12/89 as similar questions ar.e sought to be formulated for decision by this Court. 2. The facts leading to the References aforementioned, briefly stated, are that the petitioner is a registered firm and inter alia carries on the business of sale of sweet-meats. On information received by the Income Tax Officer from M/s. Packages Limited, the suppliers of cartons to the assessee-pctitioner which indicated that the purchase of package material did not tally with the packing expenses shown by asscssee firm, the Income Tax Officer issued to it notices dated 31-3-1986 and 6-4-1986 under Section 65 of the Income Tax Ordinance, 1979, calling upon the assessee to file returns for the years 1984-85 and 1985-86 in the prescribed from respectively by 15-4-1986 and 20-4-1986. The returns, however, were filed by the assessee after 30 days of the notices aforementioned. The Income Tax Officer completed the reassessment for the two years in question by his order dated 31-8-1988. The petitioncr-asscssce filed appeals against the order of the Income Tax Officer before the Commissioner of Income Tax (Appeals), Zone-IV, Lahore, who by his order dated 17-1-1989 decided the appeals and afforded some relief in respect of the sale assessments. Still dissatisifed, the pctitioner-assessee preferred appeals before the income Tax Appellate Tribunal (hereinafter referred to as the Tribunal), Lahore Bench, Lahore. Feeling aggrieved of the relief granted to the assessee by the Commissioner of Income Tax (Appeals), Lahore, the Department also preferred three appeals before the same Tribunal. All these six appeals, which pertained to the assessment years 1983-84, 1984-85 and 1985-86, were dealt with by the Tribunal together and were disposed of by one order dated 14-6-1987. The petitioner thereafter instituted two reference applications before the Income Tax Appellate Tribunal under Section 136(1) of the Income Tax Ordinance, 1979. These reference applications pertained to the assessment years 1984-85 and 1985-86. In this manner the controversy between the assessee and the Department so far as the year 1983-84 was concerned stood concluded. In the reference applications before the Income Tax Appellate Tribunal, which again were decided by one order dated 22-2-1989, the petitioner framed the following four questions of law as referable to this Court for decision:-- Whether under the facts and circumstances of the case the Income Tax Officer was justified to curtail the period of Notice under Section 65 from 35 days against the inlructions of C.B.R. given in Circular No, 10 of 1975? Whether under the facts and circumstances of the case the instructions given in the Circular of C.B.R. were binding on the Income Tax Officer? Whether under the facts and circumstances of the case the assessment framed after violating the instructions of C.B.R.,was legal? \hether under the facts and circumstance^ , the case the estimate of sales at excessive level was legal and justified when the purchases were confirmed and accepted. The learned Income Tax Appellate Tribunal by its afore-mentioned order dated 22-2-1989 held that the questions as reproduced above are not such questions of law which could be referred to this court and accordingly dismissed the applications. The petitioner has, therefore, come up to this Court with the present reference applications filed under Section 136(2) of the Income Tax Ordinance 1979. To canvass that questions framed at serial Nos. 1, 2 and 3 above are questions of law referable to this Court, the learned counsel contended that the notices issued by the Income Tax Officer under Section 65 of the Income Tax Ordinance 1979 were illegal having afforded a period of 15 days only to file the returns in as much as the same were violative of Circular No. 10 of 1975 which was issued on 14th of July, 1975 by the Central Board of Revenue and laid down under clause (d) thereof that 35 days time shall be allowed to furnish the return of income and the period will not be curtailed without prior approval of the Inspecting Assistant Commissioner. In the same context, the learned counsel submitted that by virtue of Section 8 of the Income Tax Ordinance, the Circulars issued by the Central Board of Revenue have a binding force for compliance by the officers performing their duties under the Ordinance. The only other contention raised by the learned counsel for the petitioner was as regards question No. 4 above. The learned counsel in this respect submitted that the question has become a question of law in view of the position that although the Income Tax Officer has admitted the purchase yet the assessments of sale have been arrived at without reference thereto. Having given consideration to the controversy, we are of the view that the contentions raised on behalf of the petitioner have no force. Taking up the first contention, it may be observed that return evisaged by the notice under Section 65 of the Ordinance has to be filed as provided by Section 56 of the Income Tax Ordinance. The said Section 56 is reproduced hereunder for facility of reference:-- "The Income Tax Officer may, at any time by notice in writing, require any person who, in his op nion, is chargeable to tax for any income year to furnish a return of total income for such year within thirty days from the date of service of such notice or such longer or shorter period as may be specified in such notice or as the Inocome Tax Officer may allow" 12. A plain reading of the above quoted provision, shows that the period prescribed for the notice for filing of return under the statute is "within 30 days" and the said period can be curtailed or increased as may be deemed fit in the circumstances of the case by the Income Tax Officer. The notices under Section 65 calling upon the petitioner to file the return within a period less than 35 days as given in clause (d) of Circular No. 10 of 1975 issued by the Central Board of Revenue being, in accord with the statutory provision of law cannot be held to be invalid or suffering from a legal infirmity as the intent of law had been complied with and the violation, if any, of a circular which itself goes beyond the scope of the basic statute, would not render the same illegal, especially when no prejudice of any nature whatsoever, what so say of material nature, is shown to have been caused to the petitioner by giving a period of 15 days for filing of the return; it being the admitted position throughout that he returns were filed by the etitioner after 30 days of the receipt of the notice and, therefore, the substantial compliance of the circular referred to above had also been made. 13. We, therefore, find that the learned Income Tax Appellate Tribunal has rightly refused to refer questions Nos. 1, 2 and 3 above to this Court for decision. 14. Adverting now to the only other contention of the learned counsel for petitioner, we suffice by observing that the question as formulated is essentially a question of fact and cannot in any manner be taken as one referable to this Court for answer as a question of law. 15. For a better comprehension of the position tabulation as under of the sale assessments made by the various functionaries under the Ordinance may be useful:-- Assessment Sale assessment Assessment by Assessment Assessment year. per return of I.T.O. by the by the the assessce Commissioner Tribunal. Appeals. 1984-85 6,71,429.00 46,00000.00 3,500000.00 Confirmed that of the Commissioner. 1985-86 25,70,390.00 92,00000.00 70,00000.00 -do- 16. From a perusal of the above tabulation, it would be clearly seen that the functionaries below have fully applied their mind to the controversy involved and on the basis of the available record determined the question of fact about the assessment of sales. We do not think we need detain ourselves more on this aspect of the matter and would suffice by referring to a portion of the order of the learned Income Tax Appellate Tribunal dated 14th of June, 1987, whereby the appeals of the assessee and the Department were disposed of. The controversy which has been raised before us today has been succinctly dealt with in the following words: ~ "For the charge years 1984-85 and 1985-86 amount spent on purchase of packing material does not have any direct bearing on quantum of sales of sweetmeats rather it could be only one of the considerations to judge the extent of the assessee's sales. The assessee having not contested the rejection of accounts, declared version cannot be accepted. It is established that in these years substantial packing material was damaged due to fire on two different occassions. Taking into consideration the fact that the assessee's purchases of sweetmeats for these, years have been accepted unconditionally, there occurred loss in packing material on account of fire and the cartons of different weights could not necessarily contain the same weight of sweetmeats as printed, we feel that the estimates of sales as fixed by the learned CIT (A) at Rs. 35.00.000/- and Rs. 70,00,000/- are reasonable. By confirming the estimate of sale as fixed by the learned CIT (A) we are seeking guidance from the principle that no one can be punished twice for the same omission. Despite failure of the departmental officers in locating any purchases over and above the supplies, we feel satisfied in maintaining the estimates fixed in appeal, on pro rata basis of consumption of cartons over and above the recorded version after exclusion of loss in fire and riots. No further interference is called for therein at the instance of the either party". A bare reading of the above para of the judgment of the Appellate Tribunal shows full application of mind and we are unable to understand in the attendant circumstances of this case, as to how the sale assessment determination could be challenged as a question of law in a reference application before this Court under Section 136(2) of Income Tax Ordinance, 1979. The second contention of the learned counsel for the petitioner also, therefore, fails. | 17. In view of the foregoing discussion, there being no question of law shown as having arisen out of the order of the Tribunal, there is no merit in this reference application which is accordingly dismissed in limine. (MBC) Application dismissed.

PLJ 1990 Lahore 121 PLJ 1990 Lahore 121 Present: AKHTAR HASSAN, J FAIZUL HAQ and another-Petitoners versus ABDUS SALAM and 3 others-Respondents Civil Revision No. 616-D of 1989 (also C.R. No. 617 to 619-D of 1989), accepted on 16.10.1989 (i) Arbitration Act, 1940 (X of 1940)-- —-Ss. 21 & 23-Matter referred to referee-Parties binding themselves to decision by referee-Criminal litigation also included-Whether matter was referred under Arbitration Act-Question of~Section 21 of Act makes it obligatory that parties have to apply in writing to court—Section 23 contemplates that court, on receiving such application, shall refer matter in difference and shall specify such time for making of award-Admittedly no such application was made nor did court comply with dictates of section 23--Held: Absence of such an application strengthens impression that arbitration was not intended-Held further: If he (referee) was an arbitrator, he was legally precluded to arbitrate at least upon criminal cases between parties. [Pp. 123&124JA&B PLD 1962 (WP) Lahore 95, Banerjee's Law of Arbitration, 3rd Edition, Page 19 and Wharton's Lexicon, 12th Ed. Page 65, ref. (ii) Qanun-e-Shahadat, 1984 (PO 10 of 1984)-- —Art. 33—Referee—Written statement of—Whether a statement under Article 33~Question of—Referee may not make statement from his own knowledge-­ Referee's statement not based on his personal knowledge and instead, in segacity derived from statements of parties or so, would nonetheless be covered by Article 33 of Qanun-e-Shahadat and binding on parties-Held: If not a referee in true sense, nor an arbitrator, such a person would be accredited status of a mediator whose conduct was fettered by no law and compromise or adjustment arranged by him would not be denuded of parties' consent and they shall be bound by his decision-Petitions accepted. [Pp. 124&125]C&D Malik Muhammad Nawaz, Advocate for Petitioners (in all petitions) Malik Ghulam Nabi, Advocate for Respondents (in all petitions) Date of hearing: 24.9.1989. judgment This judgment shall dispose of also Civil Revision Nos. 617-D/1989, 618- D/1989 and 619-D/1989 as they all arise from the same judgment and decree dated 21.2.1989 of the learned Additional District Judge, Sargodha, whereby he accepted the appeals of the respondents— plaintiffs, set aside the decrees of the trial Court and remanded the case. 2. There were four separate suits besides some criminal cases pending between the parties. With a view to get them decided apparently by a referee and be bound by his decision, they made the following joint statement on 12.12.1987 before the trial Court:- 3. The referee submitted his longish report dated 3.5.1988. It did not suit the interest of the respondents-plaintiffs and they made an application dated 29.5.1988 before the trial Court for revocation of the referee's authority and annulment of the decision made by him. Their plea was that he acted beyond the reference inasmuch as he instead of making a statement under Article 33 of the Qanun-e-Shahadat, 1984, held a detailed inquiry, examined evidence and made a local inspection, whereby he acted more as an arbitrator than a referee. The petitioners-defendants contested the application urging that despite his having made the inquiry, the referee's report was a statement quite squarely covered by Article 33 ibid; and that the same being an admission made by both the parties, they were bound by it. 4. The trial Court dismissed the application treating the report based upon the parties' consent and passed decrees in all the cases in accordance therewith. The respondents-plaintiffs preferred appeals, which, of course, were accepted taking a view that the so called referee was indeed an arbitrator; that his report was an award and that the same was to be dealt with in accordance with the provisions of the Arbitration Act. The cases were remanded for taking proceeding on these lines. 5. The petitioners-defendants aggrieved by the impugned order preferred the present revisions. 6. The distinction between a "referee' and an "arbitrator" has become too well known especially because it came up for discussion in many cases some of which really turned out to be classic examples. The most illuminative were Mst. Akbari Bcgiun v. Rahmal Hussain and anolhers (AIR 1933 Allahabad 861) and Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 S.C. 516) which indeed were cited here along with a Division Bench case reported in Muhammad Hanif Klian and other v. Ghulam Farid and others (PLD 1988 Lahore 250) wherein the test laid down was that: (i) the apparent nomenclature either of the "referee" or "arbitrator" was not itself decisive to determine the true character of the third person chosen for making the decision; (ii) what mattered comparatively more was the real intention of the parties to be gathered from the relevant statement(s) and the attendant circumstances of the case; (iii) the precise procedure adopted to settle the dispute would be of great significance, in that ordinarily holding an inquiry, making a local inspection, examining witnesses, browsing record etc. etc. would suggest that the proceedings were of the nature of arbitration; (iv) though Article 33 of the Qanun-e-Shahadat Order, 1984, impunged upon a straight statement of such a person primarily based upon his personal knowledge, yet in cases it would include even a report resting on deductions made from the circumstances of the case; and (v) it was not always necessary that the referee might make statement on the basis of his personal knowledge. 7. It would be interesting to apply this test to the case in hand. The joint statement of the parties disclosed that they were heavily locked in civil as well as criminal cases and that they referred all of them to the referee agreeing to be bound by his decision. The first thing to be kept in mind was that the statement was made in pending cases, and if the intention was to appoint an arbitrator, the provisions of Chapter IV of the Arbitration act, 1940, would ipso facto apply. Section 21 thereof makes it obligatory that where parties to a suit agree to refer the matter in difference to arbitration, they have to "apply in writing" to the Court. Such a written application was mandatory as held in Messrs S.M. Qasim & Co. v. Messcrs Sh. Azimuddin (PLD 1962 (W.P.) Lahore 95). Section 23 of the said Act contemplates yet another condition in this behalf. The Court on receiving such application shall refer "the matter in difference" and "shall—specify such time -for making of the award". The reason to insist for written application to be mad~e to the Court was to remove all doubts in asking the Court to stop proceedings and wait till the "matter in difference" was decided by the arbitrator. The application, the order of the Court, the matter in difference and lastly specifying the time for making of the award-were all indispensable steps to be taken in the context. Admittedly here no such formal application was made, nor did the Court hitherto seized of the lis comply with the dictates of Section 23 ibid. The purport for which these pre-requisites were prescribed was defeated, resulting in the consequential confusion as to whether the statement actually intended a reference to an arbitrator or some other mode for deciding the case. The absence of such an application strengthens the impression that arbitration was not mtcnded.Messrs. S.M. Qasim & Company's case being an eloquent authority on the point substantiates this plea. 8. The second ingredient was to see what subject matter was sought to be decided. It is axiomatic that only the matters of civil nature could be referred to an arbitrator. [Banerjcc's Law of Arbitration, 3rd Ed. page 19: and Wharton's Law Lexicon, 12th Ed. Page 65 may be referred to]. All the more to hold so when the reference relates to a matter subjudice before a Civil Court. Correspondingly a referee may not be made to decide a criminal case. But a perusal of parties' joint statement would unmincingly reveal that they included even the criminal cases for decision by the referee. If he were an arbitrator, as claimed, he was legally precluded to arbitrate at least upon these cases.Consequently his character a fortiori was essentially other than of an arbitrator. 9. The third point hotly debated between the parties was the procedure adopted by the referee in this case. His report at page 46 of this file, in para 3 thereof reads:- suggesting obviously that he heard the parties, made a local inspection, held an inquriy from the people around and assessed the evidence to make certain conclusions. Contrarily it was not a straight statement based upon his own knowledge. I had, sitting as a single Judge, considered this aspect in Rchmat etc. vs. Residents of Deh. etc. (NLR 1988 Civil 343) where some how I could not be persuaded to agree to the view that such acts on the part of the referee would necessarily make him an arbitrator. It was thought that any mode may be adopted for a compromise or adjustment of a suit and that the decision based thereupon squarely fell under Order 23 rule 3 C.P.C. Ordinarily, I am supposed to be bound by my own decision as held in PLD 1959 S.C 9, but the respondents relied heavily on the Division Bench authority reported in Muhammad Hanif Khan's case which incidentally adopted the opposite view. I have no option but to follow the D.B. decision, but that decision itself, and more than it the Supreme Court in Ch. Muhammad Saleem's case permitted to scan the whole case in order to determine the true intent of the parties in resorting to this mode of settlement of their dispute. As explained above, it was a case where by having ignored the statutory provisions of Chapter IV of the Arbitration Act, 1940 and included even the criminal cases in the reference, arbitration was not permissible. The corollary was that the so called arbitrator was in fact a mediator as visualised in the Supreme Court dictum referred to above. 10. There was ample authority to agree to the contention that a referee may I not make a statement from his own knowlege. In the D.B. case of Muhammad Hanif Khan, in para 13 of the judgment it was made clear that a written statement submitted by a referee could be given the status of a statement under Article 33 of he Qanun-e-Shahadat, 1984 and that it was not necessary that a referee thereunder must act on his personal knowledge. Even the Supreme Court in Ch. Muhammad Saleem's case held that the mere fact that the referee adopted the j procedure of taking one of the parties aside and speaking to him in private, would not turn him into an arbitrator. The principle deducible from these cases was that a referee's statement, not necessarily based upon his personal knowledge, and instead in sagacity derived from the statements of the parties or so, would nonetheless be covered by Article 33 of the Qanun-e-Shahadat and binding upon thre parties. If not a referee in true sense, nor an arbitrator as contemplated by Chapter IV of the Arbitration Act, such a person would be accredited the status of a mediator whose conduct was fettered by no law and the compromise or adjustment arranged by him would not be denuded of the parties consent. They shall nevertheless be bound by his decision. 11. Looking from this aspect, the impugned judgment could not be sustained^; in that it regarded the third person an arbitrator. The revision petitions are accepted, the judgments and decrees are set aside and those of the trial Court are restored. Parties shall bear their own costs. (MBC) Petitions accepted.

PLJ 1990 Lahore 125 PLJ 1990 Lahore 125 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD JAFAR TARAR-Petitioner versus DISTRICT MAGISTRATE, GUJRANWALA and 3 others-Respondents Writ Petition No. 4391 of 1989, accepted on 26.11.1989 (i) Motor Vehicles Ordinance, 1965 (WP Ord. XIX of 1965)-- —S.80-Motor vehicles-Parking places for-Determination of~District Magistrate-Powers of-According to Section 80 of Ordinance, requisite permission for allowing parking place can only be granted after consultation with local authority having jurisdiction-Provision as regards consultation, is mandatory and violation thereof would render action to be void-In this case, permission was granted after consulting Assistant Commissioner and Police but there appears to be no consultation with local authority-Held: In view of matter, impugned order is not sustainable—Petition accepted and impugned order declared as without lawful authority and of no legal effect. [P. 127JC&D (ii) Motor Vehicles Rules, 1969- —R.248 read with Motor Vehicles Ordinance, 1965, Section 2(23) and 2(31)- Motor vehicles-Parking places for-Determination of~District Magistrate-­ Powers of-Both "motor vehicle" and "public service vehicle" have been defined in Sections 2(23) and 2(31) of Motor Vehicles Ordinance, 1965-Under Ordinance, every public service vehicle is a motor vehicle though of specified type—Held: As rule 248 empowers District Magistrate to fix parking places for motor vehicles, power can be exercised by him in relation to all kinds of motor vehicles including public service vehicles. [Pp. 126&127] A&B Cli. Muhammad Sadiq, Advocate for Petitioner. Mr. Farooq Bedar, Addl: A.G. for Respondents 1&2. Mr. Salamatullah Shaikh, Advocate for Respondent No. 3. Mr. Azam Rasool, Advocate for Respondent No. 4. Date of hearing: 17-10-1989. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order passed by the District Magistrate, Gujranwala, respondent No. 1, on 5th July, 1989, whereby he permitted respondents No. 3 and 4 to use as a parking place for Wagons on the land comprising Khasra No. 205, while purporting to act under rule 248 of the Motor Vehicles Rules, 1969. 2. According to the case of the petitioner, he is running a B-Class General Bus Stand situate at a place nearby the land in question which has been shown in green colour hi the plan (Annex. 'A') attached to this petition. It is alleged that earlier one Muhammad Aslam had applied for permission to use the disputed land as a Wagon stand but this permission was refused by the Regional Transport Authority. He, however, managed to obtain an order from respondent No. 1 on 30th July, 1988 allowing him to use the land as a parking point for plying Wagons between Hafizabad and Lahore, which was assailed by the petitioner by filing W.P. No. 4793/88 which at the tune of filing of this petition was pending in this Court but has been accepted by a separate judgment of even date. According to the petitioner, another application was submitted by respondents Nos. 3 and 4 for the sanction of parking point on the same land to respondent No. 1 who proceeded to withdrew his previous order dated 30th July, 1988 in favour of Muhammad Aslam on 3rd July, 1989 and, thereafter sanctioned the parking point in favour of the respondents Nos. 3 and 4 on 5-7-1989. This order has been assailed by the petitioner in this petition on various grounds. 3. The first contention raised by the learned counsel for the petitioner was that the District Magistrate has no jurisdiction to allow Wagons run by private individuals to be parked at a particular place. According to the learned counsel, section 80 of the Motor Vehicles Ordinance, 1965 empowers the Government to determine places on which motor vehicles may either stand indefinitely or for a specified period of tune and also the places on which 'public service vehicles' may stop for a longer time than is necessary for taking up and setting down passengers. It was argued that section 80 contemplates two different kinds of vehicles vis, 'motor vehicles' and 'public service vehicles' and the power granted to the District Magistrate under rule 248 is confined to determine the parking places for 'motor vehicles' and not for 'public service vehicles'. On these premises, it was submitted that the permission granted to respondents Nos. 3 and 4 for parking their Wagons, which were public service vehicles, was in excess of jurisdiction vesting in the District Magistrate under rule 248. 4. This contention of the learned counsel has no force. Both 'motor vehicle' and 'public service vehicle' have been defined in the Motor Vehicles Ordinance, 1965. According to section 2 (23) "motor vehicle" means "any mechanically propelled vehicle adapted for use upon road whether the power of propulsion is transmitted thereto from an external or internal source, and includes a chassis to which a body has not been attached and a trailer but does not include a vehicle running upon fixed rails or used solely upon the premises of the owner." Similarly the following definition of "public service vehicleappears in section 2 (31)":— "any Motor Vehicle used or adapted to be used for the carriage or passangers for hire or reward and includes a motor cab, contract carriage, and stage carriage." From a comparison of the two definitions there can be no doubt that motor vehicle is an expression of larger connotation than public service vehicle, while motor vehicle is any mechanically propelled vehicle, public service vehicle is that kind of motor vehicle which is used for carriage of passengers. Thus under the Ordinance every public service vehicle is a motor vehicle though of specified type. As rule 248 empowers the District Magistrate to fix parking places for motor vehicles, power can be exercised by him in relation to all kinds of motor vehicles including public service vehicles. In this view of the matter this contention of the learned counsel is without any force. The next contention of the learned counsel for the petitioner is, however, well founded. According to section 80 of the Motor Vehicles Ordinance, 1965 the requisite permission can only be granted after consultation with the local authority having jurisdiction. In W.P. No. 4793/88, it has already been held that the provision as regards consultation is mandatory and violation thereof would render the action to be void. In the present case, permission was granted after consulting the Assistant Commissioner and the police but there appears to be no consultation with the local authority. In this view of the matter the impugned order is not sustainable. 6. It is also to be noticed that in the application (Annexure 'D') filed by respondents Nos. 3 and 4 on 2-5-1989, permission to use the land in question as a parking place was sought on the ground that they had obtained on lease this land from its owners Zafarullah Tarar and others. According to the report of respondent No. 1, it was in pursuance of this application and the averments contained therein that the permission was allowed to respondents No. 3 and 4. Similarly in the written statement filed by respondent No. 3, it has been stated that they being the lessees of the land in dispute from its owners under a lease deed executed between them (Annex. 'A' to the written statement) are entitled to use it as a parking point. However, by means of order dated 10-2-1988 passed by the Additional Deputy Commissioner (G) with the powers of notified Officer it was determined that the land in question did not stand transferred to Zafarullah Tarar and others but vested in the Government and was to be used as a public passage. The validity of this order was challenged by Zafarullah Tarar etc., the lessors of respondents No. 3 and 4 by filing W.P. No. 1212 of 1988 which has since been dismissed. In these circumstances, respondents Nos. 3 and 4 have no authority to use the land vesting in the Government which is reserved for public passage to be used for parking their Wagons. It may be stated that the Regional Transport Authority had already cancelled the halting point sanctioned in favour of Muhammad Aslam on the same ground. In this view of the matter also, the impugned order is not sustainable. For the foregoing reasons, this constitutional petition is accepted and the impugned order is declared to have been passed without any lawful authority and of on legal effect. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 128 PLJ 1990 Lahore 128 Present: MIAN ALLAH NAWAZ, J M/s. CHAUDHRY CONSTRUCTION COMPANY LTD.-Petitioner versus PAKISTAN, through SECRETARY, MINISTRY OF DEFENCE and 3 others-­ Respondents Civil Revision No. 1667 of 1989, dismissed on 14.11.1989. Civil Procedure Code, 1908 (V of 1908) -- —-S.115 read with O.XXXIX Rr. l&2~Contract for construction-Cancellation of~Temporary injunction-Whether can be granted-Question of~From contract itself, it is clear that Accepting Officer has an authority to cancel contract-Contention that this power had to be exercised after expiry of time of contract-It is settled principle of law that order passed in exercise of discretionary authority is not to be interfered with in revision until and unless order is found to be arbitrary, capricious and fanciful—Held: Petitioner has a remedy of filing suit for damages for cancellation of contract-Petition dismissed. [Pp. 130&132JA&B PLJ 1983 Lahore 648 distinguished Mr. Ghulam Mahmood Qureshi, Advocate for Petitioner. Mr. Muhammad Hafeez Qureshi, Advocate for Respondents. Date of hearing: 13.11.1989. judgment On 2-2-1989, Messrs Ch. Construction Company Ltd. filed a suit for declaration to the effect that the order of cancellation of contract dated 9-1-1989 is illegal, without jurisdiction and of no effect upon the rights of the petitioner/plaintiff to complete the project. The suit was accompanied by an application for temporary injunction restraining the respondents from interference in the construction being carried by the plaintiff. 2. It was averred in the plaint that the petitioner was granted a contract for the construction of Ward in CMH (Phase II Okara Cantt). The time of the contract was from 9-3-88 to 9-3-89. The contracted amount was about Rs. 22 lacs. It was averred that the petitioner Company was prevented on account of a number of circumstances to commence the work without its fault. The petitioner, owever, continued the work and raised the construction upto the roof levels. It was on 9-1- 89 that the contract was cancelled without any notice to the petitioner Company. 3. The learned trial court by order dated 8-4-89 accepted the application and granted the requested injunction. On appeal by the respondents, the learned District Judge Okara accepted the appeal vide order dated 11-6-89 and dismissed the application for temporary injunction. Hence this petition. 4. Learned counsel for the petitioner raised the following points in support of this petition:-- (i) It was contended that the time of the contract was from 9-3-88 to 9- 3-89. The respondents had no authority to cancel the contract before the stipulated date, that the petitioner/plaintiff was completing the project with a remarkable speed and was sure to complete it before 9-3-89. The petitioner had done a work to the amount of Rs. 5 lacs which was paid to him. Reliance was placed on Pakistan Paper Corporation Limited vs. National Trading Company Limited (PLJ 1983 Lahore 648). (ii) It was next contended that the provision of section 56-D of the Specific Relief Act was inapplicable to this case as this was a case of concluded contract under which the respondents were bound to let the petitioner complete the project. The rule enunciated in Pakistan Paper Corporation's case (PLJ 1983 Lahore 648) was pressed into service, that even in a case of contract, injunction can be granted if the petitioner/plaintiff can show that he has a prima facie case, irreparable injury will accure to him and that balance of convenience is on his side. 5. Learned counsel for the respondents who appeared in consequence of pre-admission notice, opposed the petition on the grounds that neither the suit was competent under Section 42 of the Specific Relief Act nor the application for injunction was maintainable. It was urged that Section 42 ibid related to declaration in respect of legal character, to any right as to any property and was not applicable in respect of declaration pertaining to contracts. Reliance was placed on MA. Naser vs. Chairman Pakistan Eastern Railways and others (1965 SC 83) Alavi Sons Ltd vs. Government of East Pakistan etc (PLD 1968 Karachi 222), Feroze Din vs. Abdul Hamid and others (PLD 1969 Lahore 89) and Wapda through Chairman Wapda, Lahore, vs. Muhammad Yaqoob (PLD 1973 Note 12). 6. I have heard the arguments of both the parties and herein proceed to determine their respective contentions. It is appropriate to examine the nature of the contract between the parties. Admittedly the contract is complete contract between Ch. Construction Company and Pakistan. The contract is appended with the written statement and is on page 37 of the file. Under this contract the Accepting Officer has the powers under condition No. 55 of cancel the contract. The condition relating to cancellation is as follows:- "55. Cancellation of Contract for Default. (a) The Accepting Officer may without prejudice to any other right or remedy which shall have accrued or shall accrue thereafter to Government, cancel the Contract in any of the following cases, if the Contractor:- (i) Being an individual, or if a firm, any partner thereof shall at any time be adjudged bankrupt or have a receiving order or order for administration of his estate made against him or shall take any proceedings for liquidation or composition under any Bankruptcy Act for the time being in force or make any conveyance or assignment of his effects or composition or arrangement for the benefit of his creditors or purport so to do, or if any application be made under any Bankruptcy Act for the time being in force for the sequestration of his estate or if a trust deed be granted by him on behalf of his creditors, or (ii) Being a Company, shall pass a resolution or the Court shall make an order for the liquidation of its affairs, or a receiver or manager on behalf of the debenture holders shall be appointed or circumstances shall arise which entitle the Court or debenture holders to appoint receiver or manager, or (iii) Fails to comply with any of the Terms and Conditions of the Contract or after reasonable notice in writing, with order properly issued thereunder, or (iv) Fails to complete the Works and clear the Site on or before the date of completion, or (v) Assigns, transfers, sublets or attempts to assign, transfer or sublet any portion of the Work without the prior written approval of the Accepting Officer. (b) Whenever the Accepting Officer exercises his authority to cancel the contract under this condition he may complete the works by any means at the contractor's risk and expense. The contractor shall be entitled to receive payment of work performed, in the contract value thereof less the cost of completing the Works in his default as certified by the GE and if the cost so certified exceeds the sum of money held by Government as otherwise due to the contractors, the Accepting Officer may recover the deficit from the contractor by other means but if such cost of the work so completed is less than the contract value of the work the contractor shall not be entitled to any credit therefor". 7. From the contract itself, it is clear that the Accepting Officer has an authority to cancel the contract. This power was not challenged by the petitioner except that this power had to be exercised after the expiry of the time of the contract. 8. The nature of building contracts was examined in Hudson on Building Contracts, page 404, in which it is stated that:- "The contractor in ordinary building or engineering contracts for executing work upon the site or land necessary to execute the works, depending always upon the precise terms of the contract. Such licence can be revoked by the employer at any time, and thereafter the contractor's right to enter upon the site will be gone, but such revocation, if not justified under the terms of the contract, will render the building owner liable to the builder for damages for breach of contract. The measure of such damages must be calculated at the date of such revocation or re-entry. It would seem that the building owner cannot (subject always to the terms of the contract) be restrained by injunction from re-entering upon his own land, or from so preventing the builder from performing the contract". 9. In Garret v. Banstead and Epsom Downs Rly. Co (1965) 12 L.T. 654: 13 W.R. 878), the plaintiff contracted to execute the works of the defendant-company and the contract provided that, in certain events, the directors might take the further performance of the contract out of his hands and themselves execute the remaining works and also that a person named should be the referee in all disputes having arisen, the company by their engineer violently (as the Bill lleged) took possession of the works, and upon this Bill being filed, the plaintiff moved for an injunction to restrain them from such possession arid from interfering with plaintiff in the further execution of the works, and it was held that as the Court would have no power to compel and due completion of the contract by the plaintiff, if it reinstated him whereas he would have ample remedy in damages if he were improperly displaced by the defendants the injury to the defendants of granting an injunction would far exceed than to the plaintiff of refusing it, and the injunction was dissolved. The observations of Lord Justice Knight Bruce are of some importance in this case. He said: "To purpose, in a case like this, where, if the company are wrong, ample compensation in damages may be obtained by the contractor, that the company are to have a person forced on them to perform these works whom they reasonably or unreasonably object to (whereas there would be no reciprocity if the wrong were on the other side) for the purpose of compelling the performance of the works, is more than I am able to do". 10. In Munro v. Wivenhoe, etc (1965) 12 L.T. 655) where a contractor applied for injunction to restrain the company, whose work he had contracted to execute from rescinding the contract, the Court refused to issue an injunction, Lord Justice Knight Bruce said at page 757 that:-- "The Court cannot enforce specific performance of the works: it cannot look after the acts and conduct of the plaintiff not to say how far he does or does not depart from what is right in executing the works or profession to execute them. If he is or shall be wronged by his exclusion from the works, and by the act of the company in executing the works themselves, that will be a case for damages to be assessed and given, either in this Court or in a court of law, but it is not a case for specific performance or relief analogous to specific performance, which to proceed to grant an injunction on this part of the prayer of the Bill would necessarily amount to". 11. The same principle was highlighted in MA.. Nasir vs. Chairman Pakistan Railways and others (PLD 1965 SC 83). 12. The rules emerging from the aforenoted authorities are:- (i) a building or an engineering contract for executing work upon the land of another are mere licence to enter upon the site or land necessary to execute the work. Such licence can be revocable by the employer at any time; (ii) No injunction can be issued against the owner at the instance of building contractor. His proper remedy is suit for damages. 13. Now I will turn to examine the rule laid down in Pakistan Paper Corporation Limited vs. National Trading Company Limited (PLJ 1983 Lahore 648). This case proceeds on distinguishable facts which are not relevant to the facts of the case in hand. In this case, Pakistan Paper Corporation Limited appointed National Trading Company Ltd., as their distributor for their product for the city of Lahore for a period of three years. The Corporation declined to supply this product to the distributors from 28-2-1982 before expiry of the period of the contract. The contract itself provided that the contract was capable of termination by a notice of one month by either party. Before termination of the contract, the Corporation did not give notice to the Company and so the company filed an application under Section 20 of the Arbitration Act. Under clause 13 of the Distribution Act, the application for injunction was given in the arbitration proceedings under the agreement. 14. As indicated above, the facts of the case are not relevant for the purpose of decision of this petition. In result I find no substance in this petition which has been filed against a discretionary order passed by the first court of appeal. It is a settled principle of law that order passed in exercise of discretionary authority is not to be interfered in revisional jurisdiction until and unless the order is found to be arbitrary capricious, and fanciful. In the instant case no such circumstance has been pointed out. The petitioner has a remedy of filing a suit for damages for the cancellation of the contract. The petition is found to be without any merits and is accordingly dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 132 PLJ 1990 Lahore 132 Present: irshad hassan khan, J MUSLIM COMMERCIAL BANK LTD. and another-Petitioners versus PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others-Respondents Writ Petition No. 845 of 1989, accepted on 25.9.1989 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —Ss. 37 & 25-A-Grievance petition-Acceptance of~Challenge to~Whether filing of cross-objections is necessary-Question of~Section 37(3) of Ordinance merely provides an appeal against an order passed under Sections 25-A, 34 or sentence passed under Section 35(5)(c) of Ordinance-There is no specific provision under Section 37 about filing of cross-objections-Held: General principle of law would be applicable and respondent (now petitioner) was entitled to support order of Labour Court on grounds different from those on which Labour Court has based its decision—Held further: Labour Appellate Tribunal has acted with material irregularity in not allowing petitioner to argue on point that respondent No. 3 was not a workman-Petition accepted and case remanded. [Pp. 134&136]A,B&C PLD 1973 SC 295 dist. PLJ 1985 Lahore 72, PLD 1958 Lahore 918, NLR 1984 Civil 86, 1984 CLC 2384/2554, NLR 1985 Civil 225,1987 CLC 1829 and PLD 1969 Lahore 418 rel Mr. Muhammad Aslam Chatha, Advocate for Petitioners. ^ Mr. Muhammad Asghar Malik, Advocate for Respondent No. 3. Date of hearing: 25.9.1989. judgment This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question order dated 15-12-1988 of the Punjab Labour Appellate Tribunal. 2. Briefly, the facts are that respondent No. 3 was Officer Grade-Ill in the Muslim Commercial Bank Ltd., Zonal Office, Gujrat. He was charge-sheeted on 19-1-1982 for gross misconduct, in that, he issued certain loose cheques to one Humayun Nasir with forged signatures and got the proceeds of the said loose cheques transferred to fictitious PLS account. No. 42 through transfer entry. Respondent No. 3 gave reply to the charge-sheet, which was not found satisfactory. Consequently, after giving full opportunity to the petitioner to defend himself in the departmental proceedings, the Inquiry Officer found him guilty of the charges. This led to the issuance of final show cause notice dated 31-1-1983 as to why he should not be dismissed from service. The petitioner submitted his reply to the said show cause notice and inter alia took the following stand:— "During the period, the occurrence took place, for which I have been charge sheeted, I was the only officer working as Accountant and was supervising the departments of Saving, Current, Bills, Payment, Receipt, DD, TT and Clearing. My engagements and pre-occupations in the discharge of my duties as the only officer handling all these assignments are too evident to invite any comments on my part." 3. His reply was not found satisfactory. Eventually he was dismissed from service on 19-3-1983 by the petitioner bank. 4. Respondent No. 3 moved a grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) before the Punjab Labour Court No. VII, Gujranwala, for his re instatement in service. • 5. The petitioner took a preliminary objection to the maintainability of the application in the following terms:-- "That the petitioner was employed in the Mangerial capacity and was performing duties purely managerial and supervisory in nature. He was also drawing the salary accordingly. As such, the petitioner being covered by the definition of employer, is not covered by the definition of the term workman/worker as provided in the I.R.O. and other Labour Laws." 6. The learned Presiding Officer, Punjab Labour Court No. VII, Gujranwala, over-ruled the preliminary objection by holding that respondent No. 3 was a 'workman' as defined under the Ordinance, but dismissed the application on merits by order dated 5-9-1988. 1. On appeal filed by respondent No. 3, the Punjab Labour Appellate Tribunal, Lahore, set aside the order of the Labour Court and respondent No. 3 was directed to be re-instated in service without back benefits. The objection taken by the petitioner that respondent No. 3 was not a 'workman' was not allowed to be agitated as no cross-objections were filed by the petitioner against the finding recorded by the Labour Court on this point. 8. Ch. Muhammad Aslam Chatha, Advocate, learned counsel for the petitioner argued that respondent No. 3 was not a 'workman' and, therefore, the Punjab Labour Appellate Tribunal had no jurisdiction to re-instate him. He further argued that even in the absence of cross-objections, the Labour Appellate Tribunal was not helpless to pass any order in favour of the petitioner according to the justice of the case. 9. Malik Muhammad Asghar Learned counsel for respondent No. 3 submitted that the petitioner could support the impugned judgment of the Labour Court before the Appellate Tribunal only on the points decided in his favour and if he intended to attack points decided against him, he should have filed crossobjections under Order XLI rule 22 C.P.C. Here the cross-objections were not filed by the petitioner, the Punjab Appellate Tribunal, therefore, rightly declined to grant any relief to the petitioners on this point. In support of his contention, reliance was placed on KJiairati and others v. Aleeinuddin and another (PLD 1973 S.C. 295), wherein a Bench of the Supreme Court comprising the Honourable Chief Justice and another Honourable Judge was pleased to hold; "It is no doubt true that a respondent can support a decree even on points decided against him, but he cannot attack the decree or ask for its variation without his crossobjections." 10. The rule laid down in Klwirati's case (supra) is not applicable here, inasmuch as, the petitioner herein, was neither attacking the decree of the Labour Court nor asked for its variation and, therefore, he was not debarred to support the order of the Labour Court by atacking the points decided against him without filing cross-objections. Section 37(3) of the Ordinance merely provides that any party aggrieved by an award given by a Labour Court or the decision against him under Section 25-A or Section 34 or the sentence passed under clause (c) of sub section (5) of Section 35 may prefer an appeal to the Labour Appellate Tribunal within thirty days of delivery or passing thereof and the decision of the Tribunal in such appeals shall be final. There being no specific provision under Section 37 of the Ordinance about filing of cross-objections, the general principle of law would be applicable that the respondent is entitled to support the order of Labour Court on grounds different from the one on which the Labour Court has based its decision. The same view was taken in rent cases. Refer Muhammad Tufail v. Barkat All (PLD 1967 Karachi 151) and Sh. Muhammad Ashraf v. Muhammad Almas (PLD 1981 Lahore 52). In Muhammad Hussain KJian v. Said Muhammad Klian (PLD 1988 S.C. (AJ&K) 184, it was held that under Order XLI Rule 22 C.P.C., the respondent at the hearing of the appeal is entitled to support the decree not only on the grounds decided in his favour, but also on the grounds decided against him without filing any cross-objection. Reference may also be made to Abdullah Bull v. Munawar All (1985 SCMR 1007), wherein it was held that:- - "As regards the second point the position is that the finding of the first appellate Court in judgment dated 30-6-1975 against the petitioner on the question of contiguity was sought to be challenged by the petitioner before the High Court but the High Court refused to go into the question on the ground that the petitioner being the respondent neither filed any separate appeal nor any cross-objection calling in question the correctness of the said finding. This seems to be a misconceived proposition, in that, Order XLI rule 22 C.P.C. in term permits a respondent without filing an appeal from any part of the decree passed in his favour on any grounds decided against him in the Courts below. Sec Kliairati and others v. Aleem-ud-Din and another PLD 1973 S.C. 295". 11. The same view has been consistently followed in Faqir Muhammad v. Muhabbal KJian (PLD 1958 Lahore 918), Ahmad Din v. Karam Elahi (NLR 1984 Civil 86), Riasat All v. Muhammad Shaft (1984 CLC 2384), Wali Muhammad v. Abdul Karim (1984 CLC 2554), Ruqiya Begum v. Water and Power Development Authority (NLR 1985 (Civil) 225), Bashir Ahmad v. Additional District Judge, Gujrat (PLJ 1985 Lahore 72), Syed Ali Raza v. Aurangzeb Klian (1987 CLC 1829) Qutub-ud-Din v. Muhammad Siddique (PLD 1969 Lahore 418). 12. he same question came up for consideration before a Full Bench of the Lahore High Court in Mhand v. Mst. Amautul Hafeez (PLD 1954 Lahore 278), wherein R hman J. (as he then was) observed:~ " ................ The right of respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to "support the decree" i.e., only as a weapon of defence and not of offence, in order to maintain the status quo ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent is not increased beyond what is imposed by the lower Court's decree. The expression "support the decree" occurring in the rule, is somewhat equivocal in content but I am inclined in favour of the wider interpretation of this expression adopted by the Full Bench of the Madras High Court in Gadden Chinna Venkala Rao v. Koralla Salyanarayanamiiiihy in preference to the narrower view that prevailed with the learned Judges who decided Siri Ranga Thathachariar v. Srinivasa Thathachariar. If the rule is to be hedged round with any other limitations, justification for that course will have to be found in some other provision or rule of law, rather than the language of the rule il -,clf." The same view is taken in the Indian Jurisdiction in the Management of Itakhoolle Tea Estate v. Its Workmen (AIR 1960 S.C. 1349). Reference may also be made to M/s S.M. Yusufv. Mi/2a Muhammad Mchdi Pooya (PLD 1965 S.C. 15), wherein a Bench comprising three Honourable Judges headed by the then Chief Justice A.R, Cornelius CJ., held in terms of Order XLI rule 33 C.P.C., that the appellate Court has ample power to pass decree in favour of any party although such party has not filed any appeal. The relevant portion of the judgment may be reproduced here with advantage:— "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parlies may not have filed any appeal or objection. The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative and the rule is further strengthened by non-obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non-obstante clauses are particular significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non-obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that "in the absence of the counter appeal being filed a decree against another defendant cannot be given" not only constitutes a fetter upon the exeremcly wide power given to the appellate Court by the Code, but may also be though to be in direct contravention of a clear provision in the rule." 12. Having considered the case law on the subject, I hold that the Labour Appellate Tribunal has acted with material irregularity in not allowing the learned counsel for the petitioner to argue the point that respondent No. 3 was not a "workman" under the Ordinance on the ground that no cross-objections had been filed against the judgment of the Labour Court on this point. The question whether or not respondent No. 3 was a workman within the purview of the Ordinance was a question relating to the jurisdiction of the Labour Court and the Labour Appellate Tribunal. This question ought to have been allowed to be raised and decided as a preliminary issue. 13. In view of the above, the impugned judgment of the Punjab Labour Appellate Tribunal dated 15-12-1988 is declared as without lawful authority and of no legal effect. The case is remanded to the learned Chairman of the Punjab Labour Appellate Tribunal for decision afresh in accordance with law and in the light of the observations made in this judgment. The parties are directed to appear before respondent No. 1 on 25-10-1989. To this extent the writ petition is accepted, but there shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 137 PLJ 1990 Lahore 137 Present: muiiammad munir kiian, J GHULAM NABI--Petitioner versus MUHAMMAD SIDDIQUE-Respondent Civil Revision No. 1918 of 1989, dismissed on 7.11.1989. Specific Relief Act, 1877 (I of 1877)- —-S.9 read with Limitation Act, 1908, Article 142--Dispossession of plaintiff-­ Suit for possession by—Limitation for—Whether suit was barred by time- Question of—Plaintiff had filed suit for possession of Haveli alleging his possession and subsequent dispossession by defendant—Under Art. 142 of Limitation Act, he could file suit within 12 years of his proved dispossession-­ According to findings of Trial Court, he was dispossessed in 1980 and suit was filed by him in 1984-11 is discretion of plaintiff to file suit for recovery of possession under Section 9 of Specific Relief Act or to file (regular) suit for possession within 12 years of his dispossession under Article 142 of Limitation Act—Held: Remedy under Section 9 is an additional remedy and docs not prohibit suit for possession—Held further: There is no illegality or material irregularity in judgment of appellate Court—Petition dismissed. Pp. 138^ 139] A Raja Muhammad Ayub Khan, Advocate for Petitioner. Date of hearing: 7.11.1989. ordiir On 17-4-1984 Muhammad Siddiquc respondent filed suit for possession of Haveli situate in village Bhatay Kalan, Tehsil and District Sialkot against (ihulum Nabi petitioner in the Court of Civil Judge, Sialkot . It was averred in the plaint that the plaintiff while in possession of Haveli had illegally been dispossessed by the defendant two days before the filing of the suit. The suit was resisted and following issues were framed:— Issues: (1) Whether the plaintiff is owner of disputed Haveli? OPP (1-A) Whether the property has been correctly described? If so, its effect? OPP (2) Whether the plaintiff has no locm-slandi to file this suit? OPD (3) Whether the plaintiff is estopped by his conduct to file this suit in view of preliminary objection No. 2 of the written statement? OPD (4) Whether the plaint is not properly valued for the purposes of Court- lee and jurisdiction. If so, its correct value? OPD. (5) Whether the defendant has violated the order of status-quo issued by this Court. If so, its effect? OPP. (5-A) Whether the suit is time barred? OPD. (5-B) Whether the plaintiff has possessory rights over the suit property from his fore-fathers and when he was dispossessed? OPP. (6) Relief." The parties led evidence. The trial Court came to the conclusion that the plaintiff was in possession of the suit land as a "Muyeen" and was dispossessed on 15-5- 1980 or even prior to that. The trial Court was also of the view that the suit should have been filed within 6 months of dispossession under section 9 of the Specific Relief Act, and as such, the same was barred by time. Finding issues No. 1-A, 2,3,4 in favour of the plaintiff/respondent and issues No. 5 and 5-A against him, the trial Court dismissed the suit on 25-11-1987. Feeling aggrieved thereby, Muhammad Siddiq filed appeal which was accepted and the suit decreed by the learned Additional District Judge on 10-9-1989, hence this revision. 2. Learned counsel for the petitioner argued that the plaintiff/respondent was dispossessed in the year 1980 as held by the trial Court, therefore, the suit filed by him on 7-1-1984 was barred by time; that since the plaintiff/respondent has alleged illegal dispossession from the Havcli, two days before the filing of the suit (which he could not prove) so, the suit could not have been filed after ix months of his alleged dispossession; that the well reasoned judgment of the trial Court has been set aside by the appellate Court without cogent reasons and that the appellate Court has mis-read the evidence. 3. 1 have considered the submissions made by the learned counsel for the petitioner with care. I have not been able to persuade myself to agree with him. The persual of the plaint shows that the plaintiff/respondent had filed suit for possession of Havcli (immovable property) alleging his possession and subsequent dispossession by defendant. So under Article ]42 of the Limitation Act, he could file suit within 12 years of his proved dispossession. In view of the findings of the trial Court that the petitioner was dispossessed in the year 1980, the suit filed by him in year 1984 was well within time. Under Section 9 of Specific Relief Act a person dispossessed without his consent of immovcablc property may by suit recover possession thereof within 0 months of his dispossession. It is discretionary with him to hie or not to lile suit for the recovery of possession under Section 9 of the Specific Relief Act. The section provides summary procedure for grant of relief to the person dispossessed from immoveablc property without his consent and does not debar him to file a suit for possession on the allegations of possession and dispossession within 12 years of the date of his dispossession under Article 142 of the Limitation Act. When a person is dispossessed against his consent, two remedies are open to him. He may either file suit for the recovery of property through summary procedure within 6 months under Section 9 of the Specific Relief Act. or he may file a suit for the recovery thereof within 12 years of his dispossession. The remedy under Section 9 is an additional remedy and does not prohibit suit for possession on possessory title in the ordinary way in a proper case even though the suit is brought beyond six months. Section 9 is not intended to arbidgc any rights possessed by a plaintiff, it rather gives him the right to have possession restored without reference to the title on which he holds and that which the dispossessor asserts. The learned appellate Court was quite competent to reverse the findings of the trial Court on any issue. Neither any order under Section 22 of Punjab Pre-emption Act passed by the appellate Court nor the order made by the trial Court under this section has been challenged in this revision. The learned counsel has not been able to point out any mis-reading/non-reading of material evidence by the appellate Court. I do not see any illegality or material irregularity in judgment of the appellate Court. The submissions made by the learned counsel for the petitioner are devoid of force and substance. 4. Pursuant to the above discussion, the revision is dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 139 PLJ 1990 Lahore 139 Present: MUHAMMAD MUNIR KllAN, J MUNAWAR ALI--Appellant versus IMAM DIN-Respondent RSA No. 66 of 1989, dismissed on 25.10.1989 (i) Civil Procedure Code, 1908 (V of 1908)- —O.XLI R.27—Additional evidence-Production of--Prayer for-Rejection of-- Challenge to-No application for production of documents sought to be produced at appellate stage, was moved before trial court~At a very late stage, application was moved before appellate court, for permission to produce documents which was rejected for good reasons—Held: Order rejecting prayer for production of additional evidence, does not suffer from legal infirmity. [Pp. 141&142JC (ii) Pre-emption— —Pre-emption-Suit for-Superior right-Claim of-In his first written statement, appellant did not disclose transaction of gift in his favour-Gift was not through any registered deed-Held: Plea of appellant having become co-sharer in estate through gift of land in his favour, is false and after-thought-- Held further: Judgments of Courts below do not suffer from any illegality or material irregularity. [P.142JD (Hi) Punjab Pre-emption Act, 1913 (I of 1913)-- —Ss. 15 & 16-Pre-emption-Suit for-Whether suit land was village immovable property-Question of-Courts below concurrently found suit land to be an agricultural land and village immovable property and not urban immovable property—Courts below have applied conscious mind to relevant material on record and have given sound and cogent reasons in support of conclusions arrived at by them-Sale deed does not show that it was an urban immovable property or was sold for residential purposes-Most Khasra numbers are under cultivation-Appellant's attorney also stated so—Held: Appellant is bound by statement of attorney which is in consonance with revenue record. [P.141]A&B Mr. Raza Hussain Sliamsi, Advocate for Appellant. ~ Mr.Taqi AhmadKlian, Advocate for Respondent. Date of hearing: 25,10.1989. judgment On 21-10-1979, Imam Din respondent filed suit for possession by pre­ emption of land measuring 32 Kanals 12 Marias situated in Narowal against Munawar Ali defendant-appellant on the ground of being collateral of vendor and co-owner in the estate, in the Court of Civil Judge, Narowal. The suit was resisted wherein 8 issues were framed. The parties led evidence. The trial Court decreed the suit on 26-7-1983. The appeal filed by the defendant-appellant against this judgment and decree was dismissed by the learned District Judge, Sialkot, on 27- 2-1989. Hence this second appeal 2. Before me the learned counsel for the appellant has challenged the findings of the Court below on following issues:-- (1) Whether the suit is incorrectly valued for the purposes of Court fee, and if so, what is the correct valuation? OPP. (1-A) Whether the property in dispute is situated within municipal limits and is surrounded from all sides by urban population and urban characteristics like availability of electricity, water supply exists, and the land in dispute, therefore, does not have agricultural nature, and is urban property and not pre-emptible? OPD. (2) Whether the plaintiff has supperior right of pre-emption? OPP. 3. The learned counsel for the appellant submitted that the suit property was/is urban immovable property situated in Narowal, which was declared a town vide a notification on 10th November, 1908; suit property consists of four ,-& scattered plots within the municipal limits of Narowal; that the suit property is surrounded by roads, buildings onstructed by private persons, the connected roads are electrified; the Courts premises are at a distance of about 6 Furlongs from the suit property and as such the suit property was/is not a village immovable property as such the superior right of pre-emption could not be claimed in the terms of Section 15; that under Punjab Immovable Property Tax ' Act, 1958, Narowal town has been declared urban area and the suit property is being assessed to property tax; that the Courts below have not considered the evidence of Abdul Hamid DW3, Khadim Hussain DW4 and Riaz Ahmad DW5 and that the findings of the Courts below suffer from misreading and non-reading of evidence. Reliance has been placed on Lai and others v. Muhammad Sharif (PLD 1961 WP Lahore 47); Nasir Abbas v. Manzoor Haider Shah (PLD 1981 SC 568), and 'Mian Gul Shah and others v. Saycd Fannan Shah and others (1985 SCMR 1789). The learned counsel further argued that since one of the vendors, namely, Msl. Ramzan Bibi was not related to the Respondent and the defendantappellant had become co-sharer in the estate on the basis of a gift before the institution of the suit for pcsscssion by pre-emption, therefore, the plaintiffrespondent has no superior right of pre-emption; that since the suit land was an urban immovable property, therefore, the Court fee should have been paid on its market value and not on 15 times of the net profits as paid by the plaintiff /respondent, and that the application filed by the appellant before the first appellate Court for permission to produce additional evidence (documents), the genuineness whereof was not open to doubt, was rejected by the appellate Court without cogent reasons. 4. On the other hand, the learned counsel for the respondent has supported the judgments and decrees passed by the Courts below. 5. I have considered the submissions made by the learned counsel for the parties with care. From the afore-mentioned state of affairs, it is very much obvious that the crucial question for consideration is as to whether the suit land was a village immovable property within the meaning of Section 15 of the Pre­ emption Act, 1913 or it was an urban immovable property within he meanings of Section 16 of the Punjab Pre-emption -Act. The fate of issue No. 1 and 1-A mostly depends upon the answer to this question. The Courts below have concurrently found the suit land to be an agricultural land and village immovable property and not urban immovable property. The Courts below have applied conscious mind to the relevant material evidence on record and have given sound and cogent reasons in support of the conclusions arrived at by them. The sale was effected on 23-11- 1978. Copy of Jamabandi for the year 1973-74 Ex.P. 10 and Khasra Girdawari P.18 show that the suit land was an agricultural land and village immovable, property. Most of the Khasra numbers of the suit land were under cultivation. The registered sale deed does not show that the suit property was an urban immovable property or was sold for residential purposes. There is no evidence on record to show that at the time of sale i.e. in November, 1978, the suit land was no longer part of village immovable property or had become a suburb of the town (Narowal). Sakhawat Ali, attorney of the appellant, appearing as DW7 has clearly stated that:- Abdul Hamid DW3, Khadim Hussain DW4 and Riaz Ahmad DW5 have told the nature of the suit land and vacinity around it as it existed at the time of recording their evidence in the year 1983. The have not given the picture of the suit land as it was in the year 1978. Be that as it may, the appellant is bound by the statement made by his attorney Salamat Ali DW7. 1 do not see any reason to disbelieve him. The statement made by him is in consonance with the revenue re rd. The submissions made by the learned counsel do not carry any weight. No application for the production of the documents sought to be produced at appellate stage was moved before the trial Court. It was at a very late stage that an application for permission to produce some documents was made before the appellate Court. After having considered the application in the light of the circumstances of this case has rejected the same for good reasons. The order rejecting prayer for production of additional evidence does not suffer from legal infirmity. The appellant should have been vigilant at the tune of trial and cannot be allowed to fill in the lacuna in his evidence at the stage of appeal, without sufficient cause which I do not see. Since I am also of the view that the suit land was not an urban immovable property within the meaning of Section 16 of the Pre-emption Act, 1913, therefore, no exception can be taken to the findings of the Courts below on issues No.l and 1-A. 6. As for issue No. 3 relating to the superior right of pre-emption, I find that there are reasons to doubt the genuineness of the alleged gift of the land situated in the estate, in favour of the defendant-appellant. In his first written statement, he did not disclose the transaction of gift in his favour. The gift is not through any registered deed. Therefore, it cannot be said with certainty as to when the land was really transferred by way of gift. It seems to me that the plea of the plaintiff/appellant having become co-sharer in the estate through gift of land in his favour is false and after-thought. If for the sake of arguments, it is assumed that the plaintiff/respondent was not collateral of one of the vendors, Mst. Ramzan Bibi it will not take the case of the defendant/appellant any further because plaintiff/respondent was co-owner hi the estate at the time of sale and the defendant/ appellant has not been proved to be a co-sharer In the estate at that time or before the filing of the pre-emption suit y plaintiff/respondent. The cases cited by the learned counsel do not apply to the facts of this case. The judgments of the Courts below do not suffer from any illegality or material irregularity. 7. Pursuant to the above discussion, the appeal is dismissed leaving the parties to bear their own costs. (MBC) Appeal dismissed

PLJ 1990 Lahore 142 PLJ 1990 Lahore 142 Present: MUHAMMAD MUNIR KHAN, J ZAHOOR HUSSAIN-Appellant versus MUHAMMAD ISMAIL etc.-Respondents RSA No. 428 of 1967, (also RSA 667 of 1967) dismissed on 17-10-1989. Waiver— —Pre-emption—Suit for~Waiver of right of pre-emption-Proof of~Evidence shows that it is not a case of mere presence of pre-emptor at time of bargain-- He is real brother of vendor-He accompanied vendor for sale of suit land and he was not only present when sale price was settled and earnest money was paid, but he also accompanied vendor and vendee to Tehsildar for attestation of mutation—Held: On account of his clear conduct which showed that he was not at all interested for purchase of property, appellant has waived his right of pre-emption—Held further: Findings of appellate court on issue of waiver do not suffer from illegality or material irregularity-Appeal dismissed. [Pp. 145.V 146JA&B 01. Muhammad Klian, Advocate for Appellant (in both appeals). Mian Slier Alam, Advocate for Respondents (in both appeals). Date of hearing: 17-10-1989. JUDGMENT Through this Single Judgment I propose to dispose of the two R.S As. No. 428 of 1967 and 667 of 1967 filed by Zahoor Hussain appellant against the judgment and decree dated 28-2-1967 passed by learned Additional District Judge, Gujrat. 2. The facts briefly are that on 9-2-1966 Zahoor Hussain appellant filed a suit for possession by pre-emption of agricultural land measuring 47 kanals and 12 marlas situated in village Gurdanawala, Tehsil Kharian, District Gujrat against Muhammad Ismail and 3 others, the respondetns in the Court of Civil Judge Gujrat. The suit was filed on the basis of superior right of being collateral to the vendor and co sharer in the Khata. The superior right of the appellant/respondent was not denied. In the written statement, the respondents stated that the land was urchased for Rs. 30,000/- and not for Rs. 17,650/- as averred in the plaint. The respondents also stated that the appellant had waived the right of pre-emption. The trial Court framed following issues:-- Issues (1) Whether the value of the suit for purposes of Court fee and jurisdiction is correct? OP. (2) Whether the sum of Rs. 30.000/- was actually paid or fixed in good faith? OPD. (3) Whether the plaintiff has waived his pre-emptive right? OPD. (4) Market Value? O.Parties. (5) Relief. The parties led evidence. The trial Court found issues No. 2 & 3 against the defendant/respondent. On issue No. 4, the trial Court concluded that the market value of the suit land was Rs. 23,009/-. So the trial Court, in view of its findings on these issues, decreed the suit of the appellant subject to the payment of Rs. 23,009/- on 9-2-1966. Feeling aggrieved with the findings of the trial Court on issue No. 4, the plaintiff/appellant filed appeal. The respondents/ defendants also filed appeal challenging the findings of the trial Court on issues No. 2, 3, 4. Both the appeals were entrusted to learned Additional District Judge Gujrat. The learned Additional District Judge disposed of both the appeals through single judgment on 28-2-1967 and as a result of his findings on issue No. 3 of waiver, accpeted the appeal filed by the respondents and dismissed the suit of the appellant/plaintiff. Resultantly, the appeal filed by the appellant against the judgment and decree of the trial Court stood dismissed, hence these two appeals. It may be noted here that the learned Additional District Judge has not given his findings on the other issues. 3. Learned counsel for the appellant contended that the well reasoned finding of the trial Court on issue No. 3 has been reversed by the appellate Court without legel and actual justification; that the learned Appellate Court has not considered the question of waiver of right of pre-emption in accordance with the guiding principles laid down by the Superior Courts, inasmuch-as, mere presence of the pre-emptor at the time of bargain, does not amount to waiver of the right of pre-emption. Reliance has been placed on Waryam v. Waiyam & others (1986 MLD 2431), SarwarKJian v. Mst. Kliudeja (1987 MLD 2359) Nazar Muhammad v, Pholla & others (1987 MLD 33), Muhammad Hayat v. Dost Muhammad (1985 NLR 219), Noor Muhammad v. Nazir (1985 CLC 480), and Muhammad Rafiq, etc. Mst. Rehana Begum (NLR 1985 CIVIL 348). On the other hand, the learned counsel for the respondents relied on PLD 1971 S.C. 730, PLD 1972 S.C. 133, 1988 S.C.M.R. 1407, PLD 1985 Lah. 380 and PLD 1985 Kar. 47, to contend that since the appellant/plaintiff had actively participated in the transaction so he has relinquished the right of pre-emption by conduct. 4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. Issue No. 3 is an issue of fact. The learned Appellate Court was the final court on facts and was competent to believe/disbelieve the evidence disbelieved/ believed by the trial Court. The findings of the learned appellante Court on this issue do not suffer from misreading/non-reading of the evidence. Karam Dad, D.W.3 stated:-- Fazal Hussain son of Allah Lok, D.W.5 stated:- An examination of the aforesaid statements made by Karam Dad D.W.3, Fazal Hussain D.W.5 and Muhammad Ismail D.W.6, shows that it is not a case of mere presence of the pre-emptor at the time of bargain, inasmuch-as, Zahoor Hussain, pre-emptor, is real brother of Fazal Hussain, vendor; that he accompanied Fazal Hussain to the house of Karam Dad D.W.3 for the sale of suit land and that he not only was present when the sale price was settled and earnest money was paid but he also accompanied the vendor and the vendee to Tehsildar for the attestation of mutation. In the peculiar circumstances of this case, I feel that on account of his clear conduct which showed that he was not at all interested for the purchase of the property, the appellant/plaintiff has waived his right of pre­ emption. There can be no two opinions that the waiver of right of pre emption may result either from express relinquishment or from conduct from which such relinquishment of right could be inferred. The findings of the learned Appellate Court on issue of waiver do not suffer from illegality or material irregularity. The case law cited by the learned counsel for the appellant/plaintiff does not apply to, the facts and circumstances of this case. -I For what has been said above, I do not see any justification, in exercise of thel revisional powers of this Court to interfere with the judgment and decree of theP learned Appellate Court. So both the appeals are dismissed, leaving the parties to bear their own costs. (MBC) Both appeals dismissed.

PLJ 1990 Lahore 146 PLJ 1990 Lahore 146 Present: MUHAMMAD MUNIR.KHAN, J ABDUL AZIZ and 2 others-Petitioners versus ABDUL MAJID and another-Respondents Civil Revision No. 1997 of 1989, accepted on D.11.1989 Punjab Pre-emption Act, 1913 (I of 1913)- —S.22 read with Civil Procedure Code, 1908, O.VII, R.ll-Zar-i-Panjum- Withdrawal of—Whether revision can be filed after withdrawal-Question of~ Zar-i-Panjum was deposited within lime fixed by trial court-It was withdrawn after dismissal of suit under Order VII, Rule 11 C.P.C. on basis of judgments of Supreme Court on point of Talabs in Islam—Closer examination of Section 22 of Act reveals that there was no legal bar for petitioners to withdraw Zar-i- Panjum after decision of suit or appeal-Held: If Zar-i-Panjum is withdrawn after disposal of appeal, plaintiff is neither estopped from filing revision nor Us abates-lleld further: Supreme Court having reviewed its judgments about Talabs, it cannot be said that impugned judgments passed on basis of Talabs, do not suffer from illegality or material irregularity-Petition accepted and case remanded. [Pp. 147&148JA, B&C Ch. Abdul Rehman, Advocate for Petitioners. Mr. A. W. Bull, Advocate for Respondent. Date of hearing: 13-11-1989. judgment On 12-11-1986 Abdul Aziz and two other petitioners filed suit for possession by pre-emption of agricultural land measuring 72 kanals and 19 marlas Khata No. 1 & 2 of village Balloki, Tehsil Chunian, District Kasur on basis of being co-sharer in khata against Abdul Majeed and Imam Din respondents in the Court of Civil Judge Chunian. The suit was resisted. Issues were framed. The case was fixed for evidence of the plaintiff, when the respondents/defendants filed application under Order 7 rule 11 C.P.C. for the rejection of plaint on the ground that requirement of Talabs as in Islam having not been fulfilled by the plaintiffs, the plaint was liable to be rejected. Relying on the judgments of Supreme Court on the point, the trial Court dismissed the suit on 22-4-1989. Feeling aggrieved thereby, the petitioners filed appeal before the learned District Judge, Kasur. Relying on the Judgments of Supreme Court reported as 1988 S.C. 1800, PLD 1988 S.C. 287, 1988 C.L.C. 166 and PLJ 1988 S.C. 270, learned District Judge, confirmed the judgment and decree of the trial Court, hence this revision. 2. Raising preliminary objection, the learned counsel for the respondents submitted that since after the dismissal of the appeal, the plaintiffs/petitioners have withdrawn Zar-e-Panjum therefore, they were/are estopped from filing the present revision and have lost the locus-slandi to prosecute it; that the Legislature's intention in insisting upon the deposit of Zar-e-Panjum by preemptor was to safeguard vendees against frivolous proceedings by prospective pre-emptor, as such, on the withdraw! of Zar-e-Panjum at any stage, the Us abates. o, the revision is not maintainable; that the judgments of the courts below do not suffer from illegality, irregularity or jurisdictional defect and as such, cannot be interfered with, in exercise of the revisional powers of this Court; that no revision lies against an order passed under section 22 of the Punjab Pre-emption Act and that revision is not in continuation of original proceedings. Reliance has been placed on Gulzar Klian v. Mst. Razia Begum and two others (1982 S.C.M.R. 843), Malik Hadayat and two others v. MuradAli KJian (PLD 1972 S.C. 69), Muhammad Saleh & another v. United Grain and Fodder Agency (PLD 1964 S.C. 97), S. Zafar Ahmad v. Abdul KJialiq (PLD 1964 Kar. 149), Sind Employees Social Security & others v. Adamjce Cotton Mills Ltd (PLD 1972 S.C. 32), Karamat Hussain and another v. Muhammad Zaman (PLD 1987 S.C. 139) andAlafDin v. Mst. Parveen Akhtar (PLD 1970 S.C. 75). Conversely, the learned counsel for the petitioners maintained that there was no legal bar for the plaintiffs/petitioners to withdraw l/5th on the dismissal of appeal and he could file and pursue the revision without depositing Zar-e-Panjum. Learned counsel relied upon Ahmad & others v. Abdul Aziz & others Civil Review Petition No. 80 of 1988, (KLR 1989 Revenue Cases 166), to contend that the suit of the petitioners was maintainable although the requirements of Talabs as in Islam were not fulfilled by them. 3. I have considered the submission made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that the petitioners/ plaintiffs had deposited Zar-e-Panjum within time fixed by the trial Court. One-fifth of the probable value of the suit land remained deposited till the decision of the appeal. Zar-e-Panjum was withdrawn by the plaintiffs/petitioners after the dismissal of suit and appeal decided on the basis of the judgments of the Supreme Court on the point of Talabs as in Islam. Closer examination of the provisions of Section 22 of the Punjab Pre-emption Act, 1913 reveals that there was no legal bar for them to withdraw l/5th after the decision of the suit by the trial Court or after the decision of the appeal. Furthermore, re-deposit of Zar-e-panjum was/is not a pre-condition to the filing of revision petition against the judgment and decree of he appellate Court. The relevant provisions may be reproduced advantageously:-- Sec. 22 of the Punjab Pre-emption Act, 1913. (1) "In every suit for pre-emption the Court shall at or at 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 l/5th of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1). (3) every sum deposited or secured under sub-section, (1) or (2) shall be available for the discharge of costs. (4) 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 mentioned in sub section (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insuffic ent, the Court shall order the plaintiff to furnish security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed. (6) The estimate of the probable value made for the purpose of sub-section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property" The omission of word "revision" in clause (a), sub-section (5) of Section 22 of the Punjab Pre-Emption Act, reproduced above, is of great significance. It is thus ve?y~ much obvious that if Zar-e-Punjum is withdrawn by a plaintiff after the disposal of appeal, he is neither estopped from filing revision against the judgments and decrees of the Courts below, nor can be denuded of his right to pursue his revision petition nor the lis abates. The Supreme Court has, by now, granted review petition against its judgment on the point of Talabs as in Islam on the basis whereof, the trial Court had dismissed the suit and the Appellate Court had dismissed the appeal of the plaintiffs/petitioners. That being the position, it cannot be said that the judgments of the Courts below do not suffer from illegality or material irregularity. The submissions made by the learned counsel are devoid of force and substance. The cases cited by him do not apply to the facts and circumstances of this case. Pursuant to the above discussion, the revision is accepted. The judgments and decrees of the Courts below are set-aside and the case is sent back to the trial Court for further proceedings in accordance with law. la order to protect the vendees/respondents against frivolous proceeding, the trial Court will pass fresh order under section 22 of the Punjab Pre-emption Act, requiring the plaintiffs/petitioners to deposit in the Court Zar-e-Panjum or requiring them to give security within a reasonable time to be fixed by it. The parties shall bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 149 PLJ 1990 Lahore 149 Present: MUHAMMAD iLYASj PROVINCE OF PUNJAB-Appellant Versus M/s. MA. RASHID SAID ALAM KHAN-Respondent FAO No. 190 of 1983, dismissed on 5.7.1989 (i) Arbitration Act, 1940 (X of 1940)- —Ss. 14(2) & 17—Award—Filing of—Objections against—Contention that award filed by respondents was not accompanied by depositions and documents which were taken and produced before arbitrators and as such it was an improper filing of award—Depositions and documents referred to in Section 14(2) are to be filed by arbitrators if award is filed by them but if it is filed by a party, it is not obliged to do so~Argument repelled. [Pp. 151&152] F&G (ii) Arbitration Act, 1940 (X of 1940)- —S.17 read with Section 14(2)~Award—Filing of for making rule of Court-­Objections against— Contention that award was not filed in accordance with law, so question of commencement of period for submitting objections did not arise--Plea that under Section 14(2) award could be filed by arbitrator or by any person authorised by him in this behalf-Reply that Section 14(2) was not only provision for filing of award and that filing of award by respondents with application under Section 17 was quite in order-Held: Any of parties may file award and a decree may be passed on basis thereof, under Section 17 of Act—Held further: There is nothing wrong with filing of award by respondents. [Pp.150 & 151] AJ$,C&D AIR 1958 Allahabad 270, AIR 1954 Nagpur 236 and AIR 1953 SC 313 Not followed. PLD 1959 (WP) Lahore 146 followed, (iii) Arbitration act, 1940 (X of 1940)- —S.17—Award-Filing of—Objections against—Contention that award was not filed in accordance with law, was not raised by appellant before trial court-Plea in this regard is an after-thought and is devoid of force-Held: Argument that award was not competently filed and as such question of commencement of period of limitation for submitting objections thereto did not arise, is not acceptable. [P.151JE (iv) Arbitration Act, 1940 (X of 1940)- —S.17—Award—Filing of-Objections against-Contention that notice of filing of award was not duly served on 4.1.1983 on appellant and as such period of filing of objections did not commence from said date and further that service was effected on clerk who was not authorised to receive notice—Appellant entered appearance through Executive Engineer on 5.2.1983 which was date for which notice was issued—If there was no service, appellant would not have entered appearance— Nothing produced to prove that clerk who received notice had no authority to do so—Held: Service of notice in this case, is not open to any legitimate exception- Held further: Nothing having been pointed out to enable Court to interfere with order under challenge, appeal fails. [Pp. 152,153&154]HJ&K Mr. Fazal-e-Miran Chauhan, Advocate for Appellant. Mr. Ijaz Hussain Batalvi and Mr. MA. Zafar, Advocates for Respondent. Date of hearing: 20-5-1989. judgment This appeal is directed against order, dated the 31st July, 1983, passed by the Senior Civil Judge, Lahore, whereby he made an award a rule of the Court. 2. The impugned award related to a dispute between the appellant, Province of the Punjab, and the respondents, M/s. MA. Rashid Said Alam Khan, which arose out of an agreement between the parties with regard to the construction of a bridge by the respondents, as contractors of the appellant. The dispute was referred to two arbitrators who gave the award in favour of the respondents. An application, under section 17 of the Arbitration Act, 1940, was, therefore, filed by he respondents before the learned Senior Civil Judge for making the award a rule of the Court. On 20th December, 1982, notice of the application was issued to the appellant calling upon it to file objections, if any. Notice was served on the appellant on 4th January, 1983 but objections to the award were not filed within the period of 30 days prescribed by Article 158 of the First Schedule to the Limitation Act, 1908. Objections were not submitted even on 5th February, 1983 for which date the said notice was issued. The case was, therefore, adjourned to 23rd February, 1983 by the learned Senior Civil Judge. In the meantime, on 17 th February, 1983, the objections were filed by the appellant. 3. On submission of objections before the learned Senior Civil Judge, it was pleaded by the respondents that they were tune barred and as such they could not be looked into. On the other hand, it was maintained by learned counsel for the appellant that since the objections were filed within the period extended by the learned Senior Civil Judge, from time to time, they could not be thrown out on the ground of limitation. View taken by the learned Senior Civil Judge was that the case was adjourned, from time to time, in routine, and that since the period prescribed by law for filing of objections, namely, 30 days from the date of service of notice of the filing of the award, could not be extended by the Court, the objections were time barred and, therefore, not entertainable. Accordingly, he declined to examine the objections and made the award a rule of the Court. 4. Without disputing the proppsition that time for filing of objections could not be extended by the learned Senior Civil Judge, learned counsel for the appellant raised three other objections to assial the order under appeal. 5. In the first instance, it was urged by learned counsel for the appellant that the award was not filed in accordance with law and, therefore, question of commencement of period for submitting the objections did not arise. His plea was that under subsection (2) of section 14 of (he Arbitration Act the award could be filed by the arbitrator or by any person authorised by him in this behalf but as the award was not filed in either of these two manners there was no filing of award in the eye of law. In this connection, reliance was placed by him on Amod Kumar Verma v. Hari Prasad Burman and others (A.I.R. 1958 Allahabad 270) and Firm Shriram Haracharandas Khamgaon v. The President, The Cotton Seed Forward Delivery Managing Association Ltd.,Khamgaon and others (A.I.R. 1954 Nagpur 236). B 6. In reply, it was submitted by learned counsel for the respondents that the provisions of subsection (2) of section 14 of the Arbitration Act were not the only provisions of law whereunder the award could be filed and that the filing of the award by the respondents, with application under section 17 of the said Act, was quite in order even though the respondents were not formally authorised by the arbitrator to file the award. He relied upon Mrs. Keays Byrne v. M. Obaiduallh Khan (P.L.D. 1959 (W.P.) Lahore 146) to support his plea. In addition, he made reference to clause (a) of rule 10 of the rules framed by this Court under section 44 of the Arbitration Act. 7. Cases of Amod Kumar Verma and Firm Shriram Haracharandas Khamgaon, cited by learned counsel for the appellant, which are of In ian jurisdiction, are based on law laid own by the Supreme Court of India in Kumbha Mawji v. Dominion of India (Now the Union of India) (A.I.R. 1953 Supreme Court 313). These three cases were cited before the erstwhile High Court of West Pakistan, which decided the aforementioned case of Mrs. Keays Byrne, but despite that it was held by Mr. Justice Waheed-ud-Din Ahmad, who was then a Judge of the said High Court and was subsequently elevated as a Judge of the Supreme Court of Pakistan, that any of the parties may file award and a decree may be passed on the basis thereof, under section 17 of the Arbitration Act. While taking this view, reliance was also placed on clause (a) of rule 10 of the rules, framed by this Court, under section 44 of the Arbitration Act, which reads as follows:-- "(a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the manner prescribed in rule No. 3." In the case of Mrs. Keays Byrne it was contended that the said rules were ultra vires of the Arbitration Act but this plea was not accepted. With due deference to the learned Judges of superior Courts of India who decided the cases of Kumbha Mawji, Finn Shriram Hharacharandas KJtamgaon and Amod Kumar Verma Ij would like to follow the law laid down in case of Mrs. Keays Byrne, which is of Pakistan jurisdiction, and hold that there is nothing wrong with the filing of the! award by the respondents. 9. It may also be mentioned here that the above contention in respect of the filing of the award was not raised by the appellant before the learned trial Court. Thus, its plea in this regard is an after-thought. It has also been found to be devoid of force. I am, therefore, unable to accept the argument of learned counsel or the appellant that the award was not competently filed and as such question of commencement of period of limitation for submitting objections thereto did not arise. 10. Next point canvassed by learned counsel for the appellant was that thej award of the arbitrators, when filed by the respondents, was not accompanied by depositions and documents which may have been taken and produced before them and as such it was an imporper filing of the award. For this proposition, he placed reliance on subsection (2) of section 14 of the Arbitration Act and on Messrs MA. Rashid and Company v. The Punjab Small Industries Corporation and another (P.L.D. 1986 Lahore 254). This is also belated plea of the appellant inasmuch as it was not raised before the learned Senior Civil Judge. No doubt in the case of Messrs M~A. Rashid and Company, it was held by my learned brother Abdul Waheed J. that "the award has to be filed alongwith any depositions and documents which might have been taken and proved before the arbitrator and it is only after the filing of the award alongwith depositions and documents that the Court can give notice to the parties of the filing of award" but it is regretted that attention of my learned brother was not invited to clauses (b) and (c) of rule 10 of the rules, framed by this Court under section 44 of the Arbitration Act, which read as follows:- "(fe) When the award is filed by the arbitrator or umpire, he shall, together with the award, send to the Court any depositions and documents which have been taken and proved before him and the opinion pronounced by the Court on the special case submitted by him, if any, in accordance with section 14 of the Act, by forwarding the same under a sealed cover addressed to the Court. He shall also send together with the award a copy of the notice given to the parties concerned and affidavit of service of such notice and of attestation of his signature on the award. (c) When the award is filed by any of the parties to the arbitration under clause (a), the party may move the Court for directing the arbitrator to produce in original such of the documents as were produced before him together with the record of the arbitration." It is evident from these clauses of rule 10 that the depositions and documents, referred to in subsection (2) of setion 14 of the Arbitation Act,are required to be filed by the arbitrators if the award is filed by them, but if the award is filed by a party, the party filing it is not obliged to file the said depositions and documnts alongwith the award and, in that event, it is for the Court to call upon the arbitrators to file the depositions and documents in question. As pointed out above, the said rules have been held to be intra vires of the provisions of the Arbitration Act and not otherwise. In this state of affairs, I, with respect, regret my inability to subscribe to the view taken by my learned brother in the case of Messrs M-A. Rashid and Company and hold that the filing of the award by the respondents is not open to challenge on the ground that the award, when field by them, was not accompanied by depositions and documents which may have been taken and proved before the arbitrators. Argument of learned counsel for the appellant in respect of the non-filing of the said depositions and documents alongi with the award is, accordingly, repelled. 11. Lastly, it was maintained by learned counsel for the appellant that notice of filing of the award was not duly served on the appellant on 4th January, 1983 and as such period of filing of objections did not commence from the said date. Notice of filing of the award was received by Diary Clerk, Department of communication and Works, Government of the Punjab, Lahore. Argument advanced by learned counsel for the appellant was that the said Clerk was not authorised to receive the notice. In this connection, reliance was placed by him on unreported judgment of the Supreme Court in Civil Appeal No. 799 of 1984, M/s. Fine Electric Corporation v. Province of Punjab and 3 others, which was delivered on 29th March, 1988. Facts of the precedent case of M/s. Fine Electric Corporation are different from those of the case in hand. In the cited case, objection with regard to service of award was taken before the learned trial Court and evidence was led in this regard. This, however, is not true of the case before me inasmuch as no objection with regard to proper service of notice was raised in the instant case when it was before the learned trial Court. On the other hand, service was admitted in the case in hand. This is clear from the following sentence occurring in the order under challenge: "Admittedly, the respondent was served on 4th January, 1983, through office." That service in the instant case was not only proper but also effective is evident from the fact that the appellant entered appearance, through the Executive Engineer concerned, on 5th February, 1983, which is the date for which the notice was issued. If there was no service effected on the respondents or it was not in accordance with law, the appellant would not have entered appearance as done by it. Nothing was produced before the learned trial Court to demonstrate that the Clerk who received the notice had no authority to do so. Even now, nothing has been placed before me to show that the said Clerk was not employed with the appellant or was not authorised to receive the notice. In the circumstances, service of notice in this case is not open to any legitimate exception. Plea of learned, counsel for the appellant in this behalf is, therefore, over-ruled. 12. This disposes of all the contentions raised by leanred counsel for the appellant which has, for nearly seven years, withheld a sum of Rs. 775000/- awarded to the respondents by the arbitrators. It is very unfortunate that the appellant did not honour the award of the arbitrators although both of them were its own employees. No doubt, the law permitted it to raise objections agianst the award but it did not act in time inasmuch as the objections filed by it were badly time barred. Strangely enough, argument addressed before the learned trial Court for showing the objections in time was abandoned before this Court and the. contentions advanced before this Court were not raised before the learned trial Court. Such like deplorable conduct of Government Departments was also adversely commented upon be the Supreme Court in Lahore Development Authority v. Messrs Klwlid laved & Co. (1983 Supreme Court Monthly Review 718) in the following words: "In conclusion, we cannot refrain from observing that despite the declared policy of the Government for ensuring speedy and inexpensive justice we find, all too frequently, that even Government Departments and statutory bodies indulging in wasteful and unnecessary litigation. It is at their behest that in all contracts entered into by them a clause is inserted to the effect that any dispute, which may arise during the completion of the contract between the parties, will be decided through arbitration rather than by the ordinary Courts. It is also usually stipulated that the arbitrators, who may be nominated for this purpose, must be the responsible officers of the said Department. It is, therefore, a matter of some regret that when an award is given by the Arbitrators, who are persons of their own choice and the award made is in a proceeding conducted in a forum desired by them but which is not wholly in accord with their point of view the Department of Government concerned instead of accepting the said award with good grace rushes to the Court with frivolous objections to prevent it from becoming the Rule of the Court and when these objections are overruled resort is taken to filing appeal upon appeal right upto the Supreme Court which not only results in further financial loss to the Department and further delay in the settlement of the rightful claim of the private party but also in the unnecessary waste of the valuable time of Courts which could be spent far more usefully in attending to other more meritorious cases. It is high time that Government Departments should accept more gracefully the awards made by forums selected by themselves and manned by their own officers. They would be advised if they took greater pains and more care than they are doing at present in preparing and prosecuting their case before the Arbitrators rather than hi subsequently expending their time, energy and efforts on fruitless objections and appeals against the awards made against by them, for which they are mostly themselves to blame." 13. Since nothing has been pointed out to enable me to interfere with the rder under challenge, this appeal fails. It is, accordingly, dismissed with costs. Announced in open Court and in the presence of Mr. Fazle-i-Miran Chauhan, Advocate, for the appellant. Respondents and their learned counsel shall be informed, by means of notices, immediately. (MBC) Appeal dismissed.

PLJ 1990 Lahore 154 PLJ 1990 Lahore 154 Present: GUL ZARIN KlANl, J FATEH MUHAMMAD-Appellant Versus MUHAMMAD HANIF NASIM and another-Respondents FAO No. 156 of 1989, accepted on 23-10-1989 (i) Civil Procedure Code, 1908 (V of 1908)-- —O.XXXIX Rr. 1 & 2~Temporary injunction—Grant of~Prayer for-Dismissal of application-Challenge to-Temporary injunction was sought in a suit for specific performance of agreement to sell land—Execution of agreement and its terms are admitted-Receipt of advance payment is not denied-Whether time fixed in agreement was really of essence of contract, is yet to be seen—It cannot be said with certainty that delay of few months in seeking assistance of court for specific performance was an adverse circumstance disentitling plaintiff to equitable discretionary relief—Record shows that plaintiff has a prima facie case-Balance of convenience also b'es in his favour-Held: In order to prohibit and avoid introduction of strangers into Us, injunction ought to issue to prohibit defendants from transferring land in suit. [P.157JA PLD 1956 (WP)) Karachi 521, PLD 1976 Karachi 181,1981 CLC 276,1981 CLC 453, NLR 1984 AC 21, NLR 1986 CLJ 346 and 1987 MLD 2858 rel. (ii) Civil Procedure Code, 1908 (V of 1908)- —O.XXXIX Rr. 1 & 2—Temporary injunction-Grant of-Prayer for—Dismissal of application—Challenge to—Temporary injunction sought in a suit for specific performance of agreement to sell land-Just and fair rule of law that ordinarily in a suit for specific performance of sale agreement, when plaintiff asks for a prohibitory order for restaining defendants from alienating property agreed to be sold, grant of injunction must be subjected to terms as to deposit of sale price in court—Appeal accepted and temporary injunction granted subject to deposit of sale price. [P.158JB&D" 1988 CLC 448 & NLR 1988 CLJ 323 rel. (Hi) Civil Procedure Code, 1908 (V of 1908)- —O.XLIII R.3~Appeal~FUing of~Notice~Non-serving of—Objection of—In adjudicating appeal on merits after it was admitted to formal hearing, respondents are not shown to suffer any material prejudice-There is material to indicate that notice about filing of appeal was despatched to respondents-­ Copy of notice and postal receipt showing despatch, are annexed—Held: Preliminary objection is not to be upheld and appeal is not to be dismissed purely on a technical view of matter. [P.158JC 1988 CLC 448 & NLR 1988 CLJ 323 rel. Pir Anwar Rehman, Advocate for Appellant. Syed Najamul Hassan Kazmi, Advocate for Respondents. Date of hearing: 23-10-1989. judgment This first appeal under order XLIII, rule 1 (r) Civil Procedure Code is filed by the plaintiff. It is against order of learned trial Court dated 25-7-1989 passed in a suit for specific performance declining interim relief prohibiting the defendants for making pendente lite alienation of their property. 96 kanals, 17 marlas of land situate at mauza Chungh Panjgrain, Tehsil Lahore was owned by Muhammad Hanif Nasim and Faqir Muhammad also of Lahore who by a deed in writing on 22-12-1988 agreed to sell the above piece of land to Fateh Muhammad at the sale price of Rs. 45, 51,950/-. Out of the agreed sale price, Rs. 5,00,000/- were paid to the owner of the land at the time of the sale agreement and balance sale price was to be paid at the time of completion of the sale on 15-1-1989. As terms of agreement were not fulfilled and sale deed was not executed, Fateh Muhammad as plaintiff brought a civil suit on 24-4-1989 for enforcing terms of sale agreement and completion of the sale upon paying the balance sale price. Alongwith the plaint in the civil suit, plaintiff also put in an application under order XXXIX, Rules 1 and 2 Civil Procedure Code restraining the defendants from making any alienation of the property in suit so as to adversely affect his rights. Defendants resisted the application. Amongst other defence pleas, it was submitted that as the time agreed upon to complete the sale had already run out, agreement was rescinded by the defendants and advance payment was forfeited. Written statement, however, was not yet filed. Upon review of the respective pleas advanced by the rival parites, trial Court found that plaintiff was not entitled to interim injunction and dismissed his application. At the hearing learned counsel for the appellant submitted that the discretion was not correctly exercised and was regulated by considerations not much relevant to the point in issue. It was also submitted that facts requiring determination were misunderstood and law was incorrectly applied. Learned counsel further argued that though the time limit laid down in the agreement for completion of sale had expired yet in the circumstances of the case, time was not of the essence of the contract and mere delay in lodging the suit for specifc performance was not a hurdle for exercise of discretion in favour of the plaintiff. In support, learned counsel referred to cases of Mrs. Parveen Begum v. Raja Muhammad Sarwar £7ian--P.L.D. 1956 (W.P.) Karachi 521, Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others-P.L.D. 1976 Karachi 181, Anjum Rehmat and others v. (Rtd.) Sqn/Ldr. Shaikh Ghulam Sadiq— 1981 C.L.C. 276, Sheikh Muhammad Rafiq Aklitar v. Sqn/Ldr. (Rtd.) Shaikh Ghulam Sadiq— 1981 C.L.C. 453, Muhammad Hussain v. Mst. Saeeda Begum etc.-- N.L.R. 1984 A.C. 21, Rustam AH v. Chaudliary Mukhtar Ahmad Anwar-N.LR. 1984 Civil 323, Molasses Export Co. Ltd. v. Consolidate Sugar Mills Ltd. N.L.R. 1986 C.L J. 346, Haji Gul Muhammad Haji Ismail and others v. MunawarAli Nian and others-1987 M.L.D. 2828 (Karachi), Mehraj Din v. Karam Din and others- P.L.D. 1987 Lahore 166 (2), Muhammad Safdar Ansari and another v. Abdul Mo/eed--P.L.D. 1988 Lahore 216. In reply, learned counsel for the respondents defended the impugned order and also raised preliminary objection to maintainability of the appeal stating that required notice under order XLIII, rule 3 Civil Procedure Code was not served before filing of appeal in the High Court. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Maft>i--P.L.D. 1983 S.C. 693, Muhammad Shaft v. Sh. Muhammad Amin and others-- 1984 Law Notes (Lahore) 519, Muhammad Siddique etc. v. 5oofa--1985 Law Notes (Lahore) 273 were pressed in aid. It was further submitted that plaintiff did not take timely steps to complete the sale within the agreed stipulated period and was guilty of deliberately delaying the action so as to cause monetary loss to the defendants. It was also submitted that despite notice from the defendants, plaintiff failed to pay the sale price and complete the sale. In this view, so it was argued, defendants had justifiably rescinded the agreement and forfeited the earnest money and plaintiff was not entitled to exercise of discretionary relief in his favour. Lastly, it was contended that in case the Court is of the view that injunction should issue, its grant must be subjected to terms so as to safeguard the interests of the defendants. In support, referred to Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan--P.L.D. 1956 (W.P.) Karachi 521, Ferozuddin and another v. Tien Ymg Lee and others-1981 M.L.D. 2035 (1), Shama Enterprises (Private) Limited v. Malik Ghulam Sarwar, £to.--N.L.R. 1989 Civil 83 (Karachi). As far service of notice before appeal, learned counsel for the appellant submitted that requisite notice was despatched to the defendants as is evident from the copy of notice annexed alongwith the postal receipt. It was also argued that as the appeal was already admitted to hearing for decision on merits, alleged absence of notice shall cause no prejudice to the respondents if the appeal was adjudicated upon by the Court on its merits. Reliance was placed upon the decisions in Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others-1988 C.L.C. 448, Muhammad Sarwar etc. .Faleh Muhammad etc.--N.L.R. 1988 C.L.J. 323. Having regard to the facts and the true legal principles applicable thereto, appeal is bound to succeed because impugned order could not be upheld. Execution of agreement and its terms are admitted. Receipt of advance payment is not denied. Despite express mention of 15th January, 1989 as the date fixed to complete the sale and providing consequences in the event of any default on either side, it is yet to be seen whether time fixed in the agreement to complete sale was really of the essence of the contract and specific performance could not be had after the stipulated period had expired. At this stage of litigation, it cannot be said; with certainty that delay of few months in seeking assistance of the Court in the suit for specific performance was adverse circumstance disentitling the plaintiff to the equitable discretionary relief. It is agreed that civil suit was filed in time. Muhammad Safdar Ansari and another v. Abdul Majeed~Pi.D. 1988 Lahore 216 is in point. As said above, a substantial amount of Rs. 5,00,000/- was paid to the defendants as earnest money. There is no material to hold that plaintiff was not earnest to go on with the sale agreement and pay the balance price for the land in dispute to receive its title from the defendants. Upon the existing records, plaintiff is shown to have a clear prima-facie case to present to the Court for its examination. Balance of convenience also lay in his favour. As far the third ingredient i.e. irreparable loss, though rule of Us pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendente lite alienations, yet in order to prohibit and avoid introduction of strangers into the Us which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit. See Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan~P.L.D. 1956 (W.P.) Karachi 521, Mst. Muhammad Bibi v. Additional Settlement Commissioner, KJiairpur and 2 others-P.L.D. 1976 Karachi 181, Anjum Rehmat and another v. (Rtd.) Sqn/Ldr. ShaikJi Ghulam Sadiq-1981 C.L.C. 276 (Karachi), Sheikh Muhammad RafiqAkhtar v. Sqn./Ldr. (Rtd.) Shaikfi Ghulam Sadiq~198l C.L.C. 453 (Karachi), Muhammad Hussain v. Mst. Saeeda Begum etc.-N.L.R. 1984 A.C. 21, Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd.~N.L.R. 1986 C.LJ. 346, Haji Gul Muhammad Haji Ismail and others v. Muhammad AU KJian and others-19S7 M.L.D. 2828 (Karachi). Therefore, plaintiff had a good prima-facie case on merits for issuance of temporary injunction which apears to have been refused on wholly insufficient grounds. This brings me to another limb of the case, whether injunction should be subjected to terms and if so, what kind of terms. Dispute relates to substantial quantity of valuable land situated on periphery of Lahore. Its sale was agreed for Rs. 45,51,950/-. Approximately, l/9th of the sale price was paid in advance. 8/9th share of the sale consideration is yet to be paid. There is no gain-saying that suit for specific performance shall take its own time to reach its final goal. Meanwhile, prices of real estate are not likely to remain static. They constantly show upward trend. Sharp fall in the money value during recent past and corresponding rise in prices of real estate is a relevant factor for the Court to consider when issuing an injunction order of the type under consideration. In this view, it shall not be just to bind the defendants from dealing with their own property without any solid security from their adversary to show his real bonafides in the proposed transaction of sale. In Mrs. Parveen Begum's case, grant of temporary injunction was subjected to prior deposit of Rs. 1,00,000/- whereas agreed sale price was Rs. 1,38,000/- out of which Rs. 15.000/- were already paid. In case of Ferozuddin and another, a Division Bench of Karachi High Court observed, "in a suit for specific performance, generally the injunction is granted subject to the condition that the plaintiff shall deposit the balance of the agreed sale consideration". In case of Shama Enterprises (Private) Limited, it was again observed by the Division Bench that 'in a suit for specific performance, when appellant seeks an injunction hi respect of the suit property, the Court normally orders the deposit of the balance of the sale consideration in the Court in order to see whether factually the plaintiff was ready and willing to perform his part of the sale agreement in respect of which the specific performance is sought." To me, it appears to be a just and fair rule of law with which I respectfully agree and hold that ordinarily, hi a suit for specific performance of the sale agreement, when the plaintiff asks for a prohibitory order for restraining the defendant from alienating the property agreed upon to be sold, grant of injunction must be subjected to terms as to deposit of the sale price in Court. Above course shall not only show something about bonafides of the plaintiff seeking specific enforcement of the agreement of sale but shall also relieve the defendant from an unnecessary loss which he is likely to suffer. I shall now advert to the objection to the maintianability of appeal on the ground of non-service of notice as required by order XLIII, Rule 3 C.P.C. In regard to it, it is sufficient to observe that in adjudicating the appeal on merits after it was admitted to formal hearing, respondents are not shown to suffer any material prejudice. They raised no objection to the confirmation of stay order on 19-9-1989 and requested for early hearing of the appeal on merits. Also, there is material to indicate that notice about filing of the appeal was despatched to the respondents. Copy of the notice and postal receipt showing the despatch are annexed. In this view, I am not prepared to uphold the preliminary objection and dismiss the appeal purely on a technical view of the matter. Dismissal of the appeal in this fashion shall be no justice. In taking the above view, I am firmly supported by cases of Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others—1988 C.L.C. 448, Muhammad Sarwar etc. v. Fateh Mohammad etc.~N.L.R. 1988 C.LJ. 323. Decisions relied upon by the learned counsel for the respondents have some distinguishable features. In view of the aforesaid, appeal is allowed, impugned order of learned Judge below is set aside and defendants are restrained from transferring the land in dispute till final adjudication is made in the civil suit subject to their depositing the balance sale consideration in the Court within two months from today. In default, injunction shall not operate. However, during the period of two months allowed for the deposit of balance sale price, defendants shall not alienate the land in dispute. It may be observed that sale price, if deposited shall be invested in some profit bearing approved scheme of the Government and final disbursement of the amount plus the accrued benefits shall be regulated by the order of the Court in accordance with the decision in the civil suit. Costs to be borne as incurred. Records be returned. (MBC) Appeal acepted.

PLJ 1990 Lahore 159 PLJ 1990 Lahore 159 [ Multan Bench] Present: MIAN NAZIR AKIITAR, J MOEENUDDIN and 7 others-Petitioners versus SIBGHATULLAH and 3 others-Respondents Civil Revision No. 52 of 1989, dismissed on 19.9.1989. (i) Civil Procedure Code, 1908 (V of 1908)- —-S.48 read with Limitation Act, 1908, Section 15-Decree-Execution of- Limitation for-Whether execution application was time barred-Question of—No cogent proof that respondent had filed any exeuction application earlier- Execution petition filed for first time on 22.9.1985--Execution of decree was stayed by appellate court just after two days of its passing and then it was stayed by High Court and Supreme Court who dismissed appeal on 16.2.1985-Petitioner filed execution petition on 22.9.1985 well within 6 years after excluding time under Section 15 of Limitation Act during which execution remained stayed—Section 15 of Limitation Act overrides provisions of Section 48 of CPC~HeJd: Execution Petition was well within time-Revision dismissed. [Pp. 160,161&162]A,B&C AIR 1944 Nagpur 155, AIR 1948 (35) Nagpur 272 & AIR 1947 Nagpur 101 rcL Mian M. Zafar Yasin, Advocate for Petitioners. Mian Abbas Ahmad, Advocate for Respondents. Date of hearing: 19-9-1989 judgment This revision petition arises out of an application for execution of the decree dated 10-12-1974. The petitioner's objection petition was dismissed by the executing court and the appeal filed by him also met the same fate. Hence, this petition. 2. The brief facts of the case are that Sibghat Ullah respondent No. 1, had filed a suit for possession through pre-emption against petitioners No. 1, 2, 8 and Ata Muhammad, prcdccessor-in-interest of respondents No. 3 to 8 on 1-9-1989 in the court of Civil Judge, Dera Ghazi Khan. Respondents No. 2 to 4 were also respondents in the trial court. The suit was decreed by the trial court vide its judgment and decree dated 10-12-1974. The petitioners filed an appeal in the Court of District Judge, D.G.Khan which was admitted to regular hearing and the execution of the decree was stayed by the court vide order dated 13-12-1974, Then the petitioners' appeal was dismissed by the learned Distt: Judge, D.G.Khan vide his judgment and decree dated 19-3-1975. IN RSA 175/1975 filed by the petitioners execution of the decree was stayed on 3-4-1975 and the appeal was dismissed by this Court on 22-2-1977. The petitioners filed Civil Petition for Special Leave to Appeal on 1-6-1977 in which the Supreme Court was pleased to stay the execution of the decree on 3-6-1977. The said petition was finally dismissed on 16-2-1985. 3. In the meanwhile, the respondent claims to have filed an application for execution of the decree. However, execution of the decree was stayed by the learned Distt: Judge on 13.12.1974. The second execution application (which is said to be the first application by the learned counsel for the petitioner) was filed on 22.9.1985. The petitioners filed an objection petition on 10.4.1986 in which it was urged that the execution petition was barred by time. The petitioners also filed an application with a prayer for framing of issue on the point of limitation. However, the said application was not disposed of by a separte order. The objection petition was dismissed by the executing court vide order dated 17.1.1989. The appeal filed by the petitioner was dismissed by the learned District Judge, D.G.Khan vide his judgment dated .23.1.1989. 4. The learned counsel for the petitioners has urged that there was no evidence to show that the petitioner had filed some execution application in December, 1974. He has submitted that by virtue of provisions of section 48 of the CPC the execution petition was barred by time and merited dismissal. In this connection he placed reliance on Mst. Zulekha Bibi Vs Rana Pershad (AIR Patna 45) and Roshan Din Vs. S.M.Burhan-ud-Din (PLD 1969 Karachi 546> 5. On the other hand the learned counsel for the respondents urged that I the Second execution petition a reference was made about the earlier execution application. Moreover in the revision petition the institution of the first application was nowhere challenged. He submits that the execution of the decree was stayed by the first appellate court on 13.12.1974. The appeal was dismissed on 19.3. 1975 and then regular second appeal was filed wherein the execution of the decree was stayed on 3.4.1975. The R.SA. was finally dismissed on 22.2.1977. Thereafter, the Supreme Court was pleased to stay execution of the decree on 3.6.1977. The Petition for Special Leave to Appeal was dismissed on 163.1985. Thus excluding the time during which the execution remained stayed, the execution petition was filed well within time. He has placed reliance oh Muhammad Bakhsh & 2 others Vs. Muhammad Bakhsh and 9 others (1981 CLC 98) and Mst. Tahira Bibi and others Vs Sher Muhammad and others (1985 SCMR 1577). 6. I have considered the contentions raised by the learned counsel for the parties and perused the material on the record and gone through the case law cited by the learned counsel for the parties. 7. Although a reference to the first execution petition has been made in the execution petition filed by respondent No.l on 22.9.1985 yet there is no other cogent material to show that any execution petition was actually filed by the respondent earlier. At any rate, this makes no difference because even if the respondents had filed the execution petition for the first time on 22.9.1985 the same was not barred by limitation. 8. Zulikha Bibi's case is of no help to the petitioners because it primarily relates to the question as to whether section 48 overrides section 6 and 7 of the imitation Act or vice versa. The said question is not involved in the present case. The question involved in the present case relates to the provisions of section 48 of the CPC and section 15 of the Limitation Act, 1908. In the case of Koer Durga pal Singh Vs. Pancham Singh (AIR 1939 Allah Abad 403 (F.B.) it was held that section 15 of the Limitation Act overrides the provisions of section 48 of the CPC. Roshan Din's case relied upon by the petitioners learned counsel pertains to rent matter under the West Pakistan Urban Rent Restriction Ordinance and has no relevance to the controversy between the parties. 9. It is evident from the record that the execution of the decree dated 10.12.1974 was stayed by the appellate court just after two days on 13.12.1974. Thus there was no occasion for the respondent to apply for execution of the decrce.He was entitled under the law to wait till the decree had attained finality and matured for execution. The first appeal was dismissed on 19.3.1975 and, thereafter Regular Second Appeal No.175/75 was filed, in this Court on 2.4.1975 in which the execution of the decree was again stayed on 3.4.1975. The RSA was dismissed on 22.2.1977 and after three months and 10 days the Supreme Court was pleased to stay the execution of the decree. The petition for special leave to appeal was dismissed on 16.2.1985 and the petitioner filed execution petition on 22.9.1985. Thus it is evident that the petitioner filed the application for execution - well within the period of six years, after exculding the time under the provisions of ^section 15 of the Limitation Act, during which the execution of the decree 'remained stayed. As held in the Full Bench case of Allah Abad High Court section 15 of the Limitation Act overrides provisions of section 48 of the CPC. The executing court can legitimately exclude the time during which the stay orders issued by the competent courts with regard to the execution of the decree remained in force. This view is supported by the above cases of Muhammad Bakhsh and Mst. Tahira Bibi relied upon by the learned counsel for the rcspondcnts.In Muhammad Bakhsh's case, the decree for possession through pre­ emption was passed by the appellate court on 12.4.1960. The second appeal (RSA 199/1966) against the decree was filed in this Court and the execution of the decree was stayed. The appeal was held to have abated vide order dated 6.5.1974 due to the death of the predecessor in interest of respondents No.3 to 10 in the said appeal. Thereafter an application was filed on 7.6.1974 for the first time for execution of the decree dated 12.4.1960. It was held as under: "The admitted position also being that stay had been granted against the execution by the High Court in RSA No.199/66 it shall be deemed to have continued and withdrawn only when the formal order was passed by the High Court (Mi 6.5.1974 holding the appeal aforementioned as abated. The execution petition having been filed on 7.6.1974, by the conjuclive reading Article 181 of the Schedule to the Limitation Act and Section 15 ibid, it appears that the petition,.... was within time." The proposition that the provisions of section 48 CPC are controlled by section 1,5 of the Limitation Act also finds support from a number of other judgments as well. In the case of Sitaram v. Chunnilalsa (AIR 1944 Nagpur 155) it was held as undcr:- "On a close scrutiny of the language, we have come to the conclusion that S.48, Civil P.C.,prescribcs a period of limitation for execution of a decree. In computing the period of limitation prescribed for an application for the execution of a decree S.15, Limitation Act, allows a certain period to be excluded. The provision is perfectly general. It is not restricted to the limitation prescribed by Sch. 1, Limitaiton Act. Where such restrictions are intended it has been so specifically stated: see Ss.3 and 6,Limitaiton Act. In the absence of such qualification or restriction in S.15, the provisions contained therein are of general application." In Deorao Vs. Ramchandra (AIR 1948 (35) Nagpur 272), the earlier judgment in Silaram's case was relied upon and it was held that in computing the period of 12 years under sccion 48 of the CPC (now 6 years) the decree holder was competent to exclude the period during which the execution of the decree remained stayed. In the case of Mir Bismillah (AIR 1974 Nagpur 101) it was held that section 15 of the Limitation Act governed section 48 of the CPC and was to be taken into consideration in computing the period of limitation prescribed under section 48 of the CPC. 10. As explained above the decree became ripe for execution only on 16.2.1985 when the Supreme Court finally dismissed the Petition for Special Leave to Appeal filed by the present petitioner. The exeuciton petition was filed on 22.9.1985. Excluding the period during which the execution of the decree remained stayed the execution petition was clearly filed within the period of 6 years provided under section 48 of the CPC. 11. In this view of the matter this revision petition; fails and is dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 162 PLJ 1990 Lahore 162 [ Multan Bench] Present: ABDUL MAJEED TlWANA, J JALLA and 3 others-Appellants Versus MUHAMMAD SHAFI and another-Respondents RSA No. 151 of 1967, accepted on 7.10.1989. Constitution of Pakistan , 1973-- —Art. 203-D~Shariat Appellate Bench-Decision of-Time limit for bringing necessary legislation—Non-Compliance of—Effect of—According to directions contained in judgment of Supreme Court (Shariat Appellate Bench), legislation was to be carried out by 30-6-1983 but Ordinance in this respect was issued on 1.8.1983—Held: Article 203-D of Constitution empowers Federal Shariat Court and Shariat Appellate Bench of Supreme Court to specify time limit for bringing about necessary legislation but no legal consequence is indicated if such directions are not complied with—Held further: Legal objection that impugned judgment and decree of Additional District Judge have abated in view of amendment, is upheld—Appeal accepted. [Pp. 163&164JA.B&C PLD 1983 SC (Shariat Appellate Bench) 272 rcf. Mina Manzoor Ahmad, Advocate for Appellants. Mr. Aziz Akbar Baig, Advocate for Respondents. Date of hearing: 7-10-1989. judgment This Regular Second Appeal is directed against the judgment and decree, dated 7.11.1966, by which Malik Gulbaz Khan, Additional District Judge, Montgomery, (now Sahiwal) accepting the appeal of Muhammad Shafi, plaintiffrespondent No.l, decreed his suit based on custom, after setting aside the judgment and decree dated 28.10.1965, whereby Senior Civil Judge, Montgomery, had dismissed his suit. 2. The plaintiff-respondent No.l had challenged the validity of two sale transactions; one embodied in sale mutation No.202 attested on 2.7.1956 in respect of 119 kanals of land situated in the area of village Mulla Hamza, Tehsil Montgomery, and the other incorporated in sale mutation No.107 of the same date in respect of 43 kanals 17 marlas situated in the area of village Killi, Tehsil Montgomery, alleging that his father Shamir was not competent to sell the ancestral land without legal necessity. 3. The suit was contested by the defendant-appellant and ultimately it was dismissed by the learned Senior Civil Judge on 28.10.1965. The plaintiffrespondent preferred an appeal and the learned Additional District Judge, Montgomery, accepting the same, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved by this decision the defendant-appellant filed this appeal. 4. At the out-set the learned counsel for the defendant-appellant, with reference to section 2-A of Ordinance No. XIII of 1983, which in turn amended the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962, which was promulgated pursuant to the decision of the Supreme Court reported as PLD 1983 S.C.(Shariat Appellate Bench) 272, submits that the impugned decree passed by the learned Additional Dirstrict Judge, Motgomery.jin favour of the plaintiff- respondent stands abated and has become inexecutable. 5. The learned counsel for plaintiff-respondent No.l concedes this legal position but he doubts the validity of the amending Ordinance on the ground that according to the directions contained in the aforesaid judgment of the Supreme Court, the legislation was to be carried out by 30th of June, 1983 whereas the Ordinance was issued on 1.8.1983 and for that reason it is not enforceable. 6. Article 203-D of 1973 Constitution empowers the Federal Shariat Court and the Appellate Bench of the Supreme Court to specify time limit for bringing about the necessary legislation in order to make the existing law to conform with B the tenets of Islam but no legal consequence is indicated in that provision or anyi other provision of the Constitution, if such directions are not complied with. In the absence of any specific provision to that effect, any person can, at the most, invoke the provisions of Contempt of Court Act 1974 and do nothing more. 7. In view of the above, the legal objection raised by the learned counsel for the defendant-appellant is upheld, the appeal is accepted and the impugned judgment and decree dated 7.11.1966 of the learned Additional District Judge, Montgomery, are set aside, having abated, with no order as to costs (MBC) Appeal accepted.

PLJ 1990 Lahore 164 PLJ 1990 Lahore 164 [ Multan Bench] Present: MUNIR A. SHEIKH, J MUHAMMAD RAMZAN-Petitioner versus BASHIR AHMAD-Respondent Civil Revision No. 349/D of 1988, accepted on 18.10.1989. ( i ) Pre-emption- —Pre-emption—Suit for-Cosharership~Ground of—No finding on-- Consequences of-In addition to ground of collateralship , respondent also claimed right of pre-emption on ground of cosharership in Khata -Lower appellate Court has not recorded any finding on this plea—Held: Lower appellate Court having failed to decide this question, case has to be remanded for disposal of appeal after recording findings on said plea. [P.165] A&B PLJ 1986 SC 576 ref. (ii) Pre-emption-- —Pre-emption—Suit for-Whether transaction was gift or sale—Question of— Alleged donor and alleged donee are not related to each other—Alleged donor has sons—Prior to execution of this document, alleged donor had executed a power of attorney in favour of alleged donee authorising him to get land adjusted in his name-He was also authorised to sell one half of land after its adjustment-Lower appellate court has recorded findings of fact that transaction was in fact a sale and not a gift-Held: No reason to interfere in these findings of fact—Revision accepted and case remanded for fresh decision of appeal in accordance with law. [Pp. 165&166JC&D Mr. Muhainmqd Klialid AM, Advocate for Petitioner. Mirza Manzoor Ahmad, Advocate for Respondent. Date of hearing : 18-10.1989. judgment The respondent's suit for possession of land through preemption was dismissed by the learned trial Court through judgment and decree dated 17-7-1985 after holding that the transaction in question was not a sale but was a gift. The respondent assailed the judgment and decree of the learned trial Court in appeal before the learned lower appellate Court which was accepted through the impugned judgment and decree dated 27-4-1988. The suit of the respondent has been decreed on the ground that he was collateral of the vendor and that the transaction in question was in fact a sale which was given the shape of gift in order to avoid suit to preempt the same. 2. Learned counsel for the petitioner argued that no decree according to the pronouncement of Supreme Court in Sardar Ali's case, on the ground of collateralship could be passed in favour of the plaintiff after 31-7-1986 therefore, the impugned judgment and decree passed by the learned lower appellate Court on the said basis on 27-4-1988 is nullity in the eye of law. There is no cavil with this proposition of law which was also candidly conceded by the learned counsel for the respondent. 3. Learned counsel for respondent further argued that in addition to ground of collateralship the respondent also claimed right of preemption on the ground of cosharership in khata . 4. I have examined the plaint certified copy of which has been appended with this revision petition and find that such a plea was raised. Learned lower appellate Court has not recorded any findings qua the said plea obviously for the reason that right on the basis of collateralship being superior to that of cosharership , it might not have been found necessary to record findings on the said plea. The respondent when appeared as P.W.I in his examination-in-chief stated that he was collateral of the vendor as^also co-sharer in khata . The learned lower appellate Court having failed to decide this question therefore, the case has to be remanded to the learned lower appellate Court for disposal of appeal afterj recording findings on the said plea. < 5. Learned counsel for petitioner argued that the findings of the learned lower appellate Court that the transaction in question was a sale is based on mis ­ application of law as also mis -reading of the record. He argued that since land was gifted in lieu of services rendered by the donee in getting the land andjusted in the name of the vendor therefore, it was transaction without consideration in the form of money therefore, the same could not have been held to be a sale. He relied upon judgments reported as Ghulam Muhammad v. Tek Chand and others (A.I.R. 1921 Lahore P.82), Wazir Ahmad v. Mt. Zubaida Khatun and another (A.I.R. 1926 Oudh . 186) and Talib Ali v. Kaniz Fatima Begam and another (A.I.R. 1927 Oudh P.204). He also called my attention to statements of PW1 , PW2 and PW3 and argued that they are inconsistant regarding alleged payment of Rs . 2,000.00 the consideration under the transaction. P.W.2 stated that Rs.2 ,000,00 were paid before the Tehsildar to the vendor/donor whereas P.W.3 who also claimed to be present before the Tehsildar at the time of the registration of deed of gift/sale-deed stated that the payment was not made in his presence. This witness also stated that the donor/vendor stated before the Sub Registrar that he had gifted the property. 6. The question whether the transaction is a sale or not is to be decided byl the Court keeping in view the circumstances of each case. The parties to the transaction i.e. alleged donor and alleged donee are admittedly not related to each other. The alleged donor had sons which fact was also not disputed by the learned counsel for the petitioner. Prior to the execution of this document the alleged donor had executed a power of attorney in favour of the alleged donee authorising him to get the land adjusted in his name. He was also authorised to sell one half of the land after it was adjusted against the claims of the donor mentioned therein. The preempt or who is neither party to such a transaction nor he is supposed to be present therefore, it was rightly held by the learned lower appellate Court that he could not bring evidence as to what happened at the time of execution of the deed. Considering the above noted facts and the other attending circumstances, the learned lower appellate Court has recorded findings of facts that the transaction in fact was a sale and not a gift and declared the price of the land at Rs . 8,000.00 in lieu of which the same was to be preempted. After considering the arguments of both the learned counsel for the parties and material placed on the record I find no reason to interfere in these findings of facts. The finding on issue No. 4 regarding nature of transaction recorded by learned lower appellate Court is hereby upheld. 7. For the foregoing reasons, this revision petition is accepted. The case is remanded to the learned lower appellate Court for disposal of the appeal in accordance with law after recording findings with regard to plea of the respondent that he was cosharrer in Khata . It is however, clarified that if any application is made by either of the parties, for amendment of pleadings or for recording additional evidence, the learned lower appellate Court shall dispose of the same on merits in accordance with law. The parties are left to bear then" own costs. (MBC) Revision accepted.

PLJ 1990 Lahore 166 (DB) PLJ 1990 Lahore 166 (DB) Present: muhammad MUNIR khan and khalid PAUL khwaja, JJ MUHAMMAD ISHAQUE-Petitioner versus MUHAMMAD SHABBIR-Respondent Review Application No. 41-C of 1989 (in C.R. 1768 of 1986) dismissed on 21.1.1990. Civil Procedure Code, 1908 (V of 1908)- —-O.XLVII R.I read with Limitation Act, 1908, Section 5--Review petition-­ Delay in filing of~Condonation of--Prayer for~Old age and poverty perse have never been recognised as good grounds for condonation of delay--If for sake of arguments, it is considered that petitioner was ill from 29.6.1989 to 5.11.1989, even then there is no explanation as to why he did not institute this petition from 22.1.1989 to 28.6.1989-Held: In application for condonation of delay, petitioner has to fully account for delay of each and every day—Held further: Review petition is hopelessly time-barred and there is no valid ground for condoning delay-Petition dismissed. [P.167JA Sli. Sikandar Iqbal, Advocate for Petitioner. Dale of hearing : 21-1-1990. judgment Khalid Paul Khwaja, J.-By this petition under order 47 rule 1 CPC Muhammad Shabbir petitioner seeks the review of the order dated 21-1-1989 passed by our learned brother Lehrasap Khan, J, (as he then was), in civil revision No. 1768 of 1986 titled Muhammad Ishaq v. Muhammad Shabbir. 2. The instant review petition was instituted on the 5th of November, 1989 almost nine and a half months after the passing of the impugned order. As the petition was prima facie barred by time, which in the present case was 90 days, the petitioner has moved an application under section 5 of the Limitation Act for the condonation of delay. 3. We have heard the learned counsel and have also perused the material available on record. 4. Para No. 2 of the petition contains the grounds on which condonation is sought. The para is reproduced as under: "That the petitioner is an old and poor man, fell suddenly ill on 29-6-1989 suffering from high fever and other complications and was confined to bed, therefore no other male members to look after his case, now the petitioner has recovered from his illness from 5-11-1989." 5. Old age and poverty perse have never been recognised as good grounds for condonation of delay. As regards illness of the petitioner, admitteldy, he had fallen ill on 29-6-1989 and remained so till 5-11-1989 .when he instituted the present review petition. The petitioner has not placed on record any medical certificate or any other proof to show hat he was actually ill during he aforementioned period. If for the sake of arguments, it is considered that he was ill from 29-6-1989 to 5-11-1989 even then it does not help him. He has given no explanation as to why did he not institute the present petition from 22-1-1989 to 28-6-1989. He has not placed on record the certified copy of the order sought to be reviewed and therefore it cannot be said that time between the said dates was consumed in an effort to obtain the necessary copy. In application for condonation of delay the petitioner has to fully account for the delay of each and every day. As there is no explanation as to why the review petition was not presented within the period of limitation prior to 29-6-1989, we are of the opinion that there is no valid ground for condoning the delay. The review petition is hopelessly barred by time. The C.M alongwith the main petition is dismissed accordingly. (MBC) Petition dismissed.

PLJ 1990 Lahore 167 (DB) PLJ 1990 Lahore 167 (DB) [ Multan Bench] Present : IHSANUL HAQ CllAUDIIARY AND MIAN NAZIRAKHTAR, JJ M/s. AZIZ FLOUR MILLS, BAHAWALPUR and 2 others-Appellants versus THE INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN-Respondent FAO No. 45 of 1988, dismissed on 1.11.1989. (i) Appeal-- —Suit-Dismissal of-Non-prosecution-G round of~Restoration of suit- Challenge to~Whether appeal is competent against an order restoring suit which was dismissed for default—Question of—Appeal against an order is not competent until and unless it disposes of entire case-Order which is subject matter of this appeal is not only an interlocutory order but through this order, entire case has not been disposed of—Held: Appeal can only be maintained against last or final order—Objection to maintainability of appeal upheld. [Pp. 178&179]E,F,G&H PLD 1981 SC 359, PLD 1985 Lahore 150 and 1984 CLC 3393 rel. (ii) Civil Procedure Code, 1908 (V of 1908)- —O.IX R.9~Suit-Dismissal of-Non-prosecution-Groiind of-Restoration of suit-Prayer for-Contention that Abdul Aziz Bank Officer was not competent to move application, therefore, whole proceedings on application were illegal and without jurisdiction-Application was moved by Bank's counsel and not by alleged Bank Officer-Power of attorney of counsel had already been filed alongwith plaint and he continued to be counsel for plaintiff Bank-Held: Petition was competently filed. [Pp. 180&181]N PLJ 1989 Lahore 566 rel. (iii) Civil Procedure Code, 1908 (V of 1908)- —O.IX R.9-Suit-Dismissal of-Non-prosecution—Ground of-Resloration of suit-Prayer for-Once finding is recorded that suit was dismissed illegally, it is for court to undo wrong done to plaintiff-No party can be made to suffer for an act of Court—Held: There is nothing to differ with findings recorded by learned Single Judge in chamber. [P.176]D PLD 1981 Lahore 508 rel. (iv) Civil Procedure Code, 1908 (V of 1908)- Prayer for—Objection that no resolution was passed, no permission granted and no instructions were issued to present application for restoration-­ Held: Authorization to file suit covers all acts flowing from suit—Held further: Purpose of law is not that for each and every ap —O.IX R.9-Suit-Dismissal of-Non-prosecution—Ground of-Resloration of suit-Prayer for-Once finding is recorded that suit was dismissed illegally, it is for court to undo wrong done to plaintiff-No party can be made to suffer for an act of Court—Held: There is nothing to differ with findings recorded by learned Single Judge in chamber. [P.176]D plication, there has to be a fresh resolution and authorization. [P.181]O (v) Civil Procedure Code, 1908 (V of 1908)- —O.IX R.9—Suit—Dismissal of-Non-prosecution--Ground of-Rcstoration of suit-Prayer for-Petitioner Bank has shown that Special Judge did not proceed in accordance with law and order was illegal--Absence or presence of representative of petitioner is of no consequence—Order shows that case was called at about 11.00 A.M. and dismissed for non-prosccution--Held: Special Judge, Banking, should have kept matter in waiting and resorted to order of dismissal towards end of day. [Pp. 179&180JM PLD 1966 (WP) Lahore 356 rcf. (vi) Civil Procedure Code, 1908 (V of 1908)- —O.IX R.9 read with General Clauses Act, Section 21-Suit--Dismissal of~ Non-prosccution—Ground of—Restoration of suit—Prayer for—Special Judge, Banking, proceeded in a very casual manner with a suit involving a substantial amount of over twenty lacs—Phraseology "further proceedings" used by Special Judge can be interpreted to mean that court was yet to.determine proceedings to be taken in suit—Held: Once this is conclusion of facts of case, then Order IX Rule 9 of CPC applies-Held further: Court which passed order, was fully competent to redress grievance of a party to a wrong done to it by an illegal order of court, under Section 21 of General Clauses Act or by inherent powers-Appeal dismissed. [P.183JR (vii) Civil Procedure Code, 1908 (V of 1908)-- -—O.IX R.9--Suil~Dismissal of~Non-prosecution~Ground of-Restoration of suit-Prayer for-Whether "further proceedings" amounts to "hearing of suit"— Oueslion of—It is clear from interim orders that suit was not fixed for any definite proceedings on date when it v.us dismissed for default-Learned Single Judge in chamber concluded that it was not a date of hearing and suit could not be dismissed—Held: Nothing factually or legally is wrong with these finding of learned Single Judge in chamber. [P.176JC (viii) Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.9—Suit—Dismissal of—Non-prosecution—Ground of—Restoration of suit-Prayer for-Whcthcr it was necessary to frame issues, record evidence and then decide application for restoration of suit-Oucstion of-Argument is not only against very purpose of enacting Banking Companies (Recovery of Loans) Ordinance, 1979, but also against purpose of Order XXXVII of CPC— It sounds strange and illogical that proceedings in main suit should be summary while same should be on pattern of a regular suit on ancillary applications—Held: Since order of dismissal of suit was patently illegal and •• void, there was no need to frame issues and record evidence. [Pp. 181&182JP&Q (ix) Civil Procedure Code, 1908 (V of 1908)-- —O.IX R.9—Suit—Dismissal of—Non-proseculion—Ground of—Restoration .of suit—Prayer for—Whether merits of main suit can be gone into—Question of~ Appcal is directed against order passed on application for restoration of suit-Argument that suit was incompetent and person filing it, had no authority, therefore Court has no jurisdiction and all proceedings are rendered null and void and without jurisdiction-If these arguments are accepted, it will amount to adjudication of main suit-Held: To adjudicate upon merits.of suit is beyond scope of present appeal. [P.175]A&B (x) Jurisdiction— —Suit dismissed in default by Special Judge (Banking) Multan-Application for restoration of—Objection that Multan Bench had no jurisdiction and that application for restoration should have been heard cither at Principal Scat or: at Bahawalpur Bench—Suit was throughout being taken up at Multan by Special Judge before its transfer to High Court-Application of appellants for leave to appear and defend suit, was also fixed for hearing at Multan and proceedings in restoration application were also conducted at Multan—Held: File was rightly transmitted to Multan Bench of Lahore High Court, (P,179]J&K (xi) Limitation- —Suit dismissed in default-Restoration of-Pctition for-Whether time barred-­Question of-Contention that although petition was shown to have been filed on 21.7.1982, yet, in fact, it was filed much later-According to report of Ahlinad petition was filed on 21.7.1982 and was fixed for 9.9.1982 for hearing-­ Held: Argument is falsified by record and there is no merit in it. [P,179]L Mr. S.M. Almas All, Advocate for Appellants. Mr: M.Z. Mian Bwki, Advocate for Respondent. Dates of hearing : 15 & 24-1-1989, 7-2-1989, 6-3-1989, 28 and 29-10-1989. judgment Ihsan-ul-llaq Chaudhary, J.-This is an appeal by the defendant/ appellant against order dated 14-5-1988. The relevant facts are that the respondents instituted a suit for recovery of Rs. 23, 83,893/- before the Special Judge Banking, Lahore . The notices were issued to the appellants for 28-2-1982. They entered '••appearance and submitted an application on 21-2-1982 under Order XXXVII Rule 3(1) for leave to appear and defend the suit. The parties appeared on 28-2- 1982. The learned Special Judge Banking was apprised that another suit was going on between the parties, therefore, this suit was adjourned to 26-4-1982. It was recorded on this date that the file had not been received and suit was adjourned to 31-5-1982 for further proceedings and from that dale to 29-6-1982 for the same purpose. However, on the said date the suit was dismissed under Order IX Rule 8 C.P.C. The respondent submitted an application under Order IX Rule 9 read with Section 151 C.P.C. on 21-7-1982. The same was, however, placed before the learned Presiding Officer on 9-9-1982, when notices were ordered to be issued to the other party for hearing at Multan . The appellants contested this petition and before this application could be disposed of, the law was amended. The result was that all matters pending before the Special Judge Banking and involving amount of over one million rupees were ordered to be transferred, to this Court. Thereafter this petition came up for consideration before the learned Single Judge in chamber. The petition was allowed vide order dated 14-5-88, after hearing the learned counsel for the parties. It is this order, which is subject matter of this appeal. 2. The appeal was admitted to regular hearing and notice issued to the respondent, who has entered appearance and contested the appeal. We have heard the learned counsel for the parties. The arguments addressed by learned counsel for the appellants in support of the appeal can conveniently be divided into two sets namely: -- (/)' attacking the petition for restoration, proceedings thereon and order of restoration; and (/'/) Maintainability, competency and merits of suit. The following points are covered by first category:-- Firstly, that the Bench of Lahore High Court at Multan has no jurisdiction to hear and decide the application for restoration of the suit. The matter should have been dealt with either at Principal Seat or at Bahawalpur Bench of the High Court. It could not have been Sent to Multan without obtaining judicial order to this effect; Secondly, that the petition for restoration was hopelessly time barred and the respondent manoeuvred to bring it within limitation. In this behalf reliance is placed on the case of A & B Oil Industries Ltd Karachi . Government of Pakistan (P.L.D. 1975 Karachi 439); Thirdly, that the petition under Order IX Rule 9 was not competent as the respondent-plaintiff had pleaded that it's representative was present on 29-6-1982. The argument is that when the plaintiff was represented then in case of dismissal of suit the application for restoration did not lie. In this behalf reference was made to P.L.D. 1954 Baghdad-ul-Jadeed 60; Fourthly, that neither the petition was moved by a competent person as according to the learned counsel for the appellants Abdul Aziz alleged Officer of the Bank had no authority, whatsoever, to move the petition nor the same was signed or verified as required under Order IV C.P.C., therefore, this was no application in the eye of law. In this behalf reference is made to cases reported as R.L.D., 1974 Lahore 173, P.L.D. 1966 Baghdad-ukFadeed 27, P.L.D. 1975 Karachi 182 and Alam&r and 8 others v. NasirAli and 8 others (1981 C.L.C. 375); Fifthly, that the affidavit of the learned counsel for the plaintiff in support of the application was vague, purposeless and inconsequential. Similarly, the affidavit of Abdul Aziz, so-called Bank Officer was of no help to the plaintiff. If these affidavits are excluded from consideration then there was nothing on record to support the application for restoration. The petition cannot be granted as a matter of grace. In this behalf reliance is placed on the cases of V. Manickam Pillai v. Mahudam Bathwnmal and others (1925 Madras 209), Tariq Jaffer v. National Bank of Pakistan and others. (1987 C.L.C. 2312), Muhammad Ghazanfar v. Ati Haider (1979 C.L.C. 84), A & B Oil Industries Ltd. Karachi v. Government of Pakistan and 3 others (P.L.D. 1975 Karachi 439) and KJian Bahadur H.M. Habibullalf v. SHdkh Mahboob Alam (P.L.D. (W.P.) Karachi 143); Sixthly, that the plaintiff is a corporate body and it can only function strictly in accordance with the provisions of law under which it was constituted. The argument is that Board constituted under section 13 of the I.D.B.P. Ordinance 31 of 1961 never authorised the filing of the petition for restoration and Abdul Aziz in any case was not authorised person. It is added that unconcerned persons cannot institute suits, petitions etc. In this behalf reliance was placed on the cases reported as Ma (Jvi and others v. Pat Lon (A.I.R. 1917 Lower Burma 36), 1980 C.L.C. 1375 (1382) and 1980 C.L.C. 1932; Seventhly, that Abdul Aziz was not competent to institute the petition. In this behalf reference is made to Order XXIX C.P.C It is added that action must be initiated on behalf of Company by the Authority in whom management vests; Eighthly, that there are no allegations in the petition that the Bank has instructed to file this petition. In this behalf reference is made to provisions of Order III Rule 2, Order VI rule 14 and case reported as 1981 C.L.C. 375; Ninthly, that the learned Single Judge committed an error while deciding the petition summarily. It is maintained that this was not possible according to law as the defence pleas required framing of issues and recording of evidence before the decision of the petition; and Tenthly, that the learned Single Judge in chamber wrongly concluded that,it was not a date of hearing. It is added that terms 'further proceedings' (J'/yl^/') and 'proper proceedings' ( &/&) are quite different and distincfin their import. It was a date of hearing and reliance is placed on the cases of Mst. Ghulam Saklna and 6 others v. Karim Bakhsh and 7 others (P.L.D. 1970 Lahore 412), Muhammad Hanif v. Province of Punjab through Director of Education, Lahore Region, Lahore and another (P.L.D. 1981 Lahore 95), Allah Ditto .Aziz Din (P.L.D. 1981 Lahore 508), Mst. Barkat Bibi and others v. Fateh Alt and others (P.L.D. 1949 Lahore 432), KJian Bahadur H.M. Habibuttah v. Sheikfi Mahboob Alam (P.L.D. 1959 (W.P.) Karachi 143), ZafarAli Nian and 6 others v. Haji Muhammad Zaman (P.L.D. 1981 Peshawar 151) and Mst. Akhtar Begum v. Muhammad Hussain and another (1981 C.L.C. 146). In the alternative it is argued that if it was not a date of hearing then there could not have been a petition for restoration of the suit. 3. On the other hand, the learned counsel.for the respondent has raised following preliminary objections:— (/) That. < the appeal is not competent against an interlocutory order. It is .argued that the appeal can be maintained as per Section 12 of the "Ordinance when through the order or judgment the whole matter is decided and not otherwise. It is added that the legislature in its wisdom has promulgated the Special Act to deal with the matters summarily and speedily. It is submitted that if the Section 7(1) and proviso to Section 12 are read together then it is clear that the interim orders of this nature are not open to challenge in appeal. It is added that word 'case' used in the Section 12 is much limited in scope than the same word used in Section 115 C.P.C. It is explained that by adding proviso the scope of word 'case' has been curtailed and limited. In this behalf reliance was placed on the judgment in case of Muhammad Ayub Butt v. Allied Bank and another (P.L.D. 1981 S.C. 359), Crescent Factories Vegetable Ghee Mills and 5 others v. N.B.P. and another (P.L.D. 1985 Lahore 150), Bank of America v. Alam Brothers and 6 others (1984 C.L.C. 3393) and Oriental Fashions Ltd. and 4 others v. National Bank of Pakistan (P.L.D. 1985 Karachi 178); («) That C.P.C. as it was not applicable to the proceedings before the Tribunal constituted under Banking Recovery Ordinance. In this behalf reference is made to Section 3, Section 7, Section 11 and Section 12 of the Ordinance and Section 4 and Order XXXVII of C.P.C. The objection in nutshell is that although the Tribunal can press into service the procedural and enabling provisions yet it cannot resort to the penal provisions. It is concluded that the Special Judge Banking had no jurisdiction to dismiss the suit for non-prosecution and this error of jurisdiction could be corrected under inherent powers as well as under section 21 of the General Clauses Act. 4. The learned counsel for the appellants in reply to the preliminary objections has argued that the word 'case' is wide enough to cover within its folds the decision on applications as well. It is added that so far as the application is concerned the impugned order is the end-product. The learned counsel in this behalf has relied on the cases of Buddlioo Lai and another v. Mewa Ram (A.I.R. 1921 Allahabad 1), Bashir Ahmad KJian v. QaiserAli KJian and 2 others (P.L.D. 1973 S.C. 507), Nazeer Ahmad v. Additional District Judge, Muzaffargarh and others (1983 C.L.C. 113), Messrs. Gupta & Co. v. Messrs. Kirpa Ram Brothers (AJ.R. 1934 Allahabad 620), Muhammad Ismail v. District Judge, Sargodha and 4 others (1981 C.L.C. 361), Chautala Workers Co-operative Transport Society Ltd. And another v. State of Punjab and others (AJ.R. 1962> Punjab 94), Mt Golab Kuer and another v. Mt, Bibi Saira and others (AJ.R. 1919 Patna 372) and SaklmwalAli and another v. Mst. Shui Klielay (P.L.D. 1981 S.C. 454). It is, in reply to the other objection, argued that the C.P.C. is applicable to the suits under the Banking Companies (Recovery of Loans) Ordinance, 1979 as is clear from Sections 3, 6, and 7 of the Ordinance and Section 4 of the C.P.C. 5. On m rits it was argued on behalf of the plaintiff that when the orders dated 28-2-1982, 26-4-1982, 31-5-1982 and 29-6-1982 are read together then the irresistible conclusion is that the suit was not fixed for any definite proceedings rather the learned Banking Judge was not sure of the next step in the proceedings. Therefore, 29-6-1982 cannot be termed as a date of hearing by any stretch of imagination and as such the suit could not have been dismissed for nonprosecution. In this behalf reliance is placed on the decision of Hon'ble Supreme Court in the case of Manager Jammu & Kashmir State property v. Kfiuda Yar and another (P.L.D. 1975 S.C. 678). 6. It was argued in reply to the jurisdiction of Multan Bench that suit was being tried throughout at Multan, therefore, rightly sent to Multan Bench after the amendment of the Banking Courts Ordinance. It was never tried either at Lahore or at Bahwalf/ur. It is added that the appellants never raised a little finger as to the trial of the suit at Multan by the Special Judge Banking, therefore, the objection is without basis. It was submitted that the objection, that neither the petition was competent nor moved by a competent person, is legally and factually incorrect. It was maintained that the petition had been moved competently and by a competent person. It was added that the appellants have raised all sorts of frivolous and baseless pleas without reference to the record and law. It is submitted that the application was moved by the learned counsel for the plaintiff under his own signatures and was supported by his own affidavit while affidavit of Abdul Aziz was also appended in support of the petition. This way it cannot be concluded by any logic that the petition was moved by said Abdul Aziz. The arguments are concluded with the submission that once learned counsel was appointed then he will remain incharge of the cause till his power of attorney was terminated with the leave of Court. He was not only competent to file the petition but also could have filed appeal etc. 7. The next argument on behalf of the respondent was that since the suit could not be dismissed, therefore, the Court could undo the wrong done to the plaintiff suo motu or under its inherent powers. 8. The appellants have no right to appear and participate in the proceedings until leave to appear and defend was granted, therefore, the proceedings were trictly between the Court and plaintiff. The defendant cannot impugn the' order so passed otherwise it will defeat the very purpose of enacting the Banking Courts Ordinance and making Order XXXVII C.P.C. applicable to the suits. 9. Now we take up the second set of the objections as to the competency etc. of the suit. The same are noted as under:- (i) That the suit was wholly incompetent and Court had no jurisdiction to entertain it, therefore, whole proceedings were incompetent, null and void. The application could neither have been filed nor Court had jurisdiction to entertain it; (ji) That the person, who has filed the suit had no authority and power. The Board of the plaintiff Bank did not pass any resolution for institution of the suit; (ill) That the plaintiff as per provisions of C.P.C. was bound to plead facts showing the jurisdiction of Court. The plaintiff was also to disclose the facts constituting cause of action. Its failure to show cause of action and jurisdiction renders the suit incompetent; (iv) That according to law defendant must be borrower and the suit must relate to loan obtained from the Bank. Since there were no such allegations in the plaint, therefore, suit was incompetent; (v) The contention that the plaintiff has the right to invoke jurisdiction in itself is in-sufficient. It should have been clearly pleaded that the defendants are borrowers. It was added that the defendants never obtained any money from the plaintiff in foreign or Pak currency. There was no loan because in case of loan there must be a payment of money to the borrower or to concerned person in pursuance of the contract entered into by the borrower. There is even no such contract; (v/) That the suit was time barred; (vii) That the plaintiff was to state in the plaint as to whether the loan was paid to the borrower and how it was paid. In the instant case there is no such statement. It is added that the plaintiff was to further plead how the loan was repayable; (v//V) That in the agreement the plaintiff had agreed to provide credit to the defendants but there was no machinery provided how the payment was to be made; (ix) That the suit was malafide filed under the Banking Companies (Recovery of Loans) Ordinance, 1979; (r) That the agreement was not properly stamped and the proceedings were without jurisdiction for want of proper stamp. The defendant should not have been summoned at all; and (xi) That the agreement is purported to be signed on behalf of the plaintiff by Regional Manager and there is nothing in the plaint that he possessed authority to enter into the contract and to execute this agreement on behalf of the plaintiff. 10. The learned counsel for the appellants in this way mostly consumed the time in pressing the arguments on the merits of suit. He had to be repeatedly reminded that the appeal was directed against the order passed on the application for restoration of the suit, therefore, the merits of the suit were irrelevant for decision of this appeal. The appellants can raise all these pleas when the suit is. taken up. The learned counsel insisted that the suit was incompetent and the person filing it had no authority. Therefore, the Court has no jurisdiction and all proceedings are rendered null and void and without jurisdiction. We are afraid, we cannot accept these arguments of the learned counsel for the appellants as it will amount to adjudication of the main suit. It is not the subject-matter of this appeal. The suit is not before us, therefore, how we can deal with its merits? It will deprive either of the parties of the right of hearing in the original forum. We cannot usurp the jurisdiction of learned Judge in chamber, who is to adjudicate upon the suit in exercise of civil original jurisdiction. 11. The arguments are even against the very purpose of law. If the appellants can raise all these points in an ancillary j§alter then what is the purpose of petition for leave to appear and defend? We are not tempted to adjudicate upon merits of suit because the same are beyond the scope of this appeal. In short since the suit is not before us, therefore, there is no occasion to adjudicate upon its merits. 12. Before proceeding with the technical objections of both sides, it is relevant to briefly refer to the interim orders. The suit was instituted on 26-.1-1982 and notices were issued to the appellants for 28-2-1982. The appellants were served and they moved an application under Order XXXVII Rule 3(1) on 21-2- 1982. The Reader of learned Special Judge recorded that the learned Presiding Officer was on tour to Rawalpindi, therefore, this petition be put up on 28-2-1982 at Multan. No proceedings were taken on this petition. On the other hand, it was reported on next date that another suit was pending between the parties in civil Court, therefore, the suit was adjourned to 26-4-1982. The interim order reads as under:-- In the first instance it was recorded that the file has not been received and thereafter the suit was adjourned for further proceedings to 31-5-1982 and then to 29-6-1982. The interim order reads as under:-- The suit was, however, dismissed for non-prosecution on this date. The interim order reads as under:-- These orders clearly show that the suit was not fixed for any definite proceedings. So much so, even the petition for leave to appear and defend submitted by tie appellants was not taken up. It seems that the learned Sepcial Judge was not clear as to which way to proceed. He was probably trying to find out whether the suit was barred under section 10 C.P.C. and for that purpose he required file of the other suit referred to." It is not clear which party pointed out as to the other suit There are no particulars of the suit like title, date and name of the Court. The learned Single Judge in chamber, in this view of the matter, concluded that it was not a date of hearing, therefore, the suit could not have been dismissed. We do not find anything wromg factually or legally with these findings. 13. Once these findings were recorded then it was not possible to withhold the order of restoration on any ground because if the suit was illegally dismissed. then it was for the Court to undo the wrong done to the plaintiff. No party can be made to suffer for an act of Court. The learned Single Judge in chamber has elaborately dealt with this matter and we do not find anything to differ with the findings recorded by the learned Single Judge. The learned counsel for the appellants has referred to the case of Allah Ditto .Aziz Din (P.L.D. 1981 Lahore 508). If the same is minutely gone into, it becomes clear that it demolishes the entire edifice of the arguments of the learned counsel for the appellants. It was held in this case that order of dismissal on a date other than date of hearing is void ab initio, without jurisdiction and nullity in the eye of law. 14. Now we take up the preliminary objection of the learned counsel for the respondent that appeal is not competent. The learned counsel for the respondent has argued that the purpose of enacting Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX) was to provide a special forum for expeditious disposal of the matters. The learned counsel, in this behalf, has referred to Sections 7,11 and 12. The arguments in nut-shell were that the legislature in order to achieve the object of he expeditious disposal of the matters by the Special Court, on the one hand made provision for expeditious disposal and on the other hand, gave finality to the orders and judgments of the Special Court. The right of appeal was, also, abridged. Before proceeding any further it is worthwhile to reproduce Section 12 of the Ordinance, which reads as under:— "12. Appeals. (1) Any person aggrieved by any order., judgment, decree or sentence of a Special Court may, within thirty days of such order, judgment, decree or sentence, prefer an appeal to the High Court within whose jurisdiction the order, judgment, decree or sentence is passed: Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court. (2) An appeal under sub-section (1) shall be on any one of the following grounds, namely:— (a) the decision being contrary to law or to some usage having the force of law, or (ft) the decision having failed to determine a material issue of law or usage having the force of law, or (c) a substantial error apparent in the procedure provided by or under this Ordinance, which may possibly have produced error in the decision on merits. (3) An appeal may be preferred under this section from decision made ex parts. (4) An appeal under this section shall be heard by a Bench of not less than two Judges. (5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount." The following are the ingredients of this section:-- (a) That person aggrieved by an order, judgment and decree etc. can maintain an appeal; (b) Appeal to be preferred within 30 days; (c) No appeal shall lie against the interlocutory order, which does not dispose of the entire case; (d} Appeal shall be on the grounds specified in Sub-section (2); (e) Appeal is competent against an ex-parte decision; (/) Appeal to be heard by not less than two Judges; and (g) Appeal not to be admitted to hearing unless the appellant has deposited in cash or furnishes security for the amount. 15. Now if the proviso to Sub-section (1) and Sub-section (5) are read together than it is clear that appeal against orders, decisions made on ancillary applications or matters is not competent. The legislature in its wisdom curbed the right of appeal while enacting proviso, therefore, now to successfully maintain an appeal, the appellant has to satisfy that the entire case has been disposed of. This is not all but even the pending appeals were made subject to proviso as is clear from Section 13 of the Ordinance. 16. The learned counsel for the appellants, on the other hand, argued that the term 'interlocutory orders' only occurred in Order XXXIX before Rule 6 otherwise this term, has not been used anywhere in the C.P.C. The argument is that the interlocutory orders are to be the orders of the type mentioned in Order XXXIX C.P.C. It is further added that the word 'case' has been used in ection 115 C.P.C. and the superior Courts have held that it includes decision of application. In this behalf reliance is placed on the cases of Shuja-ul-Miilk . Finn Abdul Ghafoor-Abdul Qadim P.L.D. 1964 (W.P.) Peshawar 110), Mst. Murad Jratoon v. Mst. Fattal (P.L.D. 1950 Baghadad-ul-Jadid 98), 5. Zafar Ahmad v. Abdul Kiialiq (P.L.D. 1964 (W.P.) Karachi 149), Umar Dad KJian nd another v. Tila Muhammad Klian and 14 others (P.L.D. 1970 S.Ct 288), Abdul Shakoor v. Abdul Rasool (P.L.D. 1963 (W.P.) Karachi 356), Ghulab and another v. Fazal Ilahi ' (P.L.D. 1955 Lahore 26), Ram Samp v. Gaya Prasad (1925 Allahabad 610) while on point of competency of appeal, the learned counsel has referred to cases of Radha Mohan Datt, Silk Merchant v. Abbas AH Biswas and others (A.I.R. 1931 Allahabad 294), Afct. Razia Bagum v. Chainnan, Intermediate and Secondary Board, Mirpur (1979 C.L.C. 28 ), Baijnath v. Ram Narain and others (A.I.R. 1941 Oudh 367) and Krishna Saroop . Raj Bahadur Singh (A.I.R. 1931 Allahabad 452). 17. We have given our anxious considerations to the arguments of both sides. The reference of the learned counsel to Section 115 C.P.C. for purposes of determining the meaning of the word 'case' is not relevant because there is no such proviso to Section 115 C.P.C. as is the case of Section 12 of the Ordinance. Similarly, the term 'interlocutory order' cannot be assigned the same meaning as in the Order XXXIX. The reference is again irrelevant. If the argument of the learned counsel is accepted then the wording following the 'interlocutory order' becomes meaningless and redundant. Since redundancy cannot be attributed to the legislature, therefore, the argument has no merit. 18. We find merit in the preliminary objection raised by the learned counsel for the respondent that appeal against an order is not competent until and unless it disposes of the entire case before the Special Court. It is a matter of common knowledge that entire matter cannot be disposed of while disposing of the application for injunction, attachment etc. Therefore, the term interlocutory order cannot be assigned the same meaning and scope as hi Order XXXIX C.P.C. The interpretation we are adopting further finds support from Sub-section (5) of Section 12 which opens with the words 'no appeal'. It is clear from this wording too that appeal can be maintained only when the entire case has been disposed of. The legislature has used the word without any qualification or specification or categorization. It is not applicable to certain types of appeals only but it is applicable to all appeals. The same is the position of pending appeals as per Section 13 of the Ordinance. 19. The order subject-matter of the appeal is not only interlocutory order but through this order the entire case has not been disposed of. It is only the application for restoration of the suit which has been disposed of. This is not all. The appellants themselves have treated the same as an interlocutory order while serving the plaintiff with notice under Order XLIII Rule 3 C.P.C., before filing of the appeal, therefore, they cannot now argue that the order was final and appealable. ' 20. The word 'interlocutory order;' has not been defined anywhere either in the C.P.C. or in the Banking Companies (Recovery of Loans) Ordinance, 1979. The appeals were made competent under C.P.C. against orders covered by Order XLIII but the legislature under the Ordinance after making provision for an appeal against an order proceeded to qualify by adding proviso to Sub-section (1) that no appeal shall lie against an interlocutory order which does not dispose of the entire case. It is thus clear that the word 'interlocutory order' has been used in contradistinction to the term "order". The legislature, in order to achieve the object that appeal shall lie only against the final order, did not stop after egislating that no appeal shall lie against interlocutory order but further qualified the interlocutory order which does not dispose of the entire case. The .intention of the legislature is thus crystal clear from the language employed in the proviso that appeal can only be maintained against last or final order. The precedents relied by the learned counsel for the apellants are not relevant and we respectfully following the judgments in the cases of Muhammad Ayub Butt, Crescent Factories Vegetable Ghee Mills and 5 others and Bank of America uphold the preliminary objection. 21. The other preliminary objection of the learned counsel for the respondent was that the appellants cannot maintain the appeal for the reasons that they have not been allowed leave to appear and defend the suit, therefore, they had no right to resist the application for restoration of the suit. The same was matter strictly between the Court and the plaintiff. The learned counsel went on to submit that since the appellants have no vested right to be represented at the stage of the application for restoration, therefore, they cannot maintain an appeal. It is concluded with the submission that the appellants are trying to argue the merits of the suit without having obtained leave to appear and defend. It is maintained that this is against the very scheme and purpose of Banking Ordinance as well as Order XXXVII C.P.C. The objection has merit. 22. Now coming to the arguments of the learned counsel for the appellants, we first take up the argument as to the jurisdiction of Multan Bench of Lahore High Court to deal with the suit. The suit was throughout being taken up at Multan by the learned Special Judge before its transfer to the High Court. It was, in this view of the matter, that the learned Special Judge after amendment of the Ordinance transferred the file to this Bench. It is clear from the first order dated 26-1-1982 that the notices were issued to the appellants for appearance at Multan. The application of the appellants for leave to appear and defend was also fixed for hearing at Mullan. This is not all. The proceedings in the application for restoration were also conducted at Multan as is clear from interim order dated 19- 9-1982. In this view of the matter, the file was rightly transmitted to this Bench of the Lahore High Court. The other objection was that the petition for restoration was hopelessly time barred. The argument was that although the petition was shown to have been iled on 21-7-1982 yet in-fact it was filed much later as is clear from the fact that it was put up before the Jearned Special Judge Banking for the first time on 9-9- 1982. The argument is falsified by the record. According to the report of the Ahlmad, the petition was filed on 21-7-1982 and same was fixed for 9-9-1982 for hearing. In this view of the matter, there is no merit in the plea of the appellants. The next submission was that since it was pleaded in the application that representative of the Bank was present on 29-6-1982, therefore, the application under Order IX Rule 9 C.P.C. was not competent. The argument is clearly misconceived. The petitioner Bank has shown that the learned Special Judge did not proceed in accordance with law and the order was illegal, therefore, the absence or presence of the representative of the petitioner is of no consequence. Whether he was present or not it will not make any difference. We may observe here that it is not clear from the order dated 29-6-1982 that the suit was kept in waiting. On the other hand, the order shows that it was called at about 11.00 a.m. and dismissed for non-prosecution. Even if looked at from this angle the order is bad in law. The learned Special Judge Banking should have kept the matter in waiting and resorted to the order of dismissal towards the end of the day. The case of Punjab & Kashmir Bank Ltd. v. Sh. Mahboob Alain (P.L.D. 1966 (W.P.) Lahore 356) cited on behalf of the" appellants goes against them. The relevant para reads as under:-- "5. Quite apart from the above aspect of the matter, it is difficult to get rid of the impression that the learned Civil Judge, who dismissed the suit acted hastily, in contravention of the clear instructions in High Court Rules & Orders Volume I, Part J, Ch. I. In Rules 5 and 6, ibid, the general tendency among judicial officers to dismiss cases in default hastily is deprecated in no unmistakable terms. Rule 6 reads:-- "Some judicial officers are inclined to dismiss cases in default hastily in order to show an increased out-turn. This tendency must be strontly deprecated. No case should be dismissed without giving a party reasonable opportunity to appear as indicated above ................................. When a suit or application is dismissed in default, the exact time of dismissal should be noted in the order by the Presiding Officer in his own hand." The order of dismissal does not show that the learned Civil Judge cared to wait for the plaintiffs counsel to appear. The exact hour of dismissal is not indicated on the file. It seems that no sooner the case was called, than it was dismissed because nobody immediately turned up to appear in response to the call. As pointed in rule 5 ibid, it is impossible to expect a man to remain in constat attendance for the whole of the time during which the Court is sitting." 26. It was vehemently argued that Abdul Aziz was not competent to move the application, therefore, the whole proceedings on the application were illegal and without jurisdiction. The unfortunate aspect of the matter is that most of the arguments were raised without reference to the record, which revealed that the petition was not moved by Abdul Aziz, the alleged Bank Officer but in-fact it was moved by the Bank's learned counsel, who, as already noted, has appended his own signatures on the petition and it was supported by his affidavit. It is true that the second affidavit appended with the application is that of said Abdul Aziz but from this it cannot be concluded that the petition was moved by said Abdul Aziz. On the other hand, the petition is clearly moved by the learned counsel for the Bank whose power of attorney had already been filed alongwith the plaint. The power of attorney of a counsel shall be deemed to be in force as per Rule 4(2) of Order III C.P.C. unitl either it is determined with the leave of Court, or client or pleader dies, or proceedings in the suit are concluded as far as the client is concerned. It was not the case here. The result was that the learned counsel continued to be Advocate of the plaintiff. Therefore, the learned counsel for the respondent has rightly urged that the petition was competently filed. The learned counsel relied on the case of Alamgir and others. The same does not advance the case of the appellants. In this case the object of appending signatures was explained with reference to Order VI Rule 16 C.P.C. It was held that irregularity in signatures or verification was a mere defect of procedure. One of us (Ihsan-ul- Haq Chaudhary, J) has dealt with defective or lack of signatures, verification on the pleadings or power of attorney in case of Shadoo Muhammad KJian v. Ganmoon and 2 others (P.L.J. 1989 Lahore 566). The relevant portion reads as under:-- "16. The result is that the defects in the pleadings, applications, memorandum of appeal with regard to presentation, signing and verification are technical irregularities relating to matter of procedure and same cannot furnish basis for rejection of plaint, application or memorandum of appeal. The same can be rectified at any stage of the proceedings." The fifth submission was that affidavits appended with the application are vague, purposeless and in-consequential. Since we have held that the order of the learned Special Judge Banking dismissing the suit was illegal and wrong, therefore, even if the affidavits are excluded still it was the duty of the Court to undo the wrong done to the plaintiff by an act of Court. The next submission was that no resolution was passed, no permission granted, no instructions issued to present the application. The authorization to file the suit covers all acts flowing from the suit. Neither there was any necessity of further and fresh resolution of the board nor authorization by anyone was required to move the application. The purpose of the law is not that for each and every application there has to be a fresh resolution and authorization. In the seventh place it was submitted that Abdul Aziz was not authorized to move the application. We have already held while dealing with fourth point that application was moved by the learned counsel for the Bank and not by the said Abdul Aziz. Suffice here to observe that so long as the Bank did not object to the actions of said Abdul Aziz, the same will be deemed to be competently done. The authorization, in given circumstances, can be even oral. The next argument was repetition of the arguments noted at number 4 and 7. No further instructions were required for submission of application for restoration of the suit. The next argument was that the petition should not have been decided summarily. The learned Single Judge should have framed issues, recorded evidence and then decided the application. The argument is not only against the very purpose of enacting Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX) but also against the purpose of Order XXXVII. It sounds strange and llogical that the proceedings in the main suit should be summary while proceedings on the ancillary applications should be on the pattern of a regular suit. The application was supported by two affidavits. The appellants did not call for the deponents for cross-examination, therefore, whatever was stated there would be deemed to be correct. This is not all. We have already held that the suit was wrongly and illegally dismissed, therefore, it was the duty of the learned Special Judge Banking to restore the same. The suit was not only dismissed on a date which was not a 'date of hearing' but also, dismissed on first call in early hours. The learned Special Judge did not consider that sometimes it is humanly impossible to remain in attendance throughout the day and enter appearance whenever the case is called. Since the order of dismissal of the suit was patently illegal and void, therefore, there was no need to frame issues and record evidence. The suit was rightly restored. The relevant portion of judgment of learned Single Judge in chamber reads as under:-- "15. Counsel deposed in the affidavit to have been indisposed. That was enough for all purposes especially when it was not controverted by a like affidavit. The view I have formed above as to the order of "Mazeed Karvai", does not leave behind any room for insisting upon the petitioner- Bank to explain their absence on the particular date. They could remain absent with impunity without any obligation to explain their absence. It was not a 'hearing' of the case and the suit could not have been made the subject matter of dismissal for default." 33. The last argument, was that the terms further proceedings and proper proceedings ( fitS(s) are quite different and distinct in their import. We may observe in the very' outset that so far as the law is concerned neither there is mention of 'further proceedings' nor of 'proper proceedings' in the C.P.C. These terms have been coined by the Courts for their own convenience. The terms are being used interchangeably and convey the same sense. The learned Single Judge in chamber has dealt with the phrase further proceedings at length with reference to precedents of superior Courts and we do not find any reason to differ with this view. It is absolutely clear from the interim orders passed by the learned Special Judge Banking that he was not sure in which direction to proceed. It was pointed out on 28-2-1982 that some other litigation was going on between the parties. It were presumbly the appellants, who whispered about those proceedings. The Special Judge Banking without pausing for a moment and applying his mind adjourned the suit to 26-4-1982. It is clear from the order dated 28-2-1982 itself that the suit was not fixed for any proceedings, whatsoever. It was simply an adjournment and this order was followed by orders dated 26-4-1982 and 31.-5- 1982 adjourning the case for further proceedings. When the Court has failed to take any proceedings on the fixed date then what does it mean by further ~ proceedings? In-fact the order dated 28-2-1982 is key to understand and interpret the subsequent orders and it is patently clear from this order that the Court was proceeding in vacuum. The proceedings were adjourned without any object, therefore, the 'further proceedings' cannot mean anything except that the Court . was yet to determine the proceedings to be held. In a suit under Order XXXVII the only proceeding possible after the submission of application for grant of leave to appear and defend is to decide this petition. It is true that when somebody stated in the Court that another suit was pending, the learned Special Judge could have paused for a moment to determine whether the present suit was liable to be stayed under section 10 C.P.C. or not. But this could only be done after the copies of the plaint in the civil suit were placed on record. It is clear from the file that neither of the parties were directed to submit the certified copies of the plaint of the civil suit nor file was requisitioned. Therefore, even it cannot be said that the Court was to decide whether proceeding in the present suit were liable to be stayed or not. We once again, at the cost of repetition, revert to order dated 28-2-1982. It is absolutely silent as to the purpose for which adjournment was granted. The subsequent orders are to be read and understood in the light of this basic order. 36 We are constrained to observe that the learned Special Judge Banking proceeded in a very casual manner with a suit involving a substantial amount of over twenty lacs. The appellants have submitted an application for leave to appear and defend the suit. The same was fixed for 28-2-1982. The learned Special Judge even failed to take notice of the same and what to talk of taking the proceedings in the main suit which was just adjourned purposelessly. In this view of the matter, the phraseology, further proceedings (j^^jfyj) used by the learned Special Judge can be interpreted to mean that the Court was yet to determine the proceedings to be taken in the suit. Once this is the conclusion of facts of the case then Order IX Rule 9 applies. Even if we hold that order IX Rule 9 is not applicable still a Court which passed an order is fully competent to undo the same under section 21 of the General Clauses Act. If it is held that there is no provision to deal with such a situation then the matter will be covered by the inherent powers. It cannot be held that there is no provision in the law to redress the grievance of a party as to a wrong done to it by an illegal order of a Court. 37. The upshot of this discussion is that the appeal is dismissed with costs both as being incompetent as well as on merits. (MBC) Appeal dismissed.

PLJ 1990 Lahore 183 PLJ 1990 Lahore 183 Present: MUNIR A. sheikh, J MUHAMMAD ALI etc.-Petitioners versus JAM LALU-Respondent Civil Revision No. 736-D of 1989, dismissed on 6.12.1989. (i) Punjab pre-emption Act, 1913 (I of 1913)-- —-S.15-Pre-emption-Suit for-Sale made after 31.7.1986-Whether condition of making Talabs necessary-Question of-It has been held by Supreme Court in Ahmad's case that Section 15 fourthly of Punjab Pre-emption Act was not examined in Said Kamal Shah's case and it was not declared to be repugnant to Islam-Held: It is clear that a co-sharer could maintain suit in respect of sale made even after 31.7.1986 without fulfilment of requirement of Talabs. [Pp. 184&185JA&B PLJ 1989 SC 574 and PLJ 1986 SC 576 ref. (ii) Punjab Pre-emption Act, 1913 (I of 1913)- —S. 30 read with Limitation Act, 1908, Articles. 10 & 120-Pre-emption-Suit for-Sale made after 31.7.19S6--Limitation for pre-emption suit- Determination of-Contenlion that Section 30 of Pre-emption Act which provides limitation, having been adjudged as repugnant to Injunctions of Islam in Said Kamal's case, period of limitation should be construed to be reasonable period—Provisions of Constitution do not provide that mere recommendations of Federal Shariat Court or Shariat Appellate Bench could be enforced as law enacted—Held: Section 30 having been declared as repugnant, period of limitation would be governed by general provisions of Limitation Act and if those provisions are applied, sale having been made orally through mutation, suit was cither governed by Art. 10 or residuary Article 120 of Limitation Act under which period of Limitation would be six years. [P.185]C. PLJ 1986 SC 576 re/. (iii) Waiver- —Waiver-Principle of-Pre-emption right-Whether waived by respondent-­Question of-Lower appellate court has recorded finding of facts on careful and elaborate appraisal of evidence-Alleged presence of respondent at time of sale was rightly held to be not sufficient to hold that he waived his right of pre-emption-Held: No material irregularity and illegality has been committed by lower appellate court in decreeing suit-Held further: No case has been made out for misreading or mis-construction of record-Petition dismissed. [P.186]D,E&F Mian M. Zafar Yasin, Advocate for Petitioner. Date of hearing: 6.12.1989. ordi;r In this revision petition Judgment and decree dated 15-11-1989 passed by learned lower appellate Court decreeing the suit of respondent for possession of land through preemption has been challenged. Learned counsel for the petitioners argued that the suit was barred by time, no decree could be passed in favour of respondent as co-sharer unless Talabs were made and that the respondent had waived his right of preemption. To elaborate his contentions, learned counsel for the petitioners argued that the rule laid down in judgment reported as Ahmad and others v. Abdul Aziz and others (P.L.D. 1989 S.C. 771 = PLJ 1989 SC 574) was not applicable to a case of a co-sharer of khata if the sale was made after the date fixed in the judgment of Said Kamal Shah's case i.e. 31-7-1986 therefore Section 15 conferring right of a co-sharer would be deemed to be qualified with further condition of making Talabs. I am afraid, the argument has no force. The relevant portion of Ahmad's case is reproduced below:— "Under Chapter 3-A of Constitution, Court has been given power of applying test of repugnancy of giving a prospective declaration of repugnancy and of striking down prospectivcly a provision of law under challenge or under examination-Court is not empowered to legislate, to engraft its observations, findings or declaration on law not held to be repugnant and otherwise allowed to hold field-Held, Talabs cannot be imported or engrafted into left over statutory provisions of pre-emption law not challenged, not examined and allowed to remain intact for time being". It has also been further held in this case that Section 15 fourthly of the Punjab Preemption Act was not examined in Said Kamal Shah's case and it was not declared to be repugnant to Islam. In this view of the matter, it is clear that a cosharer could maintain the suit in respect of sale made even after 31-7-1986 without fulfillment of requirement of Talabs. The argument is therefore repelled. 4. The main burden of argument presented by the learned counsel for thcpetitioncrs on the question of limitation was that Section 30 of the Punjab Preemption Act which prescribed period of limitation for filing preemption suit where the sale was oral followed by sanction of mutation was adjudged to be repugnant to Islam in Said Kamal Shah's case and it ceased to be the law after 31- 7-1986 as such the period of limitation for filing such suit should be construed to be reasonable period as suggested in the said judgment and the amendment/prom ulgatoin of law to that effect was proposed. In my view, the fallacy of this argument consisted in assuming that recommendations of the Federal Shariat Court or Appellate Shariat Bench, for making amendments in the existing law could themselves become operative as law itself and could be enforced as such. This argument is plainly contrary to the provisions of the Constitution which do not provide that the mere recommendations, could be enforced as the law enacted having come into force. The rule of interpretation laid down in Ahmad's case by the Supreme Court is beyond ambiguity on this point that the Federal Shariat Court and for that matter, the Appellate Shariat Bench have not been conferred with the authority to legislate. After Section 30 of the Punjab Preemption Act, as argued ceased to have effect w.e.f 31-7-1986 as law and was no more operative, it does not help the petitioners inasmuch as in that case the period of limitation for filing such a suit would be governed and regulated by the general provisions of the Limitation Act and if those provisions are applied, the period of limitation would still be more than what was prescribed under section 30 of the Punjab Preemption Act because the sale in this case having been made orally through mutation, the suit was either governed by Article 10 of the Limitation Act, or residuary Article 120 under which the period of limitation would be six years. 5. Faced wih this difficulty, learned counsel for the petitioners tried to over­ come it by arguing that it has been observed in Said Kamal Shah's case that the Court should not be understood to have held that after striking down provisions of Section 30 of the Punjab Preemption Act, the other provisions of Limitation Act were treated to be in accord with the injunctions of Islam as such the provisions of Limitation Act should also be deemed to have been adjudged as Repugnant to Islam. I am afraid, in my opinion the argument is plainly unsound. According to rule of interpretation laid down in Ahmad's case by the Supreme Court no law could cease to operate being repugnant to injunction of Islam unless the same was examined by Federal Shariat Court or Appellate Shariat Bench and it was so expressly declared. The provisions of limitation Act were not examined by the Federal Shariat Court or Appellate Shariat Bench, as such from the mere observation made in respect thereto, it could not be construed that the same was examined and declared as repugnant to injunctions Islam. For the foregoing reasons, the objection regarding limitation is found to be without substance which is hereby repelled. Coming to the point of waiver, the learned lower appellate Court has recorded finding of facts on careful and elaborate appraisal of evidence. It has been rightly held that mere alleged presence of the respondent at the time of sale was not sufficient evidence to hold that he waived his right of preemption. The evidence of the petitioners that the respondent was asked to purchase the land was not also found to be creditworthy because it was not stated as to at what price the respondent was offered to purchase the land and further that the land was sold by Mst. Ghulam Jannat and the evidence was given that D.W. Muhammad Afzal offered respondent to purchase the land. It was rightly held by learned lower appellate Court that there was no evidence that vendor offered the respondent to purchase the land. No material irregularity and illegality has been committed by the learned lower appellate Court in decreeing the suit as the respondent being co-sharer in Khata was rightly held to be entitled to preempt the land which finding of fact was not questioned by the learned counsel as it was not argued that respondent was not the co-sharer. For the foregoing reasons, no case having been made out for mis-reading or mis-construction of the record in recording findings of facts by the learned lower appellate Court, the revision petition fails which is hereby dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 187 PLJ 1990 Lahore 187 Present: MIAN NAZIR AKHTAR, J SHAHZAD MUNAWAR BUTT--Petitioner versus VICE CHANCELLOR, UNIVERSITY OF THE PUNJAB and 2 others-­Respondents Writ Petition No. 4700 of 1989, accepted on 20.8.1989. Punjab University Calendar Volume I- —Reg. 6-Answer Book-Loss of~Average marks-Award of~Prayer for~In case answer book of a candidate is lost after its receipt by an examiner, candidate is entitled as of right to be awarded average marks obtained by him in other papers-However, candidate has option either to avail of averge marks or to re-appear in that paper-Held: In paper I Pharmaceutical Chemistry (Physical), which was lost due to negligence of respondents, petitioner is entitled to award of average marks obtained by him in other papers—Petition accepted. [Pp. 188&190]A,B&C Mr. Ghaus Muhammad Chaudhary, Advocate for Petitioner. • Ch. Muhammad Farooq, Advocate for Respondents. Date of hearing : 20-8-1989. judgment I had allowed this writ petition by the following short order passed on 20-8- 1989:-- "For the reasons to be separately recorded later, this petition is allowed with no order as to costs. In paper I-Written (Pharmaceutical Chemistry- II Physical), which was lost, the petitioner is entitled to the award of average marks obtained by him in other papers in accordance with the proviso to Regulation 6 of the Punjab University Calendar, Volume I, relating to the conduct of examinations." This order contains the detailed reasons and be read as part of the order dated 20-8-1989. 2. The petitioner had appeared in the Second Annual Examination of Second Professional B. Pharmacy held in January, 1989, under Roll No. 2037. The petitioner's result was declared on 23-4-1989 and according to the Result Card, he obtained the following marks in different papers:-- (1) Pharmaceutical Chemistry II 103/200 (Physical) Pharmaceutics. II (Galenical 111/200 Pharmacy and preparations) Pharmacognosy I 113/200 Pharmacology I 116/200 Islamiyat/Ethics 53/200 and Pakistan Studies However, the petitioner was declared failed in paper 1 because he was shown to have obtained 40/100 marks in the written paper and 63/100 in the practical. The petitioner was not satisfied with the marking in the written paper and applied for re-checking the said paper. On 20-7-1989, the petitioner was intimated by the Controller of Examinations that script relating to paper 1 Pharmaceutical Chemistry II (Physical) was not traceable. In the meanwhile, the petitioner had obtained admission in the third Professional of B-Pharmacy and had been regularly attending his classes. The learned counsel for the petitioner urged that the petitioner had obtained above 50 per cent marks in the other papers and was entitled to be given at least 56 per cent marks in the paper which had been lost, in accordance with the proviso under regulation No. 6 of the Punjab University Calendar Volume-I. On the other hand, the learned counsel for the respondents strenuously urged that the petitioner was not entitled to the benefit of the proviso to regulation 6 of the Calendar because there was reliable material in the shape of the result sheet and the award list to prove that the petitioner had obtained only 40 marks in the written paper of the relevant subject. He further submitted that over a number of years, the University Authorities have been construing the proviso to mean that in case of loss of an answer book, the candidate was entitled to the grant of average marks obtained by him in other papers if there was no othere reliable material to show the marks actually awarded to him in the paper. He urged that the University authorities have been following the practice of not allowing the benefit of average marks in similar cases where other reliable material was available to prove the marks actually obtained by a candidate. Hence the said practice be not distrubcd. He placed reliance on Nazir Ahmad v. Pakistan & 11 otheres (PLD 1970 SC 453). Before discussing the merits of the respective contentions of the learned counsel for the parties, the amended regulation 6 is reproduced below for ready reference:— "6. If a candidate's paper is lost after having been received by the Superintendent of the Examination or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examinations, and if he obtaines pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to the approval of the Vice Chancellor, shall be final. "Provided that if an answer book/s received by an Examiner is/are lost before or after evaluation, average of the marks obtained by the candidate in others in which he has appeared shall be awarded to him in the said paper. Ttie candidate shall, however, have the option either to avail the average of the marks or to reappear in the paper." A bare reading of the amended regulation 6 makes it clear that in case the answer book of a candidate is lost after its receipt by an examiner, then a candidate is entitled as of right to be awarded the average marks obtained by him in other papers. It is not for the University authorities to deny him the benefit of the average marks. However, the candidate has been given the option either to avail of the average marks or to re-appear in the paper. On a proper construction of the proviso under the amended regulation 6, there is absolutely no scope to fall back upon other material to determine the marks btained by a candidate in a paper which had been lost after receipt by the examiner. It is simply not understandable as to how the University authorities have been interpreting the proviso differently and denying its benefit to the candidates over a number of year in the past. I am not prepared to accept the contention raised by the learned counsel for the respondents that the construction placed by the niversity uthorities over the amended Regulation No. 6 be allowed to be followed. A Court of law cannot allow a patent injustice to be perpetuated. Had the construction placed on the regulation by the respondents been reasonable, then the contention raised by the learned counsel for the respondents would have carried some weight. However, a patently wrong, rather absurd construction, cannot be allowed to be placed on the Regulation by the University authorities. Nazir Ahmad's case relied upon by the learned counsel for the respondents pertains to the matter of seniority in the cadre of Engineering Supervisors. According to the departmental rules, there were two categories of candidates for admission to the Engineering Supervisors Examination, namely, (1) departmental candidates, and (2) outside candidates which meant candidates other than the departmental candidates. Seniority in the cadre was to be determined according to Rule 28 of the Rules, which runs as follows:-- "Rule 28 Seniority.~For the purpose of determining the relative seniority in the cadre of Engineering Supervisors of those appointed at any one time, there will be two groups viz., departmental candidates and other members of the staff of the department who were selected as outside candidates and (2) other outside candidates. Seniority in each group will be determined according to the total marks obtained by each at the final examination held on completion of training at the Departmental Training Class. But all the candidates selected from Group 1 will be given seniority over those in Group 2 irrespective of the number of marks obtained in the examination. All the Engineering Supervisors appointed after one examination will rank senior to those appointed after the later examination." The department had treated the appellant from the very beginning of his appointment in the cadre as an "outside departmental candidate" who had been getting his promotion on the same basis. The appellant in the said case tried to urge that his earlier promotion had wrongly proceeded on the assumption that he was an "outside departmental candidate". In writ petition, the High Court came to the conclusion that the petitioner could not be considered as a departmental outside candidate. However, this conclusion was held to be erroneous by the Supreme Court. It was held by the Supreme Court that on 9-2-1944, the appellant was a departmental outside candidate. Hence, the appellant's seniority under the Rules was to be determined on the total number of marks obtained by him after the completion of the training period. It was further held that it was no fault of the appellant that the training was deplayed on account of his initial rejection in the medical test, and as a result of which the respondents got their training first and were appointed before him. The construction "appointed at one time" was always construed by the department as "selected at one time" for training and was being followed consistently over a number of years. The Supreme Court was pleaded to observe that the departmental practice had followed the right course in the implementation of the relevant rules. However, in the peculiar circumstances of the said case, it was further observed that even if the practice was wrong, it would be extremely unfair to make a departure after the lapse of so many years because it would disturb rights that had already been settled by a long and consistent course of practice. The precedent case is distinguishable from the present case. In the precedent case, there is a clear finding that the department had followed the right course in the implementation of the relevant rules. Observation relating to wrong implementation was not meant to be applied to a totally unjust and absurd construction of a rule made by a departmental authority. In the present case, the language of the amended regulation No. 6 is absolutely clear, leaving no room whatsoever for the construction placed on it by the respondents. The regulation was not framed merely to decorate the University Calendar but to protect the rights of the examinees and save them from the malpractices being carried on by some University-employees in matters pertaining to conduct of examinations. Admittedly, the petitioner has a right under the University Regulations to apply for re-checking the marks awarded to him in any paper. He had, in fact, made the application for re-checking the marks in paper I (written). If the respondents are permitted to rely on other material to ascertain the marks awarded to a student, then on the one hand, the provision relating to re-checking of the papers at the instance of the examinees would be rendered nugatory and on the other, the object of the amended Regulation No. 6 would be frustrated. Hence, the respondents cannot be permitted to do so. They ought to retain the answer-books of the students in safe-custody for securing their right of rechecking the marks. If an answer-book is lost, making re-checking impossible, then the respondents should fairly and honestly allow the benefit of the proviso to the amended Regulation No. 6 to the affected student. Thus, in paper 1 Pharmaceutical Chemistry (Physical), which was lost due to the negligence of the respondents, the petitioner is entitled to the award of average marks obtained by him in other papers. For the above reasons, the petition is allowed with no order as to costs. The respondents are, therefore, directed to declare the petitioner's result after awarding him average marks in the lost paper mentioned above. (MBC) Petition accepted.

PLJ 1990 Lahore 191 PLJ 1990 Lahore 191 Present: gul zarin kiani, J SHAH MUHAMMAD and another-Pctitioners versus MUHAMMAD RAFIQ and 3 others-Respondents. Writ Petition No. 5112 of 1989, accepted on 17-10-1989 Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)- —S.13(6)-Tenant~Dcfcnce of-Striking off-Challenge to-Whether direction for deposit of time barred arrears and its non-deposit shall not entail penal consequences—Question of—Rent due means rent due on date of filing of ejectment application and recovery whereof is not barred by statute of limitation—Rent Controller could only direct deposit of arrears of rent for three years prior to date of filing" of ejectment application and not beyond that -Held: Order of deposit of rent arrears made under Section 13(6) was defective and its non-observance did not generate penal consequences-Held j further: Impugned orders suffer from want of conscious and judicious application of mind-Petition accepted. [Pp.l93,194&195]A,B&C PLD 1968 SC 230, PLD 1971 SC 766, PLD 1972 Karachi 273, 1974 SCMR 75, 1980 CLC 1009, NLR 1980 Civil Lah. 147, PLD 1983 Karachi 277, PLD 1965 (WP) Karachi 367, 1979 CLC 650, PLD 1978 Karachi 79, PLD1973 Note 113 at P. 72, PLD 1981 Lahore 132 and NLR 1987 U.C. 38 rel. Ch. ShaukatAli Saqib, Advocate for Petitioners. Mr. Aish Bahadur Rana, Advocate for Respondents 1 & 2. Date of hearing 9-10-1989. judgment This petition under Article 199 of the Constitution is against order dated 13.6.1989 of learned Additional District District Judge, Lahore passed in Appeal No.19 of 1989 upholding order of learned Rent Controller dated 18.1.1989 by which petitioner's defence was struck off for failing to comply with rent direction made under Section 13 (6) of the Rent Ordinance and his forthwith ejectment was ordered. Facts are brief and lie within a short compass. On 17.3.1989, Mohammad Rafique and Nisar Ahmad commenced an action in ejectment against Shah Mohammad and his son Mohammad Asim from a shop situated in Lahore on the grounds of default in payment of rent from September 1983 and requirement of the shop for personal use. It was averred that shop in question was in joint onwnership of Mohammad Rafique petitioner No.l and Mohammad Amin deceased father of Nisar Ahmad petitioner No. 2. On the death of Mohammad Amin, his share in the shop devolved upon his legal heirs and in result of private partition or arrangement amongst them fell to the lot of Nisar Ahmad petitioner No. 2. It was further averred that shop was let out to Shah Mohammad respondent No. 1 by Mohammad Rafique and Mohammad Aanin vide lease agreement dated 13-9-1977 upon payment of Rs. HO/- as rent per month. Later on, rent was enhanced to Rs. 250/- per month. It was further alleged that since September, 1983, petitioner No. 2's share of agreed monthly rent was neither tendered nor paid to him. It was also sumbitted that respondent No. 1 had sublet the shop to his son respondent No. 2. Upon allegations of default in payment of rent, subletting of the shop without prior permission of the landlords and its requirement for self-use, the then petitioners who are respondents 1 and 2 before this Court claimed ejectment of the present petitoners. Both the petitioners who were respondents in the ejectment case filed separate defences. Shah Mohammad submitted that he had taken the shop on lease on 1.10.1977 upon payment of monthly rent of Rs.110/-, but later on, in May 1980, had vacated it and delivered its possession to Mohammad Rafique and Mohammad Amin who by a fresh oral lease again gave the shop to his son at the rate of Rs.150/- as rent per month. Allegations in regard to default, subletting and personal requirement were controverted. Mohammad Asim stated that shop was taken on lease by him from Mohammad Rafique and Mohammad Amin upon payment of Rs.150/- as rent per month. Both Mohammad Rafique and Mohammad Amin owned a moiety in the shop. After the death of Mohammad Amin, his share in the shop (as was told to him by Mohammad Rafique) fell to the share of Mohammad Munir his son who received his share of rent from him till the month of July 1983 whereafter upon his refusal to receive his share of rent, it was being regularly deposited in the treasury.Rest of the allegations were also denied. Form the above, it would appear that Mohammad Asim had denied relationship of landlord and tenant between him and Nisar Ahmad and also disputed monthly rate of rent payable by him. Respondents pleaded that rent was Rs.250/- per month. Mohammad Asim joined issue and submitted that it was Rs.150/- per month. On 7.5.1988, Rent Controller tentatively determined the rate of rent at Rs.150/- per month and directed the present petitioners to deposit rent-arrears from September 1983 to April 1988 amounting to Rs.8400/- till 20.6.1988 and further ordered deposit of future monthly rent at the same rate before 15th of each succeeding month. It was further observed that rent already deposited in the treasury shall be deducted from the arrears to be deposited. Thereafter, ejectment petition was postponed to 21.6.1988 for verification of compliance with the rentdirection. As direction for deposit of rent-arrears was not complied with in full and short deposit was made, respondents applied to learned Rent Controller for striking off the defence of the petitioners and putting them in possession of the shop forthwith. Petitioners denied rent default attributed to them and submitted that after deducting the amount of rent already paid, correct amount of rent was deposited. Rent Controller enquired into the matter and found that petitioners had not complied with the rent direction and struck off their defence and without further enquiry directed their forthwith ejectment on 18.1.1989. Petitioners filed an appeal. It was urged that a sum of Rs.4200/- was deposited towards rentarrears and default was not committed. Learned lower appetllatc Court did not agree with this contention and dismissed the appeal. It is thitictecision that is challenged before this Court. At the hearing, learned counsel for the petitioners urged that; (1) Rent Controller acting under section 13 (6) of Rent Ordinance had no jurisdiction to direct the tenant to deposit rent-arrears in respect of which legal remedy to recover was barred under the statute of limitation. Direction for deposit of rentarrears for a period beyond three years from the date of application i.e 17.3.1989 could not be lawfully made and on the basis of an invalid direction, no penalty could ensue; (2). In the ejectment petition, default in payment of rent was alleged in regard to the share of Nisar Ahmad petitioner No.2 only and allegation in regard to share of rent payable to Mohammad Rafique petitioner No.l was not made. Therefore, Rent Controller could not order deposit of rent in respect of share of Mohammad Rafique who had not alleged non-payment and to whom admittedly his share of rent (Rs.75/-p.m.) was paid regularly; (3) petitioner Mohammad Asim had denied relationship of landlord and tenant with Nisar Ahmad and without determining this basic objection, direction for deposit of arrears could not be lawfully made. As against this, learned counsel for respondents 1 and 2 frankly conceded that direction for deposit of time barred arrears could not have been made but submitted that it was open to the tenant to ignore that part of the direction which was defective and comply with its valid part and deposit the rent due for a period of three years preceding the date of commencement of the ejectment case. In this view, learned counsel submitted that default was committed and defence was rightly struck off. Learned counsel also admitted that Rent Controller could not direct deposit of arrears with regard to share of monthly rent payable to Muhammad Rafique who had not complained of its default and to whom his share of rent was being paid. Seen from the above, material point requiring determination in the petition is whether direction for deposit of rent-arrears was invalid and defective and its non-observance shall not entail penal consequences. Section 13 (6) of the Rent Ordinance provides:- "In proceeding under this section, on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck-off and the landlord put into possession of the property without taking any further proceedings in the case. The Controlller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant" Above subsection has two essential components. First concerns itself with arrears of rent due and second with deposit of furture rent "All rent due" means rent which is still recoverable in an action at law. Therefore, "rent due" would obviously mean the rent due on the date of filing of the ejectment application and recovery whereof was not barred by statute of limitation. Above statement of law is clearly supported from the decisions in Ashfaq-ur-Rahman versus Chaudhri Muhammad Afzal-Y.LD 1968 S.C 230, Ashfaq-ur-Rehman KJian versus Ch. Muhammad Afza nd another P.L.D 1971 S.C 766, Attaullah Malik versus Rashid and another- P.L.D 1972 Karachi 273, Barkat All versus Messrs Pakistan Sanitary & Drainage Works-1974 S.C.M.R 75, Mrs. Vasli Bai and 3 others versus Jamshed Aderji Dubash and another-1980 C.L.C 1009, Manzoor Ahmad etc versus Abdul Haq-- N.L.R 1980 Civil Lah. 147, Mrs. Hazratbai Merchant and another versus Mohammad Ismail-P.L.D 1983 Karachi 277. Therefore, Rent Controller could only dircet deposit of rent-arrears for three years prior to the date of filing of ejectment application and not beyond it. In this view, rent-arrears for the period commencing 17.3.1984 could only have been ordered to be deposited and order could not lawfully be made for deposit of rent-arrears from September 1983, Similarly, Mohammad Rafique petitioner had not pleaded default, in regard to his share of rent. Only Nisar Ahmad had alleged default in payment of rent from September 1983. It was not denied that share of monthly rent payable to him was Rs.75/-. Therefore, order for deposit could only be made at the rate of Rs 75/- per month commencing from 17.3.1984 to the date of filing of the ejectment application on 17.3.1987. Rent due and recoverable at law for three years prior to the date of application at the rate of Rs.75/- per month came to Rs.2700/- only. Thereafter, from the date of filing of ejectment application to April 1988 at the rate of Rs.150/- per month (from March 1987 to April 1988) came to Rs.2100/- only. Looked at from this view, order for deposit of rent-arrears made under section 13 (6) of Rent Ordinance was defective and its non-observance did not generate penal consequences. In Kliair Muhammad Nizamani versus Abdul Quddus-P.L.D 1965 (W.P.) Karachi 367, there was no defect in the order for deposit of rent-arrears but the defect was with regard to the date of deposit of future rent. Still the High Court observed that the defect tainted the whole order. In Moinul Hague G. Shaikh versus Mst. Zulekha and 4 others-1919 C.L.C 650, Rent Controller had directed the tenant to deposit time barred rent arrears alongwith an order for deposit of future rent. There was no defect or fault with the direction respecting to deposit of future monthly rent and the fault related to its first part relating to deposit of time barred arrears. Despite non-deposit of the arrears or future rent, it was held that whole of the order was bad and it was not open to the Court to bifurcate it in parts and compel compliance with its valid portion and ignore its invalid part. In Kewalram Dayaram Shahani versus Nawab All P.L.D. 1978 Karachi 79, the court observed, "The rent order passed by the learned Rent Controller contained two separate directions for depositing arrears and future monthly rent and the same being an order of interim or interlocutory nature it remained operative till the final order was made by the learned Rent Controller, which had yet to be made in this case. It was observed in the case of Sh. Muhammad Raflq v. Mian UmarDin (P.L.D. 1973 Note 113 at p. 172) that the two provisions about deposit of amount due and future rent are not cumulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. Consequently, the respondent was duty bound to deposit future rent also, and it being an admitted position that no future monthly rent was deposited by the respondent, at all, he clearly violated the order of the learned Rent Controller and thus committed default for which his defence could well be struck off by the learned Rent Controller". In Salahuddin Butt versus Khawaja Muhammad Tariq—P.L.D 1981 Lahore 132, a learned single Judge of this Court commenting on defect in rent direction and its consequences, agreed with the rule in case of Kewalram Dayaram Shahani and held "that the fact that in the instant case, Rent Controller had erred in directing the respondent to deposit rent for the month of October, 1978, as arrears of rent would not invalidate his order in other respects, especially in so far as it required the respondent to deposit arrears of rent for the period for which the arrears had fallen due by the date on which direction for the deposit thereof was made. In Shajkh Fazal Din v. Dawoodur Rehman Deceased through L.Rs. N.L.R 1987 U.C 38 (Karachi), Saiduzzaman Siddiqui, J., agreed with the view expressed in Kewalram Dayaram Shahani's case and (held that defence) could not be struck of and summary ejectment ordered for non-compliance of an invalid order. It shall be unfair to the tenant to leave calculation of the rent due, to him and deposit same to save his defence from being struck off and be heard on merits of his defence. It is often difficult for a lay litigant to discover what is and what is not legally due. As observed hi the case ofAshfaq-ur-Rehman~P.L.D. 1968 S.C. 230, "The recovery of rent due from a tenant is not one of the primary objects of the Ordinance, but it appears that in view of the protection given to the tenant against eviction, it is intended to safeguard the interest of the landlord by providing that during the pendency of an action under the Ordinance, the tenant may not occupy the demised premises without payment of rent or withhold payment of rent which has already fallen due. It is within this limited intent that the words: "all the rent due" are to be construed". Any doubt or ambiguity in the rent direction must be resolved in favour of the tenant who is to suffer in the event of its non-observance. It was not a case where no arrears were deposited at all. Herein, a substantial amount from arrears was deposited in time and default in regard to the deposit of future monthly rent was neither alleged nor made. I note with regret that neither the learned Rent Controller nor the learned lower appellate Court gave the required attention to the real points in controversy. Neither the record was read properly nor the law applied correctly. Impugned orders suffer from want of conscious and judicious application of mind. I would, therefore, accept the writ petition and set aside the orders of the learned Courts below declaring them to have been made without lawful authority. Its result will be that the Rent Controller will make a fresh order under section 13 (6) of the Rent Ordinance for depositing rent-arrears and the current rent strictly in accordance with requirements of the above law. Parties shall bear their own costs. (MBC) Petition accepted.

PLJ 1990Lahore 195 PLJ 1990Lahore 195 [ Multan Bench] Present: MIAN NAZIR AKHTAR, J MALIK MITHA-Appellant versus JAMAL DIN and 2 others-Respondents RSA No. 25 of 1987, dismissed on 25-10-1989 (i) Civil Procedure Code, 1908 (V of 1908)- - —O. XLI~R.27-Additional evidence-Production of~Prayer for-Application for production of a copy of mutation by way of additional evidence, to show that disputed land was situated in chak No. 132/TDA, was filed during pendency of appeal-Plaint was never amended to clearly aver that disputed land was situated in a particular chak-Held: No justification to allow production of additional evidence at this stage-Both appeal and application dismissed. [Pp. 198&199]C&D (ii) Pre-emption- —Pre-emption-Suit for-Preferential right-Proof of~Disputed land was situated in five different chaks each being separate estate—No effort made to amend plaint and to claim preferential right in each estate separately—Sale of land was made through a single deed wrongly showing that it was situated in one chak-Held: No workable decree can be passed on basis of plaint as it stands. [Pp. 197&198]A&B Mr. KJiizar Hayat Ktian Punnian, Advocate for Appellant. Mian M. Perwaiz Akhtar, Advocate for Respondents. Date of hearing: 4-10-1989. judgment This appeal arises out of a suit for possession through pre-emption filed by the appellant on 20-2-1980 in the Court of Senior Civil Judge, Layyah. The right of pre-emption was claimed on the ground of being an owner in the estate. The suit was resisted by the respondents, who filed their written statement in the Court. On the pleadings of the parties, the trial Court framed the following issues:- Whether the plaintiff has superior right of pre-emption qua the vendee/defendants? OPP Whether the ostensible sale price of Rs. 2,34,000/- was fixed in good faith or actually paid? OPD If not, what was the market value? OP Parties. Whether the suit is for partial pre-emption? OPD. Whether the suit is time-barred? OPD. Whether the description of suit land is incorrect? If so, its effect? OPD. Whether the suit is wrongly valued for jurisdiction and court fee? If so, its effect and further the court fee is not paid within the period of limitation? If so, its effect? OPD. Whether the defendant validly improved the status of suit land? If so how much and when? OPD. Whether the defendants are entitled to get expenses for the registration of the sale, etc? OPD. Whether the plaintiff has no cause of action? OPD. Whether the zar-e-panjum is not paid within time? OPD. Relief. After recording the evidence of the parties, the trial Court came to the conclusion that the appellant was an owner in Mauza Sumra Thhal Jandi and had a preferential right of pre-emption. He decreed the suit vide his judgment and decree dated 27-4-1985. The respondents filed an appeal in this Court on 30-5- 1985 which was sent back to the learned District Judge for disposal on merits. The learned District Judge accepted the appeal vide his judgment and decree dated 16- 12-1986 and set aside the decree of the trial Court. Hence, this appeal. Arguments in the appeal were heard on 12-12-1988 when I verbally announced the order dismissing the appeal. However, while dictating the order, I noticed that certain important facts were not brought to the notice of the Court. Hence, I recalled the earlier order of dismissal and fixed the appeal for re­ hearing. Arguments in the appeal were heard on 11-1-1989 and again on 30-5- 1989. The disputed land measuring 143 kanals 16 marlas was sold through a registered sale deed dated 22-7-1979 for a sum of Rs. 1,80,000/-. In the plaint, the land was shown to be situated in Mauza Sumra, Thhal Jandi, tehsil Layyah. The right of pre-emption was claimed on the ground that the appellant was Sharik Khata, Khaiwatdar and Sharik Mauza/Chak. In the written statement, the alleged preferential right of the plaintiff/appellant was denied. When the case was first argued on 12-12-1988 it was not brought to the notice of the Court that the sale deed (Ex.P-15) itself showed that the vendor Jeewan son of Noora and Jamal Din etc., respondents, were residents of Chak No. 132/TDA and Chak No. 154/TDA, respectively. The disputed land was shown to be situated in Mauza Sumra Thhal Jandi in the sale deed which was obviously incorrect because by that time, the new estates in the shape of TDA Chaks had come into being. The oral evidence produced by the parties also confirmed that the disputed land was situated in Chak Nos. 130, 131, 132, 137 and 275 and that each Chak was a separate revenue estate. The learned counsel for the appellant strenuously urged that the entire land in dispute was situated in Chak No. 132/TDA in which the appellant also owned land, but the respondents/vendees did not. Hence, he enjoyed the superior right of pre-emption. In this connection, he particularly referred to the statement of Ghuiam Muhammad, D.W.I, who admitted that the disputed land was situated in Chak No. 132/TDA. On the other hand, the learned counsel for the respondents urged that the land in Mauza Sumra hhal Jandi was acquired by the T.D.A. somewhere in 1956 and thereafter ownership rights were transferred to the vendees in five different Chaks bearing Nos. 130, 131, 132, 137 and 275. Each Chak is a separate estate and the appellant had to prove his ownership in each Chak in which the disputed land was situated. He had merely shown his ownership in Chak Nos. 131 and 132 and not in the other Chaks. Hence, his suit was rightly ordered to be dismissed by the learned District Judge. He further submitted that the Jamabandi for the year 1943-44 was not relevant because it did not pertain to the period when the sale was made. He placed reliance on Qutab Din v. Said Ahmad (PLD 1967 Lahore 1171) to urge that when Pattis are created, the pre- emptor must show his preferential right of pre-emption in every Patti. He also submitted that the decree had to be in accordance with the plaint. In the present case, the plaint did not reler to the various Chaks but merely to Mauza Sumra Thhal Jandi. Hence, no workable decree could be passed in the present case. There is considerable force in the arguments raised by the learned! counsel for the respondents. Surprisingly, even after being aware of the fact that]' (the disputed land was situated in five different Chaks, each being a separate jestate, the plaintiff/appellant made no effort to amend the plaint and to claim j preferential right in each estate separately. The sale of the disputed land, though ^situated in different estates was made through a single deed. In order to succeed jin his claim for pre-emption, the plaintiff/appellant ought to have proved his preferential right in each estate. At the time of sale, the disputed land was situated in different Chaks/estates but it was wrongly shown to be situated in Mauza Sumra Thhal Jandi, although in the same deed, the residences of the vendor and the vendees were shown in Chak No. 132/TDA and Chak No. 154/TDA respectively. The plaintiff/appellant could succeed on the strength of his own case and not on the weaknesses of the case of the respondents. Allah Wasaya special attorney of the appellant stated in his statement before the trial Court that the appellant was Sharik Khata and owner in the village and in all the Chaks. He also admitted that the disputed land was situated in Chak No. 132/TDA and other Chaks. He further clarified that the land in dispute was situated in Chaks No. 130, 131, 132 and the other Chaks, numbers of which were not known to him. He did not know that revenue record of each Chak had been prepared separately. To the same strain is the statement of Muhammad Amin, patwari, D.W.2. He stated that the land owned by Jamal Din etc., respondents, in Mauza Surrira Thhal Jandi was adjusted to the owners in Chak Nos. 130, 131, 132, 137 and 275 against khata numbers 59, 91,105, 444 and 445. Each Chak was a separate estate. In view of the statement of the appellant's special attorney supported by the statement of Muhammad Amin, Patwari, D.W.2, no reliance can be placed on the apparently erroneous admission of Ghulam Muhammad, D.W.I, that the disputed land was situated in Chak No. 132/TDA. This witness did not know the Mauza to which the land in dispute pertained. He did not even know that it was situated in Mauza Sumra Thhal Jandi. Muhammad Amin, Patwari was produced by the respondents. He had made the statement in the light of the entries of the adjustment register. Thus, it is established that the disputed land was situated in five different Chaks/estates and the plaintiff/appellant had merely shown his ownership in Chak No. 131 and 132. He failed to show that he was owner in Chak Nos. 130,137 and 275, in which parts of the disputed land were situated. Mauza Sumra Thhal Jandi has since been split up into various estates. Hence, no workable decree can be passed on the basis of the plaint as it stands which was never amended by the plaintiff/ appellant at any stage of the litigation. He must suffer for his own default. The plea is, therefore, repelled. During the pendency of the present appeal, the appellant filed a miscellaneous application (C.M. l/C/1989) for production of a copy of the mutation sanctioned on 20-5-1989 by way of additional evidence to show that the disputed land was situated in Chak No. 132/TDA. As noted above, the plaint was never amended so as to include a clear averment therein that the disputed land was situated in any particular Chak. The appellant cannot be allowed to lead evidence against his own pleadings. Moreover, the appellant's special attorney had admitted in clear terms that the disputed land was situated in Chak Nos. 130, 131, 132 and the other Chaks. Now, he cannot be heard to say that it is situated only in Chak No. 132/TDA. I, therefore, find no justification to allow production of additional evidence at this stage. The C.M. is, therefore, dismissed. The learned District Judge was justified in reversing the judgment and decree of the trial court and ordering dismissal of the appellant's suit. I find no merit in this appeal, which is dismissed, leaving the parties to bear their own costs. (MBC) Appeal dismissed.

PLJ 1990 Lahore 199 PLJ 1990 Lahore 199 [ Multan Bench] Present: MUNIRA. SHEIKH, J ALI HASSAN and 2 others-Appellants versus SARDAR KHAN and 2 others-Respondents RSA No. 74 of 1987, partly accepted on 15-1-1990 (i) Land Reforms Regulation, 1972 (MLR 115)- — Para . 3~Pre-emption~Suit for~Whether any party in suit before a civil Court, could challenge validity and legality of decree passed by Collector-­ Question of—According to para. 3, provisions of Land Reforms Regulation have over-riding effect—Where there is rivalry between order of Collector decreeing suit and decree of civil court, order of Collector is to take effect-­ Held: It is not permissible to allow any person to challenge validity of order of Collector before a civil court. [P. 202JB 1987SCMR944re/. (ii) Land Reforms Regulation, 1972 (MLR 115)-- —Para. 25(6)~A person not impleaded as party in suit before Collector- Whether he could file appeal against order of Collector-Question of-Para. 25(6) provides that any person aggrieved by an order passed by a Collector, may within 30 days of such order, prefer an appeal to Commissioner-Right of appeal is not conferred only on a party in proceedings—Held: Expression "any person aggrieved" makes it clear that right of appeal has been granted to every such person who feels aggrieved even if such a person was not a party in proceedings. [P. 203]C (iii) Pre-emption-- —Pre-emption-Suit for-Dismissal of~Challenge to-Findings of trial Court that appellants were collaterals of vendor and co-sharer in khata, were not challenged on merits before lower appellate Court-Appellants had certainly a right to pre-empt sale next to respondents 5 and 6 who had been granted decree by Collector (on basis of tenancy)—Held: Lower appellate court committed an illegality in dismissing suit of appellants-appeal partly accepted. [P. 203]D&E (iv) Punjab Pre-emption Act, 1913 (I of 1913)-- —S. 28-Rival pre-emptors-Impleadment of~Whether necessary-Question of-It is manifest from a bare reading of Section 28 that it is applicable only where more suits than one, arising out of same sale are pending before same Court-Section 28 would be attracted only if forum for enforcement of right of pre-emption by all rival pre-emptors is same—Suits were pending in civil Court and before Collector-Held: Section 28 of Punjab pre-emption Act was not attracted. [Pp. 201&202]A Kanwar Akhtar AH, Advocate for Appellants. Pir Rafiuddin Shah, Advocate for Respondents 1 to 3. Mr. Nazir Ahmad Siddiqui, Advocate for Respondents 5&6. Dates of hearing: 21 and 30-10-1989 and 17 to 19-12-1989. judgment This appeal is directed against judgment and decree dated 8-4-1987 passed by the learned Additional District Judge, Multan through which the appeal filed by Rab Nawaz etc. respondents has been accepted and decree dated 2-12-1984 passed by learned trial Court in favour of the present appellants for possession of land through preemption has been set aside. 2. The facts giving rise to this second appeal shortly stated are that the land in dsipute was sold by Shamsud Din through registered sale-deed dated 24-9-1977. Muhammad Yaseen deceased the predecessor-in-interest of the appellants on 9-9- 1987, filed a suit before the learned trial Court to preempt the sale on the ground that he was collateral, co-sharer and co-owner of village as such had superior right of preemption. The vendees i.e. defendants 1 to 3 contested the suit and it was disclosed by them in their written-statement that the suit land had already been preempted by Rab Nawaz and Fateh Mohammad in whose favour a compromise order/decree for possession of land through preemption had already been passed by Collector Lodhran on the ground that they were tenants on the land in dispute. The said Rab Nawaz and Fateh Mohammad were impleaded as defendants 4 and 5 in the suit. On the pleadings of the parties the learned trial Court framed the following issues:- Whether description of the suit land is incorrect? Whether the suit is under valued? Whether the plaintiff is estopped to file this suit by his conduct? Whether the property in dispute has been collusively pre-empted vide order of the learned Collector, Lodhran by Rab Nawaz and others? if so, its effect? Whether the suit land is pre-emptable sale? If issue No. 5 is decided in favour of the plaintiff whether he has superior right of preemption? 6-A. Whether ostensible sale price was fixed in goods faith or actually paid? 6-B. What was the market value of the suit land at the time of sale? 7. Relief. 3. After recording evidence the learned trial Court decided issue No. 5 in affirmative. It was held that the transaction in question was in fact a sale -whereas it was shown to be an exchange simply to protect the land from being preempted. Under issue No. 6 it was held that Muhammad Yaseen deceased/plaintiff was collateral of the vendor as also co-sharer in khata in dispute. Issue No. 4 was decided in favour of the plaintiffs and it was held that the order/decree dated 22- 5-1979 passed in favour of defendants 4 and 5 by Collector on the basis of tenancy was obtained by them collusively and the same did not effect adversely the maintainability of the suit. Issues No. 1, 2 and 3 were decided against the defendants. Under issues No. 6-A and 6-B it was held that the suit land was sold for an amount of Rs. 60,000.00.In the result, the suit of the plaintiffs was decreed through judgment dated 2-12-1984. 4. Rab Nawaz and Fateh Muhammad the rival preemptors who obtained decree in their favour from the Court of Collector assailed this judgment and decree of the learned trial Court in appeal before the learned lower appellate Court. The learned lower appellate Court through judgment and decreee dated 8- 4-1987 impugned in this appeal accepted the appeal and set aside the judgment and decree of the learned trial Court mainly on reversal of findings recorded on issue No. 4. It has been held by the learned lower appellate Court that since no appeal was filed against the order of Collector and the decree passed by Collector Lodhran was in the knowledge of the present appellants who did not challenge the same which was still intact and held the field. It was also held that there was no evidence on the record that the said decree was obtained through collusion or fraud. As a consequence of these findings the suit filed by predecessor-ininterest/appellants was dismissed. 5. The main burden of arguments presented by learned counsel for the appellants in support of the appeal was that under section 28 of the Punjab Preemption Act, 1913, respondents/rival preemptors were bound to implead the appellants as defendants in their suit filed by them in the Court of Collector as such the decree dated 22-5-1979 obtained by them from the Court of Collector was nullity qua the rights of the appellants to preempt the land. Reliance has been placed on All Hassan & others v/Sardar Klian & others (P.L.D. 1952 Lah. 489). The argument is certainly ingenious but not tenable on close analysis. Section 28 of the Punjab Preemption Act reads as under:— 28. "CONCURRENT HEARING OF SUITS.-When more suits than one arising out of the same sale or foreclosure are pending the plaintiff in each suit shall be joined as defendant in each of the other suit and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right". From a bare reading of this section, it is manifest that the rules enacted in this section are applicable only where more suits than one arising out of the same sale are pending before the same Court and the Court ultimately could pass decree as required in respect of all the preemptors by stating the order in which each claimant is entitled to exercise his right of preemption. Section 28 of the Punjab Preemption Act as such would be attracted "tmly if the forum for enforcement of right of preemption by all the rival preem;«..-. is the same. It was under Martial Law Regulation No. 115 known as Land Rciorms Regulation, 1972, that a tenant on the land sold, was granted first right of preemption. Prior to amendment of this Land Reforms Regulation, 1972 through Act XLVIII of 1976 which came into force on 19th July, 1976 the forum for enforcement of this right was the civil Court and there was no legal impediment in applying section 28 of the Punjab Preemption Act because the suits for enforcement of right of preemption by rival preemptors on any of the grounds given in section 15 of the Punjab Preemption Act were also triable by the civil Court. The change brought in, by this amending Act of 1976 in para 25 of Land Reforms Regulation was that all suits for enforcing the right of preemption in respect of land comprised in a tenancy were to be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land was situated. All such pending suits before the commencement of this amending Act stood transferred to the Collector concerned by operation of the said law. The suit filed by Rab Nawaz and Fateh Mohammad on the ground of tenancy therefore was triable exclusively by the Collector which was a different forum from ordinary civil court where the suit filed by the appellants was pending because that was triable by a civil Court, therefore Section 28 of the Punjab Preemption Act was not attracted. 6. The next question which arises for determination is whether any party in the suit before a civil Court could challenge the validity and legality of order passed by Collector decreeing the suit of tenant to preempt the sale or a civil Court in the presence of such a decree in favour of tenant could pass | unconditional decree in favour of rival preemptor who claimed right of preemption on the ground of collateralship and co-sharership. Para 3 of Land Reforms Regulation, 1972 enacts that the provisions of the said Regulation and any order made therein shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority etc. etc. In view of these provisions of law it can safely be held that in a case where there is rivalry between the order of Collector decreeing the suit of the tenant and decree of civil Court of general jurisdiction the order of Collector is to take effect. It is not permissible in view of these express provisions of law giving over-riding effect to an order of Collector passed under the said regulation, to allow any person to challenge the validity of order of the Collector before a civil Court or in any other proceedings except by filing appeal or revision as provided in para 25(6) (7) of the Land Reforms Regulation, 1972 as amended by Act XLVIII of 1976. The appellants could not claim that a decree be passed in their favour by the civil Court ignoring the order of Collector passing decree in favour of Rab Nawaz and Fateh Mohammad under the said Land Reforms Regulation. This view finds support from judgment reported as Yaseen v. Klian Muhammad and another (1987 S.C.M.R. 944). The relevant portion of this judgment may be reproduced for facility of reference. "Although respondent No. 2 the decree-holder from the revenue forum, has been impleaded as a respondent, the decree passed in his favour was not challenged in the High Court by an independent proceedings whereby the judgment and decree passed upto the Board of Revenue could have been set aside. Neither the civil Court nor the District Court and the High Court in the proceedings arising out of civil suit filed by the petitioner, could set aside the judgment and decree passed in favour of respondent No. 2 in the revenue hierarchy". It may be mentioned here that in this reported case the decree passed by the Collector was based on compromise. 7. Faced with this difficulty, learned counsel for the appellants tried to over­ come it by arguing that in the said reported case the tenant initially impleaded the ival preemptor in the suit filed by him in the Court of Collector and the said rival preemptor having assailed the said decree in the high revenue forums, i.e. the Commissioner and the Board of Revenue, failed to challenge it further in the High Court in constitutional jurisdiction, whereas in the case in hand the appellants were not impleaded as defendants in the suit before the Collector as such they could not avail of remedy of appeal and revision which could legally be availed of only by a party to the proceedings. I am afraid, the argument has no merits. Paragraph 25(6) of Land Reforms Regulation, 1972 as added by Act XLVIII of 1976 provides that any person aggrieved by an order passed by a Collector may within 30 days of such order prefer an appeal to Commissioner. The right to file appeal against the order of Collector is not granted to or conferred only on a party in the proceedings and the use of the expression "any person aggrieved" as against the words any "party to proceedings", in this sub-para akes it clear that right of appeal has been granted to every such person who feels aggrieved even if such a person was not party in the proceedings. The findings of the learned lower appellate Court that the order/ decree of the Collector in favour of respondents was in-tact having not been challenged or set aside in the revenue hierarchy as such could not be ignored, are perfectly in accord with the rule laid down by the Supreme Court in Yaseen's case supra. 8. The learned lower appellate Court dismissed the suit of the appellants. The findings of the learned trial Court that the appellants were collaterals of the vendor as also co-sharer in Khata were not challenged on merits before the learned lower appellate Court, the correctness of which were also not called in question before me during the arguments. That being so, the appellants certainly had a right to preempt the sale next to respondents 5 and 6 who had been granted D order/decree by the Collector to preempt the sale as tenants on the land in dispute. The suit of the appellants could not be dismissed. The learned lower appellate Court therefore committed an illegality in dismissing the suit which was liable to be decreed subject to the order/decree passed in favour of respondents 5 and 6 by the Collector. 9. In the result, this appeal is partly accepted. The judgment and decree passed by the learned lower appellate Court is hereby modified to the extent that a decree for preemption is passed in favour of the appellants on the condition that the same would be subject to the order/decree passed on 22-5-1979 by the Collector in favour of respondents 5 and 6. There will be no order as to costs. (MBC) Appeal partly accepted.

PLJ 1990 Lahore 203 PLJ 1990 Lahore 203 Present: MALIK MUHAMMAD QAYYUM, J PROVINCE OF PUNJAB , THROUGH COLLECTOR, SAILKOT and 4 others-Appellants versus MUHAMMAD SHARIF-Respondent RSA No. 68 of 1989, accepted on 22-1-1990 (i) Civil Procedure Code, 1908 (V of 1908)- —-S. 100—Appeal—Presentation of—Non-compliance of procedural provisions- -Whether can be visited with extreme penalty of dismissal—Question of~ Held: Provisions regarding presentation of appeal/suit are procedural in nature and non-compliance thereof cannot be visited with extreme penalty of dismissal of cause-Held further: Any such defect is an irregularity and can be rectified by providing an opportunity to concerned party to do so-Appeal accepted. [Pp. 205&206]B&C PLD 1959 Lahore 946, PL^ 1972 SC 9 and 1980 CLC 946 rel. (ii) Civil Procedure Code, 1908 (V of 1908)-- —O. Ill R. 4-Power of attorney in suit-Whether fresh power of attorney is required for filing appeal by same counsel-Question of-Power of attorney duly signed, is on record of trial court-It also authorises ounsel to file appeal before appellate court—Power of attorney enures till its termination with permission of court or till proceedings are finally ended-Appeal is continuation of suit-Held: No separate power f attorney was necessary hi favour of counsel who could have filed appeal on basis of power of attorney presented before trial court. [P.205JA AIR 1934 Lahore 973, AIR 1936 Lahore 500 and AIR 1936 Lahore 583 rel. Mr. Iftikhar Hussain Shah, A A.G for Appellants. Ch. Habibullah, Advocate for Respondent. Date of hearing: 22-1-1990 judgment This is a defendant's second appeal under section 100 of the C.P.C. against the judgment and decree of the Addl. District Judge Sialkot dated 16-1-1989 dismissing the appeal of the appellants against the judgment and decree of the trial Court dated 26-1-1988. 2. The dispute arises out of a suit for specific performance of an agreement to sell filed by the respondent against the appellants who are five in number. This suit was decreed by the Civil Judge Sialkot on 26-1-1988. Aggrieved the appellants filed an appeal which was, however dismissed by the Additional District Judge, Sialkot on 16-1-1989 without examining the merits of the claims of the parties on the solitary ground that the appeal had not been filed or presented by a duly authorised person. 3. Mr. Iftikhar Hussain, Assistant Advocate-General who has appeared on behalf of the appellants has raised two fold contentions. Firstly, that the counsel who had signed the memorandum of appeal and presented it before the lower appellate court namely Mr. Muhammad Ashraf Qureshi Advocate was the same who had represented the appellants before the trial Court in the suit filed by the respondent and as such the learned counsel had the authority to file an appeal on behalf of the appellants; secondly, that the defect in presentation of the appeal was a matter of procedure and at the most amounted to an irregularity not affecting the merits of the case and was curable by having signatures of an authorised person affixed on the appeal. Ch. Habib Ullah, Advocate appearing on behalf of the respondent defended the impugned judgment by arguing that the Assistant Director, Local Government and Rural Development, Sialkot, had no authority on behalf of the Government, to engage a counsel or to file the appeal which was unauthorised and therefore, the Additional District Judge acted in accordance with law in rejecting the memorandum of appeal. The learned counsel relied upon Punjab Province v. Malik Shahbaz Khan (N.L.R. 1980 Civil Lah. 192). 4. The ground which prevailed with the Additional District Judge in dismissing the appeal and holding it to be unauthorised was that the appellants had failed to produce any authority in writing on behalf of the Government by which the Assistant Director, Local Government and Rural Development, Sialkot was authorised to file the appeal on its behalf. Unfortunately, while coming to this conclusion the lower appellate Court completely lost sight of the fact that the appeal before it was not by the Province of Punjab alone but apart from it there were 4 other appellants and Assistant Director Local Government and Rural Development, Sialkot was an appellant (appellant No. 4) in his own right. Consequently, at least to this extent the appeal filed by him could not be said to be unauthorised. This aspect of the case was totally overlooked by the lower appellate Court. Similarly apart from the Province and its functionaries, the Chairman District Council, Sialkot was also one of the appellant. From the record of the trial Court, it is clear that Mr. Muhammad Ashraf Qureshi, Advocate, who had filed the appeal was counsel for the Assistant Director, Local Government as also the Chairman District Council before the trial Court and a power of attorney duly signed by them in favour of the learned counsel is on the record of the trial Court. This power of attorney not only authorises the counsel to represent the Assistant Director Local Government and Chairman District Council before the trial Court but also empowered him to file an appeal before the appellate Court. Under Order 3 rule 4 of the C.P.C. the power of attorney in favour of a counsel enures till its termination with the permission of the Court or till the proceedings are finally ended. There can be no dispute that the appeal is continuation of a suit and therefore the words 'proceedings are finally ended' would embrace in themselves the proceedings before the appellate Court as well. No separate power of attorney was necessary in favour of the counsel who could have filed the appeal on the basis of power of attorney presented before the trial Court. If any authority is needed, reference may be made to Mt. Balqis Begum v. Shahzada Muhammad Hamdam & others (AIR 1934 Lahore 973), K.L. Gauba v. Indo Swiss Trading Co., Ltd. (A.I.R. 1936 Lah. 500) and Rasul Shah v. Diwan Chand and another (A.I.R. 1936 Lahore 583). In these circumstances, the learned Additional District Judge was clearly in error in dismissing the appeal as being unauthorised. 5. The other contention of the learned counsel for the appellants is also well founded. The provisions regarding the presentation of appeal/suit are procedural in nature and non-compliance thereof cannot be visited with the extreme penalty of dismissal of the cause. It is since long settled that any such defect is an B irregularity and can be rectified by providing an opportunity to the concerned party to do so. In Mst. Karam Nishan v. Meharban All (P.L.D. 1959 Lahore 946) B.Z. Kaikaus, J. (as he then was) observed that a case of presentation of appeal was similar to that of plaint and the mere fact that an appeal has not been presented by a person who at the time when he presented it was not armed with written authority from the party does not necessarily lead to the dismissal of appeal. The Supreme Court of Pakistan in Toor Gul v. Mst. Mumtaz Beginn (P.L.D. 1972 S.C. 9) was pleased to observe that the omission of the name of the pleader from the body of Vakalatnama was an irregularity and not fatal to the case and such a defect could be remedied at any time irrespective of limitation. It was further observed that the rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. In Muhammad Sarwar alias Feroze All v. Abdul Ghani and 7 others (1980 CLC 946), the question before a Division Bench of this Court was as to whether presentation of an appeal by a counsel was valid when neither Vakalatnama nor the memorandum of appeal in favour of the counsel had been signed by the appellant and there was as such no authority in writing from the appellant. After exhaustive review of the case law, it was held that the defect was not fatal and was capable of being rectified. 6. From the analysis of the above precedents, it cannot be doubted that the Additional District Judge was clearly in error in holding that in the absence of any authorisation in writing the appeal was incompetent and he had no option but to dismiss it. As regards the decision of this Court in Punjab Province v. Malik Shahbaz KJian (NLR 1980 Civil Lah. 192) apart from the fact that the appeal was dismissed in limine, the question as to whether the defect in presentation of appeal, could be rectified never came up for consideration before the Court. Be that as it may, as already observed, the appeal, in any case, on behalf of appellants Nos. 4 & 5 was with authority and, therefore, could not have been dismissed. The Additional District Judge was under an obligation to allow an opportunity to the remaining appellants, in the circumstances of the case, to remedy the defect. For the foregoing reasons, this appeal is accepted, the judgment and decree of the Additional District Judge is set aside with the result that the appeal shall be deemed to be still pending before him and shall be decided in accordance with law. The Additional District Judge shall allow the appellants Nos. 1 to 3 to rectify the defect by either signing the memorandum of appeal or presenting power of attorney in favour of a counsel duly authorised. The parties shall appear before the Additional District Judge, Sialkot on 1-3-1990 who shall make efforts to dispose of the appeal expeditiously. No. order as to costs. (MBC) Appeal accepted.

PLJ 1990 Lahore 206 [Bahawalpur Bench] PLJ 1990 Lahore 206 [ Bahawalpur Bench] Present: MUHAMMAD MUNIR khan, J MUHAMMAD AFZAL-Petitioner versus DISTRICT EDUCATION OFFICER (FEMALE), RAHIMYAR KHAN and 2 others— Respondents Writ Petition No. 803/BWP of 1989 (also WP Nos 804, 835 and 768 of 1989) accepted on 2-7-1989 Civil Services— —Employees of Education Department-Termination of services of- Challenge to-Respondent No. 1 has not passed an independent order- He/She did not apply his/her own mind to question of termination of services of petitioners and virtually obeyed direction of' Minister for Education, Government of Punjab who was not an Authority for this purpose-Held: Impugned orders are without lawful authority and of no legal effect-Petition accepted. [Pp. 207&208JA&B Malik Sajid Feroz, Advocate for Petitioners. Mr Shaheen MasoodRizvi, A.A.G. for Respondents. Date of hearing: 2-7-1989. . judgment As identical questions of law and facts are involved in the four Writ Petitions No. 803/89 filed by Muhammad Afzal, 804/89 by Muhammad Arshad, 835/89 by Mukhtar Ali and 768/89 by Ashiq Hussain petitioners, so I propose to dispose them of through single judgment. 2. The facts leading to these petitions briefly are that the aforesaid petitioners are class-IV employees in Education Department. District Education Officer, respondent No. 1 terminated/cancelled the services/appointments of Muhammad Afzal on 28-1-1989, Muhammad Arshad on 28-2-1989, Mukhtar Ali on 1-3-1989 and of Ashiq Hussain on 28-5-1989, hence these petitions. 3. Learned counsel for the petitioners submitted that the services of the petitioners have illegally been terminated because the District Education Officer, respondent No. 1 has not applied his/her independent mind and has simply obeyed the orders of the Education Minister, Government of the Punjab . Learned A.A.G. has half heartedly supported the impugned orders. 4. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that the District Education Officer, respondent No. 1 has not passed an independent order. He/She has not applied his/her own mind to the question of termination of the services of the petitioners or of the cancellation of their appointments and has virtually obeyed the direction given by Minister for Education, Government of the Punjab, Lahore, who was not an Authority for the termination of the services/cancellation of the appointments of the petitioners. Further-more, the impugned order seems to be arbitrary one, because all appointments made of Class-IV servants or other employees in BS-1 on or after 1-1-1989 in the educational institution (primary/middle/high schools) have simultaneously and arbitrarily been terminated/cancelled without examining the case of the individual employee. Pursuant to the above discussion, the impugned orders are declared to be without lawful authority and of no legal effect. The parties will bear their own costs.

PLJ 1990 Lahore 208 PLJ 1990 Lahore 208 [ Bahawalpur Bench] Present: MUHAMMAD SHARIF, J MUHAMMAD AKBAR and another-Petitioners Versus ADDITIONAL COMMISSIONER(REVENUE) and 3 others-Respondents Writ Petition No 686/BWP of 1988, accepted on 3-6-1989 Land Acquisition Act, 1894 (I of 1894)- -—S.4 read with Punjab Land Acquisition Rules, 1983, Rule 2(///)-Land- Acquisition of—Principle and purpose of—Whether an individual falls within definition of acquiring agency—Question of—Under the Act, land can be acquired for public purpose-Respondent No. 4 installed small wheat grinding and rice husking machines at his premises which cannot be termed for public purpose-Under rule 2 of Punjab Land Acquisition Rules, 1983, acquiring agency means department, local authority or company for which land is being acquired—Respondent No. 4 does not fall within definition of acquiring agency—Held: Respondent No. 2 has acted under an erroneous order of Respondent No. 1 who has displayed a colourable exercise of his power-Petition accepted. [Pp. 209&210]A,B&C PLD 1983 Lahore 355, PLD 1983 Lahore 552, PLD 1976 Lahore 747 and PLD 1983 Karachi 602 ref. Mr. M. Rahim, Advocate for Petitioners. Ch. Muhammad Akhtar Shabbir, Advocate for Respondent No 4. Date of hearing: 3-6-1989. judgment In this constitutional petition Notification dated 5-5-1987 and order of the Deputy Commissioner, Bahawalnagar dated 28-6-1988 have been assailed. 2. The brief facts of this case are that Abdur Rashid respondent No. 4 moved a petition before the Assistant Commissioner, Bahawalnagar that he had installed wheat grinding and rice husking machines in square No. 65/9 fields No. 7 and 14 situate in village Shera Chittra which is at a distance of about three acres from the main road. He wanted a passage through square No. 65/9, fields No. 14 and 15 and square No. 65/13 fields No. 11 and 12 located in village Muhammadpur belonging to the petitioner. The Assistant Commissioner did not find favour with the application of Abdul Rashid as the land was not being acquired for any public purpose and dismissed the application on 12-8-1986. Abdul Rashid lodged an appeal before the Additional Commissioner Bahawalpur Division, who set aside the order of the Assistant Commissioner Bahawalnagar on 21-1-1987 and granted permission to apply to the Deputy Commissioner to acquire the said land. 3. Abdur Rashid moved a petition before the Deputy Commissioner, Bahawalnagar on 7-2-1987 who dismissed his application on 5-7-1987. Abdur Rashid again lodged an appeal before the Additional Commissioner, Bahawalpur and he set aside the order of the Deputy Commissioner and remanded the case. In the meantime, the new Deputy Commissioner, Bahawalnagar had taken over, who forwarded the application to the Assistant Commissioner and the Assistant Commissioner drafted a notice under section 4 of the Acquisition of Land Act, 1894 and sent it to the Deputy Commissioner, Bahawalnagar. It was published in the official gazette on 5-5-1987 and the Deputy Commissioner, Bahawalnagar ordered on 28-6-1988 that the Notification has rightly been published. The same order has been assailed in this writ petition. 4. At the very outset, it has been contended that under the Land Acquisition Act or the Rules framed thereunder, the Additional Commissioner, Bahawalpur Division was not competent to hear the appeal. The learned counsel for Abdur Rashid respondent, Mr. MAkhtar Shabbir, Advocate has scrupulously conceded that there is no provision in the statute or in the rules that the Additional Commissioner can hear an appeal. When the appeal did not lie to the Additional Commissioner, his order and the subsequent orders of the Deputy Commissioner and the Assistant Commissioner fall to the ground. 5. It may also be noted that under section 4 of the Land Acquisition Act 1894, the land is acquired for the public purpose. Abdur Rashid has installed a small wheat grinding and rice husking machines at his premises. Rice husking is a seasonal affair and a few people go to get the wheat grinded, if the need arises. Abdur Rashid has installed his private machine and it can, by no stretch of imagination, be termed for public purpose. In Raja Muhammad Amir and 14 others v. Province of the Punjab and 2 others (PLD 1983 Lah. 355), public purpose was defined to mean a purpose furthering general interests of community as opposed to the particular interest of individual and was to be construed according to the spirit of time in which particular legislation was enacted. In Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. through the Secretary Fortress Stadium Lahore Cantonment and 2 others (PLD 1983 Lah. 552), the same definition of public purpose was repeated. In Muhammad Akbar (through Legal Representatives and 7 others . The Commissioner Rawalpindi Division and 2 others (PLD 1976 Lah 747), It was held that the land of the people could be acquired by State for public surpose only and the Act did not envisage taking of land of one to be given to other. 6. It is pertinent to note that Punjab Land Acquisition Rules 1983 have been framed which were enforced on 22nd February 1983. In rule 2 of para (Hi) of the said rules, acquiring agency means the department, the local authority or the Company for which land is being acquired under the Act. In the instant case, the land is not being acquired by the department or a local authority nor by a Company and Abdur Rashid does not fall within the definition of acquiring agency. 7. The Deputy Commissioner, Bahawalnagar has acted under an erroneous order of the Additional Commissioner, Bahawalpur Division who has displayed a colourable exercise of his power under the direction of his superior. The learned counsel for the respondent has cited Mullah Ghulam All and 3 others v. Tlie commissioner of Karachi and 3 others (PLD 1983 Karachi 602) in which land was (acquired tor public purpose for the construction of a hotel for Scheme No. 3 Xandhi industrial Area and proper Notification was issued. I, therefore, quash jNotification dated 5-5-1987 and the impugned order of the Deputy Commissioner, ' Bahawalnagar dated 28-6-1988 being illegal and based on an erroneous order. The writ petition is accepted with costs. (MBC) Appeal accepted.

PLJ 1990 Lahore 210 PLJ 1990 Lahore 210 [ Bahawalpur Bench] Present: ClIAUDHRY amjad KllAN, J Haji GHULAM QASIM-Petitioner versus WAPDA THROUGH ITS CHAIRMAN AND 2 others-Respondents Civil Revision No. 318/BWP of 1989, dismissed on 4-6-1989 (i) Civil Procedure Code, 1908 (V of 1908)-- -—S.I 15 read with O.XVII R.3-Evidence-Closing of-Suit-Dismissal of- Challenge to—Plaintiff has come up in revision and appellate judgment affirming dismissal of suit is also against him— Burden is on him to make out a case of commission of jurisdictional error in appellate judgment—Held: There is no illegality or error of jurisdiction in appellate judgment—Revision dismissed. [P.212JC&D (ii) Civil Procedure Code, 1908 (V of 1908)-- —-O.XVII R.3~Evidence-Closing of-Suit-Dismissal of-Challenge to-No explanation regarding failure of petitioner to produce evidence, has been attempted to be offered to take his case out of pale of a wilful default—Held: Propriety of action taken under Order XVII Rule 3 CPC against petitioner and liability of his default being visited with penal consequences thereunder remains uncontroverted [P.211JA (iii) Civil Procedure Code, 1908 (V of 1908)-- —-O.XX R.5 read with O.XVII R.3-Evidence-Closing of-Suit-Dismissal of- -Challenge to—Contention that judgment of dismissal of petitioner's suit was not lawful as it has not dealt with each issue and suit was dismissed on account of failure to adduce evidence-Held: Nothing wrong can be said to have been done in bringing about disposal of such case of no evidence because Rule 5 of Order XX itself envisages disposal of entire suit on one or more of issues framed therein. [Pp. 211&212]B Mr. Ali Hassan Gillani, Advocate for Petitioner. Mr. Muhammad Ozair, Advocate for Respondents. Date of hearing: 4-6-1989. judgmknt Petitioner's suit for declaration and perpetual injunction with regard to supply of electric-energy and award of damages; was contested and set down to be tried on a total of 4 issues including that of the relief and plaintiff wa.s called upon to produce his evidence on 29-6-88 and then, for the absence of evidence, on 16-7- 88 when again he requested for being granted an adjournment for the purpose. His request was acceded to and the date 14-9-1988 was fixed for recording of his evidence. On that date evidence of the petitioner was again not present and it seems that even he himself was not in attendance. His counsel appeared but couid not furnish any reasonable explanation for petitioner's failure to produce his evidence. In that situation, learned trial Judge pressed into aid the provisions of Rule 3 of Order XVII of the C.P.C. and closed the case of the petitioner. In consequence, by the same order dated 14-9-1988, he also dismissed the suit for lack or evidence. 2. An appeal thereagainst filed by the petitioner came up for hearing before the learned District Judge who attended to the case and came to the conclusion that all the conditions of Rule 3 of Order XVII of the C.P.C. were satisfied when the trial Judge resorted to closure and proceeded to dismiss the suit of the plaintiff for want of evidence. He also observed that onus of all lliree issues framed in the suit was on the plaintiff and the trial Judge wa.s justified not only in closing the evidence of the plaintiff but also in dismissing the suit for want of evidence. In result, he dismissed the appeal on 22-9-1988. He has now invoked the revisional jurisdiction of this Court. 3. Even a casual denial about the plaintilf-petitioner's failure lo produce hisl evidence in the trial Court has not been made at any stage, muehless has any! explanation been even attempted to be offered regarding this failure to take his' case out of the pale of a wilful default. As such, propriety of Ihe action taken under Order XVII Rule 3 C.P.C. against the petitioner is not in contest in this case and the liability ol his delault beiiiii visited wilh penal consequences, thereunder remains uncontroverted. 4. Solitary argument raised herein is with reference lo Rule 5 of Order XX of the C.P.C'. that the judgment ot dismissal ol the petitioner's suit was not lawlul inasmuch as learned trial Judge was under a duty to have dealt wilh each issue separately (or disposal, may be on account merely of want of evidence but he has not done so and has disposed of the entire suit with the mere observation that it is dismissed on account of failure to adduce evidence. It is true that in making such an observation learned trial Judge had only inaptly expressed himself because what he seemed lo really mean lo say was that with ihe absence of evidence the entire suit had been left un-proved and this would have been enough for its dismissal. The course in view ol the learned counsel really pertains to those cases where some kind ol evidence exists on the record and is not expected lo be lollowcd even in cases where no evidence is adduced at all, like the present one because il the suggested course was lo be adopted even in such-Iikc cases ihen the judgments will become mere monotonous repitilions oi routine sentences. Nothing wrong can be said to have been done in ihe same slalemenl having been made in a consolidated lorm to bring about disposal o! such a c;r-e ol no evidence because Rules 5 (ibid) ilsell cvisancs the disposal ol the entire suil bcinu made 01 lone or more of the issues framed therein and the disposal made by the trial Court | squarely falls under the later category ol' disposals mentioned therein. Be the above as it may, the plaintiff has come up here on revision and the appellate judgment of affirmance of the dismissal of his suit is also against him. Thus, it becomes his burden to make out a case of commission of jurisdictional | error in the judgment passed in the appeal below. Such can certainly not be the lease here because Section 99 of llie C.P.C. forbids the decrees from being Ireversed or cases being remanded in appeal on account of some error, defect or irregularity in the proceedings of the suit without their affecting the merits of the >case or the jurisdiction of the Courl. ll is obvious that the supposed defect in the 'disposal of the suit by the trial Court could not have the consequence of affecting jthc merits of the case and learned District Judge has rightly not set-aside the trial 'Court's decree on the basis of the so-called irregularity in the disposal of the suit. He has diligently given effect to the requirements of that section and there cannot be any question of some illegality or error of jurisdiction being involved in his appellate judgment. 4. Result of the foregoing is that there does not exist any case for exercise of revisional jurisdiction. The revision-petition is liable to fail and is accordingly dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 219 PLJ 1990 Lahore 219 Present: (iui, zarin kiani, J MANZOOR HUSSA1N KHAN-Petitioner versus Mst. ASIA BEGUM and 21 others-Respondents Civil Revision No. 107 of 1990, dismissed on 6.2.1990 Qanun-e-Shahadat, 1984 (P.O. 10 of 1984)-- —Art. 78-Specific performance of agreement-Suit lor-Agreement not proved- Whether suit was rightly dismissed-Question of-Arlicle 78 provides that if a document is alleged to be signed or to have been written by any person, signature or writing must be proved to be in thai persons handwriting—If best evidence is available and withheld from court, it may attract legitimate adverse comments against proof offered—Statement of PW1 coupled with that of plaintiff, was not considered sufficienl by courts below lo prove genuine execution of agreement lo sell—Held: Approach of Courts below to point at issue was correct and there is no reason to take a different view therefrom-Revision dismissed. [Pp.221, 222]A&B Klian KJiizarAbbas Khan, Advocate lor Petitioner. Date of hearing: 6.2.1990 Petition in revision at the instance of the plaintiff arises out of a civil suit filed by him for specific performance of an agreement to sell dated 18-11-1975. Initially, in the result ol an adverse Imdmg recorded on issue No.9, suit was dismissed by the trial Court on l l )-LM l )83. In appeal, this decision was reversed on 19-1-1985 by Additional District Judge, Jhang and the case was remanded to the trial Court for deciding of it afresh. It was again dismissed on 31-10-1987 by the trial Court which held lhal agreement to sell was not proved. In appeal, Additional District Judge agreed wilh this finding and dismissed the appeal on 11.3.1989. Hence, the instant civil revision. Dispute concerns 8 marlas of land hearing khasra No.40/14/3 comprised in khata No.8 situate at mau/a kol Balndur Slnih, Tehsil Shorkot. Il was owned by number of persons including Ahmad hah, aiooq Ahmad Shah and Muhammad Iqbal Shah. On 18-11-1975, latter V ,:c persons, namely, Ahmad Shah, Farooq Ahmad Shah and Muhammad Iqbal Shah acting for themselves and on behalf of some others agreed to sell the aforesaid piece of land to Manzoor Hussain Khan at the sale price of Rs. 1200/-. Terms of the sale agreement were reduced to writing. It was marked Ext.Pl. Aa the sale agreement was not abided, plaintiff sued for its specific performance. To the suit, not only the persons who had agreed to sell this land in dispute but also the persons in whose favour the land in dispute was subsequently transferred by Ext.Dl were also impleaded as defendants. Suit was resisted and genuineness of sale agreement denied. As far defendants 14 to 22, it was submitted that they had purchased the land in dispute from Mahmood Ahmad Shah and others by agreement dated 11-10-1973, had also raised substantial constructions on it and were in its possession. They also submitted that they had no knowledge of the sale agreement in favour of the plaintiff. Pleadings gave rise to as many as 12 issues including that of relief. Plaintiff produced two witnesses in addition to recording his own statement as PW.3. Sale agreement Ext.Pl was proved in the statement of Mohammad Amir, Wasiqa Nawees, PW.l who deposed to its writing by him. Defence was supported by number of witnesses including Altaf Hussain, Deed Writer, DW.2 who proved execution of agreement Ext.Dl. Upon review of this evidence, trial Court found against the plaintiff and dismissed his suit. On issues No.9 and 10 which related to agreement of sale dated 18-11-1975 and passing of consideration under it, it was held that the plaintiff had miserably failed to prove that Ext.Pl was executed in his favour by defendants No.l to 13. It was also held that payment of sale price was not established. In view of the above findings, plaintiff was not found entitled to any relief. Lower appellate Court also agreed with this conclusion. So, both the Courts are agreed that agreement to sell was nol proved and Ext.Pl was not a genuine document. It is manifest from tho above that the fundamental fact requiring decision in the petition for civil revision is about genuineness of agreement to sell marked Ext.Pl or to put it more clearly, whether the defendants 1 to 13 had ever agreed to sell the land in suit to the plaintiff as given in Ext. PI. Ahmad Shah, Farooq Ahmad Shah and Mohammad Iqbal Shah who were shown to have appended their signatures on Ext.Pl undertook to obtain powers of attorney from their relations whose names had been mentioned in the sale agreement to complete the sale of the land in suit in favour of the plaintiff. Their own share in the land agreed to be sold was 2 marlus only. Rest 6 marlas belonged to others from whom they had undertaken to get powers of attorney for completion of the sale on their behalf. It was not denied that the required powers of attorney were not given. In fact, they are denied to have authorised Ahmad Shah and others to enter into sale agreement on their behalf. It was in this view that in appeal filed in the Court below, claim in the suit was confined only to 2 marlas which belonged to Ahmad Shah, Farooq Ahmad Shah and Mohammad Iqbal Shah and the rest of the claim had to be abandoned. Even at the hearing before this Court, learned counsel frankly admitted that even upon proof of genuineness of agreement to sell, plaintiff could nol claim relief beyond 2 marlas of land which was owned by Ahmad Shah, Furooq Ahmad Shah and Mohammad Iqbal Shah. Therefore, the first tiling to be seen is whether the plaintiff had succeeded to deischarge the burden of proof in regard to execution of agreement to sell dated 18-11-1975. Mohammad Amir, Wasiqa Nawees, PW.l deposed that he wrote iqramama Ext.PI at the instance of Ahmad Shah etc and they appended their signatures on it in his presence. Further deposed that required entries were also made in the relevant register. In cross-examination, it v/as admitted that Ahmad Shah etc. were not known to him. As far the marginal witnesses, the witness deposed that he could recognise them in case they were to appear before him. Register Wasiqa Naweesi was not produced in Court as the same was stated to be in custody of a criminal Court in connection with some case. Akbar Ali PW.2 deposed to the sale agreement between the parties. He was neither a witness to the agreement nor was present at the time the bargain was settled. Plaintiffs own self-serving statement about sale agreement and payment of sale price was insufficient to advance his case any further. There were two marginal witnesses to Ext.Pl. None from them came forward to support its execution. No reason was disclosed for withholding them from the Court. They were the best persons to speak on execution of the agreement to sell Ext.Pl. Their nonappearance in Court to give evidence, in default of plausible explanation, not given in the case, attracted adverse comments. Agreement to sell was written on a stamp paper. Stamp vendor too was not produced. As far the deed writer, on his own showing, parties were not personally known to him. To somewhat similar effect, this observation can be extended to the marginal witnesses of the deed also. Therefore, his solitary statement in absence of something more was clearly insufficient to prove genuine execution-of the agreement to sell.True, agreement to sell was not required to be allesled by witnesses and in this view, provisions in Article 79 of the Qanun-e-Shahadal need not have applied. Nonetheless, a document does not prove itself. In case of its denial, party relying upon it must prove its execution in accordance with the modes of proof laid down in the law of evidence. In the istant case, Article 78 of Qanun-c-Shahadat shall apply which provides that if a document is alleged to be signed or to have been written by any person, signature or writing must be proved to be in that person's handwriting. The Article by itself does not lay down any particular mode for proving the signature or the writing. It merely requires the signature or writing to be porved to be in the hand of the person to whom it purportedly belonged. Any mode of proof recognized by law may suffice. However, a litigant is required to observe the rule of best evidence and if the best evidence is available and withheld from the Court, then, it may attract legitimate adverse comments against the proof offered. /Vforestated rule fastens itself upon the plaintiff. Evidence produced by him does not sufficiently discharge the onus of proof resting upon him. Statement of PW.l coupled with that of the plaintiff was not considered sufficient by Courts of fact to prove genuine execution of the agreement to sell. I think, the approach of the Courts below to the point at issue was correct and there is no reason to take a different view therefrom. As the plaintiff had failed to prove agreement to sell in his favour, Courts below were justified in non-suiting him. It was not denied that the land in suit was in possession of defendants 14 to 22 who claimed its purchase from its owners. It was also not in dispute that substantial constructions were raised on the land in the shape of shops and houses. Except for a shop which the plaintiff claimed to have constructed and later given to the defendants on license for which there is no proof, all the shops were constructed by defendants 14 to 22 with their own expense and labour. Admittedly, possession of the land in suit was also with the defendants-purchasers. There was some evidence to prove execution of Ext.Dl and there was no material to cast doubts upon its genuineness. Particularly, when it was shown to have been acted upon by transfer of possession and construction of shops etc. Be that as it may, plaintiff can succeed on the strength of his own case and not upon any alleged weakness in defence of his i adversary. Unless he could prove to the satisfaction of the Court that what he stated was true, he could not be given relief. Looked at thus, agreement to sell relied upon by him having not been proved, his claim for specific performance was rightly dismissed by the Courts below. In this view, no interference in revisional jurisdiction is called for. Accordingly, petition for civil revision is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 222 PLJ 1990 Lahore 222 Present: ijaz NlSAR, J MUHAMMAD ASHRAF-Petitioner versus PRESIDENT, NATIONAL BANK OF PAKISTAN and anothcr-Respondents. Writ Petition No. 1822 of 1988, accepted on 10.2.1990 (i) Natural Justice— —Dismissal from service—Departmental appeal—Acceptance of—Nonimplementation of decision-Effect of-lt is an admitted position that Petitioner's appeal was accepted by Executive Board, order of his re­ instatement was conveyed to Regional Head and it became effective—Power of receding is available subject to exception that where order has taken legal effect and right under it has accrued to any person, such an order cannot be withdrawn or rescinded to detriment of his rights—Admittedly no show cause notice was served on petitioner before withdrawal of order of his re­ instatement—Held: It is violative of principles of natural justice. [Pp.223&224 ]A,B&C PLD 1969 SC 407, PLD 1964 SC 503 and PLD 1973 Quetta 14 rel. (ii) Natural Justice-- —Dismisssal from service-Departmental appeal-Acceptance of-Rescission of order of re-inslatement—Contention that since order of re-instatement had not been acted upon, competent authority could recall same—Right had already accrued to petitioner to claim advantage under said order particularly when it was communicated to relevant authorities for necessary action—Held: Contention is devoid of force because right had already accrued to petitioner- Held further: Order passed by Head Office, National Bank of Pakistan (recalling its earlier order of re-instatement of petitioner) is without lawful authority and of no legal effect-Petition accepted. |Pp.224&225]D&E. Syed Manzoor Hussain Bokhari, Advocate for Petitioner. Mr. Naseem Ahmad X.han, Advocate for Respondents. Date of hearing : 10.1. TWO. order Muhammad Ashraf Grade-II, Officer of National Bank of Pakistan was dismissed from service on the charge of some irregularities on 6-12-1983. He preferred a departmental appeal to President, National Bank of Pakistan, Karachi. The appeal came up before the Executive Board of the Bank presided over by the then President of the bank. After hearing the petitioner, the executive board, accepted his appeal and ordered his re-instatement in service. The decision of the board was duly conveyed to the Regional Head, National Bank of Pakistan, Principal Office, Lahore, vide letter No. Admn. DC.Al: 369/3946 dated 18.11.1984. It was to the following effect: "With reference to your letter No. Admn. Adv. 120 dated 22-5-1984 we have to advise that on re-examination of the case of the above named Ex- Officer the executive board has decided that the punishment of dismissal earlier awarded to Mr. Muhammad Ashraf, Ex-IG-II be rescinded and he be re-instated in the Bank's service w.e.f. the date of his dismissal i.e. 6.12.1983 treating the intervening period from the date of his dismissal to the date of joining duty as extra-ordinary leave without pay conunting towards service only." According to the petitioner the respondent No.2 on account of malice did not allow the petitioner to resume his duty in pursuance of the above order till the issuance of a fresh communication from the Administrative Department of National Bank of Pakistan under reference No.Admn: Dec: 1/86 dated 26-6-1986 to the effect that the appeal of the petitioner stood dismissed. The petitioner made a representation to the President, National Bank of Pakistan, but he was informed on 21-10-1987 that there was no new ground to merit rc-consideralion of his case. 2. The petitioner's contention is that after the acceptance of his appeal and due communication of the order of his reinstatement to the concerned authorities, respondent No.l was not competent to rescind the orders and reject his appeal. The respondents had no authority to pass a contrary order in supersession of the order passed earlier. Hence this Constitutional Petition. 3. The respondents have contested the petition. According to them, the decision contained in Head Office Letter dated 18-11-1984 about his re­ instatement was never conveyed to the petitioner and the petitioner had stolen its copy. The correspondence between the Head Office and the Principal Office is a matter within the Bank. The competent authority of the Bank had withdrawn the decision of re-instatement before the same was conveyed to the petitioner. There was no de-novo proceedings and the petitioner ha,d never been reinstated in service and as such his appeal had been rightly rejected by the competent authority. Lastly, that the petitioner was given personal hearing before the rejection of his second appeal. 4. It is an admitted position that the appeal preferred by the petitioner against his dismissal from service was accepted by the Executive Board and he was ^ ordered to be reinstated in the Bank service with effect from the date of his dismissal i.e., 6-12-1983. The order passed in this behalf was conveyed to the Regional Head, Principal Office, Lahore for necessary action with copies to the other concerned authorities. 5. The question as to the effect of such order was considered by the Supreme Court in two cases, namely, Pakistan v. Himayat Ullah Fraooqi (P.L.D. 1969 S.C. 407) and Lt. Col Butta Charia v. Tlie State and two others (PLD 1964 S.C. 503). In the latter case it was held that "the remission of sentence becomes effective when duly communicated to the Superintendent Jail, who is duty bound to give effect to it in accordance with the Prisons' Act, while in the former case it was held that the order of the President having been duly communicated to Ministry of Communication and the respondent and its implementation thus ensured became a part of terms and conditions of the service of the latter. This point was also subject matter of consideration in Sh. Muhammad Nawaz v. Tlie Secretary, Irrigation and Power, Government of Baluchistan Quetta and another (PLD 1973 Quetta 14). The Division Bench seized of the matter based their judgment on the afore-mentioned cases and held that "the dictum laid down by their Lordships of the Supreme Court appears to be that as soon as the order of the competent authority is communicated to an agency or officer who is required to carry it out, the order is deemed to have become effective." 6. There is no dispute with the rule that the power of receding till a decicive step is taken is available to the Government or the relevant authorities but this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any person, such an order cannot be withdrawan or rescinded to the deteriment of his rights. 7. The petitioner was admittedly not served with any show-cause notice or heard before the withdrawal of the order of his re-instatement into service. This is violative of the principles of natural justice because it is a settled proposition of law 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 the consequences affecting "a person or property or other right of the person concerned." 8. The arguments of the learned counsel for the respondents that since the order of re-instatement had not been acted upon, the competent authority could recall the same seems to be devoid of force because a right had already accrued to the petitioner to claim the advantage given to him under the said order particularly when it was communicated to the relevant authorities. The question as to whether the said order had been acted upon is to be determined by the fact that the authority exercising such power had done that which was necessary for it to make the order effective and when such a step had been taken the order shall be deemed to have been acted upon conferring a right upon the person concerned. The order of re-instatement was duly communicated to the Regional Head NBP, Principal Office, Lahore for necessary action. 9. No substance appears in the contention of the learned counsel for the respondents that the petitioner cannot derive any benefit on the basis of stolen document containing order of re-instatement because it was never conveyed to him. Of course, conduct of the writ petitioner in relation to the relief sought is always relevant and if a person comes with unclean hands he may be refused relief but if he is entitled to the relief, he cannot be declined the same simply because he had produced a document or letter not addressed to him. The basic principle is that relief is to be granted on the merit of the petition. The order of re­ instatement was duly communicated to the Principal Office, Lahore with copies to the Senior Vice President, Personnel Wing, Head Office, Karachi and the Executive Vice President, Finance Division, NBP, Head Office, Karachi by the Administrative Division (disciplinary cases section). As it concerned the petitioner, he was likely to come to know of it and secure a copy of the same for its compliance. In this view of the matter, he cannot be said to have stolen the said letter nor can he be denied relief on the said ground. 9. For the reasons stated above, the order dated 26-6-1986 passed by the Head Office National Bank of Pakistan is declared to be without lawful authority and of no legal effect and that the order dated 18-11-1984 still holds the field and is required to be implemented by the respondents. The petition is accepted with costs. (MBC) Petition accepted.

PLJ 1990 Lahore 225 PLJ 1990 Lahore 225 Present: MUHAMMAD ILYAS, J FAZAL MUHAMMAD-Appellant versus GHULAM ALT and 2 others-Respondents C.M. No. 4762-C of 1990 in RFA 132 of 1989, accepted on 12.2.1990 Limitation Act, 1908 (IX of 1908)-- —S. 5~Delay in filing appeal-Condonation of-Prayer for-Prc-emption suit- After pronouncement of judgment in Said Kamal's case recognizing three qualifications only for claiming right of pre-emption, conflicting views were expressed at level of High Courts about effect of that judgment on pending cases-Eventually it was held by Supreme Court that making of Talabs was not necessary in a pre-emption suit-Appellant is not to blame for not coming in second appeal immediately after dismissal of his first appeal—Held: Appellant was not far wrong in adopting policy of "wait and see" and after coming to know about latest verdict of Supreme Court regarding Talabs, he did not delay matter un-necessarily-Delay condoned. [Pp.226&227JA&B PLD 1986 SC 360 = PLJ 1986 SC 576, PLD 1989 SC 287 = PLJ 1988 SC 224, PLD 1988 SC 412 = PLJ 1988 SC 303, 1988 SCMR 1800(1) and PLD 1989 SC 771 = PLJ 1989 SC 574 re/. Ch. Attaullah, Advocate for Appellant/Petitioner. Date of hearing: 12.2.1990. order This appeal has arisen out of a pre-emption suit, which was dismissed on 21st December, 1988, by a Civil Judge for the reason that necessary Talabs (demands for getting the land sold to another) had not been made by the appellant, Fazal Muhammad alias Fazla, before filing the suit, on the ground that he was a cosharer of the land pre-empted by him. Appellant went in appeal before on Additional District Judge which also met with the same fate on 25th March, 1989. Now, he has preferred this second appeal on 25th October, 1989, which is clearly time barred. 2. The appellant has moved C.M.No.4762-C of 1989 for condonation of delay in filing the appeal. Reasons given by the appellant in support of his plea are that after the dismissal of his first appeal, his counsel advised him not to go in for second appeal in view of the case-law then holding the field. According to the appellant, he is an illiterate person residing in a suburb of Kamalia town where he learnt on 8th October, 1989, from a friend, that the Supreme Court had changed its view and dispensed with the requirement of Talabs in suits like the one filed by him. On the same day, therefore, he filed an application for supply of copies of judgment and decree passed by the learned Additional District Judge which were made available to him on 10th October, 1989 and then he came to Lahore and egaged a counsel on 13th October, 1989, who after preparing his case, filed this appeal on 25th October, 1989. 3. It was submitted by learned counsel for the appellant that since the "law remained in a fluctuating state inasmuch as more than six judgments on point were passed by the superior Courts" and the latest pronouncement has been made va. Ahmad v. Abdul Aziz (P.L.D. 1989 Supreme Court 771 = PLJ 1989 SC 574) so as to enable a co-sharer to claim right of pre-emption without making Talabs, the appellant is entitled to indulgence in the matter of limitation. Reliance is placed by him on East and West Steamship Company v. Queensland Insurance Co, Ltd. (P.L.D. 1961 (W.P.) Karachi 317), Gulab Chand v. Abas All (A.I.R. 1917 Patna 239) and Rajani Kanta Kayal and others . Bistoo Moni Dassi (A.I.R. 1927 Calcutta 718). His submission is that since delay on the part of the appellant was not intentional, it deserves to be condoned. 4. In the case of East and West Steamship Company it was held by the erstwhile High Court of West Pakistan that where an appellant is misled by conflicting decisions and prevailing practice, it is a good ground for condonation of delay. In Gulab Chand's case, delay in presenting an appeal was condoned due to conflicting decisions of the High Court. In the case of Rajani Kanta Kayal and others, the view expressed was that time should be extended where an appellant is probably misled due to decision of High Court giving different opinions of two Judges about limitation. 5. It is a matter of common knowledge that after pronouncement of judgment in Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (P.L.D. 1986 Supreme Court 360 = PLJ 1986 SC 576) (Shariat Appellate Bench), recognising three qualifications only for claiming right of pre­ emption, conflicting views were expressed at the level of High Courts with regard to the effect of that judgment on pending cases. Ultimately, it was held by the Supreme Court in SardarAK and others v. Muhammad All and others (P.L.D. 1989 Supreme Court 287 = PLJ 1988 SC 224) that in case in which decrees were passed in favour of pre-emptors before 31st July, 1986, the target date mentioned in the case of Government of N.W.F.P. through Secretary, Law Department, the old law as existing before the decision of the case of Government of N.W.F.P. through Secretary, Law Department, will apply but in other cases, the law as laid down in the last mentioned case shall be followed. It was also ruled in Sher Muhammad and another v. Allah Ditta and 2 others (P.L.D 1988 Supreme Court 412 = PLJ 1988 SC 303) and Barkat All v. Klian Muhammad and another (1988 S.C.M.R. 1800) (1) that a suit of the pre-emption based on any or all of the said three qualifications also could not succeed if Talabs had not been made in compliance with the injunctions of Islam. Despite these pronouncements, pre-emptors went on struggling to get over the difficulty of Talabs. In this regard, proceedings were taken out before the Supreme Court and it was eventually held by the Supreme Court on 4th September, 1989, in the said case of Ahmad, that making of Talabs was not necessary in a suit of pre-emption. All this is enough to demonstrate that the appellant is not to blame for not coming to this Court, in second appeal, immediately after dismissal of his first appeal by the learned Additional District Judge. He was not far wrong in adopting the policy of "wait and see." After coming to know of the latest verdict of the Supreme Court regarding Talabs, he did not delay the matter unnecessarily and came to this Court as people normally do. In the circumstances, delay in the filing of this appeal deserves to be condoned. 6. Similar view was taken by me on 7th February, 1990 while dealing with Civil Revision No.63-D of 1990, Raja Zahir Ahmad v. Ghulam Mustafa, at Rawalpindi Bench. My learned brother Amjad Khan J. also condoned delay in R.S.A. No.66 of 1989/BWP., Said All Shah v. Badshahzadi Bibi etc., R.S.A. No. 4 of 1990/BWP., Abdul Rahim v. Muhammad Bakhsh etc., R.S.A.No.76 of 1989/BWP., Saleh Muhammad etc. v. Jam Atar and R.S.A.No.72 of 1989/BWP., Mst. Haseena etc. v. Ghulam Muhammad etc., on account of the "fluid state of law of pre-emption." His order, dated the 14th January, 1990, in the case of Abdul Rahim reads as follows:- "To seek condonation of delay in this second appeal maintained on 4.1.1990, it is submitted that no plea of substance may possibly have been urged in the then prevailing fluid state of the law of pre-emption for promptly maintaining this appeal which could only have turned into an exercise in mere futility and thus it became necessary to await the latest view on the points under consideration with the Supreme Court which was published in the month of November, as Ahmad v. Abdul Aziz (P.L.D. 1989 S.C. 771 = PLJ 1989 SC 574). Therefore, condonation of delay in maintaining this appeal is granted." 7. In view of what has gone above, delay in filing of this appeal is condoned.) B C.M.No.4762-C of 1990 is disposed of. ' 8. Learned counsel inter alia contends that according to dictum of the Supreme Court in said case of Ahmad, judgments and decrees passed by the learned lower Courts, dismissing the suit on the ground that the appellant had not made requisite Talabs before filing the suit, are not sustainable. This plea needs consideration. 9. Admit.Notice. 10. Since a short question is involved in this case it shall come up on 4 th March,1990, for final hearing. 11. The District Judge concerned shall be asked to take special steps for timely service of notices on the respondents. 12. Learned counsel does not press C.M.4763-C of 1989. It is disposed of accordingly. (MBC) Delay condoned.

PLJ 1990 Lahore 228 PLJ 1990 Lahore 228 Present: muhammad munir khan, J SAEED AHMAD and 3 others-Petitioners versus TANVEER AHMAD and another-Respondents Civil Revision No. 2301 of 1989, dismissed on 10.12.1989 Civil Procedure Code, 1908 (V of 1908)-- —O.XXIII R.I read with O.II R.2-Previous suit pending-Second suit on same cause of action-Whether barred-Question of-Fresh suit envisaged in subrule (3), Rule 1 of Order XXIII is one which is filed subsequent to withdrawal of earlier suit-Held: Second suit on same cause of action and for same relief already instituted and pending at time of withdrawal of earlier suit, is not barred. [Pp.229&230]A PLD 1983 SC 344 rel. AIR 1947 Lahore 102 and 1987 SCMR 527 dist. Mr. Tariq Masood, Advocate for Petitioner. Rana Muhammad Amin, Advocate for Respondent No. 1 Date of hearing : 10.12.1989. judgment On 5.11.1989 Tanveer Ahmad respondent No.l filed suit for partition of houses No:S.E.32-R-9 and S.E. 32-R-8/80, situte in Lahore , against Saeed Ahmad and 10 others, in the Court of Senior Civil Judge, Lahore . During the pendency of this suit, he filed second suit for the partition of the same property and for the rendition of account against Saeed Ahmad, Sajjad Ahmad, AfsfiSafia Bibi, Myf:Robina Bibi petitioners and Mrt:Anwar Bibi respondent No:2. It may be noted that Saeed Ahmad, Sajjad Ahmad and Mtf:Robina Bibi were also defendants in the first suit. After filing the second suit Tanveer Ahmad respondent No.l withdrew his first suit on 17.4.85 without permission to file fresh suit. On 20.9.1989, present petitioners filed application for the dismissal of the second suit under Order XXIII, rule 1(3) and under rule-2, Order II, C.P.C. In the alternative he prayed for stay of proceedings in the second suit under section 10 read with section 151 C.P.C. The trial Court dismissed the application on 13.11.1989, hence this revision. 2. Learned counsel for the petitioners relied on Amir Din, Sahib Din v. Shiv Dcv Singh, Jhanda Singh (AIR 1947 Lah. 102) and Aziz Ahmad and others, v. MskHajran Bibi & another (1987 S.C.M.R 527), to contend that the bar created by sub rule(3) of rule-1, Order XXIII and rule 2, Order II C.P.C. applies to the second suit instituted by plaintiff/respondent, although before the unconditional withdrawal of his first suit, because second suit offends against the well known maxim that no one shall be twice vexed with one and the same cause of action. He argued that if a plaintiff is allowed to file second suit during the pendency of the first suit and then withdraw the first suit unconditionally, this would entail undesirable consequences giving license to a plaintiff to withdraw his first suit at any stage discovering that his suit is likely to fail and this may also lead to an endless litigation between the parties for the same relief based on the same cause of action, as such trial in the second suit would tantamount to an abuse of the process of Court. On the other hand, the learned counsel for the respondents maintained that the provisions of Civil Procedure Code referred to by the learned counsel for the petitioners do not create any bar for the filing of second suit on the same cause of action and for the same relief, during the pendency of the first suit. He relied on 'Ghulam Nabi and others v. Scth Muhammad Yaqoob and others' reported as PLD 1983 S.C 344. 3. After carefully considering the arguments addressed by the learned counsel for the parties, I feel persuaded to follow the law laid down by the Supreme Court in 'Ghulam Nabi & others v. Seth Muhammad Yaqoob & others' reported as PLD 1983 S.C. 344. The relevant provisions of Civil Procedure Code may also be quoted advantageously: - Order XXIII, Rule 1(3) CPC. "Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." O.2, rule-2 C.P.C "Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished". On the plain reading of the provisions of law reproduced above it becomes crystal clear that the second suit on the same cause of action and for the same relief already instituted and pending at the time of the withdrawal of the earlier suit is not barred because fresh suit envisaged in sub-rule(3) rule-1, order XXIII, C.P.C. is one filed subsequent to the withdrawal of the earlier suit. No doubt, second suit may offend against the well known maxim that no one shall be twice vexed with one and the same cause of action and may give license to a plaintiff to withdraw his first suit at any stage discovering that his suit is likely to fail, but sitting as a court of law, this Court has to administer law within the four corners of the Code and according to the cannons of law regardless of consequences. The case law relied upon by the learned counsel for the petitioners is distinguishable whereas the case law relied upon by the learned counsel for the respondents is on all fours. Pursuant to the above discussion, the revision is dismissed, leaving the parties to bear their own costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 230 PLJ 1990 Lahore 230 Present: MIAN NAZIR AKHTAR, J NOOR MUHAMMAD AND ANOTHER-Appellants versus Ch. LIAQAT ALI KHAN-Respondent CM. No 5576 of 1989 in FAO No. 204 of 1989, accepted on 21-1-1990 Civil Procedure Code, 1908 (V of 1908)-- —O.XLIII Rr. 1 & 3-First appeal-Filing of-Notice served on next day of admission of appeal-Effect of~Admittedly notice was issued on same date when appeal was filed and was actually received by respondent one day after admission of appeal-Thus respondent was deprived of opportunity to appear and contest admission of appeal-Law secures such right to respondent under O. XLIII R.l~Right and interest of respondent was definitely prejudiced-­ Held: Ends of justice can be adequately met if admission order is recalled and appeal is refixed for motion hearing—Admission order recalled, [Pp.23], 233 &234JA&B PLJ 1988 Quetta 74, PLD 1985 Lahore 243 and PLD 1<>83 SC 693 dist. 1985 CLC 168,1988 CLC 448,1984 CLC 1287 and 1987 CLC 1177 ref. Mian Munawar Hussain, Advocate for Appellants. Mr. Rafiq Javed Butt, Advocate for Respondent/Applicant. Date of hearing: 21-1-1990. order This application has been filed by the respondent for dismissal of the appeal on the ground that the mandatory provisions of Order 43 Rule 3 C.P.C. have not been complied with. 2. The learned counsel for the applicant/respondent urged that the object of Order 43 Rule 3 was to afford an opportunity of being heard to the respondent at the pre-admission stage. In the present case, the appeal was filed in the High Court on 7.11.1989 and the notice was posted to the applicant on the same date which was received by him on 9.11.1989 while the appeal was admitted to regular hearing on 8.11.1989. Thus the applicant's valuable right of entering appearance and opposing admission of the appeal was infringed. He further contends that Noor Muhammad etc. appellants had obtained the copy of the impugned order on 1.11.1989 and had sufficient time to serve a notice on the respondent but they deliberately avoided to do so and issued notice on the same date when the appeal was actually filed in the High Court, He further contends that even otherwise the notice was not accompanied by a copy of the memorandum of appeal or the impugned order and was no notice in the eye of law. He seeks dismissal of the appeal by placing reliance on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 S C 693), Siraj Din and others v. Province of Punjab (1984 C L C 1287), Muhammad Siddique and 6 others v, Boota (PLD 1985 Lahore 243) and Haji Muhammad Naeem and another v, Malik Ghulam Nabi and 5 others (PLJ 1988 Quetta 74). On the other hand, the learned counsel for the appellants submits that the notice was issued to the respondent on his correct address and would be deemed to have been received by him. In this connection, he relied on Muhammad Ramzan and another v, Haji Karim Bakhsh and 5 others (1988 C L C 448). He further submits that there is nothing to show that any prejudice was caused to the respondent. He prays that the appeal having been admitted for regular hearing be disposed of on merits. Lastly, he submits that the consequence of dismissal of the appeal for non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. is not contemplated under the law. In this connection, he places reliance on Messrs Haji Sulcman Gowawala & Sons Ltd v. Usman and 13 others (1985 C L C 168), Ghulam Rasul v. Mst Falima (1987 C L C 1177) and Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 C L C 448). 3. Admittedly, the notice in the present appeal was issued on the same date when the appeal was filed in the High Court and was actually received by the respondent on 9.11.1988, one day after admission of the appeal for regular hearing. Thus, the respondent was deprived of an opportunity to appear and contest admission of the appeal. The law secures to the respondent, the right of being heard at the pre-admission stage under Order 43 Rule 3 of the C.P.C. If the said right is infringed, it would amount to a legal injury and prejudice would be presumed. The appellants not only filed the appeal without complying with the pre-requisites for presentation of an appeal but also succeeded in obtaining a stay order against the sale of the disputed property. Thus, the right and interest of the respondent were definitely prejudiced. Now,the question is as to what should be the fate of the appeal which was filed and entertained without compliance of the provisions of Order 43 Rule 3 of the C.P.C.? I am of the considered opinion that the right of appeal which has been provided under Order 43 of the C.P.C. cannot be defeated merely because of the non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. The technicalities of law, as held in the case of Mrs Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 S C 693), are not meant to be a stumbling block in the way of enforcement of rights of the parties. Admittedly, the respondent received the notice on 9.11.1988, though, as claimed y him, without a copy of the impugned order and the grounds of appeal. The learned counsel for the respondent states that he has himself obtained a copy of the impugned order and the memorandum of appeal and has gone through the same. Thus, the ends of justice can be adequately met if the admission order dated 8.11.1989 is recalled and the appeal re-fixed for motion hearing in the presence of the learned counsel for the parties. 4. The judgments relied upon by the learned counsel for the applicant/respondent with a prayer for dismissal of the appeal are distinguishable on facts. In Boota's case, the very issuance of notice was considered to be doubtful and otherwise there was no evidence to show that the notice was at all received by the respondent. In these circumstances, it was held that the provisions of Order 43 were not followed at all. In Haji Muhammad Naeem's case, it was held that mere technical non-compliance of rules was not detrimental to the appeal. In that case the notice to the opposite party was despatched through registered post on 12.7.1987 and the appeal was filed on 13.7.1987, it was actually heard on 15.7.1987. The appeal was not entertained by the learned District Judge, Quetta, vide his order dated 15.7.1987. The said order was maintained by the High Court on the ground that the provisions of Order 43 had not been complied with. Obviously, this case does not deal with a situation in which an appeal has been admitted to regular hearing and thereafter its dismissal is sought for non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. In Mrs Dino Manekji's case, the Hon'ble Supreme Court did not insist upon the technical compliance of the rule where the respondent had voluntarily appeared at the pre-admission stage and was heard. Thus, the object of the law was fulfilled. Hence, the preliminary objection against the judgment of the High Court was rejected by Supreme Court. The question as to what should be done in a case in which the appeal was inadvertently admitted to regular hearing without full compliance of the provisions of Order 43 was not examined in Mrs Dino Manekji's case. This question was directly dealt with by a Division Bench of the Karachi High Court in the case of Haji Sulcman Gowawala and Sons Ltd v. Usman and 13 others (1985 C L C 168). In that case, the appeal was heard on merits for five days after the admission without there being any interim order. The learned counsel for the respondent pointed out that the mandatory notice under order 43 Rule 3 C.P.C was not served and prayed for dismissal of the appeal. It was held "the first note put in this connection is that the rule itself does not provide for a penal action if the appellant proceeds to file an appeal bye-passing the preliminary requirement of informing the respondents of the intended action, nor the language of the rule is capable of spelling a bar to the filing of the appeal without such a notice as was the case with section 80 C.P.C." It was further held, "The prohibitive concept attached to the right of filing a suit without notice is not there. While the right to file an appeal is preserved in-tact, it is subject to a rider of additional duty to be fulfilled before the right is exercised. But if the rider is shaken of and the appellant relying on the dictum laid down in the judgment of the High Court (PLD 1983 Karachi 387), which was yet under appeal before the Supreme Court files the appeal in Court and the Court admits the appeal to regular hearing can or should the process be reversed. Stage of filing has passed. The compliance of the rule could be insisted upon at the time of filing/entertainment of the appeal. The Court could refuse to entertain the appeal. But that stage has been passed. The appeal has not only been entertained but after a preliminary hearing admitted to regular hearing. The best that could be done was to recall any adverse order, re-hear the matter after due notice to the respondents." In Muhammad Ramzan's case, the High Court dis-approved of dismissal of the appeal after its admission on the preliminary objection for not filing an affidavit in proof of service of notice, required under Order 43 of the C.P.C. It was further held in this case that the service of notice sent through registered post was not duty of the appellant. Moreover, they were not supposed to wait for service of the respondent before filing the appeal which could not be thrown out without hearing at the limine stage due to failure of the appellant to produce an acknowledgment receipt or an affidavit for having given a notice. With due respect, I do not subscribe to this later part of the view expressed in Muhammad Ramzan's case. Of course, service of the notice is the responsibility of the postal officials but then the law requires that the acknowledgment receipt be annexed to the appeal in proof of the service having been effected. Thus, ordinarily, the appellant has to wait till the service of notice as contemplated under Order 43 Rule 3,C.P.C. has been effected. In cases involving great urgency a party may file the appeal with an affidavit for having served a notice on the respondent. Filing of an affidavit is also a requirement of the law as declared by the Supreme Court in Mrs Dino Manekji Chinoy's case. Without compliance of these requirements of the law, the appeal cannot be entertained. However, after admission, the appeal cannot be dismissed on the sole ground of mere technical non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. In such a situation, the adverse orders passed in the absence of the respondent should be eliminated from the field and status quo ante be restored for affording an opportunity of being heard to the respondent. In cases where objection to the non-compliance of the provisions of Order 43 CPC is waived by a party, or no adverse order is passed, or no interim relief granted, or a case is thoroughly heard on merits, then the same should be decided on merits. In Siraj Din's case, it was held that the appeal admitted without compliance of the provisions of Order 43 Rule 3 of the C.P.C. could, justifiably, be dismissed. In Ghulam Rasul's case also, view taken was that the appeal filed without complying with the mandatory provisions of Order 43 Rule 3, C.P.C., would be liable to dismissal. In my view, after admission, an appeal cannot be dismissed as being incompetent solely for non-compliance of the procedural formalities without taking into account all the attendant circumstances of the case showing either waiver on the part of the respondent or substantial compliance of the provisions of Rule 3. In a case where there is neither waiver nor substantial compliance of the provisions of Order 43 C.P.C., orders of admission of appeal or injunction may be recalled and the appeal be fixed for motion hearing afresh. Such a course would be in consonance with the maintenance of balance between the appellant's right of appeal and the respondent's right to oppose its formal admission. 5. In the present case, not only the appeal was admitted to regular hearing but interim relief prohibiting sale of the disputed property was also granted to the appellant in the absence of the respondent. The appeal was admitted for regular hearing on the statement of the learned counsel for the appellant (who is a senior and responsible Advocate of this Court) that the provisions of Order 43 Rule 3 of the C.P.C. had been fulfilled. However, when the respondent was served in this case, he promptly filed the present application stating therein that the notice was actually served one day after the admission of the appeal. Moreover, the notice was not accompanied with a copy of the memorandum of appeal or the impugned "Border. The application is duly supported by an affidavit and there is no counter affidavit to controvert the allegations made in the application. Now, the respondent has obtained a copy of the impugned order as well as the memorandum of the appeal and no longer insists to have the copies from the appellants. Hence, I recall the admission order dated 8.11.1989 and the order of the even date prohibiting alienation of the disputed property passed on C.M. No.5055-C/89. The result is that the appeal shall be re-fixed for motion hearing. The learned counsel for the appellants prays that an actual date may be fixed foi; motion hearing of the appeal in the next week to which the learned counsel for the respondent has no objection. With the concurrence of the learned counsel for the parties, the appeal is ordered to be fixed for motion hearing on 29,1.1990. (MBC) Admitting order recalled.

PLJ 1990 Lahore 234 PLJ 1990 Lahore 234 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD ASLAM-Petitioner versus Mst. ZAINAB BIBI and 3 others-Respondents Writ Petition No. 5253 of 1988, dismissed on 24-2-1990 Maintenance— —Wife and child-Maintenance of-Grant of-Challenge to-Whether past maintenance can be allowed for 6 years—Question of—Limitation Act is applicable to procceedings before Family Court—There is no specific article in Schedule to Limitation Act providing limitation for filing suits for maintenance with result that resort must be had to residuary Article 120 of Act which provides 6 years period as limitation—Held: Concurrent findings of fact recorded against petitioner are not liable to interference when no misreading of evidence or non-consideration of any material has been pointed out-Petition dismissed. [Pp.235&236]A,B&C PLD1972SC302re/. Ch. Muhammad Abdus Saleem, Advocate for Petitioner. Syed Hamid AH Shah, Advocate for Respondents Nos. 1 & 2 Nemo, for Respondents Nos. 3 & 4. Date of hearing: 6-2-1990. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impugnes the judgments and decrees dated 17th March, 1988 and 14th of June, 1988 passed by Family Court, Mandi Bahaud Din and Additional District Judge, Gujrat respectively in a suit for maintenance filed by respondents Nos.l & 2. 2. Mst. Zenab Bibi, respondent No.l, was married to the petitioner about 15 years ago and out of this wedlock a son, Muhammad Khalid Masood, respondent No.2 herein, was. born in the year 1968. On 15.1.1987, respondent No.l and 2 filed a suit for recovery of maintenance against the petitioner in the Family Court at Mandi Bahaud Din claiming past maintenance for 12 years as also future maintenance at the rate of Rs.2000/- per month. The suit was contested by the petitioner on various grounds. The Judge, Family Court, Mandi Bahaud Din proceeded to decree the suit on 17.3.1988. Mst Zenib Bibi respondent No.l was allowed maintenance at the rate of Rs.150/- per month from 26.1.1981 to 26.1.1987 i.e. the date on which marriage between her and petitioner was dissolved. Muhammad Khalid Masood, respondent No.2, was held entitled to maintenance at the rate of Rs.150/- per month w.e.f. 13.2.1980. This decree was challenged by the petitioner by filing an appeal which was, however, dismissed by the Additional District Judge, Gujrat. 3. Ch. Muhammad Abdus Salim, learned counsel for the petitioner mainly contended that the Family Court had no jurisdiction to grant maintenance for a period beyond three years of the filing of the suit. It was argued that as the suit in the present case was filed on 5.2.1987, the respondents Nos.l and 2 could at the most have been allowed maintenance from 5.2.1984 and the claim for maintenance for the prior period was barred by limitation and, therefore, unenforceable in law. The learned counsel relied upon Abdul Latif v. Mst. Bakht Bhari and 2 others (1985 C L C 1184) and Mst. Hajran Bibi v. Abdul Khaliq (P L D 1981 Lah.761). Mr. Hamid Ali Shah, Advocate, who has appeared on behalf of the respondents, however, strenuously contended that the limitation for filing a suit for maintenance was six years and not three years as contended by the learned counsel for the petitioner. 4. There can be no cavil that the provisions of Limitation Act, 1908 are applicable to proceedings before the Family Court and further that section 3 of the Limitation Act obliges a Court in no unmistakable terms to reject the claim ifj it is beyond the time prescribed by the first Schedule to the Act. There is noj specific article in the Schedule providing limitation for filing suits for maintenance, with the result that the resort must be had to the residuary article 120 of the Limitation Act which prescribes 6 years period as limitation. A Division Bench of this Court in Muhammad Nawaz v. Mst. KJiurshid Begum and others (W.P.No. 835 of 1969) decided on 15th December, 1969 was called upon to consider the question as to whether the past maintenance could be granted by the Arbitration Council under the Muslim Family Laws Ordinance, 1961, and if so, for what period. It was held: ".. It is conceded by the learned counsel that there is no article in the Schedule to the Limitation Act dealing specifically with the questions of the recovery of past maintenance, and for that reason the matter may be said to be governed by the residuary article 120 which prescribes a period of six years. The past maintenance in the present case has been allowed by the Arbitration Council expressly for a period of five years and ten months which would, therefore, appear to be within the period of limitation as obtaining under article 120 of the Schedule to the Limitation Act." This judgment was affirmed in appeal by the Supreme Court of Pakistan in the case reported as Muhammad Nawaz v. Mst. KJiurshid Begum and three others (P L D 1972 S.C. 302). The above quoted observations of the Division Bench were approved by the Supreme Court in the following terms:- ".. In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance." 5. The learned counsel for the petitioner was unable to cite any specific article of the Limitation Act but contended that since past maintenance was a debt due, the limitation for filing such a suit would be three years. In view of the authoritative pronouncement of the Supreme Court as also by the Division Bench of this Court this submission of the learned counsel cannot be given any weight. The learned counsel attempted to distinguish the above cited precedents by urging that in those cases the matter arose under the Muslim Family Laws Ordinance, 1961 while in the present case the proceedings have arisen out of a suit filed under the Punjab Muslim Family Courts Act, 1964. The distinction sought to be drawn by the learned counsel is more illusory than real. Both under the Muslim Family Laws Ordinance, 1961 as also the Punjab Muslim Family Courts Act, 1964 the Arbitration Council or the Family Court are called upon to grant maintenance by enforcing the same substantive law namely Muslim Law which requires a husband/father to maintain the neglected wife and children. It is interesting to point out that the learned counsel in support of the proposition that the limitation in matters of past maintenance is three years has himself relied upon Abdul Latif v. Mst. Bakht Bahri and two others (1985 C.L.C. 1184) which arose out of proceedings under the Muslim Family Laws Ordinance, 1961. As regards the reliance of the learned counsel on Abdul Latif s case , it is to be noticed that the question of limitation was not discussed in detail and was not in issue before the Court as the dispute was as to whether the maintenance can be granted for children by the Arbitration Council under the Muslim Family Laws Ordinance. In these circumstances, there is no merit in the contention of the learned counsel for the petitioner that Article 120 of the Limitation Act, 1908 has no applicability. It was next contended that there was no justification for the two Courts below to have decreed the claim of respondents Nos.l & 2. However, there are concurrent findings of fact recorded against the petitioner by both the Courts which are not liable to be interfered with in the exercise of constitutional jurisdiction of this Court especially when no misreading of evidence or nonconsideration of any material has been pointed out. For the foregoing reasons, I find no merit in the writ petition. It is dismissed with no order as to costs.

PLJ 1990 Lahore 234 PLJ 1990 Lahore 234 Present: MALIK MUHAMMAD QAYYUM, J MUHAMMAD ASLAM-Petitioner versus Mst. ZAINAB BIBI and 3 others-Respondents Writ Petition No. 5253 of 1988, dismissed on 24-2-1990 Maintenance— —Wife and child-Maintenance of-Grant of-Challenge to-Whether past maintenance can be allowed for 6 years—Question of—Limitation Act is applicable to procceedings before Family Court—There is no specific article in Schedule to Limitation Act providing limitation for filing suits for maintenance with result that resort must be had to residuary Article 120 of Act which provides 6 years period as limitation—Held: Concurrent findings of fact recorded against petitioner are not liable to interference when no misreading of evidence or non-consideration of any material has been pointed out-Petition dismissed. [Pp.235&236]A,B&C PLD1972SC302re/. Ch. Muhammad Abdus Saleem, Advocate for Petitioner. Syed Hamid AH Shah, Advocate for Respondents Nos. 1 & 2 Nemo, for Respondents Nos. 3 & 4. Date of hearing: 6-2-1990. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impugnes the judgments and decrees dated 17th March, 1988 and 14th of June, 1988 passed by Family Court, Mandi Bahaud Din and Additional District Judge, Gujrat respectively in a suit for maintenance filed by respondents Nos.l & 2. 2. Mst. Zenab Bibi, respondent No.l, was married to the petitioner about 15 years ago and out of this wedlock a son, Muhammad Khalid Masood, respondent No.2 herein, was. born in the year 1968. On 15.1.1987, respondent No.l and 2 filed a suit for recovery of maintenance against the petitioner in the Family Court at Mandi Bahaud Din claiming past maintenance for 12 years as also future maintenance at the rate of Rs.2000/- per month. The suit was contested by the petitioner on various grounds. The Judge, Family Court, Mandi Bahaud Din proceeded to decree the suit on 17.3.1988. Mst Zenib Bibi respondent No.l was allowed maintenance at the rate of Rs.150/- per month from 26.1.1981 to 26.1.1987 i.e. the date on which marriage between her and petitioner was dissolved. Muhammad Khalid Masood, respondent No.2, was held entitled to maintenance at the rate of Rs.150/- per month w.e.f. 13.2.1980. This decree was challenged by the petitioner by filing an appeal which was, however, dismissed by the Additional District Judge, Gujrat. 3. Ch. Muhammad Abdus Salim, learned counsel for the petitioner mainly contended that the Family Court had no jurisdiction to grant maintenance for a period beyond three years of the filing of the suit. It was argued that as the suit in the present case was filed on 5.2.1987, the respondents Nos.l and 2 could at the most have been allowed maintenance from 5.2.1984 and the claim for maintenance for the prior period was barred by limitation and, therefore, unenforceable in law. The learned counsel relied upon Abdul Latif v. Mst. Bakht Bhari and 2 others (1985 C L C 1184) and Mst. Hajran Bibi v. Abdul Khaliq (P L D 1981 Lah.761). Mr. Hamid Ali Shah, Advocate, who has appeared on behalf of the respondents, however, strenuously contended that the limitation for filing a suit for maintenance was six years and not three years as contended by the learned counsel for the petitioner. 4. There can be no cavil that the provisions of Limitation Act, 1908 are applicable to proceedings before the Family Court and further that section 3 of the Limitation Act obliges a Court in no unmistakable terms to reject the claim ifj it is beyond the time prescribed by the first Schedule to the Act. There is noj specific article in the Schedule providing limitation for filing suits for maintenance, with the result that the resort must be had to the residuary article 120 of the Limitation Act which prescribes 6 years period as limitation. A Division Bench of this Court in Muhammad Nawaz v. Mst. KJiurshid Begum and others (W.P.No. 835 of 1969) decided on 15th December, 1969 was called upon to consider the question as to whether the past maintenance could be granted by the Arbitration Council under the Muslim Family Laws Ordinance, 1961, and if so, for what period. It was held: ".. It is conceded by the learned counsel that there is no article in the Schedule to the Limitation Act dealing specifically with the questions of the recovery of past maintenance, and for that reason the matter may be said to be governed by the residuary article 120 which prescribes a period of six years. The past maintenance in the present case has been allowed by the Arbitration Council expressly for a period of five years and ten months which would, therefore, appear to be within the period of limitation as obtaining under article 120 of the Schedule to the Limitation Act." This judgment was affirmed in appeal by the Supreme Court of Pakistan in the case reported as Muhammad Nawaz v. Mst. KJiurshid Begum and three others (P L D 1972 S.C. 302). The above quoted observations of the Division Bench were approved by the Supreme Court in the following terms:- ".. In the present case, the High Court has considered the question of limitation and has come to the conclusion that Article 120 of the Limitation Act applies to the facts of the present case and the claim of the respondent was not barred by limitation. In this view of the matter, we are satisfied that the High Court has rightly held that the Arbitration Council was competent to award past maintenance." 5. The learned counsel for the petitioner was unable to cite any specific article of the Limitation Act but contended that since past maintenance was a debt due, the limitation for filing such a suit would be three years. In view of the authoritative pronouncement of the Supreme Court as also by the Division Bench of this Court this submission of the learned counsel cannot be given any weight. The learned counsel attempted to distinguish the above cited precedents by urging that in those cases the matter arose under the Muslim Family Laws Ordinance, 1961 while in the present case the proceedings have arisen out of a suit filed under the Punjab Muslim Family Courts Act, 1964. The distinction sought to be drawn by the learned counsel is more illusory than real. Both under the Muslim Family Laws Ordinance, 1961 as also the Punjab Muslim Family Courts Act, 1964 the Arbitration Council or the Family Court are called upon to grant maintenance by enforcing the same substantive law namely Muslim Law which requires a husband/father to maintain the neglected wife and children. It is interesting to point out that the learned counsel in support of the proposition that the limitation in matters of past maintenance is three years has himself relied upon Abdul Latif v. Mst. Bakht Bahri and two others (1985 C.L.C. 1184) which arose out of proceedings under the Muslim Family Laws Ordinance, 1961. As regards the reliance of the learned counsel on Abdul Latif s case , it is to be noticed that the question of limitation was not discussed in detail and was not in issue before the Court as the dispute was as to whether the maintenance can be granted for children by the Arbitration Council under the Muslim Family Laws Ordinance. In these circumstances, there is no merit in the contention of the learned counsel for the petitioner that Article 120 of the Limitation Act, 1908 has no applicability. It was next contended that there was no justification for the two Courts below to have decreed the claim of respondents Nos.l & 2. However, there are concurrent findings of fact recorded against the petitioner by both the Courts which are not liable to be interfered with in the exercise of constitutional jurisdiction of this Court especially when no misreading of evidence or nonconsideration of any material has been pointed out. For the foregoing reasons, I find no merit in the writ petition. It is dismissed with no order as to costs. (MBC) Petition dismissed. PLJ 1990 Lahore 237 Present: KHALILUR REHMAN KHAN, J ITTEFAQ FOUNDARIES (PRIVATE)LTD-Petitioner Versus FEDERATION OF PAKISTAN and 2 others-Respondents Writ Petition No. 4607 of 1989, accepted on 27-1-1990 (i) Constitution of Pakistan, 1973-- —Arts. 2-A, 4, 18 & 25-Excise duty and sales tax-Levy of-Exemption to "ingot" but not to "billet"—Whether power to grant exemption has been exercised reasonably and whether exercise of power is beyond reach of power of judicial review-Question of-Under Article 2-A~Objectives Resolution is made substantive part of Constitution—Exploitation of all forms is sought to be eliminated under Article 3-Rights guaranteed in Constitution are to be secured and preserved-Different treatment to products which are physically same and are similar or are put to same use, would be violative of equality clause and imposition of different rate of tax may result in discrimination-It is not shown that since June/July, 1989, what changes took place in market or what factors were considered for according different treatment to two products which hitherto before were being taxed at par-Held: Claim of Government that impugned notifications are beyond reach of administrative law, cannot be accepted without qualification-Held further: Provisions of Articles 4 and 25 were not deeply considered. [Pp.253,254&257]D,E,F,G&H AIR 1986 SC 515, 1947 AER 680, PLD 1957 SC 9, PLD 1958 SC 41, 1979 SCMR 640, NLR 1983 Tax 43, 297 US 366 and PLD 1976 SC 277 ref. (ii) Constitution of Pakistan, 1973-- —Articles 4, 18 & 25-Excise duty and sales tax-Levy of~Classification of articles—Whether discriminatory—Question of—No doubt State has wide powers to select persons or objects for taxing them and relevant statute is not open to attack, but challenge can successfully be made on basis that within range of selection, law operates unequally-Law will be operating unequally if classification cannot be justified—Held: Fact cannot be lost sight of that "ingots" and "billets" both products were being classified as one and same product for purposes of excise duty and sales tax. [Pp.257 & 258]J (iii) Constitution of Pakistan, 1973-- —Articles 4, 18 & 25-Excise duty and sales tax-Levy of-Challenge to- Whether different treatment to "billet", product of Petitioner Foundary, is arbitrary and unreasonable-Question of-Held: Charging of excise duty and sales tax at rates given in letter dated 5-7-1989 is without lawful authority. [Pp.258&259]L (iv) Constitution of Pakistan, 1973- —Articles 4, 18 & 25-Excise Duty and sales tax-Levy of-Exemption to "ingot" and not to "billef'-Whether justified-Question of-Contention that purpose of exempting "ingot" from excise duty and charging sales tax at lesser rate, is to protect "ingot" producers who are meeting 80% of market requirement, and are in need of protection against modern, well equipped and financially sound "billet" producers—Standing Counsel for Federal Government is not even aware as to how many are "ingot" producers and what is annual production of "ingot" or "billet"—In addition to these factors, interest of consumers, effect of prices in market and some other factors are to be kept into consideration while granting exemption—Held: In absence of sufficient material justifying impugned levy, same stands vitiated. [P.258JK (v) Constitution of Pakistan, 1973- -—Articles 4, 18 & 25--Excise duty and sales tax-Levy of--Exemption to "ingot" but not to "billet"—Whether power to grant exemption has been exercised reasonably and with a view to achieve objectives of law itself- Question of-Levy of excise duty as well as sales tax on two products at different rates is assailed as discriminatory, unreasonable, irrational and prejudicial to public interest-Counter-contention that exemption from tax is a matter of grace—No cavil to proposition that exemption exists only by vritue of constitutional or statutory provisions and that right to immunity is not imherent right of any person—But to be treated in accordance with law, is recognized as inalienable right of a citizen—Held: Proposition that grant of exemption from tax is matter of grace, cannot be accepted. [Pp.247,251&252]A,B&C 1976 AER 697, 1984-3 AER 935, 389 US 258 (Lawrence Edition 508), AIR 1974 SC 555, AIR 1978 SC 597, AIR 1979 SC 1628, AIR 1981 SC 487, AIR 1986 SC 515 and 1986 SCMR 1917 ref. (vi) Constitution of Pakistan, 1973-- —-Art. 199-Discretionary relief-Grant of-Notifications not expressly challenged in writ petition-Relief in respect thereof-Whether can be granted—Question of—It is true that two notifications have not been particularly mentioned in petition but explanation is that neither notifications nor basis for instructions issued vide impugned letter were provided to petitioner-Same were provided on direction of Court-Neither this objection was taken in written statement nor copies of notifications were attached therewith-Held: Technicalities cannot prevent High Court from exercising its constitutional jurisdiction and affording relief which otherwise petitioner is entitled to receive-Petition accepted. [P.261JM M/s KJialid M. Ishaqiie andAshtarAusafAH, Advocates for Petitioner. Qureshi Muhammad Hafeez, Standing Counsel for Government of Pakistan, for Respondents. Dates of hearing: 28 and 29-10-1989 and 18,19, 20, 21, 22 and 28-11-1989. judgment This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking declaration to the effect, that the Notification dated 10th of July, 1989(under Section 7, Sales Tax Act, 1951); the letter of C.E. & S.T. Circle II, Lahore, dated 5th of July, 1989(intimating revised rates of Central Excise Duty and Sales Tax on billets/Ingots), and the oral order on which the above said letter is based as well as the relevant provisions of Finance Act, 1989, are without lawful authority and hence of no legal effect. It is further prayed that the petitioner be permitted to sell the products already produced before the introduction of impugned tax without additional burden of the new impost and the current production on such terms as the Court may deem fit to impose. Any other relief deemed fit and available together with costs has also been prayed in the petition. 2. The petitioner, a private limited Company, is producing semi-finished products for steel industries in Pakistan. According to petitioner, its foundary primarily produces, what is commonly known as 'Bill', an Urdu slang of the English word 'Billet' which in the market is also applied to 'ingots' as both 'Billet' and 'Ingot' are produced and made available in the market for further production of goods by re-rolling, forging and other methods. It was explained that distinction in the usage of 'Ingot' and 'Billet' came about only since 1923 when a new way of making steel by continuous casting became common to the industries. The old method of Ingot production is through old blast furance/open hearth furnace system wherein after heating, the liquid steel is tapped into a refractory-lined open-topped vessel called a steel ladel which is moved by an overhead crane to a pouring platform where the steel is then poured into a series of moulds of the desired dimension. The steel solidifies in each of the moulds to form a casting called an 'Ingot'. Internationally Ingots are now produced for further working by the new method of melting by using electric furnace. It was stated that the foundaries producing Ingots in Pakistan are using electric furnaces due to its efficiency and economy and that so far as the end products are concerned, 'Billets' and 'Ingots' are used for entirely identical purposes and products, though the plants using continuous casting system have greater option in providing required shape of the Ingots and is capable of larger production. 3. The continuous casting system is based on heavy capital cost unlike Ingot moulden system. It is a process wherein liquid steel is poured directly into semi­ finished shapes(such as slabs, blooms, blanks or billets). This process is growing in use, is modern and efficient as it eliminates the need for heavy rolling-mill equipment. In this process, liquid steel is poured via a tundish into a water-cooled copper mould and as casting commences, the bottom of the mould is sealed with a dummy bar onto which the steel solidifies. The solidified cast product is removed continuously by way of a direct spray-cooling withdrawal roll and cut-off system, maintaining a desired molten metal level with copper mould. Once cut off, the cast product is discharged onto a cooling bank. It was also explained that since the early 1940s, continued research and development have resulted in the perfection of methods for continuous casting of molten steel directly into the form of slabs and billets, by by-passing the ingot stage and the necessity for hot-rolling operations formerly required to produce such products. In sum, the advantage of use of continuous casting is that it does away with several complicated steps of steel making-pouring steel into Ingot moulds, heating the Ingots in soaking pits and passing them through a rolling mill to make blooms, slabs and billets. "By this arrangement the cost of blast furnaces, coke ovens, soaking pits and large rolling mills is avoided." (The New Book of Knowledge, Vol.19 page 406). 4. The petitioner produces the billets entirely through continuous casting. It is its plea that both Ingots and Billets were taxed or exempted from tax in absolutely identical terms year after year, since the time that blooms, billets and slabs appeared in Pakistan Custom Tariff, and that the petitioner, on the assumption that the tax burden on goods produced by it would be the same, has produced large quantities of goods, which it cannot possibly sell after adding the newly imposed tax burden of the Excise Duty and the Sale Tax. The petitioner came to know of this additional tax burden on receipt of Memo dated 5th July, 1989 to the effect that the Central Excise Duty and Sales Tax will be charged as under:- Name of Product Rate of Central Excise duty. Rate of Sales tax. Billet Ingot Rerolling products Rs.600/-M.Ton. Nil Nil 12 1/2 % Rs.375/- M.Ton. Rs.l75/-M.Ton. 5. The plea of the petitioner is that this change of policy was calculated to cripple the petitioner who uses the modern method of production of an item i.e. billet and whose end use is exactly the same as that of the traditional ingot and that the actual effect of the new tax discloses the mala Sde of the whole exercise as under:- ' Name of Product Rate of Import duty • Rate of C.E. Duty Rate of Sales Tax Billet Ingot Re-rolled products Scrap-imported Rs.1500/- M.Ton. Rs.600/-M.Ton Nil Nil Nil 12% % Rs.375/- M.Ton. Rs.175/- M.Ton. 12% % It was pleaded that different treatment of both the items is not only discriminatory but also unwarranted as; (a) Both Billet/Ingot are cast from re-meltable steel scrap. (b) Both Billet/Ingot are processed through Bessemer, Thomas, Siemens, Martin, Armco or Electric processes. (c) Both Billet/Ingot can be square or rectangular. (d) Both Billet/Ingot are Semi-Finished products. (e) Both Billet/Ingot are used for re-rolling into bars, rods, angles, shapes and sections or for the manufacture of forgings and other finished products. 5. The case of the petitioner is that traditionally duties and taxes on Ingots/Billets were akin in order to maintain parity of cost as both are meant to roll similar finished products and hence the cost of production of these items has to be equivalent? It-was added that the levy of additional tax burden on Billet places unreasonable burden on the producers of Billet specially the petitioner which is the major producer of Billet in the private sector and as such this action is violative of Article 18 of the Constitution. It was submitted that the respondent-Government has not disclosed any basis or reason for giving different treatment to the two products which were being taxed earlier for years at the same rate. It was asserted that the relevant factors were not at all considered and the delegated legislative power was abused acting in mala fide manner, and that additional burden was placed on billet to cause unbearable financial loss to the petitioner with the view to put it out of market. It was argued that aforenoted assertions stand established as the concerned quarters i.e. Ministry of Finance have not controverted the same by filing any written statement. 7. The aforesaid plea was specifically advanced as a written statement under the signature of Assistant Collector, respondent No.3 was filed by the learned Standing Counsel, on behalf of all the respondents (Federation and the Superintendent Central Excise Circle II. Lahore) and that too without any supporting affidavit. The stand taken in the written statement is that Ingot is a primary product while Billet is a semi-finished product, both are produced through different processes, and that what is obtained through continuous casting process is commercially, technically and legally called 'Billet' while the product which is obtained by pouring molten steel into moulds, healing and soaking in pits is known as 'Ingot' and that 'Billet' can be produced from 'Ingot' but Ingot cannot be produced from Billet. So both are factually and legally two distinct products and are also separately classified under Pakistan Custom Tariff. (Items 73.06 and- 73.07. P.C.T.). It was also asserted that cost of production of Billet is much less than the cost of production of Ingot; that quality and quantity of production of billet is incomparable with the quality and quantity of production of ingot and that the difference in prices of billet and the end-products of Billet from the prices of Ingot and end-products of Ingot ranges from Rs.1000/- to Rs.25000/- per M.Ton. 8. The pleas of granting advantage to one product and discriminating the other arbitrarily arid thus being priced out of market, were denied by asserting that economic decisions like production, marketing and pricing are not based on assumptions and it is incorrect to say that because of exemption given to Ingot, the petitioner will not be able to sell its product, as sales tax and excise duty are payable by all the producers of 'Billet' which include M/S Punjab Steel Mills Shahdara, the only other private Sector producer of billet and Pakistan Steel Mills, a State Enterprise who are the largest producers of billet, without any distinction and that in any case this Court in constitutional jurisdiction cannot enquire into questions of trading, market conditions, cost of production, and pricing. It was argued that though Billet and Ingot were subjected to identical rates of Excise Duty and Sales Tax or were being allowed exemption from tax or duty on 'identical terms' but from that it cannot be inferred and that would not make both the products classifiable under one item. The plea of mala fide exercise of delegated legislative power was also refuted by saying that no new tax or additional burden has been levied and that akinness of duties and taxes on both the products cannot be a determining factor. It was also contended that exemption of one item or the other item from payment of already levied tax is a matter of grace and not a right and exists only by grant; that the Courts cannot go into, or question, the right of the Government to exempt one or the other item and nobody can claim, as a matter of right, exemption from tax on any basis or that any other item has been exempted. It was further added that in any case grant of exemption from tax is a matter of grace and exemption is granted by the Government taking into consideration various factors which are not subject to enquiry, investigation or jurisdiction of this Court, 9. The assertions as to the effect of the impugned Notification, rates of Excise duty, sales tax and exemptions, advanced by the petitioner were replied to in general terms. In reply to the assertion that the petitioner imports about 70% of the total imported scrap, it was stated that the figures quoted are not supported by any authentic source and so the same require verification. It was, however, added that it is just, fair and in conformity with the principles of free competition that an item which fetches higher price should bear higher tax incident while another item which fetches lower price should have a lower tax incident as it is in line with the principles of progressive taxation and ensures free competition, hence, neither Article 18 nor Article 25 of the Constitution has any application to the case. It was further pleaded that the Letter containing administrative direction cannot be assailed in writ jurisdiction as the petitioner can neither be aggrieved of these administrative directions nor of the Notification dated 10.7.1989 granting exemption as in case this notification is rendered ineffective, the result would be that both Ingot and Billet would be subject to Sales Tax @ 12 1/2% of the value. The plea as to availability of remedies under the Central Excise Law and Sales Tax Act was however, not pressed during arguments. Learned Standing Counsel during arguments finally stressed that Finance Act, 1989 does not deal with the impugned levy or exemption and that notification of exemption having not been challenged, no relief can be granted to the petitioner. 10. The petitioner as is apparent from above paras, feels aggrieved as in the matter of allowing exemption from payment of Excise Duty and Sales Tax, the Federal Government in exercise of delegated power has given to its product 'Billet' a treatment different from that extended to the producers of Ingot as eventually the producers of Billet have been made to pay excise duty and Sales Tax at higher rates. In order to appreciate the grievance made, the position of the Excise Duty and the Sales Tax imposed in the past as well as the provisions of the relevant law may appropriately be noted:- (A) Excise Duty. (/) Section 3 of the Central Excise and Salt Act, 1944 provides that there shall be levied and collected in such manner as may be prescribed duties of excise on all exciseable goods and service produced, provided or rendered in Pakistan as and at the rates set forth in the first Schedule. The relevant item of the First Schedule as it read before amendment was as under:- Item No. Description of goods Rate of duty. 09.04 Steel Ingots--"Steel INGOTS" means the product obtained by processing iron ore, pig iron, or iron scrap or any other ferrous raw material, whether cast into a mould in any shape or form or whether used in molten or semi finished state for the manufacture of rolled or forged or formed steel products. Rupees forty nine and fifty paisas per tonne (//) Section 12-A empowers the Federal Government to exempt by notification, from time to time, any goods, class of goods or any services or class of services subject to such conditions if any as may be specified, from the whole or any part of the duty leviable under the Act. The Federal Government vide Notification S.R.O, 555 (l)/79 dated 28th June, 1979 exempted Steel Ingots (Item No.09.04) from the whole Excise duty and thus Duty payable was Nil. This position prevailed till 14th July 1988 as through Ordinance No.Ill of 1988 (Central Excise and Salt Act (Amendment) Ordinance, 1988) entry pertaining to Item No.09.04 Steel Ingots of the first Schedule was substituted as under:- Itcm Description of goods Rate of duty. 09.04 INGOTS, Billets, slabs and Rs.2000/-per M.Ton. On the same date i.e. 14ih July 1988 Federal Government issued Notification S.R.O. 614 (l)/88 whereby payment of duly in excess of Rs. 600.00 was exempted by amending aforequotcd Notification SRO-555 (l)/79 dated 28-6-1979. The relevant extract of the Notification substituting the entries reads:- Item Description of goods Rate of duty. 09.04 (a) Iron and Steel INGOTS, Billets, Slabs and sheet bars. (b) Others. Six hundred rupees per tonne. Nil. (///) The Ordinance 111 of 1988 was repealed by Ordinance 23 of 1988 which was promulgated on 5th November. 1988 but was enforced with effect from 26th October, 1988 (See PLD 1989 Central Statutes 25). Thereafter, Finance Act, 1988 (Act VI of 1988) enforced with effect from 26th December, 1988 again substituted amongst others the entries of First Schedule to the Central Excise and Sal! Act 1944 pertaining to item No.09.04 precisely in the same way as was doiie by Ordinance No.Ill of .1988. Then S.R.O. 555 (l)/89 was issued on 3-6-1989 by the Government whereby the word 'INGOT' was omitted from entry against Item No.09.04 appearing in Notification SRO.614 (l)/88 dated 14-7-1988. (;V) The position of Excise duty, at one glance would be as under. Time Relevent law Entries of first 1 2 3 4 5 Prior to July, S.3, Central Excise and Salt Act read with first Item Descrip­tion of goods Rate of duty ' Extent Exemption Notifications schedule 09.04 "Steel INGOTS" (as defined) Rs.49.50 per tonne. I-SRO.555 (I)/ 79 Dated 28-6-1979. NIL 14-7-88 Ord. Ill (PLD 1988 S.C. 137). 09.04 INGOTS Billets, Slabs & Sheet Bars. Rs.2000/- SOR-614 (I)/ 88 dated 14-7-1988 (1) Iron & Steel INGOTS Billets, Slabs & sheet bars 5-11-1988 . Ord.23 of 1988 enforced w.e.f. 26-10-1988. Repealed Ord.lII Rs.600/- (2) others-Nil of 1988. 26-12-88. (I)/ Act VI '09.04' of INGOTS Billets Rs.2000/- per tonne. III-SRO-555 89 dated 3-6-1989 1988. slabs & word 'INGOT' sheet bars. omitted from above said Notification. (B) Sales Tax. (1) The position of levy of Sales Tax may now be summarized. Section 3 (2) of the Sales Tax Act 1951 provides that tax shall be at the rate of 12 and half per cent on the value of goods. Section 7 empowers the Federal Government lo exempt any goods from the lax payable under the Act. (2) The exemplion Notifications issued from lime lo lime and relevant lo ihe queslions raised may now be noled. (I) SRO-666 (1)/S1 dated 25-6-1981, S.No. Description of goods. Extent of exemption 57 Iron and Steel falling Whole within the headings 73.01 to 73.09, 73.15, 73.18 and 26.01 , (II) S.R.O. 523 (l)/88 dated 26-6-1988 amended the above said Notification. The amended column pertaining to description of goods reads:- "Iron and steel (except ingots, billets, and mild steel products, all sorts of re-rolling mills including bars, rods, coils, wires, joints, girders, angles, channels, tees, flats, beams, Zeds, trough, piling and all other rolled forged, formed, or extruded shapes and Sections)" falling within the heading 73.01 to 73.09, 73.15, 73.18 and 26.01 (III) SRO-566 (l)/89 dated 3rd of June, 1989 superseded the notification SRO- 666 (1)/81 dated 25-6-1981 and in this notification Item No.57 as appearing in the aforcnoted two notifications was not included. As Item No.73.06 INGOT & 73.07 Billet of P.C.T. were not included in the notification of exemption, the Sales Tax as provided under Section 3 (2) ©12 1/2 per cent on the value was payable in this period. (IV) SRO-734 (1).89 dated 10-7-1989. Exempting Sales Tax as is in excess of the amount specified in column No.4 of the table below. S.No. Description of goods P.C.T. heading No. Rate 1 •> 3 4 ' 1. 9 INGOTs Bars, rods (including wire rods) angles, shapes and 73.06 73.10 and 73.11 Rs.375/0 per Metric Tonne. Rs.175.- per Metric Tonne. Sections, of iron or steel. Note: This notification was to remain in force until the 30th September, 1989. The Notification was kept in force till 30th November vide SRO-993 (l)/89 dated 30lh September, 1989 and life of this Notification has been extended till 3()th January 1990 under another Notification dated 30th November, 1989. (/'/) The legal position which emerges as regards Excise Duty, is that till the 14ih July, 1988 no Excise duly was payable on 'INGOT as well as on 'Billet'. Both these products fell within the definition of the term 'Steel INGOT as defined under Item 09.04 of the First Schedule to the Central Excise and Salt Act 1944. Even under Ordinance No.III of l9$N while granting exemption vide Notification dated 14-"MOSS both 'INGOT' and 'Billet' were treated alike as excise duty on both was payable (a.Rs.600/- pcr metric tonne and that it was only since 3rd June 1989 that 'INGOTS' were treated differently from Billets as Excise duty on INGOT was totally exempted. As regards Sales Tax, it is pertinent to note that in the Notification of Exemption issued under Section 7 of the Sales Taxt Act 1951 though INGOT and Billet were described in terms of classification given in Pakistan Custom Tariff, wherein INGOT and Billet were classified under separate heading 73.06 and 73.07 respectively yet both the products were given the same treatment in the matter of grant of exemption till 10th July 1989. The whole of Sales Tax on both products was exempted under Notification dated 25-6-1981 which was then amended vide Notification dated 26-6-1988 to exclude INGOTS and billets alongwith other items from the purview of exemption notification. Again in the exemption notification date 3rd June, 1989 both these prducts were not included and on both INGOT and Billet Sales Tax @ 12 1/2 per cent per Tonne was payable. It was only since 10th July, 1989 that Sales Tax on INGOT was made payable (a Rs.375/- per Metric Tonne while on Bar, rods, angles, shapes and Sections of Iron and Steel which are re-rolled end-products, Sales Tax was chargeable at the rate of Rs.175/- per Metric Tonne but 'billet' which is at best a semifinished product, sales lax is payable at the rate of 12 1/2 per cent Per Tonne. So if the price of Billet is Rs.8500/- per metric tonne, the sales tax @12 1/2 % would be Rs.1062.50 per tonne, 12. The different treatment came to be accorded since June and July 1989 by the Federal Government in exercise of the delegated power vesting under Section 12-A of the Central Excises and Salt Act, 1944 and Section 7 of the Sales Tax Act 1951. In this context the plea that scientifically and technically and as per Pakistan Custom Tariff which follows Brussels Nomenclature and Harmonized Commodity Description and Coding System both these products have been classified under separate heading and as separate items, is not relevant. Again though INGOT may be a primary product produced by 'old blast furnace system' and 'billet' is a semifinished product produced by morden continuous casting process but both the products are undisputedly used for re-rolling into bars, rods, angles, shapes and Sections or for the manufacture of forging and other finished products. 13. The other important feature to be noted is that steel industry in the country is in its infancy. There arc only four mills; (1) Pakistan Steel Mills, Karachi, (2) P.E.C.O. Lahore, the public companies and two private sector companies, namely, the petitioner and Punjab Steel Mills, Shahdara, which are producing Billet in Pakistan. The plea that the petitioner imports about 70% of the entire quantity of scrap imported in the country for production of billet was not specifically controverted. 14. Moreover, nothing was brought on record to show the total production of billet by the four producers or either of the four producers, the total production of Ingot and as to how many are the Ingot producers and as to what were the circumstances which necessitated according of different treatment to the two products. In fact the Finance Ministry not only failed to file a written statement but also no record or file was produced lo show the exercise il any undertaken by it and to establish that pertinent and relevant causes, reasons or factors were considered by the relevant quarters for coming to the conclusion that INGOT and Billet merit not to be given the same treatment as was being done in the past. The Assistant Collector, respondent No. 3, who has filed the written statement, neither claimed access to any such record of the Ministry nor disclosed any material, cause, reason or circumstances justifying the change in the policy of the Federal Government except for advancing the assertion that principles of progressive taxation and free competition are being followed. It was further alleged without any supporting affidavit or material that prices of billet and its end-products are higher to the extent of Rs. 1000/- to Rs. 1500/- per M.Tonne than the prices of INGOT and its end-products. Its is pertinent to note that according to the petitioner the additional burden levied, in the prevailing circumstances, would be Rs. 2425/- per metric tonne. 15. With the aforenoted factors in view, I proceed to examine the contentions of the parties. The contention of the learned counsel for the petitioner noted in para 5 above to the effect that the delegated legislative power has been abused, may now be considered. The levy of excise duty as well as sales tax on two products at different rates was assailed as discriminatory, unreasonable, irrational and prejudicial to the public interest. It was asserted that legislative power was used to victamize the petitioner in a manner inconsistent with the fundamental right guaranteed under Article 18 of the Constitution which ensures free competition. It was added that the respondent-Government without keeping in view the relevant factors and the purposes for which the power vests in it, has exercised the power in most mala fide manner and that the discriminatory treatment given through the notifications amounts to denial of equality. Learned counsel in support of the aforenoted submission, relied on; (a) Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan; (b) the principle that the exercise of delegated legislative power like any other administrative or executive power can be subjected to judicial review on the ground of Wednesbury reasonableness. The plea that discretion vesting in the Government, whether in the matter of tax or in the executive field is to be exercised in a reasonable way was sought to be supported by citing the following judgments:- (i) Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation. (1974 AER 680); and (ii) Congress v. Home Office. (1976-1 AER 697). The question in the case of Congress v. Home Office was to the exercise of discretion by the Minister with reference to the statutory discretionary power to issue and revoke licences. Every person having the colour television was required by law to get a licence which was issued for 12 months more or less. The fee upto 31st March, 1975 was £12 but from First of April, 1975, it was increased to £18 but it did not become law until 1-4-1975 by which date the Department could only charge £12 for licence. Oh and after that date it was bound to charge £18. This gave many people who already held a licence a bright idea. The licences so obtained would be valid for a few days but the new licences would last them for nearly the next 12 months. In this way extra £6 which they were required to pay if they had obtained the licences after 1-4-1975. The Home Office objected and demanded payment of extra $ 6 on the threat of revocation of new licence. The demand was thus challenged. The relevant observations on the question of discretionary statutory power rcad:- "Now for the carrying out of the statutory provisions. Undoubtedly those statutory provisions give the Minister a discretion as to the issue and revocation of licences. But it is a discretion which must be exercised in accordance with the law, taking all relevant considerations into account, omitting, irrelevant ones, and not being influenced by any ulterior motives. One thing which the Minister must bear in mind is that the owner of a television set has a right of property in it; and as incident to it, has a right to use it for viewing pictures in his own home, save in sofar as that right is prohibited or limited by law. Her Majesty's subjects are not to be delayed or hindered in the exercise of that right except under the authority of Parliament. The statute has conferred a licensing power on the Minister; but it is a very special kind of power. It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect money for the Revenue." 16. The case of Council of Civil Service Unions and others v. Minister for the Civil Service (1984-3 AER 935) was relied upon to point out three grounds on which administrative action can be subjected to judicial review. Lord Diplock in his judgment described three grounds as unden- "The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety' By 'illegality' as a ground for judicial review I mean the decision-maker must understand correctly the law that regulates his decision^making power and must give effect to it By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury reasonableness, (See Associated Provincial Picture Houses Ltd. v. Wednesbury Corp (1947) 2 ALL ER 680, (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice." 17. In the case of Commissioner of Customs and Excise v. Cure and Deeley Ltd., the vires of Purchase Tax Regulations, 1945 and powers under Section 33 (1) of the Finance Act, 1940 by the Commissioner of Customs and Excise were examined. The observations relied upon read as under:- "To may mind a court is bound before reaching a decision on the question whether a regulation is intra vires to examine the nature, objects, and scheme of the piece of legislation as a whole, and in the light of that examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act. In taking that view I respectfully apply the line of approach adopted by Lord Greene, M.R. in the cases previously cited, where he referred to the need for the acts of the competent authority to fall within the four corners of the powers given by the legislature." 18. Learned counsel also cited the case of United States v. Eugene Frank Robel (389 US 258) Lawyers Edition 508) for the purpose of highlighting the approach with which the use of legislative discretion in cases where liberty and exercise of fundamental freedoms are involved is to be examined. In this case caution was given that the need for a legislative judgment is especially acute here, since it is imperative when liberty and the exercise of fundamental freedoms are involved that constitutional rights not be unduly infringed. Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, relied upon read as under:- 4. Right of individuals to be dealt with law etc.- (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular— (a) no action detrimental to the life, liberty body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. 18. Freedom of trade, business or profession. Subject to such qualification, if any, as may be prescribed by law. every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. Provided that nothing in this Article shall prevent- (a) .......................................... (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) .................. - ..................... 25. Equality of citizens.- (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the proctection of women and children." 20. Learned counsel with a view to point out the scope and contents of these Articles, relied upon the case of E.P.Royappa v. State of Tamil Nadu (AIR 1974 S.C. 555) from Indian jurisdiction. It was observed therein as under:- "Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible consideration, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness and different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16." 21. This view was then reaffirmed by the Indian Supreme Court in the case of SmtManeka Gandhi v. Union of India and other (AIR 1978 S.C. 597), in Ramana Dayaram Shetty v. The International Airport Authority of India and anothers (AIR 1979 S.C. 1628) and again in Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (AIR 1981 S.C. 487). In the last mentioned case, it was also observed as unden- "The doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Articel 14 would be breached. Wherever therefore there is arbitrariness in State, action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution." 22. The other case from Indian jurisdiction cited is Indian Express Newspapers (Bombay) Private Limited v. Union of India and others (AIR 1986 S.C. 515). In this case the petitioner-company and their employees who were engaged in the business of editing, printing and publishing newspapers, periodicals, magazines etc. challenged the validity of the imposition of improt duty on news print imported form abroad. Under the Finance Act, 1981, the auxiliary duty of 30 % ad valorem was payable in addition to custom duty under Customs Act, 1962 and by Notification issued under the aforesaid Act the customs duty was reduced to 10% ad valorem and auxiliary duty was reduced to 5% ad valorem in case of newsprint used for printing newspapers, books and periodicals. During the pendency of the case, the Customs Tariff Act 1975 was amended levying 40% ad valorem plus Rs. 1000/- per MT as customs duty on newsprint and the auxiliary duty payable on all goods subject to customs duty was increased to 50% ad valorem. However, by reason of exemption notification duty at a flat rate of Rs.550/- per MT and auxiliary duty of Rs. 275/- per MT were payable on newsprint. So in all Rs.825/- per MT was thus levied. The imposition of the import duty, it was contended, has the direct effect of crippling the freedom of speech and expression guaranteed by the Constitution as it has led to the increase in the price of newspapers and the inevitable consequence is reduction of their circulation. It was also added that the method adopted by the Customs Act, 1962 and the Customs Tariff Act, 1975 in determining the rate of import duty has exposed the newspaper publishers to Executive interference and that there was no need to impose customs duty on the newsprint which had enjoyed the total exemption from its payment till March 1, 1981. It was also argued that the capacity to bear the duty is an essential element in determining the reasonableness of the levy and that the continuance of the levy is violative of Article 19 (1) (a) and 19 (1) (g) of the Constitution. The observations specifically relied upon read as under:- "75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 76. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Co.Ltd. v. Notified Area Committee, Tulsipur (1980) 2 SCR 1111; (AIR 1980 S.C.882); Rameshchandra (1981) 2 SCR 886: (AIR 1981 S.C. 1127) and in Bates v. Lord Haikham of St.Marylebone, (1972) 1 WLR 1373. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19 (1) (a) of the Constitution. It cannot, no doubt de done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant." 23. As against the above noted contentions, learned Standing Counsel for thel Federation and other respondents argued that exemption from tax is a matter of B grace and is granted by the Government taking into consideration various factors) |Avhich are not subject to enquiry, investigation or jurisdiction of this Court as it cannot enter into the enquiry about controversial facts of trading, market condition, prices or cost of production etc. The first case referred was that of Al- Samrez Enterprise v.Tlie Federation of Pakistan (1986 SCMR 1917). In this case a passage defining the nature and purpose of exemption in the Corpus Juris Secundum, 1954 Edition Volume 84, para 215, page 411 was quoted and on the basis thereof, it was observed that "the concept of exemption presupposes a liability and is a grant or immunity from the payment of duty which would otherwise be attracted in respect of the goods and that it has accordingly been held that 'non-liability' and 'exemption' are different concepts, the first connotes that the subject was never in the tax net, while the latter connotes that it was but has been permitted to escape". 24. There is no cavil to the proposition that exemption exists only by virtue of constitutional or statutory provisions and that the right to immunity is not inherent in the persons or property exempted and it cannot be claimed as a matter of right but in the constitutional set-up, where fundamental rights are guaranteed and to be treated in accordance with law is recognized as inalienable right of a citizen, I do not accept the proposition that grant of exemption from tax is a matter of grace as the statutory functionaries while framing rules or notifications with a view to lessening the burden of the tax through grant of exemption from tax are not showing grace as a king, dictator or an absolute ruler would do in his pleasure but re discharging the functions assigned to them not in their pleasure but for achieving the objectives of the law and in public interest. 25. While dealing with the exercise of such legislative powers, the learned Judges in the Indian Supreme Court case of Indian Express Newspapers (Bombay) Private Limited, v. Union of India and others (AIR 1986 S.C. 515) in par 77 observed that:- "We do not, therefore, find much substance in the contention that the courts cannot at all exercise judicial control over the impugned notifications. In cases where the power vested in the Government is a power which has got to be exercised in the public interest as it happens to be here, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. The fact that a notification issued under S.25 (1) of the Customs Act, 1962 is required to be laid before Parliament under Section 159 thereof does not make may substantial difference as regards the jurisdiction of the Court to pronounce on its validity. 26. Even with regard to classification theory viz-a-viz, equality clause, it was pointed out in the case of Ajay Hasia etc. v. Klralid Mujib Sehravardi and others (AIR 1981 S.C. 487) by the Indian Supreme Court as under:- "Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that the differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action." That plea as to classification, as will be shown in the later part of the judgment, is not really relevant in the instant case. The question is, whether the power to grant exemption has been exercised reasonably any with a view to rj achieve the objectives of the law itself, and, whether the exercise of power is beyond the reach or power of judicial review vesting in this Court and if this power vests, what is the scope and extent of power of judicial review. 27. The learned Standing Counsel relied on the statement of law contained at pages 411 and 412 of Corpus Juris Secundum, (1954 Edition) which has been quoted above. At page 413 of the same volume, it is stated that "exemptions are not based on the favouring of particular persons or corporations at the expense of tax payers generally, or granted on any idea of lessening the burdens of individual property owners, but are based on the accomplishment of public purposes, and are granted on the theory that they will benefit the public generally or as a reward or compensation for services rendered in the performance of some function deemed socially desirable. It has been stated that exemptions are favoured on the theory that the concession is due to quid pro quo for the performance of service essentially public by which the state is relieved pro tanto from performing, and thus, where the exemption from taxation serves the public, and not a private interest, it cannot be regarded as a gift or donation of the public credit to, or in aid of, the individual, association, or corporation in whose favour the exemption is declared, but without that concurring prerequisite, an exemption becomes essentially a gift of public funds and indefensible both under public policy of equal taxation and under the constitutional safeguard of illegal taxation. "Again at page 417 it is stated that" the legislature cannot delegate to the executive or administrative agencies or officers the power to exempt from taxation or to exercise uncontrolled discretion with respect to exemption, and as far as the power may be delegated the delagation must be regulated by some definition of policy and purpose." 28. Moreover test of reasonableness has been consistently applied by the Courts in England, United States and India. In the case of Indian Express Newspapers (Bombay) Private Limited v. Union of India and others (Supra) the observations made by Lord Greene in the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223) were specifically relied upon and thereafter observations made read as under:- "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive case. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting 'unreasonably'. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1926) 1 CH 66 gave the example of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact all these things run into one another." After quoting these observations, the conclusion recorded was that the claim of the Government that impugned notifications are beyond the reach of the administrative law cannot be accepted without qualification even though all the grounds that may be urged against an administrative order may not be available against them. I fully agree with these observations. 29. Before proceeding further, I would like to add a note of caution to the effect that the precedents from the foreign jurisdiction, Indian, English or American on the questions of constitutional law, administrative law and public law, have to be approached and applied keeping in veiw the difference in the phraseology, scheme, intent and content of the respective Constitutions and the laws prevailing in these countries and also the fact that we, in this country are to be guided by our own constitution and our own ideology. The provisions contained in our Constitution as compared to other Constitutions are more pervasive, wide in content and scope and intended to promote and preserve our own ideology. Besides Articles 4 and 25 which have already been eproduced, we ave Article 2-A, which must receive particular attention. Article 2-A provides that the principles and provisions set out in the "Objectives Resolution" reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly. Then comes Article 3 which provides that State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work. In my humble understanding these Articles read alongwith the fundamental rights guaranteed in the Constitution are in no way less in meaning and import than the 'due process of law' clause contained in the American Constitution. Keeping in view the all pervasive intent meaning and the scheme of Constitution the rights guaranteed therein are to be secured and preserved. The organs of the State as well as its functionaries while performing its functions legislative, administrative or executive, have to be careful that none of the fundamental rights are thus curtailed, infringed or in any manner violated. I may also add that even the judgments delivered by superior Courts in Pakistan under 1956 Constitution or during the period when the fundamental rights were not enforceable, are to be approached and understood keeping in view the aforenoted features of the present Constitution. 30. I may add that the observations made in the case of Jibendra Kishore Achharyya Chowdhury and others v. Tlie Province of East Pakistan (PLD 1957 S.C.9) are also to be understood keeping in view the new features, the scheme and content of Constitution of 1973 as well as the context that theory of classification is not to be confused with the "equal protection qf law" contained in Article 4 which now further stands reinforced by Article 2.S- It is also pertinent to note the observations with regard to the scope and content of Articles 11 and 12 of 1956 Constitution made by Cornelius, J, in the case of Messrs East and West Steamship Company v. Pakistan (PLD 1958 S.C.41). These observations are as under:- "As has already been remarked, the fundamental right of freedom to conduct any lawful trade has been given by the citizens of Pakistan to themselves and may be regarded as an essential condition of their relationship among themselves, and with the State. The State has been directed inter alia by Article 29 of the Constitution to provide for all citizens within the available resources of the country facilities for work and adequate livelihood, trade is a form of livelihood which has received particular notice and protection in the Constitution under Article 12(Article 18 of 1973 Constitution) and it is, therefore, only reasonable that the power of the State to regulate a trade by means of licensing system should be construed in the light of the duty imposed upon the State by Article 29 (Article 38 of 1973 Constitution) to provide for all citizens facilities for r dequate livelihood. It is also a general duty imposed upon the State that it shall endeavour to secure the well-being of the people and as has been seen above under conditions of free enterprise the well being of the people requires that the conduct of trade carried on by individuals should not be interfered with so long as it is being lawfully carried on If the proviso to Article 12 (Article 18 of Constitution of 1973) be held to mean what the learned Attorney-General contends for, a result might follow whcih may be expressed somewhat in the following manner. The people of Pakistan first declare that those of them who wish to engage in trade, or are engaged in trade shall be free to enter or continue in their trade and to conduct that trade according to their discretion and choice, so long as it is lawful. In the next breath, the people of Pakistan proceed to say that the State, namely the Executive, to which they entrust the power vested in themselves, to be exercised for the advancement and well being of the nation, may, in the guise of a licensing system, interfere in the minutest detail with every process and practice which any citizen-trader of Pakistan may be required to perform or follow in the conduct of his trade. The freedom which the citizens had guaranteed to themselves is thus placed entirely at the disposal of the Excutive to respect or destroy as it pleases Manifestly, this is an interpretation which cannot be sustained. The people of Pakistan cannot be thought to have declared a Fundamental Right only to provide immediately after for its destruction by the Executive authority at its unrestrained discretion. Therefore, it is necessary in interpreting Article 12 that the substantial Fundamental Right of freedom of lawful trade should be preserved in the 'push-and : pull' of interpretation as against the powers vested in the Executive. As has already been pointed out above, the Executive was enjoined in clear terms to act for the well being of the people and so as to provide them with facilities to earn adequate livelihood for themselves e.g. by conducting lawful trade according to their discretion and choice., as befits an economy based on the principle of free enterprise It follows, therefore, that the power of regulating by a licensing system is not to be regarded as co-extensive with the power of control secured to a tradesman in respect of the implements and equipment of his trade and every operation that is required by the procedure of his trade. In principle also, the words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those words as being co-extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview. Therefore, it seems to me, that it is incumbent upon a Court to interpret the words of the first proviso to Article 12 in a limited sense, the contrast with the plenary sense in which the words of the main portion of the Article are to be understood. In my opinion, that limited sense is adequately expressed, in the extract which I have cited above from Halsbury's Laws of England in relation to the Statutory Regulation of Professions and Trades." 31. The case of Al-Samrez Enterprise (Supra) is of no help to the respondents as the question of violation of fundamental rights was not involved therein. The other two judgments relied upon were Colony Sarhad Taxtile Mills v. Superintendent Central Excise and Land Custom (1979 SCMR 640) and Shafaq Lamps Corporation and another v . Pakistan and another (NLR 1983 Tax 43). In the case of Shafaq Lamps Corporation (supra) the validity of the Notification ranting exemption under Section 12-A of the Central Excise and Salt Act, 1944 was unsuccessfully challenged as the Court came to the conclusion that the exemption granted was under the authority of provisions contained in Section 12- A of the Act and that classification by no means can be described as arbitrary, nreasonable or discriminatory. It will be seen that the contention was examined in the context of Section 12-A of the Act only. The pleas raised on the basis of Article 4 of the Constitution and with reference to case of Mayflower Farms v. Ten Fyck (297 US 366) and para 474 of 12th Volume of the American Jurisprudence were not examined in detail. Moreover, it was held that the reasons which prompted the Government in allowing the exemption were not artificial. In the instant case the file containing the reasons which prompted the Government to accord different treatment to the two products was not produced nor in this respect the Court was taken into confidence at all. 32. The case of Sind High Court, Messrs Balagamwala Oil Mills Ltd. Karachi v. Pakistan (PLD 1982 Karachi 233) also does not help the respondents. The Notification exempting the milk powder from customs duty was held to be in accordance with Section 19 of the Customs Act with the observations that the Government had the power to exempt milk powder and while doing so, it could also impose such conditions, limitations, restrictions as it would have thought fit to impose. Further under the said provisions, the Government could exempt the goods wholly or in part. Here the Government chose to exempt it from the date of the notification and not from any other date and that on the perusal of the declaration of the President of Pakistan or the notification impugned in this petition, it cannot be said that it was intended to have any retrospective effect for no such intention is manifest even in the slightest degree from the language employed in the notification. The observations as regards Article 4 of the Constitution made were that it would suffice to say that under Article 4 every ndividual is required to be dealt with in accordance with law and we have no doubt that the petitioner has been dealt with in accordance with law. It is pertinent to note that the argument based on Article 25 of the Constitution was held and disposed of with the observation that; "Firstly the Article stands suspended, secondly we would surely say that it did not, for from the date of notification all importers have been treated equally and there is no discrimination between them." It will, therefore, be seen that in this case, the provisions of Articles 4 and 25 as such were not deeply considered in the context of the pleas raised before me. 33. The other case relied upon by the learned Standing Counsel was the case of Messrs Amin Soap Factory v. Government of Pakistan and others (PLD 1976 S.C.277) wherein it was held that the grant of exemption from taxation including the levy of excise duty lies within the discretionary competence of the Federal Government and the same cannot be claimed as of right by anybody and that no limitation can be placed on the very wide power of Government to exempt any goods or class of goods from levy of duty under the Act. The power of the Government in this case was examined with reference to Section 12-A of the Act only. This case as such is of no help as the delegated legislative power in the context of the infringement or interplay of fundamental rights was not examined. 34. One of the main pleas in this case was that different treatment to the products which are physically same and are similar or are put to the same use, would be violative of the equality clause and that where objects, persons or transactions essentially similar, are treated by the imposition of different rate of tax, discrimination may result on account of refusal to make a rational classification. Both Ingots and Billets were being treated alike for the purposes of charging sales tax and excise duty till June/July, 1989. It cannot be disputed that taxability is to be determined by the Legislature under Article 77 of the Constitution and such power to remove the unfairness can be delegated as would entail enquiry into the assessment of changing factors which necessitated reduction of burden at the proper time and to the proper extent. Moreover, the H grant of exemption with the view to remove an unfair burden in exercise of delegated legislative power in a constitutional set-up has to be subjected to the rule of reasonableness and free from arbitrariness. In the instant case, it was not shown that since June/July, 1989 what changes took place in the market or what relevant factors were considered for according different treatment to the two products which hitherto before, were being taxed at par. It is true that the burden to show that the legislative power and discretion has been exercised unreasonably lies on the party making such assertion but this burden is not a fixed burden and may shift in the circumstances of the case on the Government to show that the power was exercised consistently with the provisions of law and acting reasonably and on the basis of relevant consideration. In the instant case, neither any file was produced to show the exercise, if any, which might have been undertaken by the relevant quarters for granting exemption from the payment of sales tax and excise duty at different rates or for granting exemption of sales tax not only at different rates but also for specific period of two months and then extending the Notification or the exemption granted for a period of two months from time toi time. 35. No doubt the State has wide powers in selecting the persons or objects that it will tax and that a statute is not open to attack on the ground that it taxes some persons and objects and not the others but challenge can successfully be made on the basis that within the range of selection the law operates unequally. Law will obviously be operating unequally if the classification made cannot be justified on the basis of valid classification. For the purpose of valid classification, what is required is not some imaginary or unsubstantial difference but a reasonable and substantial distinction having regard to the purpose of law. In the instant case, the fact cannot be lost sight of that Ingots and Billets both the products were being classified as one and the same product not only for the purpose of excise duty but also for the levying of the sales tax. The definition of 'Steel Ingot' given in the First Schedule to the Central Excise and Salt Act, 1944 covered both Ingot and Billet. Even if some change has been brought about by Finance Act,1988, still the matter of granting exemption has to be resolved on principles keeping in view the relevant consideration including the resultant effect on the consumers, increase in cost of construction of buildings and increase in rents of buildings. K 36. Now some of the other pleas may be noticed. It was argued that the purpose of exempting 'Ingot' wholly from payment of Excise duty and charging of Sales tax at lesser rate, is to protect the INGOT producers who are many in number and who are meeting 80% of the market requirement but are in need of protection against the modern, well equipped and financially sound billet producers. It was argued that the parties like the petitioner who because of modern technology are earning huge profits, are not being put out of market and that different rate of duty in the case of two products is not hindering or advcrsly affecting the petitioner and as such there is no violation of fundamental right No.18. These pleas cannot be accepted at their face value as the learned tanding Counsel was not even aware as to how many are the ingot producers and what is the annual production of the ingot or billet. In addition to these factors the interest of consumers, the effect of prices in the market and also some of the factors which are germane to question, whether exemption at all and if so to what extent is to be allowed, are to be kept into consideration while ranting exemption from tax. This exercise appears not to have been done by the concerned quarters. In fact the Court was not at all taken into confidence as regards these matters as the respondents were suffering under the misconception that this Court has no authority to go into even the reasonableness of the impugned actions. It is true that the Central Excise and Salt Act, 1944 as well as Sales Tax Act 1955 give the Government a wide power to grant exemption from the levy of excise duty and sales tax. It is, however,to be understood that while such power to grant exemption is available with the Government but the same is to be exercised on overall consideration of all the relevant factors including those mentioned above with the view to promote public interest. It has been demonstrated in the paras above that since June/July, 1989 the change was brought about by the functionaries of the Government which had come into power recently and in the circumstances the imposition of additional burden imposed and according of different treatment should have been shown to have been made after due consideration of relevant matters and in the interest of the steel industry and consumers. Such an exercise was not shown to have been undertaken and in the absence of sufficient material justifying the impugned levy the same stands vitiated. 37. The net result of the above discussion is that different treatment given to L 'Billet' the product of the petitioner-Foundary, is arbitrary and unreasonable and as scuh the additional burden placed is violative of equal protection of laws guaranteed by Article 4 read with Article 25 of the Constitution of Islamic Republic of Pakistan and as such the charging of excise duty,and sales tax at the rates given in the letter dated 5.7.1989 on the basis of the aforesaid Notification is without lawful authority. 38. Even for another reason as well the excise duty sought to be charged under the aforesaid Notification cannot be held to be legal. The position as to levy of excise duty depicted in one of the paras above is that excise duty at the rate of Rs.600/- per tonne is payable on iron and steel billets and sheet bars etc. while whole of the excise duty on Ingots has been exempted. This result has been achieved through noticfication SRO-555(l)/89 dated 3.6.1989 by omitting the word 'Ingots' from the Notification No.SRO-614(l)/88 dated 14.7.1988. The Notification No.SRO.555(l)/89 dated 3.6.1989, as will be shown hcreunder, is legally ineffective in law to achieve the purpose for which it was issued. It will be recalled that prior to the enforcement of Ordinance III of 1988, Item 09.04 of First Schedule of the Central Excise and Salt Act, 1944 read as 'Steel Ingots' which entry by the Ordinance III of 1988 was substituted to read 'Ingots Billets' slabs and sheet bars' and the excise duty levied was Rs.2000/- per tonne. On the very date of enforcement of this Ordinance J1I of 1988, the Notification No.SRO- 614(1 )/88 issued reads as undcr:- "(1) Iron & steel ingots, billets, slabs and shed bars. (2) Others." Excise Duty. Rs.600/- per tonne. Nil. 39. The aforesaid Ordinance III of 1988 substituting the entries of First Schedule pertaining to Item 09.04 was repealed by Ordinance XXIII of 1988 promulgated on 5.11.1988. Section 1(2) of this Ordinance provides that the Ordinance shall come into force at once and shall be deemed to have taken effect on 26.10.1988. Thus it will be seen that Ordinance III was repealed before even the expiry of four months period within which an Ordinance is required to be laid before the National Assembly or both the Houses, depending on the nature of the Ordinance, under Article 89 of the Constitution of Islamic Republic of Pakistan. The effect of repeal of Ordinance III of 1988 in view of the provisions contained in Article 89 of the Constitution read with Article 264 of the Constitution, would be that the Notification No.SRO-614(l)/88 dated 14.7.1988 would cease to be effective from 26.10.1988 when the repealing Ordinance XXIII of 1988 is to be deemed to have come into force. The Notification No.SRO-555(l)/89 dated 3.6.1989 thus sought to omit the word 'Ingots' from the Notification dated 14.7.1988 which was legally then not existing. The exercise done was, as such, an exercise in futility. The Ordinance III of 1988 and Notification No.SRO.614(l)/88 dated 14.7.1988 would thus be effective for a period commencing from 14.7.1988 to 26.10.1988. This Ordinance III of 1988 had the effect of amending the entry pertaining to Item 09.04 of First Schedule to the Central Excise and Salt Act, 1944 for the aforesaid limited period and after the repeal by virtue of repealing Ordinance as well as by virtue of Article 89 of the Constitution, this Ordinance ceased to be part of the Statute Book. 40. I am aware that in some of the Indian cases e.g. Stale of Maharashtra v. Jlie Central Provinces Mangcnese Ore Co.Ltd. (AIR 1977 S.C.879) and Laxmibai v Tlie State (AIR 1951 Nagpur 94) notification was treated as having revived on the notification which substituted it, was declared to be abortive and having failed to achieve any change in law. But the provisions contained in Articles 89 and 264 of our Constitution are different from the provisions contained in the relevant Articles of Indian Constitution. The effect of withdrawal or repeal of an Ordinance before the period of four months has to be determined with reference to the provisions contained in Article 264 of the Constitution. The Ordinance repealed without laying it before the National Assembly amounts to withdrawing the same and to this situation the provisions of Article 264 of the Constitution equally apply. The notification issued with reference to the ordinance after its repeal would also cease to operate except for the transactions past and closed but on its ceasing to be effective due to repeal, the earlier notification which stood substituted would not revive. This is clear in view of clause (a) of Article 264 which reads: ' .'• "264. Effect of repeal of laws.-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." In support of aforesaid view .reference may by made to the judgment of Division Bench of this Court in the case of Zul Ullah Klian v. Govt. of Punjab (PLD 1989 Lahore 554). 41. Even the view of the legislature appears to be the same as recorded by me above to the effect that on repeal of Ordinance III of 1988 the amendment in the Schedule of the Central Excise and Salt Act, 1944 ceased to be operative as the same very provision was re-enacted through fresh legislation. This was done by Finance Act, 1988(Act VI of 1988). Section 2 of the Act provides: "(i) for item No.09.04 in column 1 and the entries relating thereto in columns 2 and 3 the following shall be substituted namely: - "09.04 INGOTS, BILLETS, SLABS Two thousand AND SHEET BARS. rupees per tonne." Thereafter Notification No.SRO-555(l)/89 dated 3.6.1989 was issued but the same being an exercise in futility, as shown above, another Notification for exemption will have to be issued as Federal Government never itendcd to collect the excise duty on Billet and INGOT as levied by the Finance Act, 1988. The other effect of the repealing Ordinance XXIII of 1988 would be that from 26.10.1988 till 26.12.1988, the Ingots, Billets, slabs and sheet bars cannot be treated to be forming part of the First Schedule of the Central Excise and Salt Act and no excise duty would thus be leviable on these products. These products again appeared in the First Schedule w.e.f. 26.12.1988 and the rate of duty would be Rs.2000/- per tonne as provided by Act VI of 1988. So a notification of exemption after considering the relevant factors and acting reasonably will have to be issued as the Federal Government apparently intended at best to charge Rs. 600/- per tonne as excise duty on Billet. 42. At this stage, notice may be taken of another plea of the learned Standing Counsel. He argued that no relief can be granted by the Court as Notification SRO.614(l)/88 dated 14.7.1988 and Notification SRO.555(l)/89 dated 3.6.1989 were expressly not challenged in this petition. It is true that these two notifications have not been particularly mentioned in the petition but the explanation given by the learned counsel for the petitioner was that despite repeated written requests, neither the notification nor the basis for the instructions issued vide impugned letter were provided. It is also pertinent to note that neither this bjection in precise form was taken in the written statement nor copies of the notifications were attached therewith. It was only during the arguments that the learned Standing Counsel referrd to these notifications and on direction of the Court provided the copies of the same to the Court. In these circumstances as well as on account of the fact that additional burden placed as intimated vide impugned letter was challenged, the technicalities cannot prevent this Court from exercising its contitutional jurisdiction and affording relief which otherwise petitioner is found entitled to receive. 43. For the reasons given above, it is hereby declared that: (a) The levy, charging and collecting the excise duty and the sales tax at the rates intimated vide Letter dated 5.7.1989 is illegal and without lawful authority; (fc) The notification SRO.555(l)/89 dated 3.6.1989 whcih seeks to amend the aforesaid notification dated 14.7.1988 is an exercise in futility as on 3.6.1989 the notification dated 14.7.1988 was not legally in existence; (c) The Notification SRO.734(l)/89 dated 10.7.1989 and the subsequent notifications extending the operative period of said notification are illegal and without lawful authority; (d) As the need to grant exemption from the payment of excise duty and sales tax on both INGOT and Billet stands accepted, the Federal Government shall reconsider within two months the question of grant of exemption of execise duty and sales tax on Billet with effect from 3rd of June, 1989 and 10th of July, 1989 respectively in the light of the observations made above and shall take necessary steps to implement the decision so reached. (e) Till such re-determination as directed and the payment of any amount of excise duty and sales tax, if any, found due under fresh decision, the security given by the petitioner shall remain in force and shall be available for recovery of the amount due. 44. The petition is accepted accordingly with cost. (MBC) Petition accepted.

PLJ 1990 Lahore 261 PLJ 1990 Lahore 261 Present: MUHAMMAD munir KlIAN, J MATLUBUR REHMAN KHAN--Appellant Versus MUHAMMAD IRFAN KHAN-Respondent FAO No. 87 of 1989, dismissed on 13-2-1990 Civil Procedure Code, 1908 (V of 1908)-- — Ss. 151 & 152~Clerical mistake in decree—Correction of-Challenge to— Claim in suit was for Rs.1,25,000/- but in decree, amount was stated as Rs. one lac~On application, amount was corrected—Contention that after signing judgment and decree sheet, trial court had become functus officio and could not increase decretal amount to Rs.1,25,000/- -Held: While directing that amount of Rs.1,25,000/- be shown as decretal amount, trial court has not enhanced decretal amount but has simply corrected clerical mistake committed in preparation of decree sheet- Appeal dismissed [Pp.263&264]A&B Ch. Muhammad Hussain I and Mr. Muhammad Amin Lone, Advocates for Appellant. Ch. Muhammad Naeem, Advocate for Respondent. Date of hearing: 13-2-1990. judgment The facts leading to this appeal, briefly, are that Muhammad Irfan Khan, respondent, filed a suit for the recovery of Rs.1,25,000/- on the basis of a pronote against Matloob-ur-Rehman Khan, petitioner, in the Court of learned District Judge, Lahore. The suit was entrusted to the learned Additional District Judge, Lahore. Before the application of the defendant/petitioner for permission to defend the suit, could be decided, he moved application for deciding the suit on oath and for summoning the plaintiff to take oath on Holy Quran. The plaintiff was summoned accordingly. On 30-5-1989, Matloob-ur-Rehman Khan defendant/petitioner made following statement before the Court:- On this, Muhammad Irfan Khan plaintiff made following statement on the Holy Quran:-- In view of the statements made by the parties, the trial Court passed following orders:— Pursuant to the aforesaid judgment dated 30-5-1989, a decree sheet was prepared in which amount of decree was mentioned as Rs. One Lac only. Feeling aggrieved, Matloob-ur-Rehman Khan decree-holder filed application under Section 152 CPC before the trial Court on 12-9-1989, stating that although his suit for recovery of Rs. 1,25,000/- was decreed, yet due to clerical mistake and accidental slip, only Rupees one Lac was incorporated in the decree sheet. After hearing the parties, the trial Court vide its order dated 17-7-1989, accepted the application and the decree sheet was ordered to be corrected showing Rs. 1,25,000/- as decretal amount. The decree-sheet was corrected accordingly. Hence this appeal. 2. The learned counsel for the appellant contended that after signing the judgment and the decree sheet in which Rs. One Lac only was incorporated as decretal amount, the trial Court had become fimctiis officio and could not have increased the amount from Rs. One Lac to Rs. One Lac and twenty five thousand. The learned counsel for the respondent has supported the judgment of the trial court. 3. I have considered the submissions made by the learned counsel for the parties with care. I do not feel persuaded to agree with the learned counsel for the appellant. I find that the suit of the plaintiff/respondent was for Rs. 1,25,000/-. Rupees one lac was claimed as lone and rupees twenty five thousand as interest/profit. In his statement reproduced above, Matloob-ur-Rehman Khan defendant has clearly stated:-- In its judgment dated 30-5-1989, the trial Court has clearly stated that:~ In his statement before the Court, the defendant/appellant has not stated that on the taking, of the proposed oath, the suit to the extent of rupees one lac only be decreed. In the judgment the trial Court has not stated that the suit of the plaintiff was decreed to the extent of rupees one lac only. On the other hand, it has categorically stated that:--. It is thus very much clear that while directing that an amount of Rs. 1,25,000/- be shown as a decretal amount in the decree sheet, the learned trial Court has not enhanced the decretal amount and has simply corrected the clerical mistake committed in the preparation of the decree sheet. The trial Court possessed the implied and inherent power to nullify the effect of inadvertent or unconscious acts or omission. A clerical error is an error which can only be explained by considering it to be a slip, mistake or omission on the part of the person who prepares the decree sheet. In the instant case, the suit for Rs. 1,25,000/- was decreed, therefore, the error of incorporating Rs. one lack only, instead of Rs. one lac twenty five thousand, was very much apparent from the record. It is well settled that the judgment and decree should not differ. I feel that under the provisions of Section 151 and 152 CPC, the trial Court was well within its authority to correct the decretal amount wrongly incorporated in the decree sheet in order to bring it in conformity with the judgment. 4. Pursuant to the above discussion, the appeal fails and is dismissed, leaving the parties to bear their -own costs. (MBC) Appeal dismissed.

PLJ 1990 Lahore 264 PLJ 1990 Lahore 264 Present: MUHAMMAD ILYAS, J M/s LAHORE ART PRESS and another-Petitioners versus NATIONAL BANK OF PAKISTAN-Respondent Civil Revision No. 247 of 1988, dismissed on 5-2-1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —O. IX R. 13~Exparte decree-Setting aside of-Application for-Dismissal of- -Challenge to-Reason advanced for setting aside exparte decree was that clerk of petitioners' counsel did not inform them about date of hearing and left job without leaving case diary in office of their counsel—Bald statement of petitioners in support of this plea-Held: Petitioners have miserably failed to discharge onus of proof—Held further: There is concurrent finding of lower courts whether or not petitioners had sufficient cause for not participating in proceedings of suit before it ended in exparte decree. [P.265JA (ii) Limitation Act, 1908 (IX of 1908)- —Art. 164—Exparte decree—Setting aside of—Application for—Whether time barred—Question of—Exparte decree was passed on 22-12-1983, but application was made on 1-4-1984-Period of limitation under Article 164 is 30 days-Period of 30 days is to be reckoned from dale of decree or from date of knowledge where summons is not duly served-Petitioners absented after appearing in court through counsel-Held: Application was clearly timebarred-Revision dismissed. [P.265] B&C Mr. C.R. Aslam, Adovcate for Petitioners. Rana Bashir Ahmad Klian, Advocate for Respondent. , Date of hearing: 3-10-1989. judgment This civil revision has arisen out of a suit brought by the respondent, National Bank of Pakistan, against the petitioners, M/S. Lahore Art Press and another. The petitioners did not file written statement despite having been given several opportunities to do so. Thereafter they also absented themselves from the Court and were proceeded against exparte. The Civil Judge, who was seized of the suit, recorded the respondent's evidence and passed an exparte decree against the petitioners. Application for setting aside the ex parte decree was made by the petitioners but it was resisted by the respondent on the grounds that there was no sufficient cause for setting aside the ex parte decree and that the application was time barred. Respondent's pleas found favour with the learned Civil Judge with the result that the application was dismissed. Petitioners went in appeal before an Additional District Judge but without success. Hence this civil revision. 2. Only contention advanced by learned counsel for the petitioners to demonstrate that there were cogent reasons for setting aside the ex parte decree was that the clerk of their counsel did not inform them about the date of hearing and thereafter the clerk abandoned the job without leaving the case diary in the office of their learned counsel. There is bald statement of the petitioners in support of this plea. Neither the petitioners' counsel nor his clerk entered the witness box to corroborate his statement. Onus to prove the issue in this regard was on the petitioners but they have miserably failed to do so. Whether or not petitioners had sufficient cause for not participating in the proceedings of the suit before it ended in an ex parte decree was a question of fact on which there is concurrent finding of the learned lower Courts. No discrepancy justifying interference with that finding has been pointed out by the learned counsel. I am, therefore, unable to disturb it. 3. As for the question of limitation, ex parte decree was passed by the learned Civil Judge on 22nd December, 1983 but application for setting aside that decree was made on 1st April, 1984, i.e., after more than 3 months, although the period of limitation prescribed therefor, by Article 164 of the First Schedule of the Limitation Act, 1908, is 30 days. This period of 30 days is to be reckoned from the date of the decree or where summons is not duly served, when the applicant has knowledge of the decree. Admittedly, the petitioners entered appearance before the learned trial Court through their learned counsel, before ex parte proceedings were ordered against them. Obviously, this was done on due service of the summonses on them. It is, therefore, evident that the petitioners were duly served with summonses before ex parte decree was passed against them. Period of limitation would, therefore, run from the date of the decree and not from the date when the petitioners came to know of the decree. Application for setting aside the decree should, therefore, have been filed within 30 days of the passing of the ex pane decree but, as indicated above, it was made after more than 3 months thereof. Thus, the application was clearly time barred. 4. It has been found above that the petitioners have not been able to show sufficient cause for selling aside the exparte decree. Assuming, without conceding, that they had any such cause, their application was badly time barred. Looked from any angle, they cannot get rid of the decree which has been earned by them due to their contumacy and gross negligence. I am, therefore, unable to set aside the exparte decree. 5. Resultantly, this civil revision fails. It is dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 266 (DB) PLJ 1990 Lahore 266 (DB) Present: ABAiouLLAH khan and khalid paul khwaja, JJ Ch. BASHIR AHMAD and 4 others-Petitioners versus PROVINCE OF PUNJAB and 4 others-Respondents Civil Revision No. 841 of 1987, decided on 17-2-1990. Civil Procedure Code, 1908 (V of 1908)-- —O. XLIII R.3~Notice to respondent~Non-service of~Admission of appeal- Whether appeal having been admitted to regular hearing can be dismissed on ground of non-compliance of rule 3 of Order XLIII-Question of—Legal consequences of non-observance of condition precedent to filing of appeal, namely giving of notice to respondent or his Advocate, are that appeal would not be entertained i.e., it would not be given judicial consideration by Court-­ Rule 3 is intended to cater for hearing of appeal at limine stage and its application cannot be stretched to post admission stage-Maxim "actus curiae neminem gravabit" would be applicable-Held: After admission, appeal cannot be dismissed for non-compliance with provisions of Order XLIII R.3 CPC. [Pp.273&274]A&B PLD 1983 SC 693, 1984 CLC 1287, 1984 CLC 1528, PLD 1985 Lahore 243, 1987 CLC 1177, 1987 CLC 1750, 1985 CLC 168, 1988 CLC 448 and AIR 1968 SC 488 Ref. Mr. Shaukat Ali Javed, Advocate for Petitioners. 5/i. Abdul Maajid, Advocate for Respondents 1 to 4. Mr. Amir Alain KJian, Advocate for respondent No. 5. Date of hearing: 17-2- 90. judgment Abaid Ullah Khan, J.~The precise question which comes up for determination before this Bench is whether an appeal against the interim order passed in a pending suit can be dismissed after its admission by the appellate Court for non-compliance with the provisions of order XLIII, rule 3 of the Code of Civil Procedure. It may be advantageous to note in brief th- facts of the case giving rise to the issue demanding resolution. The petitioners brought a suit assailing the validity of the order passed by respondent 2 sanctioning supply of canal water to the fish form of respondent 5 and for issuance of permanent injunction restraining the respondents from making any change hi the existing arrangements regulating supply of water to the lands of various shareholders. They moved application for securing suspension of the operation of the impugned order of respondent 2pendente lite. Their application was rejected by the learned trial Civil Judge. Sargodha, on the 30th September, 1986. Before preferring appeal against the order of the learned Civil Judge to the learned District Court, Sargodha, they did not comply with the provisions of rule 3 of Order XLIII of the Code of Civil Procedure inasmuch as they did not give notice of appeal to the respondents or their Advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against. Nevertheless, the appeal was admitted to regular hearing. 2. The learned Additional District Judge, Sargodha, seized with the hearing of the appeal was impressed by the respondents' objection to the maintainability of the appeal due to the petitioners' failure to comply with the provisions of rule 3 of order XLIII of the Code and consequently dismissed it in the following words of his judgment of the 5th May, 1987,- "In view of this matter, this appeal is not maintainable as laid down by H'able Supreme Court in PLD 1983 S.C. 693, and by H'able High Court in its judgment PLD 1985 Lahore 243, wherein it was also held that despite that appeal being admitted for hearing, if notices under Order 43 rule 3 CPC are not delivered to the respondents prior to the institution of appeal, in that case too, the appeal is not maintainable, so this appeal fails on this ground and the same is hereby dismissed with costs." 3. Feeling aggrieved the petitioners invoked the revisional jurisdiction of this Court to impugn the legality of the orders of iJie learned trial and the appellate Courts below. The learned single Judge, before whom the learned counsel for the parties addressed arguments in support of their respective cases, found divergance of opinion not only in the Benches of this Court but also in those of the High Court of Sind touching the manner of dealing with appeal against an order made during the pendency of a suit where the appellant has not complied with the provisions of order XLIII, rule 3 of the Code. Whereas in Siraj Din vs. Province of Punjab [1984 C.L.C 1287 (Lahore)], Muhammad Shaft vs. Muhammad Amin [1984 C.L.C. 1528 (Lahore)], Muhammad Siddique vs. Boota [PLD 1985 Lahore 243], Ghulam Rasool vs. Mst Fatima [1987 C.L.C. 1177 (Lahore)] and Nazir Ahmad Jagirani Balouch vs. Province of Sind [1987 C.L.C 1750 (Sind)] it was held that an appeal even after admission could be dismissed for want of compliance with the provisions of order XLIII, rule 3. Contrary view that after admission in such a situation appeal could not be dismissed was adopted in Suleman Gowawala and Sons Limited vs. Usman [1985 C.L.C. 168 (Sind)] and Muhammad Ramzan vs. Haji Karim Bakhsh [1988 C.L.C. 448 (Lahore)]. To resolve the difference of opinion the learned Judge had the matter referred to this Bench. 4. It seems that the observations of the Supreme Court of Pakistan while considering the provisions of Order XLIII, rule 3 of the Code in Mrs Dino Manekji Chinoy vs. Muhammad Matin [PLD 1983 S.C. 693] were differently interpreted in the above cases by the High Courts. The following passage from the judgment of the Supreme Court explains the application and implications of the provisions of rule 3 of order XLIII,-- "Coming now to the nature of the provisions of the newly-inserted rule 3 of Order XLIII, C.P.C. we observe that sub-rule (1) of rule 3 requires that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgment receipt to the effect that a copy of the grounds of appeal along with the other documents has, indeed, been received by the respondent or his Advocate. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal with a view to getting it dismissed in liminu, in case he succeeds in doing so he may even be awarded costs. The aHove provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limine stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and. thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule (2) of rule 3 would be rendered futile, inutile and nugatory. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, along with the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgment receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgment receipt should not be entertained." 5. To appreciate its nature, significance and scope it may be useful to have rule 3 of order XLIII of the Code in view,— "3. Notice before presentation of appeal—(T) Where an appeal against an order is preferred during the pendency of a suit the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the Appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine." 6. The learned counsel for the respondents employed the reasoning used in the judgment of the first five reported cases referred to above to advance argument in favour of incompetency and dismissal of appeal. In Siraj Din vs. Province of Punjab [1984 C.L.C. 1287] appeals against the orders of the learned Civil Judge rejecting the plaintiffs' applications for issuance of temporary injunction pendente lite were admitted to regular hearing but after having been heard on merits were dismissed by the learned Additional District Judge on the short ground that notice under rule 3 of order XLHI had not been served upon the respondents or thencounsel. In revisional jurisdiction invoked by the plaintiffs it was urged on their behalf that the provisions of rule 3 were directory and not mandatory in nature and, therefore, non-compliance therewith was not fatal to the appeals and further that even if the provisions were to be taken to be obligatory their non-observance could constitute a ground for dismissal of the ppeals in imine but not after their admission for regular hearing. This Court, in view of the observations of the Supreme Court of Pakistan in Mrs Dino Manekji Chinoy vs. Muhammad Matin [PLD 1983 S.C. 693], held that issuance of notice under rule 3 before filing an appeal was mandatory and non service of such notice could entail dismissal of the appeal. While dealing with the arguments of the learned counsel for the plaintiffs that even if the provisions of rule 3 were obligatory the appellate Court could dismiss the appeals in limine but not after their admission this Court formed the view that what an appellate Court could do at the motion hearing could also do at the time of regular hearing for to hold otherwise would amount to restricting the powers of the appellate Court without any legal justification. The Court concluded that the appeals were not competent and could be dismissed not only at the limine stage but also after their admission and that in that view of the matter admission of the appeals was of no avail to the petitioners. 7. The above view finds reiteration in Muhammad Shafi vs. Muhammad Amin [1984 C.L.C. 1528] where an appeal against an order passed by the learned Civil Judge of Kasur during the pendency of suit after its admission was dismissed by the learned Additional District Judge, Kasur, simply because the appellant had failed to comply with the provisions of rule 3 of Order XLIII. The matter was brought in revision before this Court and it was urged on behalf of the petitioner that since no penalty had been provided in rule 3, the learned Additional District Judge could not dismiss the appeal for the omission of the petitioner to act in terms of rule 3 and it was contended that no prejudice had been caused to the respondent due to the filing of the appeal in disregard of the provisions of rule 3 , inasmuch as the respondent had entered appearance through his counsel before the learned appellant Court prior to the admission of the appeal to regular had to suffer as a result of non-compliance thereof. It endorsed the dismissal of the appeal recorded by the learned Additional District Judge. 10. In Nazir Ahmad Jagirani Balouch versus Government ofSind [1987 C.L.C. 1750] the learned trial Court of the Senior Civil Judge, Sangar, passed in favour of the plaintiff-petitioner ad interim injunction order which on appeal was suspended by the learned District Judge, Sangar. The matter was taken by the plaintiff in revision before the High Court of Sind where it was noticed that the respondent had filed appeal with the learned District Judge and secured his judgment against the interlocutory order of the learned trial Court without complying with the provisions of rule 3 of order XLIII. The High Court drew corclusion from the judgment of the Supreme Court in Mrs. Dino Manekji Chinoy's case that compliance with the provisions of rule 3 of order XLIII was mandatory and a condition precedent for exercise of jurisdiction by the appellate Court and since the appellate Court had proceeded and decided the appeal without such provisions having been complied with by the respondents in the case the judgment of the appellate Court suffered from an illegality which was not curable and as such it could not be allowed to stand. The revision petition was accepted and the judgment of the learned appellate Court was set aside. 11. It appears that while dealing with and deciding the above cases this Court and the High Court of Sind interpreted the observations of the Supreme Court in Mrs. Dino Manekji Chinoy's case that an appeal without meeting with the requirements of rule 3 could and should not be entertained to mean that such an appeal was not competent and was liable to dismissal even after it had been admitted. 12. The learned counsel for the petitioners put forth the view expressed in Suleman Gowawala and Sons Limited versus Usman [1985 C.L.C. 168] and Muhammad Ramzan versus Karim Bakhsh [1988 C.L.C. 448] to press for the hearing and decision of the appeal on merits maintaining that the exercise of serving notice upon the respondents or their Advocate of the intended appeal was relatable to limine stage and bore no connection with the hearing of the appeal after its admission. While dispelling the argument of the learned counsel for the respondents that the appeal wherein the preliminary requirement of informing the respondent of the intended action had been by-passed and which had been admitted to regular hearing should be dismissed, the High Court of Sind in Suleman Gowawala and Sons Limited versus Usman [1985 C.L.C. 168] observed that the compliance of the rule could be insisted upon at the time of filing/entertainment of the appeal and that stage having passed the transaction was past and closed. 13. The circumstances in which the question whether appeal after its admission should be dismissed for assumed non-compliance with the provisions of rule 3 or order XLIII came up before this Court in Muhammad Ramzan versus Karim Bakhsh [1988 C.L.C. 448] may be shortly stated. The revision petitioners had lodged two appeals with the District Court, Bahawalpur, on the 22nd December, 1986, against -the orders of rejection of their applications in two suits for grant of temporary injunction. The memoranda of appeal made mention of giving of notices to the counsel for the respondents through post on the 21 st December, 1986, and post office receipts were appended. When the appeals came up for final hearing before the learned Additional District Judge, Bahawalpur, of course after having crossed the limine stage and after having been admitted quite some time back, the respondents raised objection to their maintainability on the ground that the requirements of rule 3 had not been met inasmuch as the appellants had not served any notice by delivering copies of impugned orders and grounds of appeal nor they had furnished affidavits to that effect nor produced any acknowledgment receipts in token of service of notices. The appellants placed reliance upon the postal receipts to urge that due compliance with law had been made. However, the learned Additional District Judge, despite the presence of the postal receipts on the records, was persuaded to uphold the respondent's objection. He observed that the appeals had been filed on the 22nd December, 1986, and postal receipts had been issued on the 21st December, 1986, which meant that the appellants had not obtained acknowledgment receipts from the respondents before presentation of their appeals and consequently dismissed both the appeals holding them to be incompetent in view of the rule laid down in Mrs. Dino Mahekji Chmoy versus Muhammad Matin [PLD 1983 S.C. 693] and Muhammad Siddique versus Boota [PLD 1985 Lahore 243]. 14. This Court was of the view that the question of giving notice before filing of appeals was relevant only upto the stage of preliminary hearing and at the time of final hearing the objection had lost efficacy because preliminary stage was over since long before and, therefore, the appeals could not be thrown out without hearing at subsequent stage. The Court considered any lapse on the part of the Court to admit the appeals despite non-fulfilment of precondition of giving notice to the respondents to be condonable by the maxim actus curias neminem gravabit (an act of the Court shall prejudice no man) because the appellant was not to be punished for any action of the Court in admitting the appeal. 15. It seems that while deciding the first five cases what the Court understood by the expression 'no appeal can be entertained' and 'appeal should not be entertained' occurring in the Supreme Court judgment in Mrs. Dino Manekji Chinoy versus Muhammad Matin was that the appeal could not be given any consideration and in a way it was incompetent and not maintainable and as such should be dismissed. On the other hand the contrary view expressed in Suleman Gowawala and Sons Limited versus Usman [1985 C.L.C. 168] and Muhammad Ramzan versus Karim Bakhsh [1988 C.L.C. 448] indicating that these expressions were received in the sense of not considering the appeal for deciding the question of its admission to regular hearing. It appears that the resolution of the controversy depends upon the true interpretation of the word 'entertain'. Its dictionary meaning, given in the Oxford English Dictionary, in the context of the prevailing situation, is 'to admit to consideration'. The Supreme Court of India had the occasion of guaging in Lakshmiratan Engineering Works Limited versus Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur [AIR 1968 S.C. 488], the import of the word 'entertain' used in analogous sense in the proviso to section 9 of the Uttar Pradesh Sales Tax Act, 1948, which ordained that no appeal against an assessment should be entertained unless it was accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as might have become payable. The appeal of the assessee was rejected by the Assistant Commissioner of Sales Tax because in his opinion provisions of section 9 (as also of rule 66 (2)) had not been complied with since no proof had been given along with memorandum of appeal that the tax had been paid. The question for determination before the Supreme Court was as to what was the meaning of the word 'entertained' used in the proviso to section 9. The Court examined different facets of its meaning, whether it meant that no appeal could be received or filed or it meant that no appeal could be admitted or heard and disposed of unless satisfactory proof was available. The Court mainly banked upon the dictionary meaning of the word 'entertain' referred to above for formulating its decision. After examining a few High Court cases wherein the word 'entertain' had come up for interpretation it concluded that the direction to the Court in the proviso to section 9 was that the Court should not proceed to admit to consideration an appeal which was not accompanied by satisfactory proof of the payment of the admitted tax and that would be when the case was taken up by the Court for the first time. It explained that when the proviso spoke of the entertainment of the appeal it meant that the appeal such as was filed would not be admitted to consideration unless there was satisfactory proof available of the making of deposit of the admitted tax. 16. It would be legitimate to accept the dictionary meaning of the word 'entertain' used by the Supreme Court of Pakistan in its judgment. Therefore, the expression that no appeal can or should be entertained would signify that the appeal would not be given any judicial consideration by the Court. It need hardly be mentioned that the very beginning of such consideration starts with the preliminary hearing of the appeal at limine stage. The legal consequences of nonobservance of the condition precedent to the filing of appeal, namely, giving of notice to the respondent or his Advocate, as stated by the Supreme Court in Mrs Dino Manekji Chinoy's case, are that the appeal would not be entertained, that is to say, it would not be given judicial consideration by the Court. The officers of the Court responsible for receiving and scrutinising the appeal would get precondition of giving of notice of the appeal to the respondent or his Advocate fulfilled before the appeal is entertained and laid before the Court for preliminary hearing. If per chance the appeal is placed before the Court in the absence of previous notice to the respondent or his Advocate the Court would decline to hold preliminary hearing till after notice has been served upon the respondent or his Advocate. 17. Service of previous notice, as observed by the Supreme Court, is meant to avoid delay that is occasioned in issuing notice to and having it served on the respondent by the Court and to afford an opportunity to the respondent to contest the admission of the appeal and seek its dismissal in limine. Of course the respondent has no unqualified right to enter appearance at limine stage to contest the appeal and seek its dismissal; he can do so, as it transpires from subrule (2) of rule 3 of order XLHI, only with the permission of the Court, exercise of right being dependent upon the grant of permission by the Court Rule 3 is evidently intended to cater for the hearing of appeal at limine stage; its application cannot be stretched to post admission stage of the appeal. As discussed in Muhammad Ramzan versus Karim Bakhsh [1988 C.L.C. 448] wrong entertainment of appeal by the Court or by its officers and admission thereof would not adversely recoil upon the appellant for he is not to be penalised for any act or omission of the Court. The maxim actus curiae neminem gravabit (an act of the Court shall prejudice no man) would be squarely applicable to and cover his case. The utility of giving previous notice of filing of appeal is meant to be restricted to the stage of preliminary hearing of the appeal and is not to have any further effect once the appeal has crossed that stage and has been admitted for regular hearing; thereafter the appeal is to be heard and decided on merits. It follows that after its admission the appeal cannot be dismissed for non-compliance with the provisions of order XLIII, rule 3 of the Code of Civil Procedure, 19. The revision petition will be laid before the single Bench for decision according to law. (MBC) Orders accordingly

PLJ 1990 Lahore 274 PLJ 1990 Lahore 274 Present: mian ALLAH nawaz, J MAHMOODA SULTANA-Petitioner versus TASNIM MUMTAZ and another-Respondents Civil Revision No. 2306 of 1986 (also C.R. 1983 of 1986) dismissed on 12-2-1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —S. 27 read with O.V R.l-Service of notice-Defects in-Counsel appearing and filing written statement on behalf of petitioner-Whether she can still raise objection regarding defective mode of service—Question of-Summons are issued to inform defendant of institution of suit-When defendant appears in Court in person on through his recognized agent and files his written defence, he is precluded to raise any objection regarding mode of service-Held: Defect in mode of service which has not precluded defendant (petitioner) from appearing in court and filing her defence, is a mere irregularity and has no vitiative consequence. [P.281JB AIR 1933 Allahbad 165 rel. (ii) Concurrent Finding— —Finding of fact-Concurrent finding-Challenge to-Whether concurrent finding can be re-examined in revisional jurisdiction-Question of-Appellate Court agreed with trial court that petitioner had duly constituted Mr. Muzammal Hussain Advocate who filed written statement in exercise of authority given to him by petitioner herself-Held: There is no reason to reexamine this finding in revisional jurisdiction. [P 280]A (iii) Specific Relief Act, 1877 (I of 1877)-- —S. 27-Subsequent transferee-Protection to-Whether available to respondent No. 2-Question of-A subsequent transferee is entitled to protection if he establishes by un-impeachable evidence that he entered into subsequent transaction in good faith and without notice of earlier transaction- Respondent No. 2 did not make any enquiry from respondent No 1, first vendee or from persons who were in possession of disputed house at time of entering into transaction-Held: Revision petition filed by respondent No. 2 has no force-Both revisions dismissed. jPp.282&283]C,D,E&F AIR 1934 Privy Council 68, AIR 1946 Privy Council 97, AIR 1929 Patna 300, AIR 1923 Bombay 13, PLD 1969 Lahore 762 and PLD 1974 BdghdaJul Jadid 25 re/. Mr. Muhammad Taqi, Advocate for Petitioner. Mr. Amir Atom Khan, Advocate for Respondent No. 1. Mr. Hakatn Qureshi, Advocate for Respondent No. 2. Date of hearing: 12-2-1990. judgment These two revisions bearing number C,R. 2306/86 by Mst. Mehmuda Sultana and C,R. 1983/86 by Muhammad Aslam arise out of judgment and decree passed by the learned District Judge, Lahore dated 12-3-1986 by which the learned District Judge dismissed the appeal filed by Muhammad Aslam and crossobjections filed by Mst. Mehmuda Sultana. Both the cases involve the examination of common question of law and facts, therefore both these petitions are being disposed by this single judgment. 2. The material pertinent facts in the background of these petitions are; that Mst. Mehmuda Sultana (herein petitioner) was the owner of disputed propertyhosue bearing No. F/1106 in Kucha Kothi-Daran, Kashmiri Bazar, Lahore. Mst. Tasnim Mumtaz (herein respondent No.l) is the first vendee while Muhammad Aslam is the subsequent vendee. 3. On 16-12-1970 Mst. Tasnim Mumtaz filed a suit for specific performance in respect of disputed property on the basis of agreement to sell dated 26-7-1970 executed by Mst. Mehmuda Sultana in her favour. It was claimed in the plaint that vendor executed an agreement to sell in respect of disputed house in consideration of Rs. 24.000/- in her favour, received Rs. 5.000/- as earnest money, delivered the possession to her and agreed to get the sale deed registered within 30 days of agreement to sell. On her refusal to complete the agreement to sell, suit was filed. 4. On 9-5-1971 on Muzammal Hussain, Advocate appeared on behalf of Mst. Mehmuda Sultana, filed the power of attorney and submitted written statement on her behalf on 3-7-1971. In this written statement the agreement to sell was admitted but objection was taken that Mst. Tasnim Mumtaz failed to comply with the terms of the contract and so the vendor made the sale of disputed house to Muhammad Aslam through registered sale deed. Muhammad Aslam was impleaded as a party. The said Muhammad Aslam subsequent vendee filed written statement on 25-4-1972 wherein the objections were taken to the effect that he was a bonafide purchaser under registered sale deed dated 17-9-1970 and was protected under clause (2) of Section 27 of the Specific Relief Act. On the pleadings of the parties the learned trial Court framed the following issues:— 1. Whether the plaintiff failed to perform her part of the contract dated 26-7-1970? OPD. 1 2. Whether the defendant failed to carry out her obligation under the agreement dated 26-7-1970? OPP. 3. Whether the defendant No. 2 was a bonafide purchaser of the property with value and without notice of the prior agreement to sell? OPD. Additional Issues: 1. Whether the plaintiff entered into a valid agreement with defendant No. 1 in respect of the disputed property? If so, its effect? OPP. 2. Whether the plaintiff has no cause of action against the defendant No. 2? OPD.2 3. Relief. 5. The proceedings in the suit continued till 16-3-1983 when Mr. Saqib Nisar, Advocate entered appearance on behalf of Mst. Mehmuda Sultana, filed an application to the effect that the power of attorney and written statement filed by Muzammal Hussain, Advocate on behalf of her client were without any authority and were therefore, of no legal effect. The learned Civil Judge who was seized of the case dismissed the application without making any inquiry by holding that he had compared the signatures of Mst Mehmuda Sultana on this application with those signatures which were present on written statement as well as the power of attorney filed by Mr. Muzammal Hussain, Advocate and was of the view that the signatures were same. The learned Civil Judge by his judgment and decree dated 5-5-1983 decreed the suit of Mst. Tasnim Mumtaz subject to the payment of Rs. 19.000/- to Mst. Mehmuda Sultana, 6. Mst. Mehmuda Sultana did not file any appeal. On the appeal of Muhammad Aslam, she entered appearance and filed cross-objections through Mr. Najam-ul-Hassan Kazmi, Advocate. In the cross-objections grievance was made that impugned decision of the first court was bad in law because of being in violation of principle of natural justice" No body shall be condemned un-heard". It was urged that neither she was served in the suit nor she authorized Mr. Muzammal Hussain, Advocate to enter appearance on her behalf or file the written statement. 7. The learned District Judge by his order dated 5-11-1984 accepted the appeal and cross-objections, remanded the case back to the learned Civil Judge for deciding the application of Mst. Mehmuda Sultana in accordance with law. The learned Civil Judge was directed to record finding on the evidence adduced by the parties and return the finding alongwith the record to the first court of appeal. Consequent to this order of remand the learned Civil Judge framed following issues:- 1. Whether the petitioner Mahmooda Sultana did not execute impugned wakalatnama in favour of Mr. Muzammal Hussain, Advocate, ?OPA/. 2. Whether the written statement of defendant No. 1 dated 3-7-1971 filed on 7-7-1971 was not executed and filed by petitioner Mahmooda Sultana? OPA. 3. Whether the petitioner is estopped to .file the present application ?OPR (Mr. Muzammal Hussain, the plaintiff and defendant No. 2) 4. Whether this application is not maintainable in law? OPP (Mr. Muzammal Hussain, the plaintiff and defendant No. 2) 8. the learned Civil Judge after carefully considering the evidence adduced by the parties recorded finding, wherein it was held that the application of vendor was based upon false facts and baseless grounds. The learned District Judge after hearing both the parties dismissed the appeal of both Muhammad Aslam and cross-objections filed by Mst. Mehmuda Sultana. The judgment and decree of the learned District Judge, Lahore as well as the judgment and decree passed by the learned Civil Judge are impugned in these revision petitions. 9. The contentions of the parties can be summarized as follows:— 10. To begin with the contentions of the learned counsel for Mehmuda Sultana may be noted as under:-- (/) It was submitted that Mst. Tasnim Mumtaz in his (?) plaint with dis­ honest intentions gave wrong address of the petitioner. The summons issued by the Court were, therefore, sent to the place where the petitioner was not residing. Therefore according to him no service was effected on Mst. Mehmuda Sultana within the frame-work of Rule 2 of Order 5 of the Code of Civil Procedure. With enough emphasis he suggested that suit filed against Mst. Mehmuda Sultana was still pending meriting adjudication after hearing both the parties. All these proceedings in the suit are nullity in the eyes of law and are non-existent. Reliance was placed on Muhammad Aslam vs. Additional District Judge Rawalpindi etc. (1979 SCMR 85) and M. Yasin Siddiqui and 7 others vs. Ch Muhammad Boota (1983 C.L.C. 1462). (h) It was represented that substituted service was also resorted to without satisfying as to whether the personal service was effected or not. Any order for substituted service without existence of pre-condition is bad in law and therefore is a nullity. Reliance was placed on Shahbaz vs. Additional District Judge etc. (1983 C.L.C. 2392), Ibrahim KJian and 3 others vs. Ch. Iqbal Ahmad Mahmud Settlement Officer and another (1982 CLC 2094), Mst. Afzal Begum and others vs. V.M.CL4 through Us General Secretary (PLD 1979 S.C. 18), Muhammad Nasir vs. Sadiq Muhammad (1982 C.L.C. 856), Malik Muhammad Nazir vs. Mian Abdur Rahim and another (PLD 1968 Lahore 792), Siraj Din vs. Mst. Iqbal Begum (PLD 1968 Lahore 639) On the strength of assertions made in point No. (/) it was contended that the appearance of Muzammal Hussain as an Advocate of the petitioner did not cure the illegality having been committed in mode of service on the petitioner. It was contended that since the hearing was a foundation of dispensation of justice, appearance by Muzammal Hussain Advocate was of least help in resolving the controversy. (zv) It was finally contended that Mst. Mehmuda Sultana was a Parda Nasheen lady and the agreement to sell in favour of Mst. Tasnim Mumtaz and registered sale deed in favour of Muhammad Aslam had to be scrutinized with great caution under Section 16 of the Contract Act, 1872. 11. Learned counsel for Muhammad Aslam submitted that Muhammad Aslam was a bonafide purchaser without notice. The sale in his favour was protected under Section 27 of the Specific Relief Act. He vehemently argued that his petition be accepted and the judgment and decree in favour of Mst. Tasnim Mumtaz be set aside. 12. Learned counsel for Mst. Tasnim Mumtaz supported both the impugned decisions. While replying the contentions of the petitioners, he submitted that the question raised could not be looked into revisional jurisdiction of this Court which is intended to correct the errors of jurisdiction or any finding which is vitiated by mis-reading of evidence, non-reading of evidence or mis-application of law. In this case according to him both the learned counsel for the petitioners have not pointed out such defence. It was urged with vehemence that the question relating to the credibility of witnesses or finding of facts cannot be raised in revisional jurisdiction. It was submitted that both the courts below have dis-believed the evidence of Mst. Mehmuda Sultana and his daughter Mst. Muhsna Ahmad on cogent grounds and so this finding cannot be upset in this court. 13.1 have heard the submissions made by the parties and perused the record of the case with the able assistance of both the learned counsel and hereon proceed to determine the respective contentions. 14. It is appropriate to record that the learned counsel for the petitioner Mehmuda Sultana did not seriously question the finding of the first appellate court as well as first court that a statement of Mst. Mehmuda Sultana as well as her daughter was not worth credence in respect of her assertion; that she had not appointed Muzammal Hussain as her attorney and authorized him to file power of attorney. It will be advantageous to examine the finding of the first court of appeal on this circumstance which is as follows:-- "In support of her application Mst. Mehmuda Sultana examined herself and her daughter Mst. Mohsana Ahmad. Mst. Mehmuda Sultana stated that she was an old invalid lady; that she had a weak eye sight and was unable to move about and unable to see. She had never received any notice from any court and had never entered a lawyer's office. She had not engaged Mr. Muzammal Hussain, Advocate as her counsel and had not signed the written statement in this suit. She in fact went so far as to say that she had never engaged any counsel in any case. According to her, she had deposited Rs. 24000/- in court but the dispute about the mortgage was still pending. She had gone to take possession in Kashmiri Bazar, and it was there that she was told that one Pehlwan and Muhammad Aslam had instituted a suit against her. It was thus that she came to know of the suit. She admitted that Ahmad Batalvi was his sonin-law. He was the husband of her daughter Mst. Mohsana and his marriage with Mst. Mohsana had taken place hi 1968. Ahmad Batalvi had died a year before her statement (which was recorded in December. 1984). In her cross-examination, however, she vacillated and changed positions. She said that she had never engaged any counsel other than Mr. Muhammad Taqi Advocate in this case. This was untrue because as had been seen above, she had first engaged Mr. Saqib Nisar and then Mr. Najmul Hassan Kazmi and then Mr. Muhammad Taqi. As has been seen above, in her application dated 16-3-1983 her case was that before the Deputy Settlement Commissioner, Muhammad Yousuf (who is a brother and attorney of the plaintiff) had appeared and disclosed sometime in March, 1983 that a suit about this property was pending in the Civil Court. As has been seen above, here she said that she had come to know of the suit in Kashmiri Bazar from an un-named person; according to him, the suit had been filed by Pehlwan and Muhammad Aslam. She was expressly asked if she had engaged Mr. Kazmi as her counsel during this appeal, she denied having done so. She also denied that at one stage she had engaged Mr. Sharif Hussain Bokhari as her counsel. She also denied that she had engaged Mr. Saqib Nisar Advocate as her counsel. Thus she did not hesitate even to deny such patent facts as the engagement of these counsel. The wakalatnamas of all these advocates are on the file and the fact that she chose to deny such patent facts must seriously affect her credibility. As to the engagement of Mr. Taqi as her counsel she said that her daughter Mst. Mohsana had visited his office; she had signed his wakalatnama and given it to her for being handed it over at his office. Later she again changed her position and admitted that Mr. Saqib Nisar had been her counsel. As regards Mst. Mohsana Ahmad she said that her marriage with Ahmad Batalvi had taken place on 5th of November, 1972 and that her mother had no knowledge of the suit and had not engaged Mr. Muzammal Hussain Advocate as her counsel. She did not place any documentary evidence on the record to show that her marriage with Ahmad Batalwi had taken place in November, 1972 and not in 1968, as stated by her mother. As her marriage with Ahmad Batalwi had taken place in 1968, it lay heavily both upon Mst. Mehmuda Sultana and Mst. Mohsana Ahmad to produce the best evidence. That they failed to do so must, as was held by the learned Civil Judge, give rise to an adverse inference against them. I, therefore, agree with the learned Civil Judge that the credit-worthiness of both Mst. Mehmuda Sultana and Mst. Mohsana was open to serious question. Mr. Muzammal Hussain Advocate swore to the fact that he had been engaged by Mst. Mehmuda Sultana as her counsel in the suit; that Ahmad Batalwi and his wife Mst. Mohsana had been visiting him from time to time in connection with the defence of the suit and that it was according to the instructions received by him from Mst. Mehmuda Sultana and Mst. Mohsana that he had been pleading and acting on behalf of Mst. Mehmuda Sultana. There is no reason, whatever, to doubt his veracity. He is an advocate of some standing at the bar and there is no evidence whatever even remotely suggesting that he had anything to do with the plaintiff or with Muhammad Aslam defendant or that he had any reason to join hands with them. In point of fact the record of the case bears testimony to his having defended the suit in the possible way. His testimony received further support from the documents placed by him on the record. They were a visiting card of Ahmad Batalwi and a copy of the agreement in question which go a long way to show that he had been acting on the instructions of Mst. Mehmuda Sultana and Ahmad Batalvi. In the circumstances of the case, the fact that the application was made by Mst. Mehmuda Sultana after the death of Ahmad Batalwi also assumes significance." 15. It is apparent from the finding of the learned District Judge that he agreed with the finding of the trial Court that Mst. Mehmuda Sultana duly constituted Mr. Muzammal Hussain, Advocate who filed written statement in exercise of authority given to him by Mst. Mehmuda Sultana herself. This concurrent finding of fact by two courts has not been assailed on the grounds contained in Section 115 of the Code of Civil Procedure. Therefore, I am clear in my mind that there is no reason to re-examine this finding in revisional jurisdiction. 16. Having agreed with the concurrent finding of fact noted above now I will take up the remaining contentions of the parties from which the following questions emerge for consideration:-- (i) Whether Mst. Mehmuda Sultana is entitled to a finding that despite the appearance of Muzammal Hussain, Advocate she is entitled to hearing in the suit on account of defects in mode of service under Chapter V of the Code of Civil Procedure.? (ii) Whether there was a legal error in mode of service against Mst. Mehmuda Sultana? (Hi) Whether Muhammad Aslam is a bonafide transferee without notice of agreement to sell in favour of Mst. Tasnim Mumtaz and is so protected under Section 27 Sub-clause (2) of the Specific Relief Act (I of 1877) 17. Taking up the first and second points, it is to be noticed that the hearing is the foundation of dispensation of justice in civil cases. The Code of Civil Procedure provides elaborate procedure regulating the mode of trial in civil courts. Neither the word 'suit' nor the word 'trial' has been defined. However it is amply clear from the scheme of the Code of Civil Procedure that the proceedings in a trial start with the presentation of a plaint which is duly registered and summons are to be issued to the defendant to appear and answer the claim in the plaint. The mode of effecting service of summons is provided in Order 5 ibid. Section 27 and O'rder 5 Rule 1 ibid are as follows:-- "Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed. O: 5, R. 1 (1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim. (2) A defendant to whom a summons has been issued under sub-rule (1) may appear- (a) in person, or (b) by a pleader duly instructed and able to answer all amterial questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by Judge or such officer as he appoints, and shall be sealed with the seal of the Court. 18. It is apparent from the bare reading of Section 27 and Order 5 Rule 1 of the Code of Civil Procedure that the suit had to be decided after hearing the defendant in respect of claim contained in the plaint. The summons are issued to inform the defendant of institution of suit in sufficient time before the date fixed for hearing and the procedure laid down for service of summons is aimed to guard against fraud and ensure that the proper person has been served and apprised of claim against him contained in the lis instituted in the Court. Whenever and wherever the defendant appears in court in person or through his recognized agent, files his written defence, he is precluded to raise any objection with respect to the mode of service. The ultimate object of the procedure and rules relating to summons is to facilitate the hearing of the suit and adjudication on merits. It is not aimed to prolong agony of the people in court and are not meant for technical compliance. The objection to mode of service was taken in a case in Nathu Ram vs. Salim Abdul Karim. (AIR 1933 Allahabad 165). In this case revision was filed against the order of Small Cause Court Judge, Ali Garh who had rejected an application for restoration of suit filed by defendant/applicant on the ground that the substituted service effected against him was incorrect and illegal. The learned revisional court came to the conclusion that the substituted service was effected in illegal manner, was in fact no service. Nevertheless High Court refused to set aside the orders of subordinate courts on the ground that the petitioner had the knowledge of the hearing of the suit and so in egularity in the service of summons amounted to mere irregularity which was not vitiative of the proceedings. Therefore, I am clear in my mind that any defect in the mode of service which has not prevented the defendant from appearing in the court and filing his defence is a mere irregularity and has no vitiative consequence. Accordingly the argument of the learned counsel for the petitioner is repelled and is found to be without any substance. 19. As far as the merits are concerned Mr. Muzammal Hussain, Advocate ppeared in the court and filed a defence in which it was admitted that agreement to sell in favour of Mst. Tasnim Mumtaz was correct but defence was taken that she has failed to comply with the terms of the contract so Mst. Mehmuda Sultana was justified in entering into the registered sale deed in favour of Muhammad Aslam. Not a single sentence in respect of alleged defence was uttered. Therefore, the learned civil Judge as well as the first court of appeal were completely justified to decree the claim of Mst. Tasnim Mumtaz. 20. Having dealt with the case of Mst. Mehmuda Sultana, I proceed on to examine the submissions of the learned counsel for Muhammad Aslam. It will be appropriate to examine the relevant law on the question of claim of bonafide by a subsequent transferee. Section 27 of the Specific Relief Act is as follows:-- "Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:-- (a) Either party thereto; (b) 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; to ........... to ...........

PLJ 1990 Lahore 283 PLJ 1990 Lahore 283 Present: mian ALLAH nawaz, J S. K. MASOOD and 3 others-Petitioners versus SPECIAL COMMITTEE APPOINTED BY FORMER GOVERNMENT OF PUNJAB, THROUGH MEMBER, BOARD OF REVENUE LAHORE and 3 others-Respondents Writ Petition No. 191/R of 1978, dismissed on 6-3-1990 (i) Settlement and Rehabilitation Matters- —Repeal of Settlement Laws-Whether Deputy Settlement Commissioner was competent to give finding after repeal—Question of—Deputy Settlement Commissioner, after examination of record, came to conclusion that neither disputed plot was auctioned nor any authority passed an order in this respect-­ Petitioners have brought no material on record to controvert this finding-­ Held: Deputy Settlement Commissioner or authorities who are custodian of record, have authority to scrutinize correctness and genuineness of their own record—Held further: Finding of Deputy Settlement Commissioner does not suffer from any legal infirmity. [Pp.289&290]B,C&D 1989 SCMR 819 rd . (ii) Settlement and Rehabilitation Matters-- —Urban plot-Auction of-Repeal of Settlement Laws-Whether balance amount could be deposited after repeal of Laws—Question of—Petitioners have come to court with unclean conduct—They have not placed on record certified copies of original and amended PTOs-They got deposited balance price after repeal of Settlement Laws when Settlement Authorities had ceased to exist- Held: Settlement Authorities were not competent to receive alleged balance price as this was not a pending case-Held further: Deposit was totally illegal and Petitioners are not entitled to grant of relief in Constitutional jurisdiction- Petition dismissed. [Pp.290&291]E,F&G (iii) Settlement and Rehabilitation Matters— —Urban plot-Auction of-Whether bid sheet is genuine-Question of-Bid sheet is a remarkable piece of forgery-Signature of approving authority appears on bottom without seal of authority—No conscious order is passed about approval by approving authority-Held: Contention that signature of J.D Malik tantamounts to approval is totally fallacious and completely untenable. [P.289]A M/s Mahmoodul Haq Ttianvi and Klialeeq Ahmad Ansari, Advocates for Petitioners. M/s S.M. Ikram and Ch. Nazir Ahmad, Advocates for Respondents. Date of hearing: 5-3-1990. judgment This is a Constitution petition by S. K. Masud, Mirza Ashiq Hussain, Mian Abdur Rauf and Muhammad Mohsin under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the finding of the Deputy Settlement Commissioner dated 10-7-1975 holding the transfer documents in respect of property in dispute in favour of S. K. Masud, Ashiq Hussain, Abdur Rauf and Muhammad Mohsin to have been based upon forged and fabricated auction proceedings and therefore, of no value. 2. The brief facts alleged in the petition are; that the plot in dispute was put to auction being conducted by auction committee comprising of J. D. Malik Chairman, Deputy Settlement Commissioner, a representative of the Deputy Commissioner. Muhammad Mohsin herein petitioner No. 4 gave the highest bid of Rs. 18,000/-; that the said bid was accepted by J. D. Malik the then Chairman of auction committee. The petitioner No. 4 made the payment of Rs. 17,288/- through deposit of compensation book and A. A. O. The provisional transfer order was issued to the said transferee on 22-12-1962. It was on 18-3-1964 the said Muhammad Mohsin surrendered his rights in favour of S.K. Masud and Mirza Ashiq Hussain. The balance amount of Rs. 712/-was paid by them on 29-6-1974. The association deed was accepted by the Deputy Settlement Commissioner vide order dated 28-4-1964 and Mirza Ashiq Hussain received amended P.T.O. on 28- 3-1964. 3. Mst. Ruqqaya Begum instituted a complaint that she was the transferee of adjacent Bungalow No. 90-G, Model Town, Lahore; that she was in possession of this plot and made a complaint that documents in favour of Mirza Ashiq Hussain and S. K. Masud were forged documents as the plot was never put to auction. The Deputy Settlement Commissioner under-took the enquiry and on 10.7.1975 recorded the finding that the plot was never put to auction; that bid sheet in favour of Muhammad Mohsin existing on the record was forged document; it carried the forged signatures of the Settlement authorities and the auction was not incorporated into relevant record. The special committee appointed by the Government of the Punjab came to the same conclusion and held on 23-6-1975 that auction proceedings in favour of Muhammad Mohsin was a forged and fabricated proceedings. The Deputy Settlement Commissioner accordingly held that the plot is available for the disposal under the law. 4. The narrative of the facts will not be complete without noting that on 18.6.1974 the Deputy Settlement Commissioner passed an order to the effect that the disputed plot was lying vacant; that there was no construction in the plot and so the R.S.S. form-VIII filed by Murad Ibrahim and Hafiz Abdul Ghani were rejected. It was ordered that the plot may be disposed of through auction. 5. Feeling dissatisfied with the finding of the Deputy Settlement Commissioner and Special Committee Punjab the petitioner instituted the present constitution petition. 6. On 23-8-1978, Mst. Shagufta Begum herein respondent No. 3 applied for being impleaded as a party on the ground that she occupied of 4 kanals out of the said plot, had raised the permanent construction over the 21/22 marlas of the plot in dispute and that she was entitled to its transfer under scheme No. 9. Her application was accepted. She was impleaded as a party and submitted her written statement. Similarly, Hafiz Abdul Ghani was impleaded as a party in consequence with application under Order 1 Rules 8 and 10 read with section 151 of C.P.C. It was claimed in application that he was entitled to transfer of the plot in dispute on account of their actual physical possession. 7. Learned counsel for the petitioners raised following points:-- (1) It was submitted that the plot was auctioned by the auction committee on 28-4-1960. Muhammad Mohsin was the highest bidder who deposited Rs. 17,288/- through compensation book with the AA.O. The bid was accepted by the Addl. Settlement Commissioner; that the said transferee was issued PTO, through deed of association he surrendered his rights in favour of S. K. Masud and Ashiq Hussain. This deed was accepted by the Deputy Settlement Commissioner vide order dated 28-3-1964. Mirza Ashiq Hussain received the amended PTO on 20-3-1964 and deposited the remaining price i.e., Rs. 712/- on 29-6-1974. On the basis of the aforesaid narrative it was contended that the petitioners were the lawful transferees of the said plot and after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), the Settlement authorities had no authority to re-open enquiry relating to PTO issued on 20-3-1964. The reliance was placed on Muhammad Younus and 2 others vs. Muhammad Younus Khan etc. (1981 SCMR 899) Raja Hassan Akhtar and others vs. Akbar Khan and another (1981 SCMR 503), Ghulab Din vs. Collector/D.C. Kasur, etc. (NLR 1983 Civil 612) and Fateh Muhammad and others vs. Deputy Commissioner (PLD 1989 L 473) (2) In the second instance it was contended that the transfer order was issued by the Deputy Settlement Commissioner, on 20-3-1964 and after the said date the Settlement authorities had no business to deal with the property in dispute as it ceased to be evacuee property. On the strength of this argument, it was canvassed that neither the Deputy Settlement Commissioner nor the special committee had the authority to re-examine the genuineness of PTO. The reliance was placed on Muhammad Siddiq vs. Chief Settlement & Rehabilitation Commissioner, (PLD 1965 SC 123), Crescent Jute Products Ltd. v. Muhammad Yaqub etc. (PLD 1978 SC 270), Amir Din etc. vs.Addl. Settlement Commissioner etc. (NLR 1980 UC 227) and Abdul Jamil Asghar v. Settlement Commissioner (Land) etc. (NLR 1981 UC 455) (3) Thirdly it was suggested that Mst. Ruqqaya Begum got initiated the proceedings by application given in the month of June, 1975; that Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), became effective from 1st July 1974 from which date all the Settlement authorities functioning under Repeal Laws were denuded of their authority. Therefore, the proceedings commencing from application to declaration of transfer orders were void ab-initio and lacked the legal efficacy. The reliance was placed on Raja Hassan Aklitar and others vs. Akbar Ktian and others (1981 SCMR 503), Fateh Muhammad and others vs. Deputy Commissioner T.T. Sintfi and others (PLD 1989 L 473) and (4) It was submitted that the finding of forgery is completely misconceived and without any material basis. It was urged that the plot was sold through public auction held on 18-4-1960 by an auction committee which comprised of Deputy Settlement Commissioner, the representative of the D.C. and Addl. Settlement Commissioner who headed the Committee. The auction was signed by S. A. Qayyum, Deputy Settlement Commissioner. Lt Col. J.D. Malik, Adddl. Settlement Commissioner approved the auction. The learned counsel for the petitioners invited the attention of the Court to bid sheet in the record of Settlement authorities which was summoned by the Court on the application of petitioners. On the basis of these arguments it was submitted with emphasis that the petition merited to be accepted. 8. Learned counsel for Mst. Shagufta Begum, Sardar Muhammad Akram, Advocate, supported the impugned proceedings. So was the stand of Mian Saeed- ur-Rehman Farrukh, learned counsel for Hafiz Abdul Ghani. Learned counsel for the respondents while replying the arguments of petitioners submitted that constitutional jurisdiction was not available in favour of a petitioner who wanted aid in perpetuation of ill-gotten claim; it was submitted that this jurisdiction was extra-ordinary jurisdiction and had to be exercised in favour of persons whose rights were usurped; against whom the state functionaries used their powers in arbitrary, capricious and illegal manners. It was contended that the plot was not put to auction at all. The auction bid is a totally forged document inserted into settlement record with the unholy help of the Settlement clerks. Neither the plot was put to auction nor Muhammad Mohsin gave the highest bid nor he paid the amount through compensation book. It was contended that agreement of association unveiled the whole truth. According to him, this memorandum of ssociation was attested on 23-3-1964 while there was an order of the Deputy Settlement Commissioner on record that it was submitted on 16.3.1964. The Deputy Settlement Commissioner appears to have signed it on 28-3-1964. Mirza Ashiq Hussain appears to have received the amended PTO on 20-3-1964. These entries themselves reveal the concocted nature of the documents. It was further, argued that the corresponding entries of auction in C.S.S. registers were missing. The stress was laid down on the fact that had this document been executed on 16- 3-1964 how it could be attested on 26-3-1964 and how Mirza Ashiq Hussain could receive the amended P.T.O. on 20-3-1964. It was finally contended that there is no explanation whatsoever on the record that partly amount of Rs. 712/- was paid on 18-6-1974 after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). On the basis of these submissions it was urged that the petitioners were not entitled to discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The reliance was placed on Yar Muhammad and 3 others vs. Settlement Commissioner (L) Lahore (1985 SCMR 1346) Noor Muhammad and others vs. Assistant ommissioner (1986 SCMR 292) and Ghulab Din vs. Collector/ D.C. Kasur etc. (NLR 1983 Civil 612). 9. Continuing with their arguments learned counsel proposed that the Deputy Settlement Commissioner vide order dated 18-6-1974 recorded a finding that plot No. 89/G was lying vacant and was available for auction under settlement scheme No. 9. The petitioners had not disputed this order before this Court and so this order had become final between parties. 10. Learned counsel for the Settlement Department vehemently supported the impugned finding and submitted that the petitioners have come to seek the aid of this Court in support of forgeries and manipulation. According to him the petition had no substance and merited to be dismissed on account of un-clean conduct of the petitioners. He pointed out that according to the case of petitioners Mohammad Mohsin had deposited Rs. 17,288/- out of Rs. 18000/- how such a person can surrender his rights for a petty amount of Rs. 712/-. This aspect demonstrated that the auction proceedings and the bid list was a deceptive document. 11. I have heard the learned counsel for the parties and perused the record annexed with the petition and perused the record of proceedings made available by the Settlement authorities. Before determining the legal question it would be advantageous to note a few facts about this auction bid sheet (alleged proforma). Against the column relating to signatures of Settlement authorities there are three signatures. One signature is in the column relating to Deputy Settlement Commissioner, second signature is before the column of representative of the Deputy Commissioner and the third signature is beneath the two signatures. Learned counsel for the petitioners represented the first signature was of SA. Qayyum while the second signature related to the representative of the Deputy Commissioner and third signature was the signature of Addl. Settlement Commissioner who signed as a token of granting approval. 12. There is no dispute that the disputed property was urban building site which was to be disposed of through un-restricted public auction. In order to regulate the auctions, elaborate procedure for holding auction was provided by the Settlement Department vide a circular No. 1042-F & M-Reh/59, dated 12 th November, 1959 (on page 397) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by MA. Latif, (Edition 1969). 13. Relevant para 4, 5, 6, of circular are as follows:-- 4. The Auction Committee shall, for the purpose of disposal of building sites by an un-restricted public auction, be formed by the Additional Settlement Commissioner of the area, consisting of the following :-- (1) Deputy Settlement Commissioner of the area (Chairman). (2) Assistant Settlement Commissioner nominated by the Additional Commissioner (Member). (3) A representative of the Deputy Commissioner of the District or the Sub-Divisional Magisd .itc of the Sub-Division concerned (Member.) 5. Two members of the auction committee including the chairman shall form a quorum of the committee. 6. Auction proceeding shall be submitted to the Additional Settlement Commissioner concerned who may or may not accept the highest bid without assigning any reason and may order fresh auction. It is clear from the bare reading of para No. 4, 5 and 6 and circular that auction was to be conducted by auction committee constituted under para No. 4, while approval had to be granted by the Additional Settlement Commissioner under para No. 6 ibid. The circular therefore, provided an auction committee and an approving authority. These two were separate legal entities. The auction committee had to perform the role of auctioning the property inviting their offers and transmit to approving authority. It had to act like conduit. The approving authority was vested with the powers to accept and reject the auction after carefully considering the statements or offers. By no stretch of imagination these two entities can be amalgamated into one entity. Therefore, I have no difficulty in discerning true character of this document. 14. This bid sheet is remarkable piece of forgery. The signature of approving authority appears to be on the bottom without any seal of the authority. There is no conscious order passed by the approving authority in respect of approval. It indicates that this bid sheet is a manipulated document inserted into Settlement record to manufacture a footing for the claim of petitioners. The contention of the petitioners that the signature of J.D. Malik tentamounts to approval under para No. 6 of ibid cannot be accepted. This Argument is totally fallacious and completely untenable. 15. Even otherwise the document of deed of association presents a most dismal picture. To begin with, this deed of associateion recites that second party shall make the payment of balance amount i.e. Rs. 712/-; that the first party has surrendered his total rights in favour of second party in equal share; that the first party shall not be liable for any payment if the compensation book deposited by him is found to be bogus. This deed of association bears the seal of oath commissioner dated 26-3-1964. The Deputy Settlement Commissioner appears to have accepted this deed of association on 28-3-1964 while the entry relating to submission of this deed of association is 16-3-1964. There is entry to the effect that Ashiq Hussain received amended PTO on 20-3-1964 without depositing the balance of price which was paid on 20-6-1974. As indicated above the entries of this document exclusively demonstrate that at the time of executing the deed of association Muhammad Mohsin had paid Rs. 17,288/- out of alleged Rs. 18,000/-; that for Rs. 712/- he transferred his total rights with an observation that if the compensation book was bogus he was not liable for further payment. That the amended PTO was given to Ashiq Hussain without the payment of balance price; that it was accepted on 28-3-1964 but the amended PTO was given on 20-3-1964 even the balance of price was deposited on 20-6-1974. 16. There is a circular by the Chief Settlement Commissioner wherein the payments through agreement of association were totally stopped after 30-6-1965 and a new system of payment by partnership was introduced vide a press note dated 28-8-1965. This circular is at page 484 of the Displaced Persons (Compensation & Rehabilitation) Act XXVIII of 1958 by M.A. Latif 1969 edition. No doubt is left in my mind that like auction bid, this deed of association was a forged document. 17. Having come to an agreement with the findings of the Deputy Settlement Commissioner that the auction proceedings as well as the transfer orders are forged document, the question remains as to whether the Deputy Settlement Commissioner was competent to record the impugned finding in view of the enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), with effect from 1st July, 1975. 18. The authorities cited by the petitioners are of no help in this case. They proceed on distinguishable facts and the principles laid down in them are not applicable to the facts of this case. Therefore, it will be no use to comment upon these authorities. 19. Suffice it to say that the Deputy Settlement Commissioner or the authorities who are the Custodian of record have the authority to scrutinize the correctness and the genuineness of their own record. The Deputy Settlement Commissioner after the examination of the record came to the conclusion that neither the disputed plot was auctioned nor any authority passed an order in this respect, Auction Proforma and transfer document were forged instruments. 20. The petitioners have brought no material on the record to controvert the finding of the Deputy Settlement Commissioner on record. Uncertified copy of the bid was produced and, therefore, I am quite clear in my mind that the finding of the Deputy Settlement Commissioner does not suffer from any legal infirmity. On the basis of it, the learned Deputy Settlement Commissioner was completely competent to examine the genuineness and forgery in his record. 21. The same question came up for consideration before the Supreme Court in Shamrooz Khan vs. Muhabbat KJian (1989 SCMR 819). In this case the land measuring 3 marlas out of plot No. 1760, Ward-G, Rawalpindi was in dispute between the two brothers. The respondent claimed that it was transferred in his favour along with other portion of the plot measuring 10 marlas in the year 1964. The disputed portion was treated to be available property in 1971 and was transferred to Shamrooz Khan, appellant. The Deputy Settlement Commissioner in pursuance of order of remand upheld its transfer in favour of Muhabbat respondent. The appellant gave an application to the effect that the Settlement file relating to this case was fabricated one. The Deputy Settlement Commissioner gave a notice. Muhabbat Khan filed a constitution petition in the High Court which was accepted. The Supreme Court accepted the appeal and enunciated the following rules:-- "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil KJian and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre­ empted by the High Court hi the words in which it has been done. The Custodian of the record is the best Judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court." 22. There is yet another aspect of the case (that) the petitioners have come to Court with unclean conduct. The petitioners neither placed on record certified copies of the original PTO and the amended PTO dated 28-3-1964. They got deposited alleged balance price on 29-6-1974 after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), the Settlement authorities have ceased to exist. Therefore, the settlement authorities were not competent to receive the alleged balance price as this was not a pending case under sub clause 2 of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). According to my humble view this deposit was totally illegal. 23. The Constitutional jurisdiction cannot be exercised in favour of retention of ill-gotten gains. Reference may be made to Nawab Syed Raunaq Att etc. vs. Chief Settlement Commissioner and others (PLD 1973 S.C. 236), Muhammad Ismail vs. Abdul Rashid and 2 others (1983 SCMR 168) and (?) 24. In the light of foregoing analysis I have no difficulty in reaching the conclusion that the petitioners are not entitled to grant of relief in the extraordinary jurisdiction of this Court. The only question remains as to whether Mst. Shagufta Begum and Hafk Abdul Ghani are entitled to any relief. It is a common ground between the parties, that the Deputy Settlement Commissioner passed order dated 18-6-1974 by which the application of Murad Ibrahim and Hafiz Abdul Ghani was rejected and the plot was ordered to be disposed of through public auction. Learned counsel for Mst. Shagufta Behum and Abdul Ghani reiterated the same stand over here that in view of the stand of the respondents the order date 18-6-1974 has become finality. 25. In result, I find no substance in this petition. Accordingly this petition fail si q and is dismissed. The petitioners shall bear the costs of proceedings. 26. While parting with this case I feel it necessary to observe (that) the office shall despatch the record of this case which was summoned from the Deputy Settlement Commissioner (Plots) Faridkot House, Lahore without any loss of time. The Deputy Settlement Commissioner is further directed to keep this record under seal in order to save it from any further forgeries. (MBC) Petition dismissed

PLJ 1990 Lahore 291 PLJ 1990 Lahore 291 Present: S. M. ZUBAIR, J Mst. RIAZ BEGUM-Petitioner versus S.H.O POLICE STATION FEROZEWALA and 3 others-Respondents Writ Petition No. 75 of 1990, accepted on 13-3-1990 Investigation-- —Investigation—Transfer of~Prayer for-Whether High Court has jurisdiction to transfer investigation-Question of-Contention that investigating officer has ignored most important and vital piece of evidence why deceased persons came fully armed to house of accused party and opened fire, hence whole investigation is against provisions of law and is whithout lawful authority-­ Local Police has not conducted investigation properly and in accordance with law-Behaviour of investigating officer has created a reasonable apprehension in mind of accused party that they will not get fair and honest investigation at his hands—Held: When action of an authority is illegal, then High Court can isssue a direction that he should conduct things in a lawful manner-Petition accepted and investigation transferred. [Pp.293&294]A,B&C Mr Rafiq Ahmad Bajwa, Advocate for Petitioner. Mr. Irfan Qadir, AA.G for State. Mr. R~A. Awan, Advocate for Complainant. Date of hearing: 13-3-1990. JUDGMENT' Through the under consideration constiiuuonai petition, Mst. Riaz Begum, wife of Naseer Ahmad Bhatti, one of the accused in case vide FIR No. 563/89, dated 17-12-1989, under sections 302/307/149 and 148 PPC, prays for the issuance of a direction to respondent Nos. 2 to 4, for the transfer of investigation of the aforesaid case from respondent No, 1, to some other independent officer of the rank of D.S.P. 2. Briefly stated, the facts giving >ise 10 the present petition are that on 17.12.1989, at above 4.30 a.m., the petitioner aiong with her son Abid Naseer and daughters, was sleep in her house No. 6, Imaaua Colony, Main Bazar, when they were awakened because of ''rsdiscr'imbite firing at their house. Abid Naseer, apprehending danger to his life and property, picked up the licenced gun of his father, went on the roof of the house, and there in the scuffle Waqar Ahmad and Ghulam Jaffar lost their lives. According to the petitioner, the police in connivance with the coioplaiaani part}, by suppressing the real facts, recorded F.I.R. No. 563/89, against the petitioner and others at Police Station Ferozewala. According to the averments made in the petition, Waqar Ahmad deceased was armed with Mouser and 12 bore carbine, whereas Ghulam Jafar deceased was armed with 12 bore gun. Both of them came to the spot on Motor Cycle No. KS 3433. At the time of his death Waqar Ahmad was holding mouser in his hand and revolver was recovered from his pocket and a gun was lying near the motor cycle. The police also recovered from the spot .aouser 30 bore, 32 bore revolver, 12 bore gun and the aforesaid motor cycle, 3. The grievance of the petitioner is that the police by ignoring the real facts and with mala fide intention for obliging the complainant party registered the aforesaid case on one sided version, without taking into consideration the most important piece of evidence, why the deceased along with their companions came to the house of the accused party fully armed. The police did not conduct the investigation from this angle and has deprived the accused party of the possible right of self defence available to them on the basis of the circumstances mentioned above. The learned counsel for the petitioner has also placed on record, photographs showing the marks of fire shots on the doors of their house and house too. He submitted that in view of this overwhelming evidence, referred to above, the investigating officer has failed to perform his legal duty in accordance with law by not taking into consideration aft the evidence available at the spot, hence the present investigation is against ftse dictates of law. He has referred to the definition of 'investigation' as given in section 4(L) of the Code of Criminal Procedure, which is reproduced in extenso:- "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate)who is authorised by a Magistrate in this behalf." 4. This Court vide its order dated 7-1-1990, called for a report and parawise comments from respondent No. 1 and also directed the Law Officer to assist this Court at the preliminary hearing of this petition. Respondent No. 1 has submitted an evasive and incomplete report and comments. He has not categorically denied or accepted the assertion as to what happened to the arms recovered at the spot, whether they belonged to the complainant party or the accused party, and what was the object for which the deceased went to the house of the petitioner while fully armed with deadly weapons. Due to this negligence on the part of the investigating officer, the petitioner moved various applications to the higher authorities for the transfer of the investigation, apprehending that they will not get a fair and honest investigation at the hand of the local police, although copies of those petitions, have not been placed on the record. . The learned Law Officer, who is appearing for the respondents frankly conceded that in view of certain circumstances, referred to above, he would not oppose the prayer of the petitioner for the transfer of investigation from respondent No. 1 to some other police officer. On the admission of the Law Officer, the petition was formally admitted to hearing, but as only a short law point was involved and the factual position was not controverted by either of the parties, it was decided to dispose of the writ petition today. 6. At this stage, Mr. RA. Awan, put in appearance on behalf of the complainant, though he is not a party to the proceedings. He submitted that he should be heard before passing any final order. The learned counsel for the petitioner and the Law Officer did not oppose the request of the learned counsel for the complainant and agreed that he should be given opportunity to put forth the case of the complainant party before this Court in the interest of justice and fair play. 7. The learned counsel for the complainant urged that the present constitutional petition is incompetent, as the investigation is being carried out by the local police under the lawful authority, hence there is no justification for transferring the investigation from the local police to some other officer and even this Court has no jurisdiction to interfere in the investigation which is being conducted by the local police lawfully. He has placed reliance on Shahnaz Begum vs. Tlie Hon'ble Judges of the High Court of Sind and Baluchistan (P.L.D. 1971 S.C. 677), in support of his contention. 8. The learned counsel for the petitioner urged that the above mentioned case is not applicable to the facts and circumstances of the present case and is distinguishable. He submitted that in the present ase, the petitioner has invoked he constitutional jurisdiction of this Court as the investigating officer has ignored the most important and vital piece of evidence i.e., why the deceased persons came fully armed to he house of the accused party and opened the fire and how the actual occurrence took place, hence the whole investigation conducted by the local police is against-the provision of law and this Court can transfer the investigation as the action of the investigating officer is without lawful authority. He further submitted that this Court is competent to issue direction to the public authorities if they are not doing what they are required under the law to do. Elaborating his point he submitted that in the present case, as mentioned above, it was the duty of the investigating officer to collect all the evidence which is available whether it supports the prosecution or goes against it, but by ignoring this aspect of the case, he has not conducted the investigation fairly and impartially, hence his action is amenable to the constitutional jurisdiction of this Court and this Court is competent to direct that the investigation should be carried out lawfully by some independent agency. 9. I do not want to comment upon the quality and legality of the evidence so far collected by the local police, lest it may prejudice the case of either party, suffice it to say that this Court while exercising constitutional jurisdiction can give direction to any authority to do what they are required under the law to do. In view of the definition of 'investigation' referred to above, I find that the local police has not conducted the investigation properly and in accordance with law. The behaviour of the investigating officer has created a reasonable apprehension in the mind of the accused party that they will not get fair and onest investigation at his hand. The prayer is only for the transfer of the investigation which is not even opposed by the learned Law Officer. 10. In view of the above discussion, I find no substance in the preliminary objection taken by the learned counsel for the complainant, because when the action of an authority is illegal, then this Court can issue a direction that he should conduct things in a lawful manner and refrain from doing which is not permissible under the law. The writ petition is accordingly accepted and a direction is given to respondent No. 2, as prayed for, that he should withdraw the investigation of the instant case from respondent No. 1 and entrust the same to some other superior officer of his own choice, preferably of the rank of D.S.P., in order to ensure impartiality and fairness of the investigation which is the requirement of law. As intricate question of law, is involved, hence the parties are left to bear their own costs. (MBC) Investigation transferred.

PLJ 1990 Lahore 294 PLJ 1990 Lahore 294 Present: ishanul haq chaudhary, J MUHAMMAD ASHRAF-Petitioner versus MUHAMMAD HUSSAIN and 2 others-Respondents Writ Petition No. 6454 of 1988, accepted on 11-3-1990 (i) Constitution of Pakistan, 1973-- —-Art. 199~Tenant-Ejectment of-Prayer for-Dismissal of~Challenge to~ Perusal of judgments of courts below shows that it is a case of non-reading and misreading of evidence on record-Rent Controller wrongly and illegally excluded Ex. R. 8 to R. 10 from consideration which documents were produced by respondent No. 1 himself and he was bound by same-Judgment of appellate Court cannot be considered as a judgment in eye of law-He has disposed of matter in a very slip shod, careless and casual manner-He has simply given resume of facts and without discussing merits and demerits of evidence dismissed appeal-Petition allowed and case remanded for decision on merits. [Pp.297&298]E,F,G&H (ii) Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984)-- —Art. 100-Thirty years old documents-Whether sanctity is attached thereto- Question of—Receipt of payment of property tax and notice of demand pertain to year 1955-Exhibit A. 2 to A. 3 are proved by petitioner and R. 8 to R. 10 are proved by respondent No. 1 while sale deed is duly registered with Sub- Registrar—Contention of respondent No. 1 that he is owner in possession of property in dispute, is belied by copies of PTI produced by him as Annextures R. 8 to R. 10 wherein petitioner is clearly recorded as owner of property- Held: Documents being 30 years old, presumption is attached to them under Art.100 of Qanun-e-Shahadat Order, 1984. [pp.296&297|A&B (iii) Unban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13—Tenant—Ejectment of—Prayer for—Landlord and tenant—Relationship of-Denial of-Challenge to-Respondent No. 1 has failed to produce a single document to prove his ownership-Respondent No. 1 has stated that actual dispute is about house No. 4 and not house No. 10-According to copies of PTI, property is shown to be ownership of petitioner and self-occupied— Respondent No. 1 throughout reply has nowhere disputed number of property in any manner—Held: Respondent No. 1 having admitted number of house as 10, cannot now be allowed to depose that in fact it is house No. 4. |l'297|r&D Mr Waseem Ahmad Bokhari, Advocate for Petitioner. Mr. Muhammad Saleem Insaf, Adovcate for Respondent No. 1. Respondents 2 & 3: Exparte. Date of hearing: 11-3-1990. judgment The brief facts of the case are that the petitioner filed an ejectment petition against respondent No. 1 from the property, commonly known as SE. XXII 25-S- 10 situated in mauza Fateh Garh Town, Lahore. The ejectment was sought on the grounds of default and non-payment of rent with effect from March, 1983, bona fide personal use and damage. The petitioner claimed the rent at the rate of Rs. 200/- p.m. The respondent resisted this application. He pleaded that he is the owner of the house in dispute and, therefore, the relationship of landlord and tenant does not exist between the parties. The learned Rent Controller accordingly framed the preliminary issue as to the relationship. The petitioner in order to prove the issue examined Muhammad Nazir as AW-1, Faqir Muhammad as AW-2 and himself appeared as AW-3. The petitioner in addition to the oral evidence, produced sale-deed Ex. A-l, copies of the PT-I as Ex. A-2 to A-3. The respondent No.l in rebuttal examined Abdul Rashid RW-1, Muhammad Siddique RW-2 and himself appeared as RW-3 and produced his National Identity Card as Ex. R-1 and that of his wife as R-2, the extracts of voters list Ex. R-3 to R-4 in respect of himself and his wife, School leaving certificate Ex. R-6-to R-7, copies of PT-I Ex. R-8 to Ex. R-10 and Nikahnama of Mst. Robina Kausar as R-ll. The learned Rent Controller after hearing the arguments decided the issue against the petitioner. The result was that the ejectment petition was dismissed vide order dated 16-4-1988. The petitioner impugned these findings through an appeal before the appellate Authority under the provisions of Punjab Urban Rent Restriction Ordinance. The appeal was, however, dismissed by the learned Additional District Judge, Lahore, vide order date 30-10-1988. The petitioner has now challenged both the orders of respondents No. 2 and 3 through this constitutional petition, which was admitted to regular hearing and the notices were issued to the respondents. Respondent No. 1 has appeared and contested the petition while the other respondents were proceeded exparte. 2. The petitioner has moved an application under section 151 C.P.C. for permission to produce additional evidence. The petitioner, along-with the application has appended a receipt issued by the Lahore Municipal Corporation as to the payment of the property tax, demand notice for property tax, assessment of the Lahore Municipal Corporation in respect of the property in dispute and the sale-deed dated 9-12-1963. Respondent No. 1 inspite of opportunity has failed to submit the reply to this application. 3. The learned counsel for the petitioner in support of this petition has argued that the documents are authentic in nature. The same could not be produced inadvertently at the time of the hearing of the ejectment petition before the learned Rent Controller. On the other hand, learned counsel for respondent No. 1 has submitted that the petitioner closed his evidence himself and did not produce the documents either before the learned Rent Controller or before the first appellate Court. It is added that in any case, it is a dispute as to the title of the property. The same is the matter to be decided by the civil Court in a competently filed suit. 4. I have given my anxious considerations to the arguments of the parties and also gone through the record. The documents particularly, the receipt of payment of property tax and notice of demand pertain to the year 1955. The same are 30 years old documents and prima facie genuine. Moreover to the same effect are Ex. A-2 to A-3, proved by the petitioner and Ex.R-8 to Ex.R-10 proved by respondent No. 1 while the sale-deed dated 9-12-1963 is duly registered with the Sub-Registrar, Lahore. Learned counsel for the petitioner also tried to refer some other registered documents but the same have not been placed on record even with this application. 5. Respondent No. 1 pleaded that he is in possession of the property in dispute as an owner but his own contention is belied by the copies of.the PT-I produced by him as Annexures R-8 to R-10 wherein the petitioner is clearly recorded as owner of the property. On the other hand, the petitioner has examined Muhammad Nazir, AW-1, Faqir Muhammad AW-2 and himself appeared as AW-3. The statements of these witnesses are fully corroborated by the official record namely, Ex.A-2 to A-3 and Ex.R-8 to Ex.R-10. The version of the petitioner is further supported by the demand notice dated 24-8-1955 and the receipt dated 22-8-1955 (these documents have been produced along-with application for additional evidence). These documents are 30 years old and as per Article 100 of the Qanun-e-Shahadat Order 1984, a presumption is attached to the same. Anyhow, even if these documents are excluded from the consideration still there was sufficient evidence on record to answer the issue in favour of the petitioner. 6. Respondent No. 1 has failed to produce a single document as to his ownership. He, however, tried to prove his possession since 1975. In order to prove the same, he has examined Abdur Rahsid RW-1, Muhammad Siddique RW-2 and himself appeared as RW-3. RW-1 stated that the house in dispute is an ancestral property and the father of the petitioner surrendered his share after receiving Rs. 500/-. RW-2 also made a statement to the same effect. On the other hand, respondent No. 1 himself deposed that the house was sold for 1000/- out of which Rs. 500/- were paid. The respondent further stated that the actual dispute is about house No. 4 Street No. 25 and not House No. 10 Street No. 25. To prove his possession, respondent No. 1 produced Ex.R-1 and Ex.R-2, his National Identity Card and that of his wife respectively, extracts of voters list Ex.R-3 of himself and Ex.R-4 of his wife. In all the four douments, the address is written as House No. 4 St. No. 25 while the school leaving certificates Ex. R-6 to Ex.R-7 are irrelevant because the address is not given. Thereafter comes copies of Ex.PT-I. The document Ex.R-8 and R-9 pertain to the year 1981-82 according to which, the property is shown to be the ownership of Muhammad Ashraf and self occupied. While in Ex.R-10, in the column of ownership the name of the petitioner is mentioned while a part of the property has been shown in possession of respondent No. 1 This way this document completely demolishes both the versions f respondent No. 1 namely, that he is owner and that he is in possession of house No. 4 St. No. 25. Nikahnama of Mst Robina Kausar is also irrelevant because address of respondent No. 1 is given as House No. 4 St. No. 25. 7. This is not all. The petitioner pleaded in the ejectment petition that he is owner of house No. 10 St. No. 25 Patch Garh Town, Lahore and the respondent No.l is in possession as a tenant. These are the contents of para 1 of the petition. The respondent No.l in reply has denied the para and took up the plea that he has himself constructed the house in dispute and living there for many years alongwith his family. It was further asserted that the petitioner is owner of the house and in possession of the same in his own name and right. The respondent No.l throughout the reply nowhere has disputed, the property number or the property in dispute in any manner, whatsoever. Therefore, he cannot be allowed to plead outside the scope of the pleadings. The Respondent No. 1 having admitted the number of the house as 10 now cannot be allowed to depose that infact it is house No. 4. 8. The perusal of the judgments of the Courts below shows that it is a case of non-reading and misreading of the material evidence on record. The learned Rent Controller, wrongly and illegally excluded Ex. R-8 to Ex. R-10, from consideration. These were the documents produced by respondent No. 1 himself, therefore, he was bound by the same. Moreover, copies of PT-I may not be sufficient themselves to prove relationship but the same when read with the statements of the AWs clearly proved the case of the petitioner. This way, the documentary evidence was illegally excluded from consideration. This is not all. The learned Rent Controller further wrongly relied on Ex.R-1 to Ex.R-7 and Ex.R-11. In these documents, the residence of the petitioner is shown as House No.4. The courts below further failed to take into consideration that respondent No. 1 did not dispute the property number of the house, therefore, these documents were irrelevant. 9. The judgment rendered by the learned appellate Court cannot be considered as a judgment in the eye of law. He has disposed of the matter in a very slip shod, careless and casual manner. The operative portion of his judgment is as under:- "It is not disputed that the house in dispute is in possession of the present respondent though according to him, it bears No. 4 Lane No. 25, whereas according to the appellant/petitioner, it bears No. 10 Lane No. 25 but whatever be its actual number, which can vary according to the different departments, the fact remains that it is the disputed house, in occupation of the present respondents since long and the appellant/petitioner has not been able to substantiate, as if he is the owner/landlord of the house in dispute". 10. The learned appellate Authority did not bear it in mind that, it is a court of appeal both of law and facts. He has simply given resume of facts and thereafter without discussing the merits and demerits of the evidence proceeded to dismiss the appeal, therefore, his judgment is liable to be set aside on this short ground. 11. The upshot of this discussion is that this petition is allowed. The orders of the courts below dated 16-4-1988 and 30-10-1988 are set aside and the findings on the preliminary issue are reversed. The result is that the ejectment petition is remanded to the learned Rent Controller for its decision afresh on merits. However, there is no order as to costs. (MBC) Petition accepted.

Petition accepted. PLJ 1990 Lahore 298 Present: gul ZARIN KlANI, J Alhaj Rana AMJID HUSSAIN KHAN-Petilioner versus Haji MUHAMMAD HANIF and another-Respondents Civil Revision No 566 of 1990, dismissed on 19-3-1990 Limitation Act, 1908 (IX of 1908)- —Arts. 21 & 36—Damages—Suit for—Limitation for—Whether Art. 21 or Art. 36 is applicable—Question of—There is no doubt that suit for loss caused to car in result of accident, did not fall under Fatal Accidents Act-Article 21 did not apply to it—Held: Article 36 of Limitation Act was applicable but suit having been filed long after expiry of 2 years, it was clearly time-barred—Held further: Impugned judgments do not suffer from any error of jurisdiction or violation of any procedural law-Petition dismissed. [PP.29 ( )^0()]A.B&C AIR 1958 Madras 620, PLD 1960 Dacca 321 and AIR 1964 Allahabad 243 rel Ch. Muhammad Abdullah, Advocate for Petitioner. Date of hearing: 19-34990. order Facts set out in the plaint of the suit for recovery of damages in brief are:- Car No. 4794/LEM belonged to plaintiff Al-Haj Rana Amjad Hussain Khan. On 11-4-1985, it was driven by his driver Mohammad Sarfraz when it met with an accident with bus No. 1255/LEV owned by Haji Mohammad Hanif and driven by Mohammad Ashraf. In the accident, not only the driver of the car but its four inmates also lost their lives. Two children also suffered injuries. Car was totally smashed. It was stated that accident took place because of rash and negligent driving of the bus by its driver. Driver of the bus was tried for the offences but was acquitted of the charges under section 249-A of the Criminal Procedure Code by the Magistrate, on 8-10-1986. On 3-10-1987, plaintiff brought a suit for recovery of Rs. 24950/- as damages assessed for the loss caused to his car. To the suit, owner of the bus and its driver were added as defendants 1 and 2. They resisted the suit. Amongst other pleas, they submitted that the suit being filed under Fatal Accidents Act was barred by limitation. On 4-5-1988, the trial Court rejected the plaint in the suit for damages, under order VII, rule 11 Civil Procedure Code. It held that the suit was filed under the Fatal Accidents Act; Article 21 of the Limitation Act applied to it and the same having been brought after one year from the dale of accident was barred by limitation. Lower appellate Court also shared this view and dismissed the appeal on 21-10-1989. Against this decision, petition in revision has been filed. There is no doubt that the suit for damages for the loss caused to the car, in result of the accident did not fall under the Fatal Accidents Act. Therefore, Article 21 of the Limitation Act did not apply to it. To the contrary, cause is squarely covered by Article 36 of Schedule 1 of the Limitation Act. Article 36 reads:- "For compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for. Two years. When the malfeasance, misfeasance or nonfeasance takes place." Learned counsel for the petitioner also concedes that upon the averments in the plaint, Article 36 of the Limitation Act applied which gave two years to the plaintiff from the commission of the accident to sue for damages. Apart from the above concession, the view as to application of Article 36 is supported by the cases of Corporation of Madras, by its Commissioner v. B.D. Kothandapani Chetty- -A.I.R 1958 Madras 620, India General Navigation and Railway Co., Ltd. v. Akram and others--? .L.D 1960 Dacca 321, Dominion of India v. Central Aerating Gas Company Ambala Cantt -A.I.R. 1964 Allahabad 243. Suit was filed on 3-10-1987 that is to say long after expiry of two years but just within ti ee years from the date of accident. Therefore, from the statement of facts in the plaint, suit clearly appeared to be barred by limitation, and, if the Court ?ave effect to it, it committed no illegality. Rather, in terms of section 3 of the Limitation Act, where the bar of limitation was apparent on the face of proceedings, the Court was obliged to look into the question of its own accord. Upon the above view, impugned judgments do not suffer from any error of jurisdiction or violation of any procedural law existence whereof was essential for invocation of revisional jurisdiction. Civil revision discloses no serious merits in it. Consequently, it is dismissed in liminc. (MBC) Petition dismissed.

PLJ 1990 Lahore 303 PLJ 1990 Lahore 303 Present: MUNIR A. SHEIKH, J MANZOOR HUSSAIN-Petitioner versus MUHAMMAD ALI and another-Respondents Civil Revision No 1663 of 1989, dismissed on 13-2-1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —-S. 115 read with Urban Rent Restriction Ordinance, 1959, Sections 15&17- Ejectment of tenant-Order of-Objecsions against execution-Dismissal of- Whethcr revision petition is competent—Question of—Final order passed by Rent Controller is appealable under Section 15 of Ordinance-Under Section 17 of Ordinance, execution of ejectment order is to be carried out by Rent Controller himself—Held: Civil revision challenging validity of Rent Controller and appellate authority's orders passed under Ordinance, is not competent. [P.306JA (ii) Civil Procedure Code, 1908 (V of 1908)-- —S. 115 read with Displaced Persons (Compensation and Rehabilitation) Act, 1958, Section 30~Tenant—Ejectment of-Execution of—Objections to~ Dismissal of-Challenge to-Objcction that respondent No. 2 was insane and that he had become owner of shop through adverse possession, therefore, eiectment petition against him was not competent-Plea regarding insanity was not raised in written statement, so it is an after thought-Same is position regarding adverse possession-Under Section 30 of Act, if an evacuee property in possession of a person is transferred to another person former becomes statutory tenant-Held: Respondent No. 2 having once become statutory tenant, his possession could not be adverse to transferee-Held further: Petitioner wants re-opening, reconsideration and rehearing of ejectment petition which he lost upto Supreme ^^-^^^ Syed Iqbal Haider Zaidi, Advocate for Petitioners. Date of hearing: 13-2-1990. order This revision petition has arisen from execution proceedings. The facts giving rise to this revision petition shortly stated are that on 9.2.1981 respondent No.l filed an ejectment petition against respondent No.2 and the present petitioner who were impleaded as respondents 1 and 2 respectively, seeking their eviction from the shop in dispute which was stated to be the part of "portion A of property No S 49-R-38/A situated at Chamberlane Road, Lahore which was transferred to respondent No.l by the Settlement Department being Evacuee Property. In para 2 of the eiectment petition a copy of which has been placed on the record, respondent No.l stated that the said property transferred to him consisted ot a number of shops and residential units and the respondents in the ejectment petition were in possession of one of the shops which was marked with red pencil in the plan attached. The boundaries of the shop were also given in this paragraph. It was alleged that respondent No.l i.e. Foroze Dm now respondent No 2 became statutory tenant who executed a rent-deed in favour of petitioner in the eiectment petition and started paying rent to him. It was averred that respondent No.l rented out illegally the said shop to respondent No.2/present petitioner without the consent of the land-lord therefore, the respondents in the ejectment petition were liable to be ejected on account of default in the payment of rent by Feroze Din as also for sub-letting the shop to the present petitioner/respondent No.2. 2 Learned counsel for the petitioner admitted that Feroze Din who was alleged to be the tenant did not enter appearance and he was proceeded against ex-parte. The present petitioner contested the ejectment petition who filed wnttenreply The copy of the said written statement has not been placed on the file. Learned counsel for the petitioner however submitted that the petitioner claimed that he was not sub-tenant in the property and description of the property as given in para 2 of the ejectment petition was also stated to be not correct. The existence of relationship of landlord and tenant having been denied the Rent Controller framed the following issues:- 1. Whether the relationship of landlord and tenant exists between the petitioner and respondent No.l? OOP. 2 If issue No 1 is answered as such, whether the respondent No.l has subletted the premises to respondent No.2 without the consent of the petitioner? OOP. 3. Relief. 3. After recording evidence the Rent Controller by order dated 26.3.1988 accepted the ejectment petition. Order of eviction was passed. Feeling aggrieved the petitioner filed an appeal before the learned Addl. District Judge Lahore which was dismissed through order dated 5.10.1988. Learned counsel for petitioner stated that the petitioner challenged the said orders in this Court through writ petition No.5758 of 1988 which was also dismissed through judgment dated 7.11.1988. According to learned counsel for the petitioner Civil Petition for Special Leave to Appeal filed by the petitioner in the Supreme Court was also dismissed. 4. The respondent No.l/Landlord filed an application for execution of order of ejectment passed by Rent Controller dated 26.3.1988 which was maintained upto the Supreme Court. In these execution proceedings the petitioner on 3.7.1989 filed an objection petition under section 47 read with Order XXI Rule 22 and all other enabling provisions seeking dismissal of the execution application. The main ground of attack was that decree holder sought ejectment from shop in portion 'A' of Property No.S.49-R-38/A whereas no property of that description existed at site. It was also averred that decree holder was not able to prove that he was landlord of shop in portion 'A' of the said property as such the ejectment proceedings are liable to be dismissed on this ground also. It was also stated that according to P.T.O. Ext.P/4 produced in evidence in the ejectment petition "one half house nearly", of property No.S.49-R-38/A was transferred to the decree holder and there was no mention of any shop being part of this house in P.T.O. 5. The Rent Controller by order dated 2.9.1988 dismissed the said objection petition against which an appeal was filed by the petitioner which has also been dismissed by the learned Additional District Judge, Lahore through order dated 13.9.1989. Both these orders have been challenged in this revision petition. 6. I have heard learned counsel for the petitioner at length. The competency and maintainability of this revision petition is highly doubtful, for under section 17 of Punjab Rent Restriction Ordinance, 1959, Rent Controller has been empowered to execute the ejectment order. It is by virtue of this jurisdiction having been conferred on the Rent Controller regarding execution of orders passed by it that it has been held by superior Courts that the Rent Controller while executing the ejectment order would also be competent to entertain and dispose of any objection petition if moved raising objections against execution proceedings. Under section 15 of the said Ordinance against final order passed by Rent Controller under the Ordinance, a right of appeal has been provided. These two provisions previous to their amendments were substantially different. Under section 17 of the said Ordinance, before amendment, an order passed by Rent Controller under various specified sections of the Ordinance were to be executed by a Civil Court as if it was a decree passed by that Court. Under this section the Civil Court while executing order of ejectment was exercising jurisdiction as Civil Court and the proceedings as such regarding appeal or revision were regulated and governed by the C.P.C. Under section 15 before amendment a right of appeal was provided only against orders passed by Rent Controller under sections 4, 10, 12 and 13 of the Ordinance. 7. The effect of amendment made in sections 15 and 17 of the Ordinance as noted above, is that a final order passed by Rent Controller under any of the provisions of the Ordinance has been made appealable. Since under section 17 the execution of the ejectment order is to be carried out by the Rent Controller himself therefore any final order passed in those proceedings whether on objection petition or in the execution proceedings regarding execution of order, the appeal would be competent under section 15 of the Ordinance as an order passed by the Rent Controller. That being so, in my view the revision petition according to well settled law, for challenging the validity of the orders passed by Rent Controller and appellate Authority under the Ordinance is not competent. 8. Learned counsel for the petitioner faced with this difficulty, tried to over­ come it by arguing that this revision petition be treated as writ petition under Article 199 of the Constitution. 9. I have examined the case on merits. The objections raised in petition primarily related to the description of the property. As has been observed above the respondent No.l in the ejectment petition clearly stated that portion 'A' of property No.S-49-R-38/A which had been transferred to him had shops also out of which one shop was in possession of Feroze Din as his tenant which was sub-let by him to the present petitioner. The said shop was shown in red colour in the site plan attached with the ejectment petition as stated in para 2 thereof in which boundaries of the shop in dispute were also clearly given. The petitioner denied existence of relationship of landlord and tenant on which an issue was framed. He produced evidence before the Rent Controller who after appraising the evidence held that relationship of landlord and tenant existed between the petitioner in the ejectment petition and Feroze Din qua the shop in dispute and that the same was sub-let to the present petitioner. The order passed by Rent Controller was upheld upto the Supreme Court in the further proceedings such as appeal, writ petition and- Civil Petition for Special Leave to Appeal filed by the petitioner before the learned Additional District Judge, this Court and the Supreme Court respectively. The legal consequence of decision of the issue of existence of landlord and tenant was that the shop in dispute was held to be the part of portion 'A' of property No.S-49-R-38/A which was stated to have been transferred to the petitioner in the ejectment petition. The petitioner having lost this legal battle upto the highest forum could not turn around and raise the same objection about the description of the property or that the shop in dispute was not part of that portion of the said property which was transferred to respondent No.l/landlord. In the P.T.O or other transfer documents each room of the property transferred is not ordinarily mentioned. The decree holder in the P.T.O was shown to have been transferred "one half nearly of house" property No. S-49-R-38/A which according to the decree holder also included shops which fact he established in the ejectment petition in which the issue of relationship of landlord and tenant was decided in his favour. The petitioner who led evidence in the main ejectment petition and failed to establish his plea therefore was debarred from raising the same plea in objection petition objecting to the execution of the ejectment order. 10. The petitioner also raised an objection that Feroze Din was insane therefore ejectment petition against him was not maintainable, without appointment of his legal guardian. It was also stated in the objection petition that Feroze Din became owner of the shop in dispute by way of adverse possession. These objections have been rightly rejected-No plea regarding insanity of Feroze Din was admittedly raised in the written-statement filed by the petitioner in the proceedings in the ejectment petition. This plea appears to be an after-thought. The same is the position with regard to the ground that Feroze Din had become owner of the shop by way of adverse possession. Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 provided that occupant of an Evacuee Property transferred to any person under the said law would become the tenant under the transferee on the same terras and conditions as to payment of rent on which such occupant was holding the premises under the Rehabilitation Department. In this view of the matter, the occupant of the shop i.e. Feroze Din having once become statutory tenant his possession, could not be adverse to the transferee. C 11. In my view all the grounds raised in the objection petition are such which relate to the merits of the main case in the ejectment petition in which order of eviction was passed. The objector being one of the respondents in the ejectment petition and having contested the same should have raised all the grounds of defence which might and ought to have been raised to seek dismissal of ejectment petition. Through this objection petition as a matter of fact he wanted to achieve the object of re-opening the entire case and re-consideration re-hearing of the ejectment petition, which he lost as noticed above upto Supreme Court. 12. For the foregoing reasons, the revision petition is devoid of any substance ID and it is hereby dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 307 PLJ 1990 Lahore 307 Present: ihsanul haq CHAUD1IARY, J MUNICIPAL COMMITTEE, MANDI BAHAUDDIN-Petitioner versus THE COMMISSIONER, RAWALPINDI DIVISION, and another-Respondents Writ Petition No. 1501 of 1967, dismissed on 10-4-1990 (i) Municipal Committee Octroi Rules, 1964-- —Rr. 35, 36, 51, 52 & 53-Goods of contractor-Octroi duty on-Whether chargeable-Question of-Contention that respondent No. 2 (contractor) was under legal obligation to obtain transit permit and that in absence of any provision as to transit permit in Chapter VII, provisions of Chapter V would automatically become applicable-Both Chapters provide a comprehensive machinery for assessment of goods and there is no provision in Chapter VII making any provision of Chapter V applicable to goods dealt with under this Chapter—Held: Argument is without any merit- -Held further: This being fiscal law, is to be interpretted favourably to subject-Petition dismissed. [P.312JD&E AIR 1958 SC 341 and 1974 SCMR 237 rel. (ii) Municipal Committee Octroi Rules, 1964- —-Rr. 35, 36, 51, 52 & 53-Goods of contractor-Whether liable to be assessed under Rule 35 & 36 or rules 51, 52 & 53--Question of--It is clear from bare reading of two sets of rules that rules contained in Chapter V (Rr 35&36) are not relevant for Rail borne goods-Goods assessable under chapter V are presented at Octroi post for assessment while in case of Rail borne goods, Railway Receipt and invoice are presented at Octroi Post before taking delivery of goods-Neither goods of respondent No. 2 were imported into Town nor it passed any of its Octroi posts or Barrier-Admitted position is that all goods received by respondent No. 2 were intended for consumption at new Rasul Barrage and Rasul-Qadirabad Link canal which are admittedly located outside limits of petitioner-Held: Respondent No. 2 was not under any obligation to pay any Octroi charges or even make a declaration. • lPp.310,311&312]A,B&C Mr, Abld Hassan Minto, Advocate for Petitioner. Syed Iftikhar Ahmad, Advocate for Respondent No. 2. Respondent No. 1; Exparte, Date of hearing: 10-4-1990. JLDOMHNT The petitioner through this constitutional petition has sought a declaration that the order of respondent No.l dated 18.7.1966 is illegal. The relevant facts are that the respondent No.2 was engaged as a contractor for an execution for construction of Rasul-Qadirabad Link Canal and a new Barrage at Rasul. The Contractor had to import material both from abroad and within the country. The same was taken to site through Rail. The petitioner was charging 12 Paisas per receipt for the goods in transit from the respondent No.2. This arrangement went un-interrupted up to August, 1965. Thereafter the respondent No.2 stopped this payment of transit fees. The trouble started when the petitioner served the said respondent with notice dated 18.5.1966 calling upon it to make a payment of Rs.3,19,315.59 as Octroi charges for the goods imported by them with 10 times penalty. The respondent No.2 disputed the legality of the claim. It was notified, in their reply to the aforementioned notice, that they are not liable to pay the amount as neither material entered the Town nor did it pass through any Octroi Barrier. It was clarified that earlier the material was received by it and un-loaded at Railway Station Mandi-Baha-uddin from there it was again loaded and despatched to the sites but this arrangement was given up and instead the Railway Wagons as it are, carried to the sites, therefore, it was not liable to pay any Octroi or transit charges. The petitioner turned down the plea of the respondent No.2 and insisted for payment of Export duty under Rule 35 of the Municipal Committee Octroi Rules of 1964 as is clear from reply of the petitioner dated 17.5.1966. The Contractor finding no way out proceeded to make a representation to respondent No.l, who after hearing the parties accepted the representation vide order dated 18.7.1966. This is the order subject matter of this constitutional petition. 2. The petition was admited to regular hearing and notices were issued to respondents. The respondent No.2 alone has contested the petition while the respondent No.l was proceeded ex-parte. 3. The learned counsel for the petitioner in support of the petition has argued that respondent No.2 was under legal obligations to make a declaration to the petitioner in view of the Provisions of rule 35 of the Rules 1964. Since the respondent No.2 failed to make the necessary declaration, therefore, it will be deemed that the goods were intended for consumption, use or sale within the Octroi limits in view of the clear text of Rule 36 of the Rules of 1964. It is submitted that the word deemed was interpreted by Hon'ble Supreme Court in the case of Mahreen Zaib-itn-Nasa vs. Land Commissioner, Multan and others (P.L.D 1975 S.C. 397). It means that by legal fiction a particular fact is assumed to exist. 4. The learned counsel for the petitioner further submitted that he conveyed the order of this court passed on 9.3.1985 to the petitioner and also framed the following questions for reply: - (/) Whether the goods of the Company used to be un-loaded at any point within the Municipal Limit while they were in transit? If the answer is in affirmative, is there any evidence of this fact? (//) Whether the Rasul siding of the Railway Station as mentioned in the certificate R-l is within the Municipal Limits? If yes, please furnish a certificate to that effect. (///) Whether there was any arrangement at the relevant time whereby Municipal Committees Octroi Staff/checking staff could intercept or check such goods while in transit through Railways either on the Railway Station or at any other point? Was the company supposed to make a declaration as provided by Octroi Rules? (h>) Has there been any practice of charging for goods in transit through Railways? 5. The petitioner has replied to first two questions in the negative while 3 rd question was answered in the affirmative and in reply of 4th question it was submitted that transit fee at the rate of 00.12 was chargeable. The learned counsel has placed on record his letter dated 21.3.1985 with the reply received from the petitioner dated 25.3.1985. 6. On the other hand the learned counsel for the respondent has argued that the rules 35 and 36 contained in chapter V of the rules 1964 are not attracted in the present case and the case of his client was covered by rules 51,52 and 53 in Chapter VII of the Rules of 1964. The learned counsel has submitted that the Chapter V dealt with presentation of goods at Octroi Post while Chapter VII dealt with assessment of Octroi on Rail Borne Goods. It is submitted that there is no provision for the goods in transit in this chapter. Therefore, his client was neither liable to pay Octroi charges nor transit fee. The learned counsel further submitted that respondent No.l has wrongly referred to chapter IX and the same is not relevant.' It is added that the word deems only creates a presumption which is rebuttable. 7. The learned counsel for the Contractor has raised a preliminary objection as to the competency of the petition. The objection is that the petitioner has alternative remedy of representation to the Government u/s 111 of the Municipal Administration Ordinance, 1960, therefore, the present petition is liable to be dismissed. In this behalf the learned counsel has placed reliance on A.I.R 1958 S.C. 341. 8. The learned counsel for the petitioner, while making a reply and summing up the arguments, submitted that the whole Machinery has been provided in the Rules of 1964 and there is no remedy except of an appeal, which is provided under rule 216, against the order of a committee to the Controlling Authority/Commissioner. It is therefore, clear hat the petitioner has no remedy nder the rules and it rightly invoked the jurisdiction of this court. On merits it was added that since there is no provision for goods in transit in chapter VII, therefore, the rule 35 as incorporated in chapter V shall hold field. 9. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record and precedents relied by them. The first question for determination is whether the goods of contractor were liable to be assessed under chapter V or chapter VII? Before proceeding any further it is relevant to refer to Chapter V rules 35 and 36. The same read as undcr:- "CHAPTER V. Presentation of Goods at Octroi Posts. 33. Every person importing goods liable to Octroi shall present such goods at the Octroi Post specified by the Municipal Committee for intercepting import traffic from the route by which such goods are imported. 35. When goods liable to Octroi are at an Octroi Post the person-in-charge of the goods shall declare whether the goods are intended for- (a) consumption, use or sale within the Octroi limits; (b) Consumption, use or sale within the Octroi limits for a purpose for which an exemption is to be claimed; (c) Consumption use or sale within the Octroi limits by a party with which Octroi has been compounded, or from which Octroi is to be charged through a bill; (d) Consumption, use or sale within the Octroi limits when the goods are imported under a re-import pass; (c) immediately export; (/) temporary retention within the Octroi limits and ultimate export. 36. If no declaration is made under rule 35, it shall be deemed that the goods are intended for consumption, use or sale within the Octroi limites." While the Chapter VII, rules 50,51,52,53 and 55 read as under: "CHAPTER VII. Assessment of Octroi on Rail Borne Goods. 50. In order to intercept the traffic of goods imported by rail and liable to Octroi there shall be one or more Octroi Posts to be known as the Railway Octroi Posts. 51. When any consignment of goods is received by rail and such goods are intended for consumption, use or sale within the Octroi limits, the importer shall, before taking delivery of such goods, take the Railway receipt along with the Invoice to the Railway Octroi Post. If the invoice or the Railway receipt are not available, the importer may furnish a written declaration showing the details of the goods to be imported. 52. (1) When the Railway receipt and the invoice or a written declaration, as the case may be, have been presented under rule 51, the Octroi Clerk shall assess the Octroi payable, and on receipt of the assessed amount, issue an Octroi Receipt. (2) The Railway receipt and the invoice shall be returned to the importer after the Railway receipt has been stamped with the Municipal stamp to be provided for the purpose, and the necessary entries have been made in the Register of Rail Borne Goods to be maintained under rule 58.' (3) If any declaration is presented under rule 51 it shall be filed. 53. When the delivery of the goods has been taken, the goods along with the Octroi Receipt issued under rule 52 shall be presented at the Railway Octroi Post. 54. If the Octroi Clerk is satisfied that the goods presented agree with the details entered in the Octroi receipt, he shall make the necessary entries in the Register of Rail Borne Goods, stamp the Octroi receipt, return it to the importer, and allow the goods to be imported. 55. If the goods are presented in instalments, the Octroi Clerk shall record, on the reverse of the Octroi Receipt and in the Register of Rail Borne Goods, the etails of the goods presented in each instalment long with the time and date of uch presentation, return the Octroi Receipt to the importer and allow the goods to be imported. When the final instalment is presented and the goods actually presented agree with the details entered in the Octroi Receipt action shall be taken as under rule 54." 10. It is clear from the bare reading of the two sets of the rules that rules contained in Chapter V are not relevant for Rail Borne Goods. The goods assessable under Chapter V are presented at the Octroi Post for assessment and then a declaration is made by the Incharge of the goods while in case of Rail Borne Goods the Importer before taking delivery of such goods takes railway receipt along with invoice to the Railway Octroi Post and in the absence of invoice or railway receipt Importer furnishes a written declaration showing the details of the goods imported. Then the goods are assessed, duty paid and invoice and railway receipt returned to the Importer after stamping with the Municipal Stamp. The Importer thereafter takes these documents to the Railway for delivery and after obtaining delivery presents the goods at the Railway Octroi Post for Aerification. The legislature has clearly provided two sets of rule for clearance. 11. Now coming to the case in hand, after August 1965 the arrangement of the contractor was that the goods were booked for Mandi Baha-uddin and after accepting the delivery of the wagons, the same were taken as it is to the sites. The only difference was that loco motive Engines used by the Importer were not of Railway but their own. This made the whole difference. Neither the goods were imported into the Town nor it passed any of its Octroi Post or Barrier. The legislature in its own wisdom has made no provision for the goods in transit in Chapter VII. The reason becomes apparent from reading of rule 51 where it is provided that when consignment of goods is received by Rail and the same are intended for consumption, use or sale within the Octroi limits then the importer shall appear before the Octroi Staff along with Railway receipt and Invoice. The admitted position of this case is that all the goods received by respondent No.2 were intended for consumption at new Rasul Barrage any Rasul-Qadirabad Link Canal. The same are admittedly located outside the limits of the petitioner. Therefore, the contractor was not under any legal obligations to pay any Octroi charges or even make a declaration. 12. The arguments of the learned counsel for the petitioner that the 'contractor was under legal obligations to obtain the transit permit in respect of all the goods because in the absence of any provision as to the transit permit in Chapter VII, the provision of Chapter V automatically become applicable. The argument is without any merit because both the chapters provided a comprehensive machinery for assessment of the goods and there is no provision of hapter VII making any provision of chapter V applicable to the goods dealt under this chapter. The petitioner in reply to the query No.4 has said only yes. It has failed to quote any precedent in this behalf. The rules are clear on the point. This being fiscal law the same is to be interpreted strictly and in case of possibility of 2 interpretations then the interpretation favourable to the subject is to be adopted. In this behalf the learned counsel has referred to the case A.I.R 195$ S.C. 341 (Tlte Central India Spinning and Weaving and Manufacturing Co., Ltd; Tlie Empress Mills, Nagpur, Appellants vs. Tlie Municipal Committee, Wardha,). In this behalf reference can also be made to the judgment of Honl'ble Supreme Court in case of Government of Pakistan vs. Karachi Gas Company Ltd; (1974 S.C.M.R 237). 12. In this view of the matter the interpretation in favour of the subject and exempting it from taxation is to be adopted. The proposition when approached from this angle, there is no merit in this petition. 13. In view of the finding recorded above, it is no stage to deal with the preliminary objection as to the competency of the representation and more so far the reason that this petition is pending since 1967. 14. The result is that this petition is dismissed on merits. However, there is no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 313 PLJ 1990 Lahore 313 Present: IHSANUL HAQ ClIAUDHARY, J GOJRA SAMUNDRI SUGAR MILLS LTD--Petitioner versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others-­ Respondent Writ Petition No. 7116 of 1989, dismissed on 19-3-1990 (i) Industrial Commercial Employment (Standing Orders) Ordinance, 1968 (WPOrd. VI of 1968)-- —O. 15(3-e)--Unauthorised absence-Conversion into misconduct of~Prerequisite of-Contention that to convert unauthorised absence into misconduct, period of absence must be more than 10 days and that case of respondent No. 3 did not fall under misconduct absence being for 10 days only-It is clear that petitioner proceeded on wrong assumption-There was no valid basis to initiate disciplinary proceedings—Held: Dismissal order was unjustified and illegal-Petition dismissed. [P.316]D&E (ii) Industrial Relations ordinance, 1969 (XXIII of 1969)-- —S. 8-A-Trade union-Member of-Dismissal of-Prerequisites for-Whether order of dismissal of respondent No. 3 was not violative of Section 8-A--Question of-Contention that it was not violative because petitioner was not aware of formation of union by respondent No. 3 and others-It is clear from text of Section 8-A that permission of Registrar is a pre-requisite for transfer, discharge dismissal or otherwise punishing office-bearer of trade union or workman during pendency of application for registration of trade union with Registrar-Held: Petitioner did not admittedly comply with this legal requirement. [P.316JB&C (iii) Workman-- —Field Assistant—Whether covered by definition of "workman"—Question of-­Contention that respondent No. 3 was not a "workman"T?ecause neither he was doing any manual nor clerical work-Word "survey" presupposes visit and recording of observations-Both these functions have to be performed at one and same time, therefore, completion of sheets was integral part of duty of respondent No. 3—There cannot be any survey without recording its result-­ Held: Argument is superficial and without any merit. [Pp.315&316]A Mr. Attaur Rehman Sheikh, Advocate for Petitioner. Mr. Munawar Ahmad J avoid, Advocate for Respondent No. 3. Respondent Nos. 1&2: Exparte Date of hearing: 19-3-1990. judgment The petitioner through this Constitutional petition has prayed for declaration that the orders dated 10.8.89 and 31.10.1989 passed by respondents No.2 and 1 respectively are without jurisdiction, unlawful and of no Segal effect. 2. The facts giving rise to this petition are that respondent No.3 was employed with the petitioner as Field Assistant. The petitioner initiated disciplinary proceedings against the said respondent for unauthorised absence from duty from 15.6.1986 to 24.6.1986. The employe was served with a show cause notice and ultimately dismissed vide order dated 28.7.1986. The respondent No.3 submitted a grievance petition before respondent No.2 who accepted the same vide c-rder dated 14.5.1988. The petitioner filed an appeal before the respondent No.l. The appeal was accepted vide order dated 13.7.88 and case was remanded to respondent No.2 for fresh decision after allowing both the parties to produce evidence on the point of 'workman'. The parties produced evidence whatsoever they wanted to produce. The respondent No.2 once again accepted the petition of the employee. The order is dated 10.8.1989, which was impugned through an appeal before respondent No.l, who dismissed the same vide order dated 31.10.1989. The petitioner has now impugned these two orders through the present petition. 3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No.3 has alone appeared and contested the petition while other respondents were proceeded ex-pane. 4. The learned counsel for the petitioner in support of the petition has argued that the respondent-employee was not covered by definition of 'workman'. He was neither doing any manual work nor clerical duties. In this behalf reliance is placed on the cases of Ganga R.Madhani Vs. Standard Bank Ltd. and others (1985 S.C.M.R. 1511) Chairman Brooke Bond (Pak) Ltd vs. General Secretary, Union Karkunane Brooke Bond (Pak) Ltd. Rawalpindi (P.L.D. 1969 Lahore 717). 5. It is added that incidental and ancillary duties, which one has to perform in relation to his basic duty will not make him a workman. The regard should also have to be to the basic duly of the employee. In this behalf reference is made to I.C.I. Pakistan Manufacturers Ltd. Vs. Muhammad Iftikhar Ahmad (1988 P.L.C. 1133) and Mubarak AH Bashir Vs. Branch Manager, Lipton (Pak) Ltd, Sargodha (1989 P.L.C. 916). The learned counsel submitted that the courts below wrongly referred to and relied on Ex: PI 3 because the same came into existence after the dismissal of respondent No.3. The other argument of the learned counsel for the petitioner is that respondent No.l and 2 wrongly held that the dismissal order of respondent No.3 was violative of section 8-A of I.R.O. It is submitted that the petitioner was not at all aware of the formation of Union and of the fact that the said employee was its General Secretary. It is further submitted that this point was not agitated by respondent No.3, before lower Court. 6. On the other hand, learned counsel for respondent No.3 has argued that the petitioner has treated his client as 'workman'. It cannot turn down and deny that stauts to him. The argument in nut shell is that the petitioner initiated disciplinary proceedings against respondent No.3 under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and dismissed him treating him as a 'workman', therefore it is now estopped by its own conduct to deny that status to the said respondent. In this behalf learned counsel had referred to the case of Relunat AH Vs. Security Papers Ltd, and another (P.L.D 1982 Karachi 913). The learned counsel further submitted that the preliminary objection raised by the petitioner was vague and infact the objection was that alter dismissal the respondent No.3 seized to be a workman and cannot maintain grievance petition. It is added that duties of his client clearly made him workman because survey includes completing of survey sheets. It is added that in any case, the respondent No.3 Is not excluded from the definition of workman. In this behalf reliance is placed on the case of Shahzad KJian Vs. Sind Labour Court No.4 Karachi and 2 others (1977 S.C.M.R 103), and Organization of Karachi Port Trust Workers (A Registered Trade Union Vs. Karachi Port Trust Karachi and 2 others (1988 S.C.M.R 922). The arguments on this point are concluded with the submission that infact his client was appointed as Lower Division Clerk and in that capacity he was transferred to perform duty of Field Assistant, therefore, he did not lose his status as a Clerk and as such he was fully covered by the definition of workman. On the other point it is submitted that respondent No.3 and others submitted papers for registration on 19.7.1986 and the same day the petitioner was telegraphically informed. The telegram is Ex:P9 on the file, therefore, the order of dismissal passed on 28-7-1936 is violative of provisions of section 8-A of the I.R.O. The learned counsel for contesting respondent has further raised two preliminary objections as to the competency of this writ petition. The first objection is that the petition raises disputed question of facts, which have been concluded with concurrent findings of Courts of competent jurisdiction. Secondly, that the conduct of the petitioner is not fair. It has failed to reinstate the respondent as required under law. It is added that even if the allegations of the petitioner are accepted on their face value still the respondent No.3 was not guilty of misconduct because respondent No.3 remained absent only for 10 days while unauthorised absence warranting disciplinary action has to be for more than 10 days. The learned counsel in this behalf has referred to the provisions of Order 15 (3-E) of the Standing Orders and to the case of General Manager, Hotel Intercontinental Rawalpindi v. Muhammad Hanifand others (1985 P.L.C. 257). 7. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record and precedents referred to by them. Now I proceed to deal with the arguments of the learned counsel of the petitioner with counter reference to the argument of the learned counsel for the respondent. The first argument was that respondent No. 3 was not a 'workman' because neither he was doing any manual work nor clerical. It was added that the completion of survey sheets is just consequential and incidental to the survey work, therefore, it was not integral part of his duty. The argument is superficial and without any merit. The word survey prseupposes visit and recording of observations. Both these functions have to be performed at one and the same time, therefore, the completion of the sheets was integral part of the duty of respondent No. 3. There cannot be any survey without recording its result. It will be just site seeing and definitely he was not employed for this purpose. The cases referred to by the learned counsel for the petitioner on this point are not relevant because there is no symbolance of the duty of the employees in these cases to the 'surveyor'. There comes roster of duties of Field Asstt. Ex:P13. It is true that Ex:P13 is not relevant as it was issued after the termination of service of respondent No. 3 but it clearly indicates the nature of the duties a Field Asstt. has to perform. It is not the case of the petitioner that this system was introduced for the first time. Therefore, Ex: P13 was rightly taken into consideration. 8. The other submission was that the dismissal order was not violative of Section 8-A of the Industrial Relations Ordinance because the petitioner was not aware of the formation of the union by the respondent No. 3 and others. On the other hand, learned counsel for employee has referred to telegram Ex: P9. The same is dated 19-7-1986 while the order of dismissal of the petitioner was passed on 28-7-1986. Before proceeding any further, it is relevant to refer to section 8-A. The same reads as under: - 8-A "Transfer, etc. of officer of trade union during pendency of application for registration. Save with the prior permission of the Registrar, no officer of a trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of the officers to the employer in writing." It is clear from the text of the section that the permission of Registrar is a pre-requisite for transfer, discharge, dismissal, or otherwise punishing officer of the trade union or workman during the pendency of application for registration of trade union with the Registrar. The petitioner admittedly did not comply with this legal requirement. 9. The learned counsel for respondent No. 3 submitted that even if the allegations against his client are accepted as correct, still the same were not covered by the mischief of 'Misconduct'. The argument in nut shell is that to convert unauthorised absence into mis-conduct the period of absence must be more than 10 days. The learned counsel has referred to definition of 'misconduct' and relied on the case of General Manager, Hotel Intercontinental, Rawalpindi. The misconduct has been defined in order 15 (3-e) which reads as under:- "(3) The following acts and omissions shall be treated as misconduct:- (e) habitual absence without leave or absence without leave for more than 10 days It is, therefore, clear that the petitioner proceeded on wrong assumption. There was in fact no valid basis to initiate disciplinary proceedings. Therefore, the dismissal order was unjustified and illegal. The submission of the learned counsel for respondent No.3 was that if this writ petition is allowed then it will amount to perpetuating an illegal order. The submission is not without merit. This ground is sufficient to refuse any relief to the petitioner. The result is that there is no merit in this petition. The same is dismissed with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 317 PLJ 1990 Lahore 317 Present: GUL ZARIN KIANI, J Haji IBRAR HUSSAIN and another-Petitioners versus ABDUR RASHID and 9 others-Respondents Civil Revision No. 454 of 1990, accepted on 25.3.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —S.115--Civil Revision-Limitation for~Whether Civil Revision is hit by laches/limitation-Question of-Petitions in revision are not governed by any law of limitation though practice over years has developed to entertain same only if they are filed within 90 days-Held: From date of service and appearance in court on 23.11.1989 filing of revision petition in High Court on 20.2.1990 cannot be legitimately held to be barred by laches or limitation-Held further: Lower appellate Judge having not correctly interpreted Order XLIV of CPC, case is remanded to him to decide application for leave to appeal in fonna pauperis afresh in accordance with law. [P. 322JB&C (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.XLIV Rr.l&2-Leave to appeal as a pauper-Whether notice to respondents was necessary-Question of-From examination of decided cases, majority of High Courts are agreed that for determining pauperism of applicant to file appeal, a notice to respondents is essential and their hearing if they appear, is legally must—Held: It is so because an order passed behind back of a party should not operate to prejudice of that party, f Pp. 321&322JA AIR 1934 Allahabad 424, AIR 1939 Rangoon 25 and AIR (35) 1948 Allahabad 323 rcl. Ch Muhammad Saeed, Advocate for Petitioners. Sh. KJralilurRehman, Advocate for Respondent. Date of hearing: 25.3.1989. judgment This is an application for revision of an order of learned Additional District Judge dated 30.4.1989 permitting the appellants before him to appeal in fonna pauperis. Its facts are:-Two residential houses situated in Mohallah Sathan, inside Bhati Gate Lahore were purchased by applicants Haji Ibrar Hussain and Mst. Jamila Begum on 30.11.1986 for Rs.1,20,000/- vide registered sale deed of even date. On 13.10.1987, Abdur Rashid and his two brothers, respondents in the civil revision sued to pre-empt the above sale on the grounds of being owners of contiguous property. Vendees resisted the pre-emption suit by controverting the material averments in the plaint. On 4.6.1988, the trial Court settled necessary issues. However, before evidence could be taken, vendees submitted an application for rejection of the plaint under order VII, rule 11, Civil Procedure Code stating that 'talabs' to enforce pre-emption were not made. By order dated 1.2.1989, the trial Court gave effect to the objection and rejected the plaint. On 6.3.1989, plaintiffs sought to appeal as an indigent persons, and, alongwith the memorandum of appeal, presented an application for permission to leave to appeal as pauperappellants. Memorandum of appeal alongwith the application was marked to the file of learned Additional District Judge, who on 7.3.1989, requisitioned the records from the trial Court and fixed the appeal for preliminary hearing on 14.3.1989. On this date, record was not received and the appeal was adjourned to 16.3.1989 for receiving the records and also for recording the statement of the appellants. On 16.3.1989, the Judge below recorded statement of Mohammad Shafique co-appellant who stated that he was an indigent person and was unable to pay the Court fee exigible on the appeal. After taking down the statement of Mohammad Shafique, the appeal was adjourned, on some dates, for hearing preliminary arguments. Eventually, by a short order passed on 30.4.1989, appellants were permitted to appeal in forma pauperis. This order reads:- "The present appeal is directed against the judgment and decree dated 1.2.89, whereby learned Civil Judge, Lahore, has rejected the plaint. The appellant has filed an application under Order 44 Rule 1 CPC alongwith the appeal for permission to sue in forma pauperis. In this connection the statement of the appellant has been recorded. He has brought an affidavit. He has stated in his statement that he is a poor man; that he does not own any property moveable or immovable and has got no assets whatsoever. His such statement has been considered and is allowed to file appeal in forma pauperis." Later, the appeal was dismissed for default in appearance on 24.5.1989, but on an application, it was again restored to file and fixed for hearing preliminary arguments on 10.6.1989. Preliminary arguments were heard on 29.10.1989 and relying upon the decision of the Supreme Court reported as P.L.D 1989 S.C. 771, appeal was admitted to hearing and notices were issued to the respondents for their appearance, on 23.11.1989, After securing the appearance of respondents 1 and 2 in the appeal and proceeding ex-parte against other respondents, the appeal was postponed to 26.3.1990 for hearing arguments on merits. Meanwhile, vendees-defendants came up in revision to this Court against the order of learned Judge below granting leave to appeal in forma pauperis. It was admitted on 20.2.1990, and further proceedings in the appeal were stayed. Ch. Muhammad Saeed Advocate appears for the petitioners. Respondents 1 to 3 are represented by Sh. Khalil-ur-Rehman Advocate. On behalf of the petitioners, it is contended that the learned Judge below did not correctly understand ad appreciate the provisions of order XLIV, rule 1, Civil Procedure Code, and, consequently, failed to abide faithfully by the mandatory procedural requirements of Order XLIV for true determination of the appellants' pauperism. In support, learned counsel referred to Mst. Mahmuda Khatun v. Muhammad Habibur Rahman and others-P.L.D 1965 Dacca 358, Saeed Akhtar Siddiqui v. •-"" Arbab Hussain and another--?. L.D. 1966 (W.P.) Peshawar 130, Muqaddar Khan v. Bunnah Shell Oil Storage and Distributing Co. Ltd., Karachi and another~P.L.D. 1968 Karachi 523, Dan v. Said and 2 others-P.L.D. 1975 Lahore 870 and also a decision reported as 57 Cal. W.N. 367. Upon the language of order XLIV Civil Procedure Code, and, the decisions relied upon, it was vehemently contended that without notice to and hearing of the respondents in the civil appeal, question of pauperism could not have been correctly resolved in a summary ex-parte enquiry by the Judge below. To counter the above arguments, Sh. Khalil-ur-Rehman, learned counsel for the contesting respondents submitted that order XLIV, Civil Procedure Code, did not contemplate a prior notice to the respondents in appeal for deciding about the competence and maintainability of the appeal as also the question relating to decision on pauperism. It was further submitted that revision was barred by limitation. In this behalf, learned counsel referred to the cases of Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another- P.L.D. 1975 S.C. 678 and Aziz Din and another v. Qadir Bakhsh and 2 others- P.L.D. 1987 Lahore 119. Seen from the above, civil revision raises two points of importance. First point is whether for deciding of the appellants' right to appeal as indigent persons without payment of required Court fee on the appeal, respondents could claim a notice and hearing by the Court, and, second, whether the revision petition was barred by laches or limitation as asserted on behalf of respondents. Presently, 1 intend to postpone the consideration on the question of laches/limitation till I have attended to the requirements of law enacted in order XLIV, Civil Procedure Code for deciding of an application for leave to appeal as a pauper. In doing so, it shall also be my endeavour to discover whether notice to the respondents in appeal was required by law, and, furthermore, whether it was necessary to hear them before determining the question of leave to appeal as pauper. Since the decision of the point turns on the construction of order XLIV, Civil Procedure Code, it shall be profitable to make a reference to it. It is a short Order comprising of two Rules only. Rule 1 of Order XLIV reads as follows:-- "1. Who may appeal as pauper.--Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable: Procedure on application for admission of appeal—Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust." Rule 2 provides:-- "2. Inquiry into pauperism.~The inquiry into the pauperism of the applicant may be made either by the Appellate Court or under the orders of the Appellate Court by the Court from whose decision the appeal is preferred: Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry." In Secy, of State v. Aft. Son Kali-A.l.R. 1934 Allahabad 424, it was observcd:- "As we read O. 44, R. 1 it means this: When a person wants to appeal as a pauper, the first thing that he is to do is to present an application for that purpose. The Court has then to scrutinize the application as laid down in the proviso to R.I. It has to see whether the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. If the Court finds that the decree does not contravene any of these rules, then the Court must reject the application for permission to sue as a pauper. On the other hand, if the Court finds that prima facie there is no reason to reject the application, it is to issue notice to the Government Pleader and also to the respondent to show cause why the application should not be granted. The Civil Procedure Code, in appendix G, Form No. 11, prescribes how the notice is to be worded. It is true that R.I does not in so many terms say that the court is to issue notice to the Government Pleader or to the respondent, but para 1, R. 1 has the following words: "Subject in all matters ..... to the provisions relating to suits by paupers in so far as those provisions are applicable." These words imply that so far as possible, the procedure laid down in 0.33, Sch.l, Civil P.C, is to be followed. The Form No. 11 in Appendix G seems to confirm this view. In most cases issue of notice would be desirable even if it be not incumbent on the Court to issue it in all cases. When a notice has been issued, it is open to the Government Pleader, and also to the respondent, to show not only that the applicant is not entitled owing to possession of sufficient property to appeal as a pauper, but they are also entitled to show that the decree appealed against is not contrary to law or to some usage having the force of law, or is not otherwise erroneous or unjust." In later part of the judgment, the Court observes:- "We have been taken through the three judgments of the three learned Judges who composed the Full Bench and we are of opinion that the pronouncements contain the true exposition of the law. The view taken there is in substance what we have stated to be the correct view of the law, namely the Court has first to consider on receipt of the application whether prima facie there is any ground for the rejection of the application. If the application is rejected, the whole matter ends there; if it is not rejected, a notice is to go to the Government Pleader and the respondent, and when they appear, the Court has to decide on hearing them whether the applicant is in a position to pay the Court-fee, and further whether the decree is one which is contrary to law, or to some usage having the force of law, or is otherwise erroneous or unjust." Similar views were expressed in Maung Nyein v. Burma Electric Supply Co. Ltd., Mandalay-A.l.R. 1939 Rangoon 25. In Hasan Banu v. Radha Kishan-A.l.R. (35) 1948 Allahabad 323, a Division Bench of the High Court, on order XLIV, rule 1 Civil Procedure Code, in para 7 of the judgment, observed; "The order of Mr. Baylis resolves itself legally into two parts. He must be deemed to have found the applicants paupers and also that they had a prima facie case. He was certainly within his rights in holding that they had a prima facie case under O.44, R.I, Civil P.C., but had no right to come to an ex-parte decision as regards pauperism. Mr. Shambhu Nath Seth, the learned counsel for the applicant, has invited pur attention to the amendment effected by the Allahabad High Court, which required Mr. Baylis to hear his client, even when he adjudicated upon the question whether the appellants had a prima facie case. Be that as it may, Mr. Baylis was not right in deciding the question of pauperism in favour of the applicants, without giving an opportunity to the other side to meet this position." In Shib Krishna Das v. Panchanan Ganguly and others-A.I.R 1961 Calcutta 346, S.C. Lahiri C.J., of the Court with whom R.S. Bachawat and P.N. Mookerjee JJ., agreed, after an exhaustive survey of the decided cases, on notice to, and hearing of the respondents in appeal, on question of pauperism observed that it is only after the Court has satisfied itself that the decree under appeal satisfied the conditions of the proviso to Order 44, Rule 1, or sub-rule (2) to Order 44, Rule 1, as the case may be, that the notice in Form No. 11 of Appendix G of Schedule 1 of the Civil Procedure Code is to be issued or the application is to be sent down to the trial Court for enquiry under Order 33, Rule 5 clauses (a), (b), (c) and (e) of the Civil Procedure Code after issuing a notice to the respondent and the Collector according to the form of notice referred to above. From the examination of the decided cases, majority of the High Courts are agreed that for determining the pauperism of the applicant to file appeal, a notice to the respondents in the prescribed form is essential and their hearing if they appear, a legal must. Weight of Authority supports this statement. I agree with it and accept it as a correct enunciation of law. It is so because an order which has been passed behind the back of a party should not operate to the prejudice of that party. Additionally, the case law relied upon by the learned counsel for the petitioners is also in point. Except a bare reading of two Rules of Order XLIV Civil Procedure Code, learned counsel for the contesting respondents did not bring to my notice any decided case taking the view that notice to and hearing of the opposite party was not required at this preliminary stage. Furthermore appeal arose out of a pre-emption suit. Its object was substitution of the pre-emptors for the vendees in the sale. Obviously, substitution could not take place without payment of sale price. Houses were sold for Rs.1,20,000/- in 1986. Those were situated inside Bhati Gate, Lahore. Plaintiff had paid Rs.9000/- as court fee on the plaint, in the pre-emption suit. Though orders XXXIII and XLIV of Civil Procedure Code are couched in wide language, without any limitation on the nature of suits or appeals which could be instituted or preferred inforina paupeiis, yet it might be a serious question for consideration whether pre-emption which essentially is a right to acquire property in preference to other could be brought within the fold of these two orders. In default of proper assistance at the bar and more so. when the point had not received the attention of the learned Judge below who hi ,ird the Appeal, I shall not hazard a considered comment on this point and leave ii 10 the decision of the learned Judge below to [whose Court the case is being sent for deciding of the application for leave to (appeal infonnapauperis afresh in accordance with law after notice to and hearing of the contesting respondents. As far laches/limitation, suffice it to observe that petitions in revision are not governed by any law of limitation though the practice over years has developed to entertain applications in revision only if they are filed within 90 days of the date of the order sought to be revised. This is so, because period of limitation prescribed for an appeal to the High Court is 90 days. From the date of service and appearance hi Court on 23.11.1989, filing of revision petition in the High Court on 20.2.1990 cannot be legitimately held to be barred by laches or limitation. Moreover, when there are exceptional circumstances or the order sought to be revised is palpably illegal, void or without jurisdiction, High Court will not refuse to exercise its revisional powers under section 115 Civil Procedure Code to rectify the error. Judgment of the Supreme Court relied upon in this behalf also favours the above statement. As order XLIV Civil Procedure Code was not correctly interpreted by the learned Judge below who came to make the impugned decision in clear disregard of it, I would accept the petition, set aside his order and direct him to decide the application for leave to appeal in forma pauperis afresh in accordance with law and the observations made above. Costs of this petition to be borne as incurred. Parties shall appear before the Court below on 16.4.1990. Records be returned to it. (MBC) Petition accepted.

PLJ 1990 Lahore 322 PLJ 1990 Lahore 322 Present: IHSANUL HAQ CHAUDHARY, J IJAZ AHMAD and 2 others-Petitioners versus GOVERNMENT OF PUNJAB and 4 others-Respondents Writ Petition No. 2524 of 1990, dismissed on 16.4.1990 (i) Laches-- —Laches-Principle of-Whether applicable-Question of~Petitioners neither assailed impugned order before departmental authority nor impugned same before Punjab Service Tribunal which has exclusive jurisdiction in matter- Impugned order is dated 28.2.1989 while writ petition has been filed on 11.4.1990— There is no explanation for a period of over one year—Held: Delay of more than 6 months in service matters is sufficient to constitute laches. [P. 323]A (ii) Law Reports Act, 1875 (XVIII of 1875)- —S3 read with amended Act, 1990 (II of 1990)-Un-reported judgments- Citation of—Whether can be taken into consideration—Question of—It is clear from text of section 3 that no Court is bound to receive or treat a report of any case which is not published under .uithority ol Provincial Government as binding on it-Held: Reports relied by learned counsel for petitioners are of no binding effect as same are un-reported judgments. [Pp. 323&324JB&C Mian Muhammad Nawaz, Advocate for Petitioners. Date of hearing: 16.4.1990. order The petitioners through this petition have prayed for declaration that impugned order dated 28.2.1989 is illegal, void and without jurisdiction etc. 2. The relevant facts are that the petitioners No. 1 and 2 were appointed as Malis in Education Department. They joined service on 22.1.1989 and 17.1.1989 respectively while petitioner No. 3 was appointed as Chaukidar and he reported for duty on 17.1.1989. It is submitted that they performed duty diligently. The grievance of the petitioners is that their services have been terminated through impugned letter. 3. The learned counsel for the petitioners in support of the petition has argued that the impugned order is illegal, void and without jurisdiction. It is added that in similar circumstances this court has accepted writ petitions No, 1575/1989 and 6167/1989. 4. I have given my anxious consideration to the arguments of the learned counsel for the petitioners and gone through the record as well as precedent cases. The petitioners neither assailed the impugned order before the departmental authority nor impugned the same before the Punjab Service Tribunal, which has the exclusive jurisdiction in the matter. The impugned order is dated 28.2.1989 while this petition has been filed on 11.4.1990. There is no explanation for a period of over one year. This court has already held that delay of more than 6 months in service matters is sufficient to constitute laches and refuse relief. 5. Now coming to the cases relied by the learned counsel for the petitioners the same are clearly distinguishable as competency of appeal before Punjab Service Tribunal and bar of jurisdiction created by Article 212 of the Constitution was not mooted in these cases. Moreover these are un-reported judgments and this court is under no legal obligations to take the same into consideration in view of provisions of section 3 of Law Reports Act, 1875 as amended by Act II of 1990. The same reads as under:-- "3. No Court shall'be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case (decided) on or after the said day by any (High Court), other than a report published under the authority of (a Provincial Government)." 6. It is clear from text of the above provision of law that no court is bound to receive or treat a report of any case which is not published under the authority of a Provincial Government, as binding on it. The reports relied by the learned counsel for the petitioners are, therefore, of no binding effect. It is, however, made clear that section 3 is applicable only in respect of the reports of the cases of this Court and not to the reports of Honourable Supreme Court while sections 5 and 6 are applicable to all courts including Federal Shariat Court, Service! Pakistan, with at least four years service as such, the upper age limit shall be thirty-five years." It is clear from clause (/) and proviso (///) that prescribed age limit by initial recruitment is 28 year while for the Government servant with four years service it is 35 years. The petitioner is admittedly a Government servant, who has more than 4 years service to his credit, therefore, in his case prescribed upper age will be 35 years and not 28 years. He is entitled to relaxation of 10 years in view of the clear provisions of amended Rules of 1976 as to 'disabled persons'. This way the petitioner will not be having double relaxation because as a Government servant he is not claiming any relaxation under the Rules of 1976. It is infact the prescribed upper age limit for the candidates appearing from second category i.e.,\ Government servants, with four years of service. 9. The confusion may be due to overlapping of the provisions of Rules, 1964 and Rules of 1976. The proviso (/) relating to the candidates, belonging to schedule caste and under developed areas was valid only for 10 years. This proviso became a dead letter on 9.12.1974. This necessitated promulgation of Rules of 1976. The same covered cases of candidates belonging to schedule caste and under developed areas and another category of disabled persons was added, as already noted, in March, 1989. The other provisos (//') and (Hi) to Rule 6 remained intact and part and parcel of the Rules of 1964. Therefore the 'prescribed' age of a candidate is to be determined under Rule 6 of Rules, 1964 while the relaxation is governed by Rules, 1976 as amended. Syed Jamshed Ali, Advocate has rightly referred to the golden rule laid down by the Hon'ble Supreme Court that beneficial legislation is to be interpreted benevolently as far as possible. However, in this case there is no confusion or ambiguity at all to be resolved on the, touchstone of the above rule of interpretation. 10. Before parting with the judgment it is recorded that this Court is highly thankful to Syed Jamshed Ali, amicus curiae as well as to the learned counsel for the parties and Mr. Riaz Ahmad Khan, Secretary, Punjab Public Service Commission for their assistance in resolving the legal controversy. 11. The upshot of this discussion is that this petition is allowed and the impugned order of the respondent is declared illegal. However, there is no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 327 PLJ 1990 Lahore 327 Present: IllSANUL haq CHAUDHARY, J MUHAMMAD AZHAR-Petitioner versus GENERAL MANAGER (OPERATION) POWER, WAPDA LAHORE-- Respondent Writ Petition No. 1244 of lv>89, accepted on 24.2.1990 (i) Constitution of Pakistan, 1973-- —Art.199 read with Article 212 and Federal Service Tribunal Act, 1973, Section 4--WAPDA employee-Show cause notice to-Challenge to-Whether jurisdiction cf High Court is barred—Question of—Preliminary objection that petitioner should have filed an appeal before Federal Service Tribunal and writ petition is not compctcnt-Under Section 4 of Act, appeal can be filed against final order-In this case, matter is still at stage of show cause notice-­ Held: No appeal is competent against impugned order and show cause notice. [Pp. 329&330]A,B&C 1986 SCMR 18 and NLR 1988 (Service) 24 not relevant. PLD 1981 SC 612 rel. (ii) WAPDA Employees (E&D) Rules, 1978- —R. 12-WAPDA employee-Penalty of reduction by one stage lower in timescale-imposition of-Issuance of final show cause notice once again- Challenge to—Impugned order was passed by General Manager—Power of revision vests with Authority and no revisional powers were delegated to General Manager-After having passed earlier order of penalty dated 21.1.1982, General Manager had become funcliis officio and had no jurisdiction or authority to recall or set aside his earlier order—Held: High Court is empowered to issue appropriate directions if proceedings suffered from patent error or excess of jurisdiction—Held further: It cannot be maintained by any logic or rule of interpretation that bar of jurisdiction is absolute and jurisdiction of all courts including High Court is totally ousted by Article 212 of Constitution in service matters. [P-]D,E,F,G,H,J&K. PLD 1981 Karachi 290 and NLR 1988 (Service) 24 rel. Syed Jamshed All, Advocate for Petitioner. K]i. Fahim Ijaz, Advocate for Respondent. Date of hearing: 24.2.1990. judgment The petitioner is serving as Executive Engineer with the respondent. He has been served with a final show cause notice dated 23.2.1989 appended as Annexure 'C. The brief back-ground of the matter is that proceedings under WAPDA Employees E&D Rules, 1978 were initiated against the petitioner. The petitioner was ultimately found guilty and penalty of reduction by one stage lower in the time scale enjoyed by the petitioner was imposed vide order dated 21.1.1982. The same is placed as Annexure 'A' on the paper-book. The parties did not assail this order in any forum. However, the respondent removed the petitioner from service, invoking the provisions of section 17(1-A) of WAPDA Act, 1958 vide order dated 17.4.1982. The petitioner impugned this order before the Federal Service Tribunal through an appeal, which was allowed vide order dated 9.4.1984. Thereafter the petitioner was reinstated on 11.7.1984. The respondent assailed this order through Civil Petition for Special Leave to Appeal m ihe Supreme Com-t. However, this petition was dismissed on 29.10.1984. Everything went alrighl nil the respondent decided lo issue present show cause notice. The petitioner through the present petition has prayed for declaring show cause notice as well as office order dated 30.11.1989 as illegal and for direction to the respondent not to press show cause notice into service. This petition was admitted to regular hearing. The respondent has decided to contest the petition and entered appearance through counsel. 2. The learned counsel for the petitioner in support of the petition has argued that General Manager had no authority to re-open the matter after a lapse of 7 years. It is added that power of review is reature of statute and in the bsence of any provision General Manager has no power to review his earlier order through which penalty was imposed on the petitioner. In this behalf reliance is placed on the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (P.L.D 1970 S.C. 1). The second argument is that the respondent had lost right to repent after imposing the penalty and giving it effect. Reliance is placed on the case of Pakistan v. Muhammad Himayatullah Faruklii (P.L.D. 1969 S.C. 407). It is clarified that the moment respondent proceeded to reduce the salary by one stage lower in the time scale it accepted this order. There was nothing to fall back. In the third place it was argued that fresh proceedings are hit by the principles of double jeopardy and res-judicata. Reliance is placed on the case of R.T. Rangachaii v.-Secrelaty of State (A.I.R. 1937 Privy Council 27) and Abdur Razzaq Malik v. TJie Water & Power Development Authority and 3 others (P.L.D 1973 Lahore 188). Then it was submitted that the proceedings are malafide and after failing to get the order of Federal Service Tribunal set aside from the Supreme Court the respondents have now opened this front once again. The arguments were concluded with the submission that although the order of recall of previous order of punishment is dated 30.1.89 but the impugned show cause notice is dated 16.1.89. It is, therefore, submitted that this fact alone sufficiently negates the bonafidcs of the respondent. 3. On the other hand, learned counsel for the respondent has argued that the respondent is competent under Rule 12 to revise any order, therefore, the impugned order dated 30.1.1989 is legal. The learned counsel has further raised a preliminary objection as to the bar of jurisdiction. The argument in nut shell is that it is the Federal Service Tribunal alone, which has the exclusive power to deal with the matter and the writ petition is not competent. The learned counsel in this behalf has placed reliance on Shahid Ahmed khan v. Inspector-General of Police Sind and others (N.L.R. 1988 (Service) 24), Iqan Ahmad v. Government of Pakistan (P.L.D. 1979 Karachi 610) and WAPDA and another v. Muhammad Arshad Qureshi (1986 S.C.M.R. 18). 4. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The preliminary objection of the respondent is that the petitioner should have filed an appeal before the Federal Service Tribunal and the present petition is not competent. The learned counsel in this behalf has referred to the case of WAPDA and another v. Muhammad Arshad but the case is not relevant because in these petitions the services of the employees were terminated under section 17(1-A) of the WAPDA Act, 1958 and the question arose whether the effected employees can maintain appeal in the Federal Service Tiibunal • >/ not? It is not the case here rather when the services of the petitioner were similarly terminaled he appealed to Federal Service Tribunal. Thereafter the learned counsel referred to the case of Shahid Ahmad Khan but the same is also not relevant, as in that case in the first instance I.G. (P) had issued show cause notice requiring the petitioner to show cause why order passed by D.I.G. should not be set aside? The petitioner assailed this notice through Constitutional petition, which was still pending when the petitioner was dismissed from service in pursuance of this notice. He prayed for amendment of the petition, which was allowed but ultimately the relief was refused and it was held that the matter was within the exclusive jurisdiction of Service Tribunal. 5. The ratio dccidcndi of the case is that as final order, which was amenable to the jurisdiction of Service Tribunal alone, has been passed, therefore, the bar contained in Article 212 of the Constitution became operative and the jurisdiction of High Court was ousted. 6. In the present case the matter is still at the stage of show cause notice. While section 4 of Federal Service Tribunal Act, 1973 clearly makes a provision for appeal against 'final order'. The same reads as undcr:-- "Any civil servant aggrieved by any final order, whether original or appellate made by a Departmental authority in respect of any of the terms and conditions of his service may, within six months of the establishment of the appropriate Tribunal, whichever is later, an appeal to the Tribunal " It is therefore, held that no appeal is competent against the impugned order and show cause notice. 1 am fortified in my view by the judgment of Honourable Supreme Court in the case reported as S. H. M Rizvi and 5 others v. Maqsood Ahmad and 6 others (P.L.D. 1981 S.C. 612). 7. The learned counsel for the petitioner has rightly argued that this was the only remedy available to the petitioner. In this behalf learned counsel has referred to the cases of Turaj Ahmad Klian v. D.I.G. Police Multaii (P.L.D. 1982 Lahore 464),Ahsan Saleem v. Inspector-General of Police etc. (N.L.R. 1988 (Service) 21), Muhammad AfzaI Klian v. Karachi Development Authority & 6 others (P.L.D. 984 Karachi 114) and Mian Ainan Ullah Malik v. N, W.F.P. through Chief Secretary (P.L.D. 1981 Peshawar 1). It is true that most of these judgments were noted in the case of Shahid Ahmad Khan but were not followed in view of the Full Bench judgment in the case of Abdul Ban v. Government of Pakistan and others (P.L.D. 1981 Karachi 290). The appeal before Federal Service Tribunal as already held in the foregoing paragraphs, is not competent, therefore, these cases do not help the respondent. Now following points require consideration:— Firstly; whether the impugned show cause notice issued and order passed are legal, with jurisdiction and bonafide exercise of authority? Secondly; whether the petitioner should be asked to wait till the time he is once again thrown on the road? and Thirdly; whether this Court can interfere at this stage? 8. First of all merits of the case require consideration. The learned counsel for the petitioner has argued that neither there is any power of review nor petitioner was heard before deciding to start disciplinary proceedings afresh nor the General Manager has any such powers. On the other hand, learned counsel for the respondent submitted that since in the original proceedings the petitioner was not supplied with the copy of the enquiry report and there were other lacunas of the same type, therefore, it was decided to revive the proceedings. 9. The learned counsel for the respondent conceded that there is no provision for review but he maintained that the earlier order was revised, therefore, there is nothing wrong with the order for issuance of impugned show cause notice. He in this behalf has referred to Rule 12 ibid. The same reads as unden- "The Authority may, either on receipt of specific reference or of its own motion, at any time, call for any case in which proceedings may have been instituted under these rules, and pass such orders (including reversing acquittal or enhancing the penalty imposed) as it may deem fit, and orders so passed shall be final". It is clear from the rule that power of revision vests with the Authority alone while in the present case impugned order was passed by the General Manager. There is nothing on record rather it was not even the case of the respondents that the General Manager has been delegated revisional powers of the Authority. 10. The argument is too superficial to be given any weight. The admitted position on record is that the petitioner accepted the order of punishment dated 21.1.1982. It was the petitioner, who alone could have objected to the order, accepted the same quietly then how the respondent could have reopened the same? It is true that revisional powers are available to the respondent but that is with the 'Authority' and not with the General Manager. Therefore, General Manager after having passed his earlier order of penalty dated 21.1.1982 had become fimctits officio. He had no jurisdiction or authority to recall or set aside his earlier order because he is not vested with any power of review or revision under West Pakistan WAPDA Employees (E&D) Rules, 1978. The order has been accepted by the authority by giving it effect, therefore, it was a past and closed transaction and the WAPDA has lost right to repent. In this behalf reference can be made to the judgment of Honourable Supreme Court in the case of Fate/i Ali v. Chief Engineer Irrigation and another (1986 S.C.M.R 1137). 11. Now coming to the malafide part of the argument, it is clear from the show cause notice that it was lying ready. It seems that later on it was realised that the earlier order will be hurdle in the way. It is thereafter that the order dated 30.1.1989 recalling the previous order of punishment was passed. It means that when show cause notice was prepared and signed the order dated 21.1.1982 held the field. In face of the final order having been passed there was no legal basis even to draft this show cause notice. This way the impugned order has been passed to furnish legal basis for second round. Conversely speaking show cause, notice was to follow an order but here case is reverse. 12. The learned counsel for the petitioner referred to the case of Turaj Ahmad Khan to' argue that High Court can come to the rescue of an aggrieved person in case of proceedings being illegal and without jurisdiction. There is no doubt that this Court is empowered to issue appropriate directions if the proceedings suffered from patent and apparent error or excess of jurisdiction. In this behalf reference can be made to the judgment of Hon'ble Supreme Court in the case of Sind Employee's Social Security Institution v. Dr. Mumtaz All Taj and others (P.L.D. 1«75 S.C. 450) and in case of Maqbool Ahmad v. Settlement Department (N.L.R. 1986 Civil 340) and State of U.P. v. Muhammad Nooh (P.L.D. 1958 Supreme Court (Ind.) 274). 13. I am fortified in my view by Article 4 of the Constitution of Islamic Republic of Pakistan, which bestows inalienable right on all citizens to be dealt with in accordance with law. There cannot be two opinions that the civil servants come within folds of term 'citizens', therefore, they can complain through a validly instituted petition that they are not being dealt with in accordance with the law. 14. It is settled law that where there is a grievance there is a remedy. The only question is of selection of forum as provided by law. The bar of jurisdiction as contained in Article 212 of the Constitution will be operative if the disciplinary proceedings initiated or order made:-- firstly, is without jurisdiction and illegal; and secondly, that no appeal is competent before the Service Tribunal. These two ingredients must co-exist to warrant interference in Constitutional jurisdiction. In such cases the bar will not be operative. Even otherwise there are matters, which are clearly excluded from the purview of Service Tribunals Act like suspension, fitness for promotion, matters pertaining to period prior to 1st July, 1969 etc., therefore, it cannot be maintained by employing any logic or rule of interpretation that bar of jurisdiction is absolute and jurisdiction of all Courts including this Court is totally ousted by Article 212 of the Constitution in service matters. The same is the rule laid in cases of Abdul Bari and Shahid Ahmad Khan. 14. The result is that this petition is allowed, the order dated 30.1.1989 and show cause notice dated 16.1.1989 are declared to have been made without lawful authority. There is however, no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 332 (DB) PLJ 1990 Lahore 332 (DB) Present: IRSIIAD HASSAN KlIAN AND IlISANULHAQ CllAUDIIARY, JJ Mian ABDUL MAJID-Appellant versus GOVERNMENT OF PUNJAB C&W DEPARTMENT, and 2 others-­ Respondents I.C.A No. 155 of 1989 (also ICA 159/89) accepted on 20.2.1990 (i) Punjab Civil Servants Act, 1974 (VIII of 1974)-- —S.4 read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rule 3—Appointment of respondent No. 3—What was mode of his appointment-Question of-It is clear that respondent No. 3 was recruited as Assistant Engineer on 15.5.1973—It is nobody's case that it was an appointment by promotion-It was also not appointment by transfer-Held: It was an appointment by initial recruitment. [Pp. 335&336JC (ii) Punjab Service Tribunals Act, 1974 (IX of 1974)-- —S.4(l)(c)--Government servants-Seniority of~Change in~Challenge to-Writ Petitions of appellants were dismissed for reason that they could maintain appeals before Service Tribunal-Whether appeal before Service Tribunal was competent-Question of~Matter pertained to period prior to October, 1969, therefore, it was covered by proviso (c) to sub-section (1) of Section 4 of Act- Held: Appeal before Service Tribunal was not competent. [P. 334JA&B 1985SCMR547//. (iii) Seniority- —Government servant-Seniority of-Determination of--Whether appointment of respondent No.3 could be ante-dated when he was actually not in service- Question of-Date of appointment cannot be ante-dated when one was not actually in service-Held: WAPDA being a statutory body, its employees are not civil servants, therefore, service of respondent No. 3 in WAPDA could not be counted in continuation of his present service-Held further: Having accepted order of rejection of his representation to count his previous service as back as 1975 and on account of his failure to challenge previous seniority list, respondent No. 3 was estopped by his conduct to re-agitate matter being a transaction past and closed-Appeals accepted, impugned orders set aside and writ petitions of appellants accepted. [P. 337]D,E,F&G. •1982 SCMR 971 and PLD 1985 SC 178 rel. Mr. D.M. Awan, Advocate for Appellants. Mr. Farooq Bedar, Addl. A.G. with Mr. AS. Hashmi, Advocate for Respondents 1 & 2. Raja Muhammad Anwar, Advocate for Respondent No. 3. Dale of hearing: 14.1.1990. judgment Ihsanul Haq Chaudhary, J.-These appeals (I.C.A. Nos. 155/89 and 159/89) are directed against the judgment dated 25.9.1989 passed in Writ Petitions No: 4296/89 and 4295/89. Since common questions of law and facts are involved, therefore, both appeals are being disposed of by this single judgment. 2. The relevant facts for the decision of these appeals are that respondent No. 3, Muhammad Khalid Cheema, did his B.Sc Civil engineering, in the year 1967 and joined WAPDA as Assistant Engineer on 20.11.1967. He remained there in the service of the WAPDA in the first instance till 3.12.71 when he joined Army. He remained in the Army service till 5.2.72 when he again joined WAPDA. Thereafter he was sent on deputation to C&W Department, Government of Punjab, on 4.5.1973. This order initially was for a period of six months. Simultaneously respondent No. 1 offered the post of Assistant Engineer to respondent No. 3. It was made clear that this appointment is purely on adhoc basis. He accepted this offer and accordingly appointment order dated 20.6.1973 was issued. The respondent joined as Assistant Engineer on adhoc basis. Subsequently vacancy occurred with respondent No. 1. The respondent No. 3 applied for the post and after clearance by the Punjab Service Commission he was appointed on regular basis. The said respondent, after the appointment, made a representation claiming advance increments in lieu of his previous service in the WAPDA as well as Army. He was accordingly allowed three increments vide order dated 23.12.1974. It was followed by another representation for counting the previous service both in Army and WAPDA. The representation was examined and ultimately it was rejected vide order dated 14.11.1975. The said respondent did not assail this order in any forum. 3. The Department issued seniority list dated 10.9.1981 of all the Officers in Grade-18 and above serving in the C&W, Highways and Building Departments. This List reflected the position on 1.9.1981. It is maintained that the name of the appellants figured at Serial Nos. 52 and 77 and that of respondent No.3 at No. 94. While in the latest seniority list dated 23.11.1988 the appellant's names appeared at serial Nos. 31 and 51 while that of respondent No. 3 at serial No. 66. The respondent No. 3 once again submitted representation for fixation of seniority after counting his past service. This time the respondent No. 3 succeeded and impugned notification dated 3.6.1989 was issued and the said respondent was granted benefit of previous service and his seniority was accordingly changed with the result that the name of respondent No. 3 was to be placed in between serial Nos. 30 and 31 instead of at serial No. 66, in the seniority list. The appellants this way become junior to respondent No. 3, therefore, they decided to assail this notification through Constitutional petitions. 4. The writ petitions of the appellants were dismissed by the learned Single Judge-in-Chamber mainly for the reason that the appellants can maintain appeals before Punjab Service Tribunal as it is a question of terms and conditions of service and that the appellants have no locus standi. 5 We have heard learned counsel for the parties and gone through the record. The basic question for determination is whether an appeal before Punjab Service Tribunal was competent? The learned counsel for the petitioner has referred to the case of Muhammad Anees v. Secretary, Ministry of Communications and others (1985 S.C.M.R 547). On the other hand, learned counsel for respondent No. 3 could not refer to any precedent. We have also gone through the judgment of Tribunal in the case of Anees as well as copy of C.P.S.LA. The case is on all fours, therefore, we have no difficulty in reaching to the conclusion that as matter pertained to period prior to October, 1969, therefore, it was covered by proviso (c) to sub-section (1) of section 4 of Punjab Service Tribunal Act, 1974, therefore, the appeal was not competent. 6. Now coming to the merits of the Writ petition the pivotal point around which the fate of this appeal hinges is whether respondent No. 3 could be given benefit of his previous service in WAPDA and Army? In order to answer this question we have to find out permissible modes of appointments. Section 4 of Punjab Civil Servants Act, 1974 deals with the appointments and the same reads as under:— "Appointment to a civil service of the province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf." The prescribed manner is detailed in Rule 3 of Punjab Civil Servants (Appointment & Conditions) Rules, 1974. The same reads as under:-- "Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time " 7. It is clear from the reading of Section 3 and Rule 3 together that the following are the modes of appointments of Civil Servants of the Province:-- (a) By Promotion; (b) By transfer; or (c) by initial recruitment. 8. Now before proceeding any further we revert back to the case in hand. The respondent No. 3 was offered post of Assistant Engineer temporarily on adhoc basis vide order dated. 17.5.73. It was made clear in this appointment letter that post of Assistant Engineer in C&W Department Lahore has been placed at the disposal of Public Service Commission, therefore, he was to apply for the same when advertised. Thereafter the post was advertised by Punjab Public Service Commission. The said respondent was selected and as a result thereof fresh appointment letter dated 6.6.74 was issued. The said espondent after his adhoc appointment moved respondent No. 1 for grant of advance increments. The representation is dated 18.6.73 and the claim was that he has more than 6 years' experience to his credit. This representation was accepted and the petitioner was allowed 3 advance increments vide notification dated 23.12.74. There seems to be yet another move and as a result thereof number of advance increments granted to him was increased from 3 to 5. The order is dated 17.4.80. It was in supersession of earlier order dated 23.12.74. This was followed by representation dated 16.11.73 for grant of benefit of 5 1/2 years' service in WAPDA. This representation was considered at length and rejected vide order dated 14.11.75. The said respondent did not move against this order but again filed a representation on 15.10.79 which too was rejected on 17.11.79. 9. In the meanwhile, the petitioner and others were promoted as Executive Engineers in August, 1976. The Department issued a Seniority list of the Officers serving in Grade 18 and upward in 1981. Respondent No. 3 was junior to appellants. He did not agitate against this list. The grievance of the appellants is that when the latest list dated 23.11.1988 was published, the said respondent made a representation for grant of benefit of his previous service in WAPDA and allocation of proper place in the seniority list. This was allowed vide order impugned in writ petitions. The result was that the appellants became junior to respondent 3. 10. Now coming back to the point in issue it is clear from the above resume of the service career of respondent No. 3 that he was recruited as Assistant Engineer on 15.5.73. The question arises what was the mode of his appointment in terms of rule 3 read with section 4 of Civil Servants Act? It is no body's case that it was an appointment by promotion. It was also not appointment by transfer rather it was never the case of the said respondent. This way the only mode of appointment available under law was appointment by initial recruitment. We feel no difficulty in holding that it was an appointment by initial recruitment and we are fully supported in our view by letter dated 20.6.73 (Annexure 'A/1') making initial appointment and letter dated 6.6.74 making his appointment on regular basis after clearance by Punjab Public Service Commission (Annexure A/2). In this behalf reference can be made to clause (/) and clause (v) of Annexure A/1. The same reads as under:- "A requisition regarding recruitment to the post of Assistant Engineer in the C&W Deptt: Lahore, has been placed on the Punjab Public Service Commission. You may apply for the same as and when the post is advertised by them. While clause (/) and (v/7) of Annexure A/2 are, also relevant. The same read as under:-- "(/) Tenure of Post. The appointment will be temporary in the first instance and can be terminated on one month' notice on either side. (vii) Seniority. Your inter-se seniority among the other candidates recruited in the same batch will be fixed in the order of merit in which you have been recommended by the Punjab Public Service Commission for appointment. The date of your joining the Department or any other factor will have no bearing on the fixation of your seniority." Last but not least rather most important document in this behalf is memo dated 14.11.75 (Annexure 'B'). Para No. 2 of this memo clinches the whole matter and reads as under:-- "The seniority cannot be given on the basis of past service rendered by Mr. Muhammad Khalid Cheema in WAPDA. He was selected by the Public Sen'ice Commission as direct recruit and his seniority will be fixed according to merit list supplied by the Commission. This order infact decided once for all two issues: Firstly; that it is case of initial appointment. Secondly; that seniority was to be fixed by Public Service Commission in terms of merit list. 11. The probation is one of the salient features of initial appointment as is clear from section 5 of the punjab Civil Servants Act, 1974. In addition to this, Rule 16 is also relevant to hold that it was initial appointment and not the appointment in continuation of the previous service. It is clearly an after-thought. It was neither a case of the said respondent nor of the Department at any stage. 12. There are other legal grounds on which the appellants were entitled to relief. The same can be tabulated as under:-- Firstly, the date of appointment cannot be ante-dated when one was not actually in service or held the post or was not a member of service. Coupled with this the WAPDA being a statutory body, its employees are not civil servants, therefore, the service of respondent No. 3 could not be made in continuation. Refer Raja Muhammad Iqbal and others v. Additional Chief Secretary, Government D of the Punjab (1982 SCMR 971), wherein it was held that "in the absence of any provision of law or rule governing the situation, they could not claim nor could the Service Tribunal within its power ante-date for the purposes of their seniority, the date of their actual appointment and give them seniority from a period when they were not appointed to the post or to the service." Secondly, the rights of civil servants are to be strictly construed in accordance with the relevant rules of service. In this behalf reference can be made to the case of Ch. Muhammad Klialil v. Ministry of Defence (Secretary) and another (PLD 1985 SC 178 at page 181). 13. The appellants and respondent No. 3 were serving as Executive Engineers in 1981. Seniority list was issued. Nobody took any exception to the same. It was only after lapse of 15 years of joining service when the latest seniority list was issued that the respondent took exception to the same. There was no basis to challenge that seniority list. He having accepted the order of rejection of his representation to count his previous service as back as 1975 and on account of his failure to challenge the previous seniority list he was estopped by his conduct to re-agitate the matter being a transaction past and closed. 14. The .upshot of the above discussion is that we accept these appeals and set aside the impugned judgment dated 25.9.1989 of the learned Single Judge in Chamber. The result is that the writ petitions of the appellants are allowed and thef impugned order dated 3.6.1989 is declared as without lawful authority and of no| legal effect with costs throughout. (MBC) Appeals accepted.

PLJ 1990 Lahore 337 PLJ 1990 Lahore 337 Present: IlISANUL HAQ ClIAUDHARY, J ABDUL REHMAN-Petitioner Versus ADDITIONAL DISTRICT JUDGE, FAISALABAD and another-Respondents Writ Petition No. 2707 of 1989, partially accepted on 7.3.1990 Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)-- —-S.13--Tenant~Ejectment of~Prayer for--Relationship of landlord and tenant- -Denial of~Whether ejectment petition should have been remanded for decision on merits after setting aside finding of Rent Controller-Question of~ Basis for denial of relationship was that matter of transfer of disputed property is still pending in Supreme Court and High Court-Appellate Court failed to appreciate that neither issues on merits were framed nor it was a case where ejectment should have been ordered straightaway after deciding issue as to relationship-Held: appellate authority did not apply its mind that in this case, matter has to be remanded to Rent Controller for framing issues on merits and for decision in accordance with law—Petition partially accepted and ejectment petition remanded. [P. 339]A,B,C&D PLJ 1974 Lahore 152 and PLD 1974 Lahore 446 rel. Mr. Ijaz Ferozc, Advocate for Petitioner. Mr. S.M. Nasim, Advocate for Respondents. Date of hearing: 7.3.1990. judgment The respondent No. 2 filed an ejectment petition against the petitioner in respect of the one room comprising of property No. P—184, Ward No. 7, Jhang Bazar, Faisalabad. It was pleaded that the property has been transferred to him by the Settlement Department and he claimed ejectment on the ground of personal use. The petitioner resisted the application on facts as well as legal points. It was pleaded, as a preliminary objection, that the matter of transfer is still under adjudication in the Hon'ble Supreme Court and High Court, therefore, relationship, was denied. The learned Rent Controller proceeded to frame following preliminary issues:— "1. Whether the relationship of landlord and tenant does exist in between the parties? OPA. 2. Relief." 2. The parties produced evidence and the learned Rent Controller held that the application of title is yet to be decided, therefore, the petition is premature and in view of this finding the ejectment petition was dismissed vide order dated 5.10.1988. The landlord-respondent No. 2 impugned this order through an appeal before the appellate authority under Punjab Urban Rent Restriction Ordinance. The appeal was accepted and the petitioner was directed to hand-over the vacant possession of the premises within one month to the landlord. The order is dated 20.4.1989. Now the petitioner has impugned this order through the present Constitutional petition. 3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No. 2 appeared and has contested the petition, learned counsel for the petitioner in support of the petition has argued that the learned Addl: District Judge has wrongly and illegally accepted the ejectment petition while upsetting the finding of the learned trial Court on preliminary issue. The proper Course was to remand the ejectment petition for decision on merits. In this behalf, reliance is placed on the cases reported asAbdurRehman v. Wilayat Begum (P.LJ. 1974 Lahore 152) and Muhammad Hussain v. Muhammad Basliir and 4 others (P.L.D. 1974 Lahore 446). 4. On the other hand, the learned counsel for the respondent No. 2-landlord has argued that the learned Rent Controller was ill advised to frame the preliminary issue as to the relationship because he had no jurisdiction to go behind the transfer deed and order. In this behalf, the learned counsel has placed reliance on the case reported as Muhammad Hussain v. Additional District Judge, Gujranwala and 2 others (1988 S.C.M.R. 1937). It is, however, maintained that when the relationship was denied then after deciding the issue in affirmative the Rent Controller should have ordered ejectment. In this behalf, reliance is placed on the cases reported as Muhammad Yusuf v. KJialifa Asghar Hussain (1980 S.C.M.R. 886) and Nisar Ahmad v. Nazar Muhammad (P.L.D. 1974 Lahore 489). 5. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the paper book and the precedent cases. The short question for determination is whether the ejectment petition should have been remanded for decision on merits after the respondent No. 1 had set-aside the finding of the learned Rent Controller on preliminary issue or not? The admitted position on record is that the ejectment of the petitioner was sought on the sole ground of personal use. The basis for denial of relationship of landlord and tenant, as is clear from the written reply, was that the matter of transfer is still pending in the Hon'ble Supreme Court and this Court. While the appeal of the landlord was pending before the respondent No. 1, the writ petition No. 148-R/84 filed by the petitioner was dismissed by this Court on 5.11.1988. The learned appellate authority after taking this order of this Court in consideration proceeded to reverse the finding of the learned Rent Controller, accepted the appeal and! allowed ejectment petition. 6. The learned appellate authority failed to appreciate that neither issues on merits were framed nor it was a case where ejectment should have been ordered straightaway after deciding the issue as to relationship. Both the Courts below have proceeded in a very casual and careless manner. The learned Rent Controller before framing the preliminary issues should have found out the reasons for denial of relationship and if necessary could have recorded the better statement of the petitioner. It is not essential in each and every case-where relationship is denied to frame a preliminary issue. The Rent Controller should first of all ascertain the grounds of denial of relationship and if necessary record the better statement of the tenant and order production of documents. If the objection, as in the present case, could be decided just after hearing the parties then the framing of such issue will be nothing but wastage of time. 7. Now coming to the judgment of the appellate authority. The learned appellate authority did no apply its mind that in the present case the matter has to be remanded to the learned Rent Controller for framing issues on merits and decision in accordance with the law. The learned counsel for the respondent No. 2 has tried to support the judgment of the appellate authority by referring to the cases of Muhammad Yusuf and Nisar Ahmad but the same are not relevant at all because in this case the default was not one of the grounds of ejectment. The personal use has to be established like any other factual controversy. 8. The upshot of this discussion is that the petition is partially allowed, the impugned order as to the acceptance of the ejectment petition is set-aside. The result is that the ejectment petition is remanded to the learned Rent Controller for framing of issues on merits and decision in accordance with the law. There is no order as to costs. The learned counsel for the parties have submitted that the learned Rent Controller has since been transferred, therefore, the parties are directed to appear before the learned District Judge, Faisalabad on 26.3.1990. The learned District Judge will entrust the matter to the Rent Controller at Faisalabad, who shall decide the petition expeditiously and in any case before 30.6.1990. (MBC) Petition Partially accepted.

PLJ 1990 Lahore 340 PLJ 1990 Lahore 340 Present: IHSANUL haq CHAUDHARY, J Mst. NAEEMA TABASSUM and another-Petitioner Versus ADDITIONAL DISTRICT J UDGE, GUJRAT, and another-Respondents Writ Petition No. 3790 of 1989, accepted on 6.3.1990 (i) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)- —S.13-Tenant--Ejectment of--Prayer for-Personal need—Ground of~ Respondent No. 1 although court of law and facts, yet failed to render speaking judgment-Finding of Rent Controller has been reversed mainly on account of non-appearance of petitioner No. 1 as a witness-Held: Respondent No.l failed to appreciate that it is not requirement of law that a landlord seeking ejectment on ground of personal need, must appear in witness-box. [P. 342]A&B 1982 CLC 410 and PLD 1983 Lahore 320 rel. (ii) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)--

—S.13-Tenant~Ejectment of-'-Prayer for-Personal need-Ground of Respondent No. 1 rejected statement of Aw 1 because he failed to depose about merital status and other private affairs of petitioner No 1 while statement of Aw 2 was excluded because he is not related to petitioners-No reason has been given why statement of Aw 3, special attorney and father of Petitioner No. 1 should be excluded-Held: Even if statements of Aw 1 and Aw 2 are excluded still statement of Aw 3 who is father and special attorney of landlady, was sufficient to answer issue of personal need in favour of Petitioner No. 1. [P. 342]C (iii) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)— —S.13-Tenant~Ejectment of-Prayer for-Personal need-Ground of- Whether appearance of landlady was necessary-Question of-Statement of Petitioner in an ejectment petition moved on ground of personal need is essential only to prove his exact requiremcnt-If somebody like father, husband, brother can depose in respect of all matters, non-appearance of landlady will be of no legal consequences-It is clear from statement of Petitioner No. 2 that he answered ill questions and queries made on behalf of .tenant in cross-examination in onU r to prove bnnafide personal requirement of landlady—Held: Appellate authority (respondent No. 1) has wrongly insisted for appearance of landlady as her own witness—Petition accepted and order of Rent controller restored. |>p. 342&343JD&E Ch. Muhammad Abdul Wahid, Advocate for Petitioner. Mr. G.H. Klian, Advocate for Respondents. Dale of hearing: 6.3.1990. judgment The petitioners filed an ejectment petition against respondent No. 2 for ejectment in respect of snop No. 4 New Market, Mandi Bahauddin. The ejectment was sought on the grounds of default, damage, personal use and violation of terms and conditions of lease. The respondent No 2 resisted the petition. The learned Rent Controller seized of the matter accordingly framed following issues:— "1. Whether the respondent has defaulted in the payment of rent? 2. Whether the respondent has damaged the disputed shop? 3. Whether the petitioner No. 1 needs disputed shop for her own personal use? 4. Whether the respondent has violated the conditions prescribed in the agreement, if so its effect? 5. Relief." 2. The petitioner examined Abdul Khaliq as AW 1 Muhammad Ashraf as AW 2 and petitioner No. 2 appeared for himself and as special attorney of petitioner No. 1 as AW 3. The respondent No. 2-tcnant in rebuttal examined Mir/a Man/.oor Ahmad as RW 1, Muhammad Khan RW 3, Bashir Ahmad RW 4 and himself appeared as RW 2. The learned Rent Controller after hearing the arguments decided issues No. 1, 2 and 4 against the petitioners while issue No. 3 was decided in their favour and in view of the findings on this issue the ejectment petition was allowed vide order dated 2.4.88. The respondent No. 2 alone assailed this ejectment order through an appeal before the appellate Authority who accepted the same vide order dated 15.2.89. The result was that the ejectment petition of the petitioners was dismissed. The petitioners have now assailed the order of appellate authority through this Constitutional petition, which was admitted to regular hearing and notices were issued to the respondents. 3. The respondent No. 2-tenant has appeared and contested the petition. The learned counsel for the petitioner in support of the petition has argued that the learned appellate authority wrongly and illegaly drew adverse inference from the non-appearance of petitioner No. 1 as her witness. It is added that it was not the requirement of law that the petitioner must appear as a witness. In this behalf learned counsel has referred to the case of Muhammad Umar and others v. Dr. Amina Ashraf (1982 C.L.C. 410) and Abu Bakr v. Mst. Sadaqat Begum (P.L.D. 1983 Lahore 320). 4. On the other hand, learned counsel for the tenant has argued that the petitioners miserably failed to prove is«ue No. 3 relating to personal use and her non-appearance as a witness is fatal to her claim for personal use. The learned counsel in this behalf has referred to the case of Ghulam Mohy-u-Din v. Soba KJran (P.L.D. 1977 Lahore 1094). It is further added that personal requirement is not bonafide as another shop owned by her father-petitioner No. 2, is lying vacant. 5. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. The appellate Authority although Court of law and facts yet failed to render speaking judgment. The learned Appellate Authority after giving a resume of the facts and evidence proceeded to record following findings:— "As Mst. Naeema Tabassum Landlady had neither appeared in the witness box nor had presented proper witnesses to establish her personal requirement regarding the shop in question, therefore, under the circumstances of the present case, as aforementioned, the bonafides of the landlady have not been proved on the record. A mere desire on the part of the landlady to evict her tenant on the fictitious ground of personal use cannot be attached any weight. For all the foregoing reasons, finding of lower court on issue No. 3 is reversed, and the same is decided in favour of the appellant/tenant." 6. This is whole of the finding of the learned appellate authority. The same cannot be considered judgment in the eye of law. It is clear from the above quotation that finding of the learned Rent Controller has been reversed on issue No. 3 mainly on account of her non-appearance as a witness. The appellate authority failed to appreciate that it is not one of the requirement of the law that a landlord seeking ejectment of his tenant on ground of personal need must appear in the witness-box. The learned counsel for the petitioner rightly referred to the cases of Muhammad Umar and others and Abubakar. Even in the case relied on behalf of the respondent tenant it was only held that the statements of the landlord and person for whose behalf premises sought to be vacated are relevant. This was in the context that it was for the landlord to show reasonable cause for occupying a 'particular' property for persona! use. In the present case the petitioner No. 1 admittedly owns only the shop in dispute, therefore, there was no choice with her. 7. The learned appellate authority has brushed aside the evidence produced by the petitioners for artificial reasoning. The statement of Abdul Khaliq AW 2 was rejected because he failed to depose as to the merital status and other private matters of petitioner No. 1 while the statement of AW 2 was excluded that he is not related to the landlady and her father. While he just referred to two portions of the statement of Khair Muhammad AW 3 petitioner No. 2, father and special attorney of petitioner No. 1. He has not given any reasons why the statement of AW 3 should be excluded? Even if the statements of AW 1 and AW 2 are excluded still statement of AW 3, who is father and special attorney of petitioner No. 1 landlady, was sufficient to answer the issue in favour of the landlady. 8. The statement of the petitioner in an ejectment petition moved on ground of personal use is essential only to prove the exact requirement of the petitioner. If some-body else like father, husband, brother can depose in respect of all matters and supply all information to be sought from the petitioners to prove the requirement of bonafide personal use, then non-appearance of the petitioner will be of no Icgnl consequences and not fatal to the claim of the petitioner. In this case Kha'n Muhammad, who is father of landlady and fully conversant with the facts and ihc basis of the claim of the landlady appeared as her special attorney, therefore, statement made by him will be deemed to be statement of the landlady. It is clear from the statement of Khair Muhammad that he answered to all the questions and queries made on behalf of the tenant in the cross-examination in order to expose the bonafide personal requirement. He has made clear and categorical reply to all the questions. There was not a single question to which he has replied that he is not aware and landlady may be knowing. In this view of the matter the learned appellate authority wrongly insisted for the appearance of the landlady as her own witness. It is note-worthy that even the learned appellate authority did not discuss and rely on the evidence of the tenant to reverse the finding of issue No. 3. It is probably for the reason that the evidence of the tenant is not credit-worthy and does not rebut the 1 evidence produced on behalf of the landlady. 9. The legislature has duly safeguarded the interest of the tenant while enacting provisions of section 13 sub-section (4). In case the landlady fails to occupy the shop within one month of the date of obtaining possession, the tenant may apply to the Controller for an order directing the restoration of possession of the shop to him. 10. The upshot of the above discussion is that this Constitutional Petition succeeds and the order of respondent No. 1 dated 15.2.1989 is declared illegal, and is hereby set aside. The result is that the order of the Rent Controller dated 2.4.1988 is restored and ejectment petition of the petitioners is accepted. However, there is no order as to costs and the tenant is allowed one month's time to vacate the premises. (MBC) Petition accepted.

PLJ 1990 Lahore 343 PLJ 1990 Lahore 343 Present: MIAN ALLAH nawaz, J RAFIQUE ALAM-Petitioner versus DEPUTY SETTLEMENT COMMISSIONER, SIALKOT and 3 others- Respondents Writ Petition No. 792-R of 1977, accepted on 26.3.1990 (i) Settlement and Rehabilitation Matters— —Evacuee property-Allotment of-Petitioner proved to be in possession on crucial date—Whether entitled to transfer under Scheme No. VIII—Question of~Both petitioner and respondent No. 2 being non-claimant displaced persons from Azad Jammu and Kashmir, are entitled to transfer under para. Nos. 6 and 7 of Scheme No VIII—Non-claimant can seek benefit of possession of his parents provided there is no other applicant-Held: Petitioner was entitled to take benefit of possession of his father -Held further: Transfer of disputed portion in favour of respondent No. 2 being in excess of his claim, is without jurisdiction and without lawful authority—Petition accepted. [Pp. 348&349]C,D.E&F PLD 1963 (WP)Karachi 709 and law Notes 1967 (NUC) Karachi 1 rcl. (ii) Settlement and Rehabilitation Matters- —Possession on crucial date-Determination of-It is apparent from record that father of petition and father of respondent No. 2 were in possession of two portions which were given separate numbers by Municipal Committee and petitioner all along lived with his father in disputed portion—Held: Petitioner was in possession of disputed portion before crucial date, i.e., 20th December, 1958 with his father. [Pp. 347&348JB (iii) Settlement and Rehabilitation Matters— —Possession on crucial date-Enquiry about-Order of -Non-compliance of- Effect of—Deputy Settlement Commissioner was directed by High Court to ascertain in clear terms as to whether petitioner was in possession of disputed portion on or before 20lh December 1958-Instead of following this instruction, he undertook a roving enquiry regarding abandonment of possession by father of petitioner—Held: Deputy Settlement Commissioner went beyond mandate of High Court and his order is manifestly without . jurisdiction and is liable to be struck down. [P. 347)A Mr. Abdul Majeed Klian, Advocate for Petitioner. Mr.Nazir Ahmad, Advocate for Respondent No. 1. Mr. A.R. Shaukat, Advocate for Respondents. Date of hearing: 25.3.1990. judgment The dispute in this petition pertains to transfer of portion of house bearing No. 4/1-C Mohallah Shahab, Sialkot City between Rafique Alam herein petitioner and Amanat All herein respondent. Rafique Alam along with his family is in occupation of a portion of the house bearing municipal No. 16/509 while Amanat Ali is in possession of portion bearing No. 16/510. 2. The case has chequered history. This is a second round of litigation in this Court. It is needless to recapitulate the facts except few facts, for the disposal of this petition are; that the house was jointly allotted to Din Muhammad the father of the petitioner and Fazal Karim the father of Amanat Ali vide order dated 21.7.1952. Din Muhammad and Fazal Karim were jointly allotted the house as both of them were in possession of two separate portions of the house. 4. Rafique Alam filed K.N.C.H. form No. 195 on 7.10.1966 for the transfer of portion of house allotted to his father and in his possession. It was claimed that the father of the petitioner was weak, ailing person and had authorised him to file the form. After filing the form Rafique Alam went to East Pakistan, took part in the war with India and was taken as prisioner of war and returned to Pakistan in 1973. 5. That Amanat Ali also filed K.N.C.H. form on 20.5.1971 for the Transfer of portion of house in his possession. The Deputy Settlement Commissioner vide order dale 26.5.1971 transferred the whole house in favour of Amanat Ali without lakinti into consideration the form submitted by Rafique Alam. The family of the petitioner, in the absence of Rafique Alam, continued making representation to Settlement authorities for transfer of disputed portion on form submitted by Rafique Alam. Rafique Alam also continued reminding the settlement authorities about the pendency of his form from East Pakistan. The army authorities also reminded the Settlement authorities through so many mcmos. 6. The order of the Deputy Settlement Commissioner was set aside by ihe Addl. Settlement Commissioner, who remanded the case to the DcpuU Settlement Commissioner for decision afresh on merits. The Deputy Settlement Commissioner again vide order dated 24.7.1975 made the same decision in favour Amanat Ali. 7. Having exhausted his remedies under the provisions of Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, Rafique Alam filed constitution petition bearing No. 934-R/1975 in High Court. His Lordship Mr. Justice M.E. Rana vide order dated 4.11.1976 accepted the petition and remanded the case to the relevant authority for the disposal of the form of Rafique Alam In order of remand the settlement authorities were directed to determine the entitlement of Rafique Alam in the context of word 'possession' contained in sub clause (6) of section 2 of Act XXVIII of 1958. The relevant finding embodied in the order of remand will be examined al a later stage. S. Pursuant to the order of remand, the Deputy Settlement Commissioner. Sialkot vide order daled 16.5.1977 dismissed the form of Rafique Alam by coming to the conclusion that the father of Rafique Alam had abandoned his possession in the disputed portion and shitted to a plot of evacuee trust. It was further held that Rafique Alain joined Army in year 1963 and his date of birth was 10.12.1943. So according to him Rafique Alam was not in possession of the property in dispute before the crucial date. Rafique Alam has challenged the order of the Deputy Settlement Commissioner in this constitution petition. 9. Learned counsel for the petitioner in support of this petition raised the following points:— 1. It was urged that Amanat Ali had filed form for the transfer of portion of house in his possession. This portion carried No. 4/1-C-16/510. The Deputy Settlement Commissioner had no authority to transfer him more than his entitlement embodied in the form. On the premises it was contended that the impugned order was in excess of authority. Strength was sought from Muhammad Tnfail v. Chief Settlement and Rehabilitation Commissioner and another (PLD 1971 Lahore 257). It was next contended that both Rafique Alam as well as Amanat Ali submitted an application under scheme No. 8. It was urged that under para 7 sub para 3 of the scheme, both Rafique Alam and Amanat Ali had to be transferred their respective portions. The reliance was placed on Syed Aziz-ur-Rehman v. Mst. Habib Bano and 5 others (PLD 1972 SC 52), Abdul Raxltid and 3 others v. Muhammad Nazir (1970 SCMR 330). 3. Thirdly it was stressed ihat the definition of possession under clause 2 sub-clause (6) of the Displaced Persons (Compensation and Rehabilitation) Act XXYIH of 1958 was changed by Central Government from time to lime. It was conlrnded that it was apparent from the record that Din Muhammad had been in possession of the disputed premises along witli all members of his family; that the mother of the petitioner died in the disputed portion; that the petitioner had given his address of the disputed portion when he went to East Pakistan; that his possession was affirmed by the order of the deputy Settlement Commissioner dated 23.2.1977 wherein it was found in a positive manner that the petitioner was in possession of disputed portion. It was urged that the petitioner's father had been in possession of the disputed portion since 1950 and his family had continued the possession upto this date. According to the learned counsel for the petitioner, the petitioner was entitled to transfer of disputed portion on the basis of admitted un-interrupted possession under scheme No. 8. 10. On the other hand, the learned counsel for respondents supported the impugned decision. According to him the circumstance of continuous possession was not only the ground making Rafique Alain eligible for the transfer of the disputed portion. It was urged that the benefit to Rafique Alam in lieu of possession of Din Muhammad could be only given if he showed that he had cleared the arrears of rent before making application. 11. It was next contended that finding of the Deputy Settlement Commissioner in support of possession was a finding of fact and could not be interfered with in the constitutional jurisdiction. 12. Learned counsel for respondent No. 1 also did not support the order of the Deputy Settlement Commissioner. It was suggested by him that the claim of possession of Rafique Alam was not in dispute. According to him this Court in this constitutional jurisdiction should transfer the disputed portions in favour of petitioner in order to do the complete justice between the parties. It was urged that the payment of arrears of rent was not a condition precedent. The reliance was placed on Abdul Majid Shaida v. Mst. Noor Jehan (PLD 1967 SC 221), Ch. Aliaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC 68), Mst. Noor Jehan Begum v. Settlement and Rehabilitation Commissioner Karachi and others (PLD 1963 (W.P) Karachi 709). 13. I have heard the arguments of both the parties and have perused the record. 14. The questions emerging for determination are:- (/) Whether Amanal Ali is entitled to transfer of disputed portion notwithstanding the fact that he did not lay the claim for its transfer under Scheme No. 8. (if) Whether Rafique Alam is entitled to take the benefit of possession of his father for transfer of disputed portion of house in his favour. (Hi) Whether the order of the Deputy Settlement Commissioner impugned in this petition is in contravention of order of remand passed by the High Court dated 4.11.1976. (/v) Whether Rafique Alam is not entitled to seek the benefit of extended definition of possession in view of non-clearance of rent. 15. Before I proceed to examine the afore-noted questions, I feel it appropriate to reproduce the relevant portion of his Lordship Mr. Justice M.E. Rana's judgment dated 4.11.1976. which is as follows:— "According to para 5 Scheme No. VIII under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the house should be such which was available to the applicant and was in his possession. To my mind, possession does not mean a continuous possession indefinitely. Possession is defined in Section 2(6) of the Act, as, possession obtained in pursuance of an order passed on or before the 20th Day of December, 1958, by Rehabilitation authority or any other officer authorised or permitted by the Central or Provincial Government. By a clarification made under the second proviso to the definition, possession would also include possession of a person who had been in undisputed occupation of the house since before 21.12.1958. It would mean that the petitioner was only bound to show that he was in possession upto 20.12 1958 and not afterwards. The possession of the petitioner upto the year 1954 is admitted by the respondent No. 2, but there is no clear finding made by the Deputy Settlement Commissioner whether or not petitioner continued in possession till 20th day of December, 1958. His simple observation that the petitioner was never in possession does not appear to be complete. The net result is that before the Form of the petitioner could be rejected, the Deputy Settlement Commissioner was bound to ascertain in clear terms that the petitioner was not in possession on or before the 20the day of December, 1958." 16. From the perusal of the afore-noted finding it is clear that the Deputy Settlement Commissioner was directed to ascertain in clear terms as to whether the petitioner was in possession of disputed portion on or before 20th December, 1958. Instead of following this instruction the Deputy Settlement Commissioner undertook a roving enquiry with respect to abandonment of possession on the part of the father of the petitioner. I am clear in my mind that the Deputy Settlement Commissioner went beyond the mandate of the order of this Court. On this very ground, the order of the Deputy Settlement Commissioner is manifestly without jurisdiction and is liable to(bej struck down. 17. Having determined that the order of the Deputy Settlement Commissioner is in excess of authority. I herein proceed to determine the question noted above on the basis of facts which are not in dispute. 18. It is apparent from the record that the father of the petitioner and father of respondent Amanat Ali were in possession of two portions. These two portions were given separate numbers by the Municipal Committee; that in 1952 they both were jointly allotted the portions of house in their possession. Refique Alam lived along with his father in the disputed portion. I am clear in my mind that Rafique lAlam was in possession of the disputed potion before crucial date i.e. 20lh [December, 1958 with his father. 19. Having come to afore noted conclusion the next point to be noticed is whether Rafique Alam is entitled to. its transfer under scheme No. VIII. To begin with it is noted that both Rafique Alam and Amanat Ali are non-claimants Displaced Persons from A/ad Jammu and Kashmir. Under scheme No. VIII the non-claimants refugees are entitled to transfer under para No. 6 and 7 of Settlement Scheme No. VIII. Under the amplified definition of possession Rafique Alam is entitled to seek advantage of possession of his father who obtained possession of disputed portion under the order of allotment by the competent authority. 20. In Mst. NoorJehan Begum v. Settlement and Rehabilitation Commissioner. Karachi and others (PLD 1963 (W.P) Karachi "W) it was held that n,>n-claimants can seek the benefit of possession of his parents provided t'h^re is no other applicant. In view of the ratio laid down 1 am clear in my mind that the arguments. of learned counsel for respondents are entirely misconceived and are, therefore, totally untenable. Refique Alam was entitled to take the benefit of possession of his father. 21. As regards the third contention that Rafique Alam cannot be transferred disputed portion on account of the circumstance of the non-payment of rent, it is to be noticed that no such objection was taken before the Settlement authorities. Therefore, I am clear in my mind that this point cannot be taken in the constitutional jurisdiction. 22. This point is to be looked from another angle. The clearance of rent by a non-claimant does not disentitle him to seek the benefit of extended definition of possession. The point came up in consideration in un-reported case Law Notes 1967 (NUC) Karachi, 1. In this case: "A" was declined the transfer of a shop by the Settlement Commissioner as he being a non-claimcnt had not cleared arrears of rent within the specified period, the property was, therefore, brought in the compensation pool for the purpose of auction. "A" in the writ petition had annexed a rent clearance certificate issued on 6th December 1963, showing that 'A' had cleared the arrears of rent upto 9th December, 1959. It was contended on behalf of the Settlement Department that under the amplified definition of possession, a person cannot be deemed to be in possession of any house or shop unless and until he clears the arrears of rent upto 30th September, 1959, before the target date. The learned counsel for the department relied upon the amplified definition and on a Judgment by Justice S. Muhammad Iqbal PLD 1964 Lahore 185. The amplified definition is divided into two portions. The part dealing with the question of deeming a person to be in possession is contained in the main body and only in possession is further required to clear the owners rent. His Lordship while referring to the observation made by Justice S. Muhammad Iqbal in uk above referred case opined that His Lordship Justice Iqbal has not laid down the proposition that if the rent is not cleared before the target date, the local or Non-claimant displaced persons would not be "deemed" in possession. Justice S.M. Iqbal has only observed that such person will not be eligible for the transfer of the property as long as he does not clear the arrears of rent." 21.1 am in complete agreement with the afore-noted enunciation of law. The authorities cited by the learned counsel for the petitioner and respondents proceed on distinguishable facts and there is no need to comment on them. 22. In the light of foregoing analysis, I am clear in my mind that the order > ! the Deputy Settlement Commissioner is illegal and has been passed without any lawful authority. The transfer of disputed portion in favour of Amanat Ali being in excess of his claim is to be held without jurisdiction and without any lawful authority. Accordingly I accept this petition, the impugned order is set aside. 23. Having already determined the entitlement of Rafique Alam, I do not feel the necessity to remand the case on the question of entitlement of Rafique Alam. It will amount to putting the parties to vortex of litigation again and will hamper the process of justice. Rafique Alam had already suffered enormously. 24. the paramount consideration in exercise of constitutional jurisdiction is to foster justice and right a wrong. Reference be made to Syed Ali Shall v. Abdul Saghir Klian Sherwani and others (PLD 1990 SC 504). I accordingly remand the case to Notified Officer who shall issue necessary transfer documents in favour of Rafique Alam. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 349 [Buhuwalpur Bench] PLJ 1990 Lahore 349 [Buhuwalpur Bench] Present: MUHAMMAD SHARIF, J MUHAMMAD SIDDIQ-Pctitioner versus DEPUTY COMMISSIONER & COLLECTOR, BAHAWALNAGAR and 2 others—Respondents Writ Petition No 1452/LHR of 1968, accepted on 27.2.1990. Proprietary Rights— —State land-Allotment of--Propriclary rights to-Grant of-Prayer for-Point for determination in this case, was whether or not area of petitioner is located within five miles of boundaries of Municipal Committee-Report of Patwari and Girdawar shows that this area is beyond a distance of 5 miles from Municipal Committee-Land has been granted to other lessees which is nearer to Municipal Committee as compared to land of petitioner-Held: It is a case of sheer injustice that petitioner has not been allowed to obtain proprietary rights-Petition accepted. [P.350&351JA&B O. Abdul Saltar, Advocate for Petitioner. Mr. Muhammad Akbar, Advocate for Respondents. Date of hearing 27.2.1990. JUDGMENT Muhammad Siddique petitioner was allotted land on 10.7.1959 under 'Grow More Food Scheme' for a period of five years commencing from Kharif 1959 and expiring in Rabi, 1964. The land in dispute measures 104 Kanals comprised in Rectangle No.138 fields No.l to 5 and 7 to 14 in Chak No.41/F, Tehsil Chishtian District Bahawalnagar. The Government ordered that proprietary rights should be given to the lessees of 'Grow Mere Food Scheme' and the condition was that the area must not be less than a distance of 5 miles from the outer limits of the Municipal Committee and 50% of the land should be made arable within three years. The proprietary rights were not granted to Muhammad Siddique petitioner by the Deputy Commissioner/Collector, Bahawalnagar on 2.12.1966. The petitioner Tiled an appeal against the said order which was rejected by the Additional Commissioner, exercising power of the Commissioner, Bahawalpur Division on 30.9.1967. The petitioner filed a revision petition before the learned Member, Board of Revenue, which too, was dismissed on 5.1.1968. A writ petition No.164/68 was filed in this Court and the petitioner was directed to move a revision petition before the learned Member, Board of Revenue. A review petition was also filed which was dismissed on 7.8.1968 on the sole ground that their tenancy was situated within 5 miles of the boundaries of the Municipal Committee, Chishtian. It was also held by the Member, Board of Revenue that the cultivation of 50% of the area was not material in the case of Muhammad Siddique petitioner. All these orders have been assailed in the instant writ petition. 2. The point for determination in this case was whether or not the area of Muhammad Siddiq petitioner is located within five miles of the boundaries of the Municipal Committee, Chishtian which according to Annexure-Q is a Second Class Municipal Committee. The report of the Patwari and Girdawar Ann-K shows that this area is beyond a distance of 5 miles from the Municipal Committee, Chishtian. Annexure-L also proves the same fact and this document has been signed by the S.D.O. Chishtian. It may be noted that this condition has further been relaxed by letter Annexure-N. In this letter in such schemes, the area has been further reduced to 3 miles from 5 miles of a 2nd Class Municipal Committee. It may also be noted that the land has been granted to the other lessees, which is nearer to the area of the Municipal Committee as compared to the land of the petitioner as evinced from Annexure-M, the map. When a person, whose tenancy is nearer to the area of the Municipal Committee has been granted proprietary rights, then it is a case of sheer injustice with Muhammad Siddique petitioner who has not been allowed to obtain the proprietary rights of the disputed land. 3. In this case it was pointed out with reference to Annexure-N that the area of 5 miles has been reduced to three miles. Notification No.3024-72/3946-ACL- III, dated 12.12.1972 applies to this case. Muhammad Ayub and another Vs. Muhammad Yaqoob and another (PLD 1975 Lah. 445) has been quoted on behalf of the petitioner .which lays down that the appellate Court while disposing of an appeal can take into consideration subsequent events including any amendment in legislation which may have occurred during pendency of appeal and appeal should be decided in accordance with those events. This authority is not applicable to the facts in hand because amendment in legislation is of two types. Substantive and Procedural. Substantive legislation can be considered during the pendency of an appeal and not the procedural one. Secondly, the above quoted Notification cannot be given retrospective effect and is inconsequential on the rights of the petitioner. The petitioner has otherwise succeeded in this writ petition on the point that his area lies beyond a distance of 5 miles from the Municipal Committee. I, therefore, accept this writ petition and quash all the impugned orders and direct the respondents to grant proprietary rights to the petitioner. I make no order as to costs. (MBC) Petition accepted..

PLJ 1990 Lahore 351 PLJ 1990 Lahore 351 Present: FAZAL KARIM, J RAMZAN THROUGH HIS GENERAL ATTORNEY-Petitioner versus SOHRAB KHAN and anolhcr-Respondcnts Civil Revision No. 1411 of 1981, dismissed on 28.1.1990 (i) Civil Procedure Code, 1908 (V ofl908)~ -—O.III Rr. 1 & 4 read with O.XLI, R.l-Two general attorneys-Joint authorization of—Appeal presented by one general attorney—Whether appeal was competently filed—Question of—Two general attorneys were authorised to perform acts on behalf of petitioner which were enumerated in detail-­ Language of power of attorney is plain that both general attorneys would exercise authority delegated to them, jointly and not jointly and scvcrally- Non-exercise of authority by agent is not a curable irregularity as it goes to root of matter—Held: As authority in favour of both general attorneys was joint authority, appeal presented and Wakalat Nama signed by one general attorney only must inevitably follow that appeal was not competently presented and was liable to dismissal on this short ground. [Pp.354,355&356]A,B,C&D Halsbury's Laws of England, Fourth Edition Para 727, and PLD 1961 (WP) Karachi 335 rcl. (ii) Limitation— —Declaratory suit-Limitation for-Whether suit was time-barred-Question of —Contention that lime began to run against plaintiff from date of mutation as respondent No. 1 was recorded as present before revenue officer and had knowledge of mutation—Neither of plaintiffs could have challenged sale in life time of their father on ground that sale was obtained by fraud and was without consideration-Father of respondents died in October 1972 and they succeeded to his estate and right to get sale declared ineffective accrued to them-Thcy could not sue for such declaration in life time of their father-Held: Najboo (father of respondents) died in 1975 and suit was filed in l l

75 (which was not time-barred). [Pp.356&357]E&F PLJ 1981 SC 420=PLD 1981 SC 165 not relevant (Hi) Specific Relief Act, 1877 (I of 1877) —S.42--Declaration—Suit for—Evidence—Appreciation of—From evidence, it does appear that Najboo (father of respondents) had got a mutation attested in favour of respondent No. 1 but question is whether there was a sale in favour of petitioner, and if so, whether sale was for consideration—PW1 said that no admission of sale or acknowledgment of payment of sale consideration was made in his presence by Najboo—Respondent No. 1 denied that his father had sold land to petitioner or had received any sale consideration-Held: Even otherwise, it does not stand to reason that Najboo had sold his land to his only son (respondent No. 1) and to his nephew (petitioner)—Held further: On merits, suit was rightly decreed—Petition dismissed. [P.358]G,H&J Cli Bashir Ahmad Chohan, Advocate for Petitioner. Mr. Zainul Abidin, Advocate for Respondents. Date of hearing: 17.2.1990. judgment This was a suit for a declaration by Sohrab Khan and Mst. Chando, plaintiffs, respondents herein, that the mutation of sale of the land in suit in favour of Muhammad Ram/an, defendant, now petitioner, was obtained by fraud, was without consideration and was, therefore, ineffective as against the plaintiffs rights as owners. The suit was decreed ex-parte by the learned Civil Judge's judgment dated 24.10.1975 and the petitioner's appeal against the judgment and decree was dismissed by the judgment of the learned Additional District Judge, Lahore, dated 17.10.1981. 2. By this petition under section 115 of the C.P.C., Muhammad Ramzan, defendant, seeks the revision of the judgments and decrees of the learned Courts below. 3. The land in suit belonged to Najboo who had died in October, 1972; the plaintiffs Sohrab Khan and Mst. Chando are his sons and daughter respectively. Muhammad Ramzan, defendant, is a nephew of Najboo. By the mutation dated 28.5.1965, Najboo had purportedly sold the land in suit in favour of Sohrab Khan, plaintiff, and Muhammad Ramzan, defendant, for Rs.4000/-, the share of Sohrab Khan being 2/3rd and that of Muhammad Ramzan being l/3rd. 4. This suit was brought on 17.1.1975. 5. The plaintiffs case is that some months before the suit, the defendant approached Sohrab Khan, plaintiff, and demanded 1/3 rd share of the produce of the land in suit and disclosed that some nine years earlier, l/3rd of the land had been sold to him by Najboo. The plaintiffs case is that the mutation of sale was obtained by fraud and misrepresentation; that the attestation of the mutation was obtained by producing some other persons for Najboo arid Sohrab Khan and that Najboo had never entered into a sale transaction with Sohrab Khan, plaintiff, or Muhammad Ramzan, defendant and had never received the sale consideration. It was said that during his life, Najboo had remained in possession of the land; after his death, the land had been in the possession of Sohrab Khan. 6. Cause of action for the suit, it was pleaded, arose a few months before the suit when the defendant demanded the share in the produce of the land in suit. 7. The defendant appeared and filed the written statement contesting the suit. He asserted that Najboo had sold the land to him and Sohrab Khan, plaintiff; he also claimed that he had been in possession of l/3rd of the land in suit. He denied that the sale transaction was not known to Sohrab Khan, plaintiff, or that he had come to know of it when he demanded his share in the produce of the land in suit. 8. The written statement, it should be mentioned here, was filed on 8.2.1975 when the suit was being tried by Salamat AH, Civil Judge. Thereafter, by administrative orders, the suit was transferred to Mr. Akhtar Naqi Naqvi, Civil Judge, and then to Mr. Faiz Talib, Civil Judge. It is common ground between the parties that from the Court of Mr. Faiz Talib, Civil Judge, notices were issued for 20.9.1975 and that the petitioner's counsel was duly served for that date. No body had appeared for the petitioner on 20.9.1975 when he was proceeded ex-parte. The suit was then adjourned for ex-parte proceedings to 24.10.1975 when after recording ex-parte evidence, the learned Civil Judge decreed the suit. 9. The learned Additional District Judge dismissed the petitioner's appeal on the ground that "there is no explanation on the record with regard to the absence of the counsel for the appellant," and that in the circumstances of the case, the petitioner was rightly proceeded ex-parte. This is a finding of fact. Learned counsel for the petitioner was unable to show that this evidence suffers from any illegality or irregularity. 10. Before the learned Additional District Judge, one of the grounds of appeal was that the suit was liable to dismissal on its merits. It appears that pecific grounds were taken in the memorandum of appeal to that effect; that according to the petitioner, the suit should have been dismissed on its merits was pressed as a ground of attack before the learned Additional District Judge also receives support from the written arguments which are part of the file of the learned Additional District Judge. The learned Additional District Judge, however, did not, in dismissing the petitioner's appeal, touch the merits of the suit. 11. The appeal before the learned Additional District Judge was opposed by the plaintiffs, among others, on the ground that the memo of appeal had been presented by Hassan Din, a general attorney of Muhammad Ramzan; that the deed, which gave him the authority to act on behalf of Muhammad Ram/an was in favour of two attorneys, namely, Hassan Din and Muhammad Bashir; that the authority so given was to act jointly and that, therefore, the appeal by one attorney, Hassan Din, was not competent. 12. This ground, it is obvious, went to the root of the matter but, if I may say so, it received a short shrift at the hands of the learned Additional District Judge. After noticing the contentions of the parties' counsel, the learned Additional District Judge was content to say that in his view" the objection raised by the learned counsel for the respondent is not more than an irregularity. He has admitted to this extent that one of General Power of Attorney appointed the counsel for the appellant." 13. Learned counsel for the respondents argued that the learned Additional District Judge took a wrong view of the law in holding that the appeal by Hassan Din attorney was competent and the failure of the other attorney to join with him was a mere irregularity. Learned counsel for the petitioner on the other hand referred to Muhammad Senvar alias Fcroze All . Abdul Chant and 7 others (19X0 C.L.C. 946) and supported the view of the learned Additional District Judge. 14. The appeal before the learned Additional District Judge was presented on 12.12.1975. The general power of attorney executed by Muhammad Ram/un, petitioner, was dated 22.7.1-975; by it, Hassan Din and Muhammad Bashir were constituted as general attorneys of Muhammad Ramzan. The acts that they were authorised to perform on behalf of Muhammad Ramzan were enumerated in detail and it is of great significance to notc-for it gives an indication of the intention of the donor Muhammad Ram/am—that each and every act that they were authorised to perform, they were authorised to perform jointly. In the context of the facts of this case, it is also of some importance to mention that the authority so delegated to the attorneys by Muhammad Ramzan was a permanent authority for the deed expressly provided that the donor Muhammad Ramzan would have no power to cancel the power of attorney. The language of the power of attorney being plain and it being obvious that the parties to the power of attorney took great pains to make their intention manifestly clear that the two attorneys. Hassan Din and Muhammad Bashir, would exercise the authority delegated to them jointly and not jointly and severally, all that the Court can do is lo give effect to that intention. 15. That in such a case, the attorneys or co-agents must act jointly or not at all, is vouched by the following statement of the law in Halsbury's Laws of England, Fourth Edition, para 727 which reads: "A principal may give authority to co-agents to act for him, cither jointly, or jointly and severally. A mere authority to act, without further specification, is a joint authority, and can be acted upon only by the co-agents jointly; but an authority given jointly and severally may be acted upon by all or any of the co-agents so as to bind the principal." 16. Learned counsel for the respondents cited Jaffar Klian v. Muhammad Achar (PLD 1961 (W.P.) Karachi 335); that was a case where a contract was entered into between one promisor (A) and two promisees (B and C) but a suit based on a claim arising out of the contract was brought only by B; in the plaint it was nowhere alleged by him that the other promisee (C) had assigned his own rights to him or that he was not joined as a party to the claim arising out of the contract for some other cogent reasons. It was held that the contract could not be enforced by (B) alone. The principle enunciated in the precedent case, in my view, applies equally to the facts of this case to which I return immediately. 17. The appeal was presented before the learned District Court by Muhammad Ramzan son of Kalu, petitioner, "through Hassan Din, general attorney". The wakalat nama in favour of Ch. Bashir Ahmed Chohan, Advocate, was signed only by Hassan Din on behalf of Muhammad Ramzan and the memorandum of appeal was signed by Ch. Bashir Ahmed Chohan, Advocate only. Though the objection to the competence of appeal was taken at a very early stage, yet neither Mohd Ram/an nor the other attorney, Muhammad Bashir, came forward to sign the memorandum of appeal. Nor was it the case of Hassan Din that it was by inadvertence that Muhammad Ramzan or for that matter Muhammad Bashir had not signed the wakalat nama in favour of Ch. Bashir Ahmed Chohan, Advocate. 18. Learned counsel for the petitioner relied upon Muhammad Sarwar v. Abdul Ghani and 7 others (1980 C.L.C. 946) before the learned Additional District Judge and he relied upon the same precedent case before me. That case was, however, decided on, and is authority for, its own facts. The appeal was filed by Ch. M.A Rehman, Advocate in the Court of the District Judge, Gujranwala. Neither the memorandum of appeal nor the wakalat nama, attached with the appeal, was signed by the appellant. However, both these documents had been signed by his counsel. The appeal was put up before the learned District Judge on the next day when only Ch. M. A. Rehman, Advocate, appeared. On the next date, viz. 4.7.1958, the appellant had appeared in person. Thereafter, the appeal was adjourned on a number of times. The appeal was dismissed on the preliminary objection that Ch. M.A. Rehman, Advocate, did not hold a power of attorney on behalf of the appellant and there was no proper memorandum of appeal before the Court. It was held that the main purpose of Order III, rules 1 and 4 and Order 41, rule 1 of the C.P.C." is to ensure that suit or appeal, as the case may be, has been preferred by a recognized agent or pleader on behalf of the party concerned. The provisions that authority in favour of a pleader should be in writing aims at eliminating every possibility of confusion, fraud or exploitation, so as to make sure that no harm is caused to the genuine party. If circumstances of a case show that a party has genuinely and actually engaged a lawyer and has given him due instructions who has acted according to them then even in the absence of such authority being in writing proceedings conducted by such lawyer on behalf of his client would not become invalid." It was found as a fact that Ch. M.A. Rehman Advocate had due instructions though oral from the appellant to present the memorandum of appeal, it was in these circumstances that it was held that the presentation of the appeal "amounts to an irregularity which can be cured in law." 19. The distinction thus is between a mere inadvertence to sign a memorandum of appeal or wakalat nama by an appellant and the non-exercise of the authority to act by his agent; the former may, in the given facts of a case be a mere curable irregularity, but the latter is not, for it goes to the root of the matter. Suppose that Hassan Din had, on the basis of this power of attorney, sold the land of Muhammad Ramzan acting singly. Undoubtedly, the sale would be void. There appears no reason why the result of his acting singly in presenting the memorandum of appeal should be different. Logically, the result must be the same in both the cases. It must follow inexorably that the act of Hassan Din was void and consequently non-existent in law, for nobody can build anything on nothing. 20. As observed above, neither Muhammad Ramzan, petitioner, nor the other attorney Muhammad Bashir came forward with a wakalat nama in favour of Ch. Bashir Ahmed Chohan, Advocate. The position taken up in the written arguments of the petitioner before the learned Additional District Judge was that "one of the attorneys' signatures are on the power of attorney whereas other attorney, namely, Bashir Ahmed's (?) signatures are not on the power of attorney. This means that the counsel for the appellant was authorised to file the appeal." Thus, it was not the petitioner's case that he had authorised Ch. Bashir Ahmed Chohan, Advocate, to act on his behalf. As the authority in favour of Hassan Din and Muhammad Bashir was joint authority, and the appeal was presented and the wakalat nama in favour Ch. Bashir Ahmed Chohan, Advocate, was signed by Hassan Din only, it must inevitably follow that the appeal was not competently presented. In other words, there was no proper appeal before the learned District Court and it was liable to dismissal on this short ground. 21. I am in agreement with the petitioner's counsel that if on the ex-parte evidence led by the plaintiffs, the suit did not merit to be decreed, it should have been dismissed and that the learned Additional District Judge could not dispose of the appeal before him without going into the merits of the plaintiffs' case. Learned counsel for the petitioner argued that the suit was on the face of it barred by time; that this objection was expressly taken in the written statement; that the ex-parte evidence of the plaintiffs was wholly inconsistent with the plaintiffs' claim, as laid in the plaint. In this connection, he pointed out that although the plaintiffs' case in the plaint was that the sale mutation dated 28.5.1965 was obtained by producing fictitious persons for Najboo, deceased, and Sohrab Khan plaintiff, yet in the evidence it was admitted that Sohrab Khan was present when the mutation in question was attested. 22. As to the contention regarding limitation, learned counsel for the petitioner thought that time began to run against the plaintiffs from the date of mutation viz. 28.5.1965, for Sohrab Khan was recorded as present before the revenue officer and had, therefore, the knowledge of the mutation. It seems to me, however, that neither of the plaintiffs could have challenged the sale in the life time of Najboo on the ground that it had been obtained by fraud and misrepresentation or that the sale was without consideration. Najboo died in October, 1972, and it was then that the plaintiffs succeeded to his estate, and the right to have the sale declared ineffective as against their right accrued to them. Learned counsel for the petitioner cited Msl. Izzat v. Allah Dilia (PLJ 1981 Supreme Court 420=PLD 1981 S.C.165). In that case, the plaintiff sued for a declaration that a sale deed dated 11.2.1952 was void and unlawful on account of fraud and lack of consideration and that the mutation based on the registered deed was also illegal. The plaintiffs case was that her husband had "defrauded her into the execution of the sale by misrepresenting to her that it was a special power of attorney." The defendant controverted this allegation and raised the plea of limitation. The learned trial Court held that the plaintiff had continued to be in possession of land; that limitation was governed by Article 120 of the Limitation Act and would commence from the date of the registration of the sale deed (11.5.1958) and that the suit was within time because the time would run against the plaintiff from 19.5.1969 when defendant got sanctioned a mutation with the object of denying possession and ownership of the plaintiff. After referring to Hamid Begum v. Murad Begum (PLD 1975 S.C. 62) and Shamshad All Shah v. Hassan Shah (PLD 1964 S.C. 143), it was held that the relief claimed with respect to the registered deed was only ancillary, therefore, Articles 91 and 95 of the Limitation Act were not attracted; that the date of the accrual of the cause of action in that case was not necessarily rclatable to the dale of the deed, or the knowledge of the plaintiff with regard to the fact that she had been defrauded; that the essential relief claimed was with regard to the maintenance of possession and issuance of injunction in this behalf against the defendant and therefore, the cause of action arose to the plaintiff first on account of the effort made by the defendant to disturb the then existing status-quo through he sanction of the mutation viz. 19.5.1969 and then from the plaintiffs' disclaimer of the right of respondent and warning him against any interference regarding the suit land. I do not, therefore, think that this case in any way helps the petitioner; as has been noticed above, the plaintiffs claim to be the owners in possession and they could not sue for such a declaration in the life time of Najboo. They felt aggrieved for the first time a few months before the suit when the petitioner came forward with the claim that he was the owner to the extent of l/3rd share in the estate of Najboo. As has been noticed above, Najboo died in October, 1972, and the suit was instituted on 17.1.1975. 23. As to the parties' evidence, led before the learned trial Court, the consideration of the plaintiffs' evidence must be pre-faced by the very important fact that the real aggrieved person was Mst. Chando, plaintiff. She it was who had been wholly deprived of any share in the estate of Najboo by reason of the mutation of sale dated 28.5.1965. Sohrab, plaintiff, was entitled to a 2/3rd share in the estate of Najboo and that share he had obtained by the sale mutation. It was the remaining l/3rd, that is the share of Mst. Chando, which had gone to Muhammad Ramzan , defendant. 24. The sale mutation is Ex. P. 1. It shows that Najboo, Muhammad Ramzan and Sohrab Khan had appeared before the Patwari on 19.3.1965 and reported that Najboo had sold the land to Sohrab Khan and Muhammad Ramzan. The mutation was attested on 28.5.1965. The order of the revenue officer shows that Karima Lambardar was present and so were Najboo vendor and Muhammad Ramzan and Sohrab Khan, vendees. Before the revenue officer, the vendor admitted that he had received Rs. 4000/- as the sale consideration and had sold the land to Sohrab Khan and Muhammad Ramzan, in the shares mentioned above. The copy of khasra girdawii (Ex. P.3) shows that the land had remained in the cultivating possession of tenants. 25. The oral evidence consisted of the statements of Sohrab Khan, plaintiff, and four witnesses, namely, Karima, Jeer Khan, Meraj Din and Kalay Khan. Karima (PW.l) was the Lambardar who was present before the revenue officer at the time of the attestation of the mutation. He said that he had identified Najboo; that with Najboo was also present the petitioner Muhammad Ramzan; that Sohrab Khan was not present at that time. He added that in his presence, Muhammad Ramzan had not paid any money to Najboo. He further stated that no statement was made in his presence; all that he had done was to identify Najboo. Jeer Khan (PW.2) stated that he had been cultivating the land as a tenant and had been paying batai to Najboo; he had handed over the possession of the land to Sohrab Khan. Muhammad Ramzan, petitioner, he added, had never demanded the share of the produce. Meraj Din (PW.3) had also been cultivating the land; he had handed over the possession to Najboo and Jeer Khan P.W. Kalay Khan (PW.4) said that Najboo had told him that he had a mutation attested in favour of Sohrab Khan. Najboo, he added, was eighty years of age and Muhammad Ramzan had the mutation attested in collusion with the Patwari. The land, he further stated, had been in the possession of Sohrab Khan. As his own witness, Sohrab Khan stated that the land in suit was in his possession through the tenants; that it had never been in the possession of Muhammad Ramzan, petitioner. He further stated that his father had the mutation No. 478 attested in his favour, that he had never told him that the land had been sold to any body else. His father had not received any sale consideration from Muhammad Ramzan. According to him, he came to know that the mutation was also in favour of Muhammad Ramzan when the latter demanded his share. 26. Now from this evidence, it does appear that Najboo had a mutation attested in favour of Sohrab Khan but the real question was whether there was a sale in favour of Muhammad Ramzan, petitioner, and if so, whether that sale was for consideration. Karima (PW.l) said that no admission of sale or acknowledgment of the payment of the sale consideration was made in his presence by Najboo. His admission that Muhammad Ramzan was present did not, therelore, necessarily mean that there was a sale in favour of Muhammad Ramzan. Similarly, Sohrab Khan denied that his father had sold the land to Muhammad Ramzan or had received any sale consideration. 27. Otherwise too, it did not stand to reason that Najboo had sold his land to his only son Sohrab Khan and to his nephew Muhammad Ramzan. 28. For these reasons, I am of the view that on the merits, the suit was rightly decreed. The revision petition is dismissed but as the parties are closely related inter-se, they are left to bear their own costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 358 PLJ 1990 Lahore 358 [Bahawalpur Bench] Present: CM. FAZAL KARIM, J CALTEX OIL (PAKISTAN) Ltd-Petitioner Versus Mian ASHIQ MUHAMMAD FAIZ and 2 others-Respondents Writ Petition No 472/BWP of 1988, accepted on 17.4.1990. (i) Jurisdiction— —Jurisdiction-Meanings of-Jurisdiction in its narrow and original sense, means that court or Tribunal is entitled to enter on enquiry in question or to entertain a suit or other proceedings-Question of jurisdiction is determinable at commencement, not at conclusion of enquiry—An act is without jurisdiction when it is done by a person or authority not competent in law to enter upon enquiry or to entertain proceedings-This is known as absence or want of jurisdiction-A Tribunal or authority having jurisdiction to enter upon an enquiry or to entertain a proceeding, when exceeds its jurisdiction or goes out of its jurisdiction during proceedings by doing something which it is not authorised to do, is called excess of jurisdiction—Held: If a court or tribunal had no jurisdiction to enter upon enquiry or to entertain proceedings, then fact that it had jurisdiction when impugned order was made, would not make order with jurisdiction. [Pp.362&363]A&B (1959) All ER 433= (1959)AC 663 and 1973 SCMR 62 rel. (1969) 2 AC (HC) 147, (1984) 3 All ER 908 and PLD 1983 SC 457 ref. (ii) Urban Rent Restriction Ordinance, 1959 (WP Act VI of 1959)-- —.S.4--Fair rent-Fixation of-Whether Rent Controller had jurisdiction-­ Question of-Admittedly on date of application under Section 4 of Ordinance, leased property was not an urban area and Rent Controller had no jurisdiction to entertain application and enter upon enquiry under section 4 of Ordinance-­ He also lacked territorial jurisdiction as leased property was beyond his territorial limits as Rent Controller-Held: In fixing fair rent for different periods, courts below acted contrary to plain language of Sections 4 and 5 and, hence, exceeded authority confided to them-Held further: Judgments of Rent Controller and Additional District Judge must be held to be without jurisdiction-Petition accepted. [Pp.363&364]C,D,E,F&G CVi. Sa\ccr Ahmad. Advocate for Petitioner. Mr. M Juffar Hashmi, Advocate for Respondent No 1. Date of hearing: 17.4.1990 JUDGMENT This is a petition under Article 199 of the Constitution by Caltex (Pakistan) Limited, seeking to have it declared that the order of the learned Rent Controller, dated 28.10.1986, and the order of the learned Additional District Judge, Bahawalpur, as appellate Authority, under the Punjab Urban Rent Restriction Ordinance, 1959, confirming the Rent Controller's order dated 28.10.1986, were without lawful authority and of no legal effect. 2. The facts, upon which the orders of the learned Rent Controller and the learned appellate Authority had proceeded, are not in dispute. By means of a registered deed of lease dated 2.8.1971, the petitioner obtained the lease of land bearing Khasra Nos. 9Alf, 9Bai, 9Jim, 12Alf and 12Jim of rectangle No.128/7 for a period of 20 years at the rate of Rs.450/- per mensem. From the petitioner the respondent, Mian Ashiq Muhammad Faiz, (hereinafter to be referred to as the landlord), received a sum of Rs.10,800/- by way of advance. 3. On 17.9.1981, the landlord made an application under Section 4 of the Punjab Urban Rent Restriction Ordinance, 1959 (to be called the Ordinance), praying for the fixation of fair rent of the leased property. It was prayed that the fair rent of the land be fixed at Rs.1000/- per mensem. The petitioner opposed the application by filing a written statement, among others, on two preliminary objections; i) that "the suit land is situated in Mauza (Sheikh Roshan) which is a rural area and thus it is not an urban immovable property so this Court has no jurisdiction to hear this case as the W.P.U.R.R. Ordinance 1979 is not applicable in the present case to the suit land" and ii) that "the petitioner is legally estopped by his act and conduct (under the written agreement of lease) from filing the present petition". 4. Five issues reflecting the parties' pleadings were formulated and tried; three of them which are relevant to the controversy herein raised arc issues No. 2, 3 and 4; they are: Issue No. 2 Whether the premises in question does not attract the mischief of W.P.U.R.R. Ordinance? OPR. Issue No. 3 Whether the court has no territorial jurisdiction to entertain the petition in view of objection No. 3 of written reply? OPR. Issue No. 4 Whether the petitioner is estopped on account of his conduct to bring instant petition OPR. 5. The learned Rent Controller, by his judgment dated 28.10.1986, held on issue No. 2, that the petitioner had agreed by the deed of lease "to observe and perform all municipal rules and regulations pertaining to the suit property. In case, the suit property was not situated within the limits of municipal committee Ahmad Pur East, what was the reasoning to insert such a provision in Exh. P-l". On issue No. 3, there was no evidence. As to issue No. 4, the learned Rent Controller was content to observe that the landlord had "a legal right to claim enhanced rent once in three years at the rate of 25% and there is no estoppl against law". 6. The admitted position is that at the date of the institution of the application under section 4 of the Ordinance, viz. 17.9.1981, leased premises, subject-matter of the application, was situated outside the municipal limits of Ahmad Pur East and that it was by a Notification issued by the Commissioner, Bahawalpur Division, (to be referred to as the Notification) that "in exercise of the powers conferred by Section 6(5) of the Punjab Local Government Ordinance, 1979, delegated to him vide Government of the Punjab, Local Government and Rural Development Department Notification No. S.IH/6-46-81 dated 24 th August, 1981" that the limits of the municipal committee Ahmadpur East were w.e.f. 1st July, 1982 extended to the area specified in the schedule appended thereto. The area so extended included Khasra No 128/7 partly". It will be fair to the learned Rent Controller to state that though he did not mention the Notification in his discussion under the relevant issue, namely, issue No. 3, yet he mentioned that Notification in his discussion under issues No. 5&6, issue No. 5 being whether the landlord "is entitled to get rent at enhanced rate, if so, then what is the fair rent and from which date the petitioner is entitled to get it". In the view of the learned Rent Controller, "it is apparent that the alleged petrol pump has been included in urban property since 1.7.1982, so the petitioner can obtain excessive rent from 1.7.1982 not from the date of rent deed, according to which the rate of rent was fixed at Rs.450/- per month". He, therefore, proceeded to allow" excessive rent at the rent (?) of 25% from 1.7.1982 to 30.6.1985 which comes out Rs. 562.50 and from 1.7.1985 to onward at the rate of Rs. 703.12 which will remain in force upto 1.7.1988 and then with similar enhancement". The petitioner was direct "to pay the difference of rent of the said period". 6. The learned Additional District Judge referred to the Notification and observed that rectangle No.128/7 partly "was included in the limits of Municipal Committee, Ahmadpur East"; that according to the record of rights for the year 1980-81, the landlord was the owner of the leased property and held that the petitioner had not led evidence to show that "the part of rectangle No.128/7 shown to have been included in the limits of Municipal Committee did not include the property on which the petrol pump in question was installed, despite the fact that onus of issue was on him". Dealing with the contention that the petitioner "was disentitled to enhancement in the rent in view of the stipulations contained in Exh.P-1" the learned Additional District Judge held, relying upon Section 5 of the Ordinance, that "where the rent of any building has been determined by an agreement between the land-lord and tenant, no increase in the fair rent shall be permissible within a period of three year from the date of the agreement. In other words, in the present case, the increase in the rent was not permissible only within a period of three years from the date of the agreement i.e. 2.8.1971". As the present application had been instituted on 26.7.1981 "long after the expiry of the aforesaid 3 years stipulated period",the landlord was, so held the learned Additional District Judge, "not precluded from claiming the enhancement in the rent". 7. The object of enacting the Ordinance, as stated in the preamble, was "to restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province of Punjab". Section 1 of the Ordinance says and says expressly that "it extends to all the urban areas in the Punjab except the Tribal areas". The expression "urban area" is defined in Section 2, clause (j) to mean "any area administered by a municipal corporation, a municipality, a municipal committee, a town committee or a notified area committee". 8. Section 4 of the Ordinance empowers the Rent Controller, on an application by the tenant or landlord of a building or rented land, to "fix fair rent for such building or rented land after holding such enquiry as the Controller thinks fit". It enumerates by its sub-section (2), the factors which the Rent Controller has to take into consideration in fixing the fair rent. Sub-section (3) of that section provides that "the fair rent fixed under this section shall be payable by the tenant from a date to be fixed by the Controller not earlier than the date of filing the application" and by its sub-section (4), it enacts that "if the fair rent fixed under subsection (2) exceeds the rent being paid by the tenant on the date of the filing of the application under this section, the maximum increase of rent payable y the tenant shall not be more than 25% of the rent already paid by him". 9. Section 5, subsection (1) of the Ordinance reads:- "When the fair rent of a building or rented land has been fixed under section 4, or where the rent of any building or rented land has been determined by an agreement between the landlord and the tenant, no further increase in such fair rent shall, during the continuance of tenancy be permissible within a period of three years from the date fixed by the Controller under sub-section (3) of section 4, or from the date of the agreement, as the case may be, except in cases where some addition, improvement or alteration has been carried out at the landlord's expense, and at the request of the tenant". 10. Learned counsel for the petitioner argued that as at the date of the institution of the application under Section 4, the leased property was not within the municipal limits and hence not an urban area, the learned Rent Controller had no jurisdiction to entertain the application or to hold any inquiry; according to him, therefore, the judgment of the learned Rent Controller and the learned Additional District Judge were without jurisdiction. He further argued that even if the Notification had the effect of giving jurisdiction to the Rent Controller, it had to be shown clearly that the leased property had been included within the municipal limits by the Notification and as this was not done, the learned Rent Controller was wrong in proceeding on the basis that the leased property was within the municipal limits. He also contended that the learned Rent Controller was wrong in law in allowing 25% of the agreed rent of Rs.450/- without first determining the fair rent and in any case, he had no jurisdiction to fix one rate of rent for the first three years and different rates of rent for the subsequent years. 11. Learned counsel for the landlord advanced the view that the leased properly had been included in the municipal limits by the Notification and that had the effect of giving jurisdiction to the Rent Controller. He strongly relied upon Haji Ibrahim v. S.Rehmalullah (1985 SCMR 241) for his contention that the ' Rent Controller was competent to take into account the subsequent event of the Notification extending the municipal limits to the leased property and to do complete justice between the parlies and to mould relief according to altered circumstances in the interest of justice. He was also of the view that it was within the powers of the learned Rent Controller to allow the increase in rent as he did. 12. Now jurisdiction, in ils narrow and original sense, means that the Court or Tribunal is entitled to enter on the inquiry in question or lo entertain a suit or other proceeding. The question of jurisdiction, when the expression is used in that sense, is determinablc at the commencement, not at the conclusion, of the enquiry. Thus, an act is without jurisdiction when it is done by a person or authority not competent in law to enter upon the enquiry or to entertain the proceeding resulting in the act complained of. This is known as the absence or want of jurisdiction. There is then the extended sense of jurisdiction; a tribunal or authority may have the jurisdiction to enter upon an enquiry or to entertain a proceeding, yet, it may exceed its jurisdiction or go outside its jurisdiction during the course of the proceeding by doing something which it is not authorised by law to do or by making an order which it is not authorised by law to make. That is what is called excess of jurisdiction. It is well settled by authority lhal absence or want of jurisdiction is determinable at the commencemenl, not at the conclusion, of the enquiry and excess of jurisdiction is determinable during the course of or at the end of the enquiry. (See Baldwin v. Patents Tribunal (1959) All ER 433 at 448= (1959) AC 663; Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu KJian and another (1973 SCMR 62). 13. The concept of jurisdiction, in ils original and exlendcd sense, has been well-recognized; it has been well-understood since that already classic case of Anisminice Ltd. v. Foreign Compensation Commission (1969) 2 AC (HC) 147). That case has evoked much debate and considerable criticism in England and other countries (Sec, for instance, the observations of Muhammad Haleem C.J. in Fauji Foundation and another v. Shamim-iir-Rehman—PLD 1983 S.C. 457 at 548), particularly for disregarding the declared intention of Parliament; yet, its authority so far as the concept of jurisdiction is concerned has not been shaken; it was re-affirmed in a recent case namely, McC v. Mullan~(1984)~3 All ER 908). 14. From the principle that jurisdiction is determinable at thei commencement and not at the end of the enquiry emerges another principle, namely, that if a Court or Tribunal had no jurisdiction to enter upon the enquiry or to entertain the proceeding, then the fact that it had jurisdiction when the impugned order was made would not make the order with jurisdiction. This can be illustrated by two cases of high and respectable authority. In Lcdgard v. Bull (1887) 12 LA. 134 (P.C.), a case decided by the Judicial Committee of the Privy Council, a suit for damages and injunction for infringement of a patent was filed in a subordinate court, which had no jurisdiction to entertain it. Later, it was transferred to the District Court, which was competent to entertain such suits. But as the suit had initially been instituted in a Court, which had no jurisdiction to entertain it. it was held that the decision of the District Court was without jurisdiction. In Mannu Khan's case, an Additional Claims Commissioner, Mr. Ghulam Hyder Moghul. entertained proceeding in the exercise of revisional powers, which he did not possess, but during the pendency of those proceedings, he had been delegated those powers, so that by the time, he made the order, cancelling the allotment, he had those powers. It was held that "it is difficult to accept the proposition that all the proceedings taken by Mr. Moghul, although without jurisdiction, were sanctified because before he issued his final orders, he was vested with necessary powers". The order was declared to be without jurisdiction. 15. This was, therefore, a case, in which admittedly at the date of the application under Section 4 of the Ordinance, the leased property was not an urban area and in which the Rent Controller had no jurisdiction to entertain the application and to enter upon the enquiry under Section 4 of the Ordinance. He had no jurisdiction to entertain the application and to enter upon an enquiry both because he had no jurisdiction over the subject-matter and because he lacked territorial jurisdiction. He lacked jurisdiction over the subject-matter, for the leased property was not an urban property and he lacked territorial jurisdiction because it was beyond his territorial limits as Rent Controller. In Riazul Hassan v. Hidayat Ullah (PLD 1975 Lahore 841) also a case under Section 4 of the Ordinance, the property in dispute was situated within the municipal limits when the application under Section 4 was made. During the pendency of the application, however, a Notification declaring that the property i c rural area was made. It was held that "the doctrine that the state of things existing at the time of institution of the suit is sufficient to determine the jurisdiction has no application where the question is one of jurisdiction over the subject-matter. Such jurisdiction must exist throughout the proceedings". To cases of want or lack of jurisdiction, as this case was, the principle enunciated in Haji Ibrahim's case does not, in my opinion, apply. That principle is that "every Court has an inherent power to adopt methods with a view to avoid multiplicity of proceedings to shorten litigation, to do complete justice between parties and mould relief according to altered circumstances in larger interest of justice and cases of compulsive effect of a change in law affecting either jurisdiction of Court or relief to be granted to parties". This principle, if I may venture to say, proceeds on the basis that the Court in whom such inherent power is recognized to vest, has had jurisdiction of the subject-matter throughout the proceedings. 16. That the date of the filing of the application had a material bearing upon the question of jurisdiction is highlighted by Section 4 itself; by providing in subsection (3) that "the fair rent fixed under this section shall be payable by the tenant from a date to be fixed by the Controller not earlier than the date of filing the application" and by providing in subsection (4) that "if the fair rent fixed under subsection (2) exceeds the rent being paid by the tenant on the date of the filing of the application under this section, the maximum increase of rent payable by the tenant shall not be more than 25% of the rent already being paid by him". 17. It has been seen above that the authority vesting in the Rent Controller under Section 4 of the Ordinance to allow an increase of 25% of the rent being already paid by the tenant was subject to the necessary condition that the fair rent fixed under subsection (2) "exceeds the rent being paid by the tenant on the date of the filing of the application under this section". Here, the learned Rent Controller did not fix the fair rent under subsection (3) of Section 4 and there was, therefore, no finding that the fair rent exceeded the rent being paid by the tenant. As the Rent Controller was competent to allow an increase of 25% of the rent already being paid by the tenant only if the fair rent come to under sub­ section (2) of Section 4 exceeded the rent being already paid by him and no fair rent was fixed, the order must be held to be without jurisdiction and hence without lawful authority and of no legal effect, for by allowing the increase of 25% of the rent, the learned Rent Controller failed to take into account something which he was required to take into account. 18. Again in fixing different fair rent for different periods, the learned Courts below acted contrary to the plain language of Sections 4 and 5 and hence exceeded the authority confided to them. Section 4 empowers them to fix fair rent, and once fair rent has been fixed, then Section 5 prohibits any further increase in such fair rent within a period of three years except "in cases where some addition, improvement or alteration has been carried out at the landlord's expense, and at the request of the tenant". 19. For these reasons, the judgments of the learned Rent Controller and the learned Additional District Judge must be held to be without jurisdiction. In this view of the matter, it is not necessary to decide the question whether the leased property had, by the Notification, been included within the municipal limits, and whether the landlord was not entitled to apply under Section 4 because it was a lease for a fixed period and the parties had, by their agreement, determined the amount of rent. 20. In the result, the petition is accepted and the judgments of the learned Rent Controller and the learned Additional District Judge are declared to be without lawful authority and of no legal effect. The parties are, however, left to bear their own costs. (MBC) Petition accepted.

PLJ 1990 Labor 365 PLJ 1990 Labor 365 (DB) [Bahawalpur Bench] Present: Ql. AMJAD KlIAN AND ClI FAZAL KARIM, JJ ABDUL SAMI-Petitioner versus ABDUL GHAFFAR and another-Respondents Writ Petition No. 121/BWP of 1988, accepted on 16.4.1990 Punjab Local Councils (Election Petitions) Rules, 1979-- —Rr.13 & 15-Local Council—Election of—Election Petition against— Acceptance of—Challenge to—Whether petitioner was guilty of corrupt or illegal practice—Question of—Findings of Tribunal must be based on oral and documentary evidence produced by parties-Satisfaction of Tribunal has to be objective and not subjective—To find facts based on no evidence is an error of law and an order passed on no evidence is an order without lawful authority- To hold a man guilty of corrupt or illegal practice, standard of proof required is that applicable in criminal cases—Tribunal found corrupt and illegal practice yet he did not declare whole election as void—No report in writing about stoppage of poll w ; as produced-Held: Tribunal was not competent to declare election void without a finding that result of election had been materially affected-Petition accepted. " [Pp.368&369]A,B,C,D,E&F Sir. Hakim AH, Advocate for Petitioner. Mr Ijaz Ahmad Cli., Advocate for Respondent No. 1. Date of hearing: 16.4.1990. JUDGMI-NT Fazal Karim, J.—This is a petition under Article 199 of the Constitution; by it the returned candidate, Abdul Sami, seeks to have the judgment of the learned Civil Judge 1st Class, Haroonabad in his capacity of Election Tribunal, dated 6.2.1988, declared to be without lawful authority and of no legal effect. By that judgment the learned Election Tribunal had declared "the election of the disputed seat as a whole to be void" and the Punjab Local Councils Election Authority was asked to hold fresh elections. 2. The petitioner, Abdul Sami, and the respondent, Abdul Ghaffar, were candidates at the election to the electoral unit, Ward No. 7, Chak No. 76/4-R, Tehsil Haroonabad, District Bahawalnagar held on 30.11.1987 under the Punjab Local Councils Ordinance, 1979. At that election the petitioner secured 307 votes and the respondent secured 205 votes and the petitioner was declared successful. Abdul Ghaffar, respondent No. 1, instituted an election petition challenging the election of the petitioner on the ground, to quote from the judgment of the learned Election Tribunal that "the respondent No. 1 committed gross irregularities and fictitious and double votes were cast in favour of the respondent (Abdul Sami). It is further alleged by the petitioner (Abdul Ghaffar) that the ballot papers of Serial No. 301901 to 302000 were fictitiously cast in favour of the respondent No. 1". 3. The petitioner contested the election petition by filing a written replydenying these allegations. 4. Two issues giving effect to the parties pleadings were formulated, the crucial issue being "whether the respondent has committed gross irregularities and malpractices in the disputed Local Bodies Election of the disputed seat?" 5. In support of his case the respondent, Abdul Ghaffar, examined himself and called two witnesses, Nawab Din and Farzand Ali, P.W. 3. In rebuttal the petitioner himself entered into the witness box and called one witness, Abdul Rashid, R.W.2. The learned Election Tribunal examined Mr. Aftab Qadir, Project Assistant, Local Government, Haroonabad, as court witness; he stated with reference to the election record that ballot paper books No. 03020 to 03037 (18 in number) bearing Serial Nos. 301901 to 303700 were issued to the Presiding Officer and that out of them ballot papers book No. 03020 containing Serial Nos. 301901 to 303700 or their counter foils were not available on the record. The "outer slip" of that ballot paper book was however available with him. 6. In coming to the conclusion that he did, the learned Tribunal observed that it was "crystal clear from the record that the counter foil of book No. 03020 containing Serial Nos. of ballot papers No. 301901 to 302000 was missing on the record," Referring to the evidence of the petitioner's witness, the learned Tribunal went on to say that "there was a fight between the contesting parties and their supporters during the polling hours and the polling was stopped for sometime"; and "that the respondent, Abdul Ghaffar, was not present at the time of restart of the polling which continued in the absence of the petitioner." It was evident, so held the learned Tribunal, that the Presiding Officer did not report the fact that the counter foil of book No. 03020 was "missing from the record" and there is no explanation on behalf of the respondent. The election proceedings had been according to the Tribunal, stopped by the Presiding Officer "for temporary period and the petitioner had gone to Police Station for reporting the matter to the Police but the polling was restarted in the absence of the petitioner." There was no counting of the votes in the presence of the Polling Agents of the contesting parties. Thus the learned Tribunal was led to hold that the Presiding Officer concerned did not obey the instructions issued by the Honourable Punjab Local Councils Election Authority to the Presiding Officers." In short the finding recorded by the learned Tribunal was that "the missing of the counter-foil of book No. 03020 containing ballot papers of Serial No. 301901 to 302000 is also a proof that there were gross irregularities and malpractices during the election of the disputed seat and the concerned Presiding Officer did not report the matter to the Police or to the Returning Officer, Haroonabad" and that it is presumed that gross irregularities and malpractices were committed in connivance of the polling staff of the disputed seat." 6. The jurisdiction of this Court under Article 199, sub-Article 1 («) is the jurisdiction to declare "that any act done or proceeding taken has been done or taken without lawful authority and is of no legal effect." An act is without lawful authority, if the person doing it had no authority to do it under the law under which he purported to act; it is an act ultra vires or without or in excess of jurisdiction. The first question that must be asked, therefore, is what was the nature and extent of the authority vesting in the learned Tribunal. It is obvious that the answer to this question must turn upon the terms of the law under which the learned Tribunal was acting namely, the Punjab Local Councils Ordinance, 1979 and the rules made thereunder. 7. By rule 8 of the Election Petitions Rules, 1979, made by the Election Authority in exercise of the powers conferred by section 25 of the Punjab Local Government Ordinance, 1979, (to be referred to as the Ordinance) "every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908"; and "subject to the provisions of the Ordinance, the Election Rules and these rules, the Evidence Act, 1872 (1 of 1872) shall apply to the trial of an election petition". (As the Evidence Act, 1872 stands repealed by the Oanoon-i-Shahadat, 1984, for the expression "the Evidence Act, 1872 (1 of 1872)" in this rule the expression "Qanoon-i-Shahadat, 1984" has to be read). Rule 10 of the Election Petition Rules, 1979 provides that "the Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908". Rule 12 of the said Rules enumerates the kinds of orders that the Tribunal is competent to make. Rule 13 provides for the grounds for declaring the election of a returned candidate void. So far as relevant, it empowers the Tribunal to declare the election of a returned candidate to be void "if it is satisfied" that the election of the returned candidate has been procured or induced by any corrupt or illegal practice or a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorised agent. Sub-rule (2) of rule 13 prohibits the declaring of the election of a returned candidate to be void by such peremptory language as "shall not be declared void" on the ground that any corrupt or illegal practice has been committed "if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission" Rule 15 of the Rules says that "the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of, (a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or (b) the prevalence of extensive corrupt or illegal practice at the election." 8. It was thus a necessary condition precedent to the power of the learned Tribunal to declare the election of the petitioner void on the ground that any corrupt or illegal practice had been committed, that the Tribunal was satisfied that such corrupt or illegal practice was committed by or with his consent or connivance or his election agent. 9. The expression "corrupt practice" is defined in rule 72 of the Election Rules, 1979; by it a person is guilty of corrupt practice if he is guilty of bribery, personation or undue influence or makes or publishes a false statement or calls upon or persuades any person to vote or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, community, etc., knowingly, in order to support or oppose a candidate; or lets, lends employs, hires, borrows or uses any vehicle or vessel for the purpose of conveying voters to or from the polling station; or causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting or contravenes the provisions of Rule 68 namely, his election expenses exceed the sum mentioned therein. The expression "Illegal practice" is defined in rule 73 of the Election Rules, 1979; a person is guilty of illegal practice if he obtains or procures the assistance of any officer or official of the Government to further or hinder the election of a candidate; votes or applies for a ballot paper for voting at an election knowing that he is not qualified for voting; votes or applies for a ballot paper for voting more than once; votes or applies for a ballot paper for voting in more than one polling stations; or removes a ballot paper or a ballot box from a Polling Station or destroys, damages or tampers with a ballot box used at a Polling Station. 10. Also it is obvious that the satisfaction of the Tribunal has to be based upon objective evidence. As has been seen above, the Tribunal has all the powers of a civil Court to try a suit under the provisions of the Code of Civil Procedure, 1908 and the election petition has to be tried as nearly as may be in accordance with the procedure laid down for the trial of the suits under the Code of Civil Procedure, 1908 and the rules of evidence as contained in the Qanoon-i-Shahadat, 1984. The findings of the Tribunal must, therefore, be based upon evidence oral and documentary produced by the parties. In other words the satisfaction of the Tribunal has to be objective and not subjective. It is well settled that to find facts based on no evidence is an error of law and that an order passed on no evidence is an order without lawful authority. (See Rahccm Shah's casc-PLD 1973 S.C. 24). As was said by due Parcq LJ in Bean v. Doncastcr Amalgamated Collcrics Ltd. (1944 2 All E.R. 284) "....to come to a conclusion where there is no evidence to support it is to make an error in law." 11. Equally well established is the principle that to hold a man guilty of a corrupt or illegal practice, the standard of proof required is that applicable in criminal cases: the charge must be proved beyond a reasonable doubt belorc the man is held guilty of a corrupt or illegal practice and before the extreme step of declaring his election void is taken. 12. Here the findings recorded by the learned Tribunal were that the baliol paper book No. 03020 v?as missing; that a fight between the contesting parties and their supporters had taken place during the polling and the polling was stopped; that the respondent, Abdul Ghaffar was not present when the polling was restarted; that the Polling Officer had not reported the fact, that the counier foil of ballot book No. 03020 was missing, to the Returning officer and that "it is presumed" that these irregularities and malpractices were committed in connivance with the polling staff. 13. It is plain that in so holding, the learned Tribunal had found that corrupt and illegal practice as defined in the Election Rules, 1979 had been committed yet, t-Tk» learned Tribunal did not hold, as he should have to declare the election of the petitioner void, that the alleged corrupt or illegal practice was committed by or with the consent of the petitioner or his election agent. The evidence at best was that at the time the election record was produced by Mr. Aftab Qadir, C.W., the ballot paper book No. 03020 was not part of the record; but from that fact, it was a big step to hold that it was the petitioner who was responsible for the missing of that record. There was no evidence that the ballot papers of ballot paper book No. 03020 had actually been used and if so, they were used in the petitioner's favour. As to the alleged stopping of the poll due to a fighl between the parties, the best evidence was the election record and the order of the Presiding Officer stopping the poll, if any. Rule 28 of the Election Rules, 1979, provides that if at any time the poll at any polling station is interrupted or obstructed by riot or open violence, the Presiding Officer may, by recording the reason thereof, slop the poll and inform the Returning Officer accordingly. Thus the duty to inform the Returning Officer arises only if the Presiding Officer stops the poll by an order in writing. Here no such order was produced, nor was there any evidence that it was made. Assuming that there was a temporary stopping of the poll and assuming further that rule 28 of the Election Rules, 1979, applies to such temporary stopping of the poll, the learned Tribunal did not mention the provision of law which required the presence of the candidates at the restarting of the poll. In any case, the learned Tribunal had not its attention called to rule 26 of the Election Rules, 1979 which provides that "where any act or thing is authorised by these rules to be done in the presence of the candidates, an election agent or a polling agent, the failure of such person to attend at the lime and place appointed for the purpose shall not invalidate any act or thing otherwise validly done." 14. It remains to consider the provisions of rule 15 of the Election Petition Rules, 1979, which empower the Tribunal to declare the election as a whole to be void. That power, as has been noticed above, was subject to the condition of the Tribunal being satisfied that the result of the election had been materially affected by the failure of any person to comply with the provisions of the Ordinance or the j rules or by the prevalence of extensive corrupt or illegal practice, the evidence only was that there was fighting between the parties and that had resulted in the temporary stopping of the poll. The learned Tribunal assumed and assumed without any basis in fact that the ballot paper book No. 03020 had been removed during the poll. Consequently failure to comply with the provisions of the Ordinance or the rules was not established. In any case, the Tribunal was not competent to declare the election void, without a finding that the result of the election had been materially affected. 15. That the findings arrived at by the L'uiiud Tribunal had no evidence tci support it should be clear from the learned Tribunal'.«. nun observation nameh \ that "it is presumed that gross irregularities and malpractices were committed im connivance with the polling staff of the disputed seat." 16. For these reasons we accept ihe petition and declare that the election- Tribunal's judgment dated 6.2.1988 is withoul lawful authority and of no legal, effect. The parties are left to bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 369 PLJ 1990 Lahore 369 Present: iiisanul haq chaudiiary, J Mina ZAFAR ALI and 4 others-Petilioncrs versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB and 2 others- Respondents Writ Petition No. 55-R of 1990, accepted on 21.5,1990 (i) Constitution of Pakistan, 1973-- —Art. 175 read with Art. 4—Evacuee land—Allotment of—Repeal of Settlement Laws—No provision of appeal, revision or review left with Settlement Authorities—Orders of two Deputy Settlement Commissioners are in accordance with law and there is nothing wrong with same—It is respondent No. 1 who illegally and without jurisdiction interfered in matter while sitting in his office—Days of royal decrees have gone now—Functionaries of State have to function in accordance with law-No court or authority is entitled to exercise powers not vested in it—All citizens have an inalienable right to be treated in accordance with law-Held: Action of respondent No. 1 being derogatory to law and Constitution, is liable to be struck down. [P.377]F PLD 1958 (WP) Lahore 185 rel. (ii) Jurisdiction-- —-Settlement laws-Repeal of-Whether Member, Board of Revenue had jurisdiction to revise order of D.S.C-Question of-Contention that after repeal of Settlement laws, on 1.7,1974, Settlement Authorities have no power of review, appeal or revision-Orders passed by notified officers have been made final—Counter arguments of learned Advocate General that respondent No. 1 being at apex of administration, has every authority and jurisdiction to set aside illegal orders passed by his subordinates-However, no provision of law giving power of revision, appeal or review to respondent No. 1 is pointed out- Held: Action of respondent No. 1 is patently in excess of authority and is, therefore, without jurisdiction. {P.375JA&B 1977 SCMR 208,1980 CLC 744 and 1988 CLC 1699 rel. (lil) Settlement and Rehabilitation Matters— —Evacuee land-Allotment of-Repeal of Settlement laws-Whether notified officer went beyond scope of order in allotting land of choice of petitioners- Question of—Respondent No. 1 nullified allotment order on grounds that another notified officer had already refused to make allotment against claim of petitioners and delegatee of Chief settlement Commissioner had held petitioners entitled to resumed land but second notified officer proceeded to allot land according to choice of petitioners, therefore, instead of implementing order, he had gone beyond scope of same—Held: reasoning is clearly illegal, illogical and against facts-Held further: Petitioners were entitled to allotment of land in terms of Section 14(1-A) of Act XXXVI of 1974 and to same effect is order of Settlement Commissioner. [P.379JG&H PLJ 1990 Lahore 168 rel . (iv) Settlement and Rehabilitation Matters-- —Evacuee land-Allotment of-Repeal of Settlement Laws-Orders of notified officers to be final-Setting aside of order of notified officer by respondent No. 1-Challenge to-Respondent No. 1 himself observed that no review was competent after repeal of Evacuee Laws but failed to keep in mind that orders passed by notified officers are final and nobody in hierarchy of Settlement had anv jurisdiction or authority to interfere with same-Held: It is highly egrettable that such a senior officer acted not only against statute but also ignored well-settled principle of natural justice that nobody should be condemned unheard—Held further: If criteria that property is worth crores of rupees, is to serve as basis for allotment, then no refugee-claimant can be settled because value of properly has increased everywhere—Petition accepted. [P.379]J,K&L PLD 1986 SC 536, PLD 1965 SC 90 and PLD 1964 SC 673 rel. (v) Settlement and Rehabilitation Matters- —Resumed land—Non-availability of—Whether alternative land could be allotted—Question of—Land resumed under orders of Settlement Authority was not available for allotment to petitioners-Petitioners requested for allotment of alternative Sand under Section 14(1-A) of Act XXXVI of 1974-D.S.C did not proceed to allot same straightaway but he first verified whether same was available or not and land was allotted to petitioners on proof of its availability-Held: There is nothing wrong with order of D.S.C who proceeded to accept request of petitioners for (allotment of) alternative land. [Pp. 375, 376&377]C,D&E Syed Jamshed All, and Mr. Muhammad Nasirn, Advocates for Petitioners. Mr. Maqbool Elahi Malik, Advocate General with Mr. M. M. Saeed Baig, Advocate for Respondents. Date of hearing: 21.5.1990 judgment The petitioners, through this Constitutional petition, have prayed for a direction to respondent No. 1 not to interfere in the matter and to respondents No. 2 and 3 to give effect to order dated 8.11.1989 in the revenue record. 2. The relevant facts are that the petitioners migrated on the eve of partition from Amritsar city to Lahore. The petitioners submitted their claim in respect of urban agricultural land abandoned by them in India. Since the special Jamabandi was not available, therefore, their claim was rejected. The petitioners

thereafter filed a suit for declaration in the year 1965. The same was decreed by the learned trial Court vide judgment and decree dated 27.2.1971. The Settlement Department filed an appeal. The same was dismissed by the appellate Court vide judgment and decree dated 8.9.1971. The petitioners thereafter approached the Chief Settlement Commissioner for satisfaction of their claim in terms of the decree of the civil Court but all their efforts failed. The petitioners thereafter invoked the Constitutional jurisdiction of this court through W.P.No. 516-R/74. The same was disposed of vide order dated 1.10.1974 with the direction to the Chief Settlement Commissioner to look into the matter and decide the fate of the claim of the petitioners, who had, during the pendency of the writ petition, proceeded to file Mukhbari application against Nizam Din and 4 others in respect of bogus allotment obtained by them in villages Ajudhiapur, Chung Khurd, Babu Sabu and Kot Lakhpat of Lahore District. The petitioners, in pursuance of the order dated 1.10.1974 of this Court, moved an application before the Chief Settlement Commissioner, who marked the same to Commissioner, Lahore Division with the powers of Settlement Commissioner for its disposal in the light of the observations of this Court. This application was decided vide order dated 26.5.1975 and the claim to the extent of 5569 index units was verified. It is added that on account of indifferent and lethargic attitude of the Department that it took almost three decades to verify the claim of petitioners and then for an-other coming 15 years failed to make any allotment to the petitioners against claim so verified. It was on 25.1.1989 when D.S.C.(L), Lahore proceeded to order that since all urban agricultural land within the Municipal limits has been declared as building site, therefore, the petitioners may be given option for allotment of agricultural land. 3. On the other hand, the application of the petitioners under section 10/11 of the Land Settlement Act was ultimately allowed by Settlement Commissioner vide order dated 12.7.1989 and the petitioners were held entitled to get the land to the extent of 5569 produce index units out of the land so resumed from the names of Nizam Din and others. Accordingly, the petitioners moved D.S.C(L)/notified officer for implementation of the order daled 12.7.89 but on inquiry by the notified officer it transpired that the land, which was so resumed is not available for allotment to them, therefore, the petitioners were asked to give their option. The petitioners accordingly pointed out the land in dispute. The result was that the land in villages Charrer and Amar Sidhu was allotted to the petitioners. The allotment was given effect to in the RL-II. The same are appended as annexures 'C and D' respectively. The matter was pending with the A.D.C.(G)/Collector, Lahore for sanction of mutation but the officers refused to give efi'ect to the allotment made in the names of the petitioners on the pretext that the respondent No. 1 has passed some order not to give effect to the allotment in the names of the petitioners. The petitioners finding no way out were constrained to file this Constitutional petition. 4. The petition was admitted to regular hearing and notices were issued to the respondents, who have appeared through Advocate-General, Punjab and contested the petition. . 5. The learned counsel for the petitioners in support of the petition has argued that respondent No. 1 had no jurisdiction, whatsoever, to pass the impugned order. It is added that all Courts are to function in the sphere allocated to them. In this behalf, the learned counsel has referred to Article-175 of the Constitution of Islamic Republic of Pakistan. It is added that Act XXVIII of 1958 was repealed with effect from 1.7.1974 and according to Section 2(2) of Act XIV of 1975, the orders of notified officers were to be treated as final. There was absolutely no power of review, appeal or revision. The learned 'counsel, in this behalf, has relied on the judgment of Hon'ble Supreme Court in the case of Officer on Special Duty, Central Record Office and others v. Basliir Ahmad and 9 others (1977 S.C.M.R. 208) and judgments of this Court in the cases of Muhammad Yusuf and 2 others v. Chief Settlement Commissioner, Punjab, Lahore and 2 others (1980 C.L.C. 744) and Mm. Futtan and 4 others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab and another (1988 C.L.C 1699). The next argument is that now the policy is that the settlement matters should be concluded at the earliest possible dale and all out effort should be made not to re-open the matters unnecessarily. The learned counsel in support of the contention has referred to the judgments of the Hon'ble Supreme Court in the cases of Faizuddin Ahmad v. Muhammad Yousaf and another (1988 S.C.M.R. 1289), Shcr Afzal tQian and others v. Haji Razi Abdullah and others (1984 S.C.M.R. 228) and judgment of this Court in the case of Malik Shahab Din and 4 others v. Imdad All Ghallu, A.D.C.(G), Bahawalpur and 7 others (1986 C.L.C. 2194). 7. The submission on merits of impugned order is that respondent No. 1 proceeded on a mistaken assumption of law to hold that petition for restoration of Mukhbari application was not competent. The submission in nut-shell is that the Settlement Commissioner seized of the matter had exercised the discretion properly and order was passed as back as 12.1.1978 and it was not challenged in any forum, therefore, it was a past and closed transaction. Respondent No. 1 had no jurisdiction to find fault with the same. The learned counsel in support of the proposition that the restoration petition was competent has referred to the case of Gliulam Muhammad v. D.S.C(L) etc. (1986 Law Notes (Lahore) 759). In this behalf, it was added that respondent No. 1 has proceeded in a mechanical and illegal manner. The next submission is that order dated 25.1.1989 of D.S.C.(L)/notified officer was no hurdle or bar to the order dated 8.11.1989 passed by Waqar Ahmad Khan, D.S.C(L)/notified officer because in the earlier order the officer had shown his in-ability to allot land against the verified claim of the petitioners while through order dated 8.11.1989 the petitioners were allotted land as informers on the basis of the order dated 12.7.1989 passed by the Settlement Commissioner. It is submitted that neither the second notified officer reviewed the earlier order of the other notified officer nor he departed from the tenor of the order dated 26.5.1975. 8. It was further added that Section 2(6) of Act XXVIII of 1958, defines Settlement Authority while Sections 10/11 of the said Act do not require that the allotment should be made by the same authority who has passed an order under sections 10/11 of the Act. On the other hand, it was to be made by a notified Settlement Authority. In this behalf, it was submitted that the Chief Settlement Commissioner proceeded to divide the areas of operation between the notified officers vide notification dated 24.10.1989 and according to this notification the area, in which the allotment has been made to the petitioners, fell within the jurisdiction of Mr. Waqar Ahmad. The learned counsel submitted that according to the instructions issued by the Department vide memo. No. 3741-75/841-R(L) dated 24.4.1975, after the acceptance of the petition under sections 10/11 of the Land Settlement Act, the proceedings were to be treated as pending proceedings. The submission is that with the decision of the application under sections 10/11 one stage came to an end while in respect of the implementation of this order the proceedings were to be treated as pending proceedings and therefore, no fault could be found with the order dated 8.11.1989. 9. The learned counsel for the petitioners concluded his arguments with the submission that the notified officer showed his in-ability to allot any land against verified claim vide order dated 25.1.1989 because all urban agricultural land within the Municipal limits was declared as building site and the authorities were stopped from making allotment of tlii.s land as it was decided to dispose of the same through open auction. It is added that respondent No. 1 failed to appreciate that through the circular dated 18.2.1974 of the Chief Settlement Commissioner, it was clarified that this embargo does not pertain to the allotments to be made to informers in respect of the lands resumed in the proceedings under sections 10/11. 10. On the other hand, the learned Advocate-General, Punjab, on behalf of the respondents has argued that the order of Mr, Waqar Ahmad Khan dated 8.11.1989 is coram non judice for the following reasons:— (a) It tantamounts to review of order of Mr. Ijaz Ahmad dated 25.1.1989. It is added that both being D.S.C., Mr. Waqar Ahmad had no jurisdiction to sit in judgment over the order of Mr, Ijaz Ahmad; and (b) That the order of Mr. Waqar Ahmad was in violation of order dated 12.7.1989 of Mr. Sarfraz Ali Khan, delegatee of the Chief Settlement Commissioner. It is submitted that the application of the petitioners was accepted and they were to be allotted land resumed from Nizam Din etc. In this behalf, the learned Advocate-General has referred to para 10 of the judgment of Mr. Sarfraz Ali Khan appended as annexure 'A'. It is added that Mr. Waqar Ahmad could have implemented this order as it is and could not have allotted land to the petitioners other than the land resumed from Nizam Din etc. He, in this behalf, has referred to para 9 of the order dated 8.11.1989 of Mr. Waqar Ahmad to contend that there was no question of giving choice to the petitioners. It is added that in terms of the notification dated 24.4.1975, a notified officer could implement the order of the other Settlement Authority as it is but could not travel beyond the same. The other submission was that he Chief Settlement Commissioner being at the apex of the administration has every authority and jurisdiction to interfere in the orders passed by its subordinates which are without jurisdiction. 11. The next submission was that the conduct of the petitioner disentitles them of arry relief in writ jurisdiction. In this behalf, the learned Advocate- General has referred to observation of-respondent No. 1 in the impugned order that there were interpolations in the 'Mukhbari' application. It is added that Settlement Commissioner has no power to restore Mukhbari application especially when the matter was also disposed of on merits. 12. Mr. S.M. Nasim, Advocate while replying to the arguments of the learned Advocate-General submitted that Mr. Waqar Ahmad Khan while passing the order dated 8.11.1989 did not review the earlier order of Mr. Ijaz Ahmad Khan dated 25.1.1989 appended as annexure 'R/VIl' with the report because that order was passed as to allotment of the land against the claim of the petitioners while Mr. Waqar Ahmad Khan proceeded to make the allotment to the petitioners as informers. It is added that it is clear from the notifications dated 16.5.1973 and 18.2.1974 that these are two different categories. Therefore, the order passed on 25.1.1989 has no bearing or adverse reflections on the order dated 8.11.1989 passed by Mr. Waqar Ahmad Khan. It is added that in view of the provisions of Section 2(4) of Act XIV of 1975, it is the duty of respondent No. 1 to execute the orders of Settlement Authorities and to achieve this object, the respondent No. 1 appointed Mr. Waqar Ahmad as a notified officer vide notification dated 24.10.1989 (appended as annexure 'H'). The arguments arc concluded with the submission that Mr. Waqar Ahmad also did not go beyond the tenor of the order of Mr. Sarfraz Ali Khan dated 12.7.1989, as he proceeded to record evidence as to the availability of the land and it is only thereafter that he proceeded to allow an option to the petitioners in terms of Section 14(1-A) of Act No. XXVIII of 1958 as inserted by Act No. XXXVI of 1974. 13. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law as well as the cited precedents. Now I proceed to deal with the arguments raised by the learned counsel for the petitioners with reference to counter arguments of the learned Advocate-General, Punjab. The first submission on behalf of the petitioners was that respondent No. 1 has no jurisdiction, whatsoever, to pass the impugned order. The learned counsel, in this behalf, has referred to Act LV of 1973, Act XXXVI of 1974 and Act XIV of 1975. The submission in nut-shall is that after the repeal of the Settlement Laws on 1.7.1974, the Settlement Authorities have no power of review, appeal or revision. The orders passed by notified officers have been made final. The anxiety of the legislature may be to conclude the settlement work one way or the other. The learned counsel, in this behalf, has rightly referred to the judgments in the cases of Officer on Special Duty, Central Record Office and others, Muhammad Yusuf and 2 other and Msl. Fattan and 4 others. 14. The learned Advocate-General in reply to the submission on behalf of the petitioners argued that respondent No. 1 being at the apex of the administration has every authority and jurisdiction to set-aside the illegal orders passe3 by his subordinates. The arguments of the learned Advocate-General, as already noted, in the foregoing paragraphs are that the order dated 8.11.1989 of Mr. Waqar Ahmad Khan is illegal. The learned Advocate-General, however, failed to refer to any provision of law giving the power of revision, appeal or review to respondent No. 1. The legality or otherwise of an order could only be gone into by a competent authority who may have jurisdiction in the matter. Thus the action of respondent No. 1 is patently in excess of authority and is, therefore, without jurisdiction. 15. It is not necessary to examine the legality of order dated 8.11.1989 passed by Mr. Waqar Ahmad Khan as the same has not been challenged in properly constituted proceedings by anyone, yet in order to avoid multiplicity of proceedings and to do complete justice, I proceed to examine the plea raised by the learned Advocate-General. In this behalf, the attack to the order of Mr. Waqar Ahmad Khan was two fold. The first was that this amounted to review of the order of Mr. Ijaz Ahmad Khan dated 25.1.1989. The argument is clearly misconceived. Mr. Ijaz Ahmad Khan showed his inability to make any allotment to the petitioners as claimants whereas Mr. Waqar Ahmad Khan proceeded to make allotment to the petitioners as informers. Both the capacities are different. In case of a claimant there could be no allotment within the Municipal limits in view of the notification dated 16.5.1973 but this notification was not applicable to the informers as clarified in notification dated 18.2.1974. The last notification clearly gives the background of this amendment in the policy. I hold that in view of introduction of Section 14(1-A) through Act LV of 1973 and its substitution by Act XXXVI of 1974, this notification was necessary and the policy was rightly amended and modified. 16. Now coming to the other ground of attack to the order of Mr. Waqar j Ahmad Khan namely that he could not have made allotment of alternative land of the choice of the petitioners because Mr. Sarfraz Ali Khun has ordered, as is clear form para 10, of his order that the resumed land should be allotted to the petitioners. The argument is again clearly misconceived. Mr. Waqar Ahmad proceeded to implement the order dated 12.7.1989 and when, in this behalf he examined concerned four revenue Patwaris, it transpired lhat land resumed was not available. Therefore, the petitioners requested him lor allotment of alternative land in terms of Section 14(1-A) of Act XXXVI of 1974. It is relevant to refer to the provision before proceeding any further. The same reads as under:-- "(2) for subsection (1-A) the following shall be substituted, namely:- "(1-A) Where, at any time before or after the commencement of the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (LV of 1973), any person has furnished or furnishes information about any bogus or fraudulent allotment of land and the information has been or is proved to be correct and such land has been or is resumed by competent authority upon the cancellation of the allotment of such land, the informant shall be entitled- (a) If he is a claimant, to allotment of the resumed land to the extent of his claim pending for allotment in the same Province or, if the resumed land has already been allotted to some other person, to the allotment, to the said extent, of any other land of his choice available for allotment in the same Province; and (5) in any other case, to a cash award of such amount as the Chief Settlement Commissioner may decide." It is clear from the section that if the information submitted by him is proved to be correct and such land is resumed then he is entitled to:-- (»') if claimant, to the allotment of resumed land, to the extent of his pending claim in the Province; or (if) if the land has already been allotted to other person then to allotment of any other land of his choice available for allotment. The restriction is only to the extent of pending claim and the Province: and (Hi) in any other case he is entitled to cash award of the amount to be decided by the Chief Settlement Commissioner. 17. Now when Mr. Waqar Ahmad Khan, alter recording the evidence, came I to conclusion lhat the land resumed in pursuance of order dated 12.7.1989 of Mr. I Sarfraz Ali Khan is not available then he rightly proceeded 10 accept the request 'of the petitioners for allotment of the land in dispute The D.S.C. did not proceed to allot the same straightaway but he first verified whether the same is available or not? It was only when it was proved that the land selected by the petitioners, is available the same was allotted to the petitioners. 18. This is not all. The conclusion of the order of Mr. Sarfraz Ali dated 12.7.1989, reads as undcr:- "....These petitioners/informers are entitled for allotment of the resumed land to the extent of their verified pending claim as per classification of the units in accordance with the provision of Section 14(1-A) of the Displaced Persons (Land Settlement) Act, 1958". It is clear that the petitioners were to have the allotment in terms of Section 14(1- A). Therefore, there is nothing wrong with the order of Mr. Waqar Ahmad Khan when he proceeded to accept the request of the petitioners for alternative land. 19. The argument of the learned Advocate-General is without any merit yet for another reason, also. According to Section 14(1-A), as reproduced above, the informant in the first instance is entitled to allotment of the resumed land. The question whether the resumed land is available or not is a subsequent question, which will arise only when the allotment is to be made to the informants in accordance with their verified claim. The need for this exercise arises only at the ime of the allotment and not at the time of decision of application under sections 10/11, because at that stage there was no question of the petitioners or any one being informer given choice for alternative land. Incidently, the above provision is a complete reply to the first argument of the learned Advocate-General, in this behalf, that Mr. Waqar Ahmad had no jurisdiction to review the order of Mr. Ijaz Ahmad Khan. It is clear from bare reading of this provision that if the informer is a claimant then he will be entitled to allotment of land and in any other case to cash compensation. Therefore, refusal of Mr. Ijaz Ahmad Khan to allot land to the petitioners as claimants did not affect their entitlement to secure allotment as informants. 20. It is clear from the order of Mr. Sarfraz All Khan read with order of Mr. Ijaz Ahmad Khan and Mr. Waqar Ahmad Khan that they conducted the proceedings strictly in accordance with law and there is nothing wrong with the same. It is only respondent No. 1, who illegally and without jurisdiction interfered in the matter, sitting in his office. The days of royal decrees have gone now. The functionaries of the State are to function strictly in accordance with the sphere allotted to them and in accordance with law. No Court or authority is entitled to exercise powers not vested in it. The learned counsel for the petitioners has rightly referred to the provision of Article 175 of the Constitution. The proposition can be approached from another angle that all citizens have an inalienable right to be treated in accordance with the law as per Article 4 of the Constitution of Islamic Republic of Pakistan. The action of respondent No. 1 being derogatory to the law and the Constitution is liable to be struck down. find it not possible to express myself better than done by this Court in case of Mr. A. R. Azar, Deputy Chief Engineer, West, North-Westem Railway, Lahore and others v. Tlie Federation of\ Pakistan etc. (P.L.D. 1958 (W.P. Lahore 185). The relevant portion of thei judgment reads as under:- "Kayani, J.--I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in the Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vestige of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947, has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone," says the Preamble to the Constitution. Even if the Preamble had been less pious, the King-cando-no-wrong theory was by its very nature inapplicable to a democratic State." 21. The learned Advocate-General argued that the conduct of the petitioners disentitled them to any relief in the Constitution jurisdiction. In this behalf, he has referred to certain interpolations noted by respondent No. 1 in the impugned order. The argument does not require any serious consideration for the reason that respondent No. 1 has not given any positive finding on this point. He has simply referred to this fact. On the other hand, the learned counsel for the petitioners has referred to the comments filed by respondent No. 1 in W.P. No. 646-R/78 and placed on the file as annexure 'F' wherein it was categorically stated that there was no interpolation in the Mukhbari application. 22. Now I proceed to examine the order of respondent No. 1 whether it could be justified legally or factually. Respondent No. 1 held that the order dated 12.1.1978 of the Settlement Commissioner is illegal and without lawful authority for the following reasons:— (a) that after repeal of Evacuee Laws no Settlement Court was competent to review any order passed by it or its predecessor. The order dated 12.1.1978, whereby Mr. Bhatti, Settlement Commissioner restored the application of the petitioners under sections .10/11 cannot be termed as a review of earlier order of dismissal. It was simply and purely an order of restoration; and (ft) that application could have been resorted on valid grounds and if moved within 30 days it was held by him that there was no legal justification for restoration of the order. The learned Advocate-General further added that the petition was not only dismissed for non-prosecution but also for lack of evidence. The order of dismissal of Mukhbari application was in paramateria to an order passed under Order XVII Rule 2 C.P.C. It is settled law that if plaintiff fails to enter appearance on the adjourned date the Court can proceed to dismiss the suit. This way the application infact was dismissed for non-prosecution. In any case although the order is dated 12.1.1978 but nobody including respondents ever challenged the same in any forum. The respondents have placed on record the interim orders as annexure 'R/3'. The perusal of the same shows that the petition was fixed for 7.7.1977 but on this date the Presiding Officer was on leave, therefore, the matter was adjourned to 13.7.1977 for 'further proceedings' and on this date the Settlement Commissioner was ill advised to dismiss the application for non-prosecution as it was not a date of 'hearing'. The order was patently illegal and the moment it was brought to the notice of the Settlement Commissioner, he was under a legal obligation to setaside the order of dismissal. Reference, in this behalf, can be made to the judgment of this Court in the case of M/s. Aziz Flour Mills, Bahawalpur and 2 others v. T1\e Industrial Development Bank of Pakistan (P.LJ. 1990 Lahore 168). 23. The respondent No. 1 then proceeded to nullify the order of allotment dated 8.11.1989 on the grounds namely that Mr. Ijaz Ahmad Khan, D.S.C., another notified officer had already refused to make allotment against this claim vide his order dated 25.1.1989, and that Mr. Sarfraz Ah' Khan, by his order dated, 12.7.1989, held the petitioners entitled to the land so resumed but Mr. Waqar Ahmad, D.S.C. proceeded to allot land according to the choice of the petitioners. It was, therefore, concluded that the latter officer, instead of implementing the order has gone beyond the scope of the same. The reasoning is clearly illegal, illogical and against facts. The petitioners were entitled to allotment of land in terms of Section 14(1-A) and to the same affect is the order of Settlement Commissioner dated 12.7.1989. Anyhow both these grounds have been dealt at length in earlier portion of this judgment, therefore, the same do not require any further deliberations. 24. The respondent No. 1 not only over-stepped his jurisdiction but also proceeded in a reckless manner ignoring law and facts altogether. He himself observed that no review was competent after the repeal of Evacuee Laws but failed to keep in mind that the orders passed by notified officers are final and nobody in the hierarchy of Settlement had any jurisdiction or authority to interfere with the same. It is highly regrettable that such a senior officer acted not only against the statute but also ignored the well-settled principles of natural justice that nobody should be condemned unheard. It is strange that he having reached to apex of the Department has never heard of celebrated judgments of Hon'ble Supreme Court in the cases of Abdul Saboor KJian v. Karachi University (P.L.D. 1986 S.C.536), University of Dacca v. Zakir Ahmad (P.L.D. 1965 S.C. 90) and Abdul A'la Maudoodi v. Government of West Pakistan (P.L.D. 1964 S.C. 673) and! many more. 25. It is matter of great concern for all Courts that the position of the Settlement Department is that of a trustee, holding the evacuee property in trust for the benefit of the claimants, is now assuming the role of the owner. One of the arguments on behalf of the respondents advanced was that the property is worth over crores and the petitioners have illegally grabbed the same. The learned counsel for the petitioners rightly pointed out that scope for this argument was furnished by the inefficiency of the Rehabilitation and Settlement Department while taking over 40 years to settle the claim of his clients. It is rightly submitted by him that if this land was transferred to his clients in the year 1960 or so then it was worth only few thousands. Further that if this criteria is to serve as basis then now no refugee-claimant can be settled because value of property has appreciated everywhere. The Government cannot be paid any premium for its own lapses. This argument does not take into consideration that the petitioners have suffered for about half a century. 26. The result is that this petition is allowed with costs and the impugned order of respondent No. 1 dated 20.12.1989 is declared without lawful authority and jurisdiction and respondents No. 2 and 3 are directed to implement the order dated 8.11.1989, whereby the land was transferred to the petitioners. (MBC) Petition accepted.

PLJ 1990 Lahore 380 PLJ 1990 Lahore 380 Present: IHSANULHAQ CHAUDHARY, J ANJUMAN JAMIA TAUHEEDJA (Regd) SHEIKHUPURA THROUGH ITS PRESIDENT and another-Petitioners Versus DEPUTY COMMISSIONER, SHEIKHUPURA and another-Respondents Writ Petition No. 1110 of 1990, accepted on 3.4.1990 (i) Constitution of Pakistan, 1973- —Art. 4 read with Societies Registration Act, 1860, Section 16-A-Equality before law-Fundamental right of-Whether this right has been violated- Question of~Petitioners like all other citizens have right to be strictly dealt in accordance with law-Held: Respondents have overstepped their jurisdiction (in dissolving Anjuman) and it is clearly wanton and careless exercise of power-Petition allowed. [P.386]E&F (ii) Societies Registration Act, 1860 (XXI of 1860)-- —S.16-A-Anjuman (Society) of Mosque-Dissolution of-Challenge to—A plan for reconstruction of mosque submitted to Municipal Committee and copy of memo, in this respect, was endorsed by Chairman M.C. sheikhupura to Sh. Masud Jilani as President of Anjuman-Anjuman was constituted and registered in 1981 but nobody including respondents raised a little finger either to its constitution or its assumption of management of mosque—There is no misconduct on part of Petitioners—Held: Contention that membership of petitioner (Anjuman) being limited to 11, it is in fact closed door management with no access to others, is controverted by Minutes Book according to which, strength of members is 42. [Pp. 383&386]B,C&D AIR 1969 Allahabad 248 not relevant. AIR 1955 SC 549, and 1978 SCMR 367 ref. (iii) Societies Registration Act, 1860 (XXI of 1860)- —S.16-A-Anjuman (Society) of Mosque-Dissolution of~Powers of dissolution-Whether rested with Deputy Commissioner-Question of— Admitted position is that respondent No. 1 passed impugned order hi complete ignorance of law and facts-It is conceded that power of dissolution rests with provincial Government—Held: Impugned order is absolutely illegal, void and without jurisdiction. [P.382]A Mr. Zafarlqbal Bajwa, Advocate for Petitioners. Rana Muhammad Arshad Klian, Additional AG for Respondents 1 & 2. Syed Jamshed All, Advocate for Applicants. Date of hearing: 3.4.1990. judgment The petitioners through this Constitutional petition have sought declaration that order of respondent No. 1 dated 25.1.1990 is illegal and without jurisdiction. 2. The relevant facts are that petitioner No. 1 is an Anjuman registered under the Societies Registration Act, 1860, while petitioner No. 2 is its president. The Anjuman was formed with the object to reconstruct mosque Civil Quarters, Sheikhupura with extended limits and also to arrange for religious education. The aims and object of the petitioner are appended as Annexure 'B' while the certificate of Registration is appended as Annexure 'A'. The claim of the petitioner is that it was constituted in the year 1981 with the blessing of the local administration. It is added that the mosque originally was constructed in the year 1928 on an area of about 18 marlas but thereafter Masud Jilani, a respectable of Sheikhupura, moved application dated 30.3.78 for allocation of more land for extension of the mosque. The application was granted by the then Deputy Commissioner vide order dated 24.5.79. It is added that thereafter the Anjuman was constituted. It raised funds from private as well as official sources. The Anjuman invited late President and he granted Rs. 5 lacs to the mosque while another Rs. 2 lacs were granted by Chief Minister, Punjab. It is concluded that the Project is almost complete and since inception the affairs including reconstruction are managed by the petitioner. The grievance of the petitioner is that D.C. all of a sudden proceeded to order dissolution of the present body and order fresh elections and appoint A.C. its administrator while controlling body was to be constituted. The petitioner through this Constitutional petition ha challenged this order. 3. The petition was admitted to hearing and notices were issued to the respondents, who have entered appearance and contested the petition nd in addition to this the applicants made an application for impleading them as respondents. The same has been disallowed but the learned counsel for the applicants has been heard at length. 4. I have heard the learned counsel for the parties. The learned counsel for the petitioners in support of the petition has argued that the respondent No. 1 is neither a Member nor office bearer of this Anjuman in his private capacity as well as ex-officio, therefore, his order is void and without jurisdiction. It is added that the Society can only be dissolved in accordance with the provisions of section 13 of the Societies Registration Act, 1860. The arguments are concluded with the submission that the order is patently malafide. 5. The learned Additional Advocate-General appearing on behalf of respondents No. 1 and 2 very candidly and fairly conceded that District Magistrate or Deputy Commissioner does not figure anywhere in the Registration Act, therefore, it is not possible to defend his order dissolving Anjuman and appointing administrator. 6. On the other hand learned counsel for applicants has argued that the matter has two facits. Firstly, the power of dissolution is with Provincial Government and he could not find out any delegation of this power to Deputy Commissioner. In this behalf he has referred to section 16-A. He also in usual fairness conceded that on this score it is difficult to defend the order of respondents. He however, added that second aspect of the matter is that Deputy Commissioner has to give effect to the wishes of the residents of the locality and in that behalf he can take suitable steps for improving the management of the mosque. The learned counsel in this behalf referred to circular dated 24.9.1984 letter Annexure 'K' dated 17.4.82 and circular dated 7.4.75. It is maintained that these circulars have the force of law and in this behalf learned counsel after comparing Article 129 of the Constitution of Islamic Republic of Pakistan with Article 154 of the Indian Constitution has referred to Rat Sahib Ram Jawaya Kapurand others v. The State of Punjab (A.I.R. 1955 S.C. 549). It is submitted that in this view the Deputy Commissioner was competent to dissolve the petitioner and order appointment of administrator. 7. The learned counsel for applicants has also challenged the constitution of the petitioner No. 1. The argument is that according to Section 1 there should be at least 7 persons to form a society under the Societies Act but in the present case only 6 persons have signed the rules of the society while Sh.Masud Jilani did not subscribe to this formation. It is maintained that this question can be gone into in these proceedings. Reliance is placed on the case of Shanti Samp v. Radliaswami Satsang Sabha, Dayalbagh Agra and others (A.I.R. 1969 Allahabad 248). In this behalf it is submitted that the conduct of the petitioners is also not fair because in Annexure 'B' the signatures portion was shown blank in the photo-copy attached with the petition. This was, according to learned counsel, done by putting the blank paper on the last column containing the signatures of the members forming the Society. The purpose was to conceal the fact that Sh. Masud Jilani did not sign. It is added that the affairs of the mosque can only be managed by a Mutwali and in this behalf learned counsel has referred to Muslim Law. The arguments were concluded with the submission that the petition is also hit by the provisions of Section 92 CPjC. and in this behalf reliance is placed on the judgment of Hon'ble Supreme Court in the case of S.Sharif Ahmad v. Chairman, Screening Committee, Lahore and another (1987 S.C.M.R. 367). 8. The learned counsel for the petitioners while replying to the points raised by the applicants has submitted that Masud Jilani, the convener was very much active in the formation of the Society and he has been participating in the meetings. In this behalf on the one hand he has referred to resolution dated 23.8.1985. On the other hand, he has referred to Annexures 'G' and 'L' with the parawise comments submitted by respondents No. 1 and 2 that said Masud Jilani was recognised as President of the petitioner but also the petitioner was acknowledged as a legal body, therefore, the respondents are now estopped by their own conduct from disputing the entity and formation of the petitioner and that too after a period of 12 years. 9. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. The admitted position is that the respondent No. 1 passed the impugned order in complete ignorance of the law and facts. The same is absolutely illegal, void and without jurisdiction. The learned Additional Advocate-General clearly, fairly and candidly while Syed Jamshed Ali, Advocate for the applicants impliedly conceded vires of the order when he referred to Section 16-A of the Societies Act to urge that the power of dissolution rests with the Provincial Government. However, he tried to justify the order, therefore, I am straightaway taking his arguments to find out whether the same furnishes any justification to uphold the impugned order or not? 10. The first submission of the learned counsel for the applicants was that the petitioners are to show that the Wakif entrusted the management of the mosque to the petitioner. The learned counsel has referred to Muslim Law by Kashi Prasad Saksena, 1963 Edition, to argue that a valid Wakf comes into existence the Indian Constitution the key words are 'executive power' and for remaining part both the Constitutional provisions are similar. It is added that the term 'executive power' came for interpretation in the case of Rai Sahib Ram Jawaya Kapur and others v. Tne State of Punjab (A.I.R. 1955 S.C. 549). In this case it was alleged that the Education Department of the Punjab Government in pursuance of its so called policy of nationalisation of text books has issued a series of notifications regulating printing, publication and sale of these books, which have not only placed unwarranted restriction on the rights of the petitioners to carry out their business but had practically ousted them from the business. These notifications were challenged by the petitioners through the Constitutional petition, which was dismissed. The appeal also met the same fate and the notifications were held valid. There is no cavil with the legal proposition. The circulars relied by the learned counsel for the applicants are valid and legal but this will not advance the case of the applicants any further because the case of the petitioners was processed in accordance with these circulars, which are as under:-- (i) It is letter dated 17.4.82. The same is not relevant because through, it a Committee was constituted to grant permission for the construction of the mosque and other religious monuments. Tlie text of the letter reads as under:- "It is intimated that the management Committee of the Mosque situated at Civil Quarters Road has submitted a building plan to Municipal Committee Sheikhupura for the extension in the existing Mosque. It is pointed out that Government of the Punjab Local Government & Rural Development Department vide letter No. S--HI/2-27/81 dated: 4.10.81 has constituted a Committee consisting of the following members for according permission for the construction of Mosque and other religious monuments: (/) Deputy Commissioner (h) Dy. Dir. (Town Planning) H & PP Divn. (Hi) XEN (Buildings) (iv) XEN(PHED) (v) Mayor/Chairman of the Municipal Corp:/Committee Concerned or their representative." Convener, Member -do- -do- Member/Secy: This is to be read with memo dated 30.4.1985 from Chairman to Deputy Commissioner. The relevant portion of the same reads as under:— "It is, therefore, requested that the building plan submitted by the President Jainia Tohidia for the construction of mosque may please be placed before the District Religious Committee, constituted by the Government." It is clear from reading the both letters together that the District Religious Committee was constituted by the Government and the Chairman, M.C., Sheikhupura, has accordingly asked for placing the building plan of the mosque before the said Committee. The Committee has no other connection with the mosque. These letters if minutely gone through demolish the complete fabric of the structure tried to be built by the learned counsel for the applicants. It is clear from these letters that the Society was functioning as such to the entire knowledge of the District Administration including Deputy Commissioner; {//) The second document relied by the learned counsel for the applicants is circular dated 7.4.1954. This again is not relevant as is clear from the subject which reads as under:-- "Subject: Construction of mosques in the compounds attached to government buildings." It is nobody's case that the civil quarter's mosque is situated in .any compound or that it was built after issuance of this circular. The learned counsel for the applicants submitted that the word 'Premises' if considered in wider scope it includes the locality. The argument is clearly aeainst the text of the circular. The same is to be read as a whole and it is dear that it covered only the mosque to be built in the compound of the premises. It has nothing to do with the other mosques to be built or to the mosques already in-existcnce. (Hi) The third document to which the learned counsel has referred is a memorandum dated 25.9.39. This is again irrelevant because through this Executive Engineers were directed to prepare the lists of places of worships of different religions in Punjab and to ensure that no place of worship is constructed on Government's land without prior approval of the Government of Punjab; and (iv) Lastly, the learned counsel for the petitioners referred to circular dated 24.9.1984. This is again irrelevant. This was issued to all Mayors/Chairmen, Municipal Corporations/Committees and Town Committees in the Punjab . It was pointed out that it has come to the notice of the Government that construction of religious buildings/places outside Housing Schemes has led to tension amongst various religions, religious factions and sects and in order to obviate any ugly situation it was thought necessary to make institutional arrangements for regulating the construction of places of worship within municipal limits. It was approved by the Government that Committees be constituted at District levels with Deputy Commissioner as Convener. This is again irrelevant because this only stressed the need of Committees for dealing with new places for worship within Municipal limits. It was in fact just repitition of Committees constituted under the circular letter dated 4.10.1981, as is clear from the memo, of the Chairman, M.C. dated 17.4.1982 to Deputy Commissioner, Sheikhupura. The same has already been reproduced in the earlier portion of this judgment. 13. The learned counsel in the end submitted that the membership of the petitioner is limited to 11 members. It is in fact closed door management with no access to the others. It is, therefore, concluded that following principle of judicial restraint as laid down by the Hon'ble Supreme Court in the judgment reported as 1978 S.C.M.R. 367 the writ should be refused. The submission is controverted by the Minutes Book, according to which the strength of the members is 42. B 14. The petitioners like all other citizens have right to be dealt strictly in accordance with the law. This is inalienable right of every person natural or legal guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan. The respondents have over-stepped their jurisdiction and it is clearly wanton and careless exercise of power. The same cannot be protected and given blessing. 15. The result is that this petition is allowed and the impugned order and ' proceedings of the respondents are declared to be illegal and without jurisdiction. (MBC) Petition accepted.

PLJ 1990 Lahore 386 PLJ 1990 Lahore 386 Present: IHSANUL HAQ CHAUDHARY, J G.M. MALIK-Petitioner versus PROVINCE OF PUNJAB, THROUGH SECRETARY, EDUCATION, and 2 others-Respondents Writ Petition No. 2402 of 1990, dismissed on 12.5.1990 (i) Constitution of Pakistan, 1973-- —-Art. 199-Chairman of Board of Secondary Education-Show cause notice to- -Issuance of-Challenge to~Whether writ petition is maintainable-Question of-Petitioner is admittedly an officer of Board and matter pertains to terms . and conditions of his service-Held: If any adverse order is ultimately made against petitioner, he can assail such order in departmental appeal—Held further: Petition is not legally competent. [P391]I> PLD 1989 SC 508 rel (ii) No Objection Certificate- —No Objection Certificate-Issuance of-Inefficiency in granting such certificate-Petitioner requested for issuance of "No Objection Certificate" to proceed for Umra-Section Officer issued memo for grant of International Passport-Held: Concerned official is clearly guilty of inefficiency and gross negligence-Held further: Immigration Authorities failed to check whether petitioner had been granted "No Objection Certificate" to leave Pakistan or not-Petition dismissed being misconceived and incompetent. [P.393]E (iii) Punjab Boards of Intermediate and Secondary Education Act, 1976 (XIII of 1976)- —-Ss. 14(2) and 12(8)(iv)-Show cause notice to Chairman of Board-Issuance of-Whether notice was to be issued under Section 14(2) or Section 12(8)(/v)~ Question of-Section 12(8)(<v) deals with show cause notice to employees of Board while Section 14 envisages action against officers of Board and their tenure etc. for which Controlling Authority is vested with powers to initiate 1990 G.M. malik v. prov. of PB: through scy. education 1991 disciplinary proceedings against officers of Board-Held: It is clear that disciplinary proceedings against officers have to be initiated under Section 14 of Act. ' [Pp. 389&390]A,B&C PLD 1989 Lahore 175 rel. Sh. Muhammad Asadullah, Advocate for Petitioner. Mr. Maqbool Elahi Malik, Advocate General, with Mr. Muhammad Rashid Malik, Advocate and Ch. Ijaz Ahmad, Advocate for Respondents. Pate of hearing: 12.5.1990. judgment The petitioner, who is serving as Chairman, Board of Intermediate & Secondary Education, Faisalabad through this Constitutional petition has sought declaration to the effect that show cause notice dated 31.3.1990 is malafide, arbitrary, illegal and void. 2. The relevant facts are that the petitioner in the end of December, 1989 proceeded to Saudi Arabia to perform Umra.- He authorised Secretary of the Board to officiate in his absence. The respondent No. 1 when came to know of his going abroad proceeded to serve him with the show cause notice under Section 14(2) of the Punjab Boards of Intermediate and Secondary Education Act, 1976. The petitioner has challenged the show cause notice through this Constitutional petition, which came up for preliminary hearing on 11.4.1990 and the respondents No. 1 and 2 were directed to submit report and parawise comments. The order, has been complied with. 3. The learned counsel for the petitioner in support of this petition has argued that his casual leave was always sanctioned by himself; In order to establish this practice the learned counsel has referred to Annexure 'B' which is a circular dated 28th January. 1990. The other submission was that proviso to Section 14 gives the exhaustive list of charges, when an action can be taken and the present action is not covered by the same therefore, the action is ultra vires. The third submission was that the petitioner himself being the principal executive was to exercise control over the office. In this behalf the learned counsel for the petitioner has referred to para 1 of First Schedule. 4. On the other hand, Ch. Ijaz Ahmad, Advocate, appearing on behalf of respondents No. 1 and 2 submitted that the Board is a corporate body as is clear ' from section 3(2) of the board of Secondary Education Act, 1976 (hereinafter referred as Act of 1976) while the constitution of the Board is given in Section 5 of the said Act. It is submitted that the Chairman is only a member of Board and not the Board itself. It is added that although the petitioner was on deputation but he remained a civil servant. In this behalf reliance is placed on the case reported as 1982 P.L.C. (CS) 514, therefore, according to Rule 35 he was required to get the leave sanctioned from the Board. In this behalf it is added that Faisalabad Board of Secondary Education had adopted the Leave Regulations of Sargodha Board. The learned counsel submitted that para 3 of the Terms & Conditions of Service of the petitioner does not by any stretch of imagination grant him right to sanction his own leave and it is Regulation No. 35 of the Leave Regulations hich will hold field. The learned counsel for the respondents further submitted that the petitioner concealed the true facts while applying for 'No Objection' to leave for Saudi Arabia. It is maintained that in any case the facts were not correctly and truthfully submitted by him. In this behalf he has referred to Annexure 'B' and particularly the second sentence that he has got casual leave sanctioned. Therefore, the petitioner is not entitled to any discretionary relief. In this behalf he has referred to (P.L.D. 1974 S.C. 106, 1973 S.C.M.R. 127 and (1969 S.C.M.R. 141). The other submission was that the petitioner has no jurisdiction or authority to appoint secretary as Chairman or at least authorise him to officiate as Chairman. It is exclusively the function of the Controlling authority. In this behalf learned counsel has referred to section 15(3) of Act, 1976. The arguments are concluded with the submission that the petitioner cannot be given exemption from being dealt in accordance with law. In this behalf the learned counsel has referred to Article 4 of the Constitution. It is submitted that in any case the petition is premature and not competent as the petitioner can raise all these legal and factual controversies before the competent authority. The allegations levelled in the writ are malafide and without any substance. It is submitted that on the other hand action taken in accordance with the Statute book cannot be termed as malafide. In this behalf learned counsel has referred to P.L.D. 1964 S.C. 438. 5. The learned Advocate-General also appeared on behalf of respondent No. 2. He has placed on record copy of memo, dated 30.4.90 requesting him to arrange for the defence of the writ petition. The learned Advocate-General argued that the proceedings are coram non judice, therefore, liable to be set aside. It is submitted that disciplinary proceedings cannot be initiated under Section 14. It has been enacted with a different object while the disciplinary proceedings are to be initiated under proviso to section 12(8)(/v). It is further submitted that Rule 10 of Punjab Civil Servants (E&D) Rules prescribe the procedure for initiating action against civil servants on deputation. The arguments are concluded with the submission that the action is not maintainable in law. 6. the learned counsel for the petitioner while replying to the arguments of the learned counsel for respondents No. 1 and 2 subm'tted that the provisions of Section 14 being penal in nature, therefore should be interpreted in favour of the subject. In this behalf he has referred to 1989 S.C.M.R. 392 and P.L.D. 1989 Karachi 513. It was further submitted that para 3 of the Terms and Conditions of Service of the petitioner as notified by respondent No. 1 deal with the sanction of earned leave etc. and not casual leave. It is added that Schedule is not subordinate legislation, therefore, it is to be read in harmony with the other provisions of Act, 1976. In this behalf reliance was placed on the judgments reported as 1989 S.C.M.R. 345 and 1986 S.C.M.R. 1063. The learned counsel for the petitioner relied on para 2(9) of the Schedule to justify that the petitioner was well within his authority to authorise Secretary of the Board to exercise the powers of Chairman in his absence. 7. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position is that the petitioner sanctioned his own casual leave for 10 days and proceeded to Saudi Arabia and in his absence bestowed his powers and entrusted his duties to the Secretary of the Board. The respondents No. 1 and 2 had taken exception to it and served him with the impugned show cause notice. Before proceeding any further it is relevant to refer to the show cause notice. Para 1 of the same reads as under:- "Subject- Show cause Notice Under Section 14(2) of The B.I.S.E. Act, 1976 (As Amended in 1985). From the Office Note No. S.S. 1113/89/CH, dated 20.12.1989, recorded by you, it is evident that:-- 1. You sanctioned casual leave in your own favour for 10 days w.e.f. 23.12.1989 in order to proceed abroad for performance of Umrah. 2. You did not obtain sanction from the competent authority. 3. You were not eligible to leave country on the strength of casual leave. For Proceeding abroad leave Ex-Pakistan due/ according to title had to be obtained from the competent authority. 4. You authorised Ch. Muhammad Iqbal, Secretary of the Board to look after the affairs of the Board during the period of your absence from the country. You were not competent to pass such an order. 5. You were not competent to leave headquarter sanction without the permission of the competent authority." 8. The first point for determination is whether the show cause notice was to be issued under section 12(8) clause (a 1 ) as argued by the learned counsel for the petitioner and learned Advocate-General or it has been rightly issued urfder section 14(2) of the Act, 1976 as maintained by Ch. Ijaz Ahmad, learned Advocate appearing for the respondents? Therefore, before proceeding further it is worth while to refer to the two provisions of law. The same read as under:-- Section 12(8) Clause (iv) "The Controlling Authority may remove from service any employee of a Board: Provided that no such employee shall be removed from service without being given an opportunity of being heard: Provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter." Section 14(2) "The officers of the Board shall hold office for a term of three years from the date of notification of their appointments and shall be eligible for reappointment for such further period, not exceeding three years, as may be specified in the order of re-appointment: Provided that the Controlling Authority may, at any time review the work of the officers of the Board and if on such review it is satisfied that in the interest of the Board, or for any other sufficient cause, it is necessary to do so, it may, after giving an officer, an opportunity of showing cause against the proposed action, dismiss or remove him from service or reduce the term of office of any such officer by such period as it may determine." 9. Section 12 deals with the powers of the Controlling Authority which amongst others include disciplinary action against the 'employees' as is clear from proviso to sub-section (8)(/v). The same has been referred to and relied by the learned Advocate-General as well as counsel for the petitioner. While Section 14 deals with the 'officers' of the Board and their temire etc. It is clear from proviso to sub-section (2) that Controlling Authority is vested with trie powers to initiate disciplinary proceedings against the 'Officers of the Board! The scope of Sections B 12 and 14 is quite distinct. There is no over-lapping between the two provisions. It is clear from the Scheme of the Act that the legislature has used two different terms for members of staff of a Board, namely, 'officers' and 'employees'. This matter becomes crystal clear if reference is made to clause (/) of sub-section (8) of section 12 which reads as under:- (/) Place the services of any of the officers or other employees of any Board at the disposal of the Government or any other Board or institution for such period and on such terms and conditions as may be determined by him provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer." The legislature has used the term 'officers' and 'other employees' in this clause whereas in proviso to clause (/v) the word 'employee' • has been incorporated and in contradistinction to this the legislature in proviso to sub­ section 14(2) of Act, 1976 has used the term 'officers'. This provision has already been reproduced. The officers of the Board have been specified in Section 13. It is, therefore, clear that disciplinary proceedings against the officers have to be initiated under section 14.1 am fortified in my view by the judgment of this Court in the case of Clt. Muhammad Bakhsh v. Government of Punjab through Secretary, Education, Government of Punjab and 2 others (P.L.D. 1989 Lahore 175). In this case the petitioner, who belonged to the Education Department was on deputation with Sargodha Board of Secondary Education as Controller of Examinations. There were certain allegations against him as a result, therefore, notification curtailing 3 years' tenure and ordering his repatriation was issued. The notification was struck down because it was issued without complying with the mandatory requirement as to showing cause. The Board otherwise was held competent to take action under Section 14(2) ibid. Therefore, there is no merit in the argument of the learned counsel for the petitioner as well as of the learned Advocate-General that no action can be taken against the petitioner under Section 14(2) of Act, 1976 and proceedings are coram non judice. 10. The next submission on behalf of the petitioner was that the whole proceedings are malafide and even earlier he was retired on the pretext that he had attained the age of superannuation. The petitioner successfully challenged this order through Constitutional petition. The respondents No. 1 and 2 have now started disciplinary proceedings. On the other hand learned counsel for respondents No. 1 and 2 submitted that the respondents are simply discharging their official duty strictly in accordance with law and there is no malice or malafide. In this behalf he has referred to the case of East Pakistan v. Al-Haa Maulvi Muhammad Yasin Qureshi and another (P.L.D. 1964 S.C. 438). The action against the petitioner prima facie appears to be taken in good faith and in exercise of powers lawfully vested in the respondents. Even the question of malafide can be raised by the petitioner before the departmental authorities and ultimately in the appeal before Punjab Service Tribunal. 11. Now coming to the merits of the charges forming part of show cause, it is dear from the arguments of both sides and reference to provisions of law and regulation that at least some of the charges subject-matter of show cause notice are prima facie actionable but any deliberation by this Court at this juncture is neither desirable nor legal because on the one hand it will prejudice the case of the either party and on the other hand it will amount to pre-empting the jurisdiction of the departmental authorities^ It is for this reason that I have avoided to record any findings as to the merits of the charges forming part of the show cause notice. It is made clear as abundant caution that any observation as to the merits of the charges shall not be binding on the departmental authorities. I again may refer in this behalf to the judgment of this Court in the case of Ch. Muhammad Bakhsh. The relevant portion reads as under:-- "13 ............... 1 have purposefully desisted from commenting upon the merits of the allegations levelled against the petitioner, to avoid any observation which may prejudice the case of either side. It is for the Inquiry Officer or the Authorities, which are dealing with the disciplinary action to decide the question of truth or falsehood of the allegations on the basis of material before them.' 12. This is not all. The petitioner is admittedly an officer of the Board and the matter pertains to Terms and Conditions of his service, therefore, if any adverse order is ultimately made against him then he can assail such adverse order in a departmental appeal etc. The learned counsel for the petitioner tried to justify the resort to present Constitutional petition with the submission that the petitioner can-not maintain an appeal against the impugned show cause notice. This will not change the legal position. I am fortified in my view by the judgment of Supreme Court of Pakistan in the case of Abdul Wahab Klian v. Government of unjab and 3 others (P.L.D. 1989 S.C. 508). In this case, civil servant was facing departmental enquiry under Punjab Civil Servants (E&D) Rules, 1975. The then Additional Chief Secretary, Government of Punjab was appointed as authorized officer in relation to the enquiry but he did not want to act as such, therefore, reported the matter to the authority for appointment of another authorized officer. Thereafter Secretary, Services was appointed as an authorised officer. The civil servant objected to this appointment but without success. He thereafter challenged this order in the Constitutional jurisdiction of this Court but the same was dismissed. Thereafter he filed I.C.A. No. 1/88. The same was also dismissed. He being still not satisfied took up the matter to the Honourable Supreme Court. His petition was dismissed and relevant portion of the judgment reads as under:-- "Even without such observation, the petitioner is entitled to seek remedy in regard to the filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the tribunal should be such which is appealable in accordance with relevant Service Tribunals Act. But the order impugned before the High Court vis-a-vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the tribunal.With these observations, this petition is liable to be dismissed. Before closing, it needs to be observed that the bar of jurisdiction of the High Court in service matters, contained in Article 212 of the Constitution, has also been spelled out by this Court in a recent decision in the case of S.P.Lahore . Muhammad LatifASI (Civil Appeal No. 677 of 1984, decided on 19.4.1988) P.L.D 1988 S.C. 387." The learned counsel for the petitioner was the author Judge of the Judgment passed in I.C. A No. 1/88 filed by Abdul Wahab Khan. The relevant portion of the same reads as under:-- "He, therefore, contends that the Secretary (Services) could not be appointed as an Authorised Officer and cannot act as such. The petitioner is yet to face the inquiry and if he is penalised he has a statutory right of appal before the Punjab Service Tribunal. Therefore, if the authorised officer or the authority does not act in accordance with law the petitioner can challenge the penalty, if imposed, before the appellate authority not only on merits but also on this legal objection and similar right and opportunity will be available to him if he has to go to the Service Tribunal. As the petitioner will have the said remedies available to him the writ petition is not maintainable and has rightly been dismissed. The I.C.A. is, therefore, dismissed in limine." I, Therefore, hold that this petition is legally not competent. 12. The learned counsel further submitted that conduct of the petitioner is not fair firstly because he himself represented to the Controlling Authority that he has got the casual leave sanctioned and secondly his only effect is to avoid the consequences of his illegal action. It is, therefore, submitted by him that this petition should be dismissed. In this behalf he has referred to Chief Settlement Commissioner v. Raja Mohammad Fazil Klian and others (P.L.D. 1975 S.C. 331), Wali Muhammad & others v. Sakhi Muhammad and others (P.L.D. 1974 S.C. 106), Tufail Muhammad and others v. Muhammad Zia Ullah KJian and others (P.L.D. 1965 S.C. 269) andAbdurRashid v. Pakistan and others (1969 S.C.M.R. 141). 13. Suffice it to observe that the petitioner is being dealt in accordance with law. Therefore, question of malafide does not arise and in any case if he suffers any illegality at the hands of the departmental authorities, then he can make grievance of the same before the authorities specified under the law. The respondents cannot be restrained from discharging their legal functions under the law. 14. Before parting with the judgment it is worthwhile to mention here that respondents No. 1 and 2 in obedience to the orders of the Court submitted reports wherein they clearly contested the petition. This is not all. They engaged Ch. Ijaz Ahmad, Advocate, to defend their action but the learned Advocate-General while appearing on behalf of the respondent No. 2 argued that the action is illegal. It is for the Government to take measures that in further such situation does not recur. The issues have been decided on their merits, firstly, because there is no estoppel against law, secondly it is the duty of the Court to decide the causes in accordance with law and concessional statements cannot furnish valid basis. 16. The other matter which also requires attention is that the petitioner requested for issuance of 'No Objection Certificate' to proceed for Umra. While Mr. Muhammad Rafiq Bajwa, Section Officer (Board) issued the memo dated 20.12.1989 for grant of International Passport. The concerned official is clearly guilty of inefficiency and gross negligence. The request of the petitioner was only spread over five lines, therefore, there was no question of any misgivings as to the request of the petitioner. It clearly shows the inefficiency and lack of interest in the discharge of the duties by the concerned official. This is not all. The petitioner did proceed and perform Umra but Immigration authorities failed to check whether the petitioner has been granted 'No Objection Certificate' to leave Pakistan or not? This way they also failed to discharge their duty. If the grant of 'No Objection Certificate' is to be given this importance by the concerned officials, then it is better to do away with this formality. Let copy of this judgment be sent to the Chief Secretary, Govt. of Punjab, as well as cretary, Interior, Government of Pakistan. 17. The up-shot of the above discussion is that prima facie there is nothing wrong with the show cause notice. The petitioner can raise all sorts of pleas in defence before the concerned authorities and in case of any adverse finding being made against him he will have other adequate remedy by way of departmental appeal etc. where he can agitate all these points. The result is that this petition is misconceived and incompetent, therefore, dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 393 (DB) PLJ 1990 Lahore 393 (DB) [Bahawalpur Bench] Present: SH. khizar HAYAT AND CH. AMJAD KHAN, JJ MUKHTAR MASIH-Petitioner versus Mr. MUHAMMAD RAFIQUE MAJHETIA, Additional District Judge and 5 others-Respondents Writ petition No. 916/BWP of 1988, accepted on 3.4.1990 Punjab Local Government Ordinance, 1979 (VI of 1979)-- -—S. 21(l)(e)--Minority seat-Election of--Disqualification of elected member-Challenge to-Whether petitioner was a salaried official and hence disqualified to be elected as member of local council-Question of--Word "official" in its dictionary meaning, signifies that thing which pertains to office and word "office" has reference to that function by virtue of which a person has some employment in affairs of another, whether judicial, ministerial, legislative, municipal, ecclesiastical etc.~Office means "position with duties attached to it, place of authority or trust or service, especially of public kind"- -Held: Petitioner is not proved to be having any authority or trust of public nature to have incurred disqualification-held further: Respondent No.l has only arbitrarily and without any basis held petitioner to be disqualified from holding minority seat in question-Petition accepted. [Pp. 395&396]A,B,C&D Ch. Abdul Nabi, Advocate for Petitioner. Mr.Muhammad Ibrahim KJian, Advocate for Respondent No.2. Date of hearing: 3.4.1990. judgment Amjad Khan, J.~This writ-petition by Mukhtar Masih, a returned candidate in the election held to the minority-seat of Haroonabad Municipal Committee, calls in question the order dated 1.7.1989 passed by respondent No.l in an election-petition maintained by Phool Chand Pandit (respondent No.2); whereby he annulled the petitioner's election upon conclusion reached to the effect that his candidature suffered from disqualification of being a 'salaried official' within the contemplation of Section 21(l)(e) of the Punjab Local Government Ordinance, 1979 and he directed fresh election to be held for that seat. 2. Plea urged in the election-petition, among others, was that Mukhtar Masih is a Government servant employed in the Government Dairy and Poultry Farm, Haroonabad and receives pay from the Exchequer. Upon contest, necessary issue was framed and evidence of only two witnesses, an Auditor and an Accountant of the Farm, was adduced in support of the petition which is to the effect that Mukhtar Masih is serving on daily wages in the Live-Stock Farm, Haroonabad, a Government Project since 1987 with a gap of one or two months and in December, 1988 he received Rs.651/-. There was no evidence led in rebuttal and even the parties themselves did not make their depositions for or against the said averment. There, no doubt, were certain questions put to those witnesses for eliciting the answers to the effect that the returned candidate was neither a permanent employee nor entitled to any allowance or pension and the Auditor (P.W.I) went on to even depose during the cross-examination as under:- "Drivers are engaged for tractors at the time of sowing of crops. There are 18 other persons alongwith Mukhtar Masih engaged on daily wages for the month of December, 1988. There are other permanent employees of the Live-Stock Farm. It is correct that sweepers like Mukhtar Masih are permanent employees of the Department. There is no application of Mukhtar Masih for his engagement as a temporary employee of the Live- Stock Farm or on daily wages." It is note-worthy that it has not been brought out anywhere as to what may be the nature of the job actually assigned to Mukhtar Masih. 3. Reasoning germane to the impugned judgment is:- "There is no mention in the above-quoted provision of law that a salaried official must be a whole-time official or a part-time salaried official. It clearly connotes that the person who is in receipt of salary from the Government exchequer is a salaried person like the respondent No.l. He was receiving salary in the sense that he was receiving a recompense or payment on account of his continuance in the Provincial service although on work charge basis even. The words 'whole-time salaried official' are in fact adjective and have been used as attributes to qualify the noun 'official', (b) and the characteristics of whose office is, that it is a salaried as opposed to the adjective 'honorary'. Similarly, the other attribute of the official position must be that it is a whole-time 'as opposed to part-time appointment'. As already observed, the word 'whole- time' has not been incorporated in Clause (e) sub-section (1) of Section 21 of the Punjab Local Government Ordinance, 1979 as the only expression used therein is the 'salaried official'.' 4. Election Tribunal has not much erred in comprehending the meaning of 'salary', the source of the word 'salaried'. This is an expression used, of course in some rare situations only, to convey earnings of the nature of wages and is, at tunes, even used inter-changeably therewith but the expression 'wages' is generally confined to the earnings of labourers and artisans while the word 'salary' is used for payment of services of persons only of a higher class (Grover J. In Gordon vs. Jonnings, 51 LJ.Q.B.P. 418). Respondent No.l has, however, grievously erred in the exercise of his jurisdiction to altogether leave out of consideration the word 'Official' while construing the expression 'salaried official' which occurs in clause (e) of sub-section (1) of Section 21 of the Punjab Local Government Ordinance, 1979 reproduced hereunden- "21. Disqualifications of candidates and members. (1) A person shall be disqualified to be a candidate or a member of a local council— (6) ............. (c) -..: ......... (d) ............. (e) if he is a salaried official of Federal or Provincial Government or of a Public or Statutory Corporation, a local council or other local authority;" The term 'salary' itself bespeaks of a person higher in status than a labourer or artisan, which Mukhtar Masih has, of course, been proved to be, on the basis of evidence led by the respondent himself. The word 'Official', in its dictionarymeaning, signifies that thing which pertains to office and the word 'Office' has reference to that function by virtue whereof a person has some employment in the affair of another, whether judicial, ministerial, legislative, municipal, ecclesiastical etc.- (Cowel's Law Terms and Phrases). 'Office' means, 'position with duties attached to it, place of authority or trust or service, especially of public kind'. The essence of office is that it involves duties and position of authority and trust of public nature. In that sense of the word, an artisan or a workman working in a factory does not hold any 'office'. Whether or not the writ petitioner may be just a sweeper, as may have been intended by P.W.I to be conveyed in the expression, 'Sweepers like Mukhtar Masih', he has not been proved by any standard to be an official, to fall within the ambit of the expression 'salaried official'. The petitioner is not proved to be having any authority or trust of public nature to have incurred the above-referred disqualification. 5. The Election Tribunal (respondent No.l) has only arbitrarily and without any basis held the petitioner to be disqualified from holding the minority-seat in question. His order does not have any support from the record and is, hence, not sustainable. 6. In result of the foregoing, we accept this writ-petition and declare the rder dated 1.7.1988 passed by respondent No.l to be unlawful and of no effect, urther, the relevant election-petition is also declared dismissed as nsubstantiated. Parties are, however, left to bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 396 PLJ 1990 Lahore 396 Present: IHSAN-UL-HAQ CHAUDHARY J Mst. KISHWAR SULTAN-Petitioner versus MUNICIPAL CORPORATION FAISALABAD-Respondent Writ petition No. 1119 of 1990, dismissed on 27.5.1990 (i) Constitution of Pakistan, 1973- —-Arts. 203-D, 203-G and 203-GG read with Punjab Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, Rule 4— Employee of Municipal Corporation-Retirement of-Challenge to-Whether High Court has jurisdiction to declare any provision of statutes or rules repugnant to injunctions of Islam-Question of-Jurisdiction of High Court is barred in view of clear provision of Article 203-G~Rule 4 of 1966 Rules will hold field till it is declared repugnant to injunctions of Islam by Shariat Court-Held: Raising question of repugnancy will not help petitioner and resort to constitutional petition is not proper-Petition dismissed. [Pp. 398&399]C,D,E&F (ii) Punjab Local Councils and Municipal Committees Servants (Retirement) Rules, 1966- —R. 4-Employee of Municipal Corporation-Retirement of~Challenge to— Whether Rule 4 stands scraped in view of judgments of Federal Shariat Court- -Question of~Held: Judgment of Federal Shariat Court is only confined to statutes and rules specified therein while remaining similar provisions in laws and rules are to be declared (repugnant to injunctions of Islam) when brought before Shariat Court. [P p .397&398]A&B 1988 CLC 1877 not followed. PLD 1986 FSC 200 and PLJ 1989 FSC 35 nil. Ch. Muhammad Arshad, Advocate for Petitioner. Mr. Aamar Raza A. KJian, Advocate for Respondent. Date of hearing: 27.5.1990. judgment The petitioner through this Constitutional petition has challenged the order of her compulsory retirement dated 10.2.1990. 2. The relevant facts are that the petitioner was serving as P.T.C teachress in the Municipal Corporation, Faisalabad. She completed her 25 years' service qualifying for pension and other retirement benefits. The respondent proceeded to retire her vide order dated 10.2.1990. The petitioner has assailed this order through this petition, which was admitted to hearing and notice was issued to the respondent. 3. The learned counsel for the petitioner in support of the petition has argued that the provisions of Punjab Local Councils and Municipal Committee Servants (Retirement) Rules, 1966 are against the injunctions of Islam as contained in Holy Book and Sunnah. In this behalf the learned counsel for the petitioner has referred to the cases of Pakistan and others Vs. Public at large and others (P.L.D 1987 S.C. 304) and Siddique Ahmad Klian Versus Secretary, Housing Planning, Local Government and Rural Development Karachi and 2 others (1988 C.L.C. 1877). It is added that in view of the judgment of Honourable Supreme Court in the case of Pakistan and others ibid, the provision is to be deemed a dead letter. 4. On the other hand, Mr. Aamer Raza A.Khan, Advocate, for the respondent has argued that the impugned order is legal as the provision of Rule 4 of Rules of 1966 is a valid provision of law. It is added that the provisions of these rules and of Local Councils Ordinance were not the subject-matter either before Federal Shariat Court or the Shariat Bench of Honourable Supreme Court. Therefore, the judgment in the case of Pakistan and others is not relevant while in the case of Siddique Khan, with utmost respect it is submitted that it cannot be followed because in that case, the (sic) of the court was not taken into consideration and it was assumed that all similar provisions have been declared ultra vires being repugnant to the injunctions of Islam. In-fact this is not the position. The arguments are concluded with the submission that the petitioner has an alternative remedy of appeal under Rule 4-A, therefore, she cannot successfully maintain this Constitutional petition. 5. The learned counsel for the petitioner while replying to the arguments of the learned counsel for the respondent submitted that since the Controlling authority while hearing appeal against the impugned order cannot go into vires of rules, therefore, the appeal is not an adequate remedy. The petitioner has rightly filed this petition. It is added that the Supreme Court in the judgment of Pakistan and others has clearly held that the notice is to precede an order of compulsory retirement. 6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, provisions of law and precedents relied by the learned counsel for the parties. The foremost question for determination is whether Rule 4 of Rules, 1966 stands scraped in view of the judgments, of Federal Shariat Court in Muhammad Ramzan Qureshi V&federal Government and others (P.L.D 1986 FSC 200) and Government of Pakistan and another ibid. It is clear from the opening paragraph and Order of the Court at pages 392-393 that the provisions of statutes and statutory rules specified therein have only been found repugnant to injunctions of Islam. The Order of the Court reads as unden- "The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action: (j) Section 13, clauses (i)&(ii) of Civil Servants Act, 1973. (»') Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973. (hz) Section 13 clause (i) of Sind Civil Servants Act, 1973. (zv) Section 13, clauses (i) and (ii) of Baluchistan Civil Servants Act, 1974. (v) Section 13, clause (i) of the NWFP Civil Servants Act, 1973. (vz°) Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924. The competent authorities are hereby allowed a period of six months from today (11.3.1987) to amend the law so as to bring it into conformity with the injunctions of Islam, failing which they shall cease to have legal effect." In face of this clear finding the decision in the case of Siddique Ahmed Khan cannot be followed. It is clear from above portion that this judgment is only confined to the statutes and rules specified therein while remaining similar provisions in laws and Rules are to be declared when brought before Shariat Court. The conclusion is further supported by the judgment in the case of SA Znbairi Vs. National Bank of Pakistan (P.L.J 1989 F.S.C. 35) The next question which falls for determination is whether this Court is vested with the jurisdiction to declare any provision of Statutes or Rules repugnant to injunctions of Islam. The learned counsel for the respondent rightly submitted that in view of the clear provisions of Article 203-D, 203-G and 203 GG of the Constitution of Islamic Republic of Pakistan, it is the Federal Shariat Court alone which can adjudicate as to the vires of statutes with reference to Quran and Sunnah. Therefore, the petitioner cannot raise the question that Rule 4 of Rules, 1966 is repugnant to injunctions of Islam in this Court and in these proceedings. 7. Now I take up the preliminary objection raised by the learned counsel for the respondent that since the petitioner can maintain an appeal under section 4 against the impugned order, therefore, the writ petition is incompetent. The learned counsel for the petitioner while meeting this objection submitted that since the question of vires, of Rule 4 can not be raised before the Commissioner in appeal under Rule 4-A, therefore, that remedy is not proper and adequate. The same difficulty arises in the way of the petitioner in this petition because no Court including Supreme Court of Pakistan and this Court can determine whether a statute or rule is repugnant to injunctions of Islam or not. The jurisdiction is absolutely barred in view of clear provision of Article 203 G. Therefore, the argument of the learned counsel for the petitioner has no merit that the appeal was not adequate remedy. Rule 4 will hold filed till the time it is declared repugnant to the injunctions of Islam by Shariat Court. Therefore, raising the question of repugnancy will not help the "petitioner. 8. It is clear from Rule 4-A that the petitioner can maintain an appeal against the impugned order, therefore, resort to Constitutional petition is not proper. The petitioner can file the appeal forthwith with an application under section 14 of the Limitation Act which shall be decided by the appellate authority in accordance with law. The result is that this petition is dismissed as incompetent. However, the petitioner can agitate her grievance through an appeal. There is no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 399 PLJ 1990 Lahore 399 Present: MALIK MUIIAMMAD QAYYUM J BASHIR AHMAD-Petitioner versus Mst. ZUBAIDA BIBI and another-Respondents Writ petition No. 1662 of 1990 accepted on 29.5.1990 Family Courts Act, 1964 (W.P. Act XXXV of 1964)- —-Ss. 17 & 10-Dissolution of marriage-Suit for-Non-filing of written statement—Defence struck off and suit decreed—Challenge to—Contention that even if no written statement had been filed, it was incumbent upon Family Court to have recorded some evidence in support of case set up by respondent No. 1 and suit could not be decreed without any proof- Provisions of CPC are not applicable to proceedings before Family Court in view of Section 17 of Act-Held: Words "if any" appearing in Section 10(2) ordain that even if there is no written statement, reconciliation proceedings must be held and evidence should be recorded-Writ petition accepted. [P. 400]A,B&C PLD 1989 Lahore 69 rel. Mr. Klialid Ikram Kliatana, Advocate for Petitioner. Mr. Tahir Qureshi, Advocate for Respondent No.l. Nemo for Respondent No.2. Date of hearing: 29.5.1990. judgment Respondent No.l, Mst, Zubaida Bibi was married to Bashir Ahmad petitioner about 6-7 years ago. Unfortunately, the parties fell apart and on 28th October, 1989, respondent No.l filed a suit seeking dissolution of her marriage on various grounds. In response to the summons issued by the Family Court, the petitioner appeared before it on 18.12.1989 when the case was adjourned to 17.1.1990. On this date the case was adjourned for filing of written statement to 24.1.1990 at the request of the learned counsel appearing on behalf of the petitioner. Again no written statement was presented on 24.1.1990 nor on 12.2.1990 when the learned Judge Family Court proceeded to strike off the defence of the petitioner and without recording any evidence decreed the suit of the respondent. This judgment and decree of the Family Court has been assailed by the petitioner by filing this constitutional petition. 2. The contention of the learned counsel for the petitioner is that even if no written statement had been presented on behalf of the petitioner, it was incumbent upon the Family Court to have recorded some evidence in support of the case set up the respondent No.l and the suit could not be decreed without any proof merely on the ground that no written statement had been filed on behalf of the petitioner. This contention of the learned counsel is well founded. There can be no dispute that the provisions of the Code of Civil Procedure are not applicable to the proceedings before the Family Court in view of the express provisions contained in section 17 of the Punjab Family Courts Act, 1964, Neither this Act nor the rules framed thereunder authorise the Family Court to decree the suit merely on the failure to file written statement. On the other hand the intention to the contrary is spelt out from section 10 of the Punjab Family Courts Act, 1964, sub-section (2) whereof provides that on the date fixed, the Court shall examine the plaint, the written statement (if any) and the precis of evidence and documents filed by the parties. According to sub-section (3), the Court shall make an attempt to effect a compromise or reconciliation between the parties. Sub-section (4) provides, that if no compromise is possible the Court shall frame the issues and fix a date for recording of evidence. The words 'if any' appearing in sub-section (2) are significant and ordain that even if there is no written statement, reconciliation proceedings must be held and evidence should be recorded. In a somewhat similar situation, this Court in Muhammad Ashraf vs. Nasreen Begum through legal heirs and 3 others (PLD 1989 Lah. 69), held that the Family Court could not without recording evidence decree the suit who has been proceeded against exparte. Faced with this situation, the learned counsel for the contesting respondent has nothing to argue. As a result of what has been stated above, this writ petition is accepted, the judgment and decree of the Family Court dated 12.2.1990 is declared to be without lawful authority and of no legal effect with the result that the suit filed by respondent No.l shall be deemed to be pending before the Family Court which shall now be decided by it in accordance with law. The parties shall appear before the Judge, Family Court on 13.6.1990 who shall make efforts to decide the suit expeditiously. No order as to costs: (MBC) Petition accepted

PLJ 1990 Lahore 401 PLJ 1990 Lahore 401 Present: IlISAXLI. IlAQ CIIAUDIIARY, J NAZIR AHMAD BUTT-Petilioner versus Malik MUSHTAO AHMAD, ADDL. DISTRICT JUDGE, Lahore , and 2 others—Respondents Writ Petition No. 695 of 1988, dismissed on 13.5.1990 (i) Misreuding- —Mistake or error in reading evidence—Whether vitiates judgment—Question of-Misreading of evidence should be on a material point which forms basis of judgment—If miircading is on a point which is inconsequential, e.g., mentioning \rong date, wrong number of property or name of party, then it is not material—Held: If findings of one particular point are based on more than one reasoning and there is misreading in respect of one of these while others remain unaffected, then misreading will not be fatal. [P.406JG (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13—Tenant—Ejectment of—Dismissal of application—Challenge to—Offer of landlord to pay Rs. 100000/- if tenant vacates premises forthwilh-Effcct of -Petitioner should not have made an offer in court proceedings, which is illegal—Held: Petitioner does not seem to be conscious of immoral offer, if not illegal, made by him-Pelition dismissed. [P.409]H&J (iii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13—Tenant—Ejectment of— Personal 'requirement—Ground of—Whether by filing fresh ejectment petition on ground of requirement for reconstruction, petitioner abandoned 1m plea of personal use—Question of—If petition is allowed loda. petitioner \ull secure possession but tomorrow he will proceed to demolish ii-Hcncc both pleas when taken separately, arc destructive and inconsistent—Held: While spelling building plan sanctioned and filing ejectment petition on basis of reconstruction, petitioner has abandoned his earlier claim for ejectment on ground of personal use. [Pp. 404,405&406]A,B,C,D&E 1985 SCMR 504. PLD 1982 SC 227, 1981 SCMR 924 and 1983 SCMR 1227 distinguished. (iv) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13—Tenant—Ejectment of—Personal need—Ground of—Whether there is no bar in maintaining second ejectment petition—Question of—There is no cavil with proposition that landlord can maintain ejectment petition in respect of every cause of action, but it is not a licence to take contradictory and sell-destructive pleas in different petitions-Held: Courts are not precluded from examining whether two actions of landlord are mutually consistent or inconsistent. [P.406JF 1971 SCMR 60 distinguished. Kli. Habibullah, Advocate for Petitioner. Mian Nisar Ahmad, Advocate lor Respondenl No. 3. Respondent Nos. 1&2: Exparte. Dale of hearing: 13.5.1990 JUDGMENT The petitioner through this Constitutional petition has sought declaration that the order of respondent No. 2 dated 23.12.1987 is illegal and prayed for its selling aside and restoration of the order of respondent No.l dated 11.10.1986. 2. The relevant facts are that ihc petitioner let out shop No. 7, Building No. 1, Commercial Zone, Gulberg-Ill, Lahore, to respondent No.3 in year 1971. The petitioner sought ejectment of respondent No.3 on the ground of personal use in the ejectment application filed on 5.7.1984. The tenant resisted this application. The learned Rent Controller in view of the pleadings of the parties framed following issues:- "1. Whether the disputed property is required by the plaintiff for his personal use in good faith? OPP. 2. Relief.: 3. The petitioner in order to prove the issue produced Muhammad Naeem, Advocate as PW1, Mahmood Anwar as PW2, Muhammad Sarwar Qadri as PW3 and himself appeared as PW4. The petitioner also produced documentary evidence, which included Exh. P.I to Ex.P.6 returns submitted to Excise Department, the decision of his wealth lax case as Exh.P.7, site plan as Exh.P.8, agreement dated 19.5.1971 as Exh. P.9, agreement dated 6.3.1971 as Exh. P.10, compromise dated 4.11.1975 between the parties in earlier ejectment petition as Exh. P.ll, statements of the parties dated 4.11.1975 as Exh.P.12 and order of the Rent Controller dated 4.11.1975 as Exh.P.13, the application moved by the petitioner and his tenant for dismissal of another ejectment petition in terms of the compromise as Exh.P.14. The tenant in rebuttal examined Shcr Amjad as RW1, Tussadaq Hussain as RW2, Navecd Akbar as RW3, Mursalin Dar as RW4, Amjad Wahecd Butt as RW5 and himself appeared as R\V6. The respondent also produced documentary evidence, which included money order receipt as Exh.R.I, letter from the petitioner as Exh.R.2, copy of ejectment petition as Exh.R.3 while reply to this petition as Exh.R.3/1, the statements of the parlies in the matter as Exh.R.3/2, copy of anolher ejectment petition and its reply as Exh.R.4 and Exh.R.4/1 respectively while copy of application as Exh.R.5, copies of the statements as Exh.R.5/1 and reply to application as Exh.R.5/2, copy of the ejectment petition as Exh.R.6, reply thereto as Exh.R.6/1, copy of the execution petition as Exh.R.7, copies of.the ejectment petitions as Exh.R.8 and Exh.R.9. 4. The learned Rent Controller after hearing the arguments proceeded to allow the petition and directed the tenant to put the petitioner in possession of the disputed premises vide order dated 11.10.1986. The tenant assailed this order through an appeal before the appellate authority, respondent No. 1, who after hearing the parlies proceeded to accept the appeal and set-aside the impugned order of respondent No.2 vide order dated 23.12.1987. It is this order, which has been impugned by the landlord in this Constitutional pelition, which was-admitlcd to hearing and notices were issued to the respondents. The respondent No.3, alone has appeared and contested the petition while the other respondents were proceeded ex-parle. 5. The learned counsel for the petitioner in support of the petition has argued that it is a judgment of variance and respondent No. 1 while reversing the order of the ejectment failed to meet the reasoning given by the learned Rent Controller in support of his order. The learned counsel, in this behalf, has referred to eases of Madan Gopal and 4 others vs. Maran Bepari and 3 others (P.L.D. 1969 S.C. 617) and 1987 S.C.M.R. 43. The second submission is that the learned appellate authority while deciding the appeal did not lake into consideration law laid down by the superior Courts. In this behalf, the learned counsel has referred to P.L.D. 1981 S.C, 246, Dildar Hussain Na^'ar vs. Niaz Muhammad Dar and another (1985 S.C.M.R. 1769), 1969 S.C.M.R. 131, Muhammad.Ishaq vs.A.R. Khan (1982 C.L.C. 562) undHaji Ghulain Mohammad vs. Abdul Qadir (P.L.D. 1975 Lahore 200). The argument in nut-shell is that the statement of the petitioner was sufficient to prove the issue and there is a statutory sale-guard for the tenant provided under the law, therefore, there was no justification legal or otherwise to accept the appeal of the tenant. The other argument was that it is a case of misreading of documents on record by the respondent No.l. therefore, this Court is competent to interfere in the Constitutional jurisdiction. In this behalf, the learned counsel for the petitioner has referred to the judgments of the Hon'ble Supreme Court in the cases of Muhammad Hayal vs. Sh. Bashir Ahmad and others (1988 S.C.M.R. 193) and 1988 S.C.M.R. 1771. The learned counsel in support of the argument has submitted that the respondent No.l has wrongly referred to column No.5 of Exh.P.l to Efxh.P.6. U is submitted that the column pertained to rale of excise duly while the learned appellate authority has read it as increase in the business of the petitioner. 6. On ihe other hand, the learned counsel for the tenant has raised a preliminary objection to the effect that the petitioner during the pendency of ihis Constitutional petition has initialed yet.another ejectment petition against his client and claimed ejectment on the ground of his bonalidc requirement of .the disputed premises for reconstruction. It is submitted that by filing fresh ejectment petition the petitioner has abandoned his claim of personal use, which is subjectmatter of the present Constitutional petition. It is submitted thai both the pleas are sell-destructive. While on merits it was submitled lhal ihe conduct of-the petitioner is that the premises were let out to his client on. 6.3.1971 at a monthly rent of Rs.5()0/- vide Exh.P.10 and just afler Iwo months he was made to enhance ihe rent to Rs. 625/- as is clear from Exh.P.9. This was followed by agreement Exh.P.8, through which rent was enhanced to Rs.700/-. Thereafter the petitioner filed an ejectment petition and made him to enhance the rent in two stages. The compromise is Exh.P.11. It was valid for 8 years and according to it the rent was enhanced lo Rs.900/- for first 2 years and for remaining 6 years the rate was fixed at Rs. 1000/-. This was followed by yet another ejectment petition, which was also compromised through Exh.P.14. This compromise was to hold field upto 1.7.1985. The rent was increased once again in two stages. The first slagc started with effect from 1.7.1979 and rent was fixed at Rs.1250/- while in next stage which commenced from 1.7.1982, the rent was fixed al Rs.1500/-. 7. The learned counsel for ihe tenant has further submitted thai ihe learned Rent Controller brushed aside evidence of his clienl without assigning cogent reasons for the same while the evidence of the petitioner, which suffered from inherent infirmities was taken as gospel's truth. It is submitted that in-fact the learned Rent Controller has not scrutinised the evidence and proceeded on surmises and conjectures. 8. The learned counsel for the petitioner in reply to the preliminary objection raised by Mian Nisar Ahmad, Advocate for the tenant submitted that the grounds of personal use and reconstruction are not mutually destructive. In this behalf, the learned counsel for the petitioner has referred to the judgments of the Hon'blc Supreme Court in the cases of Didar Shah vs. Cli. Chnlain Hauler (deceased) through Legal Heirs and another (1985 S.C.M.R. 504), Da wood vs. Muhammad Yasin (P.L.D. 1982 S.C. 227), Sit. Abdul Aziz and others vs. Kh. Hasan Joo and 5 others (1981 S.C.M.R. 924) and Abdul Ban vs. Khadim Hussain (P.L.D. 1978 S.C. 78). It is added that failure of one ejectment petition does not mean automatic dismissal of the other. In this behalf, he has referred to case of Muhammad Shafique vs. S.M. Khwram and others (1983 S.C.M.R. 1227). The learned counsel for the petitioner further added thai the landlord can maintain successive ejectment petitions. The submission is that the moment there is a fresh cause of action in favour of the landlord he can initiate fresh ejectment proceedings. In this behalf, the learned counsel for the petitioner has referred to P.L.D. 1985 S.C. 220 and P.L.D. 1985 S.C. 327. The arguments arc concluded with the submission that it is the right of the landlord to receive rent in accordance with market rate and acceptance of rent at enhanced rate docs not reflect on the fides of the landlord. In this behalf, he has referred to case of Kliawaja Muhammad Mwiawar vs. Nisar Ahmad and 2 others (1985 C.L.C. 1613). 9. I have given my anxious consideration to the arguments of the learned counsel for the parlies and gone through the record as well as precedent cases. It is worthwhile to deal with the preliminary objection before proceeding with the arguments on merits. The preliminary objection, as already noted, was that by filing fresh independent ejectment petition on ground of requirement of llie premises for reconstruction, the petitioner proceeded to abandon the plea of personal use subject-matter of the present Constitutional petition. 10. On the other hand, Kh.Habib Ullah, Advocate for the petitioner submitted that although subsequent events can be taken into consideration while adjudicating a matter but only when following conditions exist:- i) The facts must be admitted; ii) It must be necessary to do justice; and iii) It will help to shorten litigation. He, in this behalf, has referred to the judgment of Hon'blc Supreme Court in the case of Muhammad Aslant vs. Wazir Muhammad (P.L.D. 1985 S.C. 46). Now in the present case the factum of new ejectment petition by the petitioner on the ground of reconstruction is admitted. The effect of the same is also relevant to do complete justice between the parlies and it will also shorten the litigation in the sense that the petitioner will be able to pursue one remedy whole heartedly instead of going on multiplying the proceedings. Therefore, it is decided to lake into consideration effect of subsequent ejectment petition filed on ground of reconstruction. 11. Now coining to the cases relied by the learned counsel lor the petitioner in

.ii;>rinri of his argument lliat the grounds of reconstruction and'personal use arc not iiiconsistant and self-destructive. The perusal of the judgments in the cases of Sh. Abdul A/i/, Dawood, Didar Shah and Muhammad Shafiquc, establish one llilnu clearU that the grounds of reconstruction and personal use were taken together in one and the same application. The relevant portion of the judgment of the Hon'blc Supreme Court in the ease of Dawood reads as underlooked at from whatever angle (a) of principle, which, as would be shown presently, already stands settled in several rulings ol the superior Courts, and also (b) of interpretation and analysis of the relevant provisions of Section 13 of the Ordinance, the eviction of a tenant on both llie grounds of personal requirement and reconstruction in same proceedings, would not be illegal, as the two grounds are not mutually destructive." There are two clear and basic differences in the case in hand and the cases relied by the learned counsel for the petitioner namely: - Firstly, in the case in hand landlord has sought the ejectment of the tenant on the grounds of reconstruction and personal use in two different petitions while in the precedent cases both the grounds were urged in one and the same petition. The arguments of the learned counsel that both the pleas arc mutually not destructive. There is nothing wrong with the submission but in the present case the main ingredient 'mutuality' is lacking. The word 'mutual' pro-supposes at one and the same time, common, reciprocal; and Secondly, in one case the landlord proves his desire to reconstruct llie premises and occupy the premises 'so reconstructed' while in the other situation his desire is on the one hand to occupy 'the premises as it is' and on the other hand, he is also desirous of pulling down llie same with object lt> reconstruct. Now coming to the present case. If this petition is allowed today the petitioner will secure possession and proceed to occupy it. But tomorrow he will proceed to demolish the same for reconstruction. This clearly negates his personal need of the premises, as it is. It is for this reason thai both the pleas when taken' separately are destructive and inconsistent. 12. In the present case it is admitted thai ihe petitioner has filed an ejectment petition on the ground of reconstruction. The learned counsel for live petitioner submitted that the petitioner has pooled up sources with others to have '• a joint \enturc. In this behalf, he has referred to the building plan got sanctioned b\ the petitioner and others. This completely demolishes and millitales against the ; plea of personal use of the petitioner because there is no nexus between the plea j ol personal use and reconstruction. 13. The learned counsel for the tenant rightly submitted that while getting j building plan sanctioned and filing the ejectment petition against his client on the j I basis of reconstruction, the petitioner has abandoned his earlier claim for From the documents Ex.PI to Ex.P6 though there appears to be increase in the payment of Excise duty and the income yet the material thing to be considered is Ilic increase in term of customers " Thjiv.il'ter (lit; learned appellate authority took pains to work out the number of cu.stonKrs and alter working out these details from the documents held as under:- " .................... Virtually there appears to be no positive progress shown in matter of number of customers visiting the shop of the respondent in result of documents Ex.P.I to Ex.P6." The learned counsel for the petitioner has also given the data calculated on the basis of these documents. The same reads as undcn- Monlh Nov.84 Dec.84 Jan.85 Nov.85 Dec.85 Jan.86 Exh.No. P-f P-2 P-3 P-6 P-5 P-4 No. of Bills. 2235 2194 2069 2110 2162 2103 It is clear from the above data that there is nothing wrong with the finding and the approach of the learned appellate authority. 18. The evidence produced by the petitioner includes a statement of a colleague Advocate, an employee, himself and a witness clearly sponsored by the petitioner. The petitioner as well as witnesses have made evasive statements on material points which clearly show that either they are not aware of the correct facts or they are withholding the information so (that)' it may not go against the petitioner. PW3 staled that the Restaurant was established by the petitioner three years ago and lie is employed therein since then. On the other hand, the petitioner himself has staled that he retired from Telephone Department in 1982 and since then he is doing the business of snack-bar. This way the evidence led by the petitioner does not inspire any confidence. 19. There is a meril in the argumcnl of the learned counsel for the tenant that the petitioner had picked up only few returns and placed them on record as Exh.P.l to Exh.P.6. The matter could have been absolutely clear if the petitioner had placed all the statements from November, 1984 to June, 1986 on record. The presumption, therefore, is that the same were withheld purposely. It was further submitted by the learned counsel for the tenant that 'nourishing business' can be well-imagined from the (act that the petitioner even did not have alternative arrangement for light. It is submitted that in case the need was so pressing then the petitioner could attract more customers by utilixing the load-shedding time by making provision of alternative source of energy. This also is a relevant factor for determining the bonafide of the so-called pressing need of the petitioner. The argument has a merit. 20. The learned counsel lor the respondenl-lcnanl has vehemently argued that ihe conduct of the petitioner is not fair, therefore, he is not entitled to any relief in the Constitutional jurisdiction, which is discretionary in nature. The learned counsel for the tenant, in this behalf, has referred to following facts, which according to him constitute misconduct:— Firstly, the term of the tenancy as fixed through Exh.P.14 was to expire on 1.7.1985 while the ejectment petition was filed by the petitioner on 9.7.1984; Secondly, the object of the landlord is clearly to oust his client totally from the property. In this behalf, he has referred to the case of Muhammad Hafee/ and another vs. Muhammad A/.ccm and 9 others (1984C.L.C. 1083); and Thirdly, the offer in the Court proceedings, which should be treated as mosl solemn proceedings, to pay Rs. 1,00,0()0/- to the tenant if he vacates the premises forthwith, is highly objectionable. 21. There is a merit in the first and the last plea while the second plea is not worth consideration. The petitioner according to Exh.P:14 allowed the tenant to continue till 1.7.1985 ai a monthly rent of Rs'.15()0/-, therefore, he should have wailed for expiry of this term of tenancy fixed by himself. H is made clear that 1 am not holding or dismissing ejectment petition as premature but this is being taken as a factor, which adversely reflects on the conduct of the petitioner. It may be mentioned here that the learned Rent Controller when confronted with this legal proposition brushed aside the same with the following observalioas:-- a) thai no period is fixed in Exh.P.14; b) ihe document is not registered: and c) that the cause of action has matured during the pendency of the petition. 22. The learned Rent Controller failed to appreciate that the document Exh.P.f4 was a memorandum of compromise between the parties, therefore, not compulsorily registerable and in any case document has been produced by the petitioner himself and was exhibit marked without any objection. The same, therefore, could not be excluded from consideration. The other reasoning that no lime was fixed in Ihe document is falsified by the document itself. The relevant portion reads as under:- " .................... The monthly rent will be payable on the 1st of each month in advance by deposit in the petitioner's saving Bank Account as is being done at present. The monthly rent after 1st July 19S5 will be fixed by mutual agreement between the parties." "(Last lines have been underlined by me). It is clear from the document that not only the tenant was granted lease upto 1.7.1985 but there was also assurance to allow him lo further continue subject to Here in italics. fixation of fresh rate of rent by mutual agreement. This also was a good ground to set-aside the order of the learned Rent Controller. H 23. Now coming to the offer of the petitioner to pay Rs. 1,00,000/- in case the premises are vacated by the tenant forthwith. The learned counsel for the tenant is not unjustified to say that the petitioner should not have made an offer, which is illegal, in the Court proceedings. The petitioner does not seem to be conscious of immoral offer if not illegal made by him. 24. The result is that the petition is dismissed with costs both as having become infructuous as well as on merits. (MBC) Petition dismissed

PLJ 1990 Lahore 409 PLJ 1990 Lahore 409 Present: iiisanul haq chaudhary, J JAMAL DIN and 3 others—Petitioners Versus ADDITIONAL DISTRICT JUDGE, JHANG and 3 others-Respondents Writ Petition No. 1838 of 1990, accepted on 30.5.1990 Civil Procedure Code, 1908 (V of 1908)-- -—O. VII Rr. 14&18 read with O. XIII Rr. l&2-Private documents-Production of-Permission granted to produce same-Challenge to-Trial Court has observed that documents are private documents-It passes one's comprehension that how accounts of firm are in possession of a Munshi of firm—Same should have been in possession of firm and should have been produced in accordance with law at best on first date of hearing-Held: Courts below have acted illegally while accepting application of respondent No. 3/plaintiff in respect of account books of firm-Petition accepted. [Pp. 411&412]A,B&C PLD 1956 Lahore 252 followed in PLD 1959 Lahore 597 re/. PLD 1977 AJ&K 78 and PLD 1981 Karachi 596 not relevant. Mian Abbas Ahmad, Advocate for Petitioners. Mr. Shaukat Haroon and Mr. AsifFarooq, Advocates for Respondent No.3. Mian Masood Javaid, Advocate for Respondent No. 4. Date of hearing: 30.5.1990 judgment The petitioners have prayed through this Constitutional petition that the orders dated 29.1.1990 and 10.9.1989 of the respondents No.l and 2 respectively be declared illegal and without lawful authority. 2. The relevant facts are that respondent No.3 filed a suit in the Court of Senior Civil Judge, Jhang against the petitioners and respondent No.4. The petitioners contested the suit. The learned trial Court accordingly framed the issues on 3.2.1988. The matter was at evidence stage when the petitioners (?) made an application for permission to produce documents, namely, account books of the partnership and account of respondent No.4. The petitioners contested this application to the extent of accounts of the firm. The learned Civil Judge granted the same vide order dated 10.9.1989. The petitioners filed a revision petition in the Court of Sessions Judge, Jhang. The same came on the file of respondent No.l, who proceeded to dismiss it vide order dated 29.1.1990. The petitioners have now impugned both these orders through this petition. 3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondents No.3 and 4 have appeared while respondents No.l and 2 were proceeded exparte. The learned counsel for the petitioners in support of the petition has argued that learned trial Court after observing that the account books, which are sought to be produced through Raham Din Munshi is private record and its authenticity is not beyond doubt, there was no justification to allow the production of these documents. It is submitted that according to the provisions of Order VII Rule 14 C.P.C, the plaintiff was not only to append all the documents in his possession with the plaint but also to specify the documents and the person in possession of the same. The documents so mentioned were to be produced alongwith the plaint or at the first date of hearing. The arguments are concluded with the submission that the account books are all forged and fabricated and the story that the same are in ossession of Munshi of the firm has been coined with a view to set at naught the provisions of orders VII and XIII C.P.C. 4. On the other hand, learned counsel for respondent No.3 has argued that the documents are relevant and material for the decision of the controversy between the parties. It is submitted that the trial Court is fully competent to permit the production of documents at a later stage. In this behalf learned counsel has referred to Rule 18 of Order VII C.P.C. The arguments are concluded with the submission that the Courts below have exercised the discretion vested in them properly, therefore, it is not a fit case for interference in Constitutional jurisdiction. 5. Mr. Masud Javaid, Advocate, learned counsel for the respondent No.4 has argued that his client is neither necessary nor proper party as neither there is any cause of action in favour of the plaintiff against the Bank nor any relief has been sought by him against the Bank. In this behalf the learned counsel has referred to para 6 of the plaint pertaining to cause of action and prayer clause. There is nothing wrong with the submission of the learned counsel that the trial Court has failed to exercise its jurisdiction properly while not applying its mind to the plaint and the written statement of respondent No.4 and striking out the Bank as a defendant. The learned counsel was asked to assist this Court on the point involved in this petition. The learned counsel submitted that beside Order VII C.P.C. the other relevant provision is order XIII Rule 1 C.P.C. The argument is that provisions of Order VII Rules 14 and 18 are to be read with Rules 1 and 2 of Order XIII C.P.C. It is submitted that according to the judgments of the superior Courts private documents, which can be very conveniently prepared by the parties any moment are normally not allowed to be produced at the belated stage. The learned counsel in this behalf has referred to cases reported as Sh: Allah Ditto Vs. A.F Ahmad & Co and others (P.L.D. 1954 Lahore 608), Lahore Improvement Tms Vs. Karamat AH (P.L.D 1959 Lahore 597), Lahore Improvement Trust Vs.Klmda Bakhsh-Mehraj Din (P.L.D 1956 Lahore 252) Muhammad Hussain and others Vs. Settlement Commissioner, Lahore and others (P.L.D 1984 Lahore 139), Faizullah Vs. Mst. Zaini (P.L.D 1984 Azad J & K 41) and Muhammad Ibrahim Vs. Sind Industrial Trading Estate Ltd. and 3 others (P.L.D. 1985 Karachi 95). Suffice it is to refer to the case of Lahore Improvement Tmst Vs. Kliuda Bakhsh-Mehraj Din, the relevant portion of the judgment reads as under:- "My interpretation of rule 2 of O.XIII is that good cause is to be shown for the reception in evidence of the document in question. There is a discretion in the Court to grant leave as there is in case of infringement of other connected rules. The Court is entitled to consider not only the reason for non-production but the authenticity of the document and the delaying effect of the reception in evidence of the document. In cases where the document is of undoubted authenticity, leave should ordinarily be granted but the discretion of the Court is there." The same view followed by this Court in the subsequent case of Lahore Improvement Tmst Vs. Karamat All ibid. 6. On the other hand, learned counsel for respondent No.3 has relied on the case of Umar Hayat Vs. Naik Alain (P.L.D 1977 Azad J & K 78), case of Lahore Improvement Tmst Vs. Karamat All ibid and the case of Shabbir Ahmad Abbasi Vs. United Bank Ltd Karachi and another (P.L.D 1981 Karachi 596). The judgment of Umar Hayat is not relevant because in that case the document sought to be produced was the letter of the plaintiff himself. It was held that the authenticity of the document is beyond doubt and the same was allowed to be produced while in the case of Sh: Karamat Ali the plaintiffs own letter was excluded from evidence on account of wanton disregard of the provisions of law relating to production of documents. While, as already noted, the principle laid down in the case of Lahore Improvement Tmst Vs. Kliuda Bakhsh-Mehraj Din was followed. The case of Shabbir Ahmad Abbasi is also not relevant because in that case the reason for late production of the documents was that the same were not traceable and the other side has not disputed their genuineness. 7. Now coming back to the case in hand, not only the trial Court has observed that these documents are private documents but the same have clearly been fabricated to meet the defence plea. It passes one's comprehension that how the accounts of the firm are in possession of a Munshi of the firm. The same should be in possession of the firm and the story that the same are in possession of Munshi clearly seems to have been coined to overcome the difficulty of late production of these documents. The accounts were the basis of the claim of the plaintiff and the same should have been produced in accordance with law at the best on first date of hearing. 8. I, therefore, respectfully following the rule laid down in Lahore Improvement Trust Vs. Kliuda Bakhsh-Mehraj Din ibid, hold that the Courts below have acted illegally while accepting the application of respondent No.3-plaintiff in respect of the account books of the firm. The learned counsel for the plaintiff further submitted that the examinalion-in-chief of Raham Din Munshi has been recorded and all the accounts exhibit marked. This will not change the position because the moment order of permission to produce the documents dated 10.9.1939 is set aside, all further proceedings in pursuance of that order automatically disappear. The plaintiff if interested can examine Raham Din but he is not allowed to produce any document. The upshot of the above discussion is that this petition succeeds and is allowed with costs and the impugned orders dated 29.1.1990 and 10.9.1989 of Courts below are set aside. The result is that the application of the plaintiff to the extent of the production of account books in possession of Raham Din is dismissed. (MBC) Petition accepted

PLJ 1990 Lahore 412 PLJ 1990 Lahore 412 Present: IIISAXUL HAQ Cl IAUDIIARY, J Mst. FIRDAUS BEGUM-Petitioner versus ADDITIONAL DISTRICT JUDGE, LAHORE and another-Respondenls Writ Petition No. 4318 of 1989, accepted on 12.6.1990 Urban Rent Restriction Ordinance, 1959 (VV.P Orel . VI of 1959)-- —S. 13 read with S. 13-A—Tenant—Ejectment of—Order of—Reversal of— Challenge to-Impugned order shows lack of application of mind to facts on file and law applicable—Respondent No.l failed to appreciate that notice under Section 13-A has no relevancy on bearing of preliminary issue- Respondent No.l proceeded in a most careless manner while dealing with precious rights of parlies—Having failed to find anything to dislodge finding of Rent Controller, he resorted to a very crude technique to short circuit whole proceedings—Held: Findings of respondent No.l are in utter disregard of law- Petition accepted and case remanded (for disposal of appeal). [Pp. 413&414]A,B,C&D Mr. Klian A. Hamid, Advocate for Petitioner. Mr. Hamid Mahmood Yousafzai, Advocate for Respondent No. 2. Dale of hearing: 12.6.1990. judgment The petitioner through this constitutional petition has prayed that order dated 9.1.1989 passed by Zulfiqar Ali Khan, Addl: Dislricl Judge, Lahore as appellate authority under the Provisions of Punjab Urban Rent Restriction Ordinance is contrary to law and illegal. 2. The relevant facts are that the petitioner filed an ejectment petilion in respect of shop comprising of property No.F-1594 situated in Gali Daman, Azam Cloth Market Lahore. The ejectment was sought on ground of default in payment of rent with effect from February, 1986 and personal use. The respondent No.2/tenant resisted the application on facts as well as legal points. He raised preliminary objections as to the absence of relationship of land-lady and tenant and non-service of notices u/s 13-A oi i!k Punjab Urban Rent Restriction Ordinance. The learned Rent Controller, sei/ed of the matter, framed the following preliminary issucs:- 1. Whether there is relationship of land-lord and tenant between the parlies ?OPP. 2. Relief. 3. The petitioner in order to establish the relationship examined Munawar Begum as P.W.I. Tariq Mahmood as.P.W.2, Muhammad Al'/aal as P.W.3 and the petitioner appeared as P.W.4. The tenant on the other hand examined Abdul Qayyum as R.W.I, Amar Mahmood Butl as R.W.2 and he himself appeared as R.W.3. The learned Rent Controller after hearing the arguments answered the preliminary issue in favour of the peutiooer and since the payment of rent for the disputed period was not pleaded bv ibe tenant, therefore, the learned Rent Controller proceeded to accept ibe efcxUKct peikkxi after deciding the preliminary issue. The order of the Icirncd Rcat Coatrolkr is dated 6.7.f l

j>8. The tenant assailed this order through an appeal be&urc respondent No.l, who without reversing the findings on preliminary jgimr, proceeded 10 dismiss the ejectment petition. The petitioner has now impugned iMs order through present petition. 4. The pffli«n» »as admklcd lo regular hearing and notices were issuesd to the re^fwodenti. Tfce respondent No.2 has entered appearance and contested (he pcuuoa mhiie respondent No.l was proceeded cx-parte. 5. The learned counsel for the petitioner in support of the petition has argued that the order of the respondent No.l is patently illegl, perverse and clearly proves non application ol mind to the facts of the case and law applicable. It is added that the judgment of the learned Rent Controller was reversed simply because the respondent No.l held that land-lady has not served the tenant with a notice as required us 13-A of the Punjab Urban Rent Restriction Ordinance. It is submitted that even the institution of the ejectment petition constitutes -a valid notice u/s 13-A. Ii is added that the tenant claimed payment of rent to Mohammad Afzaal R.W3 but he appeared and clearly stated that the property fell to the share of petitioner and she was entitled to receive rent. 6. The arguments are summed up with the submissions that notice u/s 13-A does not coiw!!;:•;: relationship, therefore, even after reversing the finding of the learned Rent Controller the respondent (No.l) could not legally dismiss the ejectment petition because ejectment of the tenant was also sought on ground of personal need. 7. The learned counsel for respondent No.2 very candidly and frankly conceded that it is not possible for him to support the impugned order of respondent No.l and he has no objection to the matter being remanded to Rent Controller for decision on merits in accordance with law. , 8. I have given my anxious consideration to the arguments of the learned counsel for the petitioner. The operative portion of the impugned order of respondent No.l reads as under:- "The gist of the above discussion is that the ejectment petition having been filed without giving legal notice under Section 13-A of the Ordinance was premature and therefore, not maintainable in the eyes of law. Hence, the findings given by the learned Rent Controller in favour of Mst. Firdaus Begum are set-aside and reversed and resultantly the appeal is accepted and the ejectment petition made by Mst. Firdaus Begum stands dismissed." This shows lack of application of mind to the facts on file and law applicable. The preliminary issue reflected preliminary objection No.3 and the respondent No.l failed to appreciate that notice u/s 13-A has no relevancy on bearing of this issue. It is worthwhile to refer to Section 13-A which reads as under:- "13-A. Tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, - whatever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clauses (i) of Sub­ section (2) of Section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him." 9. It "is therefore, clear that the respondent No.l proceeded in a most careless and causual manner while dealing with the precious rights of the parties. He could not find anything to dislodge the finding recorded by the learned Rent Controller on the preliminary issue, therefore, resorted to a very crude technique to short circut the whole proceedings. This is not all. He failed to notice that ejectment is also sought on ground of personal use. There is no nexus between service of notices u/s 13-A of the Ordinance, 1959 and plea of personal use. Therefore, his findings arc in utter dis-regard of law. 11. The reslult is that this petition is allowed. The impugned order of respondent No.l dated 9.1.1989 is set aside and the case is sent to the learned District Judge Lahore to entrust the same to any court of competent jurisdiction for expeditious disposal by 31.7.1990. The parties are directed to appear before the learned District Judge, Lahore on 16.6.1990. (MBC) Petition accepted

PLJ 1990 Lahore 414 PLJ 1990 Lahore 414 Present: IIISANUL haq ClIAUDllARY, J Haji RIAZ AHMAD BUTT-Pctitioncr versus SECRETARY TRANSPORT, GOVERNMENT OF THE PUNJAB, LAHORE and 4 others—Respondents Writ Petition No. 1917 of 1990, accepted on 19.5.1990 Motor Vehicles Ordinance, 1965 (VV.P. Ord. XIX of 1965)-- —S, SO read with Motor Vehicles Rules, 1969, Rule 263~Wagon Travels Service-Halting points of-Cancellation of-Challenge to-Contention of respoodcnts that halting points can only be sanctioned in favour of transporters who own or possess given number of vehicles-Term "halting point" has not been defined in Ordinance or Rules anywhere-Held; Provisions of penal nature are to be construed strictly and in case of ambiguity or doubt arising from construction, benefit must go to subject-Held further: Impugned order is illegal-Petition accepted. [Pp. 416&417JA.B&C PLD 1975 SC 506 and 1973 SCMR 140 rel. Air. Navced Saeed Klian, Advocate for Petitioner. Rana Muhammad Arshad Klian, Addl. A.G. for Respondents. Date of hearing: 19.5.1990 judgment The petitioner through this Constitutional petition has prayed that the impugned order dated 14.3.1990 of respondent No.l may be declared illegal and without lawful authority. 2. The relevant facts are that the petitioner is running business of Wagon Travels Service from Lahore to various other cities. He applied for the sanction ofhalting points. The request was allowed and memo, dated 19.2.1987 issued. The grievance of the petitioner is that respondent No.l has now cancelled the halting points through impugned order dated 14.3.1990. 3. The petition was admitted to regular hearing and notices were issued to the respondents, who have appeared through Rana Muhammad Arshad Khan, Addl: Advocate-General and contested the writ petition. The learned counsel for the petitioner in support of the petition has argued that respondent No.l has cancelled the halting points on the ground, that the petitioner does not own a single vehicle and that he has subletted the halting points sanctioned in his name. In this behalf, the learned counsel has referred to Section 80 of the Motor Vehicles Ordinance, 1965. The argument in nut-shell is that there is no such restriction. It is added that the provision is penal in nature, therefore, to be strictly construed. In this behalf, the learned counsel has referred to cases of E-A.Vans, Vs. Muhammad Ashraf (PLD 1964 S.C. 536), Muhammad All Vs. Slate Bank of Pakistan, Karachi and another (1973 S.C.M.R. 140) and Brig, (Retd.) F.BAli and another Vs. Tlie State (P.L.D. 1975 S.C. 506). 4. On the other hand, the learned Addl: Advocate-General has argued that the petitioner is not a bonafide transporter as he does not own or possess even a single vehicle, therefore, the halting points were legally cancelled. The learned Add: Advocate-General in support of the impugned order has referred to Rule 263(2) of the Motor Vehicle Rules. 5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. Before proceeding any further it is worthwhile to refer to Sec.80 of Motor Vehicles Ordinance, 1965 and Motor Vehicle Rules, 1969 relied by the parties. The same read as under:- Section 80 "Parking places and hailing stations.--Government or any authority authorised in this behalf by Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for taking up and setting down of passengers." Rule 263 "(1) Orders permitting a place to be used as stand of Class D shall be in Form Stand D and shall specify clearly the area which may be used. (2) Save with the special permission of the Regional Transport Authority no such order shall be made unless the person or company applying to use the place as a stand holds permits, being permits in the name of the person or company making the application, for not less than eight transport vehicles." 6. The perusal of Rule 263(2) as reproduced above shows that the rule deals with the Company stands. The categories of stands have been provided for in Rule 253. It is clear from Section 80 and Rule 263(2) that the scope of both the provisions is different. Section 80 deals with the parking places and halting points while rule 263 relied by the learned Addl: Advocate General deals with the issuance of permission in respect of class (D) stands. The point becomes clear if reference to Rule 242 is made. All these provisions are contained in Chapter VIII which deals with' halting of Motor Vehicles in public places; control of stands. The first comes Rule 240 which prohibits halting of stage carriage in the urban areas. While rule 241 gives a power to the District Magistrate to sanction bus stops to take up or set down passengers. It seems that respondents No.l to 4 are using term halting point instead of bus stands while Rule 263 (2) relied by the learned Addl. Advocate-General deafe with stands. It is clear from Rule 242 that every stage carriage begins and ends its trip at a stand. These are the points where a trip originates and ends. The categories of the stands have been detailed in Rule 253 while 263 only deals with sanction of 'class (D) stands'. On the other hand the term 'bus stop/stand' is used for halting points in an urban area sanctioned for taking up and setting down the passengers. The definition becomes clear from sub-rule (2) of rule 241, which prescribes that no stage carriage shall halt at a bus stand for a period longer than necessary to taking such passengers as are waiting when vehicle arrives and to set down such passengers as wish to alight. In common parlance the stands are places where the vehicles are parked before and after trip while the 'bus stops/stands are points in between the two stands, which are approved to take up or set down passengers. 7. The learned Addl. Advocate-General has failed to refer to any provision of Ordinance, 1965 or Rules, 1969 laying down a condition that the halting points can only be sanctioned in favour of the transporters, who own or possess given number of vehicles. The term hailing point has not been defined in the Act or the Rules anywhere. It seems that the term has been coined by respondents No.l to 4 for making the provisions for the stops by the Flying Coaches. In order to avoid congestion at one point the various transporters are allocated different points to be used as bus stop exclusively by them. 8. The provision is of penal nature because it prohibits any transporter from parking its vehicle even for a short while other than the points specifically sanctioned for this purpose. The learned counsel for the petitioner rightly referred to the judgment of Honourable Supreme Court in the case of Muhammad All Vs. State Bank of Pakistan Karachi and another (1973 S.C.M.R 140) and F.B All Vs.Tlie State (P.L.D 1975 S.C 506) to argue that the provisions of penal nature are to be construed strictly and in case of ambiguity or doubt arising from the construction, the benefit must go to the subject. The result is that the impugned order dated 14.3.1990 passed by the respondent is declared illegal, therefore, set aside. However, there is no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 417 PLJ 1990 Lahore 417 Presau: ABDLL MAJLED TlWANA, J NAZ1R AHMAD KASANA-Petitioner versus ISLAMIC REPUBLIC OF PAKISTAN , Through Secretary, Establishment Division, Government of Pakistan and 2 others-Respondents Writ Petition No. 169 of 1986, accepted on 27.3.1990 (i) Federal Public Service Commission Ordinance, 1977 (XLV of 1977)- —Ss. 7&8-Appointment of Rice Commissioner-Recommendation of Federal Public Service Commission-Rejection of-Challcnge to-Whether recommendation was rightly rejected by President-Question of-There is no doubt that recommendations of Commission are only advisory in nature and President as appointing authority in connection with post oC Rice Commissioner (Grade-20), could reject such recommendations- Establishment Division did not place before President, views of Agriculture Di%ision and those of Commission correctly and while relating facts, highlighted some of them in such a manner so as to entail decision in a particular way as they wished—Held: Establishment Division having not acted in accordance with law and having misled President to pass an order not sustainable at law, writ petition is accepted and impugned order is set aside with costs of Rs. 5000/- to be paid to petitioner by Establishment Division. [Pp. 434&435JJ&K PLD 1973 SC 144 rel. (ii) Rules of Business, 1973- —R. 11-Appoinlment as Rice Commissioner-Recommendation of Federal Public Service Commission-Rejection of-Challenge lo-Establishment Division had no role in this matter and it happened to play a part on account of reference made to it by Agriculture Division under a mistaken belief that reference to President was to be routed through it-But, if at all, it had some role to play in that context, it did not play it justly and by misleading President, it got impugned order passed from him which is not sustainable at law—Held: Since there was no difference of opinion between Agriculture Division and Commission, no reference, in fact, was necessary to President and all this was done without lawful authority and with a bias. [Pp. 432&433]H (iii) Rules of Business, 1973- —R. 11 Appointment as Rice Commissioner--Recommcndation of Federal Public Service Commission-Rejection of-Challcnge to-Even, if reference to President was to be routed through Establishment Division, there was no justification for it to oppose proposal of Agriculture Division duly supported by Commission—It was Agriculture Division which was asked by Commission to scrutinize character roll of petitioner, and not Establishment Division- Held: Establishment Division had no authority to suo molo scrutinize service,, record of petitioner and ultimately to gel genuine request of Agriculture Division rejected from President. [P.429]D (iv) Rules of Business, 1973-- —R. 11— Appointment as Rice Commissioner—Recommendation of Federal Public Service Commission—Rejection of—Challenge to—Whether action of Establishment Division was Hia/a/iWe--Qucstion of-Allegation of Petitioner is that Establishment Division was interested in some 'younger and brighter' favourite of its own—No such younger and brighter person has been pin­ pointed by petitioner, but manner in which Establishment Division dealt with this case, gives reasons to believe that assertions of petitioner in that respect, are not altogether unfounded—Recommendation of ommission could not and should not have been so lightly ignored and rejected by President—Held: Main aim of Establishment Division appeared to be that a Grade 18 employee of Provincial Government should not get a Grade 20 post in Federal Government and they succeeded in their mission—Held further: At least what was done by Establishment Division, was not free from bias. [Pp. 430,431&432]E,F&G PLD 1974 SC 151 rcl. (v) Rules of Business, 1973-- —R. 11 read with Schedules II and V-A-Appointment as Rice Commissioner- Recommendation of Federal Public Service Commission—Rejection of— Challenge to-Whether Establishment Division had any role in it-Question of —Rule ll(c) relates to initial appointments other than those made through Commission while Rule ll(f) deals with selection of Provincial employees for appointment in Federal Secretariat and Attached Dcpartmenls-Both these clauses are not relevant-Held: Establishment Division does not come into picture at any stage and in any capacity in this case and Agriculture Division made a mistake in referring matter to it—Held further: Establishment Division was not competent to create disagreement, dispute or controversy between itself and referring Division (Agriculture Division) supported by Commission, and then to take matter to President. [Pp. 427,428&429]A,B&C Mr. TariqJavaid, Advocate for Petitioner. Mr. Abdul Basccr Qurcshi, Dcpuly Attorney General for Respondents. Date of hearing: 17.2.1990. judgment Na/.ir Ahmad Kasana petitioner, who is Soil Fertility Officer in Ayub Agricultural Research Instilule, Faisalabad, by this writ petition called in question the validity of the order passed by the President of Pakistan, as referred to in Establishment Division's U.O.15(3)/82-CP, dated 21.3.1984, overruling the recommendation of respondent No.3 (Federal Public Service Commission, hereinalter referred to as the Commission) regarding his appointment as Rice f Commissioner in respondent No.2 (Food and Agriculture Division, Government of Pakistan, hereinafter called the Agriculture Division) and prayed for a direction to Agriculture Division as also to respondent No.l (Establishment Division.Government of Pakistan, hereinafter referred to as the Establishment Division) for appointing him as Rice Commissioner (Grade-20) in the former. . The brief facts leading up to this writ petition are at the Commission, vide ils advertisement in Daily'Pakistan Times' Lahore, dated 15.11.1981, invited applications fur filling up the posts of Colton/Rice/Sugarcanc Commissioner in the Agricultural Division. Since the Commission could not find a suitable person lor the posl ol Rice Commissioner, it rcadvcriiscd the same in Daily 'Pakistan Times', dated 12.9.19S2, but this lime loo it could not select any suitable candidate for the post which had to be readverlised for the third time in the year, 1983. This time the post was advertised on All Pakistan Basis for selection on merits. The petitioner applied for the posl and ultimately he was recommended therefor by the Commission vide its letter, dated 13.8.1983. On the basis of ihcse recommendations, the Agriculture Division vide letter, dated 20.9.1983, scnl Up the ease of the petitioner to the Establishment Division for seeking approval of the President of Pakistan to his appointment as Rice Commissioner but the latter, while forwarding the summary to the President, suggested that either- ihe petitioner should be appointed on probation for a specific period and his confirmation should depend upon the successful completion of his probation, or the posl should be rcadvcrtised with the hope that--some- younger and brighter person might come forward for the post. Oul of ihese two alternatives, they themselves favoured the second one and-the President approved it. It is the validity of this order which has been challenged, inlcralia, on the grounds:- (/) that the established rules and praclice have nol been followed inasmuch as ihe reasons for disagreeing with Ihc recommendations of the Commission have not been communicated to it to enable il to justify its recommendations nor the mailer has been re-referred to the President for reconsideration; (//) that the petitioner acquired right for the appointment to the post of Rice Commissioner on the recommendation of the Cornmission which has been denied to him arbitrarily; . (Hi) that the action of Establishment Division is malafide because they wanted to accommodate a particular youngster who had gone abroad and might return with requisite qualifications for ihe posl; (iv) that the recommendations of the Commission are legally binding on the President; (v) that the post was advertised thrice and the petitioner turned out to be the only suitable candidate for the post as per recommendation of the Commission; (vi) that the procedure for appointment of an officer as contained in the rules of Business was not followed; and (v/7) that the representation made by the petitioner was erroneously turned down vide order, dated 24.10.1985. 3. Originally the Agriculture Division and Establishment Division submitted their joint written statement signed by a Deputy Secretary of the former, while the Commission filed its written statement separately, but later, under the directions of this Court, they i.e. both the Divisions have submitted their separate written statements. Establishment Division has also brought on the record the copy of the summary submitted by its Secretary, the note of C.O.S. to the President and the order of the President dated 17.3.1984. 4. It is an admitted position in the written statements of all the respondents that the post of Rice Commissioner (BPS-20) was advertised by the Commission thrice, first under the Punjab quota, then under Baluchistan quota, and finally under merit quota on All Pakistan Basis and on the third occasion, out of 13 candidates, 8 were called for interview and out of them the petitioner obtained the first position. .However, it was alleged that on the pursuation of departmental representative, the Commission suggested for down-grading the post from Grade- 20 to Grade 19 and recommended for awarding six advance increments to the petitioner subject to the usual conditions, including the one that there was nothing so damaging in his character rolls so as to adversely affect his suitability. It was also conceded that Agriculture Division did not agree with the suggestion of the Commission for down-grading the post and granting six advance increments to the petitioner, and requested it for recommending him for Grade-2Q post of Rice Commissioner to which it agreed. Agriculture Division accordingly drew up summary and requested the Establishment Division for obtaining the approval of the President to the appointment of the petitioner as Rice Commissioner (Grade- 20) as recommended by the Commission but the President, agreeing with the view of Establishment Division, which was not willing to support the proposal, was pleased to turn down the recommendation of the Commission and directed for the re-advertisement of post for attracting some younger and brighter incumbent. Both the Divisions denied the allegations of malafide and non-observance of rules on the subject and asserted that the President was competent to disagree with the recommendation of the Commission on the advise of Establishment Division and he correctly over-ruled the same. 5. The commission in its comments, apart from relating certain admitted facts (a stated above), took up the position that after selecting the petitioner as a suitable candidate for the post, it first recommended for its down-gradation on the pursuation of departmental representative of Agriculture Division but on the receipt of reference from this Division it agreed to the appointment of the petitioner to the concerned post as originally advertised in Grade-20, for which it gave valid reasons. It, however, complained that the procedure fpr the rejection of its advise, as outlined in Establishment Division O.MNo./3/3/550-E-VII, dated 4.6.1960, was not followed by both the Divisions and this fact was specifically pointed out to them but nothing was heard from them. It was asserted that the petitioner was recommended for the post due to his better performance in the interview after advertising the post thrice. 6. The learned counsel for the petitioner, during the course of his arguments, has reiterated certain grounds embodied in the writ petition arid almost reproduced above and in support of his contention-that the President was bound to act upon the recommendation of the Commission and in passing the impugned order he was misled by the Establishment Division on account of their malaficle to accommodate their own "younger and brighter" man, has placed reliance on Federation of Pakistan vs Saeed Ahmad Klian (PLD 1974 SC 15.1), Dr. Habibur Rehman vs Tlie West Pakistan Public Scivice Commission, Lahore and 4 others (PLD 1973 S.C. 144), and the Punjab Public Service Commission vs. AH Cul Klwn and 4 others (1976 S.C.M.R. 212). 7. As against various contentions raised on behalf of the petitioner, the main argument of the learned Standing Counsel for the Federal Government representing respondent Nos.l and 2 was that the President of Pakistan being the appointing authority in relation to a Grade-20 post, like the one in question, in terms of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973, was not bound by the recommendations of the Commission for the appointment of the petitioner to the post of Rice Commissioner which were essentially of advisory nature and under Section 8 of the Federal Public Service omission Ordinance, 1977 he chose not to accept the same and rightly over-ruled them. In his view, the Establishment Division had no malafide against the petitioner, nor it was interested in any particular person, nor it did any thing unusual in submitting summary to the President and expressing its views on the matter as under the Rules of Business it was bound to do so, nor it was necessary for it to consult the Commission in terms of its OM.No.3/3/59-E VII, dated 4.6.1960, before submitting such summary. He also relied on Dr. Habib-ur-Rehman vs. West Pakistan Public Service Commission Lahore and 4 others (PLD 1973 SC 144). 8. From the controversy between the petitioner and the Establishment Division and difference of opinion amongst the respondents themselves, the following two main questions arise for dctermination:- (/) What was the role of Establishment Division in this case and did it play its role justly and lawfully? (ii) What was the nature of the recommendations of the Commission and to what extent the same were binding on various authorities, including the President? ' , 9. Now I proceed to consider the first question. It is an admitted position that the post of Rice Commissioner is a Grade-20 post of Agriculture Division and it has been making serious efforts evcrsince 1981 to fill it up through the Commission which, in turn, has been making consistent endeavours to find out a suitable incumbent therefor. For that purpose the post was advertised thrice and during the third and the final test the petitioner was picked up as the best out of the available candidates. He was, however, not considered fit for Grade-20 post and the Commission, while forwarding its recommendations to the Agriculture Division in its letter, dated 20.6.1983, proposed that the post of Rice Commissioner should be down-graded from Grade-20 lo Grade-19 and he should be appointed to the down-graded post with six advance increments. Agriculture Division did not agree with the suggestion of the Commission so far it related to the down-gradation of the post and grant of six advance increments, and making a back reference, requested it for reconsideration of this aspect of the matter for the reason thai the post stood sanctioned in Grade-20 and the petitioner prima facie fulfilled the qualifications prescribed for the post. The Commission accordingly reviewed the matter and vide its letter, dated 11.8,1983, recommended the petitioner for appointment lo Grade-20 post of Rice Commissioner, inter alia, for the following reasons:- , (a) The Commission's nominee had been recommended advance increments in Grade-19 i.e. Rs.2850/- p.m. while the minimum of Grade-20 is Rs.2600/- p.m. (b) The Commission's nominee has been holding Grade-18 post since 12.3.1970 till today. His present pay is Rs.260()/- p.m. (c) His two Conferers, Wheat/Sugar Commissioner, have been nominated by the Commission in Grade-20. ((/) This recruitment had already twice failed in the past. (e) He fulfils the advertised conditions for the Gradc-20 post of Rice Commissioner. The Commission also clarified that it had asked for downgrading the post on ibf suggestion of Dr. Muhammad Amir, Secretary, Agriculture Research Division, the departmental representative, made during the interviews. 10. It may be mentioned here that the Commission in its earliei letter, dated 2.6.1983, while recommending the petitioner after down-grading the post of Rice Commissioner, in para 8 thereof, had deserved (?) that:- "The Commission's recommendations are subject to the condition that there was nothing so damaging in the Character Rolls of the candidates in Government Service so as to adversely affect their suitability for the posts. Only such cases may be referred to the Commission for advice where dossiers of the Commission's nominees contain positively adverse remarks". 11. H appears that, like certain other instructions contained in the said letter, those contained in para.8 ibid were also of general nature, usually forming part of every recommendation for Com mission's nominee. Establishment Division taking a cue Irom the said observations,-proceeded to scrulini/e the -service record of the petitioner and bringing out certain adverse entries in his character rolls, opposed his appointment to Grade-20 post of Rice Commission when an Additional Secretary of Agriculture Division in the summary, dated 20.9.1983, drawn up by him for it, requested for its (Esla.) approval to the petitioner's appointment to the post on the basis of Commission's recommendations. To be a little more precise, an Additional Secretary of the Establishment Division, vide his letter, dated 1.10.1983, addressed to his counterpart in the Agriculture Division, in response to his summary, dated 20.9.1983. observed that:- "Fedcral Public Service Commission has recommended Ch.Nax.ir Ahmad Kasana for appointment as Rice Commissioner subject to the condition that there is nothing so damaging in the Character Rolls of the candidate as to adversely affect his suitability for the post. Scrutiny of the Character Rolls of Ch. Na/ir Ahmad Kasana reveals that his reports for the years 1959 and I960 contained adverse remarks. His record from 1970 onwards varies between Good and Average with frequent advisory/adverse remarks in the pen-pictures. In view of his record, Ch.Na7.ir Ahmad Kasana does not appear to be a suitable choice against such a senior post as Rice Commissioner. It appears from the letter of FPSC that none of the candidates appearing before the Commission for this post was considered suitable for appointment in Grade-20. As such, the Commission had recommended Ch.Na/ir Ahmad Kasana for appointment against a Cirade-19 post and the departmental representative had concurred with this recommendation. It was only on the parsuation of the Ministry of Food & Agriculture that the Commission expressed their willingness to the appointment .of Ch.Na/ir Ahmad Kasana against a Grade-20 post. We would request for your views on the suitability of this candidate in the light of the position indicated above." 12. In response to the above letter, the Additional SecretaryOf Agriculture Division in his letter, dated 15.10.1983, explaining the position taken up by the departmental representative in the interviews conducted by the Commission, stated thal:- "The departmental representative, who attended the interviews in the FPSC, reported that the Commission were inclined to select Ch. Nazir Ahmad Kasana as Rice Commissioner, Gradc-20 but for his own opposition on the grounds that the officer was working as a Grade-18 officer in the Provincial Government and it would not be desirable to give him a jump to Grade-20. On the basis of the comments given by the departmental representative, the FPSC decided to recommend Ch.Kasana for appointment as Rice Commissioner in Grade-19-with'six advance increments. You will kindly also appreciate that this recommendation was made by the Commission because the officer otherwise fulfilled the academic qualifications and experience prescribed for the post and had not the departmental representative opposed they were inclined to recommend him for appointment in Grade-20". 13. He further said that:- . We examined the recommendation of the Commission and felt that berausc the officer had been found suitable for appointment to the post, it would he more appropriate to appoint him to Gradc-20, instead of Grade-19 with six advance increments not only because he would be gelling more pay in Grade-19 than.the initial start of Gradc-20 but also because the importance of the rice crop in the economy of the country did not warrant the downgradalion of the post, suggested earlier by ihc FPSC only and lowering the status would have impaired the ability of the Rice Commissioner to provide a dynamic push to the programmes for maximising the production of this major crop. It was on these considerations that the FPSC were requested to reconsider the case. In this connection, FPSC's letter, dated 8.10.1983 attached with our summary may kindly be seen". 14. With regard to the certain adverse entries in the service record of the petitioner, he observed that> "The observations of the Establishment Division concerning the confidential reports of Ch.Kasana are correct. A perusal of the confidential reports would, however, show that the adverse or average entries do not relate to the professional qualities expected of him as Rice Commissioner. The officer fulfils the educational qualifications and experience prescribed for the post of Rice Commissioner, as confirmed by the FPSC, and the deficiencies pointed out in the reports are not, in our opinion, likely to affect the performance of his duties in this post. Moreover, the orders, dated 29.1.1983, conveying Government displeasure to him have since been withdrawn by the Provincial Government vide Provincial Agriculture Department's letter No.SOA(B)2-40/77, dated the 25th July, 1983 (copy enclosed). As such we feel that much wcightage should not be given to adverse entries which are 22-23 years old and are not likely to influence his performance as Rice Commissioner". 15. Finally he urged thal:- "We urgently need an officer to monitor the rice crop. Since Ch.Kasana fulfils the educational qualifications and experience and the Commission were earlier willing to nominate him for this post and have, on reconsideration for the reasons stated above, agreed to nominate him for appointment to the Grade-20 post, the Establishment Division arc requested kindly to reconsider the proposal and agree to ihe appointment of Ch.Kasana as Rice Commissioner in BPS-20". 16. There was no further correspondence between the two Divisions until the Agriculture Division on 2.2.1984 drew up SUMMARY FOR THE PRESIDENT in the following terms. "A post of Rice Commissioner (Grade-20) exists in the Food and Agriculture Division. The post was advertised and the Federal Public Service Commission have recommended Ch.Nazir Ahmad. Kasana, presently working as Soil Fertility Officer in the Ayub Agricultural Research Institute at Faisalabad, for appointment to the post of Rice Commissioner. The Ministry endorses the recommendation o! the Commission. The following documents pertaining to Ch.Nazir Ahmad Kasana are attached:- (/') FPSC's letters recommending Ch.Nazir Ahmad Kasana for appointment as Rice Commissioner. (/;') Application of Ch.Nazir Ahmad Kasana together with its enclosures (in original). (Hi) C.R.Dossier of Ch.Nazir Ahmad Kasana (containing pages 1-136) alongwith his ICP Chart. (iv) A copy of notified Recruitment Rules for the post. jproval of the President to the appointment of Ch.Nazir Jimmissioner (BPS-20) in this Division is solicited. Minister for Food, Agriculture and Cooperatives has seen and approved. Sd/- Secretary. 2.2.1984 COS to the President Tlirough Establishment Division 17. It appears that on 3.3.1984 Establishment Division, instead of or in addition to forwarding the aforesaid SUMMARY FOR PRESIDENT (as this aspect has not been clarified in the comments) forwarded the case to the President in the following terms:- ESTABLISHMENT DIVISION 5. Ch.Nazir Ahmad kasana, the nominee of the Commission, is presently serving as Soil Fertility Officer, Faisalabad, which is a post in pay scale BPS-18. The officer's record is somewhat mixed. His reports for the year 1959 and 1960 contained adverse remarks. His performance from 1964 to 1969 has been rated as good but his subsequent record fluctuates between good and average with advisory or adverse remarks now and then. Government's displeasure was conveyed to him in January 1983 for "inefficiency and slackness in introducing relevant record before the Departmental Accounts Committee". The Commission had initially recommended him. for appointment in Grade-19 but later agreed to his appointment in Grade-20 on a reference by the Ministry. 6. Although the Ministry of Food • and Agriculture agree with our observations about this officer's record, they have recommended his appointment as they need an officer urgently to monitor the rice crop and he fulfils the educational qualifications and experience. 7. The Establishment Division do not feel in a position to support the appointment of an officer with such record to a senior post two steps higher than his present assignment. This leaves us with the foQowing alternatives:- (a) Ch. Nazir Ahmad Kasana may be appointed on probation and a special report be obtained on his performance prior to termination of his probationary period; or (£>) the Commission may be asked to re-advertise the post with curtailed length of experience to enable younger and brighter candidates with higher qualifications to apply. 8. The Establishment Division would suggest the adoption of alternative (b) above. 9. President's approval is solicited to the proposal contained in para 8. Sd/- Establishment Secretary. COS to the President 10. Based on his record of service, Ch. Nazir Ahmad Kasana is not fit for a double jump promotion. The post may be re-advertised by re-adjusting qualifications to create more candidates. Sd/- COS to the President 153.1984 President 11. Para 10 above is approved. Sd/- President. 173.1984 12. The Ministry may be advised to take action as approved by the President. FPSC may also be informed by the Ministry. Sd/- Establishment Secretary 18. This decision was conveyed to the Agriculture Division, vide U.O. dated 21.3.1984 and the Commission was informed about the rejection of their recommendations by a letter, dated 4.4.1984. Having come to know about this decision, the petitioner addressed the appeal, dated 13.4.1985 to the Commission which in its letter dated 19.5.1985, addressed to the Agriculture Division, inviting its attention of Establishment Division's OM 3.3.59-E-VH, dated 4.6.1960, pointed out that the procedure laid down therein for the rejection of the advice of the Commission had not been followed. It also forwarded the appeal of the petitioner to the Establishment Division. No one knows what happened to this appeal. However, the petitioner filed this writ petition on 12.4.1986. 19, The above resume embodies in some details the part played by the respondents in petitioner's proposed recruitment to the post of Rice Commissioner in Grade-20 and his ultimate failure. In this process Agriculture Division and the Commission figured directly because the post to be filled in belonged to the former and the selection of its incumbent was the job of the latter. After some controversy between them about the status of this post, both of them eventually agreed that the petitioner should be appointed as a Rice Commissioner in Grade-20 but their joint proposal continued to be opposed, tooth and nail, by the Establishment Division from start to finish and ultimately succeeded in getting the same rejected from the President Now I proceed to examine as how far the role played by the Establishment Division in this matter was justified on legal plan? 20. Under the Rules of Business, 1973, the Establishment Division plays a decisive role in most of the service matters. Its powers, duties and functions are more particularly specified in Rule 11 read with Item 12 of Schedule II appended to the aforesaid Rules. Under Rule 11 no Division of the Federal Government, without previous consultation with the Establishment Division, can issue or authorise to issue any order, other than an order in pursuance of any general or special delegation made by it which involves (c) initial appointments, other than those made through the Federal Public Service Commission, in the Federal Secretarial and Attached Departments; (d) ........................ (/) the selection of an officer serving in connection with the affairs of a Province for appointment in the Federal Secretariat or an Attached Department, except for appointment in the Intelligence Bureau. 0?) ....................... 21. In Item 12 of the Second Schedule appended to the 1973 Rules the Establishment Division in terms of allocation of business of the Federal Sccietarial as contemplated by Rule 3(3) jf of the said Rules, can inter alia fyrniiU^le Qccupajionaji Groups in public service and regulate all matters of general applicability 19 .such ,gr,oups including rcciuilmcnls, verification of character, and antecedents, conduct and discipline, terms and conditions of 21 Under iule j l5(g) lead with'itern 5(b) of Schedule V-A of the'said Rules,, Establishment Division is to submit a case of non-acceptance of < the advice of the Coirfmission to the Prime Mmister for approval. ' J, i 23. Judged in the light of possibly relevant poilion of rule's 1,1, ISfjj^rcad with Schedule II and Schedule V-A, ibid one docs not lail to find thaUhc case in hand doev not fall under any ol these provisions. To c be a little rnqrp, precise j rule , ll(Ho. ' SOA(b)-40/77,'dated 25.7.1988 (copy'enclosed) had withdrawn its Displeasure 'conveyed to the petitioner vide its order, dated 29.-1 .^983, and a en i0ncfc»sd:di:ilb copy but the Establishment'Division, in'the opening pafa«r'ap1t 'nrf its. Note submitted to the Presklcnt, did not'mention lhis r facl, rather, highlighted'it 1 as an jnsldn.cc by saving that Gover'nmcnt'is displeasure was'coiwejed't'o rfirtt-in .Fdntutry, 983 for'"inelflci'ency 1 and' sickness' 1 In introducing re'lbvunrrocord-'beforei'lhe ''''Dcpa'rimcVUdl Accounts Committee". This was an db\ious mis^stateiricnt of'facls '"on trie 1 part of'the Secretary Establishment.-Similar!^ ah impression was given to the President that the Commission, which had initially recommended for the down-gradalion of the post from Grade-20 to Grade-19 and later happened to revise its advise, had done so on the pursuation of respondent No. 2 and not on merits, while this was not the factual position. Agriculture Division had given cogent reasons for not accepting the proposal of the Commission in that respect and the latter had for valid reasons revised its recommendations. Their view point on this aspect should have been embodied in the note but it (Estab. Division) omitted to do so for the reasons best known to it. Likewise, the views of Agriculture Division about the suitability of the petitioner for the job were not incorporated in the note in their true perspective and an impression was given to the President that they were in hurry in recruiting the petitioner in order to monitor the rice crop, merely on the basis of his qualifications and experience. In the end, the Establishment Division, after suggesting two alternatives to the President, hurried to favour the one which suggested rejection of the proposal of the referring Division and, in turn, entailed implied rejection of the recommendation or advice of the Commission as a routine affair. The proposal of the Establishment Division was supported by COS to the President in his note, dated 15.3.1984, mainly on the misconceived notion that the petitioner was getting 'double jump promotion' and the President was pleased to approve the proposal of his COS by simply saying "Para.10 above is approved". 30. The recommendations of the Commission--a prestigious examining body, having statutory existence, with an exceptionally good record of long experience, impartiality and ability in selecting responsible functionaries for public service of the Federation, could not and should not have been so lightly ignored and rejected even by the President. Despite his discretion under Section 8 of the Federal Public Service Commission, Ordinance, 1977, and his very high position in the official hierarchy he, as a public functionary of a Muslim State, where, under the grund norm of Shariah now legally enforceable, even a lowest can ask the highest to account for his acts and doings, was under an implied obligation to take an independent and judicious decision after due application of mind, on the case of the petitioner, whose career was involved. More so when the recommendations of the Commission, which are conventionally and traditionally honoured unless there is something glaringly perverse, were at stake. He was not expected to readily accept what was being suggested to him by his COS and the Establishment Division, and had he turned a few pages back, he would not have failed to find that he was being misled. It was not a case of 'double jump promotion' as termed by the C.O.S. at the behest of Establishment Division, because it was not a matter of promotion. It was a clear case of initial recruitment and the petitioner had successfully competed for the post as an ordinary candidate, like others, on the basis of his qualifications and experience, and not on the basis of his past service in the Provincial Agriculture Department. Even a person having a much lower status could successfully compete and could his nomination be rejected merely because he would get manifold jumps? Certainly not. The perusal of service record of the petitioner by the Commission was relevant only to have a glimpse at his past as to how he had been faring previously. It was only an aid to the Commission for forming an opinion. There could be candidates having no previous service record but it did not mean that they were not eligible to compete or they could be ignored only for that reason. In fact it was the departmental representative in the Commission, who, because of some extraneous consideration, put the Commission on the wrong track by suggesting downgradation of the post to Gradc-19 and grant of six advance increments, without considering the fact that petitioner's financial benefits would exceed than what he would get as a Grade-20 officer. When this incongruity was pointed out to the Commission, it hurriedly retraced its steps and agreed to retain the original status of the post for the petitioner. When the matter reached the Establishment Division, they reopened this chapter on the ground of petitioner's adverse entries and despite frantic efforts of the referring Division to save the situation, got their boat scuttled at the highest level by diverting the course of events into a wrong channel. Their main aim appeared to be that a Grade-18 employee of the Provincial Government should not get a Grade-20 post in Federal Government and they succeeded in their mission. 31. It has been argued that due to paucity of time and heavy pre-occupations the President was not expected to write a detailed order for rejecting the recommendation of the Commission and signification of his approval to the suggestion made by his COS was enough to satisfy the requirements of the application of his mind. This is true that he had many heavy calls on his precious time but 'uneasy lies the head which wears the crown' and despite all these adds he had to find time for dealing with such like cases in order to take an independent decision, ignoring all what his advisers and aides had suggested, by the due application of his mind and giving valid reasons for the conclusion reached, particularly while rejecting the advice or recommendation of the Commission. 32. It is, therefore, obvious that whatever was being done by the Establishment Division was not in public interest more so whenlhe Commission after persistent efforts spreading over three years had, with great difficulty, found the petitioner as a suitable candidate for the job, having requisite qualifications and experience and who was readily accepted by the concerned Division which was to avail of his services and had been looking for a person for many years. By the act of the Establishment Division the entire work done, energy spent and time consumed by the concerned agencies was wasted and they were again left in lurch to grope in the dark to find out a younger and brighter incumbent and that too after the readjustment of qualifications and experience as directed by the President on the suggestion of COS. All that was done by the Establishment Division had the semblance of malafide which in terms of Federation of Pakistan vs. Saeed Ahmad KJian and others (PLD 1974 S.C. 151) literally means 'in bad faith' and an action taken in bad faith is usually an action taken malaciously, that is to say, an action done out of personal motive either to hurt a person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purpose not authorised by law under which the action is taken, or action taken in fraud of law is also malafide". At least what was done by the Establishment Division was not free from bias. 33. In view of the above, in answering the first question I am inclined to hold that in the first instance Establishment Division had no role in this matter and it happened to play a part on account of reference made to it by the Agriculture Division under a mistaken belief that the reference to the President was to be routed through it. But, if at all, it had some role to play in that context, it did not play it justly, either due to lack of proper care and caution, which itself reflected lack (if good faith, or for some extraneous consideration, and misleading the President, got the impugned order passed from him which is not sustainable at law. Since there was no difference of opinion between the Agriculture Division and the Commission, in fact, no reference of the kind made by the Establishment Division to the President was necessary and all this was done without lawful authority and with a bias. 34. Now I take up the second question regarding the nature of the recommendations made by the Commission and their binding force on various authorities, including the President. Federal/Central or Provincial Public Service Commissions were for the first time ushered in the official set up in India as a constitutional body by the Government of India Act, 1935, with view to induct into public service talented persons on merits and to exclude the possibility of various kinds of favouritism and underhand means employed by different pressure groups in that field. In other words, these bodies were to assist the Federal Government and the Provincial Governments in inducting suitable persons into public service for efficiently funning the affairs of the State in arious fields. They also had to perform certain advisory functions counselling the Federal and the Provincial Governments in the matters relating to method of recruitment, promotions, transfer and disciplinary action etc. Sections 264 to 268 of the said Act deal with the Public Service Commissions, their composition, powers and functions. In the Constitution of Islamic Republic of Pakistan, 1956, these institutions were not only retained but their status was improved. For instance, the removal of a member of a Public Service Commission from office was made difficult by bringing it at par with that of the Judge of a High Court. Articles 184 to 190 of this Constitution dealt with these institutions. Similar!}', in the Constitution of Islamic Republic of Pakistan, 1962 these august bodies, having their own importance, were given due place and their composition, terms and conditions of office, powers and functions and other related matters were embodied in Articles 182 to 190. However, in the Constitution of 1973 the status f these institutions was, for the reasons best known to its framcrs lowered or reduced in the sense that under Article 242 thereof they were made statutory bodies instead of Constitutional ones because their very existence, duties, functions were made dependent upon law to be enacted by the appropriate legislatures. Jn the opinion of a commentator, the use of word 'may' in Article 242 indicated that it was not even necessary to set up Commissions. With all respect to the all concerned, it was a retrograde step, out of tune with the fast progressing world and rapidly developing such like institutions in the democratic societies in the advanced countries. 35. Anyhow, pursuant to Article 242 of the 1973 Constitution, the President promulgated an Ordinance known as Federal Public Service Commission Ordinance. 1977, setting up a Public Service Commission for the Federation. The Provincial Governments following suit also promulgated Ordinances establishing their respecli\e Public Service Commissions. The said Ordinance, besides spelling out the constitution of the Commission, also provided for the terms of the office of its members and Chairman, duties and functions of the Commission, after leaving certain incidental and ancilliary matters to be taken care of by the regulations to be framed by the President and the rules to be framed by the Federal Government. It is Sections 7 and 8 of this Ordinance which arc relevant 37. In view of the above, since the Establishment Division did not act in accordance with law, rather it acted without lawful authority, and while dealing with reference il deflected the course of events in such a manner that the PuMiLnt was ultimately misled to pass an order not sustainable at law, the writi [V lit ion is accepted anil the impugned order is set aside. As the Commission, while interviewing the petitioner, did not see his character rolls to judge in depth! his suitability for the post, it shall examine his service record and, if necessary,! max interview him again to seek clarification of any point concerning his service: mailers. Thereafter il shall send its recommendations to the Agriculture Division! which shall submit the case to the appointing authority for passing order in accordance with law. Establishment Division shall pay a sum of Rs.5,000/- to the petitioner as costs of the Writ petition. (MBC) Petition accepted

PLJ 1990 Lahore 435 PLJ 1990 Lahore 435 [Multan Bench] Present: ZlA M/MIMOOI) MlR/A, J MANAGER HAMEED MASOOD (Pvl) Ltd-Petitioncr versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others- Respondents Writ Petition No. 873-A of 1989, dismissed on 3.2.1990 (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S. 25-A—Grievance petition—Acceptance of—Challenge to—Contention that being a temporary employee, respondent No. 3, as per provisions of Standing Order 12(2). was not entitled to any notice before termination of his service and as such, he could not take benefit of Standing Order 12(3) which enjoins that service of a workman cannot be terminated except by an order in writing giving explicit reasons for action taken—Held: Clause (3) of Standing Order 12 which is a mandatory provision, applies to all classes of workmen whether permanent, temporary, Bacllix or probationers-Held further: There is no force in contention that respondent No.3 being a temporary workman, his services could be terminated by an oral order and il was not necessary to comply with provisions of Standing Order 12(3)--Pelilion dismissed. |Pp. 438,439&44()]|B,C&D 1980 PLC 79 distinguished. (ii» Industrial Relations Ordinance, 1969 (XXIII of 1969)- —S. 25-A—Grievance petition—Acceptance of—Challenge to—Petitioner denies having icrminaled service of respondent No. 3—There is nothing on record to show nor is il case of petitioner that he ever proceeded against respondent No. 3 lor his aliened absconsion/absence from duly—Held: Labour Appellate Tribunal has rightly held that on petitioner's own showing, respondent No. 3 continues to be in service till he is terminated in accordance with law. [P.438]A Mian Pcivai: Akhtai; Advocate for Petitioner. Mr. Quiniinizzaman Bull, Advocate for Respondent No.3. Date of hearing: 3.2.1990. ORDliR This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order of Punjab Labour Court No.9 dated 29.1.1989 allowing the grievance petition of the respondent and directing his reinstatement in service and the order of the Punjab Labour Appellate Tribunal dated 26.4.1989 dismissing the petitioner's appeal. 2. Facts, briefly stated, arc that Muhammad Amir respondent No.3 herein was employed as a Painter with the petitioner, a Construction Company. He claimed that the Management of the petitioner company was annoyed with him because he used to demand his legal rights and press for the payment of full service benefits. He was threatened with dire consequences for raising such demands and on 20.] 1.1985 when he came for dulyjic was confronted at the gale by Haji Bashir Ahmad, Kama) Din and Muhammad Iqbul. The latter two were asked by the lonner i.e. Haji Bashir Ahmad to teach a lesson to the respondent for raising demands. He was accordingly given beating and thrown out of the premises. Haji Bashir Ahmed told the respondent that his services stood terminated and that he should never come to the office again. Respondent gave a grievance notice to the Management on 19.2.1986 which embodied the aforementioned allegations but it was not responded to by the Management. Respondent thereafter brought a grievance petition on the aforementioned allegations before the labour court praying therein that he may be reinstated with all the back benefits. Management resisted the grievance petition by filing a written statement controverting the allegations made by the respondent. It was denied that the respondent "was refused entry or punished and thrown out." Stand taken by the Management .was that the respondent was engaged against a temporary job. He worked in t'he months of September and October, 1985, "absconded On 24.11.1985 of his own and left the service without any information." An objection was raised by the Management that the respondent was a purely temporary employee who had put in less than three months continuous service and, therefore, he had no locus stand! to file the grievance petition. 3. Both the parties led evidence in support of their respective contentions. Respondent/employee appearing as his own witness, inter-alia, deposed that he had been working as a painter with the petitioner establishment for the last 17/18 years. The Company was not paying him his full dues. He used to press for the same which annoyed the management. He was, therefore, given beating and physically thrown out of the premises at the instance of Bashir, the proprietor of the petitioner-company and was told that he was dismissed. It was complained by the respondent that he was not given any notice or charge-sheet or any written order terminating his services. Abdul Hamid, the Manager of the petitioner- Company, appeared as RW-1. He stated that the respondent was appointed on purely temporary basis. He had been working on daily wages. He was, however, provided with all ihc facilities and benefits under the labour laws. Indexation and co-si of living allowance was also paid It) him. The witness slated that he had not terminated the services of the respondent and the latter never informed him that he had been dismissed by anybody or that he was prevented by any person from performing his duties. The witness also deposed that the total number of the employees working in the store and the office of the ..petitioner-company never exceeded 19. He, however, admitted in cross-examination that the total number of the employees of the petitioner concern in Pakistan was 100. The \vilness further stated that the respondent had worked for less than three months after his appointment on 14.9.1985 though he had .been working even prior thereto off and on. 4. Learned labour court on consideration of the evidence adduced by the parlies came to the conclusion that the respondent/employee "had been working continuously though temporarily". He was entitled to the protection of Standing Orders Ordinance and, as such, his service could only be terminated through an order in writing giving explicit reasons for termination. Oral termination of the respondent/employee was accordingly held to be unsustainable and he was rdered to be reinstated vide order dated 29.1.1989 but, back benefits were not allowed to him as the labour court held that he was being reinstated.on technical grounds. 5. Aggrieved with the aforementioned order of the labour court, petitionercompany assailed it in an appeal before the Punjab Labour Appellate Tribunal. Respondent/employee also preferred an appeal to claim the back benefits. Both the appeals were disposed of by the Tribunal through a single order dated 26.4.1989. Appeal of the petitioner-company directed against the reinstatement of the respondent was dismissed whereas the respondent's appeal was parity accepted allowing him 50% back benefits. Learned Appellate Tribunal repelled the petitioner's contention that he had left the service of his own and that he was nol given any beating at the instance of the management or thrown out of service. Learned Tribunal observed that the respondent enumerated all the allegations in the grievance notice addressed to the employer and "if the assertions made in the grievance notice had been false or if the employer had wanted that the respondent should continue to discharge his duty, he should have been readily informed by way of replying to the grievance notice that he should come on duty and that his services were not terminated." Learned Tribunal look the view that since the case of ihe petitioner-company was that it had nol terminated the service of the respondent orally or in writing, "he continues lo be in service till his services are legally terminated." Learned Tribunal did not accept the plea of ihe petitioner-company that Standing Orders Ordinance was nol applicable lo its establishment. It was noted that the petitioner-company had nol laken any such objection in the written statement and its witness RW-1 had admitted thai ihe total number of employees of ihe petitioner throughout Pakistan was 100. ll was thus held by the Appellate Tribunal lhal the Standing Orders Ordinance was applicable lo ihe petitioner-company and "if the services of the respondent have been terminated orally, then there is a violation of Standing Order 12(3) and such a termination is nol sustainable." Learned Tribunal declined lo consider the evidence adduced by ihe petitioner lo show ihat the respondent was a daily wager "since such a plea was nol laken in the written statement" and held that on the petitioner's own showing, respondent was a temporary employee and "even a temporary employee can be terminated from service by .an'order in writing as required by S.O.12(.>) of Standing Orders Ordinance. 1%8." Taking this view of the matter, learned Appellate (Tribunal) upheld the order of Labour Court directing the reinstatement of the respondent. As regards the back benefits, appellate tribunal found that the respondent was entitled thereto as he had remained jobless eversince his termination. Respondent was. however, allowed 50 percent of back benefits. Validity ol these orders have (?) been brought under challenge in this constitutional petition. (>. 1 have heard the learned counsel for the petitioner. He has contended that the respondent/employee had himself absented from duly and left the .service of his own. His service was not terminated by the employer and, therefore, there was no occasion or need lor passing any formal order in writing. This plea in fact involves the denial of the respondent's version that he was given beating d his services terminated orally which version has been duly attended to and accepted by I lie courts below. The learned appellate tribunal, as noted above, has given good reasons for not accepting the plea of the petitioner. Respondent brought his grievance to the nol ice of the employer through a grievance notice but the latter took no action to redress it nor did he bother even to send a reply to the grievance notice contiou ninn the allegations made therein. It may pertinently be observed hat the contention being raised by the learned counsel involves a purely•laclual controversy which has been determined against the petitioner by the two courts lter proper appreciation ol the evidence on record. It cannot, therefore, be eopened In ihis Court sitting in constitutional jurisdiction. The matter may also ibc examined from yet another angle. Petitioner denies having terminated the I service ol the respondent. That being so. learned appellate tribunal has ghtly j held that on the petitioner's own showing, respondent continues to be in s rvice j until he is terminated in accordance with law. Now there is nothing on the record to show nor is it the case of the petitioner that it ever proceeded against the respondent for his alleged absconsion/absence from duty. If the respondent had really absented from duly as alleged, petitioner should have proceeded against him in accordance with law. 7. Next contention of the learned counsel for the petitioner was that being a temporary cmplovcc. respondent as per the provisions contained in Standing Order 12(2) was not entitled to any notice before the termination of his service and as such he could not take the benefit of Standing Order J2(3) which enjoins that the service of a workman cannot be terminated except by an rder in writing giving explicit reasons for the action taken. In support of his submission, learned counsel relied on a judgment of Punjab Labour Appellate Tribunal reported in j 11980 PLC 79 wherein it was held with reference to S.O.. 12(2) thai "since no !notice of termination is. required in the case of a probationer as laid down in islanding Order 12(2), the question of communicating the termination order in wriling to the probationer does not arise. "1 regret to say that I have not felt i persuaded to accept this contention which appears to be based on j misconception/mis-appreciation of the legal position contained in Standing Order 12, relevant provisions whereof are reproduced hereunder for facility of [reference:- 12. Termination of employment: (1) For terminating employment of a permanent workman, lor any reason other than misconduct, one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) No temporary workmen, whether monthly-rated, weeklyrated, daily rated or piece-rated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay wages in lieu thereof to the employer if he leaves employment of his own accord. (3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly stale the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal he may lake action in accordance with the provision of Section 2>A of the Industrial Relations Ordinance, 1969 (XX111 of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance." A plain reading of the provisions afore-quoted would show that there is a clear distinction between the notice of termination referred to in clauses (I) and (2) and the written order of termination required to be made under clause (3) 6f Standing 12. Clauses (1) and (2) speak of the notice of termination. Clause (1) lays down that if the service of a permanent workman is terminated for any reason other than misconducl, he will be given one month's notice or in lieu thereof, he shall be paid one month's wages. Clause (2), on the other hand, dispenses with such a notice in the case of temporary workman, probationers or 'Badlis'. Clause (3) of Standing Order 12 is wholly independent provision which makes 'it obligatory for the employer to pass an order in writing when he terminates llic services of a workman or removes, retrenches, discharges or ! dismisses him from service and it further require s that the order so passed must explicitly slate the reason for the action laken. Clause (3) of Standing Order 12 has no nexus at all with clause (2) and therefore, classes of workmen (temporary, probationers and Badlis) who under clause (2) arc not entitled to the notice of termination cannot be deprived of the beneficial provision of clause .(3). -It may pertinently be observed that clause (3) speaks of a "workman" which term should ordinarily include all classes of workmen enumerated in clause (a) of Standing Order 1. It may be nolcd lhat Standing Order 1 classifies workmen as- (1) Permanent, (2) Probationers, (3) Badlis (4) Temporary and (5) Apprentices. Clause (3) of Standing Order 12 which is a mandatory provision, in my view, applies 10 all classes of workmen irrespective of the fact whether they are permanent or temporary, Badlis or Probationers. Learned counsel relying upon the afore-noted judgment of Punjab Labour Appellate Tribunal (1980 PLC 79) sought to argue that clause (2) of Standing Order, 12 is an exception to the general rule laid down in Standing Order 12(3). Argument of ihe learned counsel is misconceived bul it appears to be based on the following observations in a Karachi case of "Messrs Rashid Tenth; j Karachi vs. Rufuf Wall and 2 others" (1976 PLC 181) which were reproduced ailfe case cited by him:- "The mere perusal of provision of law makes it glaring that Slanding Order 12(2) .of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 docs not necessitate the service of notice before the termination of services of a probationer. Slanding Order 12(2) creates an exception to the general rule as laid down in Standing Order 12(3) that every workman will be served with a notice in writing before his services are terminated." 1 have gone through the judgment in the Karachi case. A point was raised m that case that no notice was given to the employee/respondent therein before termination of his service, and, therefore, the employer had violated ibc provisions of Slanding Order 12(3). The contention was repelled by the learned Judge with ihe observation thai the employee was a probationer when his services were terminated on the ground of unsatisfactory work and that "Slanding Order 12(2) docs not necessitate the service of notice before the termination of services of a probationer". The learned Judge further proceeded to observe that "no notice was necessary because Standing Order 12(2) creates an exception to the general rule laid down in Slanding Order 12(3) that every workman will be served with a notice in writing before his services are terminated". There can be no cavil with the view that no notice is necessary for terminating the services of a probationer or for that matter of any temporary workman as it is specifically so provided in Standing Order 12(2) but die further observation that the Standing Order 12(2) creates an exception to the general rule laid down in Slanding Order 12(3) is not quite correct. The observation in question appears to be the result of some typing/printing error because by no stretch of reasoning, S.0.12(2) can be said to be an exception to SO 12(3). S.O. 12(2) in fact is in the nature of an exception to S.O. 12(1) and if I may say so with respect, this is what the learned Judge of Karachi High Court intended to lay down. This view finds furlher support from the fact that the general rule referred to by the learned Judge namely "every workman will be served with a notice in writing before his services are terminated" is contained in SO 12(1) and not SO 12(3). Apart from what has been said above, judgment of the Punjab Labour Appellate Tribunal as also of Karachi High Court referred to above are distinguishable on facts. In none of these cases, services of the employee were terminated orally and as such question of infringment of Standing Order 12(3) did not arise therein. In the aforesaid view of the matter, I find no force in the contention of the learned counsel that the respondent being a temporary workman, his services could be terminated by an oral order and it was not necessary to comply with the provision of Standing Order 12(3). Since the petitioner-company had admittedly not passed any order in writing terminating the services of the respondent, learned courts below have rightly set aside the impugned termination being violative of Standing Order 12(3). The impugned orders of learned Labour Court and the 'Appellate Tribunal are not open to any exception. Writ petition has no merit and jlhe same is accordingly dismissed in-liminc. Petition diMiu^cd.

PLJ 1990 Lahore 441 PLJ 1990 Lahore 441 [ Multan Bench] Present: IHSANUL HAQ CHAUDHARY, J MUHAMMAD IQBAL-Petitioner versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 3 others-­ Respondents Writ Petition No. 277 of 1988, accepted on 25.6.1990 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S. 25-A-Grievance petition-Acceptance of-Appeal against-Acceptance of appeal on technical ground-Challenge to-Respondent No. 1 upheld finding of Labour Court on merits but accepted appeal of Bank on ground that in view of decision of High Court, Bank employees cannot maintain grievance petition- Writ petition does not suffer from laches-Held: Basis of acceptance of appeal by respondent No. 1 has disappeared with judgment of Supreme Court- Petition accepted and judgment of Labour Court restored. [P.442]A,B&C PLD 1988 SC 53 re/. 1985 PLC 1053 upset. Ch. Nazir Hussain, Advocate for Petitioner. Ch. Altaf Hussain, Advocate for Respondents. Date of hearing: 25.6.1990. judgment The petitioner through this Constitutional petition has prayed for that the order dated 16.3.1986 of respondent No.l is without lawful authority. 2. The relevant facts are that the petitioner was working as a Guard under the respondents No.2 to 4 and was dismissed from service vide order dated 14.3.1982. The petitioner impugned this order of dismissal through grievance petition in the Punjab Labour Court No.9, Multan . The respondents contested this petition. The learned labour Court after recording necessary evidence and hearing the parties proceeded to partly allow the petition vide order dated 4.11.1984. The result was that the petitioner was reinstated in service without back benefits. The respondents No.2 to 4 impugned this order through an appeal before respondent No.l. who accepted the appeal vide order dated 16.3.1986. The petitioner has now assailed this order through this Constitutional petition. 3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondents No.2 to 4 appeared and contested the petition hile respondent No.l was proceeded ex-parte. he learned counsel for the petitioner in support of the petition has argued that although the learned respondent No.l upheld the order of reinstatement passed by labour Court yet accepted the appeal on the short ground that the Bank employees could not maintain a grievance petition in view of the decision of this Court reported as 1985 P.L.C. 1053. It is submitted that this judgment of High Court was set-aside by the Supreme Court in the case of Iftikhar Ahmad and others Vs. President, Bank of Pakistan and others (P.L.D. 1988 S.C. 53). It is submitted that this basis of order of learned respondent No.l has disappeared. 4. On the other hand, the learned counsel for respondents No.2 to 4 has argued that the petition is barred by gross laches. It is submitted that the order of Tribunal is dated 16.3.1986 while the present petition was filed in this Court on 27.1,1988, therefore, this petition is liable to be dismissed. The learned counsel in this behalf has referred to the cases reported as 1985 S.C.M.R. 1003 and 1980 S.C.M.R. 711. 5. The learned counsel for the petitioner in reply submitted that the petitioner moved an application before N.I.R.C. on 20.4.1984, immediately after the acceptance of the appeal of the Bank by respondent No.l, for redress of his grievance. This petition was dismissed by the N.I.R.C. vide order dated 19.1.1988. In the meanwhile, the Hon'ble Supreme Court has declared that the Bank employees covered by the definition of 'worker' can maintain grievance petition. This judgment was reported in the January issue of Pakistan Legal Decisions. Soon thereafter the petitioner filed this writ petition. 6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as .well as precedent cases. The admitted position on record is that the respondent No.l upheld the finding of the labour Court on merits but the appeal of the Bank was allowed in view of the legal decision of this Court that Bank employees cannot maintain a grievance petition. The petitioner thereafter petitioned to N.I.R.C. for redress of his grievance but that effort also proved futile, therefore, this petition does not suffer from laches. 7. The basis of the acceptance of the appeal of the Bank by respondent No.l has disappeared with the judgment of Hon'ble Supreme Court in the case of Iftikhar Ahmad and others, therefore, the last portion of the judgment of the respondent No.l cannot be upheld. The petitioner is not aggrieved by the earlier portion of the judgment as to the decision on merits. 8. The up shot of this discussion is that I respectfully following the decision of the Hon'ble Supreme Court in the case of Iftikhar Ahmad and others allow this petition and set-aside the judgment of respondent No.l. The result is that the judgment of the labour Court dated 4.11.1984 is restored. There is no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 442 PLJ 1990 Lahore 442 Present: MALIK MUHAMMAD QAYYUM, J NAZEER-Petitioner versus HOME SECRETARY, GOVERNMENT OF PUNJAB and two others-­Respondents Writ Petition No. 856 of 1990, accepted on 13.5.1990 Conviction- —Conviction by Special Military Court-Challenge to-Relief to certain prisoners by President-Notification of-Whether case of petitioner is covered under notification-Question of-Notification provides that sentence of all prisoners who were above 60 years of age and have undergone imprisonment for five years, shall be remitted-Contention of Advocate General that period of under-trial imprisonment cannot be allowed-Held: Contention has no force in view of sub-para (h) of Notification that in computing total period of imprisonment, period served as under-trial prisoner shall also be considered- Held further: Notification is fully applicable to case of petitioner-Petition accepted and sentence remitted. [P.443]A,B&C Mr. Muhammad Akbar Tarar, Advocate for Petitioner. Mr. Maqbool Elahi Malik, A.G. with Mr. Muhammad Raft Siddiqui, Advocate for Respondents. Date of hearing: 13.5.1990. judgment This petition under Article 199 of the Constitution of Pakistan, 1973, seeks a direction to the respondents to release the petitioner who is confined in Kot Lakhpat Jail. Lahore, forthwith. 2. The petitioner alongwith 17 others was accused in a case registered vide F.I.R.No.21 of 1979 dated 4th of March, 1979. He was tried by the Special Military Court No.7. Gujranwala . and was sentenced to life imprisonment which sentence he is serving in the Central Jail, Kot Lakhpat, Lahore . On 7th of December, 1988, the President of Pakistan announced certain measures for relief to the prisoners j convicted by Military Courts. This Notification, inler-alia, provides that the j sentence of all prisoners who were above 60 years of age and have undergone imprisonment for five years, shall be remitted. The fact that the petitioner is more than sixty years of age has been admitted by the Assistant Superintendent of Jail on the basis of the record. It is also not denied that the petitioner has remained in prison for six years three months including the period of three years three months and nine days as an under-trial prisoner. 3. The learned Advocate-General has however, contended that ' the petitioner cannot be allowed benefit of period for which he remained under-trial prisoner. This contention, however, has no force. It has been explained in subpara (h) of the Notification in question that in computing the total period of imprisonment undergone by a convict, the period which he served as under-trial prisoner shall also be considered. There is thus no justification for denying the petitioner the benefit of sub-para (h) of the Notification. The petitioner having remained in prison for a period of more than five years, and being more than sixty rears of ace on 8th of December, 1988, the notification is fully applicable to his case and the sentence, therefore, stood remitted under the afore-said Notification. 4. In view of what has been stated above, this petition is accepted. The respondent is directed to release the petitioner from prison if not required in any other case. There is no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 444 PLJ 1990 Lahore 444 [Multan Bench] Present: SAJJAD AHMAD SlPRA, J GOVERNMENT OF THE PUNJAB and 2 others-Petitioners versus ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others-Respondents Writ Petition No. 1171 of 1983, accepted on 27.5.1990. (i) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)-- —S. 13(6) read with West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956, Section 11—Tenant—Ejectment of—Challenge to-Requisitioned property-Whether Rent Controller had jurisdiction to entertain ejectment application—Question of—House in dispute occupied by Government Madrassa Taleem-ul-Atfal was requisitioned and respondent No. 3 had accepted rent in pursuance thereof—Held: A bare reading of Section 11 of Act, makes it abundantly clear that Rent Controller had no jurisdiction to entertain ejectment application in respect of requisitioned property-Held further: Impugned order striking off defence of petitioners and ordering ejectment, was without jurisdiction and lawful authority. [Pp.445&446]A&B 1982 CLC 169, PLD 1978 Lahore 87 and 1984 MLD 491 rel (ii) Urban Rent Restriction Ordinance, 1959 (WP Ord. VI of 1959)-- —-S. 15 read with Civil Procedure Code, 1908, Order XLI Rule 4-Tenanl- Ejectment of-Appeal against-Whether petitioner No. 3 was not competent to file appeal—Question of—Held: In accordance with provision of Order XLI Rule 4 of.C.P.C., petitioner No. 3 who was respondent No.l in ejectment proceedings being aggrieved of order of Rent Controller, was competent to file appeal—Held further: Order of Respondent No. 1 rejecting appeal on ground of incompetence of petitioner No.3 to file appeal, is not sustainable at law- Petition accepted and impugned orders set aside. [P.446]C&D Mr. Tasaddiq Hmsain Jilani, A.A.G. for Petitioners. Chaudhty Abdul Ghani, Advocate for Respondent No.3 Date of hearing: 27.5.1990 judgment The brief facts leading to the present writ petition are that respondent No.3 herein, Mst. Saeeda Begum, had filed a suit for ejectment under Section 13 of the Punjab Rent Restriction Ordinance, 1959, on 24.2.1981 before the Rent Controller, Multan, in respect of the property i.e. House No.3704/48, Arslan Street, Ward No.8 Muslim, Hassan Parwana Colony, Multan, in possession of the present petitioners. The petitioners were running a school in the said premises. In the amended written statement filed on behalf of the petitioners/defendants, the preliminary objection was to the effect that the learned Rent Controller had no jurisdiction to entertain the said suit for ejectment against the petitioners as the The petitioners have assailed the orders of respondents No.l and 2, dated 13.6.VJS3 and 18.11.1982 respectively, for being illegal, without lawful authority and of on legal effect. The case of the petitioners is that as the property in question had been requisitioned by the Commissioner, Multan Division, Multan, therefore, in view of Section 11 of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act. 1956, no ejectment petition could be entertained in respect of the same by the learned Rent Controller; and that the learned Rent Controller did not advert to this aspect of the ase and exercised jurisdiction which was not vested in him; and that petitioner No.3 herein was competent to file the appeal as the sanction in respect or pursuing the case had been granted by the Government and, that, therefore, the learned Additional Sessions Judge had erred in law in holding that the appeal was not competent. It is an admitted fact that the property in question had been duly requisitioned in accordance with the provision of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956, and that respondent No.3 herein had accepted the rent in pursuance thereto, having acquiesced in the requisitioning of her house, as stated above, and, furthermore that the respondent No3, Mst. Saeeda Begum had never challenged the said requisitioning of her house. Therefore, it needs to be adjudicated upon whether or not the learned Rent Controller had jurisdiction to entertain her application for ejectment of the petitioners from the said premises. In this respect, the relevant provisions are contained in Section 11 of the Act, 1956 stated above, which is as follows:- 11. Exemption from legal processes .--(I) No injunction or an order for ejectment, delivery of possession or appointment of a receiver in respect of any building which has been requisitioned under this Act shall be granted or made by any Court or by any other authority." 6. A bare reading of Section 11 of the Act, 1956, resproduced above, makes it abundantly clear that the learned Rent Controller had no jurisdiction to entertain and adjudicate upon the suit for ejectment in respect of the requisitioned property i.e. the house in question, i.e. House No. 3704/48, Arslan Street, Ward No.8 Muslim, Hassan Parwana Colony, Multan, being occupied by the Government Madrasa Taleem-ul-Atfal. Therefore, the order dated 18.11.1982, passed by the learned Rent Controller, striking off the defence of the petitioners and further ordering the ejectment of the petitioners from the said premises and handing-over of the same to the respondent No.3 within four months was without jurisdiction and lawful authority and, as such, of on legal effect. In this respect, strength was sought from Punjab Province etc. vs. Haflz Sultan Mahmood (1982 CLC 169). Wherein it was held that property once requisitioned, Rent Controller ceased to have jurisdiction to proceed with hearing of ejectment petition, and the ejectment order passed by him was declared to be without lawful authority. Reference was also made to Mohammad Tufail vs. Province of Punjab and five others (PLD 1978 Lahore 87) and to the Province of Punjab vs. Mst. Umar Bibi and another (1984 M.L.D. 491) in this respect. The learned A.A.G. had also relied upon Writ Petition No.1012/1982, decided vide order dated 8.3.1983. Wherein the same point was adjudicated upon and jt was held that as the property in question stood requisitioned, the Rent Controller had no jurisdiction to adjudicate upon the matter. It was further held that the orders passed by the Rent Controller and subsequently by the appellate authority, therefore, cannot be sustained, resultantly the said orders were declared to be of no legal effect. As regards the objection upheld by the learned Additional Sessions Judge to the effect that the appellant, petitioner No.3 herein, was not competent to file the said appeal, it needs to be pointed out that in accordance with the provision of Order 41, Rule 4 of the C.P.C. the petitioner No.3 being a defendant (No.l) in the ejectment proceedings, and thus being aggrieved by the order dated 18.11.1982, passed by the learned Rent Controller, was'competent to file an appeal against the same under Section 15 of the Punjab Rent Restriction Ordinance, 1959. Therefore, the order dated 13.6.1983, passed by the learned Additional Sessions Judge, whereby he rejected the appeal on the said ground is not sustainable at law. In view of what has been discussed above, the present writ petition is accepted and the impugned orders, dated 18.11.1982 and 13.6.1983, passed by the learned Rent Controller and the first appellate authority respectively, are hereby declared to be without jurisdiction, therefore, of no legal effect. There shall be no order as to costs. MBC) Petition accepted.

PLJ 1990 Lahore 446 PLJ 1990 Lahore 446 Present: MALIK MUHAMMAD QAYYL'M, J GHULAM RASOOL ^--Petitioners versus MEMBER, BOARD OF REVENUE e/c-Respondents Writ Petition Nos. 2S4, 160,161,1094 and 1104 of 1967 decided on 15.5.1990. Consolidation of Holdings Ordinance, 1960 (WP Ord. VI of 1960) -- —-S. 10(4)--Consolidation of holdings-Scheme of-Challenge to-Irregularities in consolidation-Effect of-Whether it would be in interest of justice to set aside 25 years old consolidation scheme-Question of-Contention that Board of Revenue itself came to conclusion that serious irregularities were committed during course of consolidation which took place in 1965, i.e. 25 years ago—Held: It would not be conducive in interest of justice to set aside scheme of consolidation at this belated stage especially when other residents of village are not parties to these petitions-Direction issued that land in respective possession of parties as on admission of writ petition, shall continue to be held by them. [P448JA.B&C Mr. Muhammad Ashraf Wahlah, Advocate for Petitioners Mr. Muhammad Ashraf Butt, Advocate for Respondent No. 2. Ch. Sanaullah Bajwa, Advocate for Respondent No. 3. Nemo for Respondent No.l. Date of hearing: 15.5.1990. judgment This judgment shall dispose of writ petitions Nos.284/67, 160/67, 161/67, 1094/67 and 1104/67 as common questions of law and facts arise therein. The dispute between the parties arises out of a consolidation matter. The Collector (Consd.) confirmed the consolidation Scheme of village Jandoo Sahi, Tahsfl Daska, District Sialkot on 22.2.1965 under Section 10(4) of the Consolidation of Holdings Ordinance, 1960. Feeling dis-satisfied, the petitioners preferred an appeal before the Additional Commissioner, which was dismissed on 30lh October, 1965. Thereafter, the petitioners filed a revision before the Board of Revenue which was partly accepted on 6.5.1966 and the consolidation Scheme was modified. StiD feeling aggrieved, the petitioners filed a eview petition which was rejected by the Member Board of Revenue on 13th September, 1966. The petitioners by filing this constitutional petition have challenged the order .dated. 13th September. 1966 passed by the Member Board of Revenue as also by_.(?) orders passed by subordinate consolidation authorities. Mr. Muhammad Ashraf Wahla, learned counsel for the petitioners submitted that the Member Board of Revenue while disposing of the revision petition has stated in his order that:- "It became evident in the course of hearing of these cases that the work of consolidation of holdings in this estate had been done in a very unsatisfactory manner. The cardinal principle of forming the main plot of a right holder as far as possible at a place where he held the bulk of his area prior to consolidation was honoured more inthe breach than in observance. This naturally gave rise to a number of appeals and counter appeals in the lower court and has brought a sizeable crop of revision petitions before me. Inspite of this, I have resisted the temptation of remanding these proceedings to the lower courts with the direction that the entire estate be consolidated afresh. To my mind such a course would have complicated the matter further. I have, therefore, conformed myself to redressing the main grievance of the affected parties as best as I could without upsetting the consolidation Scheme as a whole. I do, however, propose to call for the explanation of the A.C.O. and the C.O. who were responsible for consolidating this Mauza with a view to ensuring that such abnormal performance is not repeated." It is contended by the learned counsel that the Board of Revenue itself came to the conclusion that there were serious irregularities committed during the course of consolidation, which was carried out in un-satisfactory manner contrary to the cardinal principle of forming the main plot of the right holder at the place where the bulk of his land was situate, could not refuse to set aside the Scheme on wholly untenable grounds. It is, however, to be noticed that the consolidation in the present case had taken place in the year 1965 i.e. 25 years ago and it would not be conducive in the interest of justice to set aside the Scheme of consolidation at this belated stage especially when the other residents of the village are not parties to these petitions. Faced with this situation, the learned counsel for the petitioners submitted that he has no objection, if it is directed that the lands in the respective possession of the parties at the time of the admission of the writ petition i.e. 24th March, 1967 shall remain with them. This appears to be a fair offer which is acceptable to the learned counsel for the respondents who too have joined in the prayer of the learned counsel for the petitioners that the matter be disposed of in the above terms. As a result of the above, these petitions are disposed of with the direction that the land in the respective possession of the parties as on 24th March, 1967 shall continue to be held by them. No order as to costs. (MBC) Order accordingly.

PLD 1990 Lahore 448 PLD 1990 Lahore 448 Present: gul zarin kiani, J ABDUL WAHID-Appellant versus DOST MUHAMMAD and 3 others-Respondents R.S.A. No. 361 of 1967, dismissed on 31.3.1990 Punjab Pre-emption Act, 1913 (I of 1913)-- 9- —S. 15 read with Displaced Persons (Land Settlement) Act 1958, Section 4-- Pre-emplion-Suit for-Decree in-Reversal in appeal-Challenge to-Whether appellant had superior right of pre-emption as co-sharer-Question of-Upon migration of non-Muslims to India, lands left behind by them were treated as evacuee property and acquired by Government under Section 4 of Displaced Persons (Land Settlement) Act, 1958-Appellant (Plaintiff) and vendor were given separate khasra numbers and not a share in them at time of allotment- Held: It is incomprehensible as to how one became co-owner with other-Held further: First appellate court took an absolutely correct view in observing that plaintiff was not a co-owner with vendor or vendees-Appeal dismissed. [P.450]A 1987 SCMR 207 rd. Ch. Muhammad Asif Ranjha, Advocate for Appellant. Nemo for Respondents. Date of hearing: 31.3.1990. judgment The only point pressed in this second appeal is about the plaintiffs superior right of pre-emption. The trial Court held that he was co-sharer, and decreed the pre-emption suit in his favour on 30.9.1966, conditional upon payment of Rs.40;000/- to the vendees till 31.10.1966. In appeal, this decision was reversed, and, pre-emption suit was dismissed on 19.1. 1961. By sale, deed registered on 18.5.1965, Mohammad Ishaque sold 116 Kanals, 10 marlas of land comprised in khasras 804, 810, 812, 816, 817, 818, 819, 821, 823, 825, 826, situate at mauza Rao Bagh-Mal, Tehsil Chiniot to Dost Mohammad and his three brothers Allah Yar, Jaffar and Sultan, for an ostensible sale price of Rs.40,000/-. Abdul Waheed Khan claimed pre-emption in respect of the above sale. He asserted his superior right of pre-emption as a co-sharer in the land sold to the vendees. Suit was instituted on 17.5.1966, in the civil Court at Chiniot. Defendants resisted the suit and contested the plaintiffs right to succeed. Pleadings gave rise to as many as six issues including that of relief. As said above, material issue surviving for decision is issue No.2 only which related to plaintiffs superior right of pre-emption. Land sold and sought to be pre-empted was owned by non-muslim evacuees Amir Chand and others. Ownership rights in it were settled upon Mohammad Ishaque at serial No.16 of Register RL-II of mauza Rao Bagh-Mal as was indicated by certified copy of Register RL-II Ext.Pl. Similarly, land in Khasras 811, 813, 820, 827, 828, 829, 830, on the basis of which plaintiff asserted his superior right of pre-emption as co-sharer was owned by the same non-muslim evacuees. Both sets of khasra numbers, those allotted to Mohammad Ishaque and sold by him to the vendees and the other claimed by the plaintiff, were clubbed together in revenue records under one khata No.60 vide jamabandi for the year 1961-62. It is common ground that ownership rights in evacuee land comprisedsin specific khasra numbers were given to Mohammad Ishaque vendor and Abdul Waheed pre-emptor by the Settlement Authorities. Allotment/settlement to them was not made of a share of joint khata. Instead, each was transferred ownership rights in the specific khasra numbers. Copy of Register Rl-II showing allotment of the land to Mohammad Ishaque has been brought on file but the one relating to the plaintiff was not put in evidence. However, statement of Noor Mohammad Patwari manifestly confirmed that separate khasra numbers were allotted and confirmed to Mohammad Ishaqe, and, Abdul Waheed and none from them owned a share in the land allotted to the other. By separate acts, of allotment/settlement of specific khasra numbers to Mohammad Ishaque and Abdul Waheed, land once owned by non-muslim evacuees ceased to be jointly held by the subsequent allottees upon whom it was settled in course 'of settlement operations. Term 'co-sharer' connotes a person who owns a share in the undivided joint property with other person/persons. Therefore, co-ownership is a bilateral legal relationship. It could not be a unilateral relation. If A is co-owner with B, it would be anomalous to say that B is not co-owner with A. When the record is looked at thus, neither Mohammad Ishaque was co-owner in the property given to Abdul Waheed nor Abdul Waheed could claim any right in the land given to Mohammad Ishaque, later sold by him to the vendees-respondents. Mere fact of both sets of lands put in revenue records under a single khata was wholly insufficient to invest them with the legal status of co-sharers. Upon migration of non-mush'ms to India at the time of partition,lands left behind by them were treated as evacuee properly and acquired by the Government under Section 4 of the Displaced Persons (Land Settlement) Act, 1958 since repealed for settlement upon the displaced persons. Upon acquisition, the lands vested in the Government free from all incumberances. It was not seriously disputed that the Government was competent to allot exclusive ownership rights in specific khasra numbers and this is what was done in the instant case. Each was given separate khasra numbers and not a share in ithem. Therefore, it is incomprehensible as to how one became co-owner with the other. My own reading of record convinces nie that no such legal status was enjoyed by the plaintiff in respect of the land sold by Mohammad Ishaque, and, learned Additional District Judge who later became a Judge of this Court and has siflce retired took an absolutely correct view of the law m observing that plaintiff was not a co-owner with the vendor or the vendees. Statement of law in .case of All Muhammad versus Shera and another— 1987 S.C.M.R. 207 also supports my view. On record therefore this conclusion is unexceptionable. No interference is called for in the second appeal. Accordingly, it is dismissed. As the respondent did not appear to oppose, I make no order as to costs of appeal. Records be returned. (MBC)

PLJ 1990 Lahore 450 PLJ 1990 Lahore 450 Present: TANVIR AHMAD KHAN, J MUHAMMAD ALI PATWARI-Petitioner versus , .. CONSOLIDATION OFFICER eft-Respondents Writ Petition No. 2880 of 1990, dismissed on 12.5.1990 Double Jeopardy— —Fraudulent entry of mutation—Enquiry against—Pendency of—Initiation. of. another inquiry by Anti-corruption Department—Challenge to—Whether principle of double jeopardy is attracted-Question of-Petitioner having approached High Court without even associating himself in inquiry before Anti-corruption Department, writ petition is pre-mature—Article 13 of Constitution will only come into play if any person has already been prosecuted or punished for an offence—Section 403 Cr.P.C. would only be attracted if a person convicted or acquitted by court of competent jurisdiction, is again tried (for same offence)-Held: Both enquiries against petitioner, one departmental enquiry by Consolidation Officer and other with regard to his. criminal liability, by Anti-corruption Department, can go side by side—Petition dismissed. [P,451]A PLD 1968 Lahore 786, PLD 1973 Lahore 259, PLD 1985 SC 134,1989 SCMR 316 and 1989 SCMR 333 rel. Mr. Muhammad Sharif KJiokhar, Advocate for Petitioner. Date of hearing: 12.5.1990. order The petitioner who is a Patwari, is aggrieved of an enquiry initiated on the application of respondent No.8 Inayat respecting a fraudulent entry of mutation before the Director Anti-corruption, Lahore, who has onward entrusted the same to respondent No.7, Rana Nadeem Akhtar, Assistant Director, Anti-corruption, Punjab, Lahore. He has approached this Court under constitutional jurisdiction with a stance that since another enquiry is pending respecting-the same matter before respondent No.l Consolidation Officer, Okara, the same could not be probed into by the Anti-corruptron Department. The petitioner has argued that the action of respondent No.7 is not only violative of Article 13 of the Constitution of Islamic Republic of Pakistan 1973, but is also against Section 403 Cr.P.C. I have considered the contentions. I am afraid, the writ petition is pre-j mature. The petitioner has approached this Court without even associating! himself in the enquiry pending before Anti-corruption Department. Learned 1 counsel for the petitioner has failed to point out any law in support of his assertion. The reliance of the petitioner either on Article 13 of the Constitution of Islamic Republic of Pakistan or Section 403 Cr.P.C. is not apt. The former is not at all attracted as it has accorded protection against double punishment. It will only come into play if any person has already been prosecuted or punished for -an offence. Such person cannot be tried or punished for the same offence in the presence of the earlier order. Similarly, Section 403 Cr.P.C would only be attracted if a person has been once tried by a Court of competent jurisdiction for an offence and has either been convicted or acquitted. So long as his conviction or acquittal is in force, that person is not liable to be tried again. Here in this case only two enquiries are pending against the petitioner. One appears to be a departmental enquiry with consolidation officer and the other with Anticorruption Department respecting the criminal liability. Both these enquiries can go side by side. It has been held in Shafqat Mahmood Lodhi Vs. The Accounlant- Ceneral West Pakistan, Lahore (PLD 1968 Lahore 786) that" the question can also be viewed in another perspective. The whole object of initiating disciplinary proceedigs against a civil servant is to maintain purity of public servant which, indeed, is in the highest public interest. The object is certainly not to punish an erring civil servant in the criminal sense: that would require his trial in a criminal Court. It is because of this that when the facts alleged against a delinquent also constitute a criminal offence, he is separately tried by the criminal Court and the disciplinary action to adjudge his fitness if>r further retention in public service can proceed simultaneously or follow the result of the criminal case." Similar view was taken in Nazir Ahmad Vs. The Govt. of West Pakistan through the Secrelaiy of Scivicex and General Administration Department, Lahore and 3 others (PLD 1973 Lah.259) that there was no bar on the part of the authorities concerned to initiate both, namely, judicial as well as departmental proceedings against a delinquent officer. Reliance is also placed upon The Deputy Inspector-General of Police, Lahore and others Vs. Anis-ur-Rehman KJian (PLD 1985 S.C. 134), Muhammad Tufail Vs. Assistant Commissioner/Collector (1989 SCMR 316) and Amir Abdullah Vs. Superintendent of Police and others 1989 SCMR 333) Resultanlly, I do not find any force in this writ petition, which is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 452 PLJ 1990 Lahore 452 Present: muhammad afzal lone, ACJ MASUDUL HASSAN QURESHI-Petitioner versus SECRETARY TO GOVERNMENT AND CHIEF ADMINISTRATOR OF AUQAF, PUNJAB , LAHORE-Respondent Writ Petition No. 2789 of 1986, accepted on 25.4.1990. (i) Master s»nd Servant- —Master and servant-Principle of-Whether applicable to an employee of Auqaf Department—Question of—No doubt that statutory rules governing terms and conditions of employees of Auqaf epartment have been framed— Held: It is well settled that where such statutory rules exist, Master will be deemed to have surrendered his pleasure to extent of matter governed by Rules and services of such an employee cannot be terminated without resort to provisions of Rules-Petition accepted. [Pp.453&454]C&D 1983 SCMR 1274 rel . (l) Punjab Civil Servants Act, 1974 (VIII of 1974)-- -—S. 12(ii)-Employee of Auqaf Department-Retirement from service of- Challenge to—Whether Auqaf Department is not a department of Provincial Government-Question of—Section 12(ii) empowers competent authority to retire a civil servant in public interest, after completing 25 years of service- Objection of petitioner is that Auqaf Department is not a department of Provincial Government, he was, thus, not a civil'servant and could not be subjected to Civil Servants Act—Held: There is much force in contention—Held further: Petitioner could not be treated as a civil servant amenable to provisions of Punjab Civil Servants Act. (P.453JA&B Mr.Muhanunad Naazar Klian, Advocate for Petitioner. Mr. Riaz Kiuni, Advocate for Respondent. - Date of hearing: 14.4.1990 judgment The petitioner who was employed as Administrator of Auqaf, Sargodha Zone, and posted at Sargodha, was retired from service with immediate effect in of notification No.SOG-M8(23)A. 185 dated 22nd June, 1986 issued rcfanse (ii) of Section 12 of the Punjab Civil Servants Act, 1974, by the Chief Adhnaistrator of Auqaf, Punjab. The validity of this notification has been called in question by (he petitioner under Article 199 of the Constitution. Section 12(ii) empowers the competent Authority to retire a civil servant in the senice of the Province from service, in the public interest, on such date as it may direct after he has completed twenty five years of service qualifying for pension or other relircment benefits. But the petitioner's learned counsel has raised a formidable objection that the Aquaf Deptt. is not a Department of the Provincial Government; he was thus not a civil servant; and, therefore, could not be subjected to the provisions of the Punjab Civil Servants Act. He referred to Section 3 of the Punjab Waqf Properties Ordinance, 1979 to point out that hief Administrator Aquaf is a Corporation sole; the employees of Auqaf Department are the creation of the statute, whose terms and conditions arc regulated by Senice Rules. The submission, thus, was that the notification issued on the assumption that the petitioner was a civil servant was wholly without jurisdiction. There is much force in these contentions. The petitioner could not have been treated as a civil servant amenable to the provisions of Punjab Civil Servants Act, 1974. Such being the correct position in law, Ihc learned counsel of the respondent has rightly conceded that the notification under Section 12 was wholly illegal and could not be sustained. He however, raised the plea I hat the petitioner being an employee of a Corporation, the ordinary law of Master and Servant would apply and the respondent is entitled as of right to terminate the petitioner's sen-ice without notice. He also referred to Rules 12, 13, & 14 of the Auqaf Service Rules. A reference may here be made to these Rules. Under Rule 12 every member of Senice in (he Auqaf Department is required to execute an agreement in the form prescribed by the Chief Administrator at the time of his permanent substantive appointment. Rule 13 provides that services of a member of the service can be terminated in accordance with the terms of the agreement. Under Rule 14 powers have been conferred on the competent authority to terminate the services of a member of the service without giving any notice or on a shorter notice without giving any reason, notwithstanding the incorporation of provision in the agreement regarding service of notice. These provisions of the Rules, in his submission fall in Tine with the general law of Master and Servant that the latter is not entitled to any safeguard available to a public servant and his services can be dispensed with without any notice. It was also urged that even if the petitioner's retirement suffered some illegality, at the most he could file a suit fer damages but could not seek the declaration prayed for or claim induction into the service. The respondents' reliance on the Rule of Master and Servant is misconceived. There is no doubt that statutory rules governing the terms and conditions of the employees of the Auqaf Department, have been framed. It is now well settled that where such statutory rules exist the Master will be deemed to have surrendered his pleasure to the extent of the matter governed by the Rules and the services of such an employee cannot be terminated without resort to the provisions of the Rules. Reference in this connection may be made to Mushiaq and another Vs. Shahzad Akhtar and another (1983 S.C.M.R. 1274), which relates lo the termination of the services of an employee of Evacuee Trust Board and the . 8. The relief asked for is admissible to the petitioner in law. Rule 34 of the Auqaf Department Rules ordains "that any matters not covered by these Rules, the mernbers of service shall be governed by the Government Civil Service Rules applicable to the Provincial Government Servants". The learned counsel for the parties have not drawn my attention to any specific Civil Service Rules, covering the situation in hand. But it seems to me that in such a case the general rule applicable is, that if a civil servant's removal from service was wrongful, as a consequential relief, he should be paid the salary for the period, he could not serve the Government, without any fault on his part, due to the illegal orders. Resultantly, the petitioner shall be entitled to his salary and other emoluments, for the period from the date of the notification till the date he attained the age of superannuation, minus the period he was engaged in some other profitable business, if anv. (MBC) Petition accepted.

PLJ 1990 Lahore 455 PLJ 1990 Lahore 455 [Rawalpindi Bench] Present: GUL ZARIN KlANl, J Mst. HUSSAIN JAN and 5 others-Petitioners versus Mst. CHANNO BI-Respondent Civil Revision No. 158/D of 1990, dismissed on 6.5.199Q Transfer of Property Act, 1882 (IV of 1882)-- —-S. 54 read with Qanun-e-Shahadat, 1984, Art. 49&129-Sale of land- Registration of—Challenge to—Whether sale is complete without payment of consideration money-Question of-Parties to sale deed are close relatives and vendor is an illiterate lady-Sale deed recites payment of sale price and its acknowledgment by her-In plaint and at trial, she retreated from her admission about receipt of price-No effective rebuttal of her ^statement on record-There is nothing to prevent parties from adducing evidence to show that recital in sale deed about payment was untrue and in fact consideration was not paid—Price is an essential ingredient in all sales—Non-payment of consideration is a strong piece of evidence to show that parties did not intend document to be operated upon-Held: Plaintiff (respondent) was clear victim of trickery at hands of a close relation—Held further: Findings on questions of fact recorded by courts below are correct and should not be interfered with- Petition dismissed. [Pp.457,458&459JA,B,C&D AIR 1978 Patna 97, AIR (37,) 1950 Patna 85 and AIR 1957 Madras 630 rel. Mr. Muhammad Yunis Bhatti, Advocate for Petitioners. Date of hearing: 6.5.1990. order Revision petition arose from a civil suit instituted by plaintiff-respondent claiming declaration of her title to the land in dispute, after annulment of registered sale deed dated 13.11,1976 described as fraudulent by her. The trial Court agreed with her and decreed the suit on 18.4.1989. On appeal, this decree was affirmed, on 8.1.1990, by Additional District Judge, Rawalpindi. Material questions for consideration are whether the price mentioned in the sale deed was paid to the vendor, and, good title to the land passed to the vendee. Courts below are agreed that though the deed recites payment of the price and contains acknowledgment about it, but actual payment of sale price was not established. It is an agreed finding of fact. If is well established that in revision, finding of fact cannot be canvassed or upset, unless it is proved to be perverse, based on no evidence or suffers from gross misreading of record. That is not the case here. But since the learned counsel strenuously contended that the finding on receipt of.price was incorrect and presumption attaching to endorsement on the sale deed was ignored and was not sufficiently rebutted in the evidence adduced by the plaintiff, the finding is not sacrosant, I looked into the record to discover whether any fault could be found with the concurrent findings of the Courts below. Facts leading to the litigation briefly summarised are:- Mst. Channo Bi owned 33 kanals, 15 i\iarlas of land, at mauza Kahna Bajar, Tehsil and District Rawalpindi. Mohammad Anwar since deceased was her first paternal cousin. She sold above land to him for an agreed sale price of Rs.9000/- vide sale deed executed and registered, in the office of Sub-Registrar, Rawalpindi , on 13.11.1976. It is her case that though she acknowledged and admitted the payment of sale price in. the sale deed, yet the vendee did not pay her a single penny but had assured to pay the same subsequently which assurance never materialised. It was further her case that mutation No.478 entered to give effect to the registered sale deed, in revenue records was rejected by the Revenue Officer,on 14.3.1985 on the ground that sale price was not paid to her. Proceedings on the rejected mutation indicated that vendee Mohammad Anwar had admitted before the Revenue Officer that he had not paid the sale price but agreed to pay it till the next tour of the Revenue Officer but then disappeared. In the first instance, suit was instituted against Mohammad Anwar vendee. He died in course of the trial and, his legal representatives were substituted for him on record. In the defence submitted, material averments in the plaints were controverted. Ft was submitted that the sale prife was paid to the vendor and that the recitals in the sale deed and endorsement of the Sub-Registrar are correct and the sale deed was a valid transaction by which good title passed to the vendee. Objections to the form»of the suit, time bar, and, estoppel were also taken. Three P.Ws appeared for the plaintiff. She %lso got her statement recorded as PW.l. On behalf of the defendants, Khushal Khan DW.l entered the witness box. He stated that sale price was paid to the vendor. Surprisingly, none from the defendants eame forward to affirm their defence and refute the allegations of non-payment of sale price. In addition to the oral testimony of DW.l, defendants relied upon certified copy of registered sale dee£ Ext.Dl. As far plaintiff, she relied on certified copy of rejected sale mutation No.478,Ext.Pl. This were the entire evidence led by the parties in the suit. I shall first take up the point relating to payment of sale price, and, thereafter, shall advert to its effect upon passing of the title in the land to the vendee. As said above, parties to the sale deed are close relations. Vendor is an illiterate village lady. None from her close relations accompanied her to the place where the sale deed was executed and registered. Sale deed recites that sale price was already received by her and she acknowledged its payment in it. Thereafter, she is shown to have affirmed the acknowledgment before the Sub-Registrar who noted it in the endorsement on the sale deed, at the time of its registration. In the plaint and at the trial, she retreated from the admission about receipt of price and repudiated the correctness of the recital in the sale deed and stated that she had said so merely upon the assurance of the vendee who promised to pay the price subsequently. There is no effective rebuttal of her this statement and evidence led by her at the trial. Independent of the recital relating to receipt of price, and, its repetition in the endorsement on the sale deed, payment and receipt of price was not supported by anything in black and white. To the contrary, there was a clear statement by the vendee before the Revenue Officer recorded on Ext.Pl wherein he admitted that price was not paid by him and agreed to pay the same till the next tour of the Revenue Officer. This statement was signed by him, and, a Lambardar of the village also appended his signatures. There is no material to dislodge the correctness of the proceedings taken on Ext.Pl. There is a clear presumption that official acts are to be taken to have been duly and properly performed. This presumption, in regard to them, is raised by Sections 35 and 114 in the Evidence Act, 1872, replaced by Articles 49 and 129 of Qanun-e-Shahadat, 1984. There are strong indications on record to establish that what was being stated by the plaintiff and recorded by the Revenue Officer on Ext.Pl, was all true. It is more so because the defendants did not assert in the witness box to the contrary. It was argued that endorsement on the sale deed containing acknowledgment of receipt of price attracted presumption of truth and parol evidence was precluded to refute its correctness. Pirla etc. versus Noora etc. — P.L.D. 1976 Lahore 6 was relied upon, and, Section 92 of the Evidence Act was pressed in aid. As far precedent which arose from a pre-emption matter, it is sufficient to observe that it did not attract itself tojhe facts of the case, and, in regard to Section 92 of the Evidence Act, it does not bar a party to let in oral evidence to prove that consideration had not actually passed because passing of consideration is not a matter of contract but is only a recital of fact in a document. In Sah Lai Chand versus Indrajit- I.L.R. XXII Allahabad 370, agreeing with the High Court, their Lordships of the Privy Council regarded it as settled law that "notwithstanding an admission in a sale-deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. If it was not so, facilities would be afforded for the grossest frauds. The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied, &c (?). The contract was to sell for Rs 30,000 which was erroneously stated to have been paid, and it was competent for the respondent without infringing any provision of the Act to prove a collateral agreement that the purchase-money should remain in the appellant's hands for the purposes and subject to the conditions stated by the respondent". Therefore, though the sale deed may contain a recital that the consideration has been paid, yet there is nothing to prevent the parties from adducing evidence to show that the recital was f untrue and that in fact the consideration was not paid and this will not be barred ! by Section 92 of the Evidence Act. See Baldeo Singh and others versus Dwarika Singh and otliers- A.I.R 1978 Patna 97. In number of decided cases, it has been held that the acknowledgment of receipt of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of it was not paid. Decisions reported in Pradyaman Prasad Singh versus Mahadeo Singh and others-A.l.R. (37) 1950 Patna 85, Official Receiver of Salem versus Chlnna Goundan and another-A..l.R. 1957 Madras 630 are in point. When the record is examined from this perspective, it is clear that sufficient evidence was adduced by the plaintiff to prove that the acknowledgment of the sale price and consequent endorsement on the sale deed were incorrect and that the vendee had not paid the price to her. Therefore, finding on receipt of price is neither infirm nor faulty. Having decided that consideration was not paid, I shall now advert to the second limb of the point which relates to the effect of non-payment of price on passing of title to the vendee. In terms of Section 54 of the Transfer of Property Act, 1882, principles whereof are applicable to the territory in Punjab, price is an essential ingredient in all the sales. Ordinarily, payment of consideration is simultaneous with and at the time when the conveyance is executed but in a particular case, parties may deviate from the above Rule. If the parties intend that title shall be transferred upon the price settled between them, on the execution and registration of the sale deed, non-payment of purchase money shall neither arrest nor prevent the transfer of ownership rights. All depends on what is intended by the parties in a particular case. If the intention is that in absence of payment of consideration, ownership should not pass, title will not pass until the consideration is paid. Non­payment of consideration is a strong piece of evidence though not conclusive to show that parties did not intend the document to be operated upon. In the case in hand, though the conveyance was executed and registered on 13.11.1976, yet as admitted by the original vendee to the Revenue Officer and supported by evidence led at the trial, consideration was not paid. Furthermore, though the sate deed was registered on 13.11.1976, yet report to the Patwari for entry of mutation in D accordance with it was made on 26.7.1984. Non-payment of consideration coupled with the delayed report for the incorporation of the sale deed in revenue records, seen in the light of evidence led in the suit is sufficient to convince that the plaintiff was tripped up and duped by her cousin who vainly attempted to deprive her of the land without paying consideration for it. There was also evidence to show that plaintiff was still in possession of the land and that the possession was not transferred under the sale deed to the vendee. The plaintiff was clear victim of trickery at the hands of a close relation. She never intended to convey her land to him without payment of sale price to her. Every party to an agreement is expected to observe the terms of the agreement in form as well as in spirit. Vendee agreed to pay the sale price but did not abide by his agreement. Vendor was not expected to wait indefinitely to enable the vendee to perform his part of the contract. Even in 1984, vendee promised to pay the consideration and got a chance to fulfil his part of the agreement but for reasons of his own, again disappeared. At no stage, it was his case that he was prepared to pay the sale price. In fact, it was insisted that the consideration had already been paid which fact was found untrue by both the Courts. Therefore, both equity and law will not assist the petitioners to take the property without paying the price for it. In this view, I am satisfied that findings on questions of fact recorded by the Courts below are correct and no interference should be caused with them. Revision petition is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 459 PLJ 1990 Lahore 459 [ Multan Bench] Present: IHSANUL liAQ CHAUDHARY, J GOVERNMENT OF PAKISTAN and another-Petitioners -versus PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and another- Respondents Writ Petition No. 1410 of 1986, accepted on 24.6.1990 Industrial Relations Ordinance, 1969 (XXIH of 1969)-- —S. 25-A—Grievance petition—Dismissal of—Appeal against—Acceptance of— Challenge to—A worker has to bring his grievance to notice of his employer within 3 months on accrual of cause of action-Status of respondent No. 2 to maintain grievance petition at time of accrual of cause of action, and not subsequent, is relevant-Held: Order of respondent No.l is liable to be set aside on short ground that its reasoning is clearly illegal, faulty and illogical- Petition accepted and case remanded for fresh decision in accordance with law. ' rjPp.461,462,463]A,B&C 5/i. Muhammad Hanif, Advocate for Petitioners. Syed Agha Asif Jaffari, Advocate for Respondent No. 2 Respondent No.l Exparte. Date of hearing: 24.6.1990 JUDGMEiNT The petitioners through this constitutional petition have prayed for declaration that the order of Punjab Labour Appellate Tribunal dated 27.3.1985 is without lawful authority and illegal. 2. The relevant facts are that the respondent No.2 was serving as Engineering Supervisor phones and was posted at D.G.Khan under Divisional Engineering Telegraph, Multan . One Liaquat Ali, who was temporarily employed as un-approved Telephone Operator at Sakhi Sarwar Exchange absented himself from duty and fraudulently drew his pay for the period of absence but the respondent No.2 failed to lay the necessary information with the authorities. It was therefore, decided to initiate the disciplinary proceedings against the respondent No. 2. Accordingly he was charge sheeted. As a result thereof he was reverted to the post of technician. The order is dated 26.3.1980. The employee challenged this order through a grievance petition. The petitioners resisted the same. The learned Punjab Labour Court No.IX, Multan recorded the evidence and after hearing the arguments held that the employee is not a 'Workman'. The result was that his petition was dismissed vide order dated 19.3.1984. The respondent No.2 filed an appeal before the respondent No.l, the Tribunal held that the respondent No.2 was a worker and can maintain the grievance petition. The result was that the matter was remanded by the Tribunal to Labour Court vide order dated 27.3.1985 for decision on merits. The petitioners have assailed this order in this constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondent No.2 alone has entered appearance and contested the petition while respondent No.l was proceeded exparte. 3. The learned counsel for the petitioners in support of the petition has argued that the respondent No.2 was not a worker and respondent No. 1 illegally and incorrectly reversed the findings of learned Labour Court on this issue. In this behalf the learned counsel has referred to notification dated 25.8.1976 according to which the respondent No.2. and others were treated as 'employers' for the purpose of I.R.O. It is added that the same position is clear from the charge sheet. It is submitted that the respondent No.l reversed the findings, recorded by the Labour Court, on the sole ground that respondent No.2 was serving as Technician at the time of the filing of the grievance petition, therefore, the same was competent. The arguments are summed up with the submission that this reasoning is illegal and illogical because the status of the employee is to be run (?) at the time of the passing of the order impugned in the grievance petition. 4. On the other hand, the learned counsel for the respondent No.2 submitted that the notification cannot have precedent over law. In plain words, submission is that notification cannot exclude the employees from the category of workman, who are otherwise covered by the definition or worker. The next submission is that the petitioners failed to produce any evidence as to the nature of the duties of the respondent No.2 in order to exclude him from the definition of worker. It is argued that whether one is a worker, is a question of fact and onus of proof is on the employer. In this behalf the learned counsel has referred to the judgments in the cases of PECO Ltd vs. Muhammad Aslam(l986 P.L.C 298), Warner Lambert (Pakistan) Ltd. vs. Sind Labour Court No.III, Karachi and another (1980 L.L.C (?) 335) and Jasmine Cotton and Silk Mills, Karadii vs. ShujahatAli (P.L.J 1974 Tr.C. (Labour) 104). 5. It is submitted that the petitioner (?) is fully covered by the definition of workman and in this behalf the reference is made to the judgments in the cases of Dost Mohammad Cotton Mills Ltd, Karachi vs. Mohammad Abdul Ghani and another (P.L.D 1975 Karachi 342) (this was upheld by the Hon'ble Supreme Court and the judgment is reported as 1975 LLC (?) 211), Bashir A. Malik vs. TTie Punjab Labour Court (Northern Zone), Lahore and 2 others (1973 P.L.C 319), (M/s) Adam Limited vs. Abdul Sattar (1983 PSC 1373) and Executive Vice President, United Bank Limited, Circle Office Lahore vs. Alain Zeb (P.L.J 1984 Tr.C (Labour) 135). It is further submitted that the petitioner (?) was not holding any executive post, therefore, covered by the definition of worker. In this behalf it is argued that the words Executive power or officer have not been defined in the I.R.O, therefore, reference has to be made to the meaning of these words assigned (in) legal dictionary. In this context he has referred to Blacks Law Dictionary. 6. The last submission is that the petition suffers from laches as the order of the Tribunal is dated 27.3.1985 while the present writ petition was filed on 4.11.1986. There is no explanation for a period of about 20 months. In this behalf the reference is made to the judgments in the cases ofBarkat Bahi and 2 others vs. Settlement Commissioner and 3 others (P.L.D. 1978 Karachi 193), Sh. Atta Mohammad vs. Housing & Physical Planning Deplt.etc (N.L.R 1980 Civil Lahore, 594), Murree Brewery Co.Ltd. Rawalpindi vs. Province of West Pakistan and 4 others (P.L.D 1981 Lahore 640) and Government of Pakistan through Secretary, Ministry of Food and Agriculture Division Food Directorate, Karachi vs. Messrs Rafi Associates Ltd. and another (1985 C.L.C 2234). 7. The learned counsel for the petitioners in reply has argued that since the respondent No.2 has not submitted the written statement, therefore, the plea of laches cannot be raised by him. In this behalf the learned counsel for the petitioners has referred to Pakistan Post Office vs. Settlement Commissioner and others (1987 S.C.M. R 1119) and Pakistan Post Office vs. Settlement Commissioner andotliers (P.LJ 1987 S.C. 433). It is added that the petitioner (?) has firmly committed himself in the petition that he was serving as Engineering Supervisor, therefore, he is excluded from the definition of worker. In this behalf the learned counsel has referred to Dawood Cotton Mills Ltd vs. Presiding Officer Sind Labour Court No.IV, Karachi, etc (N.L.R 1983 Labour 161), Pakistan vs. Abdul Ghani (P.L.D 1964 S.C. 68), Habib Bank Mianwali vs. Shamim Hussain (1985.PLC 862), Mohammad Yakooob vs. Muhammad Ishaq (1980 C.L.C 2056), Mst. Haleema Bai and others, vs. Settlement Commissioner and others (1987 M.L.D 3215), Employees Welfare Union vs. R.B.Industries Ltd; Karachi and another (1976 P.L.C 43) and N.L.R 1990 Labour 38. 8. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases and relevant law. The Tribunal proceeded to accept the appeal on the short ground that the appellant before it was serving as Technician at the time of the filing of the grievance petition therefore covered by the definition of 'workman' On the other hand, the learned counsel for the petitioner has rightly submitted that the reasoning is faulty, illegal and illogical because the status of the employee at the time of the filing of the grievance petition is irrelevant. In this behalf reference can be made to Section 25-A of the I.R.O. The relevant portion of the same reads as under: - "25 A. Redress of individual grievances.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or (collective bargaining agent), within three months of the day on which cause of such grievance arises". It is clear from bare reading of the section that a worker in order to seek! redress of his grievance, has to bring it to the notice of his employer within 3| months of the day on which cause of such grievance arises. In the present case the employee was aggrieved by order of reversion dated 20.3.1980, therefore, until he was not a worker at the time of the grievance he cannot issue grievance notice. It is clear that, status of the petitioner (?) to maintain a grievance petition is relevant at the time of the cause of action or grievance and not subsequent. The learned counsel for the respondent No.2 made no effort to defend the order of the Tribunal and rightly he endeavoured to show that his client was a worker on other grounds. 9. The courts have not dealt with the matter in its true legal prospective. The respondent No.2 was admittedly a Government Servant, therefore, real question for determination was whether he is covered by the definition of Civil Servant as given in Section 2(b) of the Cw$ Servants Act 1973 or not (?) The learned counsel for the employee maintained that his client was excluded from the definition of-Civil Servants hi view of clause III of Section 2(b). It is submitted that he was neither getting a salary of more then Rs.1,000/- nor he was holding any Executive or Supervisory post in terms of schedule-2 to orkmen's Compensation Act. The learned counsel in this behalf has referred to R.8 giving the salary of his client as Engineering Supervisor as well as Technician. It is submitted that the total monthly salary of his client was Rs.786/- and not Rs.816.50/- as given in R.8 because salary never includes in T.A allowance. It is further added that his client was not holding any supervisory or Executive post as is clear from annexure 'R' dealing with the functions of Engineering Supervisors. 10. I need not to discuss the merits and demerits of the arguments of the learned counsel for the parties in view of the order I propose to make. It is however, clarified that the order of the Tribunal is liable to be set aside on the short ground that its reasoning is clearly illegal, faulty and illogical, therefore, normally the case was to be remanded to the tribunal for fresh decision in accordance with law but I have decided to remand the matter to the Labour Court, who is yet to decide the grievance petition on merits. This is being done for three reasons: Firstly, that the question whether the employee is a civil servant or not, has not been examined, by both the courts; Secondly, whether the petitioner is a workman or a civil servant is a mixed question of law and fact, therefore, it is better that the same is decided by the lowest court in accordance with the evidence on record and law applicable, and Lastly, that the Labour court acted illegally while dismissing the grievance petition of the employee on the ground that he is not a workman instead of deciding whole matter. The Labour Court should have decided all the issues involved together by one and the same order. This would have saved repeated remands. The result of the illegal procedure adopted by Labour Court is that a period of over 6 years has been wasted. Had the learned Labour Court decided the whole petition at one and the same time then there was no need to remand the matter to it either by tribunal or by this court. 11. The upshot of this discussion is that this petition is allowed. The impugned orders of the respondent No.l as well as of the Labour Court are set aside and it is directed to decide the whole matter, including the issue whether the employee was a civil servant or a workman, afresh in accordance with law and evidence on record. (MBC) Petition accepted.

PLJ 1990 Lahore 463 PLJ 1990 Lahore 463 Present: TANVrR AHMAD KHAN, J Malik GHULAM YASIN and another-Petitioners versus . DIRECTOR, F.I.A., Lahore-Respondent Writ petition No. 286 of 1990, dismissed on 6.5.1990 Federal Investigation Agency Act, 1974 (VIII of 1975)-- —-Ss. 3, 4 & 5 read with Emigration Ordinance, 1979, Section 24(6)-Federal Investigation Agency-Powers of--Registration of case by F.I.A.-Challenge to- -Whether F.I.A. can register case—Question of—Federal Investigation Agency Act has conferred same powers, privileges and liabilities upon its officers as those conferred upon police officers by Criminal Procedure Code-Only embargo placed on power of enquiry and investigation by F.I.A. is that offence must be enumerated in Schedule-Held: There is no bar for registration of a case by F.I A. provided offence is mentioned in .Schedule as required under. Section 3(1) of Act-Petition dismissed. [Pp.466&468]A&B 1986 P Cr. LJ 1158 distinguished. 1981 P Cr. LJ 179 and PLD 1970 Lahore 679 rel. Malik Laqmdn Ghani Wasifee, Advocate for Petitioners. Mr. Faqir Muhammad Khokhar, Standing Counsel for Respondent. Date of hearing: 6.5.1990. judgment The petitioners, through this constitutional, petition under Article 199 of the Constitution of Islamic Republic of Pakistan, have challenged the legality of FIR No.157 registered at FIA Passport Cell, Lahore under Sections 17/22 of Emigration Ordinance 1979. The allegations against the petitioners are that they took Rs.2,50,000/- from Muhammad Saleem and his friend Fazal Khan on the pretext of securing job for them in USA: Learned counsel for the petitioners has argued that Emigration Ordinance being a special law has provided a special procedure for the cognizance of the case which can only be taken through a complaint as envisaged under Section 24(6) of the Emigration Ordinance which reads as under:- "A Special Court shall Cake cognizance of, and have jurisdiction to try an offence punishable under this Ordinance only upon a complaint in writing made by such person as the Federal Government may, be a general or special order in writing authorise in this behalf." On this basis it is argued that since after the investigation,report under Section 173 Cr.P.C. would be submitted and the same being not a 'complaint' in view of section 4(h) of Cr.P.C.'which specifically excludes the police report from the purview of the word 'complaint' and resultantly the whole exercise of registering the case and its consequent investigation would be nullity in law as the cognizance cannot be taken on this report. Learned counsel has argued that no FIR can be registered for violation of provisions of Emigration Ordinance by FIA because of the aforesaid restriction placed by Section 24(6) of the Emigration Ordinance. The learned Standing Counsel Mr.Faqir Muhammad Khokhar has strenuously opposed the contentions. He has argued that according to Section 3 of the Federal Investigation Agency Act, 1974 (VIII f 1975), the FIA has got the power to enquire into and investigate all the offences mentioned in the schedule. Since Emigration Ordinance finds mention at serial No.35 of the schedule, no embargo can be placed upon either the registration of the FIR or its consequent investigation of such an offence. Federal Investigation Agency Act 1974 was promulgated on the 17th of January, 1975 providing procedure for the investigation of certain offences committed in connection with matters concerning the Federal Government and for matters connected therewith. It would be advantageous to reproduce Sections 3, 4 & 5 of the Act:- 3. Constitution of the Agency.-(l) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit and abetment of any such offence. (2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of officers as the Federal Government may, from time to time, appoint to be members of the Agency. 4. Superintendence and administration of the Agency.-- (1) The superintendence of the Agency shall vest in the Federal Government. (2) The administration of the Agency shall vest in the Director-General who shall exercise in respect of the Agency such of the powers of an Inspector-General of Police under the Police Act, 1861 (V of 1861), as may be prescribed by rules. 5. Powers of the members of the Agency.- (1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of-an inquiry or investigation under the Act have throughout Pakistan such powers including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force. Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-incharge of a Police- Station in any area in which he is for the time being and, when so exercising such powers," shall be deemed to be an officer-incharge of a Police-Station discharging his functions as such within the limits of his Station. Without prejudice to the generality of the provisions of Sub-Sections (1) and Sub-Section (2), any member of the Agency not below the rank of a Sub-Inspector, authorised by the Director-General in this behalf may arrest without warrant any person who has committed, '-or againsfWhohi a reasonable suspicion exists that he has committed, any of the offences referred to in Sub-Section (1) of Section 3. For the purpose of the exercise by the members of the Agency, of the powers of an officer incharge of a Police-Station, "Police-Station" include any place declared, generally or specially, by the Federal Government to be a police station within the meaning of the Code. (5) If, in the opinion of a member of the Agency conducting an investigation, any property which is the subject matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner or any person who is, for the time being, in possession thereof, not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter. " (6) Any contravention of an order made under subsection (5) shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine, or with both. The reading of these sections as analysed by a Division Bench of Karachi i" a case reported in 1989 P.Cr.LJ. 1921 Adamjee Insurance Company Ltd. Vs. Assistant Director Economic Enquiry Wing, would make it_clear that the law has empowered ,, ' ' the members of the Agency to exercise the same powers throughout Pakistan which are exerciseable by the officers of a Provincial Police subject to such duties, privileges and liabilities as the said Police Officers have in relation to the investigation of offences under the Code or any other law, for the time being in force including powers relating to search, arrest of person and seizure of property. It may also be noticed that under subsection (2) of the above Section 5 it has been provided that "subject to rules, if any, a member of the Agency not below the rank of Sub-Inspector may, for the purposes of any inquiry or investigation under the Act, exercise any of the powers of an officer-in-charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a police station, discharging his functions as such within the limits of his station. It may further be noticed that under subsection (3) any member of the Agency not below the rank of a Sub-Inspector authorised by the Director-3sasral in this behalf, has been empowered to arrest without warrant any person whoT committed or against whom a reasonable suspicion exists that he has committed any of the offences referred to in subsection (1) of Section 3. It may also be pointed out that under subsection (4) for the purposes of exercising the powers of an officer-in-charge of a Police-Station, it has been provided that the policestation includes any place declared, generally or specially, by the Federal Government to be a police-station within the meaning of the Code. It may also be referred that under subsection (5), it has been provided that if in the opinion of a member of the Agency conducting an investigation, any property which is the subject matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained,. such member may, by order in writing, direct the owner <w any person, who is for'the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previoui permission of the member and such order shall be subject to any order made by the Court having jurisdiction in the matter. Whereas subsection (6) provides punishment for the contravention of the above provision of sub-section (5) of Section 5 by providing rigorous imprisonment for a term, which may extend to one year, or with fine or both. The resume of the preceding paragraphs would make it clear that the Federal Investigation Agency Act has conferred the sarrte powers, privileges and liabilities upon its officers as those conferred upon the police officers by the Criminal Procedure Code. There is no bar for the registration of a case by FIA provided the offence is mentioned in the schedule as required under Section 3(1) of the Federal Investigation Agency Act, 1974. This establishes beyond doubt that the only embargo placed on the power of enquiry and investigation by the FIA is that the offence must be enumerated in the schedule. The bar placed by Section 24(6) of the Emigration Ordinance is only with respect to the cognizance of the case and not with respect to the registration of the FIR and its consequent investigation. The reliance of the learned counsel on Mueenuddin Vs. Theytate (1986 P.Cr.LJ. 1158) is not apt because in that case the appeal was accepted on the ground that the cognizance in that case was taken on a police report instead of a complaint as required under Section 24(6) of the Emigration Ordinance Accordingly, it was held that the whole trial of the case was without jurisdiction and was declared void -ajb-initio. Here in this case the matter is still undei investigation and the stage of cognizance has not yet reached. The word 'complaint', according to me, has been used in generic sense in Section 24(6) of the Emigration Ordinance. It cannot be given the meaning of the word 'complaint' as defined in section 4(h) of the Cr.P.C, wherein it has been defined with restricted meaning in the following words: 4(h) "Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer." In holding this view I am fortified by another judgment reported in Saleh Muhammad and other Vs. The State (1981 P.Cr.L.J 179) wherein- the challan was submitted before the Special Judge Customs and an objection was taken that the cognizance had been taken on a police report instead of a complaint as required under Section 185-a(6) of the Customs Act. The learned Judge repelled these contentions in these words: "It was next contended on behalf of the applicants that the law as then prevailing did not contemplate the taking of cognizance on a police report and the Special Judge had jurisdiction only to take cognizance of an offence under the Customs Act upon a "complaint" in writing. Reference was made in this behalf to Section 4(h) of the Code of Criminal Procedure which defines "complaint" to mean the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. Learned counsel emphasized the words underlined by me and contended that the report of a police officer would, necessarily be outside the definition of a complaint and therefore, the learned Special Judge could not take cognizance of the case on the report of the police officer. At the outset it may be pointed out that the report submitted by the S.P. before the learned Special Judge was not a report of a police officer as contemplated in the Code but the S.P signed the report in his capacity as an authorised person under the Customs General Order No.26 of 1975 already referred to. For all intents and purposes, therefore, what purported to be a police report was a complaint as required by Section 185-A, subsection (6) of the Customs Act. In my opinion, therefore, the police report submitted by the authorised police officer would sufficiently satisfy the requirements of law for the purpose of taking cognizance under Section 185-A. However, the report of a police officer as mentioned in Section 4(h) of the Code of Criminal Procedure means a report which a police officer is authorised to make under Section 173. It has been held in Barkat V. Emperor (1) that the term 'complaint' as defined in Section 4(l)(h) Cr.P.C. has the meaning therein given, unless a different intention appears from the subject or context and that obviously the term 'complaint' in Section 195(1) (a) is not used in the technical sense in which it is defined in Section 4." In Muhammad Hayat Vs. Tlie Chief Settlement and Rehabilitation Commissioner and another (PLD 1970 Lahore 679) the learned Judge repelled the challenge to the legality of FIR registered on the report of Officer on Special • Duty. It was argued that Section 29 of the Displaced Persons (Land Settlement Act) had placed an embargo that no Court would take cognizance of any offence punishable under the Act except upon a complaint in writing made by an officer appointed under the Act. It was contended that since the Officer On Special Duly was not an officer appointed under the Land Settlement Act, the registration of the FIR on his report was bad in law. Repelling these contentions, the learned Judge observed as under: "The learned counsel bases his argument on the language of Section 29 of the Act which is re-produced below:- "29. Cognizance of offence by Court:- No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act." . The reading of this section shows that it deals with the cognizance of offences by the Court and not with the registration or investigation of cases. There is no bar to the registration of a case by the police on the application or report of any person. He may or may not be an officer appointed under the Act. The bar is only in respect of the taking of cognizance of the offence by the Court. It will be only at that stage that the petitioner may have any grievance, if it is found that the prosecution in the Court is not launched by a competent person. That stage has not yet reached in this case." In view of what has been stated above, I do not find any illegality in the registration of FIR and its consequent investigation. Resultantly the writ petition is dismissed with no order as to costs". (MBC) petition dismissed.

PLJ 1990 Lahore 468 PLJ 1990 Lahore 468 [ Multan Bench] Present: IHSANUL HAQ ClIAUDHARY, J GHULAM MUHAMMAD and 3 others-Appellants versus Mst. ISHRAT ARA BEGUM-Respondent R.S.A. No. 76 of 1989 and C.M. No. 2-C of 1990, dismissed on 26.6.1990 (i) Pre-emption-- —Pre-emption-Suit for-Decree in-Set aside in appeal-In second appeal, judgment and decree of lower appellate court set aside-Whether plaintiff (respondent) could press into service that decree or that it was a dead letter after target date of 31.7.1986—Question of—Admitted position is that trial court decreed suit on 8.3.1982 against which appeal of present appellants was accepted on ground that suit was time barred-Earlier second appeal of respondent was accepted and case was remanded—Result was that decree of trial court was restored—After remand, decree was confirmed by lower appellate court-held: Controversy in this appeal is fully covered by question No. 6 in Sardar Ali's case and decree dated 8.3.1982 is fully protected. [Pp.470&471]A,B&C PLD 1986 SC 360=PLJ 1986 SC 376 and PLD 1988 SC 287=PLJ 1988 SC 224 ref. (ii) Punjab Pre-emption Ordinance, 1990 (V of 1990)-- —-S. 27 read with General Clauses Act, 18Q7, Section 6-Pre-emption-Suit for- Decree in-Execution bf-Appreciation of value of land-Whether prevalent price can be directed to be paid-Question of-Ordinance has not been made applicable to cases filed and decided under old law—Held: Present Ordinance cannot be given retrospective effect in absence of provision to this effect—Held further: Petition is utterly mis-conceived. |Pp.471&472]D Mr. Klwdim Nadecm Malik and Mr. Hassan Bakhsh KJwn, Advocates for the Appellants. Mr. Iftikhar Ahmad Dar, Advocate for Respondent. Date of hearing: 26.6.1990. judgment The appellants No.l and 2 and Bahawal, predccessor-in-interest of appellants No.3 and 4 through registered sale deed dated 3.6.1978 purchased land measuring 248 kanals 11 marlas situated in Mauza Fazal Wah, Tehsil and District Vehari, for a total consideration of Rs.2,79,000/-. The respondent filed a suit for possession through pre-emption. She claimed superior right on the ground of relationship and ownership in estate. The vendees resisted the suit. The learned trial Court accordingly framed issues, recorded evidence and after hearing the arguments proceeded to decree the suit vide judgment and decree dated 8.3.1982. The vendees impugned this judgment and decree through an appeal in the Court of District Judge, Vehari, who entrusted the appeal to one of his Addl: District Judges for disposal. The learned lower appellate Court held that the suit was filed beyond period of limitation and on this short ground accepted the appeal vide judgment and decree dated 9.7.1984. The plaintiff impugned this judgment and , decree of the lower appellate Court through second appeal being R.S.A. No.152/84. The same was accepted by this Court on 19.4.1988, the findings on point of limitation were reversed and case was remanded to the lower appellate Court for determining other issues in accordance with the law. The lower appellate Court this time dismissed the appeal vide judgment and decree dated 10.10.1989 and this way it were the vendees, who have filed this second appeal in this Court. The appeal was admitted to regular hearing and / notice was issued to the respondent, who has appeared through Mr.Iftikha Ahmad Dar, Advocate and contested the appeal. The learned counsel for the appellants in support of the appeal has argued that this Court had no jurisdiction to entertain R.S.A. 152/84 and remand was also illegal as there was no decree in favour of the plaintiff on 19.4.1988. It is submitted that the case was fairly and squarely covered by the judgment in the case of Government of N.W.F.P. Vs. Said Kama! Shah (PX.D. 1986 S.C. 360 = PLJ 1986 SC 376). It is submitted that the Hon'ble Supreme Court has clearly held in C.P.No.l-R/88 that no decree can be passed after 31.7.1986. On the other hand, the learned counsel for the respondent has argued that the suit of the respondent-plaintiff stood decreed on 8.3.1982 much before the target date and his client was well-within her right to seek her remedy for restoration of the decree. The learned counsel in this behalf has referred to the judgment of Hon'ble Supreme Court in the case of Sardar All and others Vs. Muhammad All and others (P.L.D. 1988 S.C. 287=PLJ 1988 SC 224). It is submitted that the acceptance of the appeal of the vendees did not wipe of the decree altogether and the same could be restored. In this behalf he has referred to questions No.6 and 7 in Sardar Ali's case and their replies. It is submitted that even in C.P.No.l-R/88, the Hon'ble Supreme Court has reiterated its earlier view. 5. 1 have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position on record is that the learned trial Court, decreed the suit of the pre-emptor on 8.3.1982. However, appeal of the vendees against this judgment and decree was accepted. The suit was held time-barred and dismissed as such. The plaintiff filed R.S.A. 152/84 in this Court for setting-aside of the judgment and decree of the lower appellate Court. The same was accepted and case remanded. The result was that on the one hand the appeal of the vendees before the lower appellate Court was revived and on the other hand, the decree of the trial Court restored. This was of-course subject to the decision .of ower appellate Court. The fate of this appeal hinges on the decision of question whetherthe plaintiff could press into service decree dated 8.3.1982 in her favour or that it was a dead letter? In order to resolve the controversy guidance has to be sought from the judgment of Hon'ble Supreme Court in Sardar Ali's case. The learned counsel for the respondent has referred to questions No.6 and 7, therefore, it is worthwhile to reproduce the same as under:- "(6) Whether a plaintiff having obtained a decree for pre-emption in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration. (7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending : , before the trial or any higher forum." While replies to the same read as unden- "64. In the opening part of this judgment, we visualised the various questions vis-a-vis situations which have arisen or- might arise, in connection with the present controversy. In the light of the discussion and view on the points involved, the answers to Questions Nos.l to 5 are in the negative, while Questions. Nos.6 and 7 arc answered in the affirmative. These questions and answers would, in our view, resolve most of the controversies. However, if there is a different question, or any new situation, arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the question posed and answers already rendered." In my humble view the controversy in the present appeal is fully covered by question No.6. But Hon'ble Supreme Court has clearly conceived of the situation B and held that the plaintiff can agitate for the restoration of the decree. 6. The moment R.S.A.No.152/84 was accepted the result was, as already noted, that the judgment and decree of the lower appellate court was set-aside and that of the trial Court automatically stood restored. The decree of the trial Court was confirmed by the learned lower appellate court in the, second round. The decree which the respondent-plaintiff will press into service and execute is dated 83.1982, therefore, fully protected. The present controversy is covered by question No.6. This also furnishes complete reply to the argument of the appellants that proceedings in the earlier round in this Court were illegal. No other point was argued. 7. The result is that there is no merit in this appeal. The same is dismissed with costs. C.M. 2/C of 1990 The petitioners have moved this application under Section 27 of the Punjab Pre-emption Ordinance V of 1990. Il is submitted that since the value of the land in dispute has appreciated during the pendency of the litigation, it is, therefore, prayed that the prevalent market value of the land be got assessed and plaintiff directed to pay the same instead of the sale price. On the other hand, the learned counsel for the respondent-plaintiff has submitted that this petition is absolutely misconceived because Ordinance of 1990 has no application to the cases filed and decided under Punjab Pre-emption Act 1913. It is added that by virtue of Section 6 of the General Clauses Act, 1897, the rights accrued and liability incurred are saved and will remain uneffected by repeal of law. The learned counsel in this behalf has referred to the judgments of Hon'ble Supreme Court in the cases of Idrees Ahmad and others Vs. Hafiz Fida Ahmad KJian and 4 others (P.L.D. 1985 S.C. 376) and //7mm Shah through Legal Heirs Vs. Muhammad Ullah Klian and others (1989 S.C.M.R. 1030). I have given my anxious consideration to the arguments of the learned counsel for the parties. The present Ordinance came into force with effect from 29.3.1990. The learned counsel for the petitioners has referred to Section 27 which reads as under:- "27. Determination of price. (1) Where in the case of a sale, the parties are not agreed to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to ha've taken place has been fixed in good faith , or paid, and if it finds that the price was not so fixed or paid it shall fix the' market value of the property as the price to be paid by the pre-emptor. If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor. If the price of the suit property on the.date of decree has appreciated in comparison to its sale price as held by the Court the amount equal to the difference between the two prices shall be paid in addition to the price payable under sub-sections (1) or (2) as the case may be. The amount mentioned in sub-section (3) shall be determined by each court whether original or appellate passing a decree and the decree shall not be executed unless such amount is paid by pre-emptor." The Ordinance has not been made applicable to the cases filed and decided under the old law. The learned counsel for the petitioners submitted that as for the Pre-emption Act of 1913 is concerned the same was not repealed but was declared by the Federal Shariat Court repugnant to injunctions of Islam, therefore, the cases referred to by the learned counsel for the plaintiff are irrelevant. The argument is without any merit because the whole of the Act was not struck down but it was only certain provisions, which were declared against injunctions of Islam. The remaining part of the Act has been repealed by Section 34 of the Ordinance V of 1990. The causes are to be decided in accordance with the law prevalent at the time of the institution until there is a clear provision to the contrary. The present Ordinance cannot be given retrospective effect in the absence of the provision to this effect. This way from whatever angle the proposition is looked at the petition is utterly misconceived. 6. The result is that the petition is dismissed as incompetent. (MBC) Petition dismissed.

PLJ 1990 Lahore 472 PLJ 1990 Lahore 472 [ Multan Bench] Present: MIAN nazir AKHTAR, J Mst. HAWWA and 2 others-Appellants versus KARIM BAKHSH and another -Respondents. R.S.A. No. 230 of 1979, accepted on 26.5.1990 Punjab Pre-emption Act, 1913 (I of 1913)-- —S. 21-A Pre-emption-Suit for-Institution of-Vendees-Improvement of status of—Whether vendees had validly improved their status so as to defeat right of pre-emption of pre-emptors-Question of~A plain reading of Section 21-A makes it clear that any improvement made in status of vendee otherwise through inheritance or succession, does not affect right of pre-emptor-plaintiff in a suit-By associating strangers in subsequent sale, status of vendees (defendants 1 to 4) was relegated to that of strangers-Held: Subsequent sale made by a stranger vendee in favour of other vendees of original sale, after institution of suit, is violative of provisions of Section 21-A and cannot be pressed to defeat pre-emptive right of pre-emptor-Plaintiff-Appeal accepted. [Pp.475&478]A,B j> C&D PLD 1982 SC 82, PLD 1989 SC 278, PLD 1989 SC 474, PLD 1968 Lahore 929, PLD 1978 Lahore 299,1986 CLC 2830,1989 CLC 1014 and 1990 MLD 783 rel. Mr. Inam Karim Sheikh, Advocate for Appellants. Mian M. Zafar Yasin, Advocate for Respondents. Dates of hearing: 21 and 23.5.1990. judgment This R.S.A. arises out of a suit for possession through pre-emption filed by Allah Bakhsh, deceased (represented by appellants No.l3-A and 13-B), Jan Muhammad (represented by appellants No.l to 6), Muhammad Bakhsh appellant No.7, Rahim Bakhsh, deceased (represented by appellants No.8-A to 8-J), Lai appellant No.9. Msi. Kundan, appellant No. 10, Mst. Khatoon Alam, apppellant No. 11 and Mst. Maryam deceased (represented by appellants No.l2-A to 12-H) against Pir Bakhsh deceased and others (now represented by respondents No.l to 10). The suit was instituted by the pre-emplors on 13.1.1969 to pre-empt the sale of land measuring 206 Kanals situated in village Diwala. Tehsil and District Mu/alfargarh. The land was purchased by Pir Bakhsh and 8 others, the vendees through a" sale deed written on 3.2.1968 and registered on 5.2.1968 (Ex P2=D1). The sale consideration was Rs.35,000/-. The right of pre-emption was claimed on the ground that the pre-cmptors were owners of land in the village as well as owners in Khata No.72 pertaining to the disputed land. It was claimed by them that out of the.vendees Ghulam Rasul. (iulam Hussain, Bashir Ahmad, Wahid Bakhsh and Khuda Bakhsh were strangers and by associating them in the composite sale Pir Bakhsh, Muhammad Bakhsh, Nabi Bakhsh, vendees had also lost their rights on the application of the principle of sinker. In the written st-alement filed by the vendees, jointly, it was claimed that vendees defendants No.5 to 9 had sold their share in ihc disputed land within the period of limitation to defendants No.! to 4, therefore, the suit could not succeed as against the said defendants. It may be mentioned that the subsequent sale was made by vendees defendants No.5 to 9 through the sale deed written on 23.1.1969 and registered on 24.1.1969, through document Ex D3. 2. On the pleadings of the parlies the trial court framed the following issues:- 1. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPD r- 2. Whether defendants No.5 to 9 had sold their share of the suit land in favour of the rest of the vendees before the period of limitation for the pre-emption suit had expired; if so with what effect? O.P.D. 3. Whether the plaintiff has got a superior right of pre-emption qua the vendees'.' O.P.D. 4. Whether Rs.35.()()()/- were fixed in good faith or actually paid as the price of the suit land? O.P.D. 5. What was the market value of the suit land at the time of the sale in dispute? O.P.P f>. Whether the vendees had borne the expenses on the execution and registration of the sale deed; and he paid the district council fee; if so, how much and with what effect? O.P.D. 7. Relief. Issue> No. 1 and 2 were decided in favour of the plaintiffs/pre-eniptors. On issue No.4 it was held that the payment of Rs,35,000/- was not proved because only a sum of Rs.5,000/- was paid before the Registrar. Hence the court got the market value of the land determined and held thai its value was Rs.26,760/-. On issue No.6 it was held that vendees had spent an amount of Rs.1750/- (trroncously mentioned as Rs. 17500 in the judgment of the trial court). On the above findings the suit was decreed by the trial court vide judgment and decree dated 14.6.1977 on payment of Rs.28510/. All the vendees jointly filed an appeal in the court of the learned District Judge, Muzaffargarh, who reversed the findings of the trial court on issues No.2 and 3 and placing reliance on the judgment of Msl. Faieh Bibi Vs. Ahmad Klian and 6 others (PLD 1971 Lahore 171) held that Section 21-A of the Punjab Pre-emption Act did not apply in ihe matter. Finding on issue No.4 was also reversed by the appellate court. It was held that the market price of the land was Rs.35,000/-. Resultantly the appeal was allowed by the appellate court vide judgment and decree dated 21.2.1979 and the suit of the. plaintiffs pre-cmptors was ordered to be dismissed. They have come up in appeal before this Court. 3. The learned counsel for the appellants has attacked the findings of the first appellate court on issues No.2 and 3. He urged that the subsequent sale made on 23.1.1969 by Ghulam Rasul etc.. who were defendants No.5 to 9 in the plaint, was hit by the provisions of Section 21-A of the Punjab Pre-emption Act because the suit had already been filed on 13.1.1969. He further submitted that the subsequent sale was not shown to have been made in recognition of the superior rights of Pir Bakhsh etc., who were defendants No.l to 4 in the plaint. He urged that the transaction was otherwise sham transaction because even after the alleged sale Ghulam Rasul etc. defendants No.5 to 9 continued to show their keen interest in the dispute by filing a joint written statement and after decision of the suit by the trial court, a joint appeal in the District Court. He further urged that defendants No.l to 4 could not improve their status after the institution of the suit by purchasing the land from the stranger vendee^ In this connection he placed reliance on the judgments of Abdul Majid etc. Vs. Shahzada Asif Jan etc. (PLD 1982 S.C. 82), Mania Bakhsh and JO others Vs. Mohammad Sharif (PLD 1989 SC 278) Muhammad Ismail and others Vs. Karamal Ali (PLD 1989 SC 474), Muhammad fOian and another Vs. Sadiq and others (PLD 1968 Lahore 929), Rana Muhammad Latif Klian and another Vs. Kanwar Saeed Ahmed KJian (PLD 1978 Lahore 299), Ghulam Rasool and others Vs. Muhammad Latif and others (1986 CLC 2830), Hassan Ali Vs. Babu and 2 others (1989 CLC 1014) and Muhammad Hussain and another Vs. Muhammad Yaqoob (1990 MLD 783). On the other hand the learned counsel for the respondents urged that the defendants No.l to 4 by purchasing the land from the stranger vendees had merely removed the disqualification attached to them and did not really improve their status which may be said to have been hit by the provisions of Section 21-A of the Punjab Pre­ emption Act. He tried to distinguish the judgments relied upon by the learned counsel for the appellants on the groilnd that in all the cases the subsequent sales were made after the expiry of the period of limitation for filing of pre-emption suit. He tried to distinguish the judgment in Muhammad Hussain's case on the ground that there was no subsequent sale but declaratory decree was granted by the civil court holding the plaintiff to be the exclusive owners of the land. According to the learned counsel principle of sinker did not apply in the case because neither the defect attached to defendants No.l to 4 was irremediable nor they insisted on associating the strangers with them. In reply the learned counsel for the appellants submitted that the period of limitation qua the subsequent sale was not relevant. What was to be seen was whether it was made before or after the institution of the suit. 4. Both the courts below have held as a fact that the subsequent sale was made by Ghulam Rasul etc. in favour of Pir Bakhsh, deceased, Muhammad Bakhsh, Nabi Bakhsh and Ali Muhammad on 23.1.1969, the date when the sale deed Ex D3 was scribed. It was actually registered on 24.1,1969. The contention of the respondents that the subsequent sale was made on i.12.1968 when the sale consideration was received through the receipt Ex D2, was repelled by the courts below. I do not find any justification to differ with the finding of fact recorded by the courts below that the subsequent sale in favour of Pir Bakhsh etc. was made on 23.1.1969. The suit had already been filed by the pre-emptors on 13.1.1969. Under these circumstances the question arises as to whether Pir Bakhsh etc. had validly improved their status so as to defeat the rights of pre-emption claimed by the pre-emptors. Section 21-A, brought on the statute book in the year 1944 is reproduced below: - "21-A. Insertion of new section in Punjab Act, I of 1913..- Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre­ emption shall not affect the right of the pre-emptor plaintiff in such suit. A plain reading of this section makes it clear that any improvement made in the status of a vendee defendant otherwise than through inheritance or succession docs not affect the right of prc-emptor plaintiff in a suit. In the present case land was jointly purchased by Pjr Bakhsh and others through a composite transaction which was not divisible on the basis of specific shares or specific price paid by each vendee. Out of the vendees only Pir Bakhsh deceased, Muhammad Bakhsh, Nabi Bakhsh and Ali Muhammad respondents were owners in the estate vyhile Ghulam Rasul, Ghulam Hussain, Khurshid, Wahid Bakhsh and Khuda Bakhsh were strangers. By associating the strangers the status of Pir Bakhsh and others, defendants No.l to 4 in the suit was relegated to that of the strangers. The B disqualification attached to the status of defendants No.l to 4 was not removed till after the institution of the suit by the pre-emptors. It was specifically stated in para 2 of the plaint that defendants No.5 to 9 were strangers and by associating them in the sale deed defendants No.l to 4 had lost their right of pre-emption. The suit having been instituted, the provisions of Section 21-A of the Act had clearly barred improvement of status in any manner except through inheritance or succession. The subsequent sale though made during the period of limitation, could not affect the pre-emptor's right and the alleged improvement of status could not be accorded recognition by the law. With the inslilution of the suit, the rights of parlies were to be determined according to the status enjoyed by them on the date of institution of the suit. Looked at from that angle, on the date of institution of the suit Pir Bakhsh, deceased, Nabi Bakhsh and Ali Muhammad defendants No.l to 4 in the suit were relegated to the position of strangers i.e. Ghulam Rasul etc. defendants No.5'to 9. In that capacity, the defendants could not successfully resist or defeat the preemptor's claim. Hence the subsequent sale made by Ghulam Rasul etc. was inconsequential because it was made in favour of persons who. in the eye of law did not enjoy either equal or superior right as against the pre-emptor on the date of institution of the suit. Even if it is assumed that the re-sale was made in favour of a person having equal or superior right with the prc-cmptors as being owners in the estate, the same being violative of the provisions of Section 21-A, did not affect the pre-emptors' rights. There is also orce in the arguments raised by the learned counsel for the appellants that the subsequent sale was otherwise not bonafidc and appeared to be a sham transaction. Despite having made the alleged sale Ghulam asul etc. continued to exhibit their interest by Tiling a joint written statement in the trial court and a. joint appeal after an adverse decision of the suit by the trial court. The subsequent sale was not shown to have been made in recognition of the superior ^rights of pre­ emption claimed by Pir Bakhsh etc. Both Wahid Bakhsh and Karim Bakhsh who appeared as DW4 and DW5 respectively in the trial court did not state that they had transferred their shares of the land in favour of Pir Bakhsh etc. in recognition of their superior right of pre-emption. The subsequent transaction appears to be a mere paper transaction as a device to defeat the plaintiffs' right of pre-emption. 5. The appellate court has placed reliance on Mst. Fateh Bibi's case which, in my view, is clearly distinguishable. In the said case land was originally sold by one Bandu to Imam Din, Nia/ Muhammad and Abdiir Rahim on 26.12.1966. Thereafter on 9.2.1967 Imam Din and Nia/ Muhammad sold their share in the land to Allah Dad Khan and Ali Nawaz. The pre-emption suit was filed by Ahmad Khan and Muhammad Nawaz on 16.2.1967 on the ground of being co-owners in the Estate. They claimed that Imam Din, Nia/ Muhammad and Abdur Rahim, the original vendees from Bandu were strangers. They alleged that the second sale, made in favour of Imam Din and Nia/ Muhammad, could make no difference because Allah Dad Khan, defendant No.4, though an owner in the estate, had associated with him Ali Nawa/, defendant No.5. who was a total stranger. Hence even Allah Dad Khan had lost his right. In the written statement filed by defendants No.4 and 5 Allah Dad and Ali Nawa/. it was mentioned that they had sold away the entire land to Mst. Fateh Bibi, hence she was also impleaded as defendant No.6 in the suit on 8.5.1967. In the circumstances it was claimed that the sale made in favour of Mst. Fateh Bibi after the institution of the suit was hit by the principle of Us pcndens. Msl. Fateh Bibi was an owner in the estate in her own right as she had succeeded to the land left by her father by virtue of mutation of inheritance sanctioned on 24.7.1965. The re-sale of the disputed land made in her favour was held to be a genuine and bonafidc transaction. In these circumstances it was held that the pre-existing right of Mst. Fateh Bibi to pre-empt the original sale was in no way adversely affected by the general rule of Us pcndens. Hence she could successfully resist the preemptors' suit brought against her. As regards Section 21-A of the Act, it was held that it had no application U> the case of subsequent vendee who had acquired the property privately in assertion of his superior right of pre-emption. This judgment is clearly distinguishable; firstly because the re-sale in favour of Mst. Patch Bibi was held to be bonafide transfer; secondly because Mst. Fetch Bibi independently enjoyed right to pre-empt the original sale as being ,an owner in the Estate and she. not being an associatce of strangers was not reduced iq the position of strangers. Hence the appellate court appears to have fallen in error in placing reliance on Fetch Bibi's case and reversing the findings of trial court on issues No.2 and 3. The facts of the present case are similar to that of Abdul Majeed's case in which the argument that the purchaser from the stranger vendees, during the pendency of the suit, had merely removed an infirmity or disability, not involving improvement of status, was repelled by the Supreme Court. The said case involved the interpretation of the provisions of Section 17(2) of the NWFP Pre-emption Ael 1950 which are identical to the provisions of Section 21-A of the Punjab Pre-emption Act. In the said case one Zali Khan had purchased the joint share of his son after the institution of the suit. This was held to be an impro\emeni in status and not mere removal of infirmity or disability from which Zali Khan suffered earlier. As a result the Court dismissed the appeal in the light of the principle laid down in the main judgment rendered in C.A.56-D/1972. In the said appeal the principle laid down was that the improvement in the title of the vendee, made after institution of the suit, fell within the prohibited period mentioned in Section 17(2) of the NWFP Pre-emption Act, 1950 and as such could not be utili/.ed by the vendee to add a new qualification in his status to defeat the pre-emption suit. In Maula Bakhsh's case the Hon'ble Supreme Court referred to two earlier cases decided by the Supreme Court captioned Mehr Allah Ditto Vs. Muhammad Ali and another (1972 SC 95) and Muhammad Siddiq and another Vs. Syed Zawar Hussain Abidi and 9 others (PLD 1976 SC 572) and repelled the contention that the rule of sinker was not applicable in the Punjab for a vendee. The distinction made-in the case of a prc-cmptor plaintiff associating with himself a stranger and that of a vendee defendant joining stranger in a sale transaction, in the earlier judgment was highlighted in Maula Bakhsh's case. In the cases of Mchar Allah Ditta and Muhammad Siddiq it was clearly ruled that a purchaser vendee having a right of pre-emption and joining the stranger with him in the purchase, would be in a worst position as the act of associating a stranger as a party to the sale was an act "incapable of being undone". However, an error in the array of parties by including strangers as plaintiffs, in the suit can be remedied under an order of tine court. In the case of Muhammad Ismail and others the Supreme Court was pleased to hold that if a vendee has an equal right of pre­ emption but his associalec is a stranger in an indivisible sale, the transaction offends against the basic policy of pre-emption law to keep out strangers and himself sinks to the level of stranger vendee and cannot be permitted to retain share of the properly purchased by him. This case docs nol involve discussion of the application of provisions of Section 21-A of the Punjab Pre-emption Act. In the case of Muhammad Khun and another it was held that before resale of a property to another person could defeat the pre-emplor three requiremenls must be fulfilled: (a) ihc transfer must be a real and genuine one and not merely a sham transaction; (b) the Iransfcr must be in exercise of righl of pre-emption; (c) ihe transfer musl conform to ihc law of pre-emption, the Iransfcr musl lake place within ihc period of limilalion. The resale made in the present case does nol appear to fulfil the first two requirements staled in Muhammad Khan's case. As held above the transaction does not appear to be a real or genuine one because the vendees, even after selling the land as claimed by ihem, conlinued to lake interesl in the disputed property like real owners. Moreover, no evidence was brought on the record to show that the resale was made by them in recognition of the superior righl of pre-emption of defendant No.l to 4. In Rana Muhammad Latifs case a Division Bench of this Court dismissed the vendee's appeal holding as undcr:- "the appcllanls cannol succeed because by associating strangers in the purchase they became relegated to the status of those strangers who had no right comparable to thai of the pre-emptor and because the disability so incurred had continued to remain until afler ihe institulion of the suit on 4.4.1974." The Court also referred to Section 21-A of the Act and held that the appellant's case was hit by the provisions of section 21-A as the improvement in the status was effected after the institution of the suit. In the case of Ghitlam Rasool and others, another Division Bench of this Court held that where a vendee having equal or superior right of pre-emption had associated with himself in the joint purchase a stranger, would loose his right to resist the claim of the pre­ emption on the application of the principle of sinker. It was also held that rule of Us pendens applies in a pre-emption case where the vendee improves his status after the period of limitation for filing the pre-emption suit. In Hasan Ali's case it was alleged that the provisions of Section 21-A of the Punjab Pre-emption Act did not permit a vendee to improve his lot after institution of the suit or beyond prescribed period of one year of sale and that subsequent transfer during the pendency of a suit was inconsequential qua the rights of the pre-emptor. In the case of Muhammad Hussain and another it was held as unden- "Having once sunk to the level of the associate-stranger, the vendee with equal or superior right of pre-emption could not improve his status and re-gain his former position to defeat pre-emption against him. An act of purchasing from the stranger co-vendee could not be characterised as a mere removal of defect but act of an improvement in status clearly prohibited by Section 21-A of the Punjab Pre-emption Act". In this case exclusive ownership was sought to be proved by Gamman, vendee on the strength of a consent decree passed in his favour after the institution of the suit. Without expressing any final opinion about nature and legal effect of the consent decree the court non-suited the vendee as he stood relegated to the position of a stranger and could not improve the status after institution of the suit in view of the provisions of Section 21-A of the Act. The case of Muhammad Shaft and two others is distinguishable because it primarily pertained to the application of the rule that pre-cmptor, in order to succeed must retain his superior position till date of (he decree. The provisions of Section 21-A of the Act were not discussed. Moreover, the case is distinguishable on facts from the present one because in the precedent case sale was made by the stranger vendee in favour of others prior to the institution of the suit for pre-emption. The above resume of the case law leaves no manner of doubt that a subsequent sale made by a stranger vendee in favour of other vendees of the original composite and indivisible sale, having an equal or superior right against the pre-emptor, after the institution of the suit, is violative of the provisions of Section 21-A of the Punjab Pre-emption Act and cannot be pressed to defeat the pre-emptive right of the pre-emptor plaintiff. In view of the above discussion, I allow this appeal, set aside the judgment and decree dated 21.2.1979 passed by the learned Addl: District Judge and restore the judgment and decree dated 14.6.1977 passed by the trial court. In view of the delicacy of the legal question involved I leave the parties to bear their own costs. (MBC) Appeal accepted.

PLJ 1990 Lahore 479 PLJ 1990 Lahore 479 Present: zia mahmood MIR7A, J M. AMJAD BHUTTA AND CO. etc.-Petitioners versus Malik ABDUL MAJID TIWANA efc.-Respondents Writ Petitions Nos. 886 and 2240 of 1988, dismissed on 9.5.1990 (i) Urban Rent Restriction Ordinance, 1959 (W.P Ord. VI of 1959)-- Ss 2&13—Tenant—Ejectment of—Challenge to—Whether premises in dispute was factory/Industrial concern and Rent Controller had no jurisdiction- Question of—Record supports finding of courts below that demised premises when initially let out to predecessors-in-interest of petitioners comprised only of 2/3 rooms with some vacant land and an industrial connection but there was no machinery at that time installed on premises-Held: Premises was covered by definition of "rented land" or "building" and Rent Controller had jurisdiction to entertain eviction proceedings. [P.485JA PLD 1976 SC 781, PLD 1979 Lahore 673, 1986 CLC 632 and 1984 MLD 1107 rel. ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13-Tenant-Ejectment of-Challenge to-Finding of courts below that Muhammad Ashraf respondent continued to be tenant, is based on proper appreciation of evidence and is supported by sound reasons—Regarding misjoinder of causes of action and of parties, appellate court rightly held that • since ejectment was sought on ground of re-construction of building, a joint application against both sets of tenants was maintainable—Held: Impugned orders of courts below are unexceptionable and in any case, they are not open to interference in writ jurisdiction-Both petitions dismissed. [P.488JE&F PLJ 1979 SC 246 rel. (iii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13—Tenant—Ejectment of—Challenge to—Whether non-disclosure of other property owned by landlord, in ejectment petition, adversely reflects on his bonafides-Question of-Held: Proceedings before Rent Controller being of quasi-judicial nature, are not to be judged from point of view of mere technicalities and landlord is not to be non-suited merely because he failed to specifically plead certain facts so long as he has brought evidence on record to prove his bonafide personal requirement-Held further: Concurrent finding . recorded by two courts is not open to question in constitutional jurisdiction. [Pp.486&487]B,C&D PLD 1976 Karachi 233, PLD 1976 Karachi 620, PLD 1981 Lahore 456, 1981 SCMR 979 and PLD 1982 Lahore 401 rel. KJi. M. Habibitlhih, Advocate for Petitioners. Sirdar Muhammad Tiij'ail, Advocate for Respondent No. 3 Muhammad Ashraf, Respondent No. 4 in person. C7i Muzammal Khan, Advocate for Respondents 5 to 9. • Dales of hearing: 11 & 12.2. TWO. JUIXiMHNT This order will also dispose of the connected Writ Petition No. 2240 of 1488 filed by respondent Nos.5 to l ), as both the petitions arise out of the same order and the properly framing the subject matter of the two petitions is also the same. Facts giving rise to this constitutional petition, briefly stated, arc that Muhammad Aslam Dura, respondent No.3, brought an ejectment petition against M.Amjad Bhutta and Company, petitioner No.l, Kaashaf Industries, petitioner No. 2, and Muhammad Ashraf, respondent No.4 herein. He sought their eviction from the property in dispute described in the ejectment petition as a house, on the ground of its re-construction and for his personal need as also for the use and occupation of his sons Muhammad Asghar and Muhammad Af/al. According to the averments made in the ejectment petition, respondent-landlord had rented put the premises in dispute to Muhammad Ashraf respondent in January 1966 oir-& monthly rental of Rs.45/- who later on set up two Firms; one in ihe name of his son Amjad Bhutta (petitioner No.l) and the other in the name of his nephew Kaashaf Nawa/ (petitioner No. 2) and thereafter started obtaining rent receipts in the name of the said Firms although he himself had been paying the rent. Portion of the disputed property in which the Firm-petitioner No.l carried on its business was shown red and ihe portion in occupation of the other Firm vix. Petitioner No. 2 was shown green in the site-plan attached with the ejectment petition. Petilionei Firms and Muhammad Ashraf respondent filed a joint written reply wherein they look a preliminary objection that the property in dispute was an industrial concern which was rented oul to them as such from the very inception. They had obtained additional clcclricily connections with the permission of the landlord and had also installed heavy machinery therein. It was ihus maintained by them that the premises in dispute being a factory/Industrial Concern, the Rent Controller had no jurisdiction to entertain and adjudicate upon the ejectment petition. It was further maintained by the tenants that the industrial/commercial premises could not be converted and used for residential purposes. Yet another objection taken in the reply was thai Muhammad Ashraf was not the lessee of the property in dispute which stood divided into two portions and each portion was in separate and independent occupation of petitioners Nos. 1 and 2 as tenants. It was thus urged that the ejectment petition was not maintainable as against Muhammad Ashraf and that it was also bad for misjoindcr of parties and causes of action. On facts, the stand taken in the written reply was lhat the premises in dispute along with a motor and certain items of machinery installed thereon were taken on fent by Muhammad Nawa/.. father of Kaashaf Nawa/, who, after some time, purchased the machinery and with the permission of ihe owner raised new construction at his own expense and presently il was a big factory. It was further averred by he tenants lhat the factory was later divided into two portions. On portion remained in occupation of Muhammad Nawa/ who continued running his factory therein and paid the rent therefor, whereas the second portion was rented put by ihe owner lo Muhammad Ashraf who, loo, with the permission of the owner installed heaa; machinery thereon besides raising new construction at his own cost. Later on, Muhammad Ashraf sold his factory alongwith his tenancy rights to his son Amjad Bhutta under due intimation to the landlord who then rented out that portion to the latter at the rate of Rs.150/- per month and since then Amjad Bhutta is in possession thereof as a tenant. Correctness of the siteplan attached with the ejectment petition was also denied by the tenants. 4. Pleadings of the parties gave rise to the following issues:- 1. Whether this court lacks jurisdiction to try the application in view of P/O No.l of the written reply? OPR 2. Whether the application is liable to be dismissed on the basis of objection raised in preliminary objection No.2 of the written reply? OPR 3. Whether the respondent No.l is not a tenant in demised premises and application is not maintainable to his extent? OPR 4. Whether the application is bad/defective on account of mis-joinder of parties and causes of action as maintained in P/O No.4 of the written reply? OPR 5. Whether the site plan attached with the ejectment application is absolutely in-correct? OPR 6. Whether the applicant in good faith requires the disputed property for the use and occupation of his own as well as sons? OPR 7. Whether the plaintiff in good faith requires the disputed property for re­ construction and as such has already-obtained necessary sanction from the Municipal Corporation, Sialkot? OfH 8. Relief. 5. Both the parties ied evidence, oral as also documentary, to prove their respective pleas. Learned Rent Controller after scrutinizing the evidence on the record came to the conclusion that at the time of the origin of the tenancy, only the vacant land along with the industrial electric connection was rented out and at that time, there was no machinery installed thereon. It was accordingly held by the Rent Controller that since the lease was in respect of the premises and not the machinery which the tenants had installed themselves, he had the jurisdiction to try the ejectment petition. Issue No.l was thus decided against the tenants. Issue No.2 based on the preliminary objection that the premises in dispute being industrial/commercial, it could not be converted into residential property was also answered against the tenants and it was held that the objection was not countenanced by any provision of the Rent Restriction Ordinance. Reliance in this behalf was also placed on 1986 C.L.C. 591 wherein it was held that the conversion of a non-residential building into a residential house was not barred under Section 11 of the Ordinance. Similarly issue No.3 was also found against the tenants with the observation that Muhammad Ashraf respondent having admittedly entered into possession of the premises as a tenant, the mere fact that he later inducted his own son into the property did not mean that he himself ceased to be the tenant. Issues No.4 and 5 were also decided against the tenants. On issues Nos.6 and 7, it was held by the Rent Controller that the requirement of the landlord for reconstruction and personal use and occupation was established by oral and documentary evidence and it was observed that he was not shown to be i possession of any property "sufficient and suitable for his own as well as his son's need." With these findings, eviction petition was accepted by the Rent Controller who directed the tenants to deliver the vacant possession of the property in dispute to the landlord within four months and to remove, at their own expense, the machinery installed and construction raised by them. This was vide order of the Rent Controller dated 4.1.1987. 6. Feeling aggrieved, Muhammad Ashraf as also the present petitioners preferred a joint appeal. Legal heirs of Muhammad Nawaz also brought a separate appeal against the order of the Rent Controller. A point was raised in both the appeals that it was Muhammad Nawaz who had taken the disputed premises on rent and had remained in occupation until his death whereafter his legal heirs had been running the factory through Kaashaf Nawaz, the grown-up son. All of them were thus necessary parties but they were not impleaded in the ejectment proceedings with the result that they were condemned unheard. Oa f" behalf of the landlord, on the other hand, it was submitted before the appellate court that Muhammad Nawaz had never been the tenant of the disputed premises and that even if he were so, the tenancy never passed on to his legal heirs because his son Kaashaf Nawaz who was the sole proprietor of the Firm known as Kaashaf Industries had been running the business to the exclusion of other heirs of his father. It was contended that if they really had any right or interest in the tenancy, they would have certainly come forward during the pendency of the ejectment petition and sought to be impleaded as parties therein but they took no such step, stood by and appeared on the scene only after the ejectment order was passed. Learned District Judge while dealing with this aspect of the matter observed that the evidence led by both the parties "travelled beyond their pleadings". For instance, it was noted that whereas it was averred in the ejectment petition that the premises were rented out to Muhammad Ashraf respondent who later introduced his son and nephew therein and established two firms, the landlord while appearing as a witness stated that he had rented out the disputed premises to Muhammad Ashraf and his brother Muhammad Nawaz who later on inducted their respective sons and established two separate Firms. Similarly, the tenants in their joint written reply had denied that Muhammad Ashraf had any connection with the disputed premises but when appearing as a witness, Muhammad Ashraf admitted that he had taken half of the property in dispute on rent from the landlord and his brother Muhammad Nawaz took on rent the other half portion and they went on doing their business until they inducted their sons who set up their separate firms. Be that as it may, learned District Judge on consideration of the evidence led by the parties, came to the conclusion that "the disputed premises was let out by the petitioner-respondent to Muhammad Ashraf respondentappellant No.l and his brother Mohammad Nawaz to the extent of one-half each and in their respective portions they set up some kind of industrial concern. With the passage of time they continued to expand their business and even added certain structures thereon. Mohammad Nawaz died some time in the year 1976 and he was succeeded by his son Kaashaf Nawaz who went on working under the name and style of above firm. Similarly Mohammad Ashraf respondent-appellant inducted his own son Muhammad Amjad though as an elderly person and experienced hand he went on providing guidance and necessary expertise to them and even went on dealing with the landlord in the matter of payment of rent of both the firms and obtaining receipts from him in the name of two different firms of which they continued to change names from time to time in order to suit their business interest and also to avoid payment of income tax as it has been alleged by the petitioner-respondent. In any case, after the death of Mohammad Nawaz in 1976, only his son Kaashaf Nawaz as sole proprietor of the said firm went on dealing with the petitioner respondent either directly or through his uncle Mohammad Ashraf as his tenant or lessee of one half of the disputed property and other heirs of Mohammad Nawaz (deceased) did not come into picture till the ejectment application filed by the petitioner-respondent was accepted and they brought appeal No. 26 of 1987, despite the fact that they were fully aware about the pendency of the ejectment petition against Kashaf Nawaz, Mohammad Amjad and Muhammad Ashraf ever since May 1986." It was accordingly held by the appellate court that the legal heirs of Muhammad Nawaz were not a necessary party to the ejectment proceedings nor was the ejectment application bad for their non-joinder and consequently their appeal No. 26 of 1987 was liable to be dismissed. Objection of the tenants regarding the mis-joinder of causes of action and of the parties was also repelled with the observation that since the landlord sought the ejectment on the ground of re-construction of the building, he could bring a joint application against both sets of tenants as was held in PLJ 1979 S.C. 246. Finding of the trial court on issue No. 4 was thus affirmed. As regards the objection of the tenants that the property in dispute was an industrial concern which was rented out to them as such and, therefore, the Rent Controller had no jurisdiction in the matter, learned appellate court after detailed examination of the evidence on record came to the conclusion that the property in dispute "was a building or rented land within the meaning of Urban Rent Restriction Ordinance, 1959 and not an industrial concern and as such the Rent Controller had the jurisdiction to try the ejectment application" Precise finding recorded by the learned District Judge was that at the time of letting out the premises in dispute to the present tenants, it comprised of two or three rooms and some vacant site attached thereto with an industrial connection obtained by the previous tenant for running his saw-mill and that no machinery was installed therein. Support for this finding/conclusion was drawn from the evidence of both the parties and more particularly from the testimony of Abdul Ghani AW.3 who it was observed had been the tenant of the premises in dispute for more than two decades before it was rented out to Muhammad Ashraf. This witness was the original lessee/tenant of the disputed property. He stated that when he took the premises on Tent, it was in the form of a vacant Ihata. He installed a saw machine ' thereon which he removed while vacating the premises. According to this witness, the disputed premises comprised of 2/3 rooms and some vacant site with the industrial connection. Learned District Judge found that vacant premises with an industrial electricity connection obtained by the previous lessee was rented out to the present tenants. Issue No. 2, it appears from the impugned order of the appellate court, was not seriously pressed by the petitioners/tenants. On issue No.3, learned appellate court held that Muhammad Ashraf remained associated with the business carried on by his son and nephew on the premises in dispute and that he had in fact been paying the rent to the landlord excluded from the operation of the Rent Restriction Ordinance and the Rent Controller had no jurisdiction in the matter. Reliance was placed on "Messrs Rahman Cotton Factcny vs. MessrsNichimen Co.Ltd" (PLD 1976 SC 781). Learned counsel appearing for the respondent/landlord, on the other hand, supported the finding of the courts below and pointed out that the evidence on the record showed that the premises in dispute when rented out to the petitioners comprised of the vacant land with some structure but with no machinery whatso­ ever installed thereon. Machinery was in fact installed by the tenants themselves. In the circumstances, it was argued by the learned counsel that the tenancy was in respect of the building or the rented land and not the machinery and that being so, the matter squarely lay within the ambit of the provisions of the Rent Restriction Ordinance. In support of his submission, learned counsel relied upon (1) "Messrs Rehman Cotton Factory vs. Messrs Nichimen Co. Ltd., Karachi "(PLD 1970 Lahore 455), (2) "Messrs Rehman Cotton Factory vs. Messrs Nichimen Co. Ltd., (PLD 1976 SC 781), (3) "Mistri Ahmad Hassan vs. Abdur Rauf Khan etc." (1978 Law Notes 754), (4) "Ghulam Farid and another vs. Mian Farooq Nazir and another" (PLD 1979 Lahore 673), (5) "Muhammad Yasin v&. Abdul Lateef Issani" (1986 CLC 632) and (6) "FarzandAli vs. Muhammad Bashir" (1984 MLD 1107) 9. In order to evaluate the respective contentions of the learned counsel for I the parties, I have minutely examined the evidence on the record and I find that it supports the finding of the courts below that the demised premises at the time when it was initially let out to Muhammad Ashraf and Muhammad Nawaz, the predecessors-in-interest of the present petitioners, comprised only of 2/3 rooms with some vacant land and an industrial connection. Evidence on the record does not show that at that time, there was any machinery installed on the premises in dispute. In fact, Muhammad Ashraf respondent/tenant appearing as RW-1 admitted that when he took on rent half portion of the premises in dispute, it was lying vacant. He further deposed that the portion in possession of Muhammad Nawaz was previously with Abdul Ghani. Now it is in evidence that the said Abdul Ghani was the original tenant of the premises in dispute and when he took the premises on rent, it was a vacant Ihata. He had installed a saw machine which he removed when he vacated the premises and soon thereafter, the premises were rented out to Muhammad Ashraf. Thus on a proper analysis of the totality of evidence, the finding of the learned District Judge that what was rented out to the predecessors-in-interest of the present petitioners was only the vacant land with 2/3 rooms and an industrial connection appears to be unexceptionable. Even the evidence pointed out by the learned counsel for the petitioners is of no help to him because it at the most shows that the premises were let out for business purposes viz. for setting up a factory. The premises were thus covered by the< definition of 'rented land' or 'building' and the Rent Controller had the jurisdiction to entertain the eviction proceedings in respect thereof. It may pertinently be observed that for a property to be considered as a factory or industrial concern so as to exclude it from the operation of Rent Restriction Law, it must be equipped with machinery requisite for a particular manufacturing process. It was so held in the aforementioned case of Rehman Cotton Factory (PLD 1976 SC 781) cited by the petitioners themselves. In that case, a ginning factory equipped with machinery for processing and the ginning cotton was leased out as a factory. The lessee sought to invoke in his aid the Rent Restriction Law and argued that he was not liable to pay any amount to the landlord in excess of the agreed rent. While repelling this argument, their Lordships observed that the Rent Restriction Act applied to "Residential Building", "Non-residential Building" and "rented land" as defined in section 2 of the Act and that the factory in question did not fall under any of the said three categories of the property to which the Act applied. It was held that "the Act excluded from its operation what were property known as a factory equipped with machinery requisite for a particular manufacturing process. In essence in all such cases, the lease is for the use of the machinery which is permanently fixed in certain defined premises and not of the premises simpliciter." Judged in the light of these weighty observations, the premises rented out to the petitioners by no stretch of reasoning could be treated as a factory or industrial concern. Reference may also usefully be made to the case of Ghulam Farid reported in PLD 1979 Lahore 673. In that case, land was rented out and the tenant thereafter set up a re-rolling mill thereon. Rent Controller took the view that since it was the land which was rented out for the purpose of a factory and not the factory, it was a case of leasing out property for the purpose of trade or business as such the land fell within the definition of either building or rented land. This view was upheld with the observation that "the setting up of a factory must be deemed to be covered by the expression 'business or trade' since the object of manufacturing is the conversion of a commodity or commodities into another finished commodity for the purpose of sale. Goods are manufactured in a factory for sale." It was further observed that before a factory is considered to be ousted from the ambit of the Rent Restriction Ordinance, it must be let out as a factory. This view was followed in 1986 CLC 632 and it was added that this meant that the premises along with the manufacturing equipment should be the subject-matter of the lease. In 1984 MLD 1107 (Karachi), tenant took the land on rent and installed his saw machine thereon for business purposes. It was held on these facts that the demised premises was 'rented land' within the meaning of Section 2(f) of the Rent Restriction Ordinance and the ejectaiei$ application hi respect thereof was maintainable. All these authorities quite cleat% support the view taken by the learned courts below that the premises in dispute was rented land or building and not a factory/industrial concern and the Rent Controller, therefore, had the jurisdiction in the matter. Contention of the learned counsel for the petitioners to the contrary has no force. 10. It was next contended by the learned counsel for the petitioners that it has come in the evidence that the landlord owned 2/3 houses in the town but this fact was not disclosed in the ejectment petition. Non-disclosure of this material fact, according to the learned counsel, adversely reflected on the bonafides of the personal need set up by the landlord. In support of his submission, learned counsel relied upon (i) PLD 1984 Karachi 141, (ii) 1985 CLC 892, (iii) 1985 CLC 937, (iv) 1983 CLC 1149 and (v) 1986 CLC 2376. 11.1 have perused the cases cited by the learned counsel for the parties and have examined the material on the record. The judgments referred to by the petitioners' counsel were passed on first or second appeals and they proceeded on their own peculiar facts. It would, therefore, be not appropriate to apply their enunciation to the present case. Needless to observe that the proceedings before the Rent Controller which are of gua?/-judicial nature are not to be judged from the point of view of mere technicalities and the landlord is not to be non-suited merely because he has failed to specifically plead certain facts so long as he has brought the evidence on the record to prove his bonaflde personal requirement. Refer PLD 1976 Karachi 233. In another case from Karachi (PLD 1976 Karachi 620) also cited by the learned counsel for the landlord, it was held that it is not necessary for the landlord, when he takes the plea of personal bonafide requirement that he should specifically urge in the rent application all the ingredients which constitute his personal bonafide requirement which ingredients are a matter of proof. It was observed in the cited case "Any absence, in the pleadings, of such averment does not reflect adversely on the bonafide, if otherwise proved, of the landlord's personal requirement. In fact, the requirement contained in Section 13(3)(a)(i)(b) was not that the landlord should not 'have' but that he should not be 'occupying' another residential building in the same urban area. This view was taken in the afore-referred case reported in PLD 1976 Karachi 620^ Perusal of the eviction petition shows that the landlord had made a specific averment in para 7 ( ) that he or his sons were not in occupation of any other premises which suited their need. The landlord had thus satisfied the requirement of the afore-noted provision. In any case, the absence of averment in the ejectment petition that the landlord owned other houses could not be said to be malafide because he and his witness Muhammad Hanif readily stated in the evidence that he owned 2/3 houses in the suit (?). It may also pertinently be observed that mere ownership of other houses did not detract from the genuineness of the landlord's requirement. Refer PLD 1981 Lahore 456 and 1981 SCMR 979. Even otherwise, the question of bonafide requirement of landlord is to be examined in the context of all the relevant facts and circumstances on the record. In the instant case,landlord produced evidence to show that he had three married and two un-married sons all residing with him in a house comprising 5/6 rooms. He also brought on record sanctioned site plan for re-construction. Taking all this evidence into consideration, the two courts below came to the conclusion that the landlord bonafide needed the premises in dispute. This concurrent finding, recorded by the two learned courts of competent jurisdiction after due consideration of material on the record is not open to question in constitutional jurisdiction. If any authority is needed for this proposition, reference may be made to "Abdul Ghani vs. Zahida Begum" (PLD 1982 Lahore 401) 12. I have also considered the findings of the courts below on other issues and in my view they are unexceptionable. Objection of the tenants regarding the conversion of non-residential building into a residential house was rightly repelled by the Rent Controller as not tenable because there was no provision in the Rent Restriction Ordinance barring such a conversion. Section 11 of the Ordinance hi fact prohibited the conversion of a residential building into a non-residential building except with the permission in writing of the Rent Controller. In any case, petitioners are shown to have not seriously pressed this objection before the appellate court. They are, therefore, precluded from agitating this issue in these proceedings of extraordinary nature. Finding of courts below on issue 3 holding that Muhammad Ashraf respondent continued to be a tenant of the demised premises is based on proper appreciation of evidence and is supported by sound reasons. It, therefore, does not call for any interference in writ jurisdiction. As regards issue No.4, regarding the mis-joinder of causes of action and of the parties, learned appellate court rightly held that since the ejectment was sought on the ground of re-construction of the building, a joint application against both sets of tenants was maintainable. This view is supported by the judgment of the Supreme Court reported in PLJ 1979 SC 246 which was duly noticed by the learned appellate court. Learned appellate court also proceeded on correct premises in holding that legal heirs of Muhammad Nawaz and Kashaf Nawaz were not the necessary parties to the ejectment proceedings. Their appeal was, therefore, rightly dismissed. On the facts found by the learned appellate court, they had no locus standi either to file the appeal or to maintain the writ petition which merits dismissal on this short ground. Upshot of the above discussion is that the impugned orders of the courts below are unexceptionable and in any case they are not open to interference in F writ jurisdiction. Both the writ petitions are accordingly dismissed but with no order as to costs. (MBC) Both petitions dismissed.

PLJ 1990 Lahore 488 PLJ 1990 Lahore 488 Present: MALIK MUHAMMAD QAYYUM, J NAZARUL HUSSAIN eto.-Petitioners versus COLLECTOR, LAHORE and 5 others-Respondents Writ Petition No. 7443 of 1989 and 17 other petitions, accepted on 13.6.1990 (i) Constitution of Pakistan , 1973-- —Art. 24—Land—Acquisition of—Compensation for—Whether property could be acquired under Land Acquisition Act without compensation-Question of— Acquisition implies compulsory deprivation from property of an individual- Article 24 of Constitution lays down that no property shall be compulsorily acquired save for public purpose and save by authority of law which provides for compensation thereof-Held: Land Acquisition Act, according to its preamble, not only provides for acquisition of land for public purpose but also ensures that adequate compensation is paid to land owners. [P.494JD PLD 1970 Lahore 321 rel. (ii) Laches- —Laches-Plea of--Whether attracted-Ouestion of-Though it is correct that notification under Section 4 of Land Acquisition Act was issued on 8.12.1985 and present petitions were filed in 1989, but petitioners are not aggrieved of notification under Section 4 of Act-They are aggrieved of two subsequent notifications issued under Section 17 and 6 of Act, on 5,9.1989 and 26.9.1989-- Held: Petitions having been filed without delay after issuance of notifications, cannot be said to suffer from laches—Petitions accepted. [P.497JL&M (iii) Land Acquisition Act, 1894 (I of 1894)-- —S. 4--Land-Acquisition of-Notification of~No further steps taken-Effect of- -Contention that issuance of notification under Section 4 was merely a formality and on no reasonable basis can it be insisted that further steps be taken within a specified period from date of issuance of notification- Contention is wholly devoid of any force—By framing Rule 7, Government has placed a restriction upon its functionaries that notification under Section 5 must be issued within specified period failing which, proceedings shall be deemed to have come to an end-Held: It cannot be argued with success that Government is not empowered to fix limitation as to time in which proceedings for acquisition must be proceeded with—Held further: 'It is well settled that if statute has not fixed any specified period for a particular act, it must be performed within reasonable time. [P.496JH Crah"i on SUttul^ l.;m. F'age 282, 7th Edition rcl. (iv) Land Acquisition Act. !X'M i! of 1S94)-- —Ss. 4, 5, 6 & 17 read with Punjab Land Acquisition Rules, 1983, Rule 7- Land—Acquisition of—Notification of—Issuance of—No further proceedings after notification, within specified period-Effect of-Under Rule 7, if notification under Section 5 of Act is not issued within one year of notification under Section 4, matter is to be reported to Board of.Revenue which can further extend period for sixty days-Held: Rule. 7 is un-ambiguous and is capable of no other interpretation except that if within prescribed time, requisite steps are not taken, proceedings stand frustrated-Held further: Contention that rule is directory and not mandatory in character cannot be accepted. ' jPp.491&493]A,B&C PLD 1974 SC 134, PLD 1985 SC 28 and PLD 1986 SC 178 rel. (v> Land Acquisition Act, 1894 (I of 1894)- l-Ss 5, 5-A & \1 read with Punjab Land Acquisition Rules, 1983 Rule 7-Land- -Acquisition of-No further step taken after notification under Section 4- 'Effect of-'Held: By not having issued notification under Sections 5 and 5-A or for that matter under Section 17 of Act, within period prescribed by Rule 7 of 1983 Rules, proceedings for acquisition came to an end and subsequent notifications are clearly without lawful auth',. ,ii v [P.497JK (vi) Land Acquisition Act, 1894 (I of 1894)-- —- S, 17 read with Punjab Land Acquisition Rules, 1983, Rule 7--Land-- Acquisition of—Whether Rule 7 is inconsistent with Section 17 of Act, and is, therefore, void-Question of-Contention that words "at any time" used in Section 17(1) of Act, mean that land can be acquired under Act at any time and Rule 7 which places limitation on power to acquire is ultra vires of Act- Held: This argument proceeds on misconception about true legal position because words "at any time" do not appear in amended provisions. [P.495JE&F (vii) Punjab Land Acquisition Rules, 1983- —R. 7—Provisions of Rule 7—Whether unreasonable—Question of—Period prescribed for issuance of notification under Section 5, in Rule 7 is one year from date of notification under Section 4-This period can further be extended by two months by Board of Revenue—Held: Period of one year and two months cannot, by any stretch of imagination, be considered as unreasonable. [P.496]J PLD 1989 Lahore 69 not relevant. Mian Nisar Ahmad, Advocate for Petitioners. Mr. Maqbool Elalii Malik, Advocate General, with Rana Muhammad Arshad, Additional A.G., Sh. Abdul Majad, Malik Muhammad Afzal and Mr. Muhammad Rafi Siddiqui, Advocates for Respondents 1 to 4 & 6. Mrs. Nasira Iqbal, Advocate for Respondent No. 5. Date of hearing: 16.5.1990. judgment This judgment shall dispose of the following writ petitions which are directed against the same notifications and in which common questions of law and facts arise. •. No.7443 . No.8320 '. No.8321 P. No.832 No.8323 No.8324 No.8325 . No.8326 ', No.8327 . No.8328 . No.8329 , No.8330 . No.8331 . No.8332 . No.8290 . No.8291 '. No.2549 . No.1904 . No.2959 1. W.P. 2. W.P 3. W.P 3-A. W. 4. W.P W.P W.P W.P W.P W.P 10. W.P 11. W.P 12. W.P 13. W.P 14. W.P 15. W.P 16. W.P 17. W.P 18. W.P of 1989 of 1989 of 1989 !2 of 1989 of 1989 of 1989 of 1989 of 1989 of 1989 of 1989 of .1989 of 1989 of 1989 of 1989 of 1989 of 1989 of 1989 of 1990, and of 1990. 2. By notification dated 8th December, 1989 (Annexure 'B' to this petition), the Collector acting under Section 4 of the Land Acquisition Act, 1894 notified thai the land measuring 14 kanals 10 marlas 10 sq.ft. situate at Jail Road, Lahore bearing khasra No.78 of revenue estate Mozang was likely to be acquired at public expenses for the educational purpose by Education Department, Government of Punjab. No action in pursuance of this notification was taken by the respondents till 5th September, 1989 when the Commissioner, Lahore Division, Lahore purporting to act under section 17 of the Land Acquisition Act, 1894 issued a notification that the land was urgently required and provisions of Section 17(1) of the Act were applicable to the aforesaid land. It was further directed in exercise of the powers under Section 17(4) of the Act, that provisions of Section 5 and 5-A shall not be applicable to the acquisition and the Land Acquisition Collector, Lahore should take action accordingly. This was followed by another notification dated 24th September, 1989 in the Punjab Gazette Extra Ordinary of 26th September, 1989 in which declaration under Section 6 of the Land Acquisition Act was published and the Collector was directed to take order of acquisition of land under Section 7 of the aforesaid Act. In all these petitions the vires of these two notifications have been challenged by the petitioners who claim to be the owners of the land sought to be acquired. 3. Mian Nisar Ahmad, Advocate appearing on behalf of the petitioners contended that as no proceedings were taken by the authorities concerned within a period of one year of the issuance of notification under Section 4, the acquisition proceedings came to an end by virtue of rule 7 of the Punjab Land Acquisition Rules, 1983 and these proceedings could not be resurrected by issuing notifications under Sections 17 and 6 of the Act and the two notifications were void and without any lawful authority. It was also submitted that in any case, there was no justification for the respondents to have acted under Section 17 of the Act as there was no real urgency in contemplation of this provision which could only be resorted to in the event of an emergent and pressing need which brooked no delay. The learned counsel emphasised that notification u/s 17 of the Act, takes away valuable rights vesting in the land owners under Sections 5 and 5-A to object to the acquisition and as such it should be demonstrated that opinion formed by the Commissioner was honest, bona fide and based on sufficient material. The learned counsel next contended that the Commissioner while issuing the notification u/s 17 of the Act has acted contrary to law and in disregard of rule 11 of the Punjab Land Acquisition Rules, 1983. 4. Syed Zamir Hussain, learned counsel for the petitioners in the connected petition, argued that it was evident from the record that the acquisition of the land in question was not for public purpose but was mala fide. It was explained .that though the land is sought to be acquired for extension of Kinnaircd College, Lahore but 8 acres of land is lying vacant in the College and the request to acquire the land did not emanate from the College. It was also urged that notices as required by Sections 4 and 9 of the Land Acquisition Act, 1894 were not served upon the petitioners. 5. Mr. Maqbool Elahi Malik, Advocate-General contended that the petitioners have no locus standi to file these petitions as there is nothing on the record to show that they are owners of the disputed land; that the notification under Section 17 of the Land Acquisition Act can be issued 'at any time' and no limitation can be placed on the powers of the Commissioner to act within specified period. He submits that the words "at any lime" appearing in Section 17 of the Act were comprehensive and wide enough to indicate that the action can be taken regardless of time. Reliance in this respect was placed upon the judgments in S.C. Prasher and another vs. Vasantscn Dwarkadas and others (AIR 1963 S.C. 1356) and Tlie State of Assam and another vs. Dcva Prasad Sama and another (A 1 R 1969 S.C. 831). It was next argued that rule 7 was not mandatory in character and having been framed for guidance of the Officers was in the nature of instructions and its violation could not render the proceedings as invalid. The learned Advocate-General emphasized that if the rule is construed as placing an embargo on the power of the Authorities to acquire the land, it would be ultra vires of the Act. 6. Mrs. Nasira Iqbal, learned counsel for respondent No.5 reiterated the objection that the petitioners have no locus standi to file these petitions as their names did not appear in the revenue record as owners of the land in dispute. It was also argued that though the petitioners, according to them were owners of 14 kanals 10 marlas of land yet they were laying claim to an area measuring 16 kanals 12 marlas which included the property belonging to respondent No.5 and as such this petition was mala fide. The learned counsel next emphasized that the land was being acquired for a laudable purpose i.e. the education of girls for which there was already a dearth of facilities and this object should not be allowed to be frustrated. The learned counsel placed certain facts and figures before this Court on the basis of published documents to show that the highest priority should be accorded to education of women in our country where the overall literacy rale is about 32 per cent but the female literacy rate is only 16 per cent and out of 16 percent only 2 to 3 per cent females get the opportunity to avail of the facility of higher education. It was also objected that the petitions suffer from laches inasmuch as all the newspapers of 25.2.1988 carried the news that the land was being acquired for the purpose of Kinnaird College but the present petitions were not filed with due promptitudes and, therefore, suffer from laches. As regards rule 7 of the Punjab Land Acquisition Rules, 1983, the learned counsel maintained that under Section 55 of the Land Acquisition Act, only the rules consistent with the Act can be framed and that too for the guidance of the Officers. It was submitted that rule 7 was directory and its violation cannot be visited with the penalty of rendering the proceedings as void. Reliance in this respect was placed on Muhammad Ashraf v. Nasreen Begum through legal heirs and 3 others (P L D 1989 Lah. 69). The case of Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (P L D 1989 S.C. 66) was cited to urge that the rules repugnant to the Act are void and cannot prevail over the Act. It was submitted that rule 7 which places unreasonable fetters on the powers of the acquiring Authorities resulting in frustration of public purpose should be struck down. The learned counsel relied upon certain judgments to contend that the provisions of Statute cannot be subordinated to the rules which cannot be relied upon to defeat the very purpose of the Act. It was contended that the power of eminent domain vesting in the Government cannot be whittled down and the public purpose should not be allowed to be defeated. In the last analysis, it was emphasized that the Court should make efforts to harmonise the rules with the Act and to adopt the interpretation which advances the cause of justice and promotes the object for which the law had been framed. On merits, it was argued that the property was urgently required by the respondents for the purpose of setting up Post Graduate Classes in the Kinnaird College for Women, Lahore and the matter has already been un-necessarily delayed by the public functionaries to the prejudice not only of the respondents but also the public at large. 7. The first question which falls for decision is as to the effect of rule 7 of the Punjab Land Acquisition Rules, 1983 which reads as under:- "7. Where the land is to be acquired for a public purpose the Commissioner shall issue a Notification under Section 5 of the Act not later than one year from the date of the publication of the Notification under Section 4. If no Notification is issued under Section 5 within the period specified in this rule, the Commissioner shall immediately report the matter to the Board of Revenue for extension in time and the Board of Revenue may, in its discretion extend ihe time for the issue of a Notification under Section 5, which shall q .«oe more than sixty days. If the Board of Revenue declines to grant tfe extension applied for or if the Commissioner fails to issue a Notification under Section 5 within the extended period, the acquisition proceedings shall be deemed to have come to an end. However, any time spent in the prosecution of a judicial remedy shall stand excluded from the period of litigation." According to this rule, if notification under Section 5 of the Land Acquisition Act in not issued within one year of the notification under Section 4, the matter has to be reported to the Board of Revenue which may extend the time for a period of sixty days. However, if no such notification is issued even within the B extended period or the Board of Revenue declines to extend the time, the acquisition proceedings shall cease to be operative and shall be deemed to have come to an end. 8. The rule is un-ambiguous and is capable of no other interpretation except that if within the prescribed time the requisite steps are not taken, the proceedings stand frustrated. The rule is couched in emphatic terms which leaves no doubt as to the intention of its framers that on the failure to take action as contemplated by this rule, within specified period the proceedings shall be deemed to have come to an end. The contention of the learned Advocate-General as also learned counsel for respondent No.5 that the rule is directory and not mandatory in character cannot be accepted. The consequences flowing from the non-observance of the rule having been provided in the rule itself it cannot be construed as irectory but emphatic. In Niaz Muhammad KJian v. Mian Fazal Raqib (PLD 1974 S.C. 134) it was observed that:- "As a general rule a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the acts 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 entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision." 9. In Govt. of the Punjab v. Ijaz Hussain Qureshi (P.L.D. 1985 S.C. 28) it was laid down that where law itself provides in unequivocal words consequences of failure or default, requirement has to be taken as mandatory. Reference may also be made to Col. (Reid.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others (P L D 1986 S.C. 178) wherein the Supreme Court was pleased to lay down:- "Whcn an affirmative direction is followed by a negative or limiting provision the negative or limiting provision makes the statute mandatory." While interpreting the provisions of law like the Land Acquisition Act or the Rules framed thereunder it is to be kept in mind that acquisition implies compulsory deprivation of property of an individual. Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 lays down that no property shall be compulsorily acquired or taken possession thereof save for public purpose and save by authority of law which provides for compensation thereof. The Land Acquisition Act, according to its pre-amble not only provides for the acquisition of law (?) for public purpose but also ensures that adequate compensation is paid to the land owners. The different provisions of this enactment underlies the anxiety of the legislature to ensure that due compensation is paid to the land owners. It need not be reiterated that compensation means equivalent in value of the land acquired i.e. gold for gold. In Col. Bashir Hussain and 10 others vs. Land Acquisition Collector, Lahore Improvement Trust Lahore and 2 others (PLD 1970 Lah. 321) this Court observed that:- "... The Land Acquisition Act (I of 1894) as is clear from its title and clearer still from the preamble, is a law for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be paid on account of such acquisition." The raison de etre of this piece of legislation is, therefore, two-fold: firstly, to fulfil the needs of Govt. and Companies for land required by them for their projects, and secondly, to determine and pay compensation to those private persons or bodies whose land is so acquired. The exercise of the power of acquisition has been limited to public purposes. The principles laid down for the determination of compensation, as clarified by judicial pronouncements made from time to time, reflect the anxiety of the law­ giver to compensate those who have been deprived of property, adequately enough in the sense that they are to be given gold for gold and not coper for gold. In other words, the compensation has to be adequate compensation. It is with this end in view that the association of the persons interested in the property, with the process of determination of its market value by the Collector is a high light of this statue. A bare reading of the Act leaves one with the strong impression that one of the main intentions of the Legislature was to ensure the protection of the rights of the persons whose property was being acquired.." 10. Considered in this light, it is not difficult to ascertain the reasons for enacting rule 7 of the Punjab Land Acquisition Rules, 1983. Section 23 of the Land Acquisition Act provides for payment of compensation according to the market value of the land at the date of publication of notification under Section 4 sub-section (1) of the Act. As the basis for payment of compensation to the land owners has reference to the date of publication of notice under Section 4 of the Land Acquisition Act. it is of utmost importance that after having issued the notification under Section 4. the process for acquisition should be completed \vithin shortest possible period. Rule 7 is geared towards this object. It would be no consolation for the owners who have been deprived of the land if they are given compensation at the rates prevailing at the time of the issuance of notification under Section 4 though long period of time has elapsed since then. 11. Now the contention of the learned Advocate-General as also Mrs. Nasira Iqbal, learned counsel for respondent No.5, that rule 7 is inconsistent with Section 17 of the Land Acquisition Act and is, therefore, void, need be attended to. The learned counsel submitted that according to Section 17( 1) of the Land Acquisition Act, 1894 as amended in its application to the Province of Punjab, in cases of urgency the Commissioner can at any time after 15 days from the publication of notice under Section 9(1) take possession of the land which shall thereupon vest in the Government. Placing emphasis upon the words, "at any time" it was contended that as under the Act the land can be acquired at any time, the rule which places limitation on the power to acquire is ultra vires of the Act. This argument, however, proceeds on mis-conception about the true legal position. By the West Pakistan Ordinance 19 of 1961. Section 17 of the Land Acquisition Act in its application to the West Pakistan was substituted by the following:- "17. Special power in cases of urgency. (1) In cases of urgency, whenever the Commissioner so directs, the Collector though no such award has been made, may, on the expiration of fifteen days from publication of the notice mentioned in sub-section (1) of Section 9, take possession of any land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances." As is obvious from the above, the words "at any time" on which much emphasis have (?) been placed by the learned Advocate-General as also learned counsel for respondent No.5 do not appear in the provisions as amended and the argument proceeds on wrong premises. Even otherwise, the words "at any time" cannot be construed in the manner suggested by the learned Advocate-General. As long as the proceedings for acquisition remain alive, the action under Section 17(1) can be taken by the Commissioner at any time. However, if the proceedings have come to an end and the notification under Section 4 has ceased to be effective, the question of taking possession under Section 17(1) does not arise. 12. The learned Advocate-General contended that issuance of notification under Section 4 was mere a formality and on no reasonable basis can it be insisted that further steps be taken within a specified period from the date of issuance of notification. This contention is wholly devoid of any force. The issuance of notification under Section 4 is sine qua non and the date of the publication of the notification is terminus'qua for these proceedings. In Umar Farooq v. Acquisition Collector, Bannu and 4 others (P.L.D. 1975 Peshawar 103) it was observed that in all acquisition cases under the Act, the very jurisdiction of the Collector depends upon the prior publication of the notification under Section 4 of the Land Acquisition Act, 1894. Similarly, in Government of West Pakistan v. Ch. Muhammad Siddique (P.L.D. 1968 Karachi 697) it was observed that the issuance of notification under Section 4 was a condition precedent to the acquisition proceedings. 13, This question may be examined from another angle. After having issued notification under Section 4, it is open to the Govt. at any time before taking possession of the land to withdraw from the acquisition by rescinding the notification. By framing rule 7, the Government has placed, a restriction upon its functionaries that the notification under Section 5 must be issued within the specified period failing which the proceedings shall be deemed to have come to an end. Rule 7 can be construed as a direction by the Government that if further proceedings are not taken within the period prescribed, the notification under Section 4 of the Land Acquisition Act, shall stand rescinded. Consequently, it cannot be. argued with any success that the Government is not empowered to fix limitation as to time in which the proceedings for acquisition must be proceeded with. It is well accepted principle of law that before striking down any provision of the rule, efforts may be made to harmonise the rules with the Statute and it is-only where the inconsistency exists between the Rules and the Act that the rule should be struck down. Section 17 by its language does not provide any limit as to time during which the action contemplated by it must be taken. It is well settled that if the Statute has not fixed any specified period for the purpose of a particular time (?), it must be performed within reasonable time. It is of advantage to reproduce the following statement of law appearing in 'Craies on Statute Law' at page 282 of the 7th Edition:- "('V) Statutory' powers'of interference with property must he exercised within a reasonable time. Powers conferred by Act of Parliament must, as uencral rule, be exercised within <t reasonable time after notice has been given to the persons whose properly will be affected by their exercise, otherwise the notice will be liable to be treated as being no longer effective/Where powers are given to take lands compulsorily for the execution of works. Jhe exercise of powers must be bona fide commenced within the time limited for the completion of the work." It need also to be noticed that Section 17(1) provides for taking emergent measures in case of urgency. The object of enacting such a provision obviously was to allow the Authority to proceed in the matter without waiting for other formalities to be completed, as the purpose for which the land was being acquired brooked no delay. It would, therefore, be self-contradictory to contend that though Section 17 contemplates the existence of urgency, the action thereunder can be taken despite even after a number of years. The contention of the learned counsel for respondent No.5 that rule 7 is unreasonable and should not be given effect to has no merit. The period prescribed for issuance of notification under Section 5 in the said rule is one year from the date of notification under Section 4 which period can further be extended by the Board of Revenue by another sixty days. The period of one year and two months, cannot by any stretch of imagination be considered as unreasonable. The reliance of the learned counsel on Muhammad Ashraf v. Nasreen Begum through legal heirs and 3 others (P L D 1989 Lah. 69) is not well placed for, the decision in that case was with regard to the interpretation of 'reasonable time' as used in Section 9 of the Punjab Family Courts Act, 1964. The result of the above discussion is that by not having issued notification under Sections 5 and 5-A or for that matter under Section 17 of the Act, within the period prescribed by the rule 7, the proceedings for acquisition came to an end and the subsequent notifications are clearly without lawful authority. 14. Reverting to the objections of the learned counsel for the respondents that the petitioners having not shown themselves to be the owners of the land in question and as such have no locus ftandi, it is to be noticed that the learned counsel for the petitioners have placed on record the sale deeds in favour of the petitioners. -Even otherwise there appears to be no specific denial of the averments in the petitions which is supported by affidavits that the petitioners had purchased the land in question form its owners. As regards the plea of respondent No.5 that the petitions suffer from laches, it is not Well founded. Though it is-correct that the notification under Section 4 was issued as far back as 8th December, 1985 and the present petitions have been filed in 1989 but it is to be seen that the petitioners are not aggrieved of the notification under Section 4 of the Act but of the two subsequent notifications issued under Sections 17 and 6 of the Act dated 5th September, 1989 and 26th September, 1989. These petitions having been filed without any delay after the issuance of these notifications cannot be said to suffer from laches. The learned counsel for the respondents submitted that the petitioners should, in any case, have filed these petitions at the most after one year and 2 months of the notification under Section 4 for obtaining a declaration that the proceedings for acquisition have cimtic to an end. This argument of the learned counsel cannot be accepted. The petitioners were under no obligation to approach the Court after the expiry of the period prescribed by rule 7 and were within their right to treat the proceedings to have come to an end by efflux of time. It is only when the proceedings under Sections 17 and 6 of the Act were taken that grievances arose to the petitioners for the redress of which they were obliged to approach this Court. This objection is also nol well founded. In view of what has been staled above, these writ petitions are accepted and the impugned notifications are declared to be without lawful authority and of no legal effect. There shall be no order as to costs. (MBC) Petitions accepted.

PLJ 1990 Lahore 497 (DB) PLJ 1990 Lahore 497 (DB) Present: gul zarin kiani and KHALiD paul khawaja, JJ Mst. ARIFA AMJAD and 2 others-Appellants versus ABBAS TAYYAB DAR and another-Respondents R.F.A. No. 167 of 1989, accepted on 5.6.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XVII Rr. 2&3~Partition—Suit for—Absence of plaintiffs evidence and" their counsel on adjourned date of hearing—Dismissal of suit—Challenge to—In case of mere dismissal in default of appearance, remedy lies for restoration through an application to trial court—Necessary conditions for applicability of Rule 3 were clearly wanting—Case fell for disposal under Rule 2 of Order XVII of CPC-Impugned order closing evidence and dismissing suit for want of proof in absence of plaintiffs could not be made-Held: There is no bar in law to treat impugned order to have been made under Rufe 2 of Order XVII and it is a case of dismissal in default though trial court proceeded dffierentry-- Suit ordered to be restored. " [PpJ04,505,50'7]C&D PLD 1981 SC 474 re/, (ii) Civil Procedure Code, 1908 (V of 1908)- —O. XVII Rr. 2&3-Partition~Suit for-Absence of Plaintiffs evidence and their counsel on adjourned dale—Dismissal of suit—Challenge to—Whether impugned order is covered by Rule 3 or 2 of Order XVII CPC—Question of- For application of Rule 3, it is necessary that defaulting party must be present or deemed to be present before court, that adjournment must have been granted to party at his request, that party defaulted in doing act for which he took time, and that there must be some material on record for decision of case-Held: Mere default in appearance at adjourned date of hearing fell within ambit of Order XVII Rule 2 of CPC. [Pp.500&504]A&B AIR 1924 Lahore 545 (DB). AIR 1964 Rajesthan 147. AIR 1976 Madhya Pradesh 21 (FB), PLD 1963 (WP) Karachi 356, PLD 1967 Dacca 633. PLD 1970 Quella 79. PLD 1975 Lahore 385, AIR 1976 Allahabad 290 and AIR 1977 Madhya Pradesh 222 ref. Mi: Jariullah Ktuin, Advocate for Appellants. Mian Iqbal Hussoin, Advocate for Respondents. Dates of hearing: 4 & 5.6.1990. judgment Gul Zarin Kiani, J.—This is a first appeal by the plaintiffs, against an order of the trial Court dated 7.11.1989, closing their evidence, and, dismissing the partition suit brought by them for want of proof. Briefly stated, the factual matrix giving rise to this appeal are that, on 4.7.1988, the plaintiffs instituted a civil suit against defendants for separate possession through partition of their share of property jointly held between them. It was stated in the plaint that a moiety in the property known as 33-B Model Town, Lahore belonged to late Sher Mohammad Dar. He expired on 24.6.1980. He had three sons, namely, Abbas Tayyab Dar, Zafar Iqbal Dar, and, Mohammad Idrees Dar. First two are defendants 1 and 2 to the partition suit, whereas the third, namely, Mohammad Idrees Dar pre-dcceased his father and was survived by three daughters who arc his true legal representatives and plaintiffs in the partition suit. They claimed I/3rd share in the joint property, which their father, if alive at the time of the demise of his father, would have inherited from him. Defendants resisted lac suit; denied the joint character of the property as also the correctness of the shares claimed in it by the plaintiffs. Proceedings taken for appointment of a local commission and issue of temporary injunction aside, necessary issues requiring determination were settled by the trial Court on 3.9.1988 and the dale fixed for plaintiffs evidence on 22.1.1.1988. 22.11.1988 was a closed day. Consequently, suit came up before the trial Court on succeeding day i.e. 23.11.1988 and was adjourned to 26.1.1989, 30.1.1989 and 1.3.1989 for sorting out certain ancillary matters. On 1.3.1989, trial Court fixed the case for the plaintiffs' evidence on 30.4.1989. Meanwhile, suit was transferred to the file of another Judge by administrative order of the District Judge and parties were directed to appear before the transferee Court on the date already fixed in the case. On 30.4.1989, the transferee Court recorded in the order sheet that suit be registered; parties were not present and then adjourned the suit to 24.6.1989 for plaintiffs' evidence. Obviously, the date for evidence of the plaintiffs was given in absence of the parties. On the adjourned date, neither the plaintiffs nor their counsel entered appearance. The Clerk to the plaintiffs' counsel whose presence %vas marked in the order sheet had informed the trial Court that plaintiff No.l was in family way and except for her statement, no other evidence shall be produced. On the same date, counsel for the defendants who was present in Court, complained of jaundice and requested for adjournment. Thus, say, upon the joint request of the clerk to the counsel for the plaintiffs and the defendants' Advocate, suit was adjourned to 10.9.1989 for recording of statement of plaintiff No.l. Rest of the evidence was closed by the trial Court. On 10.9.1989, as the trial Judge was on leave, suit was adjourned to 7.11.1989 for the purpose already noted in the order of the previous date. On the adjourned date, neither the plaintiffs nor their counsel representing them entered appearance in Court. Defendants were represented by their Advocate. At 12.40 p.m, on 7.11.1989, the suit was dismissed , by the trial Court for want of proof by the plaintiffs. It is worthy of note that no rule of procedure was cited in the order which empowered the Court to make this order. As the order passed by the trial Court was an appealable decree, plaintiffs, preferred an appeal. It was admitted to hearing on 25.11.1989. On behalf of the appellants, it is argued that upon the facts and circumstances existing on 7.11.1989, neither rule 3 in Order XVII nor rule 1 as amended by Lahore High Court could have applied and upon the correct reading of the record and the impugned order, it squarely fell within the ambit of rule 2 of Order XVII read with order IX Civil P.C; that the order sheet dated 7.11.1989 was not correctly prepared by the trial Court, inasmuch as plaintiff No.l and the witnesses summoned by her through Court were present outside the Court room and wailed for call which was never made and it was erroneously recorded in the order sheet that on calls made, neither the plaintiffs nor their counsel had appeared; that the plaintiffs had submitted a complaint in writing against the conduct of the trial Judge to Hon'ble, the Chief Justice of Lahore High Court and their counsel Mian Minat Ullah Advocate who represented them in the trial Court swore an affidavit to support their allegation; that on the adjourned date, a large body of cases were fixed before the trial Court, some for miscellaneous purposes, some for taking evidence and others for hearing arguments etc. It was winter time and the Court timings were from 9 a.m. to 4 p.m. Therefore, the trial Court was obliged to wait till the time for its rising; that the order closing the evidence was punitive in character and extremely harsh. By it, the plaintiffs were made to lose valuable property for not much of their fault. In reply, respondents' learned counsel submitted that the impugned order was correctly made and upon the default committed by the plaintiffs in failing to appear and producing the evidence, the trial Court had no option but to dismiss the suit for want of merits as the plaintiffs themselves gave no evidence to establish their case. However, learned counsel for the respondents frankly conceded that to a case of double default viz non-appearance in Court and failing to produce evidence or performing any other act necessary for further progress of the suit, rule 3, in Order XVII Civil P.C. could not have been applied. First question that we shall consider is as to which rule in Order XVII, Civil P.C. shall apply and govern the impugned order; whether it shall be covered by rule 3 or upon its close analysis ought to fall within the purview of rule 2 of Order XVII Civil P.C. In case it fell under rule 2 of Order XVII, what were the remedies for the aggrieved plaintiffs for setting aside of that order. To answer the first question; we shall have to advert to the Scheme of Order XVII Civil P.C. That order is headed "adjournments". As originally enacted, it consisted of three rules only. Two more rules were added to Order XVII by Ordinance XII of 1972. Only first three rules are relevant for our present purpose. Rule I gave power to the Court to adjourn the hearing of the suit if sufficient cause was shown for it to its satisfaction. There is no doubt that adjournment is in the discretion of the Court. Succeeding two rules applied to adjourned date of hearing of the suit. To this extent, there is similarity between them. Order IX -Civil P.C. provided for consequences arising out of non-appearance of all or any of the ] arties to the suit on the first date of hearing. To the adjourned dates of hearing, undisputedly, Order XVII was attracted. Rule 2 stated that where on ihc adjourned date of hearing, parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf in Order IX or make such other order as it thinks fit. Then follows rule 3. It deals with an altogether different situation. It is headed "the Court may proceed notwithstanding either party fails to produce evidence etc." It reads "where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith". Having're-produced the relevant provisions of Order XVII Civil P.C, above, we shall advert to rules 2 and 3 to discover about their application. Distinction in the phraseology employed in rules 2 and 3 appears to be marked. It has been subject matter of discussion in numerous judgments of the superior Courts found in law reports. However, judicial consensus leans in favour of the view that necessary conditions for the applicability of rule 3 are:- (i) time must have been granted to the party at his instance; (ii) the time must have been granted to the party to do one or other of the three things mentioned in the rule viz to produce evidence or to cause .^tendance of witnesses or to perform any other act necessary for the progress of the suit; (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and, (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances. Additionally, some decisions that provisions in rule 3 being stringent and penal in character shodtt not be applied unless the facts do not admit application of any other rule of the Code and also that for its proper application, sufficient material must be jvail-iMe on record for giving a proper decision on merits which do not include a nummary decision. There is no doubt that provisions in Order XVII, rule 3 are permissive and not mandatory. However, there is some dispute between the Courts on the application of rule 3 in case of a double default viz non-appearance in Court and failing to take necessary steps for which the adjournment was granted by the Court. In Jhanda Singh and others versus Sadiq Mohammad and others — A.I.R 1924 Lahore 545 (D.B.), Gopi Kisan versus Ramu and another — A.I.R. 1964 Rajasthan 147 and Smt. Shantabai versus Chokhelal— A.I.R, 1976 Madhya Pradesh 21 (F.B.), it was held that it is open to the Court to proceed under Order XVII, rule 3 even in absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so. In the above three decisions, order XVII, rule 3 was applied to the case of double default viz default in appearance and failing to perform the necessary conditions for which the adjournment was allowed by the'Court. In the first case cited from the Lahore High Court which dealt with double default for application of Order XVII, rule 3, entire evidence in the case had been recorded and parties had closed their respective cases and a date for hearing of arguments had been fixed on which one of the party defaulted in appearance and in those circumstances it was held that Order XVII. rule 3 could be applied for giving a decision on merits of the case. In the other two cases from the Post Indian jurisdiction, it was expressly found that rule 3 of order XVII was applicable to a case of double default even if there was no material available on record for giving a decision on merits. In Abdul Shakoor versus Abdul Rasool reporled in P.L~.D. 1963 (W.P.) Karachi 356, a different view on this point was expressed. It was held that for application of the procedure laid , down in rule 3 to a case, there must be the presence of both the elements, namely, (1) the adjournment must have been at the instance of a party, and, (2); there must be material on the record for the Court to proceed to decide the suit. It was further held that the presence ofene without the other does not justify application of rule, 3. It was also observed that even in the case where a special adjournment is granted by the Court and party fails to appear in person and his pleader reports no instruction, it would be a cas<j of double default in so far as there is default of appearance and the case woulithen fall under Order XVII, rule 2 of the Code of Civil Procedure. In the above-case, Order XVII rule 3 was not applied, apart from other things, to a case of double default. In Muhammad Manikuddin versus Samiran Bibi and others- P.LllX 1967 Dacca 633 (at 638) after referring to rules 2 and 3 of Order XVII, the Court qbserved:- "As is clear. Rule 3 is, applicable only to cases where a party to whom time has been granted on his own application to do some specified act necessary lor hire to take if he is to prosecute his case fails to take that step. In all other cases ©f adjournment, for whatever purpose that may be, the provision of Rule 2 $hall apply. Rule 3 is really in the nature of an exception to the general provision embodied in the next preceding Rule, i.e. Rule 2, and authorises the Court to proceed to a decision on merits in spite of default if there are on record materials to warrant such a decision. As Rankin, .C.J. in the case of Krishta Kishore Bose v. Pancharam Maity (1) rujj observed:- "It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words "parties must come ready on that day". Still I do not think that that is what is contemplated by the terms of Rule 3. Rule 2 begins by "Where, on any day to which the hearing of the suit is adjourned", (it does not say at whose instance it is adjourned) "the parties or any of them fail to appear." Rule 3 says "where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit". It seems to me that default of appearance in a case of general adjournment before hearing is within Rule 2 and that rule 3 (sic) is directed to a case where a party is definitely given time in order that he may take a certain step which it is necessary for him to take if he is to prosecute his case, and fails to take that step." It will thus appear that Rule 3 is clearly inapplicable to the instant case in that there was no adjournment at the instance of either party to enable it to take any step necessary for the purpose of prosecuting its case. In my opinion, it cannot be said to come within the ambit of Rule 2 either inasmuch as there was really no adjournment of the hearing of the suit at all. It is true that in the order dated 31.12.58, already cited above, the learned Munsif used the word "adjournment" but that appears to have' been done rather loosely instead of the proper word "fixed" in that by the order dated 22.12.58 the suit had in express terms been set down on 30.12.58 for "fixing" the dale of pre-emplory hearing. Again even assuming that there was adjournment of hearing though, in my opinion, it was not a case of such adjournment at all, that can only be regarded as a general adjournment coming within the purview of Order XVII, rule 2, and in that case also, it is the provision of rule 3 of Order IX that would be applicable in the circumstances of the instant case. It follows that in any view of the matter the suit could not be proceeded with under the provision of Order XVII, rule 3, even if there were legal materials on record to enable the Court to make a decision on merit. It could not be dealt with under Order IX, rule 6 either, in that the most essential condition postulated therein, i.e. appearance of the plaintiff, was wanting. The only provision that could therefore, apply was rule 3 or Order IX and as such the appropriate order to make was one of dismissal for default." In Wadera Dalel Khan and 7 others versus Province of West Pakistan and 6 others— P.L.D. 1970 Quetta 79, it was observed:- "Admittedly none of the plaintiffs was present when the suit, was ft dismissed by the trial judge and there was no material on the record for ' him to give a decision on merits. The evidence was yet to be produced by the plaintiffs. The Court could only proceed under Order XVII, rule 2, C.P.C. in such circumstances. Either the suit could bg adjourned or action could be taken under Order IX, C.P.C. The Court could dismiss the suit on merits only if some evidence of the plaintiffs had been recorded and in his view that evidence was not sufficient enough to sohstauUatc their claim. But stringent action under Order XVII, rule 3, GP-C^ without there being any documentary or oral evidence on record, wa& not available to the Court under the law. Distinction has been drawn between the two rules by a Full Bench of Bombay High Court reported as Basalingappa Kitshappa Kumbhar and others v. Shudranappa Irappa Shivanagf and another (1) and our above view is in accord with the decision of the Full Bench. • 6. As we find thai the order passed by the trial Court is not on merits, mere mentioning by the Court that the suit is dismissed under Order XVII, rule 3, C.P.C. would not bring the order under that rule. It was so held in Raja Singh v. Manna Singh and others (1)." In the later part of the Judgment, the cour) observed:— "It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassment to the defendants." From the above extracts, it is evident that Order XVII, rule 3 was applied and suit dismissed by the trial Court but the view by the trial Court was not upheld by the High Court. Somewhat similar views were expressed by the High Court on the necessary conditions for the application of rule 3 of Order XVII in Lai versus Ghulam Muhammad and another — P.L.D 1975 Lahore 385. On the question whether rule 3 presupposes actual or deemed presence of the parties before the Court, a Full Bench of the Allahabad High Court in M.S. Klialsa versus Chiranji Lai and others —A.I.R 1976 Allahabad 290 observed lhat rule 3 applies when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in rule 3. Similarly, in Rama Rao and others versus Shantibal and others- A.I.R 1977 Madhya Pradesh 222, a Full Bench of Madhya Pradesh High Court of five Judges by 4:1 (S.M.R. Raina, J., disagreeing) overruling the earlier Full Bench decision of their Court in the case of Mst. Shantabai, after survey of conspectus of the authorities of various High Courts, in para 9 of the judgment observed thus:- "The plain and unambiguous, language of the two provisions; the deliberate departure made in the phraseology of the two Rules, the undisputed need to construe R.3 strictly; the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that R.2 applies to all cases of default in appearance of all or any of the parties with the result that R.3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under O.9, C.P.C. set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed. This is done in the manner prescribed by the Code. We also think that the expression "such other order as it thinks fit" used in R.2 permits disposal of the suit and not a decision thereof on merits contemplated by R.3, in a mode other than that provided in O.9, e.g., by an order of adjournment. A contrary conclusion would resufa. in several needless difficulties. In the first place, that would permit an order of the type contemplated by R.3 even iit the case of a default in appearance of any of the parties which is a construction not acceptable to us'for the reasons already given. That apart, it would permit the making of an order contemplated by R.3 withft the ambit of R.2 itself so that such a construction would render R.3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected. All these reasons impel us lo take the view that the expression "or make such other order as it thinks fit" used in R.2 docs not include within its ambit a decision falling within the ambit of R3. As for R.3, it follows that this Rule presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that R.3 applies and it has no application to cases falling within the ambit of R.2. In our opinion, whenever such a question arises, it has first to be seen whether R.2 applies to the facts of a case since on R.2 being attracted, the operation of R.3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying R.3 would arise to the facts of a case, provided the requirements laid down in R.3 are fulfilled." Therefore, in addition to the conditions already mentioned above for the application of rule 3 of Order XVII, it is necessary that the defaulting party must be present or deemed to be present before the Court. In our view, the views expressed by the Full Bench of Madhya Pradesh in the case ofRgma Rao (Supra) correctly summed up the law and enunciated it correctly- with which we whole heartedly agreed and observe that for the application of rule 3, the conditions given below must co-exist; (i) adjournment must have been granted to the party at his request; (ii) it must have been granted to it for the purposes mentioned in the rule; (iii) the party who has taken the time defaulted in doing the act for which he took the time from the Court; (iv) the party must be present or deemed to be present before the Court; (v) that there must be some material on record for decision of the case on merits and lastly, that the Court must decide the suit forthwith that is within a reasonable time. In our view, mere default in appearance without more at the adjourned hearing fell within the ambit of rule 2 of Order XVII, Rule 3 catered for an altogether different situation. As said above, it presupposed the presence of the parties and failing to perform the necessary acts mentioned in the rule by a defaulting party. Not only the above two rules attract to different sets of situations but the remedies provided against the orders passed under these rules are also different. In case of a mere dismissal in default of appearance, there is a remedy for restoration in" an application for this purpose addressed to the trial Court. Conversely, if an order has been passed under Order XVII, rule 3 Civil Procedure Code, an appeal }$es against it to the higher Court. When we look at the records, keeping in view the distinction in rules 2 and 3, we feel no hesitation to say that necessary conditions for the applicability of rule 3 in the case before us were clearly wanting. Adjournment in the suit was not at the request of the defaulting party but was by the order of the Court itself. Therefore, the very first condition for the applicability of rule 3 was conspicuous by its absence. Furthermore, according to the trial Judge, the plaintiffs had defaulted to appear and failed to produce evidence. Therefore, the second important condition for the applicability of rule 3 that the parties must be present or deemed to be present was also non-existent. Similarly, there was no material on record to assist decision on merits by the trial Court. In absence of the plaintiffs, drastic provisions in rule 3 could not have been invoked against them to order an out­ right dismissal of a partition suit which involved rights to valuable property. It may be of some advantage to observe here that even learned counsel for the respondents failed to support the impugned order on the score that it could not have been passed under rule 3 of Order XVII. In his view and we share this view, the case fell for disposal under rule 2 of Order XVII read with Order IX Civil. P.C. Either the suit could be dismissed in default of appearance under Order IX rule 8 or the Court could make such other order as it thought fit which also included an order for further adjournment of the case. It had the discretion to act both ways and was not bound to' order dismissal in default of appearance Therefore, there is no doubt that upon proper reading of record and application of correct legal principles, impugned order closing evidence and dismissing the suit for want of proof in absence of the plaintiffs could not be made. Only proper and legal order which the trial Court could make was dismissal of the suit in accordance with the modes prescribed in Order IX Civil P.C. If this be so and we think it is so, only rule 2 applied which gave power to the Court to dismiss the suit in default in case plaintiff or their counsel did not appear when the suit was called on for hearing and the defendants were present before the Court. As we have already said, both the learned counsel agreed that the proper order in the case would have been the dismissal of the suit in default of appearance and not its dismissal on merits for want of proof. There is no bar for us in law to treat the impugned order to have been made under rule 2 of order XVII and hold it as a case of dismissal for default in appearance, though the trial Court had proceeded differently. Next question confronting us is about the remedy and the relief that could be granted to the plaintiffs. There is also a related question, whether the restoration should be ordered by the High Court in appeal or the matter should be left to the trial Court to be dealt with on an application under Order IX rule 8, Civil P.C. Raina, j.. in his dissenting opinion in the Full Bench case of Rama Rao, dealt with this point as stated below:- "Beforc I conclude the consideration of this question, I may refer to another point on which some stress has been laid by my learned brother Verma, J. for coming to the conclusion that the Court has no jurisdiction to proceed under R.3 of Order XVII in the absence of the defaulting party. It has been said that if R.3 of Order XVII is to be construed so as to include within its ambit cases of default in appearance, the defaulting party would have to be given an opportunity, for the first time, by the Appellate Court to show that his default can be condoned for valid reasons and this would be stretching the powers of the Appellate Court requiring it to adopt a procedure for which there is no sanction in the Code of Civil Procedure. To my mind no question of stretching the powers of the Appellate Court at all arises because it is always open to the Court to rectify errors of the trial Court in the exercise of its ordinary appellate jurisdiction. If, in appeal, the appellant is able to show prima facie on affidavit or otherwise that there was good cause for his absence and that, if he had appeared, he would have, produced his evidence or performed other acts for which he had secured the adjournment, the Appellate Court can convert the order under R.3 into an order under r.2 of Order XVII and leave it to the party to have the decision against him set aside by an application in the trial Court under O.IX. Such a course was adopted by this Court in a number of cases. In Mamti v. Gangadhar Rao 1964 Jab LJ 559 Dixit, C.J. held that where the trial Court erroneously dismissed a suit under R.3 of O XVQ when it should have dismissed it under R.2, the proper order to pass in an appeal is to substitute the order of the trial Court by an order dismissing the suit under R.2 of Order XVII. A similar view was taken by a Division Bench in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) and also by the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra). To say that such a course is not appropriate or not permissible would lead to grave injustice. Where the Court expressly proceeds under R.3 of Order XVII, the" party aggrieved would ordinarily file an appeal and in such a case it would be proper exercise of jurisdiction by the 'Appellate Court to give suitable relief to the appellant by substituting the order under R.3 by an order under R.2 of Order XVII if it finds that the trial Court had wrongly proceeded under R.3." It is true that when a suit is dismissed in default of appearance by the trial Court, remedy for the aggrieved party is to apply for its restoration by an application under Order IX Civil P.C. That is the ordinary rule. But, in the existing circumstances, the plaintiffs could not take re-course to the above legal remedy and run the risk of dismissal of their application for restoration. From the impugned order, it did not look to be a simple case of dismissal of the suit for default in appearance by the plaintiffs but it appeared practically to be a dismissal of the suit on merits for want of proof by the plaintiffs and remedy against such an order lay in an appeal to the higher forum. It is well settled that the law relating to remedies must not only be certain and unambiguous but clear also to the litigants. Otherwise, they are put to great hardship and suffer injustice. In the case before us, if the plaintiffs had gone to the trial Court for restoration of the suit under order IX, they could have been met with an objection that as the decision was recorded under rule 3 of Order XVII, their remedy was by way of an appeal only. We think such an objection could have been held valid and had the support from the judgment of the Supreme Court in Shahid Hussain versus Lahore Municipal Corporation— P.L.D 1981 S.C 474. Therefore, the only remedy which the plaintiffs could avail of was to file an appeal against the "decree" which the decision of the trial Court undoubtedly amounted to. Power of the High Court as also its jurisdiction to set aside the impugned order in appeal treating it to have been made under Order XVII rule 2 were not questioned by the respondents and we think rightly because Section 107 read with the relevant provisions in the Schedule 1 of the Civil Procedure Code clearly provided that generally the appellate Court has all the powers and duties of the trial Court. Plaintiffs had questioned the correctness of the Court diary. They stated that on the date of hearing, not only the plaintiff No.l but the witnessses summoned by her to give evidence in her favour allo sat outside the Court room to wait for the call of the case which according to them the trial Court never made. Mian Minat Ullah Advocate who represented the plaintiffs before the trial Court and a witness summoned to give evidence on that date gave affidavits to support plaintiffs' version. As the complaint filed by the plaintiffs against the conduct of the trial Judge is under enquiry on the administrative side of the High Court, we decline to offer our comments on this aspect of the controversy to avoid prejudice to the pending departmental enquiry but upon the materials placed before us, we are of the firm view that sufficient cause was made out to explain plaintiffs' actual nonappearance in Court when the suit was called on for hearing and this circumstance permits us to set aside the impugned order to direct decision on merits. The course adopted by us would certainly curtail further delay in decision of the case which, if we had taken the other course suggested to us by learned counsel for the respondents and also available in the dissenting opinion of Rama, J., in Full Bench case noted above, further delay would have been inevitable. Similarly, the above course shall avoid unnecessary hazards and further rounds of litigation which in case the plaintiffs were pushed to apply to the trial Court for restoration of the suit were bound to occur. It is for these and other reasons that we ourselves have opted to set aside the impugned order on the cause shown for non-appearance in Court and taking it to be a sufficient cause to explain the default, direct restoration of the suit for its decision on merits after affording reasonable opportunity to the plaintiffs to produce evidence on issues requiring proof by them. We would, accordingly, accept the appeal, set aside the impugned order and direct decision of the suit on merits as indicated above. As to the cost in this Court, we shall make no order. Records be returned to the Court below. Parties have been directed to appear before it on 14.7.1990. (MBC) Appeal accepted

PLJ 1990 Lahore 507 (DB) PLJ 1990 Lahore 507 (DB) Present: KHALILUR REHMAN KHAN AND MALIK MUHAMMAD QAYYUM, JJ WASI ZAFAR, MEMBER PUNJAB ASSEMBLY-Petitioner Versus SPEAKER OF THE PUNJAB ASSEMBLY-Respondent Writ Petition No. 3972 of 1990, dismissed on 17.6.1990 (i) Adjournment-- —Adjournment of case—Request for—Procedure of—Instead of deputing any one out of two Additional Advocates General and team of Assistant Advocates General, an unprecedented move is made by Advocate General for seeking adjournment through a private practitioner-In absence of Advocate Genefal, it is duty of other Law Officers who are being paid from State Exchequer, to take it as an obligation to appeal: in order to assist court-Held: In view of unprecedented conduct of Advocate General and other Law Officers and there being no justification for adjourning petition, it is decided to proceed with and not to adjourn petition. [Pp.509&510]A (ii) Constitution of Pakistan , 1973-- —Arts. 69 & 127—Asscmbly— Proceedings of—Whether can be scrutinized by superior courts—Question of—Superior courts have refused to scrutinize internal proceedings of Assembly so that independence and sovereignty of Legislature is not infringed and violated or encroached upon in any manner- Irregularities in procedure cannot be noticed by court as parliamentary practice authorises legislature to decide what it will discuss and how it will settle its internal affairs and what code of procedure it intends to adopt—Held: Procedural irregularities in proceedings of Assembly cannot be scrutinized by High Court in exercise of its constitutional jurisdiction-Petition dismissed. [Pp.514&516]F&G (1969) 23 L Ed 2d 491, AIR 1963 SC 589, AIR 1969 SC 903 and "Parliamentary Practice" by Prof. Erskine May, rel. (iii) Constitution of Pakistan , 1973- —-Art. 109 read with Rules of Procedure of the Assembly, Rr 3&4-Provincial Assembly—Meeting of—Summoning of—Whether Governor has no power to change time once fixed for meeting of Assembly—Question of—Power to summon Assembly to meet at such time and place as he thinks fit, admittedly vests in Governor and this power, he can exercise from time to time-If power to fix time is conceded, then power to change time initially fixed, cannot be disputed—Held: Order changing time, passed by Governor, is in no manner, violative of provisions of Art. 109 of Constitution or Rules 3 and 4 of Rules of Procedure of Assembly. [Pp.510&511]B (iv) Constitution of Pakistan , 1973-- —Arts. 120 & 124 read with Rules of Procedure of Assembly, Rr 111 & 118- Provincial Assembly—Meeting of—Whether Annual and Supplementary Budget Statements cannot be presented on one and same day and in same Session-Question of-Held: Merc fact that these two budget statements are subject matter of separate articles of Constitution and rules, does not furnish sufficient basis for holding that these two budget statements cannot be presented on one and same day and in same Session-Held further: Procedure adopted for conducting proceedings of Assembly cannot be scrutinized by High Court in exercise of its constitutional jurisdiction. [Pp.511&512]C,D&E PLD 1966 SC 105, PLD 1976 SC 504, PLD 1970 SC 98 and PLD 1973 SC 49 re. Raja Mahnwod Akhlur, Advocate for Petitioner. Nemo for Respondent. Date of hearing: 17.6.1990. judgment KIialil-ur-Reliinan Khan, J.--Mr.Wasi Zafar Member Provincial Assembly, who is also Whip of the opposition Parliamentary Party in the Punjab Assembly has filed this constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeking declaration to the effect that (a) the summoning of the Punjab Assembly is illegal and violalive of Article 109 of the Constitution;(b)the presentation of Annual Budget and the Supplementary Budget at the same time and in one and the same Session is illegal and (c)thc inability sod ihc failure of I lie Speaker to grant four days for general discussion of Aairaal Budget Statement and two days for Supplementary budget is violative of the Conslkution.lt is further prayed that as the presentation of the budget is violative of Constitution, the holding of the Session of the Punjab Assembly may be slaved till the decision of the petition. 2. Raja Mahmood Akhler , learned counsel for the petitioner argued that the Session of the Provincial Assembly is being held unauthorizcdly and illegally as the Governor after summoning the Assembly has no authority to change the time of the meeting of the Assembly already fixed in the notification summoning the assembly as he by virtue of Article 109 can only prorogue it. The order changing the time of meeting from I l.OOu.m.to 3.00.p.m.passed by the Governor is however admitted but the plea is that such an order cannot legally be passed under Article 109 of the Constitution. Except for citing the aforenoted Article and Rules 3 and 4 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1973, no other principle of law or precedent was referred to or relied upon. 3. The plea that Annual and Supplementary Budget cannot be presented on one and the same day and in the same Session was sought to be supported with argument that both the Budgets have been dealt with in the Constitution and the Rules of Procedure under separate Articles and separate Rules and that presentation of the both on one day and in the same Session would thus be violative of scheme of the Constitution. Learned counsel added that Article 120 and Rule 111 of the Rules deal with Annual Budget Statement, while Article 124 and Rule 118 pertain to Supplementary Budget Statements. 4. Learned counsel for the petitioner argued that this court in exercise of its constitutional jurisdiction can grant the declaration prayed for as the order of the Governor changing the time of the meeting as well as the procedure adopted in presentation of the two Budgetary Statements and in processing these budgets for seeking approval from the Provincial Assembly arc violative of the provisions of the Constitution. He referred to the case of A.K.Fazalul Qadir Chaudhiy v. Shah Nawaz and oi/tcn.(PLD 1966 S.C.105) to contend that the questions of violation of the Constitution and the interpretation of the provisions of the constitution squarely fall within the domain of this Court and as such the petition is maintainable. 5. At this stage it may be noted that Mr. Abdul Majid Sheikh, Advocate during the arguments intervened to state tfial the learned Advocate General phoned him last night from Rawalpindi to seek adjournment of the case, as the learned Advocate General is busy before the Supreme Court at Rawalpindi. The request was opposed by the learned counsel for the petitioner saying that the adjournment is being sought to frustrate the petition as well as the prayer for interim relief prayed for as to staying the session of the Punjab Assembly . It was added that as the Assembly is continuing its Session, the petition will be endered infructuous if the request for adjournment is allowed.The first thing to be noted in this respect is that the learned Advocate General has made unprecedented move y seeking adjournment through a private practitioner instead of deputing any one out of the two Additional Advocate Generals and the team of the Assistant Advocate Generals, the Law Officers appointed by the Provincial Government. The Additional Advocate General and the-other Law Officers are appointed by the (jovernment to represent the Government and the other Organs of the Province and if the Advocate General is not available, it is the duly of the other Law Officers who are being paid from the State Exchequer, to take it as an obligation to appear in order to assist the Court and to represent the Provincial Government and its Organs.Learned Advocate General had the notice of the present petition as he remained present on the last date of hearing. In view of above unprecedented conduct of the learned Advocate General, arid other Law Officers and the fact that no justification was made out for adjourning the pelition.we decided lo proceed wilh and nol lo adjourn the petition and so we allowed learned counsel for the pelitioner to continue with his arguments. 6. The factual background of the controversy raised in the petition is that the Governor of the Punjab vide order dated 30.5.1990, notified on 2.6.1990, summoned the Provincial Assembly of Punjab lo meet on Saturday the 9th June, 1990 at ll.OO.a.m. in the Assembly Chambers,Lahore.He appointed the same day for presentation of Supplementary Budget for the year 1989-90 and Annual Budget for the year 1990-91. He'through another Notification dated 6.6.1990, changed the time of meeting of Assembly from 11.00.a.m. to 3.00 p.m The Secretary, Provincial Assembly, vide notification dated 3.6.1990 issued the schedule of business for the Budget Session 1990. According to this schedule the business fixed for 9.6.1990 is; (a) presentation of supplementary budget for Ihe year 1989-90; (b) presentation of Annual Budget for the year 1990-91; (c) introduction of the Punjab Finance Bill, if any. Two days thereafter i.e. 10.6.1990 and 11.6.1990 have been declared off days, meaning thereby that the Assembly would stand adjourned to meet on 12.6 1990. Other two days i.e. 12.6.1WO and 13.6.1990 have been allocated for general discussion on supplementary budget and the voting on the supplementary demands is scheduled to be held on 14.6.1990. The next day i.e. ihe Friday 15.6.1990 is again an off day and according lo ihe schedule, five days slarling from U).6.1990 to 20.6.1990 have been reserved for general discussion on Annual Budget for the year 1990-91. The 21 si June 1990 is fixed for private members day in lieu of 19.6.1990. The next day i.e. 22.6.1990 is again an off day as per schedule and next three days i.e. 23.6.1990 lo 25.6.1990 have been reserved for voting on demands for grants for 1990-91. The Tuesday, 26th June 1990 is the private members day and 27.6.1990, the Wednesday,. is reserved for consideration of various expenditures for the year 1989-90 and 1990-91, passage of Punjab Finance Bill if any and for the official business. Thereafter Session of the Assembly will continue till 30.6.1990 for discharge of official business and private members day in lieu of Friday 19.6.1990, the off day. 7. The stage is now set for dealing with each of the submissions of the learned counsel for the petilioner. The plea lhat the Governor after having summoned the meeting can only prorogue it and has no power to change the time once fixed for the meeting of the Assembly may first be taken. In this connection reference was made to Article 109 of ihe Constitution and Rules 3 and 4 of the Rules of Procedure of the Assembly. Article 109 of ihe Constitution provides that the Governor may from time to time summon ihe Provincial Assembly to meet at such time and place as he ihinks fil and prorogue the Provincial Assembly. Rule 3 provides that when the Assembly is summoned under Article 109 of ihe Constitution, the Secretary shall intimate each member the date, time and place of the meeting and shall cause the notification to this effect to be published in the gazette. Rule 4 provides that when the Assembly is prorogued, the Secretary shall cause the notification to this effect to be published in the ga/ctte. The power to summon the Assembly to meet at such time and place as he thinks fit, admittedly vests in the Governor and this power, he can exercise from time to time. Now if the power to fix the time is conceded, then power to change time of the meeting initially fixed cannot be disputed as it does not amount to adjourning the meeting or postponing the meeting. It cannot even be taken as an action violative of the privilege of the members or dignity of the Assembly. We are, therefore, of the considered view that the order changing the lime passed by the Governor is in no manner violative of the provisions of Article 109 of the Constitution or Rules 3 and 4 of the Rules of Procedure of Assembly. 8. The plea that Annual and Supplementary Budget Statements cannot be presented on one and the same day and in the same Session as both these Statements are subject matter of separate articles of the Constitution and Rules of Procedure may be dealt with. It is true that Article 120 and Rule 111 of Rules of Procedure deal with the Annual Budget Statement while Article 124 and Rule 118 of the Rules pertain to Supplementary Budget Statement. But the mere fact that these two budget statements are subject matter of separate articles in the Constitution and the Rules contained in the Rules, does not furnish sufficient basis for holding that these two budget statements cannot be ordered to be presented on one and the same day and in the same Session. It was though argued that presentation of the two statements on the same day is violative of the Scheme of the Constitution but despite repeated questioning no such Scheme, which would allegedly stand violated or infringed, of the Constitution was spelled out by the learned counsel for the petitioner. 9. It will be noted that though both the Budgets were ordered to be presented on the same day yet different days have been allocated for general discussion on both the budgetary statements and for voting on respective demands of the two budgets. It will further be seen that the Rules in this respect have been followed and complied with. -It will be noted that Article 124 deals with the Supplementary Budget and provides that Articles 122 and 123 of the Constitution shall apply to these statements as they apply to Annual Budget Statement. Rule 118 of the Rules of Procedure provides the same procedure as is prescribed for the budget as far as possible except for the situation provided therein. It is further provided that not more than two days shall be allotted for general discussion of the Supplementary Budget. As per the Schedule of business the Assembly is to stand adjourned for two days after presentation of the two budgetary statements and then two days have been allocated for general discussion on the Supplementary Budget. It is, therefore, apparent that the Schedule of business so fixed as regards Supplementary Budget is not violative of either the Constitution or the Rule 118 of the Rules. As regards the Annual Budget Statement Article 120 provides that the Provincial Government shall in respect of every financial year cause to be laid before the Provincial Assembly a statement of estimated receipts and expenditure of the Government for that year and this statement shall show separately the sum required to meet the expenditure charged upon the Provincial Consolidated Fund and the sums required to meet other expenditure proposed to be made from the Provincial Consolidated Fund separately. Then Rule 107 provides lhat the budget shall be presented to the Assembly on such day or days as the (iovernor may appoint. Rule 11.0 provides that t.he budget shall be dealt with by the Assembly in the stages and that for different stages of the budget Speaker shall allol days in accordance with the requirements of the Constitution bul at least two days shall elapse between the day the budget is presented and the firsl day allotted by the Speaker lor the general discussion on the budget and that not less than lour days shall be allotted by the Speaker for the general discussion of the budget. A perusal of the Schedule of business shows that ihc annual budget presented on r M>.199() is to come up for general discussion on 16.6.1990 and this general discussion shall continue for five days i.e. 16.6.1990 to 20.6,1990. It will, therefore, be seen lhat almost six days elapse between the .day the budget is presented and the first day allotted for the general discussion of the budget. No doubt one day only elapses between the day fixed for voting on the Supplementary demands for grants for the year 1989-90 and the commencement of the general discussion on the annual budget bul that is not violative of either the provisions of Article 120 or Rule 111. The presentation of the two budgets on one day and the consideration of the annual budget after voting on the supplementary demands cannot be considered. to have the effect of violating any provision of the Constitution or the Rules. The Members of the Assembly instead of two days had six days to consider the provisions of the Annual Budget and the fact that in between they have to consider the other matters, may be the supplementary budget, would not render the Schedule of business void or illegal. There is no possibility of any confusion also as separate days have been allocated for general discussion of both the budgets as well as on voting on the demands for grants of, the iwo budgels. We arc, therefore, unable to a hold that any undisclosed Scheme of the budget would stand violated if both the budgetary statements, annual and supplementary, are allowed to be presented on one and the same day and in the same Session. 10. Moreover ihc procedure adopted for conducting the proceedings of the Assembly cannot be scrutinized by this Court in exercise of its constitutional jurisdiction. In the case of A.K. Fazlur Qadeer Chaudhiy supra relied upon by the learned counsel for the petitioner it was pointed out that the question raised therein related more to the constitution of the Legislative Assembly itself. The point raised was "Whether on a true interpretation of the provision of the constitution a silting member's seat has become vacant or not and that "no matter relating to the regulation of procedure, the conduct of business or the maintenance of order in the Assembly has been brought under review." Again in the case of Mirza Tahir Beg v. Kausar All (PLD 1976 S.C. 504) the observations made by the Supreme Court in the case of Ahmad Saeed Kinnani (PLD 1958 S.C. 397) were quoted with approval:- "But this Court itself did not attempt to lay down in what particular circumstances proceedings within an Assembly could possibly fall within the jurisdiction of the Courts, except to point out that matters which fell squarely within the definition of internal proceedings of the House would not be subject to scrutiny by the Courts. It was said that whatever can be "fairly described as internal proceedings relating to the proper business of the House would be wholly outside the corrective jurisdiction of the High Court." 11. The Supreme Court in the case of Fanand All V. Province of West Pakistan (PLD 1970 S.C. 98) observed that:- "While it is true that all that fairly concerned the internal proceedings of the house relating to its proper business is immune from challenge in Courts." It was further observed that it is difficult to define as to what constitute internal proceedings but this much is clear that they do not extend to any thing and every thing done within the House." ........................................................................................................ Thus as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen, J., in Bradlaugh v. Gossclt at p.283). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done "forms part of a proceedings of the House in its technical sense, i.e. the formal transaction of business with the Speaker in the Chair or in a properly constituted committee". It would be neither possible nor desirable to attempt any exhaustive classification of the matter that may be comprised within the term "internal proceedings" but it will be sufficient for my purpose to indicate that whatever is not related to any "formal transaction of business" in the House cannot be said to be a part of its 'internal proceedings." 12. The Supreme Court of Pakistan thus has consistently held that the High Court's constitutional jurisdiction is invokable to correct any error of law or transgression of jurisdiction by any person or authority in the circumstances where interpretation of the provisions of the constitution is involved and the question for determination relates to the Constitution of the Legislature so long as the order tobe passed is not repugnant to any other provisions of the Constitution. It was observed in the case of A.K.Fazalul Quader Chaudhry (supra) that; "The constitution contains a scheme for the distribution of powers between various organs and authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all other authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority. Legal issues of the character raised in this case could only be resolved ia case of doubt or dispute, by the superior Courts exercising judicial review functions, assigned to them by the fundamental law of the land, viz, the Constitution which must override all other subconstitutional laws. The Judges of the High Court and of this Court are under a solemn oath to "preserve protect and defend the Constitution" and in the performance of this onerous duty they may be constrained to pass upon the actions of other authorities of the State within the limits set down in the Constitution, not because they arrogate to themselves any claim of infallibility but because the Constitution itself charges them with this necessary function, in the interest of collective security and stability. In this process, extreme and anxious care is invariably taken by the Judges to avoid encroachment on the constitutional preserves of other functionaries of the State and they are guided by the fullest and keenest sense of responsibility while adjudicating on such a matter." 13. I may add that the judiciary or the judicial department though independent but is an equal co-ordinate branch of the Government and is charged with the duty and power to interpret, construe and apply the constitution and law but in exercise of this power, the judiciary claims no supremacy over other Organs of the Government e.g. the legislature but acts only as an administrator of the public will. See Tlie State v. Zia-ur-Rahman and others (PLD 1973 S.C. 49). The judiciary, as such, while exercising the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. In this respect effect of Article 127 read with Article 69 of the Constitution is to be noticed. Article 69 reads as unden- "69. Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament) —(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers. (3) In this Article Majlis-e-Shoora (Parliament) has the same m'eaning as in Article 66." It is because of the presence of these Articles in the Constitution that the superior Courts have refused to scrutinise the internal proceedings and procedure of the Assembly so that the independence and sovereignty of the Legislature in that respect is not infringed and violated or encroached upon in any manner. The Chief Justice Warren of the Supreme Court of United States in the case of Powell v. McConnack, (1969) 23 L Ed 2d 491 observed; "In deciding generally whether a claim is justifiable,, a court must determine whether "the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded". Baker v. Can (1962) 369 US 186 at p.198: L Ed 2d 663 at p.674'. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined, he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded." 14. The plea that the case presented a political question and that the judicial resolution of Powell's claim would produce a potentially embarrassing confrontation between co-ordinate branches of the Federal Government, was answered by the Chief Justice Warren in the following words "But as our interpretation of Art'.l, Cl.(5) discloses a determination of petitioner Powell's right to sit, would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded (?) courts to interpret the law, and does not involve a lack of the respect due to a coordinate Branch of Government, nor does it involve an "initial policy determination of a kind clearly for non-judicial discretion Banker v. Can (1962) 369 US 186 at 217 :7 Led 2D 663 at p696. Our system of Government requires that Federal Courts on occasion interpret the Constitution in a manner at variance with the construction given (?) the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the court's avoiding their constitutional responsibility." The decision in the case of Powell proceeds on the same line as was taken by our Supreme Court in the cases ofFazalul Quadar Chaudhiy and TahirBaig (supra). 15. On the question of internal proceedings, the cases decided in the Indian jurisdiction may be noticed. In Mangalore Ganesh Beedi Works v. State of Mysore (AIR 1963 S.C. 589), it was held; "Even assuming that it is a taxing measure its validity cannot be challenged on the ground that it offends Arts. 197 to 199 and the procedure laid down in Art.202 of the Constitution. Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground .of any alleged irregularity of procedure ". In Stale of Punjab v. Salya Pal Dang, AIR 1969 S.C. 903, the provision of Art. 199(4) was held to be directory by the Court. That was a case where the Deputy Speaker certified the Bill instead of the Speaker. The Court, after referring to the facts of that case, was of the view that the Speaker in his then mood might have declined to certify the act. In those circumstances, non-compliance with the provisions of Art.199(4) was held to be directory and not imperative. Proceeding further the Supreme Court said that even it is an irregularity, it is saved by Art.212(l)." 16. It may be pointed out that the Articles mentioned in these judgments also talk of annual budget statement and the procedure for money bills and the provisions thereof were held to be directory and not imperative in nature. These irregularities in procedure, in view of- the provisions contained in Articles 69 and 127 cannot be noticed by the Court as the parliamentary practice authorizes Legislature to decide what it will discuss and how it will settle its internal affairs nd what code of procedure it intends to adopt. It follows that the Assembly may even depart (?) it is so compulsive from the rules of procedure laid down by itself, and this it can do at its discretion. Prof. Erskine May says in his "Parliamentary Practice" - 'such a departure will not render its responsibility to be scrutinized by any external authority for not following the rule, which is laid down by itselP. These principles point out the independence of the legislature and the Assemblies. Such plenary powers are contemplated in various Articles of the onstitution including Article 127. These powers and the collective privileges contemplated by the provisions of Constitution which are to be liberally interpreted, lead us to the conclusion that the procedural irregularities if any in the proceedings of the Assembly cannot be scrutinized by this Court in exercise of its constitutional jurisdictien. For the reasons given above, this petition fails and is dismissed in liminc. or the reasons given above, this petition fails and is dismissed in liniine. (MBC) Petition dismissed

PLJ 1990 Lahore 516 PLJ 1990 Lahore 516 Present: tanvir AHMAD Kl IAN, J Mst. ROZI SAMUAL SHAD--Petitioner versus STATE—Respondent Writ Petition No. 8191 of 1989, accepted on 5.3.1990 Criminal Procedure Code, 1898 (V of 1898)-- —S. 382-B-Period spent as undertrial prisoner-Benefit of-Grant of-Nonimplcmcntation of order of court—Redress for—Contention of Jail Authorities that as petitioner's husband was convicted in two cases and period of undertrial prisoner was counted in one case, same could not be counted twice towards conviction in other case—Held: Since detention of petitioner's husband in second case was never suspended and remained in operation from time of his initial arrest, it cannot be said at this stage that this period cannot be counted while computing period of his sentence—Petition accepted. [P.517]A&B Mr. Tariq Pe/vaiz Malik, Advocate for Petitioner. Mr. Farooq Bedar, Addl. A.G. and Mr. Abdul Saniad Hashmi, Advocate for Respondent. Date of hearing: 5.3.1990. judgment This constitutional petition has been filed seeking direction that respondent No.l/Superintenderit Jail be asked to compute the period of sentence after allowing the benefit of Section 382-B Cr.P.C. as awarded by the learned Special Court (Offences in Banks) Lahore to the petitioner's husband Samuel Shad. The brief facts are that the petitioner's husband Samuel Shad was arrested on 17.1.1985 in case FIR No.ll registered at Police-Station FIA, Lahore on 11.3.1980 under Sections 420/469/471/419 PPC alongwith another case registered vide FIR No.57/79 at the same police-station under Sections 420/468/471/109 PPC. It is the case of the petitioner that in case FIR No.57 he was convicted under Section 468 PPC and was sentenced to 7 years R.I. and a fine of Rs.2 lacs or in default to undergo R.I. for 1 1/2 years by the learned Special Court (Offences in Banks) Lahore vide its judgment dated 14.6.1989. The Court also awarded the benefit of Section 382-B Cr.P.C. to the accused. Subsequently the Court vide its order dated 25.11.1989 convicted the accused under Section 419 PPC in case FIR No.11/80 and sentenced him to two years R.I. and a fine of Rs.2000/- or in default thereof to further undergo 6. months R.I. He was also convicted under Section 471/109 PPC and was sentenced to two years R.I. Both the sentences wcru ordered to run concurrently. He was also given the benefit of Section 382-B Cr.P.C Learned counsel for the petitioner has made a grievance that inspite of the specific order by the learned Judge Special Court (Offences in Banks) Lahore, respondent No.l is denying the benefit of Section 382-B Cr.P.C. to petitioner's husband Samuel Shad. Respondent No.I/Superintendent Jail, in his comments has admitted the aforesaid position. However, it has been argued that since Samuel Shad was given the benefit of Section 382-B Cr.P.C. in case registered vide FIR No.57/79 decided on 14.6.1989, the same period cannot be counted twice in calculating the period of his detention in subsequent case registered vide FIR No.11/80 decided on 25.11.1989. It is respondent's case that after computing the period of his detention Samuel Shad was released on 10.9.1989 and was detained as an under trial prisoner in case registered vide FIR No.11/80 in which he was initially arrested on 17.1.1985. On this basis it is argued that convict Samuel Shad now would only be entitled to the period spent by him as under trial prisoner after his release on 10.9.1989. The main argument advanced on behalf of respondent is that since his earlier period spent as under trial prisoner has already been counted from his initial arrest on 17.1.1985 till his conviction in case registered vide FIR No.57/79 decided on 13.6.1989, the same benefit cannot be counted again in case FIR No.11/80. I have considered the contentions of both the parties. Section 382-B Cr.P.C. provides as under:- "Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence." It is not denied that convict Samuel Shad was arrested in FIR No.11/80 longwith other case on 17.1.1985 and the learned counsel for the petitioner in support of the same has also appended remand order granted by Special Court (Offences in Banks) Lahore to substantiate this stance. This factum has also not been controverted by learned Law Officer. The law has only provided that the period spent by the accused in custody-respecting the offence would be taken into consideration. Since the detention of Samuel Shad in case registered vide FIR No.11/80 was never suspended and remained in operation from the time of his initial arrest on 17.1.1985, it cannot be said at this stage that this period cannot be counted while computing the period of his sentence. The learned Judge Special Court (Offences in Banks) Lahore has given him the benefit of Section 382-B Cr.P.C. after conscious application of mind. Respondent No.I/Superintendent Jail is nobody to deny him that benefit. The refusal on his part to implement the judgment of the Special Court (Offences in Banks) Lahore in its letter and spirit is without lawful authority. Accordingly I direct respondent No.I/Superintendent Jail to grant the benefit of Section 382-B Cr.P.C to convict Samuel Shad in case registered vide FIR No.11/80 as awarded by the learned Judge Special Court (Offences in Banks) Lahore vide its judgment dated 25.11.1989. In peculiar facts of this case the parties are left to bear their own costs. (MBC) Petition accepted.

PLJ 1990 Lahore 518 PLJ 1990 Lahore 518 Present: MIAN NAZIR AKHTAR, J MARDAN ALI t>(c.,-Petitioners versus RAB NAWAZ ^..—Respondents Civil Revision No. 962-D of 1990, dismissed on 14.5.1990. Civil Procedure Code, 1908 (V of 1908)-- —O. VII R.l-Plaint-No relief claimed in-Effect of--Only point urged by counsel for petitioners is that no relief was at all claimed in plaint-Precisely, point is that prayer at end of plaint is missing, hence no relief could be granted-This point is conspicuously absent from grounds of revision petition as well as in grounds of appeal before lower appellate court—Held: He cannot be allowed to take a point not specifically taken in revision petition-Held further: Even otherwise there is no substance in argument because prayer is decipherable from reading of plaint as a whole—Petition dismissed. [Pp.518&519]A&B AIR 1931 Nagpur 198,1981 CLC 462 and PLD 1986 SC 35 rel, Mr. Zahid Hussain KJwn, Advocate for Petitioners. Date of hearing: 14.5.1990. judgment The brief facts leading to the institution of the present revision petition are that Rab Nawaz deceased, now represented by Sarfraz etc., his legal representatives, instituted a suit for declaration to the effect that he was the owner in possession of 24 kanals 17 1/2 marlas of land situated in the revenue estate of Golewali khata No.159/157 khatooni No.443, 445 and that the defendants/petitioners were debarred to redeem the property with the consequential relief restraining the defendants/petitioners permanently from posing themselves as owners of the disputed property. It was further prayed that the Revenue Department be directed not to make alteration in the revenue record in favour of the petitioners. A similar declaration was also prayed for in the same suit in respect of 12 kanals of land situated in the same revenue estated bearing khata No.159/157, khatooni No.433,445. The trial Court decreed the suit vide the judgment and decree dated 3.11.1987. The petitioners' appeal was dismissed by the learned Additional District Judge, Khushab, vide the judgment and decree dated 26.2.1990. 2. The only point urged by the learned counsel for the petitioners is that in the plaint, no relief was claimed at all. Precisely, the point is that the prayer at the end of the plaint is missing. Hence, according to the learned counsel, no relief could be granted to the respondents in view of the provisions of Order VII Rule 1 (g) of the C.P.C. The point raised by the learned counsel is conspicuously absent from the grounds of revision petition. He cannot be allowed to urge a point not specifically taken in the revision petition. In the grounds of appeal filed by the present petitioners before the learned District Judge, the above-referred point was also not taken. Even otherwise there is no substance in the argument because z the prayer made is decipherable from the reading of the plaint as a whole. Apart from the title of the suit given in the beginning, reading of paras 12,13 and 14 clearly shows the relief claimed by the respondents. It is settled law that in order to determine the relief, the plaint must be looked into as a whole. In this connection, reference may be made to the judgment in the case of Raoji v. Chaturbhuj (AIR 1931 Nagpur 198) in which it was held that the relief claimed in the plaint is to be gathered from the allegations made in the plaint as a whole and not from the isolated averments occurring therein. A similar view was expressed in the cases of Mst Sal/na Abbasi and another versus Ahmed Suleman and 2 others (1981 CLC 462) and Samar Gul versus Central Government and others (PLD 1986 S C 35). In Mst. Salma Abbasi's case, it was held with reference to the provisions of Order VII Rule 1 of the C.P.C. that relief was not to be denied merely on the ground that the suit had been wrongly framed. It was further held that a relief, though not specifically prayed for in the plaint, may be granted if it was not inconsistent with the case of the party. After referring to a number of reported cases, the following conclusion was drawn:- "From the above discussed cases, it is evident that a Court is competent to grant relief though not specifically prayed for,, or it may grant relief on a ground other than relied upon in the plaint provided the same can be made out from the averments in the pleadings and the evidence on the record and provided it is not inconsistent with the plaintiffs pleading and that there is no clement of surprise to his adversary." In Samar Gul's case, while interpreting the provisions of Order VII Rule 1 of the C.P.C., it was held that the Court was empowered to grant such relief as the justice of the case demanded and for purposes of determining the relief asked for, the whole of the plaint must be looked into so that the substance rather than the form should be examined. Applying the above said principles in the present case, the Courts below rightly granted the relief to the respondents which was decipherable from a reading of the plaint as a whole and was not inconsistent with the pleadings embodied in the plaint. 3. No other point was urged by the learned counsel for the petitioners. 4. For the foregoing reasons, I find no merit in this revision petition which is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 519 PLJ 1990 Lahore 519 Present: MUIIAMMAD ii.yas, J- Afsl. REHANA MASUD-Petilioner versus FARRUKH SAEED SIDDIQUI-Respondent T.A. No.646-C of 1989, accepted on 21.4.1990 (i) Family Courts Act, 1964 (W.P. Act XXXV of 1964)-- —S. 25-A read with Guardian and Wards Act, 1925. Section 25—Custody of minor children—Application for—Transfer of—Prayer lor—In view of nature of suit for maintenance and application for custody of minor children, common questions of law and facts are likely to arise therein—Conflicting findings can be avoided if both cases are heard and decided by one and same court—Held: Since petitioner is female and she apprehends trouble at hands of respondent if she goes to Rawalpindi, she deserves to be accommodated in preference to respondent. [Pp.520&521]A (ii) Family Courts Act, 1964 (W.P. Act XXXV of 1964)-- —S. 25-A read with Guardian and Wards Act, 1925, Section 25-Custody of minor children—Application for—Transfer of—Prayer for—Whether transfer can be refused due to objection that petitioner is presently living abroad— Question of—Four cases between parties are being heard at Lahore—Held: If those cases are being tried in absence of petitioner from country, her absence can hardly constitute a valid ground for not transferring respondent's application-Petition accepted. [P.521JB&C Mr. Muhammad Mazlwr Hassan, Advocate for Petitioner. Ch. Nazir Muhammad, Advocate for Respondent. Dale of hearing: 21.4.1990. judgment Msl. Rehana Masud is wife of the respondent, Farrukh Saeed Siddiqui. They have three children. Differences have, however, arisen between the parties which have resulted in litigation between them. The respondent has made an application, under Section 25 of the Guardian and Wards Act, 1925, against the petitioner, for custody of the minor children who arc living with the petitioner. That application is pending before Ch.Habib-ur-Rchman, Guardian Judge, Rawalpindi. On the other hand, the petitioner has filed three suits 'namely' a suit for dissolution of marriage, a suit for recovery of dower and a suit for recovery of maintenance for herself and for her children, which are being heard by the Senior Civil Judge/Judge, Family Court, Lahore. Before making the said application, the respondent brought a suit for restitution of conjugal rights against the petitioner, at Rawalpindi, which was transferred by this Court from Rawalpindi to the said Family Court of Lahore, vide judgment dated the 30th May, 1989, delivered in Transfer Application No.213-C of 1989. Now, the petitioner has prayed that the respondent's said application may also be transferred to the Court of Guardian Judge, Lahore. 2. In view of the nature of the suit for maintenance and the application for custody of the minor children, common questions of law and fact are likely to arise therein. Conflicting findings on such questions can be avoided if both the cases are heard and decided by one and the same Court. Further, if the two cases arc allowed to be heard by the Courts now sei/ed of them, the petitioner will have to go to Rawalpindi to defend the application filed by the respondent and the latter will have to visit Lahore to resist the suits instituted by the former. It is, therefore, my desire that one of the parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the case (s) against her/him. Which of the two parties should be helped in this regard is the question which now falls for consideration. Since the petitioner is a female but the respondent is a male and she also apprehends trouble at the hands of the respondent in the event of her going to Rawalpindi to resist the application made against her, I feel that she deserves to be accommodated in preference to the respondent. 3. The main objection by learned counsel for the respondent to the transfer of the respondent's case from Rawalpindi to Lahore is that the petitioner is no longer living in Pakistan . According to him she is presently residing in Libya . Learned counsel for the petitioner is not aware of her having gone to Libya but submits that even if she is away to Libya this is no ground for not acceding to her request for transfer of the respondent's case. The argument proceeds that if she is away she will appear in the cases whenever necessary. As indicated above, four cases between the parties are being heard at Lahore. If they are being tried in the absence of the petitioner from the country, her absence can hardly constitute a valid ground for not transferring the respondent's application from Rawalpindi to Lahore. In this view of the matter, plea raised by learned counsel for the respondent has no merit. 4. For the reasons given above, I accept this petition and transfer the respondent's application from the Court of Ch.Habib-ur-Rehman, Guardian Judge, Rawalpindi to the Court of Sh. Ahmad Farooq, Guardian Judge, Lahore. 5. It will also be conducive to the convenience of the parties if all the other cases which are pending at Lahore, including the suit for restitution of conjugal rights already transferred by me from Rawalpindi to Lahore, are also heard by Sh. Ahmad Farooq. The said other cases between the parties which are now with the Senior Civil Judge (Judge Family Court), Lahore, are, therefore, also transferred by me, suo inolu to Sh. Ahmad Farooq. The cases so transferred to him suo motu will be heard by him as Judge of the Family Court. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Lahore 521 PLJ 1990 Lahore 521 Present: KlIALID PAUL KlIAWAJA, J Rana ALLAH DITTA-Petitioner versus MUHAMMAD SHAFI etc. -Respondents Civil Revision No. 621-D of 1990, dismissed on 15.4.1990. (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XLI R. 1-Appeal filed against judgment-Decree not challenged- Certified copy of judgment not filed-Effect of-Rule 1(1) pf Order XLI CPC also lays down that a proper appeal must be accompanied by a copy of judgment on which decree is founded-Appellate Court, however, can dispense with certified copy of judgment—In this case, only attested copy of judgment was filed but neither appellate court dispensed with certified copy nor petitioner had requested for dispensation—Held: Petitioner had committed another violation of rule and his appeal was liable to be dismissed on this account also. [Pp.525&526]C (ii) Civil Procedure Code, 1908 (V of 1908)-- —O. XLI R. 1—Appeal filed against judgment—Decree not challenged— Whether copy of decree could be dispensed with—Question of—It is obligatory for an appellant .to append with memorandum of appeal two documents namely copy of decree and a copy of judgment whereupon decree is founded— Held: Omission to file copy of decree is fatal and renders appeal unentertainable and not maintainable. [P.525JB AIR 1927 Lahore 49,1981 CLC 1479 (Lahore), 1986 MLD 2717 and PLD 1986 Quelta 11 rcl. (iii) Civil Procedure Code, 1908 (V of 1908)-- —-O. XLI R. 1-Appeal filed against judgment-Decree not challenged- Whether it was a bonafide mistake-Question of-A bare reading of memorandum of appeal would show that petitioner was fully conscious of fact that a decree had been passed against him—Despite that nowhere in memorandum, he brought decree under challenge—Not a word uttered to question validity of decree—Appeal was prepared in a perfunctory and haphazard manner which clearly amounted to negligence—Held: Omission (to challenge decree) was not a bonafide mistake and as appeal was not directed against decree, it was rightly dismissed by lower appellate court. [P.524JA (iv) Limitation Act, 1908 (IX of 1908)- —S. 5-Appeal filed against judgment-Decree not challenged-Certified copy of judgment not filed-Whelher delay could be condoned and petitioner was entitled to grant of time to enable him to file requisite copies of judgment and decree—Question of—In appropriate cases, courts have powers to condone delay if satisfied that appellant had sufficient cause for not filing requisite copies within prescribed time of limitation—Record reveals that there was no explanation why certified copy of decree was not appended with memorandum of appeal-No application for condonation of delay is on record-Held: It is not a fit case for condonation of delay and petitioner is not entitled to grant of time for filing requisite copies—Held further: Omission to file copy of decree under Order XLI Rule 1 is not breach of mere technicality-Petition dismissed. [Pp.525,526&527]D,E&F 1988 SCMR 892 distinguished. PLD 1983 Peshawar 215 not followed. Ch. Muhammad Saeed Waraich, Advocate for Petitioner. Mr. Javed Iqbal, Advocate for Respondent No. 1. Nemo for Respondent No. 2 Date of hearing: 15.4.1990. judgment This revision petition "is directed against the judgment and decree dated 27.2.1990 whereby Ch. Muhammad Nawas, Additional District Judge, Lahore, dismissed the petitioner's appeal against the order dated 14.2.1989 by which Mr. Zawar Ahmad, Civil Judge, Lahore had decreed the suit of respondent No.l against him and respondent No.2. 2. Briefly, the relevant facts which gave rise to the present revision petition are that on 18.10.1981 Muhammad Shafi respondent No.l instituted a suit against Allah Ditta petitioner and Muhammad Siddiquc respondent No.2 for the possession of quarter No.l25-8/B-l situate in Township Scheme, Lahore on the basis of title. The suit was contested and on the pleadings of the parties as many as nine issues were framed. The parties led their evidence on the said issues and the learned trial Judge after considering the said evidence decreed the suit against the petitioner and respondent No.2 vide judgment and decree dated 14.2.1.989. Feeling aggrieved the petitioner instituted an appeal against "the order dated 14.2.1989". The said appeal was admitted to regular hearing and notice was issued to the respondents. On 27.2.1990 the learned lower appellate court dismissed the appeal by means of following judgment: "This is an appeal against the order dated 14.2.1989, passed by Mr. Zawar Ahmad, Civil Judge, Lahore, whereby the Ld. Civil Judge, decreed the suit filed by the respondent No.l against appellant and respondent No.2. Under Section 96 of CPC appellant was required to file appeal against the decree dated 14.2.1989 but instead of that appeal has been preferred against the order. Certified copy of judgment and decree has also not been appended with the memorandum of appeal, decree has also not been challenged, therefore, instant appeal is dismissed as being not maintainable. There is no order as to costs.' 3. Feelrng dis-satisficd, the petitioner has called in question the validity of the impugned judgments and decrees of the courts below, through the present revision petition. 4. I have heard the parties' counsel and have also gone through the record. 5. Perusal of the record of the lower appellate court reveals and it is admitted by the petitioner that his appeal before the learned Additional District Judge was directed against the "order dated 14.2.1989" and that only an unattested copy of the impugned judgment of the trial court was appended with the said appeal. No copy, certified or uncertified, of the impugned decree was ever filed. It is also established from the record and not denied by the petitioner that he had applied for the certified copies of the impugned judgment and decree of the trial court on 21.2.1989, that the copies were prepared and ready for delivery on 26.2.1989, but he had actually obtained the said copies on 14.3.1990 i.e after the dismissal of his appeal. (The said copies were placed on the record of the present revision petition during arguments). It is also an admitted fact that the petitioner ad not moved any application before the learned Acldl. District Judge for the dispensation of the said copies or the grant of time to file such copies. Keeping in view this back ground of the case, I now proceed to examine the contentions raised by the learned counsel for the petitioner to urge that the impugned judgment/decision of the learned Addl. District Judge was not sustainable in law. 6. Learned counsel has assailed the judgment of the learned lower appellate court by contending that instead of throwing out the petitioner's appeal on the basis of a mere technicality the learned Addl. District Judge should have decided the same on merits by dispensing with the copy of the decree or should have granted time to enable him to file the said certified copy, for it is now an established principle of law that, so far as possible, technicalities should not be allowed to defeat substantial justice. Learned counsel further contended that in fact the appeal was directed against the judgment and decree dated 14.2.1989 but due to inadvertence the word decree had been omitted from the memorandum of appeal and as the omission was the result of a 'bonafide typographical mistake' the petitioner should have been allowed to amend the said memorandum. He urged that the appeal be remanded to the learned lower appellate court for decision on merits. 7. Learned counsel for respondent No.l, who was also heard at the pre­ admission stage, vehemently opposed the admission of the revision to regular hearing and controverted the pleas raised by the opposit counsel. 8. As already pointed out the petitioner's appeal before the learned Add. District Judge was directed against the order dated 14.2.1989 only, A simple question which requires determination is as to whether the omission on the part of the petitioner to mention in the memorandum of appeal that the appeal was actually directed against the decree was the result of inadvertence and thus a bonafide mistake or it was a case of carelessness and negligence bordering on malafidcs. A bare reading of the memorandum of appeal would show that the petitioner was fully conscious of the fact that a decree had been passed against him. Despite that nowhere in the said memorandum he brought the said decree under challenge. Not a word was uttered to question the validity of the said decree. On the contrary, the grounds enumerated in the appeal clearly show that the vires of the 'order dated 14.2.1989' were being assailed and the petitioner was praying for setting aside the said order and not the decree. That is why he had appended with the appeal an uncertified copy of the order/judgment. The memorandum of appeal was drafted by a considerably senior Advocate who knew or was supposed to know the implications and repercussions of such omission and therefore, it is not difficult to say that appeal was prepared in a perfunctory and haphazard manner which clearly amounted to negligence. A negligent act has never been and should never be considered to be a bonafide act. Consequently I am constrained to hold that the omission in question is not a bonafide mistake and as the appeal was not directed against the decree passed by the trial court, it was rightly dismissed by the learned lower appellate court as being not maintainable. 9. This brings us to the next question as to whether the learned lower appellate court could dispense with the- copies of the impugned judgment and decree and whether the appeal could be dismissed on the ground of the non-filing of the certified copy of the decree appealed from. Another question which would also require examination is as to whether, in the circumstances of the case, the petitioner was entitled to the grant of time to enable him to file the requisite copy of the decree and whether the delay in filing the requisite copy could be condoned. In this connection. , perusal of Rule 1 of Order XLI CPC would be beneficial, which is reproduced as under: "1. Form of appeal. What to accompany memorandum.— (1) Every appeal .shall be prelerred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses herewith) of the judgment on which it is founded. Contents of memorandum. ........... (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection arguments or narrative; and such grounds shall be numbered consecutively." 10. Sub-rule 1 of rule 1 makes it unambiguously clear that it is obligatory for j an appellant to append with the memorandum of appeal two documents i.e. copy of the decree appealed from and a copy of judgment on which the said decree is founded. It is also very clear from this provision of law that an appellate court has the power to dispense with the copy of judgment but has no such power with regard to the copy of decree. This court is of the consistent view that omission to ile copy of decree is fatal and renders the appeal unentertainable and not maintainable. Reference to a few decisions in this regard would be appropriate. In Noor Din Vs. Secrelaiy of Slate (AIR 1927 Lahore 49) their Lordships of a Division Bench of this Court have laid down that it is within he powers of an ppellate court to dispense with the copy of a judgment but not with a copy of decree. It was further laid down that an appeal filed without a copy of decree was liable to be dismissed. In Muhammad Anwar etc Vs. Mst. Sonta (1981 C.L.C 1479 (Lahore)) it was held that the hearing of an appeal in which memorandum of appeal was not accompanied by a copy of decree, was without any legal sanction. In another decision by this court in Muhammad Ainin Vs. Muhammad Abdullah (1986 M.L.D. 2717) it was held that omission to file copy of decree longwilh emorandum of appeal was fatal, irrespective of the fact that the appeal had been admitted to regular hearing. This view was reiterated in Abdul Satiar and others Vs. Khuda-i-Dad (PLD 1986 Quetla 11). So, in view of these authorities it is held that the petitioner was bound under the law to append with the memorandum of his appeal copies of the impugned judgment and decree and his failure to file the copy of the decree rendered his appeal to be incompetent and unentertainable. It is further held that the appellate court had no power to dispense with the copy of decree. The learned lower appellate court, in the circumstances of the case, therefore, had the power to dismiss the appeal. 11. Rule 1 (1) of Order XLI CPC also lays down that a proper appeal must be accompanied by a copy of the judgment on which the decree appealed form is founded. The appellate court, however, is empowered to dispense with the said copy. Non-filing of the copy of judgment, unless dispensed with by the court, would also be fatal and render the appeal incompetent. In the present case the petitioner had appended with the memorandum of appeal only an unaltested copy ol the impugned judgment. Admittedly, the appellate court had not dispensed with he copy of judgment nor did the petitioner request for such dispensation. Such a copy is no copy in the eye of law. The word copy used in the rule means a certified copy. As such the petitioner had committed another violation of the rule and therefore, his appeal was liable to be dismissed on this account also. 12. The next question which requires adjudication is as to whether, in the circumstances of the case, it was a fit case for condonation of delay and the petitioner was entitled to the grant of tim& to enable him to file the requisite copies of judgment and decree in question. In appropriate cases courts have the powers to condone delay under Section 5 of the Limitation Act, if the appellant succeeds in satisfying the court that he had sufficient cause for not filing the requisite copies within the prescribed time of limitation. Perusal of the record reveals that the petitioner had not explained as to why the certified copy of the decree could not be appended with the memorandum of appeal. During arguments however, the learned counsel for the petitioner maintained that the requisite copy could not be placed on record because of inadvertence and urged that delay should be condoned and the petitioner be afforded an opportunity to file on record the certified copies of the judgment and decree in question. In support of his contention he relied upon Baseer Ahmad Siddiqui Vs. Shama Afroz (1988 S.C.M.R 892) and Haji Jahanzeb Vs. KJialid KJian and another (PLD 1983 Peshawar 215). In both these cases delay in filing the requisite copies was condoned but the facts of both these cases are totally different from the facts of the present case and therefore, in my humble opinion, they are not of much help to the petitioner. In the former case Mst. Shama Afroz respondent instituted a suit for specific performance of a contract against Baseer Ahmad Siddiqui petitioner which was dismissed by the trial court on 22.12.1977. She lodged an appeal before the learned District Judge on 2.1.1978 against the judgment and decree of the trial court without filing the copy of the decree, as it was not drawn up at that time. The appellate court summoned the record, admitted the appeal to regular hearing and issued notice to the petitioner. On 23.5.1978, after putting in appearance, the petitioner objected to the non-filing of the copy of decree and maintained that the appeal had become lime barred. The respondent pointed out that copy could not be supplied to her because the record had been sent to the appellate court. She applied for the copy of the decree in the said (appellate) court, which was supplied to her. She filed the said copy in the appellate court on 23.1.1978 with an application for condonation of delay. The learned Addl. District Judge, who was seized of the appeal, allowed the appeal on merits and without adverting to the question of limitation and without disposing of the applications moved by the parlies. Petitioner's revision before the High Court was also dismissed. Before the Supreme Court objections which the petitioner had raised before the courts below were reiterated but their Lordships of the Supreme Court in the circumstances of the case did not feel that -it was necessary to determine the said questions of law raised by the learned counsel, as their Lordships did not consider it a fit case to determine the said questions. However, it was held lhat the respondenl had a good case for condonation of delay. It would be seen lhat in the cited case the respondent (appellant) had applied for the supply of the ccipy of the decree which could not be supplied to her as the same at lhat lime had not been drawn up by the trial court and thereafter, the record was requisitioned by the appellate court. In the present case thepetitioner had applied for ihc copies of ihe impugned judgment and decree on 21.2.1989 and the same were prepared on 26.2.1989 and were ready for delivery but he did not care to lake delivery of ihe said copies until 14.3.1990. long after ihu dismissal of his appeal. Further, ihe petitioner in the present case had never applied before ihe lower appellale courl for the condonation of delay or for grant of lime to file the requisite copies. The respondent in the cited case had acted in a diligent manner and could not be considered to be guilty of indolence but the same cannot be said about the present petitioner. 13. As regards the Peshawar case in view of the judicial pronouncements of this court, most respectfully I am not inclined to follow it. I also feel that the facts of this case arc not identical with the present case and therefore, the conclusion drawn in the said case could not be applied to the facts of the present case. In the cited case the appellant had made an application for condonation of delay under Section 5 of the Limitation Act which feature is conspicuously 'missing in the present case. Resultan'tly I am of the view that this is not a fit case for condonation of delay and the petitioner is not entitled to the grant of time for filing the requisite copies of the judgment and decree of the trial court. 14. Omission to file copy of the decree under Order XLI Rule 1 CPC is not breach of mere technicality. It is a breach of a mandatory provision of law which is fatal and as consistently held by this court, renders the appeal unentertainable and liable to be dismissed. Learned lower court had rightly dismissed the petitioner's appeal and I have no plausible reason to interfere with the impugned judgment. The revision petition therefore, is dismissed in limine with costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 527 PLJ 1990 Lahore 527 [Buliawnlpur Bench] Present: mian allah nawax, J MASSU and 27 others-Petitioners versus UNITED BANK LIMITED, and another-Respondents Writ Petition No. 153/90/BWP (also 11 other writ petitions) dismissed on 30.5.1990 (i) Constitution of Pakistan , 1973-- —Art. 2-A--Objectives Resolution—Part of Constitution—Whether provisions of Art. 2-A are self-executory and High Court has jurisdiction to test any law/statute on yard-stick of Objectives Resolution—Questions of—Article 2-A is to be rendered effectual by appropriate legislation by parliament with expert opinion of Council of Islamic Ideology, and decision of Federal Shariat Court/Shariat Appellate Bench of Supreme Court—Object and intention behind these provisions is to seek ultimate object of enforcing provisions of Shariat without causing immediate and quick dislocation—Held: Article 2-A is not self-executing provision in Constitution and High Court has no jurisdiction to test any law/statute on yard-stick of Objectives Resolution-Petitions dismissed. ' [P.543]C&D PLD 1987 Karachi 612 and 1989 CLC 2070 = PLJ 1989 Karachi 546 dissented from. (ii) Constitution of Pakistan , 1973-- —-Arts. 203-A, 203-D & 203-H-Provisions of Chapter 3-A-Enactment of- Intention and purpose behind—Determination of—Federal Shariat Court was given adjudicatory jurisdiction while President and Governor were given a mandate to amend law so as to bring such law in conformity with Injunctions of Islam—Held: Intention and purpose behind these provisions (Chapter 3-A) is to bring existing laws in conformity with Injunctions of Islam in an evolutionery manner and not in a radical or revolutionary manner. [P.542JB (iii) Interpretation of Statutes-- —Constitutional instrument—Interpretation of—Principle for—Cardinal principle for interpretation of constitutional instrument is to ascertain intention of makers of Constitution from words used which must receive their natural and ordinary meaning-Where words clearly admit of only one meaning, that meaning is to be assigned to them even if result be harsh or absurd-If two constructions are possible, that construction which is more reasonable or which ensures smooth and harmonious working of Constitution, should be adopted—Held: Constitution is to be read as a whole and every clause and word of it must be given effect—Held further: Court should avoid a construction which renders any provision meaningless or inoperative. PLD 1963 SC 486,,/. [Pp.5> & 541]A Mr. M.A. Farani, Advocate for Petitioner. Mr. Shamsher Iqbal Clmghlai, Advocate for H.B.F. Corporation. Dates of hearing: 6, 7 and 8.5.1990. judgment The common questions calling for consideration in these constitutional petitions bearing Nos.153/90, 1202/89, 291/90, 1493/89, 1209/89, 1075/89, 1015/89, 26/90, 354/90,171/90, 337/90 and 53/90 are:- (/) Whether every statute in Pakistan has not only to satisfy the test that it is in accordance with the provisions in Constitution generally but it has to further fulfil another condition that it is not repugnant to the fundamental principles of Islam as laid down in Holy Quran and Sunnah? (ii) Whether Article 2-A of the Constitution is self-executing provision in the Constitution and Section 79 and 80 of Negotiable Instruments Act (XXVI of 1981), Section 34-A and 34-B of the Code of Civil Procedure, Sub­ section (6) and (8) of Section 24 of the House Building Finance Corporation Act (XVIII of 1952) and Section 8 and 12 of the Banking Companies (Recovery of Loans), Ordinance (XIX of 1979) are ultra vires on account of being in contravention of the basic principle relating to 'Ribah' laid down in Holy Quran and Sunnah? In view of importance of questions involved .in these petitions, they are being disposed of by single judgment. 2. A few uncontested facts necessary for the disposal of these petitions are that the petitioners are borrowers from different financial lending institutions, namely, United Bank Limited; Allied Bank Limited, House Building Finance Corporation and Agricultural Development Bank of Pakistan. These borrowers availed the facility of interest-bearing loans, executed contracts with a condition of repayment of loan with a pre-determined rate of interest; that petitioners have deposited the principal amount and resist the recovery of interest on the sole eround that Article 2-A of the Constitution of Islamic Republic of Pakistan I hereinafter referred to as Constitution) has been made substantive part of the Constitution and so under its impact neither the creditors had right to recover the interest, nor the Court had the authority to decree the payment of interest in view of the unequivocal mandate of prohibition contained in Holy Quran and Sunnah. 3. These petitions were argued by a number of learned counsel. However, the main attack was launched by Mr. M.A. Farani, Advocate. Mr. A.R. Tayyib, Advocate, submitted written arguments with the permission of the Court. On the other hand, the learned counsel appearing on behalf of respondents/financial institutions submitted that the impugned provisions were existing laws and could e only declared as repugnant to injunctions of Islam contained in Holy Quran and Sunnah by Federal Shariat Court. Mr. Farani, the learned counsel for the petitioners raised following points:- (1) It was contended that Article 2-A was made substantive part of the Constitution by the President vide a Presidential Order (XIV of 1985) which became effective from 2.3.1985. It was contended that after the said date, the Objectives Resolution became the substantive part of the Constitution and so became the controlling provision. On the basis of this argument, it was contended that all other provisions of the Constitution were subordinate to Article 2-A. All the existing laws had to be examined on the touch stone of Objectives Resolution. Elaborating this point further, it was contended that the impugned provisions relating to charging of interest were null and void on account of being repugnant to injunctions of Islam contained in Holy Quran and Sunnah prohibiting the transactions amounting to 'Ribah'. It was further submitted that the 'Ribah' i.e. charging of pre-determined rate of profit on principal amount, was expressly forbidden in devine injunctions contained in Holy Quran and Sunnah and so, in view of Article 2-A such existing laws have lost their legal efficacy. Reliance was placed on Habib Bank Limited Vs. Muhammad Hussain and others (PLD 1987 Karachi 612), Muhammad Sarwar and another Vs. Tlie State (PLD 1988 F.S.C. 42), Sardar All Vs. Muhammad Ali (PLD 1988 SC 287=PLJ 1988 SC 224), Pakistan Industrial Credit and Investment Corporation Vs. Habib Enterprises Ltd and another (1989 CLC 2070), Ittefaq Foundry Vs. Federation of Pakistan (PLD 1990 Lahore 121) and Muhammad Salah-ud-Din Vs. Government of Pakistan (PLD 1990 FSC 1). No other point was urged. 4. Before I proceed to examine the respective contentions of the parties, it is appropriate to notice the relevant applicable provisions in Constitution relating to Islamisation. Articles 2, 2-A are in Part I. Article 2-A was made substantive part in Part I by the order of the President bearing No.XIV of 1985. While Article 31 occurs in Part II relating to fundamental rights and principles of policy. 5. The Articles 227, 228, 229 and 230 find place in Part No.IX relating to Islamic provisions, while Article 203-A, 203-B, 203-D, 203-F, 203-G and 203-GG are in Chapter 3-A relating to Federal Shariat Court. This Chapter was added by way of various Presidential Orders starting from Presidential Order No.I of 1980. 6. 2. Islam shall be the State religion of Pakistan. 2-A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly. 31.(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic, concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The State shall endeavour, as respects the Muslims of Pakistan:- (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran. to promote unity and the observance of the Islamic moral standards and (c) to secure the proper organisation of Zakat (ushr) auqaf and mosques. All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. Nothing in this Part shall effect the personal law of non-Muslim citizens or their status as citizens. The President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam. 230(1) The functions of the Islamic Council shall be- (a) to make recommendations to (Majlis-e-Shoora) (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah; (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) to compile in a suitable form, for the guidance of (Majlis-e-Shoora) (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. (2» When, under Article 229, a question is referred by a House, a Provincial Assembly, the President or a Governor to the Islamic Council, the Council shall, within fifteen days thereof, inform the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice. (3) Where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that, in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished. Provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the injunctions of Islam, the House, or, as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made. (4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and (Majlis-e-Shoora) (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report. 203-A The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution. 203-B In this Chapter, unless there is anything repugnant ii the subject or context- (b) 'Court' means the Federal Shariat Court constituted in pursuance of Article 203-C. (c) 'Law' includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or Tribunal, or. until the expiration of (ten) years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure and 203-D(1) The Court may, (either of its own motion or) on the petition of a citizen 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. (1A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in the either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court. (2) If the Court decides that any law or provision of law is repugnant to the injunctions of Islam, it shall set out its decision: (a) the reasons for its holding that opinion, and (b) the extent to which such law or provision is so repugnant, and specify the day on which the decision shall take effect. (Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal). (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam- (a) the President in the case of a law with respect 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 enumerated 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 such law or provision shall, to the 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. 203-F(1) Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court, (provided that an appeal on behalf of the Federation or a Province may be preferred within six months of such decision). The provisions of clauses (2) and (3) of Article 203-D and clauses (4) to (8) of Article 203- E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court. (2-A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court— (a) if the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for a term exceeding fourteen years, or, on revision, has enhanced a sentence as aforesaid; or (b) if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court. (2-B) An appeal to the'Supreme Court from a judgment, decision, order or sentence of the Federal Shariat Court in a case to which the preceding clauses do not apply shall lie only if the Supreme Court grants leave to appeal). ;3) For the purpose of the exercise of the jurisdiction conferred by this Article, tiiere shall be constituted in the Supreme Court a Bench to be called the Sharial Appellate Bench and consisting of— (a) three Muslim Judges of the Supreme Court, and (b) not more than two Uletna to be appointed by the President to attend sittings of the Bench as ad hoc members thereof from amongst the Judges of the Federal Shariat Court or from out of a penal of Uleina to be drawn up by the President in consultation with the Chief Justice. 203-G. Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction oftlie Court. 203-GG. Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of Us jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court). 203-H(3) Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other Court or Tribunal. 6. Now it is appropriate to examine Article 2-A in the context of its historical background. It was 7th March, 1949 when the first Constituent Assembly passed Objectives Resolution. It had nine clauses. The founding fathers who constituted the first Constituent Assembly provided guideline to Constituent Assembly for the purposes of framing the Constitution. 7. It is apparent from reading of Objectives Resolution that it provided directive principles of the State policy. It further provided un-equivocal commitment to the two nations theory rooted in Islam. It declared that the 'sovereignty' belongs to God Almighty; that State shall exercise the delegated sovereignty through chosen representatives. It provided that the State shall in general enable the Muslims to fashion their lives in accordance with teachings of Holy Quran and Hadith. It also made clear that State would be the Federal in nature comprising of autonomous units with such boundaries and powers as may be specified. It also declared that the basic rights like security of person, the security of property, freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession shall be guaranteed. It also provided commitment to establish independent judiciary. In short this Resolution provided the blue print of the State of Pakistan. S. The Objectives Resolution was made substantive part of the Constitution vide Presidential Order No.XIV of 1985 with effect from 2.3.1985. The Objectives Resolution had been the subject matter of examination before the superior judiciary before 2nd March, 1985 and after the said date. It will be relevant to notice the decisions of the superior judiciary dealing with the Objectives Resolution now. 9. The Objectives Resolution came for consideration in Asma Jilani's case (PLD 1972 SC 139). Speaking for the Bench His Lordship Mr. Justice Hamood ur Rehman observed as under.- "In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighlly Allah alone, and the authority exerciseable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on 7th of March, 1949. This Resolution has been described by Mr. Brohi as the 'cornerstone of Pakistan's legal edifice' and recognized even by the learned Attorney General himself' as the bond which binds the nation "must draw its inspiration". This has not been abrogated by one so far, nor has this been departed or deviated from by any regime, military or Civil". 10. Zia-w-Rehman Vs Tlic State (PLD 1986 Lahore 428) is an authority which was decided by the Lahore High Court on 6lh of July, 1972. Examining the constitutional position whether Objectives Resolution is a Supra-constitutional document and the provisions of Constitution offending it can be struck down by he Court, it was held by Mr. Justice A.R. Sheikh that:- "After giving earnest consideration to the arguments on both sides, I find that under the grund norm, as enunciated in Asma Jilani's case, the trust for discharge of sovereign functions has been reposed in the people. They have to exercise their choice in free and fair elections for a Constituent Assembly to frame the Constitution and thus the main purpose of the grund norm is served. For the actual task of framing a Constitution for the country set before the popularly elected representatives of the people, the grund norm is to serve as the external and internal limitation to actual exercise of authority by any sovereign, as postulated by A.V.Dicey. Put differently, a popularly elected Constituent Assembly exercising the delegated sovereignty of Almighty Allah is vested with plenary powers to frame a Constitution to achieve the goal, object and the basic ideology of Pakistan. If, however, the Constituent Assembly fails to fulfil its obligations, the remedy will be the resistance to be offered by the people to accept the Constitution on the political forum in the country and not before the Courts. Constituent Assembly remains supreme not subject to judicial scrutiny as an ordinary Act of the Legislature in the subconstitutional field. Viewed thus the premises for both sets of arguments that some provisions in the interim Constitution offend against the grund norm or the legal Framework Order (an invalid document not legitimized by the Supreme Court).For the same reason the pre-amble and the Principles of Policy have been rightly described by the Attorney General as basic ideology not actionable before the superior Courts". The same case was examined by the Supreme Court in State Vs Zia ur Rehman and others (PLD 1973 SC 49). Speaking for the Court his Lordship Mr. Justice Hamood-ur-Rehman, the then Chief Justice of Pakistan observed as follows:- "I regret to have to point out that this is not correct. All that was said by me in my judgment in that case (page 182) was as follows:- "In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exerciseable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "corner-stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran." It will be observed that this does not say that the Objectives Resolution is the grund norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that How from it. I did not describe the Objectives Resolution as "the cornerstone of Pakistan's legal edifice" but merely pointed out that one of the learned counsel appearing in the case had described it as such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment, "to be a transcendental part of the Constitution" or, as Justice Muhammad Afzal Zullah has said, to be a "Supra Constitutional Instrument which is unalterable and immutable". "There is no mention in these observations either of the Objectives Resolution being the "grund norm" for Pakistan. The "grund norm" referred to by us was something even above the Objectives Resolution which as Sajjad Ahmad Jan J.put it "embodies the spirit and the fundamental norms of the constitutional concept of Pakistan". It was expressed by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the Objectives Resolution did not envisage that it would be document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March, 1949, stands on a higher pedestal than the Constitution itself. The views of the minority of the learned Judges in the High Court, in so far as they have sought to read into the judgments of this Court something which is not there, cannot, therefore, be supported." 11. The same view was reiterated in Niaz Ahmad Klian Vs. Province of Sind (PLD 1977 Karachi 604). 12. Now it is the stage to examine the cases decided by the superior judiciary after the Objectives Resolution was made the part of the Constitution. 13. In Messrs Bank of Oman Lid Vs Messrs East Trading Co. Ltd and others (PLD 1987 Karachi 404), the question considered was whether the provisions of Muslim Family Laws Ordinance were repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah. His Lordship Mr. Justice Tanzil-ur-Rehman after thorough examination of the case law and the various Articles of he Constitution, held that Article 2-A of the Constitution, was over-riding provisions of the Constitution and the Court had the authority to determine the vires of any law on the touch-stone on the basic principles of Islam as laid down in the Holy Quran and Sunnah. 14. This view was reiterated in Habib Bank Ltd Vs. Muhammad Hussain and others (PLD 1987 Karachi 612), Muhammad Bachal Memon Vs Government of Sind through Secretary, Department of Food and others (PLD 1987 Karachi 296) and Irshad H. KJran Vs. Mrs. Paiveen Ajaz (PLD 1987 Karachi 466). 15. The question cropped up for consideration in SardarAli Vs Muhammad Ah (PLD 1988 SC 287 =PLJ 1988 SC 224). In this case the question involved arose out of pre-emption cases and the Supreme Court considered the effect of the judgment of the Federal Shariat Appellate Court in Malik Said Kamal's case (PLD 1986 SC 360 = PLJ 1986 SC 576). In the said case certain provisions of N.W.F.P. and Punjab Pre-emption Act and Martial Law Regulation No.115 regarding the right of pre-emption of tenant were declared repugnant to the injunctions of Islam. The decision was to take effect from 31.7.1986. 16. The contention was raised that the Objectives Resolution was made substantive part of the Constitution and so the basic principles of Islam as enshrined in Holy Quran and Sunnah had been enforced irrespective of any adjudicatory decision by the Federal Shariat Court; that every Court had a right to enforce the principles of Islam in preference to the provisions of existing law. His Lordship Mr. Justice Muhammad Afzal Zullah, speaking for the Court, chose not to answer the question on the premises that no adequate assistance was furnished by the learned counsel appearing on behalf of the parties in order to resolve the anamolies between Article 203 and Article 2-A the of the Constitution. However, the observations of His Lordship contained in para Nos.13, 14, 37 and 48 are worth noticing, for the purpose of answering the question involved in this petition:- 13. "The afore-discussed aspect of the Islamisation of laws through the combined effort of the superior Courts and the legislature finds a pronounced projection in Articles 203-G and 203-GG which lays down that except to the extent provided in Article 203-F (appeal to the Supreme Court and decision thereof by its Shariat Appellate Bench), "no Court or tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court". It is also provided that subject to Article 203-D and Article 203-F any decision of the Court in exercise of its jurisdiction under Chapter 3-A of the Constitution shall be binding on a High Court and on all Courts subordinate to a High Court. As it must have by now been understood "the Court" as defined in Article 203-B(b) read with Article 203-F(2) and (3) would mean the Federal Shariat Court and/or Supreme Court in its Shariat Appellate Bench. The Scheme of Chapter 3-A in general context has also been explained by Shariat Appellate Bench of this Court in the recent case Pakistan Vs Public at large (PLD 1980 SC 240). 14. It is clear from the fore-going analysis and interpretation of the relevant Constitutional provisions that the existing laws were to continue in full operation and effect, notwithstanding the Islamisatjon process. All proceedings including appeals were to be decided and concluded under the existing laws. They were to cease having effect only from the day specified by the Court in that behalf. The rights accrued under those laws by virtue of their continued operation, were not affected. Any other course, as is illustrated by the facts of those cases, would have been unfair'. 37. It has to be noted that no serious attempt has been made by any of the learned counsel to face the difficulty presented by the afore-quoted provisions of the Constitution in the acceptance of their contention regarding the direct operation of the Resolution, so as to annul the enacted provisions of statute law. While making this remark we, should not be understood to have minimised its Constitutional position by virtue of Article 2-A of even without its being a formal part of the Constitution. What is being emphasised is that no argument suggesting a reasonable and acceptable reconciliation of the aforestated barring provisions has been advanced. They pri/na facie create bar of various types for treating the 1949 Resolution as a self-executory Instrument enfrocible by the Courts, for the change of the existing statute law into Islamic enforcible law, over and above the methods envisaged in various Constitutional provisions. Article 30(2); 203-G, and 227(2); it cannot be ignored, do at least prima facie create direct bar of the type aforementioned regarding Islamisation of laws and the Constitution; as distinguished form their interpretation and enforcement even in the existing form, with the help of Islamic principles. Moreover, a question of great constitutional importance arises with regard to the conferment of the special jurisdiction on the two forums created under Chapter 3-A in this behalfthe Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It may be argued that an indirect bar is also contained in Article 203-A. It gave an over-riding cffcct,vis-a-vis the remaining Constitution, to the Islamisation process envisaged in Chapter 3-A. An important question, for example would arise whether, the fields kept out of jurisdiction of the Federal Shariat Court and the Supreme Court in their Islamisation jurisdiction under Article 203-D and 203-F by virtue of the definition of law in Article 203-B(c) were intended to be included in the jurisdiction of all the Courts-say, civil judges and the other forums including revenue, under MLR-115. And that too when the former's jurisdiction is exclusive under Article 203-G. It will have to be determined as to whether in the matter of Islamisation, when keeping the excluded laws out of the jurisdiction of the forums created in this behalf, by the Constitution itself under Chapter 3-A, the same object was intended to be achieved through other Courts, tribunals or functionaries. In this respect no attempt has been made even to visualise any answers to these questions nor, any reason for by-passing the specific afore-quoted barring provisions and Chapter 3-A (as interpreted earlier), except for the claim thai '.he Resolution would override the same. These questions need to be answered notwithstanding the facl lhal the superior Courts in Pakistan ^ have since lorn; applied the Muslim Law and Principles in field of interpretation as distinguished from the change of stalute law. 48. As already pointed out no serious attempt has been made at the Bar to reconcile this submission of Article 2-A with the other relevant provisions of the Constitution which prima fade lend to creale bar even if not an unsurmouniablc one. They, amongst others are, Article 30(2); 203-A, 203-G and 22" ? (2). Again it has to be remarked that on this aspect enough assistance to our entire satisfaction on this delicate and very imporlant issue was not rendered: as, would appear from the afore quoted general submissions made at the Bar. Be lhal as il may, il would not be necessary to make any more observations on this aspect lor ihe lime being excepl lhal the Resolution i> an important instrument and "embodies the spiril and ihe Fundamental norms of the^ Constitutional concept of Pakistan", a phrase used in the case of Asma Jilani. In limes to come, much more would be said about its contents, value and importance, as the repository of. every high principles of Constitutional and ideological importance. One of them, for example the sovereignty of Allah was given concrete meaning and applied as such in lhal case. For the present, there is no need to go into these questions any further except to reilerale ihe observations in that case." 17. Habib Bank Limited Vs. Messrs Textile Mills Lid and 3 others. (PLD 1989 Karachi 371), is an authority for the proposition lhat Objectives Resolution despite addition of Article 2-A is not still self-executory Article. His Lordship Mr. Justice Mainoon Ka/i observed as follows:- I am accordingly of the view thai the provisions of the Objectives Resolution read with Article 2-A of the Conslitulion cannot be given effect to by the Courts inasmuch as lhat no law in Pakislan can be tested by the Courts on (he touch-stone of the Objectives Resolution to bring it ,— in accord with the injunctions of Islam except within a limited sphere, as pointed out above, and the Courts in Pakistan are under a moral and legal obligation to give effect to the law in force in Pakistan. Consequently, even if the contention of Mr. Manji that charging of interest is prohibited by Islam, is accepted, still the laws in force in Pakistan permitting the plaintiff to charge interesl on the principal amount due against the defendant must be given effecl to". 18. In Mian Aziz A. Sheikh Vs Tlic Commissioner of Income Tax Investigation, Lahore (PLD 1989 SC 613), Mian Aziz A. Sheikh increased the dower money of his wife to Rs.10,00,000/- and transferred the share of value of Rs.6,40,000/- to his wife. She received dividend of Rs.43,527/-. The Income Tax Officer included this sum in the income of Mian Aziz A. Sheikh holding that the transfer of shares was not adequate consideration within the meaning of Section 63-A (iii) of the Income Tax Act. Appeal by Mian Aziz. A. Sheikh failed before the Income Tax Officer. In the constitution petition the High Court did not interfere. On appeal the Supreme Court accepted the appeal by holding that the Courts were required 'n> applv the common law of Islam in such cases where no concrete Auction wa- :>ro\i,Ld bv she statute. Dealing with the effecl of Article 2-A, His hip Mr. Justice Muhammad Al/al Znllali. the C'hicf Justice of Pakistan, •;;nil lor [he Court, uavc the iollowim: ob-ervalions:- Ariicle 2-A read with Objectives Resolution of ihe Con-iilulicM accouline to some jurists, as \vcli as some decided cases, was enacted on account oi an observation in the judgment ol this Court in the case. 77.v Stale V. Ziiiiir Rehman ami others (PLD 1973 SC' 40). According io others, it always lormcd part ol the constitutional set ol Pakistan. Be that as it may. the present position is that Article 2-A read \vith Objecii\cs Resolution: the Principles of Policy (which are being enforced by ihc superior Courts in an indirect manner—See. Miss Benaxir BhuUoo's case (PLD 1°S8 SC 416): Chapter 3-A. PartA'I! of the Constitution, \iz-a-\iz the functioning of the Federal Sharial Court and the Shariat Appellate Bench of this Court; and Article 22"; and cither provisions of the Constitution relating to Islamisalion, are being interpreted and applied in various situations. This Court, no doubt, has for the time being, lell open ihe final verdict on the combined effect of these constitutional set up in so far u> the question ol Islamisalion is concerned—See Sardar Ali's case ! PLD 1'Ks 1 SC 2-T--= PL.I 10SS SC 224). Nevertheless in individual cases wherever necessary, the superior Courts are alrcadv eneaecd in the process of inlcrpreUtlion and adjudication in this filed. The judicial wisdom is accumulatine. experience is being uaiiicd and considerable discussion in judgments and otherwise is goiniz on. All this would ultimately assist the Supreme Court in rendering final verdicts in this behalf regarding interaction and operation of these provisions. That, however, does not mean that wherever a provision is clear and its effect is clear it would not be so slated and would not be acted upon. Article 227(1) not only requires that all existing law- shall b: brought in conformity with the injunctions of I-hm but it a'-o commandas a mandate thai 'No law shall be enacted which is repugnant to -uch injunctions'. It is a command to all law-makinn bodies and lunclion.iries II will be anomalous lo assume that although in Article 22"" iher^ : s a command lo all the legislative bodies not lo enact any law which irepimnant lo Islamic Injunctions, nevertheless il permit- the funciionancol the Slate at all levels to go on enacting rules like tho-e ol evidence which have the force of law and which are repugnant lo the Injunctionoi' Islam, it is in this context thai the curlier made remark about ilie conducl f^:' Stale functionaries in Pakistan get illustrated, i.e. none would i ver ns^c'-t that he has power or would lay down a rule liaving she force of law. which is runtffmni to Injunctions of Islam. In the context of the present case, nailier 'he icffslaiiii'c, under the command contained in Article 227(1) has the •\i\ c>'!l' c-uci u law in a/n field including those relating to Taxes, which is '••.fLi'jian' to Injunctions ot Islam, nor anv oilier functionary including the /•:i('":t Ta.\ Authorities has an\ such power to lay down anv un-l\lanuc ••;i,V. ;i.':,\ •': : :e,-. a l(trce o 1 law. Thi.- i^ in addition to the reasoning which prevailed in ihe Muhvmmatl Bi.Jiir \'s. The State (PLD 1982 SC I3'»i which had approved the judgment of the Lahore High Court in the case of//;,/'/ M:a/n Khan Vs. Additional Dislria Jiuli>i; L.\a/!;>tir and others (PLD 1976 Lah.930). The approach then was that although it was not possible for the Courts to enforce Islamic Law in those fields which were fully occupied by statutory dispensation yet, it was not only open to the Courts but they were duty bound to apply common law of Islam, its jurisprudence and philosophy, in fields which were not occupied by statutory dispensation. Various examples of those subjects are enumerated in the concluding part of the judgment of Haji Ni/am's case". 19. This question is to be looked from another angle i.e. our Slate has a written Constitution. The Constitution provides the distribution of power between various organs of the State; thai legislature is given the task of making laws; the judiciary is given the task of intcrprctling the laws while the executive has been apportioned the function of implementing the law with the power of the State. This trichotomy is expressly provided in the Constitution. I can safely say that our Government is not the Government of persons, dynasties but the Government under the Constitution with enumerated powers. A few words may be said about the nature of the Constitution. The celebrated constitutional writer Wade & Philips in 5th Edition observed as lollov.s:- "By a Constitution is normally meant a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of Government ol a State and declares the principles governing the operation of those organs. Such a document is implemented by decisions of the particular organ, normally the highest Court of the State, which has power to interpret its contents". In Murbwy Vs Madison (1S03) 1 Crunch 137 it is observed as follows:- "The Constitution is either a superior, paramount law, unchangeable by ordinary means, it is on a level with ordinary legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable". 20. A constitutional instrument has, in the first instance, to be interpreted in the same manner as any other statue and the cardinal rule here is that the function of the Court called upon to interpret any of its provisions is to ascertain the intention of the makers of the Constitution from the words used which must receive their natural and ordinary meaning. Where the words arc clear and admit of only one meaning, that meaning is to be assigned to them even if the result be harsh or absurd, as the Court is not concerned with the policy of a statute. If two constructions are possible, that construction should be adopted which is more reasonable or which will ensure a smooth and harmonious working of the Constitution, or which will save a statute from invalidity, or not offend against a fundamental right. A Constitution is to be read as a whole, and every clause and word of it must be given effect. The Court should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. A Constitution ought to be interpreted as an organic whole, giving effect to its various parts and trying to harmonise them, so as to make it an effective and efficient instrument for the governance of the country. Reference may be made to Fa/lul Qadecr Chowdhry's case (PLD 1963 SC 486). 21. There is yet another important rule of interpretation of a constitutional instrument that the Constitution may comprise of both self-executing provision and the provisions which are not self-executory. Dealing with this aspect, the following rule contained in Treatise on Constitutional Law by Cooley's Constitutional Limitations is woYth cxamination:- "But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, through back of it there lies no authority to enforce the command. Some times the constitution in terms requires the legislature to enact laws on a particular subject; and here it is obvious that the requirement has only a moral lorce; the legislature ought to obey it; but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional provisions requiring the legislature to provide by law uniform and just rules (or the assessment and collection of taxes; these must lie dormant until the legislation is had; they do not displace ihcMaw previously in force, though the purpose may be manifest to do away with it by the legislation required". 22. Guided by these principles of interpretation relating constitutional instrument and weighty observation of His Lordship Mr. Justice Muhammad Afzal Zullah in Sardar's case. I herein proceed to examine the provisions relating to Islamisalion in the Constitution. As already indicated that Article 2 and 2-A are embodied in Part I which is Chapter introductory in nature to the Constitution. Article 31 has been inserted into Chapter II wherein the guideline/ideological orientation of the Stale have been provided. By virtue of Article 31, the State had been mandated to make the teachings of Holy Quran and Islam compulsory, to facilitate the learning of Arabic language and to promote unity, observance of Islamic moral standards. Under Article 28 a Council of Islamic Ideology, a ery high institution was constituted to make recommendations to Majlis-c-Shoora (Parliament) and the Provincial Assembly as to ways and means to enable the Muslims of Pakistan to live individually and collectively in accordance with principles and concepts of Islam as enunciated in Holy Quran and Sunnah and, to advise the House, Provincial Assembly, the President or the Governor on any question referred to its Council as to whether a proposed law is or is not repugnant to Injunctions of Islam and further to make recommendation as to measures for bringing existing laws into conformity will: the injunctions of Islam and stages bv which such measures should be brought into effect. This Council was further mandated to submit its final report within seven years of its appointment and also to submit annual interim report. It was further specified in the Constitution that the report shall be laid for discussion before both the Houses and each Provincial Assembly which shall enact laws in respect thereof within a period of two year ol 'the receipt of final report. 23. B\ Presidential Order No.I of I'M), Constitution (Amendment) Order, U'SO, Chapter 3-A was suhstituled in part VII ot the Constitution. Under Article 20>-A u was provided that the provision ol this Chapter shall have effect noHMthstandinsi anvthing in the Consiiuilion. Under Article 203-C, Federal Shariat Court was constituted and under Article 203-D it was given power to examine and decide the question whether or not any law or provision of law is repugnant to I he Injunctions of Islam as laid down in Holy Quran and Sunnah. It the Federal Shariat Court comes to conclusion that any law or provision o.f the law is contrary to injunctions ol Islam, it is required to give reasons for holding such opinion, the extent to which the law or provision was so repugnant and specify the clay on which the decision shall take effect. The President or the Governor were also further required to take steps to amend the law. so as to bring such laws or provision in conformity with Injunctions of Islam. It was further provided that such laws or provisions shall to the extent of adjudication cease to have effect on the day on which the decision of Court takes effect. Under Article 203-F the judgment of Federal Shariat Court was made appealable to Federal Appellate Sharial Bench of the Supreme Court. In this Chapter another two Articles which are of importance are Article 203-G and Article 203-H. Under Article 203-G, the jurisdiction of the other Courts including Supreme Court and High Court was ousted to entertain any proceedings or exercise any power or jurisdiction in respecl of any matter within the power or jurisdiction of this Court. While under Article 203-H it was provided that the existing law shall continue till the petition is adjudicated by the Federal Shariat Court 24. It is apparent from the examination (if Article 227. 229 and 230 relating to the Council ol Islamic Ideology thai the Council \vas given a nlandate to give recommendation relating to bringing the existing laws in contormily with the Injunctions ol Islam and the President, the Governor and the appropriate legislatures were given the duty of amending or enacting laws in conformity with the recommendations ol the report ol the Council ol Islamic Ideology. 25. Similarly, a bare readme of Article 203-D shows that the Federal Sharial Court was given adjudicates v jurisdiction, and in sub clause (3) of the Article the President and the Governor was ghen a mandate to lake the step to amend the law so as to bring such law or provisions in conformity with the Injunctions ol Islam. The conspicuous feature of Article 203-D is that in sub clause (b) of clause 3 of this Article, it was provided that such law or provision shall to the extent to which it has been adjudicated to be repugnant cease to have died on the day on which the decision of ihe Court lakes effect. Under Article 203-H the effect of the judgment of Federal Sharial Court was withheld till the decision of appeal by the Federal Sharial Appellate Bench of the Supreme Court. I am, therefore, clear in my mind that the intention and purpose behind these provisions is to bring the existing laws in conformity with the Injunction of Islam in an evolutionary manner and not in a radical or revolutionary manner. By Article 203-A the provisions of this Chapter shall h:i\e to be given effect notwithstanding anything contained in the Constitution. 2(>. The up-shot of examination of afore-noted provisions of Constitution leads to conclusion that Article 2-A is not a self-executing provision in the Constitution. It is to be rendered ellectual by appropriate legislation to be made bv ilv Parliament (Majlis-e-Shoora). an appropriate legislature in conlormity with the expert opinion of the Council ol Islamic Ideology and the decision ol Federal j Sharial Court/Federal Sharial Appellate Bench of! he Supreme Court. The object and intention behind these provisions is to seek the ultimate object ol enlorcing provisions of Shariat without causing immediate and quick dislocation. There is no cavil with the fact thai Hie cieo:! .•- .'!u life ol international monetary system. Our country is also unlorlunalely iniervoven with iniernaliona), imperialist monetary system being the recipient of loans and aids from developed countries. The intention of the Constitution has been to create ihc forum of Council of Islamic Ideology and Federal Sharial Court to give the opinion alter extensive deliberation and a Federal Sharial Court has been vesled with adjudicatory jurisdiction to render the decision having the effect of crazing the existing laws found to be repugnant to injunctions of Islam from the statute book. To my mind this mandate is scientific, evolutionary, and had to be achieved through the mechanism provided in the Constitution. On the principle of harmonious construction. I am. therefore, clear in may mind that Article 2-A is not selfexecuting provision in Consiiiulion and ihis Courl had no jurisdiclion to test any lav., jtaiiHe or provision ol law on yard-stick of Objectives Resolution. With due respect to scholarly approach ol His Lordship Mr. Justice Tanzil-ul-Rehman and Mr. Justice Wajih-ud-Din. I am not in agreement with iheir view lhal Article 2-A is a sell-executory proviMon. 2~!. In the light of the fore-uoini: analysis. I find no merits in these petitions, which are dismissed, leaving the parties to bear own cosls. 28. Before parting wilh ihis judgment, 1 feel it necessary to slate that by this opinion, I do not mean to undervalue or undcr-assess the value of the Objectives Resolution. The Objectives Resolution is ihe spirit of ihe Consiiiulion. Il has been propelling; lorce in the creation ol the country. I am, therefore, clear thai the Slate functionaries including judiciary is under a statutory duty to follow the common law ol Nam in the fields where there is no statutory dispensation and in field where the Slate functionaries had to pass orders in exercise of their discretionary (MBC) Petitions dismissed.

PLJ 1990 Lahore 543 PLJ 1990 Lahore 543 Present: MAI.1K MUHAMMAD QAYYLM, J Sh. MUHAMMAD HANIF-Petilioner versus MUHAMMAD NISAR and 2 others-Respondents Writ Petition No. 3635 of 1990, dismissed on 7.7.1990 ( it Estoppel-- —Tenant—Ejectment of—Landlord and tcnant—Relalionship of—Denial of— WiKihcr principle of estoppel applies when a person ceases to be owner after beginning of tenancy—Question ol—Disputed property was evacuee property and was transferred to one Bilal Ahmad who sold it to predecessor of petitioner—Later on Deputy Settlement Commissioner held thai transfer in favour of Bilal Ahmad was bogus and fictitious—Held: There is no estoppel against a plea that person had ceased to be owner or landlord of premises on account of development which had taken place after eginning of tenancy- Held further: Even if respondent No. 1 had executed any rent note, petitioner could not claim to be landlord or owner of premises. [Pp.545&546)A&B PLD 1985 SC 1 rcl. (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13—Tenant—Ejectment ol--Challenge to—Title of petitioner in doubt- Effect of—Order of Deputy Settlement Commissioner has cast a serious doubt on title of petitioner to property in dispute—For this reason, he had filed a civil suit claiming a declaration which is still pending—Held: Rule laid down in Rehmalullah's case is fully attracted and appellate court was correct in dismissing ejectment petition filed by petitioner—Writ petition dismissed. [P.546]C 1983 SCMR 1064 re/. Mr. Chilian: Haider Alglwzali, Advocate for Petitioner. Mr. M. Iqbal, Advocate for Respondent No. 1. Nemo, for Respondents 2 & 3. Date of hearing: 7.7.1990. judgment This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a petition under Section 13 of the Punjab Urban Rent Restriction Ordinance 1959 filed by Sh. Muhammad Hanif petitioner against Muhammad Nisar respondent No.l with respect to a portion of property No.D- 2146 situated inside Lohari Gate Lahore, which was accepted by the Rent Controller on 4.11.1989 but was dismissed by the Addl. District Judge Lahore on 3rd. of May, 1990. 2. In the petition for ejectment filed by him, the petitioner had claimed to be the successor of Abdur Rashid son of Adul Ghani who had purchased the property from Bilal Ahmad son of Bashir Ahmad. According to his case upper portion of the properly had been leased out by Abdur Rashid to respondent No.l at a monthly rent of Rs.100/- per month and the respondent had execuled rent deed in favour of Abdur Rashid deceased on 2nd of November, 1978. The ejectment was sought on the grounds of default and personal use. In the written statement filed by the petitioner the relationship of landlord and tenant was denied and instead it was stated that the transfer of the property in favour of Bilal Ahmad the predecessor of the petitioner was found to be bogus by the Settlement Authorities on 3rd August^ 1983 and as such neither the petitioner nor his predecessor has any right over the property. It was further pleaded that earlier an ejectment petition was filed by the petitioner which was dismissed by the Rent Controller on 17.7.1985 in' view of the order of the Deputy Settlement Commissioner holding the transfer pf the property in favour of Bilal Ahmad to be fictitious and as such the present proceedings were barred by Section 14 of ihe Punjab Urban Renl Restriction Ordinance 1959. It was staled that ihe pclilioner had already filed a civil suil for declaration of his title which was pending in the Civil Court and as such the petition was not maintainable. After framing the relevant issues and recording the evidence of the parties the learned Rent Controller held that respondent No.l had executed rent note in favour of the petitioner and was, therefore, his tenant. The ejectment petition was accepted and respondent No.l was ordered to be evicted from the premises in dispute. Aggrieved by this order of the Rent Controller respondent No.l, filed an appeal which was accepted by the Additional District Judge who held that the petitioner had failed to prove that respondent No.l had executed any rent note in his favour and further that the petitioner had no title to the property. This judgment of the Addl. District Judge has been assailed by the petitioner by filing this constitutional petition. 3. Mr. Ghulam Haider Alghazali, learned counsel for the petitioner has contended that the finding of the Additional District Judge that the rent note was not executed by respondent No.l is based upon misreading of evidence and failure to consider material on record. The learned counsel also pressed into service the principle of estoppel as contained in Article 115 of the Qanun-e-Shahadat Order, 1984. It was contended that the ejectment petition filed by the petitioner was not hit by Section 14 of the Punjab Urban Rent Restriction Ordinance 1959. 4. There is no dispute between the parties that the property was at one time evacuee in nature and according to the petitioner, was transferred to Bilal Ahmad who sold it to Abdur Rashid, on whose death the petitioner claims to have inherited the property in question. By ihe order dated 3rd August, 1983 the notified officer (Deputy Settlement Commissioner) held that the transfer in favour of Bilal Ahmad was bogus and fictitious. It is thus obvious that whatever title of the petitioner had in the properly ceased to exist from the aforesaid date and the petitioner could not claim to be the owner of the premises. As regards the contention of the learned counsel for the petitioner that respondent No.l was estopped from denying the status of the petitioner as a landlord, it is to be noted as held by the Add. District Judge there is no estopple against a plea that the person had ceased to be the owner or the landlord of the premises on account of development which had taken place after the beginning of the tenancy. The question stands, conclusively decided by the Supreme Court in Province of Punjab vs. Abdul Ghani, (PLD 1985 S.C. 1) wherein it was obscrvcd:- "In so far as this general rule of estopple vis-a-vis a tenant and landlord is concerned, it cannot have uncontrolled application to the cases to be determined under the special rent restriction laws. It will depend upon the facts and circumstances of each case." It was further held that:- "The denial is regarding the change of position by the said transfer. The principle and rule embodied in Section Ho Evidence Act is not attracted in all cases of dispute over title between landlord and tenant. One exception as in this case is the denial vis-a-vis a stage after "the beginning of the tenancy". Another condition is that the denial should be during the continuance of the tenancy and not after the determination thereof." In view of this authoritative pronouncement I am not in a position to accept the contention of the learned counsel for the petitioner. Consequently, the plea that a rent note was executed in favour of petitioner by respondent No.l or not pales into insignificance. Even if it be accepted that respondent No.l had executed any rent note in favour of the petitioner, since he ceased to have any title of the property as a result of the determination by the Settlement Authorities, the petitioner could not claim to be the landlord or the owner of the premises. 4. Be that as it may by the order of the Deputy Settlement Commissioner dated 3.8.1983 a serious doubt had been cast on the title of the petitioner to the property. For this reason he had filed a civil suit claiming a declaration which is still pending. In these circumstances the rule laid down by the Supreme Court in Rellmatullah vs. Ali Moliammad and another (1983 S.C.M.R. 1064) become fully attracted and the Additional District Judge was correct in dismissing the ejectment petition filed by the petitioner. It is however, to be clarified that if the petitioner succeeds in having the title declared in a court of competent jurisdiction it shall be open to him to file a petition for ejectment against respondent No.l and any finding in the impugned judgment of the Additional District Judge in the present proceedings shall not operate as bar. In view of the observations made above, this petition is dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Lahore 546 PLJ 1990 Lahore 546 [Multan Bench] Present: ihsanul haq chaudhary, J Mst. UMATULLAH-Appellant versus MAQBOOL HUSSAIN and 4 others-Respondents C.M. Nos. 1-C and 7-C of 1989, accepted on 1.7.1990 Civil Procedure Code, 1908 (V of 1908)-- —-O.XXII Rr. 9(2) and 11-One of defendants-Death of-Announcement of judgment after his death-Whether legal representatives of deceased defendant can move application for being brought on record-Question of-It is clear from sub-rule (2) that legal representatives may apply to court for setting aside order made or judgment pronounced in their absence-They have to prove that they were prevented by sufficient cause from continuing or defending suit- Respondent No. 1 died on 18.10.1989 while appeal was heard and decided on 24.10.1989-There was hardly sufficient time for applicants to get themselves impleaded instead of their deceased predecessor—Applications accepted and udgment set aside. [Pp.549&550]A&B PLD 1990 Lahore 359 re/. Malik Noor Muhammad, Advocate for Applicants. Mr. M.Z. Klian Barki, Advocate for Respondents/Appellants. Date of hearing: 1.7.1990. judgment These are two applications, under Order XXII Rule 9(2) read with Rule 11 and Section 151 C.P.C., and under Order XLI Rule 21 read with Section 151 C.P.C., moved by heirs of Maqbool Hussain-respondent No.l. 2. The relevant facts are that the titled R.SA. was pending, in this Court. The same was fixed for 24.10;1989. The learned counsel for the appellants appeared but nobody entered appearance on behalf of the respondents, therefore, they were proceeded ex-pane. Thereafter the learned counsel for the appellants argued the appeal. The same was allowed vide judgment and decree dated 24.10.1989 and case was remanded to the learned trial Court to decide it afresh in accordance with law. 3. These are applications on behalf of heirs of Maqbool Hussain for impleading them as respondents and decision of the appeal afresh after hearing them. It is submitted that Maqbool Hussain died on 18.10.1989 and there was hardly any time for the applicants in C.M.Nos.l and 7 to move this Court for impleading them (as) respondents instead of late Maqbool Hussain. The learned counsel for the petitioners has submitted that the petitioners have right to be impleaded and limitation is governed by Article 176 of the Limitation Act. The petiton having been presented on 23.12.1989, therefore, is well within the limitation. The learned counsel in this behalf has referred to the judgment in the case of Mst. Sardar Begum and others Versus Cliaragli Bibi and another (1989 C.L.C. 825). It is added that with the death of Maqbool Hussain, power of attorney in favour of his learned counsel stood terminated, therefore, the learned counsel could not appear and plead on his behalf. In this context reference is made to the judgment of Mst. Iffat Masood and 2 others Vs. Rehinat All (P.L.D 1990 Lahore 359). 4. The next argument is that the heirs could have made an application for re-hearing under Order 22 Rule 9(2) C.P.C. within 60 days as per Article 171 of the Limitation Act. It is submitted that the remedy of the heirs of the deceased/respondent No.l was to apply under this rule. The reference is made to the case of Mst. Iffat Masood and 2 others in this behalf also. 5. On the other hand learned counsel for the appeallants submitted that the death of respondent No.l does not effect the judgment of this Court dated 24.10.1989, delivered after his death and in the absence of the heirs as the respondents/plaintiffs were 5 in number. Therefore, death of one respondent will not make any difference. The learned counsel in this behalf has referred to Rules 3 and 4 of Order 22 C.P.C. and submitted that Rule 3 is applicable in this case. It is argued that Section 5 of the Limitation Act is not applicable to the applications under Order 41 Rule 21 C.P.C. 6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. 7. It is worthwile, first of all, to refer to Rules 3 and 4 of Order XXII C.P.C which read as under:- Rule 3 "Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs or plaintiffs alone, or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under Rule 26, Order VII or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit." ......................................................................... Rule 4: "Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or on receipt of an intimation of death of such defendant from the person nominated by him for that purpose under Rule 13 Order VIII or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased defendant to be made party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) IVlicn within the lime limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the uit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place" It is clear from Sub-Rule (3) that it is couched in the negative terms and according to this provision, if no application is made or intimation given as to the death of one of the defendants within specified time, the order made or judgment pronounced shall have the same force and effect as if the death of one of the respondents has not taken place. There cannot be two opinions that limitation is governed by Article 171 of Limitation Act. The result is that this provision will become operative after efflux of the limitation. This being a penal provision, therefore, has to be construed strictly. Conversely speaking, if order is made or judgment is pronounced before the expiry of 90 days then it will not be saved and protected by Rule 4(3) C.P.C. 8. The learned counsel for the appellants vehemently argued that the question of submission of application only arises when one or more defendants died and right to sue did not survive against the surviving defendant/defendants. The learned counsel while again and again referring to this provision of law ignored the word 'alone' following immediately after surviving defendant or defendants; therefore I feel no difficulty to conclude that the impleading of the heirs of deceased respondent No.l was essential. 9. We cannot conceive of the situation where party is left without a remedy specially in Civil suits. Learned counsel for the applicants rightly referred to Order 22 Rule 9(2) C.P.C. The same reads as under:- Rule 9(1)

(2) "Any person claiming to be the legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence; and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the • judgment, upon such terms as to costs or otherwise as it thinks fit." It is clear from Sub-Rule (2) that legal representative of deceased plaintiff/defendant or assignee or receiver may apply to the Court for setting aside the order made or judgment pronounced in its absence. But of course it has to prove that he was prevented by sufficient cause from continuing or defending the suit. This being so, the Court is bound to set aside the order or judgment subject to conditions as it thinks fit. Now in the present case Maqbool Hussain respondent No.l died on 18.10.1989 while the appeal was heard and decided on 24.10.1989. There was hardly sufficient time for the applicants to get themselves impleaded instead of their deceased predecessor. This is not all. The law permits them to make application within 90 days. This application was infact made quite in time while the other application for re-hearing could be made within 60 days. This application too is within time fixed for this purpose. The learned counsel for the applicants righty referred the judgment of this Court in the case of Iffat Masood in support of his arguments that remedy sought through this application is available to his clients. The learned counsel for the appellants argued that the case will be covered under Order 22 Rule 3 C.P.C. The argument clearly looses sight of Rule 11 of Order 22 C.P.C. The same reads as under:- "In the application of this Order to appeals, so far as may be, the word 'plaintiff shall be held to include an appellant, the word "defendant" a respondent; and the word "suit" an appeal." It is clear that for the purposes of appeal, the appellants will be in position of plaintiff while respondent will be in the position of defendants. The result is that these applications are allowed. The applicants are impleaded as respondents A to K instead of their predecessor respondent No.l; judgment dated 24.10.1989 is set aside and rehearing of the appeal is directed. There is no order as to costs as for these applications are concerned. (MBC) Applications accepted.

PLJ 1990 Lahore 549 (DB) PLJ 1990 Lahore 549 (DB) Present: raja afkasiab khan and ihsanual haq chaudhary JJ. ABDUL AZIZ QURESHI-Petitioner versus FEDERATION OF PAKISTAN and 109 others-Respondents. Writ Petition No.5684 of 1990, dismissed on 18.8.1990. (i) Constitution of Pakistan, 1973-- 1Art.199 (l)(ft)(ii)-Eighlh Amendment-Challenge to-Whether it is a fit case for issuance of writ ofijiio wairanlo—Queslion of-Held: Assembly having been dissolved over 2 years buck, it is not a fit case for issuance of writ of quo warranto " [P.558JD PLD 1970 SC 98 rel. (ii) Houses of Parliament and Provincial Assemblies (Election) Order, 1985— -Art. 12-A read with Constitution of Pakistan, 1973, Article 239-Eighth Amendment-Challenge to-Whether it was validly passed by National Assembly-Question of-Contention that 107 Members having lost their seats on account of having not resigned from their membership of Union Councils/Cantonment Boards, Eighth Amendment was made without requisite majority and was o'f no legal consequence-Respondents were notified as Members of National Assembly on 28.3.1985 and were to resign from their membership of Union Councils etc upto 12.4.1985, but before that date reached, rather even before notification, Article 12-A was' amended by P.O.16 enlarging period for their resignation to 4 months and later on Article 12-A was struck down vide P.O. 27 dated 25.6.1985-Held: Contention was raised without adverting to legal position as borne out from relevant statute as amended from time to time. [Ip.551 to 553]A&B (iii) Houses of Parliament and Provincial Assemblies (Election) Order 1985 -T ~Art.l2-A read with Constitution of Pakistan, 1973, Articles 67 & 69-Eighth Amendment—Challenge to—Whether proceedings of Parliament can be challenged in Court-Question of~A perusal of Article 69 shows that validity of any proceedings in Parliament cannot be called in question on ground of any irregularity of procedure while Article 67 provides that any proceeding in House shall not be rendered invalid on ground that some persons who were not entitled to do so. sat, voted or otherwise took part in proceedings-Held: Apart from position that allegations of incompetency of respondents Nos. 4 to 110 are not well founded, proceedings would not be open to question legally in view of Articles 67 and 69 of Constitution. [Pp.553&554]C PLD 1967 Lahore 227, NLR, 1980 (Services) 137, PLD 1990 SC 1990 Lahore 401 = PLJ 1990 Lah.507(DB), PLD 1963 S.C. 486, PLD 1966 SC 105, PLD 1970 SC 98, PLD 1973 SC 49 and PLD 1983 SC 457 ref. Petitioner in person. Date of hearing: 18.8.1990. order Ishanual Haq Chaudhary J:-The petitioner through this Constitutional petition has prayed that 'Eighth Amendment' made in the Constitution be declared null and void and of no legal effect and for appropriate direction to respondent No.l to perform its functions in accordance with the Constitution as it stood on 4th July, 1977. 2. The relevant facts as ascertained from the petition as well as arguments of the petitioner are that the general elections for National Assembly and Provincial Assemblies were held in March, 1985. The result of the National Assembly was notified in the official Gazette dated 28th March, 1985. The argument of the petitioner is that respondents No.4 to 110 who were elected to the National Assembly were also members of Local Councils or Cantonment Boards. Therefore, in view of the provisions of Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter to be referred as Order of 1977) they were to resign from their membership of Local Councils/Cantonment Boards within a period of 15 days'of the declaration of the result of the National Assembly and in default thereof the seat of the National Assembly was to become vacant. It is submitted that since they did not resign from their membership of Union Councils/Cantonment Boards, therefore, they lost their seats in the House on 12th April, 1985. 3. The main plank of the arguments of the petitioner is that the Eighth Amendment, bill of which was moved in the National Assembly towards the end of 1985, was unconstitutionally passed and thus the same is liable to be struck down. Elaborating his above contention the petitioner submitted that amendment in the Constitution as provided by Article 239 of the Constitution of Islamic Republic of Pakistan can only be made by 2/3rd of the majority of total membership of the House. The House then constituted of 237 members and, therefore, in order to validly pass Constitutional amendment, 158 members had to vote in favour of the amendment. Since 107 members had lost their seats in that House in view of ihe position explained above, the total membership of the House thus was reduced to 132 members. This way Eighth Amendment in the Constitution was made without requisite majority and thus of no legal consequence. The next contention of the petitioner is that even the Presidential Order No.27 of 1985 promulgated on 25th of June, 1985 whereby Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order 1977 was omitted, will not validate the membership of respondent Nos.4 to 110 inasmuch as they had already lost their seats on 12th of April, 1985, much before the promulgation of the aforementioned Presidential Order. It was in the same sequence urged that the Presidential Order No.27 of 1985 was not given retrospective effect, therefore, the disabilities incurred already were to continue and did not stand saved. The learned counsel concluding his arguments on the above point submitted that the petitioner can maintain a writ of qito-warranto in view of the judgments in cases State Vs. Zia w Rehman and others (P.L.D. 1973 S.C. 49), Faitji Foundation and another Vs. Shamim ur Rehman (P.L.D. 1983 S.C 457). Fazal-itl-Qadir Oiaudhaiy Vs. Muhammad Abdul Haq (P.L.D. 1963 S.C. 486), A.K Fazal-ul-Qadir Oiaudhaiy Vs. Shah Nawaz and others (P.L.D. 1966 S.C. 105), Abdul Majeeb Pirzada Vs. Federation of Islamic Republic of Pakistan and 87 others (P.L.D. 1990 Karachi 9) and Lt. Col. FarzandAli Vs. West Pakistan (P.L.D. 1970 S.C. 98). 5. The only other contention raised by the petitioner is that the ground taken by him for seeking annulment of Eighth Amendment in the Constitution on the basis of membership of 107 of the members having lost their seats, was not a ground in any other case earlier decided including the case of Abdul Majeeb Pirzada therefore, it is a question of first impression and of public importance. The matter needs to be admitted to regular hearing. From the arguments submitted by the petitioner the main points which emerge for determination may be summed up as unden- (1) Whether the Eighth Amendment in the Constitution is ultra vires of the Constitution of Islamic Republic of Pakistan in view of the assertion of the petitioner that it was carried out by a number of members less than the requisite and/or by participation of members who were not validly seated in the house?; (2) Whether the vires of the proceedings of National Assembly can be gone into by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan? and (3) Whether writ of quo wananto sought for can be issued at the present stage in respect of an Assembly, which was dissolved over two years back? 6. Needless to add that the subsequent two propositions in fact can proceed only if the first proposition is found in favour of the petitioner. It, would, therefore, be appropriate to examine the provisions of law governing the subject as brought on the Statute Book from time to time. The relevant provisions for an effective determination of this controversy and for the facility of reference may be reproduced hcreunder. The dates on which these provisions had come into being are also given along with for fuller appreciation of the controversy:- (1) Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order 1985 was added by virtue of the Presidential Order No.12 of 1985 promulgated on 28th of February, 1985. The same reads as under:- "Bar against membership of a local council or Cantonment Board and a House or a Provincial Assembly at the same time. If a member of a local council or union council constituted under any law relating to local Government or of a Cantonment Board constituted under the Cantonments Act, 1924 (II of 1924), is elected to a seal in a House or a Provincial Assembly, he shall, within a period of fifteen days alter the declaration of the result for such seat, resign his office of such member or such seat and, if he does not so resign, such scat shall become vacant at the expiration of the said period." (2) The amendment brought in Article 12-A ibid by virtue of Presidential Order No. 16 of 1985 promulgated on 6th of March, 1985, reads as unden- "Amcndment of Article 12-A, P (P.P) O. No.5 of 1977.- hi the said Order, in Article 12-A, for the words, "fifteen days" the words "four months" shall be substituted." (3) Deletion of Article 12-A ibid made by virtue of Presidential Order No.27 of 1985 promulgated on 25th of June, 1985, reads as under:- "Omission of Article 12-A, P. (P.P) O. No.5 of 1977.-In the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, P. (P.P) O.No.5 of 1977, Article 12-A shall be omitted." 7. When the provisions of above three Presidential Orders are considered together the legal position which emerges is that respondents No.4 to 110 who (were notified as Members of National Assembly on 28th March, 1985, were to -ign ;'rom their membership of Local Councils/Cantonment Boards upto 12lh of .-i ;'"".". jPi'o in order lo save their seats in the National Assembly in view of the precision of Article 12-A as originally enacted but before that date reached rather -./•en before the notification of their membership Article 12-A was amended by Prudential Order No. 16. The result was that period for resignation was enlarged livlt. 15 du>s lo lour nionihs, which was to expire on 27th July, 1985. But before ilu. target dale the said Ariiele 12-A was struck down and omitted from the Mj;ute Book by promulgating Presidential Order No.27 dated 25th June, 1985. The question of the member-respondents having lost their membership, therefore, was raised without adverting to legal position as borne out from the relevant Statute as amended from time to time. This knocks out the bottom of basis of the argument advanced belore us. S. Although in view of the above discussion no further deliberations are required on the remaining conlroversy involved in this petition yet as these points were raised, therefore, the same arc being dealt with and decided. 9. Before proceeding any further with the matter it is relevant to refer to Articles 6 7 and W of the Constitution of Islamic Republic of Pakistan, which read a> under:- "(I) Subject lo the Constitution, a House may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding anv vacancy in the membership thereof, and any proceeding in the House shall not be invalid on the ground that some pei>ons who were not entitled to do so sat, voted or otherwise took part in the proceedings. (2) Until rules are made under clause (1), the procedure and conduct of business in a House shall be regulated by the rules of procedure made bv the President." Article (><): "( 1 ) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution tor regulating procedure or ihe conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of exercise by him of those powers. 1 3) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article (>6." 10. A perusal ol Article 09 ibid shows that validity of any proceedings in the Parliament can not be called in question on the ground of any irregularity of procedure while Article 67 shows that any proceeding in the House shall not be rendered invalid on the ground that some persons, who were not entitled to do so s.it. \oted or otherwise look part in the proceedings. The proceedings of the House are being challenged before us on the premises of the participation of respondent No.4 lo 1 1I), who allegedly were not competent to sit in the House. trom their membership of Local Councils/Cantonment Boards upto 12th of .-ijn', 1 , T L AV in order to sa\'e their seats in the National Assembly in view of the provision of Article 12-A as originally enacted but before that date reached rather ever, before the notification of their membership Article 12-A was amended by Prj-;Je.niial Order No.16. The result was that period for resignation was enlarged ;:v;n 15 ua\s to lour months, which was to expire on 27th July, 1985. But before in., target dale the said Article 12-A was struck down and omitted from the Statute Book by promulgating Presidential Order No.27 dated 25th June, 1985. Th^ question of the member-respondents having lost their membership, therefore, was raised without adverting to legal position as borne out from the relevant Statute as amended from lime to time. This knocks out the bottom of basis of the argument advanced belore us. S. Although in view of the above discussion no further deliberations are required on the remaining controversy involved in this petition yet as these points were raised, therefore, the same are being dealt with and decided. Belore proceeding any further with the matter it is relevant to refer to Articles O" 7 and d9 of the Constitution of Islamic Republic of Pakistan, which read as uiuier:- Anicii 67: "(1) Subject to the Constitution, a House may make rules for regulating Us procedure and the conduct of its business, and shall have power to act notwithstanding any vacancv in the membership thereof, and any proceeding in the House shall not be invalid on the ground that some persons who were not entitled to do so sat, voted or otherwise took part in the proceedings. (2) Until rules are made under clause (1), the procedure and conduct of business in a House shall be regulated by the rules of procedure made bv the President." Aniclc W: "(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (-) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct ol business, or lor maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of exercise by him of those powers. 13) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article 66." 10. A perusal ol Article 69 ibid shows that validity of any proceedings in the Parliament can not be called in question on the ground of any irregularity of procedure while Article 67 shows that any proceeding in the House shall not be rendered invalid on the ground that some persons, who were not entitled to do so -.vit. \oted or otherwise took part in the proceedings. The proceedings of the House are being challenged before us on the premises of the participation of respondent No.4 lo 1 ID, who allegedly were not competent to sit in the House. Apart from the position that the allegations arc not well founded the proceeding would not he open to question legally in view of the accumulative effect of Articles 67 and (>9 of the Constitution. We are fortified in our view by the judgment of Hon'ble Supreme Court in the case of Lt. Col. Far/and Ali'as well as Full Bench judgment of this Court in the case of A.M. Khan Lughaii Vs. Government of 'Paki.sU/n (P.L.D. 1%7 Lahore 227) and NLR 1980 (Service) 137). The relevant portion of the judgment in the case of Lt. Col. Far/and Ali and others, reads as under:- "Be that as it may, since this is not a direct challenge to the right of such persons It) be Members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of the impugned Constitutional Amendments themselves, / do not consider il necessary to deal in//; this question tiny further ax I have held thai even assuming that iliev \vcre disc/na/ificd thev participated in the proceedings hona I'idc in assertion of the claim of right and, as such, the legislative measures ]>tissed hv the Assembly with their participation were protected by sith-c/ause (til of clause (1) of Article 111) of the 1962-Conslilution." The other portion of the judgment reads as under:- "Upon these principles il has been strenuously argued by the learned Atlorney-Cieneral that the Third, Fourth and the Sixth Constitutional. Amendments are now unassailable, because, at any rate, the allegedly dist/tuilificd respondents hud acted as de facto members, for, they liad acted under the hona fii(e belief thai they were entitled to so act and had at least a fair colour of title and thev have also performed their duties with public aci/iiicsccnce. They were not purely intruders. Therefore, their acts even apart from the provisions of sub-clause (d) of clause (!) of Article 110 were as good as those of de-jure members of the National Assembly. I am of the opinion that there is a great deal of force in this contention and since (his is not a direct attack upon their right to continue as members, I am also of the opinion that their acts should not be invalidated merely because they could have been lound in a proper proceeding under Article 98(2) (b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of Public business and promote security of private rights." 11. The relevant lads giving rise to the appeal in the above case were that some ol senior bureaucrats were being retired compulsorily under Article 178 of the Constitution of 1962 as amended by Fourth and Sixth Amendments. The said civil servants challenged the validity of (he Third, Fourth and Sixth Amendments of the Constitution. Their writ petitions were dismissed. They agitated the matter in the Supreme Court. The main challenge to the validity of three Constitutional amendments was that the same were not made by the requisite majority of 2/3rd of the total number of Members of National Assembly as required under Article 209 of the Constitution of 1962. It was urged that according to Article 103(2) of they were both activities which took place within the precincts ol uk House. It i.s artuied thai the contention of the appellants wa-- nu^undei M>»'d m the Hi eh Court, lor. the challenge here was not to the rigli! ;o '.oi, in the Mouse or to the manner of the exercise of the vote but to i!k dJeCiive constitution of the House and to lire title of the respondents No^.4 to 3^ to participate in ils proceedings. Therefore, neither Mib-daiisc (d) ol clause (1) ol Article 111) nor clause (1) of Article I I I constituted a bar to the proceedings." The other relevant portion ol the judgment dealing this point is reproduced as undcr:- "Novv clause (1) of Article 111 provides that "the validity of any proceeding in any Asscmblv shall not be questioned in any Court" and sub-clause (d) ol clause (I) of Article 110 provides that "no proceeding in an Assembly shall be invalid by reason only that a person who was not entitled to do so was present at or voted or otherwise participated in the proceedings.' ll will thus be observed that the Courts are debarred from questioning the validity of a proceeding in an Assembly merely by reason ol the lact that some one was present at or voted or otherwise participated in its proceeding although he was not entitled to do so. On (he basis of these provisions the High Court has held, relying on iwu decisions ol this Court in the cases of Ahmad Sacccl Kirniani (1) and Badi 'ill Haq (2) that voting being a part of the internal proceedings of the A.ssemblv. an enquiry with regard to its validity is barred by Article 11! and thai this is so even where the attack is on the basis of want of qualification ol a voter.' Thereafter the term •internal proceedings' was discussed. The relevant portion of the judgment reads as under:- "It \vill he observed that in none of these cases had any attempt been made to define as to what constitute "internal proceedings" but this much is clear that they do not extend to anything and everything done within the House. Thus as a general rule a criminal act done in the House would perhaps not be ouisitle the course of criminal justice (vide observations of Stephen, .1, in Bniilkmgh v. (iossctl). The test indicated by Sir Erskine May in his Book on Parliamentary Practice is as to whether what is said or done "lorms part of a proceeding of the House in its technical sense, i.e the formal transaction of business with the Speaker in the Chair or in a properly constituted committee". It would be neither possible nor desirable to attempt any exhaustive classification ol the matters that may be comprised .within the term 'internal proceedings" but it will be sufficient for my purpose to indicate that whatever is not related to any "formal transaction of business" in the House cannot be said to be,a part ol its "internal proceedings". The Honourable Supreme Court distinguished the judgment in the case of A:K. Fazal-uI-Qadir Chaudhary and Fa/al-ul-Qadir Chaudhary and held that the dispute in these cases related to particular member and his right to occupy seat in the Assembly. The same are not relevant. Relerence, on the point of jurisdiction of the Courts to examine the proceedings of the House, can also be made to the judgment of this Court in the case of Wasi Zaffar Versus Speaker, Provincial 'Assembly (P.L.D. 19W Lahore 401 = PLI 1990 Lahore 50"? ( HB)), The learned Court examined the question whether the participation of persons unqualified to occupy a seat rendered the proceedings of the Assembly illegall and it was hekl:- "Having said this, however, the question has still to be considered as to whether even assuming that Lambardafs, Chairmen of Union Councils and Reservists of the Armed Forces are persons holding olfices of profit in the service of Pakistan, the participation of such persons in the proceedings of the Assembly rendered the proceedings of the Assembly altogether void. It is the contention of the respondents that sub-clause (d) of clause (1) of Article 110 cures this delect and this has also found favour with the High Court. The appellants, however, contend that this cannot be. II the National Assembly had, it is argued, illegally added to its Members then on the dictum of Mifnir, C..I. in the case of Federation of Pakistan v. AH Ahmad Hussain Shall, all laws passed with the participation of such illegally added members would be void and in particular a constitutional amendment would be ineffective, for, by excluding those members the majority required by Article 209- of the Constitution of 1962 would not be there. "I am unable to accept this contention of the appellants, because, even on their argument, since this was a- continuing disqualification and not a disqualification which had been acquired subsequent to election, the Members concerned could not be unseated until they were held by a competent Court to be disqualified. Their.right to sit and participate in the proceedings of the House until such time would not be wholly illegal, for having been duly elected to the House, they would have prima facie a right to sit and participate in its proceedings. Article 104 would not be attracted to their cases, for, their disqualifications could not be said to have arisen after their election and, as I have already indicated, if there be no other machinery save that provided by an information in the nature of a quo wa/ranto for ousting them from the House then it can hardly be said that the usurpation of office by them was wholly without colour of title. In the circumstances it would lead to very serious consequences if all proceedings of the House in which they had participated during this period are declared to be void. It seems to me that the provisions of subclause (d) of clause (1) of Article 110 were designed to meet precisely such eventualities in consonance with the general principle that the acts of statutory functionaries or corporate bodies affecting third persons should not be invalidated merely by reason of the fact that the functionary concerned or some of the members of a Corporate Body are subsequently discovered to have been disqualified from being entitled to hold that office or to participate in or vote at proceedings of that corporate body. This is a salutary and beneficial provision for avoiding uncertainties regarding official acts which would cause serious inconvenience to the public and is to be found in almost all statutes setting up corporate bodies, which are considered in law to have a separate and distinct entity from those of its members. "There is a further reason which appears to me to be of sufficient importance to merit consideration in this connection. It is this that it cannot be said that the Members concerned in the present case acted either malafide or totally without colour of any right or title. It has to be remembered that in the present case the elections of as many as eight of such Members were actually unsuccessfully challenged by Election Petitions and apart from that there was atieast one decision of the High Court in the case of Nawab Sajjad All fOian v. Ch.Fazal Haiti and another(l) where it had been held that a Lambardar is not a holder of an office of profit in the service of Pakistan. An appeal taken from this decision to the Supreme Court was unfortunately not decided on merits as it was held to have abated under clause (7) of Articles 2 of the Laws (Continuance in Force) Order, 1958. These circumstances may well have led them to believe that their right to be Members of the House had become perfected and was no longer assailable. They were, therefore, not mere intruders and until they were held to be disqualified by a competent Court there was no other authority which could prevent them from participating in the proceedings of the House. / would, therefore, hold that clause 1 (d) of Article 110 protected their acts." 12. The provisions of Articles 110 and 111 of the Constitution of 1962 are para maieria to Articles 67 and 69 of the present Constitution while Article 209 is parallel to Article 239 of present Constitution and the provisions of Article 103 are similar to that of Article 12-A of the Order, 1977. These provisions having been exhaustively and authoritatively dealt with by the Hon'ble Supreme Court in the case of Lt.Col.Farzand Ali, which is applicable with full force to the case in hand. Therefore, the argument that it is a point of first impression requiring further consideration is without any merit. This is not all. The applications for review of the cited judgment were also dismissed and decision is reported as N.L.R. 1980 (Service) S.C.137. This brings us to the third proposition as to whether it is a fit case for issuance of writ of quo warranto. Suffice it is to observe that Assembly having been dissolved over two years back, it is not a fit case for issuance of a writ of quo warranto and not a case covered by Article 199 (1) (b) (ii). The following passage of the judgment of Hon'ble Supreme Court in the case of t.Col.Farzand Ali may­ be reproduced hereunder as the same squarely answers this proposition as well:- "In any event now that the House has itself been dissolved, no relief by way of quo warranto can be granted as the matter has become only of academic interest." 15. We deem it appropriate to observe that although some grounds have been impliedly raised objecting to the validity of the action of the President dated 6th August, 1990 whereby the last Assembly was dissolved under Article 58(2) of the Constitution but the same have not been urged before us by the petitioner at Bar, therefore, we do not feel called upon to deal with them. Moreso when the Presidential Order has not been impugned in the writ petition. The result is that there is no merit in the petition. The same is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 558 PLJ 1990 Lahore 558 Present: IHSANUL HAQ CHAUDHARY, J HIGHNOON LABORATORIES LIMITED-Petitioner versus Msi. FAR1DA JAW AID MALIK and another-Respondenls Writ Petition No. 6615 of 1990, dismissed on 17.9.1990. (i) Constitution of Pakistan, 1973-- —Art. 199-Tenant-Ejectment of~Petition for-Whether writ petition is maintainable against interim order—Question of—Objection about form of ejectment petition is not fatal-Held: It is settled legal position that Constitutional petition is not competent against an interim order under Punjab Urban Rent Restriction Ordinance, 1959 to which provisions of Act of 1963 are para-materia-PQtition dismissed. [Pp.560&561]D,F&F 1988 CLC 44, PLJ 1978 Lahore, 198, PLD 1978 Lahore 1459,1983 CLC 998 and 1987 MLD 265 rel. (ii) Jurisdiction— —Tenant-Ejectment of-Petition for-Absence of paragraph in ejectment petition about jurisdiction of court—Whether Rent Controller had no ejectment petition. This is not all. Even in face of the objection by the petitioner as to the form of the ejectment petition neither the learned Rent Controller cared to get it rectified nor the learned counsel representing the landlady bothered to get the petition amended. It is infact this type of careless attitude which gives rise to side issues and results in complications and delay in the adjudication of the matters. It is true that although no specific form of ejectment petition is prescribed either under Act of 1963 or Punjab Urban Rent Restriction Ordinance, 1959 yet when the petitions are presented especially by the Advocates they should ensure that paras as to cause of action, jurisdiction and Court fee are incorporated. In case of default the duty is cast on Rent Controller to enforce compliance. This should be made subject to heavy costs. This will help to achieve the desired result. The same remarks apply to the case in hand. This Constitutional petition is liable to be dismissed because the objection of the petitioner was infact to the form of the ejectment petition, which is not fatal. Even otherwise the Rent Controller is not supposed to stay his hands the moment there is objection as to his jurisidiction or relationship of landlord and tenant is denied. It is the duty of the learned Rent Controller to find out the grounds on which such objections are based. Since in this case objection was only to the form and otherwise jurisdiction was not lacking therefore, there is nothing wrong with the order. This is not all. The petitioner itself made the payment of rent in Court through pay order thereby it conceded the jurisdiction, therefore, it is estopped by its own conduct. There is yet another legal hurdle in the way of the petitioner. It is settled legal position that Constitutional petition is not competent against an interim order under Rent Restriction Ordinance. In this behalf, reference can be made to the cases of Inayat Ullah v. Malik Muhammad Rashid and another (1988 C.L.C. 44), Rashid Ahmad v. Soofi Muhammad & another (P.L.J. 1978 Lahore 198) and Muhammad Saeed v. Mst.Saratiil Fatima and another (P.L.D. 1978 Lahore 1459). The relevant portion of the judgment reads as under:- " ............... The scheme of such a categorization, the limits and the rationale thereof have been fully considered in Mian Manzar Bashir v. M.A. Asghar P.L.D. 1978 S.C. 185. It, therefore, follows that what the Legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and reflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutto v. Cheif Administrator Auquf etc. 1976 S C M R 450." This view was followed by Karachi High Court in the cases of Syed Intesar All v. Ahmad Din KJian and others (1983 C.L.C. 998) and Muhammad Siddique Qazi v. Muhammad Ibrahim Kliokhar and another (1987 M.L.D. 265). While this Court in W.P.No.3734/90 held as under:- " ............... It is not the function of the High Court exercising constitutional jurisdiction to interfere with the interim and discretionary orders of the courts below because the aggrieved party can agitate all these points including refusal to summon witnesses etc. in appeal against the final order." The provisions of Act, 1963 are para-materia to that of Punjab Urban Rent Restriction Ordinance, 1959, therefore, the legal position as to competency of writ petitions against interim orders passed under Rent Act, 1963 will remain the same. 9. The result is that this petition is dismissed in limine. (MBC) Petition dismissed.

PLJ 1990 Lahore 561 PLJ 1990 Lahore 561 Present: IHSANUL HAQ CHAUDHARY, J MUHAMMAD ALI BHATTI-Appeilant Versus STATE LIFE INSURANCE CORPORATION OF PAKISTAN-Respondent S.A.O. No. 21 of 1990, dismissed on 12.9.1990 Urban Rent Restriction Ordinance, 1959 (W.P.Ord. VI of 1959)-- —S. 15(6) read with Section 13(3)(ii) and (vi)—Tenant—Ejectment of— Challenge to-Whether second appeal is competent-Question of—It is evident from bare reading of Section 15(6) that argument advanced on behalf of appellant in support of proposition that appeal is competent, is without any merit—It is clear from clause (vi) of sub-section (2) and sub-section (3)(ii) of Ordinance that "rented land" is not part of "non-residential Building"—Held: . Tenant of a rented land cannot maintain a second appeal in High Court—Held further: Appeal is a creature of statute and until and unless it is specifically and clearly provided by law, same cannot be maintained-Appeal dismissed as incompetent. " [Pp.562&563JA,B,C&D PLJ 1975 SC 331. PLD 1969 Lahore 636, AIR (29) 1942 Lahore 201, AIR 1935 P.C. 5, AIR 1925 Allahabad 380 and AIR 1974 SC 1126 rel. Mr. M. Salee/n Akhtar, Advocate for Appellant. Date of hearing: 12.9.1990. order This is second appeal filed by the tenant against an ejectment order passed by appellate authority. The relevant facts are that the respondent let out an open piece of land measuring 5' x 5' out of its premises situated at 4-Lylton Road,Lahore. The land was lei out at a monthly rent of Rs.5/- for cycle repair purpose^. The respondent filed an ejectment petition under Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance of 1959) in respect of this "rented land'. The appellant resisted the same. The learned Rent Controller framed issues, recorded evidence and after hearing the arguments dismissed the ejectment petition vide order dated 4.1.1990. The respondent impugned this order through an appeal before the appellate authority. The same was accepted vide order dated 8.7.1990. The appellant has challenged this last order through this second appeal. 2. The learned counsel for the appellant was directed to show how the second appeal is competent? The learned counsel for the appellant submitted that sub-sections(6), (7) and (8) of Section 15 of the Ordinance of 1959 were substituted by Punjab Ordinance XIII of 1990. The appeal is competent under section 15 sub-section (6), which reads as under:- "(6) In the case of a "non-residential building, a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court." 3. It is evident from bare reading of the above noted provision that argument advanced on behalf of the appellant in support of the proposition that appeal is competent is without any merit. The proposition becomes further clear if the reference is made to the legislative changes brought in the Ordinance and more particularly Section 15 are taken into consideration. The Ordinance originally provided for a second appeal to the High Court but Section 15 was redrafted and as a result thereof two major amendments were introduced:- Firstly, right of second appeal was taken away; and Secondly, the interim order under sub-section (6) of Section 13 determining approximately the amount of rent due or the rate of rent were made nonappealable. The amended provision remained in force till pronulgation of Ordinance XIII of 1990, through which Sections 4 and 5 were amended while Section 5-A was added and sub-sections (6), (7) and (8) of Section 1.5 were substituted. It is clear from this Ordinance that all the amendments were brought in respect of "nonresiclenlial building" whereas the (Rent) Restriction Ordinance deals with following four categories of the propertics:- i) 'Non-residential building', which has been defined in Section 2(d); ii) 'Rented land', which has been defined in Section 2(f); iii) 'Residential building', which has been defined in Section 2(g); and iv) 'Scheduled building', which has been defined in Section 2(h). The 'scheduled building' is infact a species of 'residential building' but for ejectment grouped with 'Non-residential building'. It is clear from the Ordinance XIII of 1990 that the amendements have been brought only in respect of the 'non-residential building'. The same is the position of sub-section (6) of Section 15 as reproduced abovL. The key words are 'non-residential building', which have been underlined by me to make it prominent. This is in contradiction to sub-section (4) of Section 15 of the original statute, according to which second appeal was competent without any specification of the property. 4. The grounds of ejectment for all sorts of properties covered by the Ordinance are detailed in Section 13 of the Ordinance of 1959. It is clear from the Here in italics. ciaii.-^ ivij of sub-section (2) and sub-section (3)(ii) of the Ordinance 1959 that 'rented land' has been separately dealt with. It is not part of 'Non-residential Building', therefore, a tenant of a 'rented land' cannot maintain a second appeal in the Hiiih Court on the force of amended sub-section (6) of Section 15 of the Ordinance of 1959. 5. It is settled law that the appeal is a creature of statute (and) until and unless it is specifically and clearly provided by law, the same cannot be maintained. The right of appeal must be established within four corners of law and cannot be assumed. I am fortified in my view by the judgment of Hon'ble Supreme Court in the case of Ibrahim Vs. Muhammad Hussain (P.L.J. 1975 S.C. 331). Incidently this was a case under Rent Restriction Ordinance, where the tenant denied the relationship and accordingly Rent Controller framed preliminary issue as to the existence of relationship of landlord and tenant. The issue was decided in favour of the landlord. The first appeal of the tenant was dismi.vsed by the appellate authority while second appeal was dismissed by this Court. The Hon'ble Supreme Court dismissed the petition of the tenant holding that no appeal was competent against the decision of the preliminary issue. The relevant portion reads as under:- It is well settled principle that right of appeal is a creature of the statute and it is not to be assumed that there is right of appeal in every matter brought before a court for its consideration. The right is expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute. Therefore, existence of right of appeal cannot be assumed on any a (?) priori ground. This is in sharp contrast with the right to sue. A litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary. Therefore, in respect of any order made in proceedings before the Rent Controller, right of appeal will have to be clearly established' within the four corners of sub-section(l) of section 15 of the Ordinance." A reference in this behalf also can be made to the cases of Bahadur Vs. Mirza Abdul Qayyum and another (P.L.D. 1969 Lahore 636), Dr.Kishan Singh Vs. Bachan Singh and others (A.I.R.(29) 1942 Lahore 201), Ohene Moore Vs. Akesseh Tayee (A.I.R. 1935 Privy Council 5), Abdul Rehman Vs. Abdul Rehman (A.I.R. 1925 Allahabad 380) and Smt. Ganga Bai Vs. Vijav Kumar and others (A.I.R.1974 S.C.1126). 6. The upshot of this discussion is that this appeal is dismissed as incompetent. However, the appellant is at liberty to impugne the order of the appellate authority through constitutional petition. MBC ; Appeal dismissed.

PLJ 1990 Lahore 563 PLJ 1990 Lahore 563 [ Multan Bench] Prtesent: MIAN nazir AKHTAR, .1 MUHAMMAD IQBAL-Petitioner versus COMMISSIONER, MULTAN DIVISION, MULTAN and 2 others-­ Respondents Writ Petition No. 30 and some other Writ Petitions of 1986, accepted on 29.5.1990. Punjab Acquisition of Land (Housing) Act, 1973 (VIII of 1973)-- —-S. 14 read with Land Acquisition Act, 1891, Sections 14, 18&31--Land- Acquisition of-Acceptance of compensation without protest-Whether appeals could be dismissed on this ground-Question of-If a person accepts compensation without protest before seeking reference under S. 18 of Land Acquisition Act, 1891, then he is debarred to press his appeal on merits- Present case is governed by provisions of Punjab Acquisition of Land (Housing) Act, 1973—Held: Appellate authority committed a grave error of law in dismissing appeals on sole consideration that petitioners had received compensation without protest-Petitions accepted. [Pp.566&567]A&B Mr. Muhammald Jahangir Arshad, Advocate instead of Kanwar Akhtar AH, Advocate for Petitioners. Mr. Tasaddaq Hussain Jillani, Addl. A.G. tor Respondents 1&2. Mr. KJialid Farooq Qureshi, Advocate for Respondent No. 3. Date of hearing: 29.5.1990. judgment This judgment will dispose of Writ Petitions No.30/86, 32/86, 212/86, 214/86, 215/86, 216/86, 217/86, 279/86, 301/86 and 303/86, as common questions of law and fact are involved in all the petitions. The petitioners were land owners of Mauza Sital Mari, Tehsil and District Mullan, whose lands were acquired by Multan Development Authority, Multan for the housing scheme known as "Shah Rukan-e-alam Phase-II, Tehsil and District Multan" under the provisions of the Punjab Acquisition of Land (Housing) Act 1973. A joint award for compensation for the lands; superstructure and fruit bearing trees was announced on 31.12.1984. The petitioners assailed the award by way of appeals under section 14 of Act VIII of 1973 claiming compensation for fruit trees and some superstructure standing on the disputed lands. During the pendency of the appeals the Commissioner appointed a commission to assess the compensation for fruit bearing trees. The report of the commission was submitted but set aside on an objection raised by the Multan Developmenl Authority. Thereafter Ch.Noor Muhammad, E.A.D.A. (Farms) was appointed as a commission who submitted his report before the appellate authority. During the pendency of the appeals the petitioners made applications for payment of compensation originally assessed by the Land Acquisition Collector, Multan Development Authority and embodied in his award dated 31.12.1984. The applications were allowed and the petitioners accordingly received various amounts of compensation. Upon this an objection was raised before the learned Commissioner that the receipt of compensation amounted to acceptance of the without any protest and were thus debarred to agitate against the award. He dismissed the appeals vide order dated 28.10.1985. The petitioners filed review applications before the Commissioner which, too, were dismissed vide order dated 8.12.1985. The learned counsel for the petitioners urged that the mere fact that the petitioners had received compensation according to the award was hardly sufficient to debar them from pressing their appeals on merits. They placed reliance on the cases of Wall Ahmad Vs. Collector Land Acquisition (1985 SCMR 224) and Aidoo Saleli and others Vs Collector/Deputy Commissioner, Lasbella District Uthal (PLJ 1985 Quetta 96 (DB). On the other hand the learned Addl: Advocate General urged that the Commissioner had rightly dismissed the appeals because after accepting the amount of compensation without protest the petitioners were debarred from challenging the correctness of the award. However, the learned counsel for the Multan Development Authority, in a straight forward and fair manner conceded that the appellate order could not be legally sustained because the learned Commissioner had mis-directed himself in applying the law relatable to cases under the Land Acquisition Act and failed to advert to the provisions of the Punjab Acquisition of Land (Housing) Act, 1973. The concession made by the learned counsel is without prejudice to the legal as well (as) factual objections which he may legitimately raise before the learned Commissioner. The appeals were filed before the learned Commissioner under section 14 of the Punjab Acquisition of Housing Act, 1973, which reads as under: - "14(1) The person entitled to compensation under the award and Government or the Official Development Agency, as the case may be, may accept the award and intimate their acceptance in writing to the Collector within the period described in section 12. (2) The Government, or as the case may be, the Official Development Agency or any person aggrieved by an award of the Collector may, within one month of such award, appeal to the Commissioner. Wticre the affected party had no intimation of the award the appeal may be filed within six weeks of the award. The Commissioner may after giving the Government or as the case may be, the Official Development Agency and the persons affected by the award an opportunity of submitting any objection to the appeal and of being heard, make such order as he may deem fit." Evidently persons who do not accept the award in writing are entitled to prefer an appeal under sub-section (2) of section 14 of the Act, within a period of one month. The learned Commissioner ought to have examined the legal objection raised before him regarding the effect of receipt of compensation, on the pending appeals with reference to provisions of section 14 of the Act. The consideration as to whether the receipt of compensation was with or without protest was relevant only under section 31 of the Land Acquisition Act, which is reproduced below: - "31. (1) On making an award under section 11 the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also thai no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this section the Collector may, with the sanction of the (Provincial Government), instead of awarding a' money compensation in respect of any land, make any arrangement with a person having.a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. If a person accepts compensation without protest before seeking reference under section 18 of the Land Acquisition Act, then he is debarred to press his appeal on merits as held in Wali Muhammad's case. In Saleh's case it was held with reference to the provisions of Land Acquisition Act that after making an application for reference to the civil court under section 18 of the Act, acceptance of compensation was to be treated to be under protest. As mentioned above the present case is governed by the provisions of the Punjab Acquisition of Land (Housing) Act, 1973. The appellate authority should have confined itself to the provisions of the said Act particularly section 14 relating to the institution of appeal by aggrieved persons for deciding the question of competence of appeals after receipt of the amounts of compensation. The appellate authority committed a grave error of law in dismissing the appeals on the sole consideration that the petitioners had received the compensation without protest. 6. I, therefore, allow the petitions and declare the impugned orders dated 28.10.1985 and 8.12.1985 to be without lawful authority and of no legal effect. B Resultantly the appeals filed by the petitioners shall be deemed to be pending before the Commissioner, who shall decide the same afresh in accordance with the law and the observations made in this judgment. The learned counsel for the Multan Development Authority and the Land Acquisition Collector, Multan Development Authority, shall be at liberty to raise their legal objection regarding the effect of receipt of the compensation on the pending appeals with reference to the provisions of section 14 of the Act, as well as other objections on merits, before the Commissioner who shall consider the same and then decide the appeals as ordered above. The parties are left to bear their own costs. (MBC) Appeals accepted.

PLJ 1990 Lahore 567 (DB) PLJ 1990 Lahore 567 (DB) [ Multan Bench] Present: MUHAMMAD MUNIR KHAN AND MUHAMMAD ARIF, JJ Mst. FAZLAN MAI-Appellant versus RAB NAWAZ and another-Respondents I.C.A. No. 39 of 1990, accepted on 27.6.1990. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491—Minor children—Recovery of—Petition for—Dismissal of—Challenge to--\Vhether habeas corpus petition was rightly dismissed—Question of— Undisputedly. three children/detenues are less than 7 years of age-One of them is a suckling babe-Appellant is real mother of children and she has not contracted second marriage whereas respondent No. 1 has recently married third wife—Held: Writ petition could have easily been adjudicated on admitted facts and there was hardly any need to record evidence or to hold investigation-Appeal accepted and case remanded. [P.568JA&B Mian Abbas Ahmad, Advocate for Appellant. Mr.M.R. KJialid, Advocate for Respondent No. 1 Date of hearing: 27.6.1990. judgment Muhammad Munir Khan, J.--This Intra-Court Appeal No.39 of 1990 arises from the judgment of learned Single Judge in Chamber whereby he on 10-6-1990 dismissed the writ of habeas (W.P.No.1045-90) filed by Mst .Fazlan Mai, appellantpetitioner, for the recovery of her minor children, namely, Chakir aged 5 1/2 years. Mst. Hasina Mai aged 3 1/2 years and Baqir aged 1 1/2 years from the alleged illegal/improper custody of their father Rubnawaz, respondent. 2. The appellant is the second wife of the respondent. A year ago the respondent herein contracted third marriage so the relations between the spouses became strained. The respondent turned her out of his house. He detained two children, namely, Chakir and Mrf.Hasina Mai with him. She was, however, allowed to take Baqir with her. Subsequently, Baqir was also deceitfully removed by the respondent from the custody of his mother/appellant so she filed Writ Petition No.1045-90 for the recovery of her minor children which was dismissed by the learned Single Judge on 10-6-1990 mainly on the ground that controversy between the parties required recording of evidence and investigation which was not possible in the writ jurisdiction. Learned counsel for the appellant submitted that undisputedly the children are under the age of 7 years; the appellant being their mother has the right of Hizanat of her children and that there being no controversy with regard to the facts relevant for the adjudication of the writ petition, there was no need to record evidence or to hold any investigation. He further argued that the writ of habeas in the circumstances being a speedy and efficacious remedy was quite competent and should have been decided on merits. Learned counsel for the respondents has opposed this appeal. We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the appellant. Undisputedly, three children/detenue are less than 7 years of age. Baqir is a suckling babe. The appellant is the real mother of the children. She has not contracted second marriage whereas the respondent has recently married third wife. We feel that the writ petition could have easily been adjudicated upon on the admitted facts and there was hardly any need to record evidence or to hold investigation. Pursuant to the above discussion, the appeal is accepted and the impugned order is set aside. Since the learned Single Judge has not considered and discussed the merits of the petition and has dismissed the same on a technical ground, so the case is remanded for fresh decision in accordance with law and may be placed before any Bench. (MBC) Appeal accepted.

PLJ 1990 Lahore 568 PLJ 1990 Lahore 568 [ Multan Bench] Present: SHEIKH MUHAMMAD zubair, J Mst. NASIM AKHTAR and 5 others-Petitioners versus S.H.O. POLICE STATION CIVIL LINES, D.G.KHAN and 2 others-­ Respondents Writ Petition No. 933 of 1990, dismissed on 28.5.1990. Constitution of Pakistan , 1973- —Art. 199—F.I.R.~Quashment of-Prayer fpr-Whether malafide registration of case is proved from record—Question of—There is no material on record to show that case has been registered nifl/o/Ide-Allegation of malafide mentioned in petition requires detailed enquiry which High Court would not like to undertake while exercising its constitutional jurisdiction-Case is at preliminary stage of investigation-Held: Police, after taking into account versions of both parties, would arrive at a conclusion whether case is genuine or false and High Court would not like to interfere with investigation of Police. Pp.57i&572]A&B Mr. Islam All Qureshi, Advocate for Petitioner. Mr. Tasaddaq Hussain Jilani, Addl. Advocate General, for Respondent No. 1. Date of hearing: 28.5.1990. judgment Through this constitutional petition, Mtf .Nasim Akhtar and five others have assailed the registration of case vide F.I.R. No. 108, dated 18.5.1990, at Police Station Civil Lines, Dera Ghazi Khan, under sections 452/380/149 and 148 P.P.C, on the ground of mala fide, and have prayed for a declaration to the effect that the very registration of the aforesaid case as well as the investigation is without lawful authority and of no legal effect. 2. Brief facts relevant for .the disposal of this petition are that Msf.Nasim Akhtar petitioner No.l, who is not an accused in the F.I.R, was married with Muhammad Ramzan petitioner No.2 vide Nikah Nama dated 4.2.1990. As per averments made in the petition, respondent No.2, the father-in-law of petitioner No.2, in order to extort money and to grab the residential house given by petitioner No.2 to his wife, extended threats to petitioner Nos.l and 2 that he would spoil their peaceful marital life, if his illegal demands were not acceded. Petitioner No.l in order to preserve her marital life filed a suit for permanent injunction against respondent No.2 and others, in the Court of Civil Judge, Dera Ghazi Khan. The Civil Judge vide his order dated 17.5.1990, granted ad interim injunction against respondent No.2 and others which is placed on the record as Annexure B/3. On the basis of aforesaid averments, the learned counsel for the petitioners urged that the F.I.R. has been registered against the petitioners mala fide and an act done mala fide is an act without jurisdiction, hence respondent No.l cannot proceed with the investigation of the above case. He has placed reliance on the following observations of their Lordships of the Supreme Court in Abdul Rauf v. Abdul Hamid KJian (P.L.D. 1965 S.C.671): "A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes". 3. The learned counsel for the petitioners next contended that as the aforesaid F.I.R. has been registered with mala fide act, hence it is liable to be quashed and the investigation which is being carried out by respondent No.l should be stopped, being no investigation in the eye of law. He cited Shahnaz Begum vs. Tlte Hon'ble Judges of the High Court of Sind and Baluchistan (P.L.D. 1971 S.C.677) and has placed reliance on the following observations:- "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A, of the Criminal Procedure Code". In addition to that, the learned counsel for the petitioners has placed reliance on Mst.Sabai and Muhammad Slur vs. Tlie State etc (N.L.R. 1988 Criminal 274), Mst.Haleema Bibi vs. Tlie State (N.L.R. 1988 Criminal 280) and Ameer etc vs S.H.O. Police Station Jhang etc (N.L.R. 1988 Criminal 468) to show that if the F.I.R. is lodged with mala fide , then this Court thas the power while exercising its constitutional jurisdiction to quash that F.I.R, and if no offence is made out from the bare reading of the F.I.R, still this Court would quash the F.I.R. and stop the further investigation in the interest of justice. The learned Additional Advocate-General has appeared at the preliminary stage in pursuance of the order of this Court dated 27.5.1990 and has procured the attendance of the police officer who is seized of the investigation of the aforesaid case. The investigating officer has informed that the investigation is at a very preliminary stage and A/tf.Nasim Akhtar who is the star witness of the prosecution has not so far made her statement before the police under section 161 Cr.P.C. He further assured this Court that if during the course of investigation, the petitioners were found innocent, then he would not file the challan. The learned Additional Advocate-General submitted that he has no cavil with the legal proposition that if a case has been registered mala fide, which is proved from the record itself, then this Court has the jurisdiction under the constitution to quash the F.I.R, as well as the investigation incidental thereto. He submitted that in order to arrive at a conclusion whether an act is mala fide in law or not, this Court would not enter into the realm of facts and decide controversial facts which require recording of further evidence and elaborate enquiry, and has placed reliance on Muhammad SaeedAzhar vs. Martial Law Administrator, Punjab and others (1979 S.C.M.R. 484), where their Lordships observed:- "Question of alleged mala fides on part of local police requires factual investigation. """Factual investigation could not be undertaken by High Court in exercise of its writ jurisdiction". The learned Additional Advocate-General also submitted that on pure legal grounds, normally this court while exercising its writ jurisdiction as well as power under section 561-A Cr.P.C, would not like to quash the investigation, because under the provisions of Criminal Procedure Code, the police has got a statutory right to investigate a cognizable case. It is in very exceptional cases where the interest of justice demands that this Court would interfere in the investigation of a case. He has placed reliance on the following observations of their Lordships of the Privy Council in Emperor vs. Nazir Ahmad (A.I.R. 1945 P.C.45):- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The func inns of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491 Cr.P.C, to give directions in the nature oihabeas corpus". Similarly on the same point he placed reliance on Malik Ghulam Ahmad vs. Muhammad Yousuf and others (P.L.D. 1976 S.C.271), where their Lordships of the Supreme Court set aside the order of the High Court, whereby the learned Judces of the High Court quashed the investigation of the case on the ground that the Special Police Establishment was not empowered to investigate a case, where no interest in the Evacuee Property was involved, the learned Judges of the August Supreme Court observed, thai in view of the observations referred to above the Special Police investigation at a preliminary stage cannot be interfered with or quashed. (). With respect to the assertion of the learned counsel for the petitioners that the present F.l.R. is the outcome of malice on the part of the complainant, hence it should be quashed, learned Additional Advocate-General submitted that this may be a motive lor lodging the F.l.R. at the most, but on this sole ground without there being any supporting material on the record, this Court in view of the case law cited above, would not quash the F.l.R, especially when it requires elaborate enquiry into the disputed facts, which cannot be under-taken in the Writ jurisdiction. Additional Advocate-General submitted that except bare words of the petitioners that the complainant is a greedy person, hence he lodged the F.l.R. falsely and maliciously, these assertions by itself, without any other material on the record, are not sufficient in the eye of law, to make the lodging of the F.l.R, a malicious or mala fide act. According to the learned Law Officer, the police during the course of investigation would probe into this aspect of the case, if it comes to the conclusion on the basis of material collected, the case is false, of course, then police would not file the challan in the Court, hence at this stage, it cannot be urged that the investigation being conducted by the police is without lawful authority, and requires interference by this Court in exercise of its constitutional jurisdiction. After hearing the learned counsel for the parties and examining their respective submissions, I find there is no material on the record, to show that the case has been registered mala fide,so the police be restrained from proceeding with the investigation, the allegation of mala fide mentioned in the petition requires detailed enquiry, which this Court would not like to under-take, while exercising its constitutional jurisdiction. The upshot of the above discussion is that the petitioners have failed to make out a case that the F.l.R. has been lodged mala file or with ulterior motive. The case is at preliminary stage of investigation, the police after taking into account, the versions of both the parties, would arrive at a conclusion, whether the case is genuine or false, at this stage, this Court would not like to interfere with the investigation of the police. The petition is dismissed in limine. (MBC) Petition dismissed

PLJ 1990 Lahore 572 PLJ 1990 Lahore 572 Present: fazal karim, J S. GHAYYUR HUSSAIN SHAH-Appellant Versus GHARIB ALAM (deceased) etc. --Respondents. R.S A. No. 39 of 1966, accepted on 20.6.1990 (i) Constitution of Pakistan, 1973- Arts. 4&14~Malicious Prosecution~Damages~Suit for-Whether foundation of action for damages for malicious prosecution lies in abuse of process of court or in abuse of process of law—Question of-Article 4 of Constitution forbids any action detrimental to life, liberty, body, reputation or property of any person except in accordance with law-It is no more necessary to hedge in an action for damages for malicious prosecution by condition that action was an abuse of "process of court"~Held: Foundation of action for damages for malicious prosecution lies, not in abuse of process of court, but in abuse of process of law-Held further: Proceedings before police afford a stronger ground for an action for malicious prosecution than proceedings in a court of law. [P.581]C PLD1990SC28w/ (ii) Dispensation of Justice- —Malicious prosecution-Damages-Suit for-Whether it is necessary to follow decisions of Privy Council-Question of-Historical continuity is neither a legal duty nor a necessity nor should respect for decisions of Privy Council degenerate into mechanical slavery-Held: We can take English common law from where it left off in 1947 and develope and modify it to bring it into accord with genius of our own law. [P.580JB (iii) Malicious Prosecution— —Malicious prosecution-Damages-Suit for-Whether damages can be awarded-Question of~Held: If a plaintiff is able to prove that proceedings against him were malicious, without reasonable and probable cause, that they terminated in his favour and that proceedings had resulted in damage to his person, property or reputation, then he should recover damages whether proceedings be before a civil court, before police or before a criminal court-­ Held further: All these ingredients were fully established in this case and decrees of trial court were wrongly set aside by lower appellate court. (P.581JD&E (iv) Malicious Prosecution- —-Malicious prosccution-Damages-Suit for--Whethcr suits and appeals had abated on death of tort fcascr-Queslion of--Argumcnt that maxim "personal actions die with person" is applicable-It is common knowledge that if a man is subjected to false and malicious prosecution, object is to persecute and harass not only that man but his dependents and family members also-Resulting damage is not confined to that man, but entire family suffers-Held: Maxim is repugnant to spirit and principles of Islam—Held further: Hoary fallacy from which common law suffers, must give way to one of first principles of Islamic law that a dead man's heirs are, in appropriate cases, entitled to be compensated-Appeals accepted. fPp.581,583&584]F,G,H,.J£K AIR 1939 Lahore 492 and AIR 1937 Nagpur 216 not followed, (v) Malicious Prosecution- —Malicious proscculion--Damages-Suit for-Whether damages can be awarded—Question of—Word "prosecution" in context of malicious prosecution is not to be understood in technical sense which it bears in criminal law-Held: Plaintiff is entitlled to damages if he is able to prove thai proceedings, whether civil or criminal, were malicious and were instituted without reasonable and probable cause and that he suffered damage. [P.578JA AIR 1944 Privy Council 1, AIR 1947 Privy Council 108, PLD 1964 Dacca 111, AIR 1926 Privy Council 46, 1901 A.C. 495 discussed. 5/i. Abdur Rashccd, Advocate for Appellant. Pir Anwar Rchinan, Advocate for Respondents. Date of hearing: 5.5.1990. judgment This will dispose of R.S.A. No.39 of 1966 by Syed Ghayyur Hussain Shah, plaintiff, and R.SA. No.40 of 1966 by Muhammad Shafique, plaintiff. The facts giving rise to them are as follows. On 1.9.1961. Alamgir, defendant, lodged a first information report at P.S. Sadar Sheikhupura, alleging that the accused persons, Syed Ghayyur Hussain Shah (plaintiff) Raja Khush Bakhtur Rehman and Muhammad Shafique (plaintiff) had, on 31.8.1961, in pursuance of a conspiracy to murder Muhammad Hanif, defendant, abducted him from a point at Lahore Sheikhupura road. The case was investigated and the allegations were found false and baseless. The police, therefore, recommended for the cancellation of the case and the FIR was cancelled by the Ilaqa Magistrate's order dated 18.4.1962.- Two suits for damages for malicious prosecution were brought; one by Syed Ghayyur Hussain Shah and the other by Muhammad Shafique. According to the plaintiffs, the truth of the matter was that no such incident of abduction had taken place; that in lodging the false report and in proceeding against them, the defendants Gharib Alam, Alamgir and Muhammad Hanif, now respondents, were actuated by malice and enmity and that as a result of this false prosecution, the plaintiffs had suffered humiliation and a set back to their reputation and fair fame. The plaintiffs belonged to a respectable family; the father of Syed Ghayyur Hussain Shah, plaintiff, had been an honorary life Magistrate and as a result of this false prosecution, Muhammad Shafiquc, plaintiff, had suffered so much in good fame that his engagement with his would be wife was broken. The suits were contested by Gharib Alam and Muhammad Hanif, defendants; Alamgir, defendant, was exparte. In his written statement, Gharib Alam, defendant, merely denied the allegation that the case against the plaintiffs and their co-accused was a false case. Muhammad Hanif, defendant, admitted that the case was false and that it was the result of investigation of Gharib Alam, defendant. He, however, denied that he had taken part in the prosecution of the plaintiffs and their co-accused. On the parties pleadings, the learned Civil Judge formulated the following issues:- Whether defendant Nos.l to 3 lodged a false and malicious prosecution against the plaintiff and then prosecuted him? Whether the reputation of the plaintiff suffered damage on account of the said false and malicious prosecution and he sustained mental and financial loss? Whether the plaintiff was entitled to any damage? If so, what amount? Relief. By his elaborate and well considered judgments, the learned Civil Judge found issue No.l in the plaintiffs' favour; in his opinion, "the prosecution had been lodged with absolutely no cause whatsoever let alone its being reasonable or probable. This is not the case of making a mountain out of a mole but is an example of a mountain out of nothing." As to issue No.2, the learned Civil Judge held that there was conclusive and cogent proof "that the plaintiff and his companions had not only incurred expenses to get themselves rid off a false charge inflicted on them maliciously by defendant No.l (Gharib Alam) but also suffered heavy monetary set back being practically unable to attend to his personal business on account of his continuous absence from his place and his mental shake up". It was clear to the earned Civil Judge that the plaintiff and his companions had "actually suffered physically, socially, financially, mentally and sychologically". He, therefore, held the defendants, Gharib Alam and Alamgir, liable to pay Rs.5000/- as damages "jointly and severally" in each suit. Gharib Alam, defendant, appealed. Before the learned Additional District Judge it was argued that "even if the plaintiffs' case is held to be correct, no decree for damages for malicious prosecution could be passed against him" because the plaintiff had not been arrested and had not been summoned by a Court. The learned Additional District Judge referred to certain precedent cases, including Raja Braja Sunder Deb and others Vs. Bamdeb Das alias Patlanaik and others (AIR 1944 Privy Council 1) and held: "A perusal of these authorities shows that it has been held in very clear terms that where a report is made to the police in consequence of which no prosecution is lodged in a Court by the police, it cannot be said that there was malicious prosecution." For the opposite view, Muhammad Amin Vs Jogendra Kumar Bannetjee and f.ihen (AIR 1947 Privy Council 108) and Nabir Shaha Vs. Shamsuddin and others PLD 1964 Dacca 111) were cited before the learned Additional District Judge ind he observed that in those cases, the accused were discharged after being summoned in Court; in any case, so observed the learned Additional District Judge, "It has been clearly laid down that if the matter does not reach the Court and the proceedings are dropped after investigation only, it cannot be said to be a case of malicious prosecution at the hands of the maker of the report". The learned Additional District Judge was, therefore, unable to "subscribe to the view of the learned trial Judge that from the evidence on record a charge of malicious prosecution has been made out against the appellant". The learned Additional District Judge then proceeded to consider the question whether "the present decree can be maintained as the decree for damages for slander and libel" and held that "there can be no doubt that the imputation of abduction with the intention to murder makes the appellant liable for damages for slander and libel". The learned Additional District Judge was however of the view that the suit, if it was treated to be a suit for slander and libel, was barred by time. In his view. Articles 24 and 25 of the Second Schedule to the Limitation Act applied to such a suit, under those Articles, the period of limitation was one year from the date of libel and slander and as in the present case, the first information report was made on 1.9.1961 and the suit was instituted on 7.1.1963, it was "more than one year after the imputation". In short, the learned Additional District Judge was of the opinion that on the facts of the case, "no decree can be passed in favour of the plaintiff on the ground of malicious prosecution and that the present decree cannot be maintained as a decree for damages on ground of slander and libel because of the bar of limitation". It ought to be mentioned here that but for this view of the law, the learned Additional District Judge would have dismissed the appeals and maintained the decree of the learned Civil Judge, for as regards the findings of fact that the plaintiffs had suffered damage as a result of the proceedings against them, the learned Additional District Judge was in agreement with the learned Civil Judge that the circumstances of the case "go to show that a false allegation was made against the plaintiffs and others about abduction of Muhammad Hanif at their hands" and that the plaintiffs had suffered "mentally and ill-repute" by the false allegations against them. The first question that must be asked is whether the view of the law taken by the learned Additional District Judge is supportable by the precedent cases. For that purpose, I will be content to refer to the principles to be gleaned from three Privy Council cases, namely, Bilbhaddar Singh and another Vs. Badri Shah and another (AIR 1926 Privy Council 46), Raja Baraja Deb and others Vs. Bamdeb Das alias Pattanaik and others (AIR 1944 Privey Council 1) and Muhammad Amin . Jogcndra Kumar Bannerjee and others (AIR 1947 Privy Council 108). Before considering the rationes decidendi of these cases it is well to recall to mind two observations of a general character made by Lord Halsbury in Quinn Vs. Leathern (1901 A.C. 495, 506): "One is to repeal what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it." 12. In the first case (AIR 1926 Privy Council 46) the appellants before the Privy Council had been accused of the murder of one Sher Bakhsh. As a result of an inquiry, a Magistrate issued warrants for their arrest. The warrants could not be executed but when the case was taken up on the next day, the Magistrate discharged the appellants who had without the execution of the warrants of arrest voluntarily appeared. When the case reached the Court of the District Judge, some doubt arose whether this discharge was right and the summonses were issued to the appellants to appear before the District Judge. The District Judge again discharged the appellants "considering that there was no sufficient evidence to warrant their being put on their trial". These facts were held to be sufficient for founding an action for malicious prosecution; it was held: "In any country, where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble is caused, an action will lie." But as a result of the appraisement of the evidence, the Privy Council found that "there is not sufficient certainty in this doubtful matter to find that the appellants have discharged the heavy onus laid upon them", namely, that the story implicating the appellants had been invented. In the second case (AIR 1944 Privy Council 1), the question was whether the plaintiff Raja of Aul had a cause of action for malicious prosecution. As regards him, the first information report suggested that he was to a large extent responsible for the purchase of a girl for sexual intercourse; as a result of this information, in the charge-sheet prepared by the police, the Raja was noted as an accused not sent up for trial and in fact he was never sent up. No criminal proceedings were ever taken against him. It was, in these circumstances, held that he had no cause of action. In the third case (AIR 1947 Privy Council 108), the facts were follows. An agreement was entered into between the appellant and respondent No.l whereby the appellant had agreed to sell certain properly to a company which was formed by respondent No.l. The appellant alleged that subsequently, an oral agreement was made between himself and respondent No.l containing certain provisions which went beyond the wrilten agreement. Respondent No.3 company was incorporated in order to carry out the purchase from the appellant and certain property was transferred by the appellant to the company. Subsequently, the appellant took the view ihat the terms of the oral agreement which he had made with respondent No.l had not been carried out and accordingly, he refused to transfer the rest of the property included in the sale to the company. It was upon these facts that respondent No.2 acting on behalf of himself and respondents No.l and 3 filed a complaint against the appellant in the Court of the Magistrate under Section 190 of the Cr.P.C; it was said that as the appellant had refused to deliver the remainder of the properties agreed to be sold, he had committed an offence under Section 420 of the Penal Code or Section 406 of that Code. The charge was duly registered under Section 420 of the Penal Code. The Magistrate having taken cogni/ancc of the complaint, forwarded it to one Mr.Kukarji for inquiry and report under Section 202 of the Cr.P.C. The Magistrate gave the appellant a notice of the complaint against him and informed him that the inquiry would he held on certain dates. Later, the inquiry was entrusted to one Mr.Peenraji; he too did not hold the inquiry. Thereupon the Magistrate himself held the inquiry in open Court. Notice of the inquiry was given to the appellant who attended with counsel. The Magistrate, after inquiry, concluded that no case of cheating or for the matter of that no criminal case of any nature was made out by the complainant and he dismissed the complaint under Section 203 of the Cr.P.C. After a survey of a large body of case law, the Privy Council held: The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings institute against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage. As long ago as 1698 it was held by Holt C.J. in 1 It. Raym. 374 that damages might be claimed in such an action under three heads, (1) damage to the person (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since. That the word 'prosecution' in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings, for instance falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company: (1888) 11 Q.B.D. 674. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, as explained by Bowcn LJ. in the last mentioned case, that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the unsuccessful party. But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged docs necessarily and naturally involve damage and in such a case damage to reputation will be presumed. From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results. But in this case the Magistrate took cognisance of the complaint, examined the complaintant on oath, held an inquiry in open Court under S.202 which the plaintiff attended, and, at which as the learned Judge has found, he incurred costs in defending himself. The plaint alleged the institution of criminal proceedings of a character necessarily involving damage to reputation and gave particulars of special damage alleged to have been suffered by the plaintiff. Their Lordships think that the action was well founded, and on the findings at the trial the plaintiff is entitled to judgment." It will be seen that in none of these cases was there prosecution in the technical sense. In the first case (AIR 1926 Privy Council 46) all that happened was that the appellants were summoned by the Magistrate through warrants of arrest and by the District Judge by summonses but the appellants had not been arrested; nor had they been proceeded against for the charge of the murder of Shcr Bakhsh. In the second case there was only a suggestion in the first information report that Raja of Aul was responsible for the purchase of a girl for sexual intercourse; no proceedings of any kind cither before the Police or any Court appear to have been held against him. In the third case (AIR 1947 Privy Council 108) the complaint had not gone beyond the stage of inquiry under Section 202 of the Cr.P.C. Yet, in the first as also in the third case the person responsible for the proceedings against the plaintiff would have been held liable for damages for malicious prosecution but for the fact that the evidence adduced was not sufficient to found the actions. As has been observed above, the second case (AIR 1944 Privy Council 1) upon which the learned Additional District Judge had so heavily relied was a case in which there had been no proceedings whatever against the Raja of Aul. That case must, therefore, be held to be an authority for its own facts, The principles deducible from these cases, if I may venture to summarise them, are that the word "prosecution" in the context of malicious prosecution is not to be understood in the technical sense which it bears in the criminal law; that A the plaintiff is entitled to damages, if he is able to prove that the proceedings, whether civil or criminal, were malicious and were instituted without reasonable and probable cause and that he has suffered damage. As regards criminal proceedings, involving scandal to reputation or possible loss of life or liberty to the plaintiff, they do necessarily and naturally involve damage and in such cases, damage to reputation will be presumed. 17. The real test, therefore, is not whether the label of prosecution applies to such proceedings; it is whether they "have reached a stage at which damage to the plaintiff results". As Lord Reid said in H.West & Sons Ltd. Vs. Shepherd (1964 A.C. 326, 342). "damages are awarded not to punish the wrong-doer but to compensate the man injured". IS. The true rule, if I may say so with great respect, which I would respectfully adopt, was laid down in Nabcr Shaha Vs. Shain-sn-ddin and others (PLD 1964 Dacca 11). The facts of that case have a close similarity to the facts of this case. There was a burglary in the house of Shams-ud-Din, defendant; the lalter's cousin, Jalil-ul-Haq lodged an FIR, in which he named the plaintiff as the person suspected to have some sort of connection with the theft and suspected thieves. On the basis of that first information report, investigation was started and the house was searched by the Investigating Officer. Ultimately, the police submitted a final report under Section 173 of the Cr.P.C. and the FIR was cancelled. During the investigation, the plaintiff being apprehensive of his arrest voluntarily surrendered and was allowed bail. On behalf of the plaintiff, search and defamation were relied upon as grounds for damages and the question was whether "in a suit for damages for malicious prosecution, the alleged defamation and defamatory statements which, according to the plaintiff, lowered him down in the estimation of the public, can be the basis for damages for defamation independently of the malicious prosecution of (?) the purpose of determining the amouni of damage. It was found that "whatever damages the plaintiff claimed were on account of false prosecution which impaired his reputation by defaming him in the eyes of the public and there is no separale cause of defamation. If the plaintiff fails in establishing his ease of malicious prosecution without reasonable and probable cause, we do not think that he can claim, in this suit, compensation for defamation apart from malicious prosecution which was stated as a cause for damages for malicious prosecution." Regarding the question whether the information to the police which did not culiminate in or reach the stage of prosecution could be called a prosecution for the purpose of an action for dam.iucs for malicious prosecution, it was held: "Though the information to the police before it reached the stage of going before the Court cannot be technically called a prosecution within the meaning of the Code of Criminal Procedure, but for the purpose of malicious prosecution any proceeding akin to prosecution is enough. If it is proved that there is no reasonable and probable cause for such a proceeding against the plaintiff and if it is malicious, then certainly the person injured is entitled to the compensation". 19. But even if I am wrong in thinking that the Privy Council cases referred to above lend themselves to the view that the proceedings in this case amounted to milicious prosecution. I should take this opportunity to re-examine the law so that it is modified "to bring it into closer accord with the changed conditions in which it falls to be applied today". In so doing, I feel encouraged by the guidance to be gained from the decision in a recent case namely, Muhammad Akram Vs. Fannan Bi of my learned brother Gul Zarin Kiyani J (reported as PLD 1989 Lahore 200) and affirmed by the Supreme Court (reported as PLD 1990 S.C.28). 20. First, a word about the English common law, for it was said in Muhammad Amin Vs. Jogcndar Kumar Banncrjcc (AIR 1947 P.C. 108) that the action for damages lor malicious prosecution is part of that law. 21. The English common law is the national law of England. It has developed on a case to case basis, gradually, in response to the pressures of particular situations, the teaching of experience, the guidance of ideal and general principles and the influences of legislation. (Carnelius C.J. in Abul Ala Maudoodi case - PLD 1964 S.C. 673). Before independence, the English common law was applied in India, first because the Government of India Act, 1935, expressly provided that the law declared by any judgment of the Privy Council was binding on and should be followed by all Courts in British India, and secondly in the guise of the principle of "equity, justice and good conscience". Though, the Privy Council decisions are still held entitled to great respect, yet, both these bases have long ceased to be valid in Pakistan. We are governed by a written Constitution; and have an ideology based on the religion of Islam. Common law of England is not, and cannot be, the common law or the national law of Pakistan. It was held by the Supreme Court in Muhammad Akrain Vs. Fannan Bi that a suit for malicious prosecution is a suit of a civil nature within the meaning of Section 9 of the Code of Civil Procedure, and that makes resort to the common law of England unnecessary. As regards the question whether the rule of common law of England as laid down in Muhammad Amin's case can be pressed into service as an implied bar, it was held: "The resort to a rule of common law of England in preference to the one of Pakistan Law or a rule of Islamic law or jurisprudence; or for that matter, the Islam common law, is not now possible under the Pakistan Constitutional legal set up". 22. The common law of any country must almost invariably march in step with common sense; it must accornodatc, to borrow that classic phrase of Holmes, to "the felt necessities of the times". For. it is a manifestation of an eternal struggle between constancy and change; a struggle between past reason and present needs. As was said in a recent English case, namely, MacShannon Vs. Rockwarc Ltd. (1978)1 All ER 625 at 629): "The progress of the common law is gradual. It is undertaken step by step as what has been stated in previous preceedent to be the law is reexamined and modified so as to bring it into closer accord with the changed conditions in which it falls to be applied today". Thus, historical continuity is neither a legal duty nor a necessity for us; nor should respect for the decisions of the Privy Council degenerate into mechanical slavery. We can, therefore, take the English common law from where it left off in 1947 and devclope and modify it so as to "bring it into closer accord with the changed conditions in which it falls to be applied today", or to put it in another way, to bring it into accord with the genius of our own law. The genius of our law is enshrined in the Constitution and so that there is no doubt about it the Constitution is written. The preamble of the Constitution declares it to be the will of the people of Pakistan to establish an order wherein, among others, the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed, and the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution guarantees the dignity of man, and, subject to law, the privacy of home. 25. Good reputation or fair name is a basic right of a citizen in Islam. Muhammad Akram Vs. Fannan Bi (PLD 1990 S.C.28,39). As Article 4 of the Constitution forbids any action detrimental to the life, liberty, body, reputation or property of any person to be taken except in accordance with law, it should follow logically that if any such action is taken and it is not in accordance with law, damage will be presumed. It is plain that a person may as well suffer by an action detrimental to his life, liberty, body, reputation or property which is not in accordance with law in proceedings in Court as in proceedings before an executive or administrative authority. In the context of the Constitution, therefore, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court". It will, in my opinion, be more in consonance with the genius of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of the Court, but in the abuse of the process of law. For, if we bear in mind the stark realities of life, it should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in a Court of law, for it (is) an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of Law. I would hold, therefore, that if a plaintiff is able to prove that he was proceeded against by the defendant, that the proceedings were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible) and that the proceedings had resulted in damage to his person, property or reputation, then he should recover damages, whether the proceedings be before a civil Court, before the police or before a criminal Court. It has been seen above that all these ingredients were fully established in this case. In the result, I would hold that the decrees of the learned Civil Judge were wrongly set aside by the learned Additional District Judge. The tort feaser, Gharib 'Alam has died, and this raises the question whether the suits as well as the appeals have abated. It is argued that the maxim that applies in such cases is that personal actions die with the person. It will in this behalf be sufficient to refer to Mahant Saliq Ram Vs. Charam Dass and another (AIR 1939 Lahore 492), in which the legal position was summarised as follows: "It is no doubt true that the right to get compensation for malicious prosecution is personal to the person wronged, and to such a right the maxim aclio personalis motititr cum persona, (a personal right of action dies with the person) fully applies. If therefore such person dies before suing lhe wrong doer, his heirs, executors or. administrator cannot, after his death, maintain an action for the same relief against the wrong doer^ In such a case clearly there is a discharge of the tort by the death of theperson wronged, and the wrong doer is released from all liability for his tortious act. It is equally clear that if the injured person had brought a suit in his life-time, but had died before a decree had been passed in his favour, the suit would have abated and his legal representatives could not have continued the suit after his death, for the 'right to sue' in such a case being personal to the deceased did not 'survive' (0.22.R.I, Civil P.C.). The position however is different when the suit had been decided in the plaintiffs lifetime and a decree passed in his favour granting him compensation. On the passing of the decree there is no longer an action pcrsonalis in existence; it has passed into a judgment and become a mailer of record (transit in rein judicatum). The original personal claim has merged in the decree of the Court and as such its character has entirely changed. The quondam plaintiff, as the decree-holder, has acquired the right to realize the amount decreed from the judgmentdebtor, and this is a right of an entirely diffeent character. He may enforce it himself by process of law, or (unlike the original claim) he may assign it to a third party, who can execute the decree. Further the decree itself (also unlike the original claim) is ILTolc to attachment by a creditor of the decree-holder. It has to all intents and purposes, become a part of the 'property' of the decree-holder and, on his death, it devolves, as a part of his estate, on his heirs, executors or administrators, and they can execute it in the same manner as he would have done, if alive." 30. Learned counsel for the respondents also strongly relied upon Afaniiwnlala Balim/nlala v. Mst. Chattibai & another (AIR 1931 Nagpur 216) for his contention that as the decree in the plaintiffs favour was set aside by the First Appellate Court, the death of Gharib Alam has resulted in the abatement of this appeal against him. In that case, the plaintiff was awarded a decree for Rs.400/-. On appeal, the decree was reversed and the plaintiffs suit was dismissed. The plaintiff preferred a second appeal when the defendant died. The defendant's egal representatives raised the objection that the right to sue did not survive and that the appeal had abated. It was held that "it is clear law that an action for defamation is a personal one, and if the defendant had died during the course of the original trial the case would undoubtedly have abated ihc matter is undoubtedly transit in rein judicatam, but the first decree has been wiped out by the appellate decree which grants no relief to the present appellant and imposed no liability on him except for payment of costs". It was also held that the plaintiff in such a case was practically in the position in which he was before he started the litigation so far as his claim was concerned; "in such a case there seems no valid reason why the litigation should not rest". 31. Now there are, in my opinion, a number of reasons for holding that the appeals have not abated. The first is that the maxim that personal actions die with the person is a Roman maxim of doubtful origin. As has been said by that great author, Sir Frederick Pollock, in his book "The Genius of the Common Law" the maxim has no authority to support it. This is what he has to say on the subject: "Mao. unluckily some one got hold of a supposed Roman maxim, for vkch there is really no authority, that 'personal actions die with the person'. By further ill luck an opinion for which classical Roman warrant docs exist came to reinforce this pretended authority, the opinion that a free man's life is incapable of pecuniary valuation. It is a fine ethical observation, but, I venture to think, inappropriate in the field of legal justice. In the result, the Common Law was saddled with the rule that the death of a human being cannot give rise to a civil cause of action, one of the most foolish rules, if I dare say so, that have ever been adopted by the Courts of a civilixed country; and we have to learn for law that, except for statutory exceptions, and apart from criminal liability, a man wounds or disables another at his peril, but may kill him outright with impunity". I cannot, therefore, see any reason, and none was suggested, why we should import such a maxim into our law, particularly when instead of advancing the cause of justice, it has the effect of depriving the legal heirs of a plaintiff of their right to recover damages. It is common knowledge that if a man is subjected to false and malicious prosecution, the object is to persecute and harass not only that man but his dependants and family members also. Thus, the resulting damage is nol confined to ihat man; the entire family suffers. 1 cannot, therefore, agree in thinking that the action is personal to the plaintiff and the defendant and it dies with them. One of (be objects of actions for damages for malicious prosecution is "to discourage the perversion of the machinery of justice for an improper purpose" and it would be scandalous to say that though the entire family has suffered humiliation, mental torture as well as financially, yet the death of the plaintiff or the defendant puts an end to the action. There is then the well Icnpwn maxim, an act of the Court shall prejudice no man, which is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. Herbert Broom, in his well known book on "Legal Maxims", says: "In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the parly ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and, therefore, if one party to an action dies during a curia advisari vull, judgment may be entered mine pro lunc, for the delay is the act of the Court, for which neither party should suffer". This maxim of justice and good sense applies to the facts of this case in this way that a decree for damages had been passed in Ihe plaintiffs favour, and if the learned Additional District Judge had not proccdcd on a wrong view of the law, the decree would have been maintained. This appeal was instituted as far back as May, 1966. Gharib Alam, defendant, died recently and if this appeal had been decided within a reasonable time of its institution the situation with which we are confronted as a result of the death of Gharib Alam, would not have arisen. It is obvious thai the appellants are, in no way, to blame for the delay in the decision of these appeals and it will, therefore, be wholly unjust to punish them for something far which they are nol responsible at all. As has been seen above, it was not on the merits of the case that the learned Additional District Judge reversed the decree of the learned Civil Judge. He would have dismissed Gharib Atom's appeals, but for the wrong view of the law, which led him to hold that the facts of the case did not amount to malicious prosecution. 35. The last and the most important reason is that the so-called maxim that personal actions die with the person is repugnant to the spirit and the commonense principles underlying the law of Islam. The rule of the English common law that the death of a human being cannot give rise to a civil cause of action is based upon the principle that a dead-man cannot be compensated. What it fails to take into account is that if the dead-man cannot be compensated, his dependants, who had suffered with him, can be compensated. In sharp contrast to this view, Islam allows the victim and his heirs, even in cases of serious crimes, to accept monetary or other compensation from the criminal and the Slate "must to its best assist them in achieving their object and in appropriately exercising their rights". (Per Shfi-ur-Rehman J in Federation of Pakistan v. Gul Hassan Klwn--PLD 1989 S.C. 633, 684). The hoary fallacy from which the common law suffers must, therefore, give way to one of the first principles of the Islamic Law that a dead-man's heirs are, in appropriate case, entitled to be compensated. 36. For these reasons, the appeals are accepted, the judgments and decrees of the learned Additional District Judge dated 21.9.1965 are set aside and the judgments and decrees of the learned Civil Judge dated 25.5.1964 are restored. In the circumstances of the case, and in view of the time that has elapsed since the filing of these appeals, the parties are left to bear their own costs. (MBC) Appeals accepted.

PLJ 1990 Peshawar 1 (DB) PLJ 1990 Peshawar 1 (DB) [Circuit Bench, Abbottabad] Present-. raza ahmad khan and abdur rehman khan, JJ MUHAMMAD FARID KHAN-Petitioner Versus CIVIL JUDGE 1ST CLASS ABBOTTABAD and 3 others-Respondents Writ Petition No. 1 of 1989, dismissed on 22-1-1989. M^Cbvts Act, 1564 (WP Act XXXV of 1964)- —SJ3<3) &. 17 read with Civil Procedure Code 1908, O XXI R30~Money decree in family matters-Execution of—Challenge to—There is no special fBUiiiina in Act about manner or mode of execution of decrees—No denial of fat that proceedings before family court are in nature of civil proceedings—Held: Execution court exercising its discretion to refrain from issuing direction for recovery of decretal amount as arrears of land revenue under section 13(3) can follow procedure contained in C.P.C—Held further: Courts below have not committed any violation of law by adopting procedure contained in Order XXI Rule 30 of C.P.C~Petition dismissed. [P. 3]A, B&C Haji Ghulam Basil, Advocate for Petitioner. Date of hearing: 22-1-1989. order Raza Ahmad Khan, J.-By this writ petition, Mohammad Farid Petitioner has called into question the orders of respondents 1 to 3 at various stages of the litigation between him and his wife Mst. Gul Nasreen on the question of payment of the dower money amounting to Rs. 50,000/- and maintenance amount at the rate of Rs. 500/-per mensum from 19-4-1984 to 15-12-1984 which was finally decreed in her favour and the final order being that of the learned Additional district Judge Abbottabad (respondent No. 3) dated 6-12-1988 whereby the revision petition against the order of the executing court was dismissed with costs. 2. We have heard Haji Ghulam Basil, Advocate, the learned counsel for the petitioner at length. His main contention is that under sub-section (3) of section 13 of the Family Courts Act, 1964 (hereinafter referred to as the Act), a mode of execution of money decree is prescribed in that the payment of the decretal amount, if not paid within a time specified by the Court, is to be recovered as arrears of land revenue. In this context of the matter, the learned counsel urged that the decretal amount of the suit could be realized only under Chapter IX of the West Pakistan Land Revenue Act, 1962 while the learned lower courts have adopted the mode of realization of the decretal amount under the Code of Civil Procedure vide its Order 21 Rule 30. He also referred to section 17 of the Act whereby except sections 10 and 11 of the Code of Civil Procedure, the other provisions of the Code, shall not apply to the proceedings before any Family Court. He therefore, maintained that the procedure adopted by the learned execution court, being not in accord with section 13 of the Act, the impugned orders are without jurisdiction and of no legal effect on the rights of the petitioner. 3. It would be advantageous for the purpose of ready reference to reproduce the relevant provision of section 13 of the Family Courts Act, 1964: 13(1) , .... (2) ........................... (3) where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the court so direct, be recovered as arrears of land revenue and on recovery shall be paid to the decree-holder. (4) The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct; (5) A Family Court may, if it so deems fit direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit". A plain reading of the above quoted provisions will firstly indicate that execution of a decree, in general, is to be done by either the Family Court itself or by such other civil court as the District Judge may direct by special or general order. Secondly a distinction is made in the matters pertaining to money' decree inasmuch as at the first instance the executing court is required to direct the judgment debtor to pay the decretal amount within a specified time. If he fails in doing so, then there appear to be two courses open to the executing court. One, to follow the course of recovery of decretal amount as arrears of land revenue and in this regard it is required to issue a direction specifically in compliance with sub­section (3) of section 13 of the Act. Or, it will adopt other means to effect the recovery of the decretal amount. We are, therefore, clear in our minds that failure 7. He learned counsel cited a case decided by this Court, Lai Mohammad Me Panvar reported in PLD 1970 Peshawar page 52 at the bar. This I am afraid, will not advance the case of the petitioner inasmuch as the before die learned single Judge primarily related to the execution of a of cuijqgal rights and it did not necessitate to examine in depth the of the execution of a money decree, as in the instant case, in the perspective of sub-section (3) of section 13 of the Act. 8. We are, therefore, of the considered opinion that in the present case too, by adopting the procedure as contained in Order 21 rule 30 of the Code of Civil Procedure, instead of the one prescribed in sub-section (3) of section 13 of the Act, in the execution of the money decree, the learned courts below have committed no violation of the law and the impugned orders can not but be held as lawful 9. There is yet another aspect of the case. The litigation between the spouses commenced in 1985 as is evident from the decree passed by the learned Family Court on 29-6-1985. The petitioner has invoked the constitutional jurisdiction of this Court. All the orders of the learned lowers courts, impugned by this writ petition, were the consequences of abortive attempts consistently and persistently made by the petitioner to deprive his wife, the respondent No. 4, of the legitimate fruits of her litigation which, in fact, mainly pertain to her dower money. The present petition seems to be the last link of this chain. Let it be borne in mind that the constitutional jurisdiction of this Court can not be exercised in aid of injustice of such in equitable acts of a petitioner as to impede the lawful course of justice. For, the constitutional jurisdiction of the Superior Courts are always meant to come in aid of justice and equity alone. 10. In the light of the foregoing discussions, we find this writ petition devoid of any merits and dismiss the same in limine. (MBC) Petition dismissed.

PLJ 1990 Peshawar 4 PLJ 1990 Peshawar 4 Present: MUHAMMAD ISHAQ KHAN, J • , Dr. Miss GULSHAN NAHEED-Petitioner versus NWFP PUBLIC SERVICE COMMISSION and another-Respondents Writ Petition No. 403 of 1988, accepted on 14.3.1989. Constitution of Pakistan , 1973- —Art. 199~Competitive examination—Petitioner's name in reserve list--Nonappointment of-Challenge to~Dr. Simi Mehmood Jan submitted her resignation with effect from 1st November, 1987-Name of petitioner was in reserve list and she could be appointed in case vacancy occurred within six months-Vacancy did occur in validity period-Held: Respondents were legally bound to appoint petitioner, the only candidate in reserve list-­ Petition accepted. [Pp. 5&6]A&B Mr. Jehanzeb Rahim, Advocate for Petitioner. Mian Muhammad Ajmal, Addl. A.G. for Respondents. Date of hearing: 14.3.1989. judgment Miss Gulshan Naheed has filed this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for declaring the impugned action/decisions of the respondents to be without lawful authority and of no legal effect. She has further prayed that respondents may be directed to perform their legal duties Le. respondent No. 1 should recommend petitioner to respondent No. 2 for appointment on the vacant post. 2. Briefly stated the facts of the case are that the petitioner is a demonstrator in the Khyber Medical College, Peshawar; that respondent No. 1 held an interview on 1-7-1987 for the post of Assistant Professor Pathology in the Khyber Medical College, Peshawar in which the petitioner qualified the said interview but could not be recommended for appointment because of her low position on merit and limitation of vacancies. However, the said respondent informed the petitioner on 13-7-1987 that her name stood on the reserved list and she would be considered on merit as and when additional vacancies were received within the validity period (6 months) of the said list. She further mentioned hi the petition that on 1.1.1988 a post of Assistant Professor had fallen vacant in the Khyber Medical College, Peshawar pursuant to resignation of one Dr. Simi Mehmood Jan. The Principal Khyber Medical College sent requisition to respondent No. 2 herein for filling the said vacancy. The said respondent in turn asked respondent No. 1 herein to recommend some one for the said post but respondent No. 1 did not recommend any person. The Principal, Khyber Medical College once again on 4.5.1988 asked respondent No. 2 to appoint petitioner against the vacant post as she is the only doctor available on the reserved list and falls within its validity period but no heed was paid to it. The petitioner personally approached respondents 1 and 2 for her recommendation and appointment on the said post but without any success, although the petitioner had qualified respondent No. 1's interview and is on its reserved list and also within its validity period and she could be appointed on the vacant post for which the Principal, Khyber Medical College had made requisition but due to internal politics of the respondents she has not been appointed so far. 3. Comments were called from both the respondents which they submitted accordingly. We have heard the learned counsel for the parties and have also perused the record. A look at the resignation of the said Dr. Simi Mehmood Jan dated November 1, 1987, placed on record, would show that she had submitted her resignation to be effective from 1st January, 1988 treating notice period from 1st November, 1987. Therefore, in our view respondent No. 2 was under a legal duty to ask respondent No. 1 to recommend petitioner for appointment on the vacant post because she was the only candidate appearing on the reserved list and? also within its validity period. The respondents are not legally correct by sayingthat no candidate was available on the reserved list. A reference to Clause (c) of j Appendix "E" placed on the file would clinch the matter in this regard and thei same is reproduced as under: "(c) When a requisition for additional posts is received within 6 months of the issue of the recommendations in an earlier requisition for similar posts and marked candidates are available, recommendations in respect of additional posts shall be made from the available list of marked candidates". As mentioned earlier, Annexure 'B' placed on record clearly shows that although; petitioner had qualified in the interview for the post of Assistant Professor 1 Pathology but she could not be recommended to the Government for,' appointment due to her low position on the order of merit list and limitation of jg vacancies but her name stood on the reserved list with the condition that the' Commission will consider her as and when additional vacancies are received from the Government within validity period of the reserved list i.e. 6 months. The resignation of Dr. Simi Mehmood Jan which was submitted on 1st November, J1987 and was accepted by the Department with effect from 1.1.1988 dearly shows jthat the vacancy had fallen vacant within the validity period of 6 months and itherefore the respondents were legally bound to appoint the petitioner, the only candidate appearing on the reserved list and having qualified the earlier tcsH, against the said post of Assistant Professor of Pathology, Khyber Medical College, Peshawar. Having not done so, they have rendered their action to be without lawful authority and of no legal effect. 4. As a net result we would allow this writ petition, as prayed for, with costs. (MBC) Petition accepted

PLJ 1990 Peshawar 6 PLJ 1990 Peshawar 6 [Circuit Bench Abbottabad] Present: ABDUR REHMAN, J SHER MUHAMMAD-Petitioner versus GHULAM KHAN-Respondenl Civil Revision No. 69 of 1984, dismissed on 25-10-1989 Civil Procedure Code, 1908 (V of 1908)-- —S.115—Concurrent findings of fact—Whether can be interfered with— Question of~Controversy to be determined in revision revolves around solely on points of fact whether Jahandad gifted property to his sons and brothers and whether Alif Khan donated his property to his sons and grandsons- Disputed points have been resolved by two courts unanimously—Held: In absence of any complaint of misreading or non-reading of any material evidence on record, such a conclusion cannot be interfered with hi revision petition—Revision dismissed. [P. 8]A Kli. AbdurRashid, Advocate for Petitioner. Mr. S. Abdus Salam Sarwar, Advocate for Respondent. Date of hearing 11-10-1989. judgment Abdur Rehman Khan, J.~The trial Court decreed the suit of the plaintiffrespondent No. 1 against the petitioner and that decision was affirmed by the appellate Court. This revision has, therefore, been filed to impeach the legality and accuracy of the said two decisions. 2. Ghulam Khan respondent No. 1 sued his step-brother, the present petitioner, alongwith his two real uncles defendants-respondents No. 2 and 3 and his mother and sister defendants-respondents No. 4 and 5 respectively, for a 4. The learned counsel pleading the cause of the petitioner submitted that he would not challenge the validity of the gift mutation on account of acceptance of gift or possession of the gifted property as these two essentials of gift would not derogate from its validity in this case because of the minority of the doneepiaintiff and because the gift being from father and grand-father. This is a candid and fair concession as under Muslim Law no transfer of possession or acceptance e required in case of a gift by a father to his minor child and the same is true of a gift by the grand-father in favour of his grand-son. However, the learned counsel criticised the effectiveness of the gift for want of declaration of the donor as the name of the plaintiff does not appear in the two gift mutations and he also described the evidence on record as lacking to prove this essential of gift. He also criticised the approach of the learned lower Courts in respect of the evidence of defendant No. 3 Mohammad Aslam, as according to him his admission of the right of the plaintiff is not of conclusive nature. The learned counsel who appeared for the respondents refuted the correctness of the argument addressed on behalf of the petitioner. 5. I studied the record in the light of the points agitated at the bar. 6. The petitioner concedes that the gift mutations are jointly and in equal share in his name and those of the defendants 2 and 3 and he also admits the joint jpossession of the said two co-donees on the suit land alongwith himself. In this ;state of record the admission made by defendants No. 2 and 3 in the written I statement and then supported by defendant No. 3 in his Court statement will be the admission of the rights of the plaintiff by a person who had a subsisting 'proprietary interest in the subject matter of the suit. It is established rule that when several persons are jointly interested in a certain property then the admission of any one of such persons would be receivable against himself and the other joint owners provided it relates to the subject matter in dispute and is made by the declarant at a time when he retains his character of a person jointly interested. Such an admission would be only relevant but never conclusive unless jit amounts to estoppel but its evidentiary value lies in the fact that it raises a {presumption that the fact admitted is true. Even under the provision of Order 12 jRule 6 of the Civil Procedure Code the plaintiff could apply for a decree in his favour on the basis of the admission of his claim as contained in the written statement of defendants 2 to 5 and supported by defendant No. 3 in his Court A statement as the suit could have been decreed upto the extent of this admission and would have proceeded for determination of the rights of the contesting defendant. The declaration of gift by the donor is manifest through the mutation in which it is embodied and which is supported hi case of the plaintiff t»y defendants 2 and 3 against their interest and which also finds strength from the fact that there was no reason what-so-ever for the father and grand-father to deprive the plaintiff then a minor of two years when his mother had cordial relation with her husband and was residing alongwith the plaintiff with her husband. It is important to note that defendant No. 1 had entered the report with the patwari in 'Roznamcha' regarding the gift covered by the two mutations on behalf of his father and grand-father and he being the step brother purposely omitted the name of the plaintiff in the report because of his ulterior motive and hostile attitude which he exhibited by his conduct in this litigation. Moreover, the entire controversy to be determined in this revision revolves around solely on points of fact as it is requested herein to answer as to whether Jehandad gifted the property to his sons and brothers, and whether Alif Khan donated his property to his sons and grand-sons. These disputed points have been resolved by the two Courts unanimously and in absence of any complaint of mis-reading or nonreading of any material evidence on record such a conclusion cannot be interfered with in revision by this Court. 7. I find no merit in this revision and accordingly dismiss it with costs. (MBC) Revision dismissed.

PLJ 1990 Peshawar 9 PLJ 1990 Peshawar 9 Present: ABDUL karim KHAN KUNDI, J Haji UMAR KHAN and 6 others-Petitioners versus JEHANZEB and 3 others-Respondents Civil Revision No. 213 of 1986, dismissed on 11.3.1989. NWFP Pre-emption Act, 1950 (XIV of 1950)-- —Ss. 5(c) and 19-Sale-Exemption from pre-emption-Claim of~Sinker~ Doctrine of-Applicability of~Petitioners Nos. 1 and 2 had become coowners of suit KJiata by purchasing 4 kanals of land, but they having joined with them petitioners Nos. 3 to 8 with no right of pre-emption as co-preemptors, have lost their preferential right under doctrine of sinker as envisaged under Section 19 of Act-Held: Petitioners (defendants in suit) could not claim benefit of exemption under Section 5(c) of Act in respect of suit land in excess of 2 Kanals -Petition dismissed. [Pp:9&10]A&B Mr. Saeed Baig, Advocate for Petitioners. Mr. Muhammad Aman KJian, Advocate for Respondents. Date of hearing: 11-3-1989. judgment In suit No. 27/1 of 1984 a sale of some 16 kanals land in Khasra No. 999, Khi:a No 65 13? in the estate of Kopar, Malakand protected area made jointly in uttoor otf Hji L'mar Khan and 7 others was pre-empted by Jehanzeb and Jeiangk go grounds of co-sharership, contiguity and participation in amenities and appendages. The vendees, herein the petitioners had claimed the exemption of sak from right of pre-emption under section 5(c) of the N.W.F.P. Pre-emption acl 1 Q

) and the Courts below had dis-allowed exemption as claimed since in his cvm saiemeni Haji Umar Khan had admitted that an area of 4 kanals had already been purchased by them, which was in their possession. Haji Umar Khan had admitted that the plaintiffs were contiguous owners of the suit land, however, still their right of pre-emption was not acknowledged. 2. As far the purchase of 4 kanals area in the suit Khata is concerned only defendant-petitioners No. 1 and 2 have purchased the said land vide an un­ registered sale deed dated 20-11-1978. Even if defendant-petitioners No. 1 and 2 had become co-owners of the suit Khata on the strength of the said sale in their favour they have, however, joined petitioners No. 3 to 8 with no right of pre­ emption as co-preemptors and as such they shall be deemed to have lost their preferential right under the doctrine of sinker as envisaged under section 19 of the N.W.F.P. Pre-emption Act, 1950. Not that the latest law as laid down by the Supreme Court in Civil Appeal No. 85-8/83 and P-9/84 decided on 24-3-1987 provide that it will not make a difference if there are more than one vendee jointly purchasing a land since under section 5(c) of the N.W.F.P. Pre-emption Act, 1950 only a sale has been exempted from the right of pre-emption and in the absence of evidence that each vendee has taken a separate share and also separately paid the price for his share the sale could not be broken up into as many sales as the vendees for the purpose of allowing them the benefit of section 5(c) of the N.W.F.P. Pre-emption Act, 1950. In the case in hand no such evidence has been led at the trial, rather on the contrary Haji Umar Khan petitioner No. 1 was found having joined his three sons and four grand-sons with him hi the joint purchase, also stating that he had paid the price and that he was in possession of the suit land. That being the position the defendant-petitioners could not claim the benefit of exemption under section 5(c) of the N.W.F.P. Pre-emption Act, 1950 in respect of the sale of the suit land falling in excess of 2 kanals area. Consequently there has been found no merit in the revision petition and the same is hereby dismissed with no order as to costs. (MBC) Petition dismissed.

PLJ 1990 Peshawar 10 (DB) PLJ 1990 Peshawar 10 (DB) [Circuit Bench, Abbottabad] Present: raza ahmad khan and abdur rehman khan, JJ ALAMZEB KHAN-Petitioner Versus Haji MUHAMMAD AYUB KHAN and another-Respondents Writ Petition No. 60 of 1988, partly allowed on 21.2.1989 Representation of the People Act, 1976 (LXXXV of 1976)-- —S. 103-AA~General elections-Declared as void by Election Commission-­ Challenge to-Whether Election Commission was justified in declaring election in whole constituency as void-Question of-Impugned decision is not in consonance with complaint and evidence on record-­ Recommendations made in report of District Returning Officer also confined to re-polling in one polling station-Petitioner has vehemently denied to be a party in so called "concession of parties" upon which impugned order is based-It is well settled that a finding of fact can be interfered with if it is based on no evidence or a misreading of evidence or ignoring material evidence—Held: Final decision of respondent No. 2 is founded on no evidence but rather on inferences drawn which by no means follow established facts-Held further: Impugned order is clearly liable to be corrected so as to make it effective only to extent of re-polling in polling station Biari only-Petition partly allowed. [Pp.l3,14,15&16]A,B,C,D,E,F&G 1972 SCMR 395,1970 SCMR 158 and PLD 1987 SC 447 rel. Mr. M. Sardar Klian, Advocate for Petitioner. Qazi Muhammad Anwar, Advocate for Respondent No. 1. KJi. Nazir Ahmad, Advocate for Respondent No. 2. Date of hearing: 21-2-1989. judgment Raza Ahmad Khan, J.- In the general elections of 16th November, 1988, Alam Zeb Khan petitioner in Writ Petition No. 60/88 and respondent No. 1 alongwith 6 others were candidates contesting for the National Assembly of Pakistan from Constituency NA-16-Mansehra-III. Amongst the opponents of the petitioner, respondent No.l was the main contestant who is also known as Khan of Allai, enrolled as a voter within the area of voters, who were required to cast their votes at polling station Biari (Allai). In the whole Constituency there have been total number of 66 polling stations. It was, however, only in respect of polling station Biari that there has been serious complaints alleging massive rigging and Alam Zeb Khan petitioner informed respondent No. 2 the Election Commission of Pakistan telegraphically vide a telegram annex 'B' as well as by making an application dated 17-11-1988 Annex 'A' praying therein to with-hold the result of the Constituency NA-16 Mansehra-III and to order fresh polling at the polling station Biari. 2. The Election Commission took cognizance of the matter and forwarded vide their letter No. ¥ 1 (NA-16) 88-Elec (II) dated 19-11-1988 the complaint to the District Returning Officer (The District and Sessions Judge) Mansehra who held an inquiry into the allegations of rigging, made by the petitioner in his complaint, against his rival contesting candidate respondent No. 1 during the conduct of polls for election to Constituency NA.16 Mansehra-III and asked the Returning Officer to submit a report alongwith the consolidated statement of the counts so that the respondent No. 2 could take decision in the matter before publication of the names of the returned candidates. 3. Mr. Ghulam Mohiuddin Malik, the District Returning Officer, Mansehra initiated the inquiry and informed the parties through Assistant Commissioner Batagram, the Returning Officer of NA-16 Mansehra-III. Both the petitioner and respondents attended and participated in the proceedings of the inquiry and statements of petitioner and respondent No.l, their respective witnesses and certain officials, concerned with the elections in the Constituency, were recorded. In a detailed report, the District Returning Officer, Mansehra opined as follows:-- "The result of this polling station alone is complete fruitless, suppression of individual liberty and is most antagonistic to the development of human personality. Mr. Mohammad Ayub Khan of Allai has won the election from this polling station by force, by denying to the voters their fundamental right of franchise. The percentage of the polled votes is also one of the interesting feature of this polling station because out of 1497 voters, 1427 have casted their votes in favour of Khan of Allai and only three other voters have favoured the remaining candidates with their votes. The percentage of voting of this polling station, on the face of it, is not true and believable story". He, therefore, suggested: "Re-polling in this polling station alone". 4. On receipt of this report, alongwith its enclosures, respondent No. 2 called the parties to appear on 30-11-1988. The petitioner as well as respondent No. 1 alongwith their counsel, appeared on the date fixed. 5. It transpires that on the conclusion of the hearing, the learned counsel for the respondent No. 1 moved an application to the effect that if the Commission comes to the conclusion that election in NA-16-Mansehra-III has not been held in accordance with law in polling station Biari, then in that situation may the Commission be pleased to order fresh election in the entire Constituency. In response to this application and taking it for a "concession of the parties" the Election Commission declared the entire election of NA-16-Mansehra-III as void as per impugned order dated 30-11-1988 and directed to hold fresh election. 6. By this Constitutional petition, the petitioner has called into question the impugned order dated 30-11-1988 passed by respondent No. 2. 7. We have heard Mr. M. Sardar Khan learned counsel for the petitioner, Qazi Mohammad Anwar learned counsel for respondent No.l and Khawaja Nazir Ahmad learned counsel for respondent No.2 at length and also perused the available record with considerable degree of care. 8. As is evident from the admitting note, it is the provision as embodied in section 103 AA of the Representation of the People Act, 1976 (hereinafter referred to as the Act), which requires to be interpreted in this writ petition qua the ultimate decision of respondent No.2 in the impugned order. Let it be stated at this very stage that both the learned counsel appearing on behalf of the respondents 1 and 2 have candidly conceded that the Election Commission, under section 103-AA, while enjoys the power to declare the poll in any Constituency as void, it is at the same time unquestionably competent to make such declaration in respect of a part of the Constituency, namely in one or, for that matter, more than one polling stations of the whole Constituency. This admission of their is not only in conformity with their pleadings but also proceeds on a sound principle that when a Tribunal can decide or decree the maximum, it has always the power and competency to grant less and such a decision shall be considered in accord with the provisions of a law bestowing powers on a Tribunal to decide an issue. A decision of the respondent No. 2 made the same day i.e., 30-11-1988 in respect of Constituency NA-34 Tribal Area-VIII, wherein re-polling was orderd in only one polling station, also lends support to the proposition. Such being the case, it can safely be said that the respondent No. 2 had the power and competency to have declared the election, in so far as polling station Biari was concerned, as void and could have ordered a fresh poll therein. 9. Consequently the scope of controversy, in the instant matter before us, has narrowed down to the question, as contended by the learned counsel for the petitioner, as to whether the Election Commission was justified, in fact as in law, to declare the election in the whole of Constituency as void instead of ordering repolling in the polling station Biari alone, as prayed for by the petitioner in his complaint and accordingly the impugned order is untenable on account of illegal exercise or in excess of its jurisdiction? 10. Qazi Mohammad Anwar, learned counsel for respondent No. 1, however, maintained that the impugned order of respondent No. 2 is untenable, not for the reasons as contended on behalf of the petitioner but on the ground that no such inquiry was conducted by the Election Commission as was required of it under section 103-AA of the Act and consequently respondent No.l, who in un-official count is the winning candidate, should have been declared as such. 11. The learned counsel for respondent No.2 questioned the competency of the writ petition on the ground that the impugned order does not suffer from any jurisdictional error and urged that the Tribunal which is vested with the jurisdiction to decide a matter has the jurisdiction to decide it rightly or wrongly. He relied on cases of Ch. AH Muhammad versus Government of Pakistan (1974 SCMR 139) and Government Jallo Rosin & Turpentine Factory Vs. Commissioner of Sales Tax Lahore Zone (1974 SCMR 53). 12. Perusal of the record reveals that the ultimate decision of respondent No.2 in the impugned order, perse, is not in consonance with the complaint lodged by the petitioner, and the evidence forthcoming as a result of the inquiry conducted under the very direction of respondent No. 2, pertaining solely to the grave illegalities and violation of law during the polls in polling station Biari alone. It is also a matter of record that the recommendations made in the report of District Returning Officer confined to the re-polling in the aforesaid polling station. The requisite satisfaction of respondent No.2 as envisaged under section 103-AA (ibid) regarding illegalities and violation of the provisions of the Act and rules made there-under committed in the polls at the Biari polling station as also the precise prayer made in the complaint, is manifest from the very impugned order and in this regard the following observations made therein can be usefully quoted: "The Returning Officer, in summing up the report, has recommended that repelling in Biari polling station alone may be ordered and this is what the applicant had precisely prayed for in the application." And again: "While we have no hesitation in accepting the recommendation of the learned District Returning Officer that massive rigging had taken place at polling station Biari beyond any shadow of doubt " In the light of the fore-going, there existed quite sufficient justification for respondent No.2, on the factual as well as legal premises, to declare the polls in the polling station Biari alone as void and for issuing orders at re-poll accordingly which would have been perfectly in accord with the facts of the case and law relevant thereto. 13. It however, transpires that it was at fag-end of the proceedings before respondent No.2, when the hearing was to conclude that a hurriedly drafted application was made by respondent No. 1 which influenced respondent No. 2 and it held: " ......................... the law requires that the entire election of NA-16-Mansehra- III be declared void". Consequent to this, the respondent No.2 was pleased to declare fresh elections in the whole of the Constituency, proceeding on the assumption that the order was being based on the "concession of the parties". 14. It may be pertinent to state that the petitioner has vehemently denied to be a party in the so called "concession of the parties" and not only it is supported by an affidavit but we have also reasons to believe it as true in-asmuch as no where in the whole of the impugned order any reference is made to the alleged "concession of the parties", save the concluding para and that too seemingly rather in passing and it was solely the application of respondent No. 1 which prevailed with the Election Commission, respondent No.2, to give its final decision of repolling in the whole Constituency. In fact, a careful reading of the impugned order indicates that this notion of "concession of the parties" is neither borne out from the record nor can be inferred from the circumstances in so far as concerns the petitioner in particular. 15. Regarding the contention of the learned counsel for the petitioner that the final decision of the impugned order is contrary to the real issue before respondent No.2 and is not only based on no evidence but is also rather paradoxical of its own findings as is apparent from the earlier part of the impugned order let to be stated that even the learned counsel for the respondents could not controvert it at-least on factual premises. They were, however, of the view that while no limitation can be placed on the powers of the respondent No.2 to exercise its discretion in favour of the whole or part of the re-election in a Constituency, the writ petition raises question of disputed facts and as such it is not maintainable. 16. True it is, that ordinarily the High Court is not entitled to investig te disputed question of fact in the exercise of its writ jurisdiction, but it is well settled that a finding of fact can be interfered with if it is based on no evidence or a mis­ reading of evidence or ignoring of material evidence or taking into consideration inadmissible evidence. Reference in this regard may be made to the case of Commissioner and another versus Mian Sher Muhammad reported in 1972 SCMR 395. 17. On the point of placing limitation etc. on the power of the Election j Commission under section 103 AA of the Act, in the instant case, we regretfully find that the final decision of respondent No.2 in the impugned order is founded on no evidence but rather on the inferences drawn which by no means follow the established facts. It is, therefore, not a case of placing any sort of limitation on the powers of respondent No.2 but a question of exercising its jurisdiction under section 103 AA of the Act judiciously. Thus, as stated earlier,, respondent No.2 appears to have mis-directed itself, having regard to the ample evidence recorded by the learned District Returning Officer under the direction of respondent No.2 and the comprehensive report of the District Returning Officer before it, which led to the conclusion almost opposite to and deviative from that which respondent No.2 has adopted. There was no justification for brushing aside the material which came before it or to bypass the evidence collected during the inquiry under its own orders. In fact, the view that prevailed with the respondent, No.2, having been influenced by an erroneous deductions from the facts, obviously could not support such an inference as diametrically opposite to the complaint lodged and prayer made by the petitioner. Such being the position, the impugned decision is reduced to an LQegal exercise of jurisdiction and as such it is thrown open to a judicial review in the Constitutional jurisdiction of this Court. In this regard a decision of the Supreme Court in case of N.M.KJian and others versus Chief Settlement and Rehabilitation Commissioner and others reported in 1970 SCMR 158 fortifies us in this view. 18. Before parting with the case we may dispose of another contention of the learned counsel for respondent No.2 in that when there is jurisdiction to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. To counter the contention of the learned counsel we may refer to a decision of Supreme Court in case Utility Stores Corporation of Pakistan Ltd; versus Punjab Labour Appellate Tribunal and others reported in PLD 1987 SC 447 and reproduce with advantage the law laid down on the issue:- "It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it 'rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes on error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction". In the context of this legal situation, although the respondent No.2 is clothed with the requisite jurisdiction to deal with the matter, yet the order impugned cannot be defended on the plea as raised by its learned counsel. Thus where the law has not been correctly followed or properly observed, a case of interference by the High Court, ia exercise of its Constitutional Jurisdiction, is certainly made out. 19. Similarly the contention of the learned counsel for respondent No.l, though in essence proceeds towards the same object as that of the petitioner in the instant case, yet the grounds pressed into service, or the result desired to be achieved, cannot be accepted in view of the fact that he is estopped to question the impugned order which emanated from his own volition and thereby led the respondent No.2 to give a decision which, but for his application, would have been a straight and simple order of fresh polls in polling station Biari and this would have been not only in conformity with the established facts of the case but also in complete accord with the law. 20. On equitable premises also we regretfully note that the impugned order, if left in field in its present form, would tantamount to disfranchising the voters who had already and rightly cast their votes in other polling stations of the Constituency and it will not be justifiable to put those voters to the trial and rigours of re-casting their votes in as many as 65 other polling stations, for no fault of theirs, particularly keeping in view the area and terrain where means of communications are not as good as in the other developed parts of the country. 21. In this context of the matter, we are constrained to hold that the impugned order is not well conceived regarding "Concession of the parties" and having been founded on no evidence, quo its ultimate decision of holding re­ election in the whole of the Constituency of NA-16-Mansehra-III, it cannot be sustained in its entirety. As such it is clearly liable to be corrected so as to make it effective only to the extent of re-polling in the polling station Biari, and we order accordingly. 22. In the result, we allow this writ petition to the extent indicated above and leave the parties to bear their own costs. (MBC) Petition partly allowed.

PLJ 1990 Peshawar 16 PLJ 1990 Peshawar 16 Present: ABDUR REHMAN KHAN, J ALI REHMAN-Petitioner versus Haji MUHAMMAD SULEMAN etc.-Respondents Civil Revision No. 63 of 1987 (also C.R. 66 of 1987) decided on 16.9.1989 (i) Estoppel-- —Compromise between parties—Whether constitutes waiver and estoppel-Question of—Factum of compromise has not been denied by respondent but his contention is that compromise has lost its value-Respondent No. 1 entered into compromise with Petitioner with full knowledge of all relevant facts with his free consent and besides other benefits also received Rs. 3000Q/- from petitioner for this compromise -Respondent No. 1 cannot be allowed to retain benefit arising from compromise and to repudiate burden-Held: It will be pre-emption suits, one filed by Haji Muhammad Suleman respondent No. 1 and the other by Mubarak Khan respondent No. 2. These suits wre consolidated and by a single judgment dated 25.3.78 the learned trial Judge decreed the suit of Haji Muhammad Suleman on payment of purchase money of Rs. 12853/40 while that of Mubarak Khan was dismissed. Two appeals one by the vendee-petitioners and the other by Mubarak, the rival pre-emptor were preferred against this judgment. The appeal lodged by the petitioner ended in compromise and was disposed of in terns of this compromise on 14.4.79. However, the appeal instituted by Mubarak was heard later on separately and was dismissed on 30.7.80. Mubarak moved the High Court in revision which was accepted on 12.10.80 and the appeal was remanded to the appellate Court with the direction to consolidate the appeal of Mubarak Khan and that of Ali Rehman etc. as these have arisen from the same judgment of the trial Court and then to be decided through a common judgment. Consequently, through the impugned judgment the learned appellate Court dismissed both the appeals, i.e. the one filed by the petitioner and the other by respondent No. 2. The two revisions referred to above have been, therefore, filed against this judgment of the appellate Court. 3. The learned counsel arguing for the petitioners Ali Rehman etc. in revision No. 63/87 submitted that the learned appelalte Court failed to consider the significance of the compromise and its bearing on the appeal instituted by his clients and that the relevant provisions of Order 23 Rule 3, Order 41 Rule 33 and Section 107 of the Civil Procedure Code were not taken note of. He also stressed that Muhammad Suleman respondent No. 1 was estopped to contest and challenge the decree passed in favour of the petitioners as a result of the compromise arrived at between him and the petitioners in appeal. He also argued that on account of the compromise the suit of the respondent No. 1 had become partial and as such could not be entertained and that as the said respondent had withdrawn the pre-emption amount, therefore, his suit after that was not maintainable and the decree in his favour had become nullity and ineffective. Learned counsel argued that in view of the Supreme Court judgment reported in PLD 1988 SC 287 no decree can now be granted in favour of Mubarak Khan petitioner in the other connected revision petition, therefore, his revision has become infructuous and liable to be dismissed on that score alone. He also described the appeal of Mubarak before the appellate Court as partial because it was in respect of half of the suit property and, therefore, prayed for its dismissal on that count also. Learned counsel representing the petitioner in revision No. 66/87 argued that his client was not bound by the compromise arrived at between the petitioners in revision No. 63/87 and respondent No. 1 as he was not party to the said compromise, that there is no legal bar in decreeing suit even now and that his appeal cannot be termed as partial because he challenged that portion of the trial Court decree over which he could legally enforce his superior right of pre­ emption. On the other hand, Fazal Hussain Malik while arguing for Haji Muhammad Suleman in both the revisions supported the arguments of the counsel of Ali Rehman etc. petitioners in respect of his stand against Mubarak petitioner and maintained that his revision has become infructuous as no decree can be granted in his favour on account of Supreme Court judgment referred to above and that his appeal being for half of the suit property was not legally maintainable. He, however, opposed the arguments of the learned counsel of All Rehman petitioners in revision No. 63/87 and submitted that some of the petitioners were minors and, therefore, the compromise on their behalf could not have been accepted, that the pre-emption amount although withdrawn has again been deposited and that the point of compromise was not pressed before the appellate Court and lastly that no estoppel can be pleaded against a statute. 4. The respective submissions of both the sides were considered in the light of the relevant materials and evidence on record. 5. First of all I will take up the arguments relating to compromise in order to determine its true import and significance and would discuss as to how far it would constitute waiver and estoppel against the parties thereto. It is important to note that the factum of compromise has not been denied by Haji Muhammad Suleman but he has tried to avoid it on certain technical ground that as the High Court had ordered to consider both the appeals as pending and to decide these appeals on merits after both are consolidated, therefore, the compromise has lost its value. In settling down the legal effect relating to the compromise the following admitted position will be kept in view:- (a) The compromise as it is has been admitted by both the parties. (b) That respondent No. 1 received Rs. 30,000/- from the petitioner because of this compromise. (c) That it has also not been denied that as a result of the compromise an area of 3 marlas was carved out of Khasra No. 1254 and was given to Haji Suleman for his use as thorough-fare and to the extent of these three marlas his suit was decreed. While regarding the remaining area of 6 kanals 17 marlas his suit was dismissed. (d) On the basis of this compromise mutation No. 6664 was attested on 6.8.79 in respect of three marlas in favour of respondent No. 1 while regarding the remaining suit area of 6 kanals 17 marlas mutation No. 6647 was attested on the same date in favour of the petitioner. (e) These mutations were given effect in the subsequent revenue record. (f) That in pursuance of the compromise the petitioner withdrew his pre emption amount from the Court on 24.4.79. (Note: although he edeposited it subsequently). 6. In view of the fact that respondent No. 1 entered into a compromise with the petitioner with full knowledge of all the relevant facts, with his free consent and took beside other benefits under the compromise also received Rs. 30,000/- from the petitioner for this compromise then he cannot be permitted to take up the position that after remand by the High Court on revision filed by respondent No. 2 the dispute between him and the petitioners is re-opened and that as some of the petitioners were minors, therefore, the compromise on their behalf would not be valid and that he was competent to repudiate the compromise in the proceedings in appeal after the remand. If he is allowed to take this stand that would amount to conceding him the benefits of the compromise without bearing the burden created thereby. The law would not permit respondent No. 1 to retain the benefit arising from the compromise and to repudiate the burden. Such a permission would naturally amount to allow a party to approbate and reprobate and to plead that a transaction is valid to the extent it benefits him and serves his purpose and to declare it as invalid or to repudiate its effect to the extent it burdens him with liabilities. Moreover, respondent No. 1 by this compromise had agreed to relinquish those rights which had accrued to him under the decree for certain advantages given to him in the compromise. It will thus be most inequitable and unjust to allow him to deny or repudiate the compromise as in the circumstances the equitable doctrine of estoppel and waiver will clearly operate against him. Moreover, there is also another aspect of the matter as respondent No. 1 had admittedly withdrawn the pre-emption amount, therefore, on the basis of the mandatory provisions contained in Section 23(5) of the N.W.F.P pre­ emption Act, 1950 his suit stood dismissed and the subsequent order of the Court to allow him to re-deposit the said amount was not in the ambit of the Court and would, therefore, not stop the operation of the binding provisions indicated above. The withdrawal of the pre-emption amount on account of the compromise clearly amounts to relinquishment of his right under the decree and he will be debarred under the principle of waiver to re-agitate his rights. The learned appellate Court failed to consider and read all the mentioned documentary evidence in respect of the compromise in its correct perspective which tantamounts to non-application of mind and non-reading of evidence and which would justify interference under Section 115 C.P.C. But as those documents are not disputed, therefore, instead of remitting the case to the appellate Court it was considered proper to determine the legal implication arising in this context in order to avoid unnecessary prolongation of the litigation. 1. This compromise will obviously not affect the rights of respondent No. 2 as he was not a party to it. His revision will be decided on merits and his rights will be determined independent of the compromise. In his case it is admitted that no decree has so far been passed in his favour and that he has not complied with the essentials of various 'Talabs' which are pre-requisite for enforcing pre-emptive rights under Shariat, therefore, no decree can be granted in his favour in view of the rule laid down in PLD 1988 SC 287. Moreover, in his memo of appeal before the appellate Court he had prayed for a decee of half of the suit property without any legal justification for not claiming the entire, therefore, his appeal being for a portion of the property sold, was not competent. As no right of pre-emption can be asserted over a portion of the property subject matter of certain sale when the plaintiff could legally enforce his pre-emptive rights over the entire property, so sold. 8. In the circumstances, revision petition No. 63/87 All Rehman etc. versus Haji Suleman etc. is allowed to the extent that the judgments and decrees of both the learned Courts are modified in accordance with the terms of the compromise and the suit of respondent No. 1 Haji Muhammad Suleman is dismissed in respect of the suit land measuring 6 kanals 17 marlas while the decree in his favour regarding three marlas out of Khasra No. 1254 as detailed in the compromise will remain intact. The revision filed by Mubarak Khan No. 66/87 is dismissed. 9. In the peculiar circumstances there would be no order as to costs against any party and the parties will bear their own costs. (MBC) Order accordingly.

PLJ 1990 Peshawar 21 (DB) PLJ 1990 Peshawar 21 (DB) [Circuit Bench Abbottabad] Present: qazi muhammad jamil and abdur rehman khan, JJ JAHANDAD and 6 others-Petitioners versus PRESIDENT, SPECIAL MILITARY COURT No. 88, Peshawar and 3 others-Respondents. Writ Petition No. 4 of 1988, accepted on 21-1-1990. (i) Criminal Trial-- —Criminal case-Transfer to Military Court-Conviction for-Challenge to— Howsoever sensational, the case is an ordinary criminal case—Ordinary courts were functioning without any let or hinderance during period of Martial Law-­ Investigating Agency and military authorities decided to place this case before a military court but gave no reason for it—For transfer of a case to military court, certain standards were laid down in CMLA Order 4~HeId: No reason for transfer of case having been given, same shall be gathered from facts of • case to see its bonafides to meet objectives of Constitutional deviation. [Pp.25&26]A PLD1989SC26re/. (ii) Criminal Trial- — Crimmai case—Trial by Special Military Court—Conviction for—Challenge to —No reasons were recorded for trial of Petitioner by military court-petitioners vcr not mentioned in FIR-So called confessions were retracted by Petitioners— Credentials of approver were highly doubtful-Petitioners were extremely tortured to get their confessions-No parade was conducted to identify un-named culprits-Effort of petitioners to produce defence witnesses was frustrated by Prosecution-SHO admitted malice against one of main accused—Petitioners were deprived of their right of defence by counsel of their choice—Condemned petitioners were denied right of appeal-Held: Trial of Petitioners by military court was not bonafide to achieve limited objectives of Martial Law or constitutional deviation recognised by Supreme Court-­ Petition accepted. [Pp. 26&27JB&C PLD1977SC657re/. History of Martial Law traced. M/s Fazal Elahi Siddiqi and Muhammad Akbar Khan, Advocates for Petitioners. Mr. Muhammad Aslam Klian, Asstt. Advocate General for Respondents. Dates of hearing: 27 to 29-11-1989. judgment Qazi Mohammad Jamil, J.~The petitioners in this Constitutional petition assail the findings of the Special Military Court No. 88, in convicting and sentencing petitioner Mst. Sardari Begum under section 302/109 P.P.C. to imprisonment for life and fine and other petitioners to death with fine under sections 302/148/149 P.P.C. The Military Court also came to a finding that two of the petitioners were guilty of committing rape as well. 2. On 24th September, 1985, one Subedar Dost Mohammad of Dharam Pani, Police station, Mavelian, District Abbottabad, reported to the police that in the early hours of 24-9-1985, his daughter-in-law along with some of her children and a neice was found dead in their beds. Two of the girls were found suffering from grievous injuries. The death and injuries were caused by blunt weapons. He suspected no one and charged none. The incident created sensation and N.W.F.P. police found at their hands a case of so-called "Hathora Group" blown out of proportion in their Province. Their anxiety to trace the culprits is apparent from the reading of the record. However, the main obstacle in their way was that no one in the neighourhood had anything to say about the occurrence. The maker of the F.I.R. was later on so convinced about the false involvement of the present petitioners that he was prevented from appearing as a witness and did not appear in the witness-box. A man of straw who had his own problems with the police being of questionable character and a street vendor was ultimately procured and made an approver. He too admits that he remained in police coustody for a considerable period of time. The other accused involved by him were arrested, kept in custody without obtaining an order of remand, tortured and their so called confessions were allegedly recorded. This was the state of evidence when the case was placed before the Special Military Court. The learned counsel for the petitioners states that the prosecution case could not have stood the scrutiny of an ordinary criminal trial. A charge-sheet was prepared on the 18th of November, 1985 and the D.M.L.A. ordered that the case be tried by the Special Military Court No. 88, CAD Havelian. The said court was presided over by an Army Lt; Col; and its other two members were an Army Major and an Extra Assistant Commissioner. No judicial officer was present. An application for making the Sessions Judge as a member in accordance with the Manual of Pakistan Military Laws was turned down. The tiral was conducted, despite defence counsel's objection at odd hours within the porotected area of the Ordinance Factory/Depot. On 1st of December, 1985, when the defence witnesses were to be produced including those abandoned by the prosecution they were obstructed by the police to do so. The defence counsel moved an application complaining about the afore-said obstruction but finding no response they walked out of the court. In their absence two of the defence witnesses, namely, Dost Mohammad and Sarwar were called before the court. It was found that they were not allowed to enter the court premises by the guards. Later on a counsel was provided to the accused by the District Magistrate who prepared their defence in writing. The accused did not have a counsel of their choice at this stage. The proceedings were completed in haste after the defence counsel left the scene and within three days i.e. 5th of December, 1985 sentences were handed over by the Special Military Court. They were duly confirmed by the higher martial law authorities. There was no appeal as the convicts tried by a military court, even if condemned to death, had no right of appeal. 3. The learned counsel for the petitioners have challenged the trial of the petitioners by the Special Military Court and its verdict mainly on the grounds that arbitrary selection of the petitioners for trial by Special Military Court was not justified while similar offences as the one allegedly committed by the petitioners were triable and were being tried by ordinary courts; that prosecuting the petitioners was mala fide both in law and in fact; that there was no evidence before the court to proceed against the petitioners and ultimately convict them and, as such, the very jurisdiction of the said court, if at all it had any, suffers from serious defects; that the decision to arraign the petitioners as accused before a military court had no nexus with the limited objectives of martial law. They have also questioned the trial of the petitioners by military court and its verdict thereto on the touch stone of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. They argued that this court has the jurisdiction to entertain their Constitutional petition for the purpose of determining the afore-said challenge made to the convictions and sentences passed by the Special Military Court in view of the judgment of the Supreme Court in Begum Nusrat Bhutto's case (P.L.D. 1977 S.C. 657) notwithstanding Article 270-A introduced in the Constitution. They also relied on Federation of Pakistan, v. Ghulam Mustafa KJiar (P.L.D. 1989 S.C. 26) in this respect. 4. Mohammad Aslam Khan Tanoli, the learned Assistant Advocate General, appearing for the respondents, inter alia, objected to our jurisdiction to interfere with the findings of the Military Court . He referred to Article 270-A of the Constitution which according to him has shut our doors to the petitioners. He was, however, aware of the judgment of the Supreme Court in Federation of Pakistan v. Ghulam Mustafa Khar cited above. He was also conscious of the interpretation placed on the afore-said Article of the Constitution by the Supreme Court. He accordingly conceded that we can review the proceedings and the decision of the Military Court "which suffered from defect of jurisdiction or coram non judice or were malafide". 5. We propose to dwell on this question of our jurisdiction as well. Martial Law is a term borrowed from the British experience and its exposition by the British Jurists and their courts of law. While considering this term, strictly within the narrow juristic campass without its political ramifications, martial law has been broadly divided into two forms; the set of commands issued by a commander of occupying forces in a foreign land and "a peculiar system of legal relation which arises between the military and the civilian subjects of the King in time of insurrection or civil war". We are concerned with the latter form of martial law. Since the passage of Bill of Rights in 1688 England claims to have no martial law within the country itself but its imposition in Ireland and South Africa gave rise to certain difficult situations which the superior courts tried to meet, especially when the military authorities stopped outside the normal legal standards and violated the ordinary rights of the citizens in their anxiety to quell insurrection or rebillion. 6. The Suprior British Judiciary, therefore, left certain land marks in this field. In R. (Grade) v. Strickland (1921) 21.R. at page 329 Malony, C.J. wrote," we desire to state, in the clearest possible language that this court has the powers and the duty to decide whether a state of war exists which justifies the application of martial law". As for the actions taken during martial law, when it was not possible for the courts to sit, it was universally recognised that affected subjects could approach a court after the cessation of hostility. This in turn necessitated the passage of Indemnity Acts by the British Parliament invariably after every emergency to protect those acts of the armed forces which went outside the scope of their authority or the ordinary legal norms. But in this filed too the well known case of Wright, v. Fitzgerald (1798) 27 St. Tr. 765, is cited as an authority for the proposition that even an "Act of Indemnity is no defence when the conduct sought to be justified was not bonafide directed to the suppression of the insurrection". 7. British Lawyers to-day have come to a stage when they claim that martial law is no law at all. They do not recognize military courts established during the martial law dispensing justice amongst the civilians or between citizens and the State. The House of Lords in Clifford and O 'Sullivan (1921) 2 A.C. 570 went so far as to call the military courts established during the emergency as no court even as compared to a court martial constituted under the regular Military Law. In the words of Viscount Cave, "The so-called 'military court', whose proceedings were in question before Powell J., was not and did not claim to be a court or judicial tribunal in any legal sense of those terms. It was not a Court Martial, that is to say, a tribunal regularly constituted under military law, but a body of military officers entrusted by the commanding officer with the duty of inquiring into certain alleged breaches of his commands contained in the proclamation, and of advising him as to the manner in which he should deal with the offences; and its 'sentences', if confirmed, will derive their force not from the decision of the military court, but from the authority of the officer commanding His Majesty's forces in the field. Its true position was described by Lord Halsbury in Tilonko v. Attonrey General of Natal, (1907) A.C. 93, 94 in the following terms; 'The right to administer force against force in actual war does not depend upon the proclamation of martial law at all. It depends upon the question whether there is war or not. If there is war, there is the right to repel force by force, but it is found convenient and decorous, from time to time, to authorise what are called "courts" to administer punishments, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved. But to attempt to make these proceedings of so-called "courts martial", administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Court of justice is quite illusory'. 8. The British judiciary, as such, refused to recognise the concept of martial law as a juristic concept but accepted the same as a state of affairs partially recognised by the Royal prerogative arising from an abnormal situation. At the same time, the Judges kept a watch on the excesses of martial law authorities. As stated above, they even penetrated through the Indemnity Act by declaring that the conduct sought to be justified was not bonafide directed to suppression of insurrection. They refused to be brow beaten by the proclamation of martial law as Maloni, C.J. in Wright v. Fitzgerald, cited above, spurned the suggestion that the courts were sitting by leave of the military authority. He declared that he "sat by virtue of king's command which no General could dispute". 9. The difference in jurisprudential norms of Pakistan and Britain is that Judges in Pakistan do not sit by virtue of King's command but by virtue of a written Constitution. In Britain the actions of a military commander during martial law may be controlled by the concept of meeting force with force as a matter of necessity or such Statutes as Restoration of Order in Ireland Act but no place has been given to the concept of martial law, as such, in the Constitution of Pakistan. When General Zia proclaimed martial law in Pakistan, the Supreme Court gave its raison detre strictly within the narrow confines of its objectives, namely, the restoration of a normal state of affairs, conducive for a Constitutional Government. The case reported as Berlin Nusrat Bhutto, v. The Chief of the Army Staff etc (P.L.D. 1977 S.C. 657) is no ordinary case. The Supreme Court did not recognise extra-ordinary measures taken by the Chief of the Army Staff as to be constitutional but applying the views of the great British Jurist, Professor S-A.de Smith in his book, Constitutional and Administrative Law allowed a lease of life to the said Chief of the Army Staff on the ground of necessity as deviation from the Constitutional norms. The deviation was not left unbriddled. A defined path was chalked out with defined limitations by the Supreme Court for him to follow. He was told in so many words that in trichotomy of the organs of the State, only two, namely, legislature and excutive were in crisis but the judiciary was perfectly intact. The Chief of the Army Staffs earlier statement also laid down a limited basis for his proclamation of martial law. The judgment in Nusrat Bhutto's case cannot be taken out of sight while considering the path of deviation adopted by the Chief of the Army Staff. In this context, Article 270-a introduced by the 8th amendment Act of 1985, is not to be read as to exclude the afore-said judgment of the Supreme Court which if so excluded shall completely destory the edifice of the constitutional deviation. There are no other basis for governing the country by the Chief of the Army Staff. 10. la Britain there is no fundamental law and the ordinary law of the land is the Constitution of the Country. Hence an Indemnity Act may cover those excesses of the Military authorities which are absolutely necessary to meet an emergency. But in Pakistan an Act of Parliament cannot cover the violation of the Constitution itself. It is precisely for this reason that an amendment in the Constitution has been introduced broadly analogous to that of an Indemnity Act. Based on the above quoted judgments of the British Court, only those excesses or violation of the Constitutional or legal norms shall stand condoned which had nexus with the objectives of martial law and were bonafide in achieving those objectives. Such object!.cs have been judicially defined and recognised by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case. 11. The case in hand, howsoever sensational it may be, is an ordinary criminal case. The offences allegedly committed by the petitioners are defined in the ordinary Statutes. Our ordinary courts were functioning without any let or hinderan^ during the period of martial law. Their doors were open and they were dispensing justice in similar cases as the one in hand. The Investigating Agency and the military authorities decided to place this case before a military court but gave no reason for doing so. C.M.L.A. Order 4 as amended from time to time gave no criterion for the initial institution of a criminal case before a military court. It is important to note that for transfer of a case from an ordinary court to the military court certain standards were laid down in the Order itself. In the cricumstances, therefore, we have to fall back on the nature of the case picked up to be tried by a military court, in the light of the general principles discussed above. In each case we would see the reason for selection of case for such a trial and if no reason was given we shall gather the same from the facts of the case to see its bonafide to meet the objectives of the Constitutional deviation. Such exercise is also in consonance with the decision given by the Supreme Court in Federation of Pakistan v. Ghulam Mustafa Khar (PLJ 1988 SC 629). Justice Saad Saood Jan. J. while writing judgment in the said case stated at page 54 of the reports- Taking into account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of constitutional deviation; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were malafide. For this purpose, it is unnecessary to draw a distinction between malice in fact and malice in law" 12. Intrinsically the grievance with regard to the trial by the military court arises from the denial of benefits which an accused receives in the ordinary court of law. Special military court may record extensively the evidence adduced before it but is not supposed to write judgment in support of its findings. The administrators who were responsible for executing the martial law turned into judges to try an offender. Above all there is no right of appeal even for a person who is condemned to death. 13. In the case in hand, we have gone through the record and we find that no reasons were recorded for the trial of the petitioners by a military court. The persual of the material on the record reveals that the petitioners were not mentioned in the F.I.R. but they were later on arrested and tortured. Their socalled confessions were retracted by them. There is a statement of the so-called approver whose own credentials are highly doubtful. There is a graphic but tragic description of extreme torture practised on the petitioners in their statements before the court. Some of them showed their scars to the court which resulted from the said torture. No parade was conducted to identify the un-named persons mentioned by some of the P.Ws. No other circumstantial evidence incriminating the petitioners is available on the record. Even the maker of the F.I.R. was abandoned by the prosecution and the effort to bring him to the court by the defence as a court witness was admittedly frustrated by the prosecution. The motive for involving the aunt for the murder of her neice was debunked by the prosecution witnesses themselves. The anxiety of both the administration and the police to lay the blame on some one's door for the alleged occurence is patently visisble from the record of the case. Malak Aman Khan, who was the then S.H.O.Police Station, Havelian and who recorded the F.I.R and initiated the investigation in the case admitted his malice against one of the main accused Romail patwari who was allegedly hired for the murder of Mst. Chand Bibi. He stated in his cross-examination that the father of the said accused had on one occasion brought a case against him in order to pressurise him hi his investigation of an abduction case. The defence counsel at one stage bycotted the trial as they were obstructed in producing the defence witnesses before the court and avenues of relief, prosecution or defence, as are provided to others in like circumstances—Held further: Impugned provisions of PATA Criminal Law and Civil Law (Special Provisions) Regulations I and II are violative of Article 25 of Constitution. [Pp. 37&38]F&G. (ii) Constitution of Pakistan, 1973-- —Art. 25-Equality before law-Fundamental right of-Whether PATA Regulations 1 & II are violative of Article 25 of Constitution—Question of— Not only that there is no basis for classification for application of special procedure to a certain number of citizens as against rest of citizens in Province but classification which ought to have nexus with object sought to be achieved by legislation, has no object at all-Held: Neither there is an intelligible differentia nor is there any object to establish a nexus between differentia and object,.[Pp.35&36]E (iii) Constitution of Pakistan, 1973-- —Art. 25 read with Provincially Administrated Tribal Areas Criminal Law and Civil Law (Special Provisions) Regulations, 1975—Procedure in Regulations-Whether violative of Article 25 of Constitution being discriminatory-Question of-Contention that special procedure provided in Regulations I and II of 1975 for trial of offences and settlement of civil disputes is not only discriminatory but patently arbitrary—Procedure in form of' Jirga is provided to inhabitants of certain areas of NWFP which have equal status with other districts of NWFP both politically and administratively-Material question is whether any classification can be made of those whose disputes are being settled and whose offences are being tried under impugned Regulations or is there any intelligble differentia which distinguishes them from those who are being benefitted by ordinary laws of land and ordinary Courts-Held: Citizens of area in question are being denied all cherished principles of a criminal trial as well as settlement of their civil disputes for no reason whatsoever. [Pp. 31,32&35]B,C,&D (iv) Constitution of Pakistan , 1973-- —-Art. 247(3) & (4)-States of Dir, Swat and Chitral-Inclusion in Provincially Administered Tribal Areas of—Effect of—NWFP legislature has no direct law making power over Provincially Administered Tribal Areas—Provincial laws are applied to such an area through an executive decree—Held: Constitutional transformation of former States to Tribal Areas has given an initial disadvantage to said States in legislative field which cannot be questioned [P. 31]A. Mr. Nasind Mulk, Barrister-at-Law for Petitioner. Qazi Muhammad Anwar, Advocate General for Respondents 1 to 3. Mr. Abdul Halim fOian, Advocate for Respondent No. 4. Dates of hearing: 28 and 29-1-1990. judgment Qazi Mohammad Jamil, J.--The following five constitutional petitions impugn the procedure of trial under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation 1975, as amended, hereinafter called Regulation I and the Provincially Administered Tribal Areas Civil Laws (Special Provisions) Regulation, 1975, as amended, hereinafter called Regulation II. The learned counsel appearing on behalf of the petitioners addressed their arguments on the same day and the petitions are disposed of together. (0 W.P.No. 401 of 1989, (Mohammad Irshad v.AC, Swat etc) (ii) W.P.No. 417 of 1989, (Mohammad Wakil v. FAC Malta etc) (Hi) W.P.No. 442 of 1989, (Ameer Klian v. Addl: Secretary etc) (iv) W.P.No. 495 of 1989, (Yoitsaf KJian etc. v. Jamshed Klian etc) and (v) W.P.No. 28 of 1990, (Muhammad Zeb v.A.C. etc). The facts relevant to the disposal of these petitions are briefly narrated as follows: 2. Mohammad Irshad, petitioner in writ petition No. 401/89 is the brother of one Barkat who was murdered and a report was lodged in Police Station, Mingora by the deceased himself in an injured condition. The investigation has taken place under the Code of Criminal Procedure but the challan was placed before Assistant Commissioner, Swat, respondent No. 1 who is exercising the powers of Deputy Commissioner under Regulation I. Respondent No. 1 then referred the case to be tried by the jirga as enjoined by the said Regulation. The petitioner objected to the reference being made to the jirga but the same was turned down by respondent No. 1. 3. Mohammad Wakil, the petitioner in petition -No. 417/89 along with others was fired at by respondents 4 and 5 as result of which Faiz-ud-Din died. A case was registered at Police Station, Malta, District Swat. The investigation was completed under Criminal Procedure Code but the challan was placed before Extra Assistant Commissioner, Malta exercising the powers of Deputy Commissioner under Regulalion I who made a reference lo jirga constituted under ihe said Regulalion. The pelitioner's objeclion lo the same was turned down. 4. Amer Khan, the petilioner in conslitulional pelilion No. 442/89 is an accused along wilh four olhers who was charged for the offences under Sections 302/307/34 Pakislan Penal Code vide F.I.R. registered at Police Stalion, Aluch, Dislrict Swat. He was arrested and his bail application was rejected by Assistant Commissioner, Alpuri, Districl Swal and his approach lo Addilional Commissioner, Malakand Division and Addilional Secrelary lo Governmenl of N.W.F.P. Home and Tribal Affairs Department, Peshawar also failed. He also objects to ihe cognizance of the Case againsl him by ihc hierarchy of Ihe officers empowered lo do so under Regulalion I. 5. Pelition No. 495/89 involves a dispule of civil nalure. Respondenl No. 1. filed a suil for possession Ihrough redemption before respondent No. 5, i.e. Extra Assistant Commissioner, Swat. The defendants raised objection of limitation but the issue was decided by the said respondent without recording any evidence. Similarly, petitioner No. 1 applied for being impleaded as a party but the same was dismissed by the hierarchy of officers established under Regulation II. Petitioners 2 to 5 also submitted application to Extra Assistant Commissioner, respondnt No. 5, objecting to his jurisdiction in the cause as the same was violative of the Constitution of Islamic Republic of Pakistan but the said respondent refused to entertain the application and returned the same in original. 6. Petitioner Mohammad Zeb in writ petition No. 28 of 1990, lodged a complaint in Police Station, Uch, District Dir for the murder of four persons and injuries to two others. All the accused absconded, according to the petitioner, except Liaqat Ali, respondent No. 5. Once again investigation was carried in accordance with Criminal Procedure Code and the challan was placed before Extra Assistant Commissioner who referred the matter to a jirga constituted under Regulation I. The petitioner's objection to the trial by jirga was rejected. 7. The petitions before us pertain to Swat and Dir which were former States of British India governed by their own Rulers. They acceded to Pakistan and later on merged with the then province of West Pakistan by W.P. Regulation I of 1969. Later on the dissolution of the said province, they became part of the N.W.F.P. The administrative units such as districts and divisions were created by notifications. Civil administration and police force were established in the area and they were brought at par with rest of the districts and divisions in the North- West Frontier Province. By Regulation I of 1970, the Code of Criminal Procedure, the Evidence Act and the Police Act were made applicable to the said areas. From then omvurds nearly all the substantive and procedural laws, both civil and criminal, as were eniorced in the N.W.F.P. were made available to the inhabitants of the said areas. As such, the ordinary courts functioned for nearly four years for the disposal of both the disputes of civil nature and criminal offences when in the year 1975, the impugned Regulations were made. It is interesting to note that Dir, Swat and Chitral had no status as tribal areas prior to Independence. But in their own wisdom the framers of the Constitution of 1973 included them in the definition of Provincially Administered Tribal Areas as laid down in Article 246-B of the Constitution. The main significance for their being so declared is to be found in Article 247(3) (4) of the Constitution. The said Article reads as follows:-- Article 247'. Administration of Tribal Areas 1. 2. 3. No Act of Majlis-i-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs and no Act of Majlis-i-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction. 4. Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Majlis-i-Shoora (Parliament) and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province." Thus the N.W.F.P. legislature has no direct law making power over the Provincially Administered Tribal Areas. The Provincial laws are applied to such an area through an executive decree. The Governor of the Province has also been given power, with the prior approval of the President, to make Regulations on any subject within the legislative competence of the Provincial legislature "for the peace and good government" of the said area. As such the constitutional transformation of the former States to the Tribal Areas has given an initial disadvantage to the said States in the legislative field which, of course, we cannot question. What is, however, being questioned is the treatment meted out to the inhabitants of the said area who are as good citizens as rest of them in Pakistan by subjecting them to Regulations which establish special forums and procedure for the administration of justice. 8. In the field of Criminal justice, as is contended by Mr. Nasir-ul-Mulk, bar-at-Law, the learned counsel for the petitioner in petition No. 401/89, the argument followed by the learned counsel appearing in other petitions, the special procedure provided in Regulation I of 1975 for the trial of offenders is not only discriminatory ex facie but patently arbitrary in its application. The introduction of such a special procedure and special forums thereto in deviation to the ordinary procedure and ordinary Court is violative of Article 25 of the Constitution guaranteeing equality before law and equal protection of law. It not only created anomalous situation by excluding certain offences from its purview to be tried by the ordinary courts but also led to an irrational classification between those offences triable under Regulation I of 1975 and those left out to be tried by the courts of law. It is further contended that the ordinary citizen of Provincially Administered Tribal Areas are being discriminated against in the matter of application of Criminal Procedure Code, Evidence Act and judicial forum as against rest of the citizens of Pakistan for no ostensible reason and for no, objective whatsoever. 9. In the field of adjudication of civil disputes, similar arguments were advanced. It was contended that despite the extention of ordinary procedural laws and substantive laws as prevalent in rest of the Provinces including Civil Procedure Code, Evidence Act and Civil Courts Ordinance, Regulation II is subjecting the citizens of the said area to special procedure which specifically forbids the application of C.P.C. and Evidence Act and which provides a forum in the form of a jirga comprising of the government official and lay men. Apart from the serious anomalies which have crept in by a dual judicial system resulting in the delay in the disposal of cases and mis-carriage of justice, the classification, within the same area, between those who are to be tried by the jirga under Provincially Administered Tribal Areas Regulation and those whose cause shall be considered by the courts of law is un-reasonable, has no basis whatsoever, and no nexus with any objective. Furthermore, the protection of ordinary laws available to rest of the citizens of the Province is being denied to the citizens of Provinially Administered Tribal Areas which violates Article 25 of the Constitution. 10. Regulations I and II, were made by the Governor of the Province with the prior approval of the President under Article 247 (4) of the Constitution. Originally Regulation I provided special provisions for the administration of justice in a limited number of criminal cases, mentioned therein, under Pakistan Penal Code. Similarly, Regulation II laid down special provisions for Civil Procedure to be applied for settling dispute of civil nature mentioned therein. Originally both the Regulations were applied to Provincially Administered Tribal Areas of Chitral, Dir and Swat (which includes Kalam) and Malakand Protected Area. An amendment was introduced by Regulation IV of 1976 which excluded the Malakand Protected Area from its purriew but included Kohistan as well. By the same amendment, the limited jurisdiction in the original Regulations was made applicable to all offences punishable under the Pakistan Penal Code except those mentioned in Chapters VI,VII,IX,IX-A and XII. By yet another amendment introduced in the year 1977, Chapters IX and IX-A of the Pakistan Penal Code were omitted and instead Chapters VIII, IX, IX-A, X and XI were substituted. Similarly, Regulation II was amended to substitute the word 'Jirga' for the word 'tribunal'. The scope of the jurisdiction to be exercised under the Regulation was enhanced and apart from all suits of civil nature, with a few significant exceptions all suits by a landlord for the arrear of rent or the money equivalant to rent or for sum recoverable under section 7 of the N.W.F.P. Tenancy Act of 1950 were included for being referred to a jirga constituted under the Regulation and adjudicated upon in accordance with the provisions of the Regulation. In the original Regulation, the Limitation Act, 1908 was made applicable and the powers to adjudicate upon the limitation to file a suit or an application was given to the Deputy Commissioner before he could refer the matter to a jirga. By the aforesaid amendment the time limit if provided by 'riwaj' custom or usage having the force of law was given priority to the Limitation Act. Originally, Tehsildar was to be the Chairman of the jirga constituted under the Regulations but by the aforesaid amendment Naib Tehsildar could also exercise the powers of Tehsildar as such. 11. The Chapters of Pakistan Penal Code which were excluded from the special procedure provided by Regulation I, as amended, are related to the State, the State functionaries or the functions of the State and the Government. For example, Chapter VI deals with the Offences against the State, Chapter VII lays down offences relating to the Army, Navy and Air Force. Chapter IX-A, deals with offences relating to election and Chapter XII contains the offences relating to coins and Government stamps. The offences so excluded are triable before the ordinary criminal courts under the Ordinary law. The infra-structure of the ordinary criminal courts exists in the areas in question. 12. Regulation II as amended, which provides special procedure for settlement of disputes of civil nature, excludes from its purview, the cases in which the interest of a minor or of a person of unsound mind is involved; cases where provision for arbitration has been made in a contract between the parties and cases by or against the Federal or the Provincial Governmnet or a Public Corporation or a public servant acting in the discharge of his duty. The cases so excluded are tried in ordinary courts under the ordinary law as prevalent in other parts of the Province. The Civil Courts are functioning in the area in question as the Civil Courts Ordinance was extended to the said areas alongwith Civil Procedure Code and the Evidence Act. 13. With dual system working, both in the field of criminal justice and settlement of disputes, as stated above, there is no need for explaining the general features of our oridinary judicial system but the main features of the impugned provisions of Regulations I and II are to be briefly stated before we can determine the question of discrimination raised by the petitioners. The investigation into an offence committed in the areas where the impugned Regulations have been made applicable is carried under the provisions of Criminal Procedure Code. The Investigating Agency faithfully carries its investigation according to the letter of the Criminal Procedure Code and when concluded places the challan before the Deputy Commissioner in cases falling within the provisions of Regulation I. The moment the Deputy Commissioner takes cognizance of the case, which is also possible on the complaint of any person, he activates the machinery for the trial of offences so reported to him as provided by the said Regulation. The Code of Criminal Procedure from then onward is excluded and the same is the case of the Evidence Act. The question of guilt or innocence of the accused is referred to jirga. The jirga consists of the government official not below the rank of Tehsildar, which includes Naib Tehsildar, who shall be its President and four other members all to be appointed by the Deputy Commissioner. The opportunity of hearing is provided by the jirga to the parties and the jirga may record evidence as well but may refuse to do so in its own discretion if in its opinion the same is being tendered for the purpose of causing vaxation or dealy or for defeating the ends of justice. The findings of the jirga are then submitted to the Deputy Commissioner in the form of a report. Upon receipt of such findings of the jirga, the Deputy Commissioner has the following options. He may remand the question to the jirga if he is of the opinion that the jirga has not given a finding on the question referred to it or there has been material irregularity or mis-carriage of justice. In case the jirga unanimously or by majority of 4/5th gives a finding of guilty, the Deputy Commissioner may either convict and pass sentence on, or acquit the person or persons so found guilty (section 11 (3). If the jirga unanimously or by a majority of 4/5th reports a finding of not guilty, the Deputy Commissioner shall, if he does not remand the case to the jirga, acquit the person or persons so found not guilty. Where the jirga reports the finding either of guilty or of not guilty by a majority of less than 4/5th, the Deputy Commissioner shall, if he does not remand the case to the jirga, acquit the accused person or persons (section 10). The Deputy Commissioner has been empowered to pass sentence on a person convicted as prescribed in the Pakistan Penal Code for the offence committed by him. But he cannot pass the sentence of death. The appeal lies to the Commissioner of the Division and the Government of NWFP has the revisional powers. Regulation II which deals with the civil disputes also gives Deputy Commissioner the powers to entertain the dispute and if filed within time he refers the same to a jirga. The constitution of the jirga is the same as that of the jirga constituted under Regulation I. The Civil Procdeure Code and the Evidence Act are not applicable in proceedings before the said jirga. On receiving the findings of the jirga the Deputy Commissioner may remand the matter for reconsideration of the jirga in certain circumstances. If the finding of the jirga is unanimous or by a majority of its members and the Deputy Commissioner does not wish to remand the case back he shall decide the dispute and pass a decree in accordance with such fmdigs (section 10). Appeal lies to the Commissioner of the Division concerned and the revisional powers are given to the Government of N.W.F.P. 14. It is contended that the provisions of Regulations I and II, as reproduced n the preceding paragraphs, are violative of Article 25 of the Constitution which reads as follows:- 25.Equality of Citizens:- (1) All Citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any Special provisions for the protection of women and children". Thus the fundamental right ensures the equality before law which is a British concept and equal protection of law which has been enshrined in the 14th amendment of the U.S. Constitution. The principle that every one is equal in the eyes of law and no one is above law coupled with lack of arbitrariness is the edifice of Rule of Law. Justice through ordinary courts for high and low was not only believed to be the basis of English Judicial system but has been championed by British Jurists since Dicey despite several inroads made thereto. The 14th amendment to the U.S. Constitution issued a mandate to the States to provide equal protection of laws. From its initial narrow interpretation, namely, in civil rights cases, the U.S. Supreme Court has in recent time extended its scope to other fields as well. Indian Constitution has also incorporated both the concepts i.e. the equality before law and equal protection of law. The Indian Superior Courts have applied the concept of equal protection of law in every conceivable field of human activity including the administration of justice and the application of procedural law. They were mainly inspired by the pronouncements of American Judges. In certain lucid period of our otherwise erratic polity, Pakistan Superior Courts have also expounded the concept of equal protection of law, mainly on the principles enunciated by the U.S. Supreme Court. 15. In its nutshell, the concept, as it stands today, means the protection of equal laws. It means that "no person or class of persons shall be denied the same protection of law as is enjoyed by other persons or other classes in the same place and in the like circumstances". Inequality is permissible if the same is based on classification which in turn must be reasonable and must not be arbitrary. Again such a classification must be based on a defined criterion and must have a nexus with the objective for which the classification has been necessitated. But "the mere fact of classification is not enough to put the Statute beyond the equality provision of the Fourteenth Amendment U.S.CA. Const. In order to violate that provision, the classification must be actually and palpably un-reasonable and arbitrary. The mere production of an inequality is not enough". (Radice v. People of State of New York 44 S.GT 325, US 292,68 L.Ed 690). In advisory opinion re. the Special Courts Bill (1979) 2 SCR-476, the Supreme Court of India summed up the above principles by stating," (i) that the classification must be formed on an intelligible differentia which distinguishes those that are grouped together from others and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the Act". 14. The special procedure in the form of a jirga as incorporated in Regulations I and II is provided to the inhabitants of certain areas which are part of the Province of N.W.F.P. The said areas have equal status with other districts of NWFP both politically and administratively. As stated earlier, the regular substantive and procedural laws both civil and criminal which are enforced in rest of the Province have been applied to the said areas. Whether we can make a classification of those whose disputes are being settled and whose offences are being tried under the provisions of impugned Regulations on or any intelligible j differentia which distinguishes them from those who are being benefitted by the j ordinary laws of the land and the ordinary courts, is a material question before us..j Within the area itself, the offences which have been excluded from the purview of j the special procedure provided by Regulation I of 1975 make no sense except that the said offence involved the State or its functionaries. Such a distinction can hardly be called reasonable. On the other hand, if the State and its functionaries have no confidence in the competence of a jirga then why the ordinary citizens are left to its mercy. Such a treatment is not only against the guarantee of equal protection of law but also infringes the equality before law. Similarly, the minor, insane and the Government have been given the benefit of protection of ordinary law of the land whereas the rest of the citizens are to seek redress of their grievances through the executive authorities of the districts from a jirga comprising of a government official and laity. Again such a classification within the area has no rational basis and on the contrary it reflects lack of confidence in trial by jirga. On the larger plane, the citizens of the area in question are being denied all the cherished principles of a criminal trial as well as the settlement of their civil disputes for no reason whatsoever. Preambles to both the Regulations do not give any objective for providing special procedure and special forum to those affected. It is simply stated therein that the special provisions are being made "to meet the special requirements of those areas". We are not made aware of those special requirements. As a brief history of the former States has alerady been given in the preceding paragraphs, it is worth noting that both in Swat and Dir there was no jirga system even prior to their merger with N.W.F.P. They had their own system of judicial administration. Swat was being governed by customary law and there was a department of QAZIS apart from the hierarchy of officials administering justice. Similarly, Dir had a complete code called "Dastoor-ul-Amal". After the merger not only in Swat and Dir, but in the entire Provincially Administered Tribal Areas which have now been brought within the purview of the Regulation the ordinary laws both criminal and civil were made applicable. With the introduction of Criminal Procedure Code and Evidence Act in the year 1970 and later on with the introduction of Civil Courts Ordinance and Civil Procedure Code, the inhabitants of the said areas passed peacefully into the age of rule of law. For nearly four years, the courts functioned with the procedure as is available in rest of Pakistan. Therefore, it is not comprehensible as to what were the special requirements which were being met by making the impugned Regulations. Not only that there is no basis for the classification for the application of the special procedure as laid down in the impugned Regulations to a certain unmber of citizens as against rest of the citizens in the Province but the ! classification which ought to have nexus with the object sought to be achieved by the legislation has no object at all. We may not look for any rational relation of the differentia as there is neither an intelligible differentia nor is there any object I to establish a nexus between the differentia and the object. 17. There is another aspect of the discrimination being practised against those who are subjected to the impugned provisions of Regulations I and II. The confusion and the subsequent delay owing to such confusion is the hall-mark of both the Regulations. This court in the past so many years has been inundated with the constitutional petitions filed by the inhabitants of the said areas, bewildered and dismayed not only because of the obvious judicial incompetence of the jirga and the administration but owing to numerous anomalies which have crept in by excluding certain offences from Regulation I. In the dual system of adjudication where the ordinary civil courts are functioning within their assigned spheres some of the anomalies may be spot lighted. A case registered under regular law including the Hadood Ordinance and local and special laws so extended to the areas, has to be tried by different forums. The bifurcation of offences under the Pakistan Penal Code between those to be tried by the jirga and those tried by the ordinary courts has resulted in difficult situations for those affected. For example, the lawyers complained that in the past person charged for murder under Section 302 Pakistan Penal Code was tried at one forum and for offences under Sections 148/149 P.P.C. at another. The possibility of conflicting judgments in some of the cases is always there. There is no provision of pre-arrest bail under Regulation I whereas the same could be obtained in offences precluded from the purview of said Regulation. No death sentence is provided for capital offence under the Regulation. The confusion has been worst confounded when the Criminal Procedure Code is available to the Investigating Officer but the same has been excluded from the proceedings before the jirga. There are worst aberrations in the working of Regulation II for the the settlement of disputes of civil nature. The case where the interest of a minor is involved is to be tried by the ordinary court but as it may happen, a minor grows into major during the proceedings and the said court may refuse to exercise its jurisdiction over the cause. Similarly, if a litigant before jirga dies during the proceedings and he leaves behind minor children, the jirga may cease to proceed with the case. The Statutes which carry their own provisions of limitation like the Preemption Act which have been made applicable to the areas in question may come in seemingly unresolved conflict with the provisions of Regulation II which takes cognizance of custom and usage for the purpose of limiation. The revenue officers and the revenue courts are also functioning in the said areas. Part of the subject matter of their jurisdiction has been handed over to jirga which leaves the lawyeres and litigants in quandary. These were some of the examples to illustrate the denial of certainty of law and predictability of justice to the petitioners before us. Such a denial obviously leads to inequality before law and militates against the concept of equal protection of law. Scuh an inequality is aggravated by the fact that for the petitioners the lolcal administration and not so educated members of jirga are being preferred to trained judges who are sitting and working in the areas they belong. Such a treatment cuts deeply at the cherished principles of constitutionally mandated separation of judiciary from Executive. 18. Qazi Mohammad Anwar, the learned Advocate General, urged that no mala fide could be attributed to the legislature. Neither the same has been canvassed before us nor we propose to do so. To test a piece of legislation on the touchstone of a Fundamental Right does not necessarily involve the mala fide of the legislature. Furthermore in the present case we are not concerned with it and we have simply examined the impugned provisions of the Regulations in their application to the petitioners to determine the violation or otherwise of Article 25 of the Constitution. As for the arguments that the Regulations provide procedural law and no one has vested right in such a law, one should not be unmindful of the fact that the Regulations also provide forums for adjudication of cases within the purview of the Regulations. Secondly, a rule of procedure cannot be excluded from the scope of Article 25 of the Constitution as 'every citizen is entitled to the availability of same procedural avenues of relief, prosecution or defence, as are provided to others in the like circumstances. The concept of due process of law includes substantive law and procedural law both. Any discrimination in the procedure for settling dispute or dealing with the offenders against a certain class of people or residents of a locality may in certain circumstances offend against Article 25 of the Constitution. 19. Mr. Saif-ur-Rehman Kiyani, learned Deputy Attorney General argued 11 at the Regulations were improvements over the past in the matter of administration of justice in the concerned area. Not only that his arguments are not relevant in the context of the present case but his assertion is also open to question in view of the historical back ground, already described briefly in the preceding paragraphs, of judicial system in the area concerned. It is specially so when we notice that immediately prior to the making of the Regulations the regular laws both substantive and procedural were extended to the area concerned, and the ordinary courts were functioning both in civil and criminal fields. 20. Mr. Abdus Samad Khan, learned counsel for private respondent in one of the petitions gave a strange interpretation to the non-obstante clause of Article 25 (4) of the Constitution, stating that the same has barred the availability of Fundamental Rights to the inhabitants of the area in question. The argument is basically fallacious. Suffice it to point out in this regard that said clause is only confined to the contents of Sub-Article (4) of Article 247 which empowers the Governor, to make Regulations. It pre-empts any move to challenge the vires of legislation made by the Governor in the exclusive field of the Provincial legislature assigned to it by the Constitution. Fundamental Rights are entrenched in the Constitution for every citizen and in some cases every person residing in Pakistan and they are guarantees against the excesses of all branches of Government including the legislature, be it the Governor or the Provincial Assembly. As for the arguments that the people in the area were not happy with the ordinary courts and the present system is working satisfactorily, we shall only refer to the report of Justice Allah Bakhsh Khan, who in 1981 was commissioned to gauge the public opinion and to find out the feasibility of the enforcement of the normal laws in the Provincially Administered Tribal Areas. The report did not see the light of the day but the learned Advocate General was kind enough to provide us with a copy of the same. Justice Allah Bakhsh Khan after recording the, opinions of a cross section of people and noting the obvious defects and the discrimination germane to the procedure provided by the Regulations of 1975 recommended their repeal. He concluded:- "It would, therefore, be in the interest of national integrity that uniform civil and criminal laws are enforced in the District of Dir, Swat and Chitral as well as the Malakand protected area and the entire Division is brought at par with the other parts of the country in the field of administration of justice. The 'Riwaj' has out lived its utility an.d the people of this Division deserve to get rid of the evils of 'Riwaj' which were perpetuated during the tyrannical rule of the despotic Nawab It is, therefore, recommended that in view of the real need of the hour and in the interest of national integrity, the PATA Regulations enforced . in the District of Dir, Swat and Chitral be replaced by the normal laws of the country and the entire Provincially Administered Tribal Area be brought at par with the other parts of the land". The report is dated 15.11.1982 and it is unfortunate that valuable recommendation of a Judge of the High Court has been kept in the cold storage so far. 21. In the light of what has been stated above, the impugned provisions of Provincially Admininstered Tribal Areas Criminal Law (Special Provisions) Regulation (Regulation No. I of 1975), as amended, laying down procedure for trial of offences mentioned therein and the remedies provided thereto are declared as violative of Article 25 of the Constitution. Resultantly the trials under the said Regulation of the accused in petition No.417/89, 442/89,401/89 and 28/90 are quashed. It is directed that they be put to trial before a criminal court of competent jurisdiction. Similarly, the impugned provisions of Provincially Administered Tribal Areas Civil Proccedure (Special Provisions) Regulation II of 1975, as amended, providing procedure for settlement of disputes are declared as violative of Article 25 of the Conatitution and, as such, the jirga under the said Regulation shall cease to exercise jurisdiction over the dispute involved in constitutional petition No.495/89 and it is directed that the same be transferred to a civil court of competent jurisdiction. In the circumstances of the case, there shall be no order as to costs. (MBC) Petitions accepted

PLJ 1990 Peshawar 38 PLJ 1990 Peshawar 38 [Circuit Bench, Abbottabad] Present: ABDUR REHMAN KHAN, J S. ABDUS SAMAD KHAN-Petitioner versus ZAIN KHAN and 2 others-Respondents Civil Revision No. 177 of 1984, dismissed on 20-12-1989 Land Reforms Regulation 1972 (MLR 115)--. —Paras. 25 & 26--Tenant~Suit for pre-emption by--Whether civil court has jurisdiction to adjudicate suit for pre-emption based on tenancy-Question of-Name of respondent No. 2 was shown as tenant in cultivation column of Khasra Girdawari and Jamabandi-Both courts were correct in holding that revenue record supports tenancy of respondent No.2—Decree in his favour passed by Collector in that capacity was thus perfectly legal-Para. 25 invests Collector with power of deciding pre-emption cases in which right of pre­ emption is claimed through tenancy-Held: Para 26 debars jurisdiction of civil court to challenge any order made under MLR 115—Revision dismissed. [Pp.39&40jA&B Mr. Muhammad Younis KJian Tanoli, Advocate for Petitioner. Mr Klialid Rehman Qurashi, Advocate for Respondents. Date of hearing: 16-12-1989. judgment The petitioner has assailed the concurrent decisions of the lower Courts, whereby the original Court dismissed his pre-emption suit and the appellate Court confirmed that decision. 2. One Sardar Jehandad sold certain land through mutations No. 1524 and 1525 both sanctioned on 20-4-77 to Zain Khan respondent No. 1. Two separate suits of pre-emption were filed by the petitioner in respect of the sale and similarly the rival pre-emptor Mohammad Abdullah respondent No.3 also brought two suits to enforce his pre-emptive rights. When Zain Khan defendantvendor appeared in Court, he submitted his written statement that Mohammad Akbar defendant No. 2 had brought pre-emption suits against him in the Court of Collector on the basis of tenancy which were decreed in his favour by the said Court and, therefore, he had no concern with the suit land. Consequently, Mohammad Akbar was also impleaded and the allegation regarding the illegal and collusive nature of the decree obtained by him from the Collector were added in the amended plaint. Mohammad Akbar refuted these allegations and described the decrees in his favour as based on correct facts and in accord with the relevant law. The learned Civil Judge by his judgment dated 11-1-82 held that in view of Land Reforms Regulation, 1972, para 25 (Sub-para 5) the suit of pre-emption based on the qualification of tenancy was competent before the Collector and, therefore,' the decision made by the Collector would not be amenable to the jurisdiction of the Civil Court. It was observed that if at all the plaintiff felt aggrieved then he could have resorted to the hierarchy provided under sub-paras 6 and 7 of para 25 of the said Regulation. However, on perusal of the revenue record the learned Civil Judge found the claim of tenancy by Mohammad Akbar defendant No. 2 to be factually correct. In this view of the- matter on law as well as facts the suit of Mohammad Akbar was held to have been rightly decided. The appellate Court of the learned Addl: Sessions Judge confirmed the finding of the trial Judge on the same grounds. 3. I heard the learned counsel pleading the cause of their respective sides and studied the record in the light of the arguments addressed by them. 4. The Fard-jamabandi of 1967-68 has been exhibited as P.W. 1/1 on record, wherein the suit khasra No. 3115 measuring 11 kanals 14 marlas has been PLD 1987 Peshawar 68 rel. Mr. Ghulam Basil, Advocate for Appellants. Mr. Muhammad Aslam KJian, A.A.G. for Respondents 1 & 2. Mr. Aurangzeb Klian, Advocate for Respondents 9 to 11. Date of hearing: 16.12.1989. judgment During the process of acquiring land in connection with Tarbela Dam Project from village Dari, Tehsil, Haripur, District Abbottabad, the Land Acquisition Collector drevwan award No. 9 dated«8.12.1972. 2. Not contented therewith, the appellant moved an objection petition under section 18 of the Land Acquisition Act, 1894, which was duly forwarded to the learned Additional Distt; Judge/Acquisition Judge, Haripur, under section 19 (ibid), for adjudication. 3. The objection was contested by the Collector Acquisition and the pleadings of the parties gave rise to the following issues: 1. Whether property in Khasra No. 715 measuring 20 Kanals 19marlas is the ownership ef the objectors and they are entitled to its compensation and the same has wrongly been assessed as shamilat? 2. Whether the petition is bad for non-joinder of necessary parties? 3. Whether the objectors have a cause of action? 4. Relief. Additional Issue 1. Whether the objectors have not sought any relief against the respondents, if so,.what effect?. 4. After recording such evidence as was produced by the parties in support of their pleadings, the learned Reference Judge, finding all the issues against the appellants, dismissed .the objection petition vide his judgment dated 16.2.1980. Hence this appeal. 5. I have heared Haji Ghulam Basil, Advocate learned counsel for the appellants, Mr. Mohammad Aslam Khan Asstt: Advocate General as also Mr. Aurangzeb Khan, Advocate learned counsel for the respondents and perused the record of the case with their valuable assistance. 6. At the very out-set, the learned counsel for the appellants conceded that the suit land is 'Shamilat deh' and the appellant does not claim its ownership. He then submitted that .the land measuring 20 kanals 19 marlas, out of total land measuring 164 kanals bearing khasra number 715, is proved to be in possession of the prcdecessor-in-interest of the appellants who have made improvements therein which merited not only its re-classification for the purpose 6f payment of compensation but also its payment to the appellants and that too at enhanced rates. He, therefore, maintained that the findings of the learned Reference Judge on issues No. 1 and 3 are not tenable. He assailed the findings on issue No. 2 as also the additional issue ort the ground that the respondents, or the persons whom the learned Reference Judge deemed necessary to be impleaded as party, do not have any clash of interest with the appellants. 7. As against this the learned counsel for the respondents, while supporting the judgment of the learned Reference Judge, argued that the finding on issues 1 and 3 are well founded and decision on issue No. 2 is in conformity with the factual aspect of the case in that certain persons who were deemed by the learned Reference Judge as necessary parties to the proceedings, for the just decision of the case, are not impleaded by the appellants. It is also contended that any change in the kind of land, as a consequence of entries recorded in khasra girdawari Ex. OW 2/2, would be of no avail to the appellants inasmuch as the alleged improvements in the land have seemingly occurred in 1971 while the land was acquired in 1967. 8. I have given my serious consideration to the submissions made by the learned counsel for the parties and also perused the record of the case with considerable degree of care. 9. The scope of controversy, in my view, has narrowed down to the question, and thereupon hinges the ultimate fate of this case, as to whether the appellants can claim compensation for the improvements which have been affected in the land after its acquisition, or, speaking more precisely, after the issuance of notification under section 4 of the Land Acquisition Act. 10. Undisputedly the notification under section 4 of the Land Acquisition Act, 1894, acquiring the land in village Dari, including the suit land, was issued on 3.5.1967. It is however, a matter of record, as is evident from khasra girdawari Ex. OW 2/2, that the suit land remained banjar-qadeem and soka till kharif 1970. It was in Rabi l'97i that a change of classification of a part of the land seems to have taken place and recorded as such in. khasra girdawari of the year Ex OW 2/2. 11. It is now well settled that assessment of compensation, to be paid to the land-owners for the land acquired, is based on the condition and the market value thereof obtaining before the issuance of notification under section 4 of the Land Acquisition Act. In other words the material date, for the purpose of determining compensation in respect of such land, would be the date of notification under section 4 of the Act. It is in this context that reliance is generally placed on one yearly avef age of the sale price of land sold within or in proximity of the land acquired before the date of notification. I draw strength in this regard from a Full Bench decision of this Court in the case of Government of Pakistan vs. Sikandar Klian etc. reported in PLD 1987 Peshawar 68 wherein it is held:- "The upshot of the above discussion is that on the view of the matter that we take, we hold that the material date for the purpose of compensation in respect of the acquired land would be the date of the notification issued under section 4 of the Act in each of these cases ................................................................ " 12. In this view of matter, I have no hesitation in holding- that the compensation in respect of the land in question on the basis of its improved condition, which is later in time than the date of notification issued under section 4 of the Land Acquisition Act, cannot be made a valid criterion for determining the rate thereof nor can it be claimed by the appellants under settled principle of law. 13. With this answer to the question formulated in para 9 supra, other points raised by the learned counsel for the appellants need hardly any discussion for the decision of this appeal. 14. Consequently, finding this appeal devoid of any merits, I hereby dismiss the same with no-order as to costs. (MCB) Appeal dismissed.

PLJ 1990 Peshawar 50 (DB) PLJ 1990 Peshawar 50 (DB) [Circuit Bench, Abbottabad] Present: SYED ABNE ALi and ABDUR rehman khan, JJ POLICE DEPARTMENT-Appellant versus JAVED ISRAR etc.-Respondents FAO No, 9 of 1989, dismissed on 19-3-1990 Land Acquisition Act, 1894, (I of 1894)- —-Ss. 54&26-Award-Appeal against-Competency of-Challenge to-Objection that under Section 54 of Act, appeal shall only lie from award or any part of award but impugned order does not amount to an award, so appeal is not competent—Term 'award' has not been defined in Act—According to Section 26, an award must be in writing and amount should be specified-Impugned order does not deal with determination either of quantum or apportionment of compensation, therefore, it cannot be termed as award or part of award-Held: Impugned order is not appealable and appeal being incompetent, is liable to dismissal on this score. |P.51 Mr. Muhammad Aslam Klian, AAG for Appellant. Haji Ghulam Basil, Advocate for Respondents. Date of hearing: 19-2-1990. judgment Abdur Rehman Khan, J.—The land of the respondents/objectors was acquired through awards No.34 and 35 dated 7.7.82 for construction of the Office and Residence of police officers by appellant No.2 for appellant No.l. The respondents were not satisfied with the assessment of compensation worked out in the award of the Collector, therefore, their objection petition under section 18 of the Land Acquisition Act, was referred to the Court of Senior Civil Judge, acting as Acquisition Judge. The objection was received in the latter Court on 7.2.83 and process was issued against the respondents-appellants for 19.3.83. Inspite of service none of the respondents put in appearance and as such Were placed ex pane and the case was fixed for recording ex parte evidence of the objectors on 19.5.83. In the meantime some evidence of the objectors was recorded when almost about two years after, on 14.2.85 the respondents applied for setting aside the cxpartc prcccdings. This application was fixed for evidence on 2.7.85 but no evidence was produced on this dale and the case was adjourned for this purpose to 2.7.85. However, on this date too no witness was produced and 23.9.85 was fixed as the next dale for evidence. On this date also the appellants failed to procure the attendance of their witnesses and requested for adjournment to produce evidence. This adjournment was allowed at their instance and they were directed to produce evidence on 14.10.85. But on this date neither the appellants appeared in Court nor produced evidence and accordingly the learned Court closed their evidence in terms of Order 17 Rule 3 C.P.C. Thereafter on 2.12.85 they submitted the present application under section 151 C.P.C. for setting aside the order dated 14.10.85. This application was dismissed by the impugned order dated 22.7.89 as incompetent because according to the learned Judge the remedy provided against the impugned order was either by way of appeal or review and not through an application under section 151 C.P.C. The appellants have, therefore, assailed the order dated 22.7.89 in this appeal. 2. At the hearing a preliminary point regarding the competency of the appeal was raised by learned counsel for the respondents. It was submitted that under section 54 of the Land Acquisition Act, an appeal shall only lie from the award or any part of the award but as the impugned order does not amount to an award, therefore, no appeal will be competent against it. The learned Assistant Advocate General while controverting the preliminary objection argued that section 53 of the Land Acquisition Act has made the Civil Procedure Code applicable to proceedings under the former Act, therefore,under the relevant provision of the said Code such an appeal would be competent. 3. We considered this point in the light of the relevant law. 4. Under Section 54 of the Land Acquisition Act, an appeal is competent from the award or from any part of it. It is conceded that the term award has not been defined in the Act. However, its ambit and import can be determined by reference to Section 26 of the Act wherein form of an award has been explained. According to this section an award must be in writing and it shall specify the amount under any of the clauses of section 23 and must be backed by reason for awarding the amount. In other words it must have some nexus with the compensation in some form either with the amount or with the disposal of the compensation. The impugned order does not deal with the determination either of quantum or apportionment of the compensation and, therefore, cannot bff termed as award or part of the award. Right of appeal can be availed of only when it is bestowed upon a litigant by the Statute itself and, therefore, section 53 cannot be stretched to the extent to make all the provisions of the C.P.C. relating to appeal applicable to the proceedings under the Land Acquisition Act. Moreover, section 54 being of specific nature would prevail over section 53 which is of general character. It is thus obvious that the impugned order is not appealable and the instant appeal being incompetent is liable to dismissal on this score. However, even if an appeal is held to be competent even then the impugned order does not suffer form any illegality as it has been correctly pointed out that the remedy of the appellants was either in appeal or through a revision petition and not through an application under section 151 C.P.C. 5. This appeal is, therefore, dismissed as incompetent, with no order as to cost. (MBC) Appeal dismissed

PLJ 1990 Peshawar 52 PLJ 1990 Peshawar 52 [Circuit Bench, Abbottubud] Present: ra/a AHMAD KlIAN, J NAZARUR REHMAN-Petitioner versus NOROZ KHAN—Respondent Civil Revision No. 36 of 1990, dismissed on 5.3.1990 (1) Civil Procedure Code, 1908 (V of 1908)-- —S. 115—Suit for recovery—Decree passed in—Challenge to—Limitation Act does not prescribe any limitation for filing revision petition, yet petition has been filed almost alter a year which rather crossed limits of reasonabilily of time factor that a litigant, as a man of ordinary prudence, can be expected to take for calling a judgment into question-Held: Unless delay is adequately explained, High Court shall be reluctant to exercise its discretionary jurisdiction under Section 115 of CPC in favour of petitioner—Petition dismissed in limine. |P. (ii) Concurrent Findings. —Suit for recovery-Decree passed in-Challcnge to-Neither document which petitioner wanted to refer nor statement of Expert about which he complains that he was not permitted to cross-examine him, are placed on file- Concurrent findings on question of facts are founded on well-reasoned grounds—Held: Impugned judgments and decrees do not suffer from any jurisdictional error and same hardly need any interference in revisional jurisdiction. [P.531A Qazi Muhammad Ilyas, Advocate for Petitioner. Date of hearing: 5.3.1990. order Noroz Khan plaintiff-respondent, herein, instituted a suit against the defendant-petitioner herein, for the recovery of Rs.20,000/- on the ground that the latter received the suit amount in advance in pursuance to an agreement whereby-showing himself as the exclusive owner of land bearing khasra Nos. 1178 and 1179 situated in village Kotli Bala, he sold the rights of cutting the standing trees therefrom against payment of Rs.14/- per C.Ft. 2. The petitioner contested the suit and the pleadings of the parlies gave rise to the following issues:— 1. Whether the plaintiff has got a cause of action?. 2. Whether the plaintiff is estopped to bring the present suit? 3. Whether the defendant entered into an agreement with plaintiff on 9.7.1978?. 4. Whether the Tqrar Nama dated 9.7.19^ has been valklly executed? 5. Whether the plaintiff has paid a sum of Rs. 20000/- to the defendant? 6. Whether the plaintiff is entitled to the decree prayed for?. 7. Relief. After recording such evidence as was produced by the parties in support of their respective pleadings, the learned Civil Judge decreed the suit vide his judgment dated 22.5.1988. 3. The petitioner preferred an appeal before the Addl. District Judge, Mansehra but his efforts in this behalf also proved abortive, inasmuch as the appeal was dismissed vide the judgment of the learned Addl. District Judge dated 28.3.89. Hence this revision petition. 4. I have heard Qazi Mohammad Ilyas Advocate, learned counsel for the petitioner at length and also perused the record placed alongwith the petition. 5. It is contended on behalf of the petitioner that both the learned Courts below erroneously relied on the documents which were not legally proved in that only one marginal witness thereof was examined. He also contended that he was given no opportunity to cross-examine the Hand-writing Expert. He, therefore, submitted that the impugned judgments of the learned lower Courts arc liable to be set aside. 6. I have given my serious consideration to the submissions made by the learned counsel in support of his plea. 7. While going through the petition and the documents annexed therewith, found that neither the one which he wanted to refer for want of proof nor the statement of the Expert which he complains of, having not been permitted to cross-examine him, are placed on the file. Again, having perused the impugned judgments of both the learned lower Courts, I note that their concurrent findings on question of facts are founded on well-reasoned grounds. Nor the impugned judgments and decrees suffer from any jurisdictional error. Accordingly, the same hardly need any interference in the revisional jurisdiction of this Court. 8. Otherwise too, although the Limitation Act of 1908 does not prescribe any period of limitation for. filing the petition of revision, yet this petition has been filed almost a year after the impugned judgment of the learned Addl. District Judge, which rather crossed the limits of reasonability of time factor that a litigant, as a man of ordinary prudence, can be expected to take while calling a judgment into question; and as such cannot be countenanced with impunity and unless the delay is adequately explained, the Court shall be reluctant to exercise its discretionary jurisdiction under section 115 C.P.C. in favour of the petitioner. The instant revision petition appears to be the classic example of such a case. 9. For the foregoing reasons and finding this revision petition devoid of any merits, I hereby dismiss the same in liminc. C.M.No. 38/90 also stands disposed of. (MBC) Petition dismissed.

PLJ 1990 Peshawar 54 PLJ 1990 Peshawar 54 [Circuit Bench, Abbottabad] Present: raza AHMAD KlIAN, J ARSHAD IQBAL, deceased, through his legal representatives—Petitioners versus ABDUL QAYUM KHAN BABAR-Respondent Civil Revision No. 222 of 1984, dismissed on 6.3.1990 Pre-emption -—Pre-emption-Right of-Whether heritable-Question of-Right of pre­ emption runs with land and is not personal initially, it turns to be personal for purposes of its enforceability in a court of law right from time of sale of property till date of decree in favour of pre-emptor-In such a situation, if preemptor dies before obtaining a decree in his favour in trial court, or appellate or revisjonal court, his right of pre-emption shall remain exclusively personal and shall not survive to his heirs—Held: There being no decree in favour of deceased plaintiff-petitioner till revisional stage of litigation during which he died, right of pre-emption stood extinguished with his death, thus his legal heirs are no more left in a position to press revision petition into service-­ Petition dismissed. [Pp. 55£5<>|A.B.C.D£F PLJ 1988 SC 212 rel Kli. Abdur Rashid, Advocate for Petitioners. Mr. Abdullah Jan Mirza, Advocate for Respondent. Date of hearing: 6.3.1990. judgment Abdul Qayum Khan Babar defendant-respondent herein purchased 3 kanals of land bearing Khata No. 347/701, khasra No. 1387/845 situated in village Jhangi, Tchsil and District Abbottabad for a consideration of Rs. 50.000/- vide mutation No. 3387 attested on 13.11.1975. 2. Arshad Iqbal the plaintiff-petitioner herein, in exercise of his right of preemption, instituted a suit on the basis of co-sharcrship in the joint "khata" as also on the basis of contiguity and participation in appendages and immunities. It was also alleged that the sale amount, actually fixed and paid, was hardly Rs. 5000/- but inflated amount of Rs.50,000/- was recorded in the mutation so as to defeat the preemptive right oj the plaintiff. 3. The respondent contested the suit. Finding the parlies at variance on a number of issues arising out of the pleadings of the parties, the learned Civil Judge 1st Class, Abbottabad recorded such evidence as was produced before him in support of their respective pleadings and dismissed the suit vide his judgment dated 28.5.1983. . 4. Aggrieved therefrom an appeal was preferred before the learned Additional District Judge, Abboltabad, who after hearing the parlies, and finding no force in the same, dismissed the appeal vide judgment dated 16.4.1984. 5. In the foregoing circumstances, the revisional jurisdiction of this Court was invoked whereby the judgments of both the learned lower courts were called into question. At the preliminary hearing of this revision petition on 25.1.1986 my brother Inayat Elahi Khan J admitted it vide his note of even dale. 6. During the subsequent proceedings of serving the respondent, it was on 5.3.1989, that the petitioner was reported to have died as is evident from the note of the Additional Registrar dated 5.3.1989 and it was ordered that the notices be issued to his legal representatives as per list attached with the file of lower courts, presumably the one attached with the plaint. 7. After the service of the legal representatives of the petilioncr was finalized, the case was put up for full hearing on 28.2.1990 before my brother Mohammad Bashir Jehangiri J. and the learned counsel for the respondenl Mr. Abdullah Jan Mirza raised an objection to the effect that the right of preemption being un-inheritable, the death of the preemptor would disentitle his legal representatives to continue with the cause and in support thereof he placed reliance on a decision in the case of Azizur Relimaii v. Mohammad Nawaz reported as PLJ 1988 SC 212. The learned counsel for the pctilioner sought lime to make a suitable reply lo the objection thus raised. S. I have heard Kh. Abdur Rashid Advocate learned counsel for the petitioner and Mr. Abdullah Jan Mirza Advocate learned counsel for the respondent at length on the point as to whether the right of preemption is herir table or does it extinguish with the death of the preemptor. 9. It is contended on behalf of the petitioner that since the right of preemption parses with the land, therefore, the person who inherits the land should also he able to exercise that right, meaning thereby that it was a heritable right. He also argued that the custom, as proved, gives the right to preempt as an incident to co-ownership in case the preemptor derived title by inheritance. He, therefore, urged that the survivor of the petitioner, being legal heir of the deceased-preemptor. legitimately enters into the shoes of the precmplor and inherits the right of preemption as well and that the revision petition cannot be held incompetent only for the reason that the preemptor has died. 10. As against this, the learned counsel for ihe respondent vehemently argued that for a successful exercise of right of preemption, it is necessary that the preemptor must show that he had a superior right lo preempl which he had al ihe date of ihe sale and which conlinued to remain superior al all the relevant subsequent limes, namely, al ihe time of the inslilulion as also al ihe lime of grant ol the decree; otherwise his suit must fail. On this analogy, ihe learned counsel for ihe respondenl stressed thai ihe legal heirs of the petitioner, having no such right on the dale of ihe sale of ihe suil land, cannot claim right of preemption under the law nor could they improve their right after ihe sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inherilance could not vest them wilh superior slalus aflcr ihe accrual of cause of action. He, therefore, urged that ihis petition has become infrucluous in view of the fact that with the death of the prccmptor petitioner the right of preemption no more exists against the respondent. 11. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas on the points raised. 12. The proposition which emerges out of the argument and counter­ argument of the learned counsel for the parties appears, to me is that while the right of preemption runs with the land and is not personal initially, it turns to be personal for the purposes of its enforceability io a Court of law, right from the lime of the sale of the property till the date of decree in favour of the preemptor. In other words, the right optomies(?)to be personal to a preemptor untill a decree is passed in his favour and, during this interregnum, this right is neither |transferable nor heritable. In such a situation if the preemplor dies before obtaining a decree in his favour in the trial court or as the case may be, the appellate or revisional court, this right of preemption shall remain exclusively personal and shall not survive to his heirs. But no sooner a decree is passed in favour of the preemptor than the right becomes a proprietary one and capable not only to be transferred but to be inherited as well. 13. Viewed in the perspective of the foregoing discourse, I have no hesitation in holding that the objection raised by the learned counsel for the respondent has a force in it and accordingly prevails. 14. Thus reverting to the factual aspect of the case in hand, undisputcdly there has been no decree passed in favour of the plaintiff-petitioner till the revisional stage of the litigation during which he died leaving no such right (of preemption) as could under the law, be transferred to, or inherited by, his legal representatives. This being so, the right of preemption stood extinguished with the death of Arshad Iqbal, the petitioner herein, and, with this, his legal heirs, though brought on the record after his death, are no more left in a position to press the revision petition into service. 15. For the foregoing reasons, this revision petition, having become jinfrucluous, is, ex-consequcnti, dismissed with no order as to costs. |(MBC) Petition dismissed.

PLJ 1990 Peshawar 56 (DB) PLJ 1990 Peshawar 56 (DB) [Circuit Bench, Abbottubud] Present: ra/a ahmad kuan and AiJDUR reiiman khan, JJ AFZAL SHAH-Appcllant versus LAND ACQUISITION COLLECTOR, ABBOTTABAD and anothcr- Respondents. RFA No. 22 of 1987 (also 10 other appeals) partially accepted on 29.1.1990. Land Acquisition Act, 1894 (I of 1894)-- —Ss. 4 & 23—Land—Acquisition of—Award—Challenge to—Factors for determination of value-Acquired land has been classified as "Maira" in revenue record and there k no satisfactory reliable evidence to dislodge presumption attached to revenue record-However, Reference Judge failed to consider evidence on record to determine potential value of acquired land- Factors for determining compensation as given in Section 23 are not exhaustive and cannot, in all cases, be confined to period of notification under Section 4—Held: Owner will be entitled to demand price of his land with reference to use to which it Can reasonably be put in future-Price enhanced and appeals accepted partially. [Pp. 59&60]A,B&C PLD 1988 SC 32,1985 SCMR 767, PLD 1986 SC 158 and PLD 1970 Quetta 35 rel. Mr. Haider Zaman K)ian, Advocate for Appellant. KJian Imtiaz Muhammad Klian, Advocate for Respondents. Date of hearing: 18.12.1989. judgment Abdur Rehmun Khan, J.—The above detailed appeals filed under section 54 of the Land Acquisition Act. arise from a common judgment of the learned Acquisition Judge, dated 14.4.87, relate to one and the same award and almost present identical points for determination, therefore, these are concluded through this single judgment. 2. By award No.13648-51 drawn on 28.12.83 certain Land including that of the objectors was acquired by the Collector for Mustehkum Cement Company Ltd for procurment of clay. Notification under section 4 of the Land Acquisition Act, was earlier issued on 17.10.81. The price of the land acquired from the owner/objectors was assessed at Rs.4186/60 per kanal in the award by the Collector and the objectors not satisfied with this award approached the Collector under section 18 of the Land Acquisition Act to refer their claim for enhancement of compensation amount. In the Court of the learned Reference Judge, both the Collector as well as Mustehkum Cement Company contested the objection petitions and filed written statements wherein the allegaions made in the objection petitions were refuted. Petitioner appeared as P.W.2 to support his claim as given in the objection petition. Abdur Razaq patwari halqa and Subedar Major Rtd. Mohammad Asghar were examined as P.W.I and P.W.3 respectively to substantiate the view point of the objector as given in the objection petition. The respondents examined R.W.I Muhammad Sadiq patwari Acquisition, in the Office of Acquisition Collector, who brought on record copy of the award as Ex.R.W.1/1 and one year average R.W.1/2 on the basis of which compensation in the award was determined by the collector. R.W.2 Zakaud Din Shah Ishrat Deputy General Manager Administration, Mustehkum Cement Factory appeared for the acquiring body. 3. It is to be noted that an area of 236 kanals 11 marlas in the same vicinity and for the same purpose was also acquired through the award in question from Malik Mohammad Iqbal and Malik Mohammad Ashraf but its price was fixed by of the view that as no evidence was led before the Collector to justify enhanced compensation, therefore, no increase in this amount was legally justified by the collector. It was sumbitted that the land acquired through private negotiation from Malik Brothers cannot be touchstone for determination of the sale price in this case as that land was irrigated through tube well, whereas the one which belonged to the objector was Maira type. It was also pointed out that five years price average Ex.R.W.l/R-2, preceding the date of notification giving Rs.2536/20 price per kanal should have been adopted in this case. The learned counsel criticized the enhanced amount in the award of the Court and justified that determined by the Collector and extensively refrred to various items of evidence to support his view point. 8. We studied the record in the light of the arguments addressed at the bar. 9. The acquied land has been classified as 'Maira' in the revenue record and there is no satisfactory reliable evidence to dislodge the presumption attached to the revenue record, therefore, we agree with the finding of the Acquisition Judge and the Collector regarding the classification of the land and affirm the same. It is, however, noticed that the learned Reference Judge failed to consider the evidence on record relevant to determine the potential value of the acquired land. The factors for determining the compensation as given in section 23 of the Land Acquisition Act are not exhaustive and it cannot in all cases be confined to the period of notification under section 4 but can cover the period in future in appropriate cases when the evidence on record justifies such a course. The owner will be entitled to demand the price of his land with reference to the use to which it can reasonably be put in future. The value is, therefore, to be assessed keeping in view its potentialities future. P.W.I Patwari in his statement stated." Khasra No.160 is at a distance of 160 karams from Farooqia Cement Factory. In the Aks I have shown with green colour, canal which comes from Khanpur Dam. In the site plan part (II) a Pakka Kathi coming out from the canal, passing from khasra No.64865 has been shown by me. This kathi comes to khasra No.164 and onwards from that khasra number there is a katcha kathi upon khasra No.158". The objector himself while giving the location of his land deposed." My land which has been acquired is Maira type of land as the canal of Khanpur Dam has been extended to this area and, moreover,-this land is situated near village Abadi and it is situated within industrial area. There are serveral factories like Mustehkum Cement Factory, AH Asbestos, Hazara Woollen Mills, Kawa-Saki and Flour Mills." P.W.3 described it, "This land is Nehri type of land, as canal from Khanpur has been extended to this area" and again said, "this land is surrounded on one side by Mustehkum Cement Factory, on the other side is village Abadi of Nazar Abad, Railway Station, Road and Bus Stop are quite near to the land under reference". The area in which this land is situated has come under industrial area as serveral industries have been installed there. R.W.2 in his statement stated, "I have seen the land being acquired for the said purpose in this objection and the other connected pertaining to this land. At the time of acquisition the land was agricultural land" and again said, "There is a canal of Khanpur Dam which passess from the area of village Shadi as well as from near the area under acquisition. In the area of village Shadi there is Hazara Woollen Mill which has been installed for the last 5/6 years" and again said, "Jadoon Flour Mill has also been installed near Farooqia Cement Factory at a distance of 1/2 miles. Similarly, Dalda, Tyre and Rubber manfacturing factory had been installed at a distance of 1/2 mile from our factory. It is correct that the station constructed near Cement factory is used for general public travelling by train" and again, "The water canal was constructed about two and a half years ago and came into operation since about 2 years". The learned Reference Judge has also admitted, "No doubt, the land in dispute is in the neighbourhood of respondent No.2 which is a huge industrial concern but as it was not acquired as a building site for an industry but was acquired for procuring clay which is an important ingredient in the manufacture of cement, therefore, it could not be classified as industrial/commercial site". It is manifest from the evidence on record that the land in question had sufficient capabilities and chances in future either to become agricultural through Khanpur canal or could be used for construction of shops/houses etc in view of its proximity with Mustekhum Cement Factory and other nearby commercial units. The potential value of the land should have been kept in view by the Reference Judge while assessing the price. Moreover, the interaval of more than 2 years that elapsed in between the notification under section 4 and the award cannot be over-looked on account of sharp rise in the prices of the land and excessive depreciation of the value of the currency. It is laid down in P.L.D. 1988 S.C. 32, "It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the time of issuance of the notification under section 4 of the Land Acquisition Act or, any period prior to it, but can also relate to the period in furure (i.e. to period after the issuance of notification under section 4 of the Act)". In 1985 S.C.M.R. page 767 it has been observed, "Ss, 4 & 18 Compensation-Working out-Notification of acquisition issued in 1978-Award made some two years later when there was no upward trend in prices of Land Average market value of sales of land in village during relevant period being Rs.23,000 per kanal-Value of land for purposes of payment of compensation was ordered to be enhanced to Rs.25,000 per kanal instead of Rs.20,000 per kanal in circumstances—Compensation". 10. In the present cases we have got satisfactory evidence in shape of Ex.P.W 1/3 which gives one year average value from 20.5.82 to 19.5.83 of similar kind of land as the one acquired from the objectors. According to this average the price per kanal comes to Rs.6482/40 although this relates to a period a bit later to the notification under section 4 but earlier than the preparation of the award, therefore, in the light of the dictum laid down in 1985 S.C.M.R. 767, (ii) P.L.D. 1988 S.C. 32, (iii) P.L.D. 1986 S.C. 158 and (iv) P.L.D. 1970 Quetta 35, there appears no hurdle in adopting it as basis for the determination of compensation in these appeals. The objection of the learned counsel for the respondent regarding the bar of section 25 (2) is misplaced as there is no evidence of any notice having been served on the objectors in term of section 9 of the Act. 11. Consequently the apppeals filed by the objectors appellants are partially allowed to the extent that the price per kanal is enhanced to Rs.6482/40 per kanal and the judgment and decree of Acquisition Judge in these appeals are accordingly modified to this limit. These appellants will also be entitled to 15% compulsory acquisition charges apart from a simple interest at the rate of 6% per annum on the excess amount from date of possession till its payment. The appeals of the Collector automatically fail and are dismissed. In view of the peculiar circumstances and partial success, parties will bear their own costs. (MBC) Appeals partially accepted

PLJ 1990 Peshawar 61 PLJ 1990 Peshawar 61 (DB) [Dera Ismail Khan Bench] Present: muhammad ishaq khan and muhammad basiiir kiian jehangiri, JJ GHULAM SHABIR and another-Petitioners versus ADDITIONAL COMMISSIONER, D.I.KHAN and 3 others-Respondents Writ Petition No. 10 of 1987, accepted on 5.5.1990 Canal and Drainage Act, 1873 (VIII of 1873)-- —-S. 23(3) read with Constitution of Pakistan, 1973, Art. 199-Disputed watercourse-Transfer of-Whether respondents Nos. 2 and 3 went outside jurisdiction conferred on them-Question of~Under Section 23(3)(0) of Act, if Divisional Canal Officer considers that intended transfer of disputed watercourse is necessary for "better management of irrigation," he shall call upon applicant to make such deposit as he considers necessary to defray cost-­ Factor of being a big landlord in land covered by watercourse, or mere apprehension of sale of lands by petitioners, do not come within purview of "better management"--Held: Respondents Nos. 2 and 3 have gone outside jurisdiction conferred on them in that they have been swayed by extraneous consideration-Petition accepted. [Pp. 64&65JA&B PLJ 1981 SC 660, PLJ 1987 Lahore 61 and PLJ 1974 SC 60 rcf. S. Zafar Abbas Zaidi, Advocate for Petitioners. Sardar Allah Nawaz KJian, Advocate for Respondents 2 & 3. Mr. 'Dost Muhammad Khan and Malik Muhammad Bashir, Advocates for Respondent No. 4. Date of hearing: 5.5.1990. judgment M.B.K. Jehangiri, J.--Doctor Fatehullah Khan, respondent No.4 herein, made an application on 15.8.1985 u/s 23 of the Canal and Drainage Act, 1873 (ACT No.VIII of 1873) (hereinafter called as the Act) to a Divisional Canal Officer for transferring an existing watercourse No.6720/R, Nawab Minor, situated in village Ruk Kuhna from its present owners, namely, Ghulam Shabir and Bashir Hussain, petitioners herein, to himself. On receipt of this application, the Divisional Canal Officer served a notice on 21.1.1985 of the application through publication and also endorsed a copy thereof to the Collector of Dera Ismail Khan District. By another notice dated 16.2.1985, Ghulam Shabbir, petitioner No.l herein, was also served with a notice to show cause as to why the disputed watercourse should not be transferred from him to respondent No.4. The statements of respondent No.4 and those of the petitioners were recorded by the Divisional Canal Officer on 19.1.1985. Simultaneously he recommended to the Collector for initiating proceedings forthwith under section 25 of the Act to place respondent No.4 in occupation of the watercourse in dispute. The Respondent No.2, vide his order dated 7.3.1985, issued a notification for acquisition of one kanal and 9 marlas of land covered by the disputed watercourse. The petitioners raised objections to the Collector by a petition dated 18.2.1985, but the objections, it appears, were apparently over-ruled and the application of respondent No.4 for transferring outlet No.6720/R in village Ruk Kohna was granted by the order dated 28.3.1985 of respondent No.2. The validity of the two orders dated 7.3.1985 and 28.3.1985 passed by the Collector, D.I.Khan (respondent No.2) granting the application for transferring the disputed watercourse to respondent No.4 and acquisition of the land therefor have been called in question through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 2. The orders aforesaid impugned in this writ petition have been assailed on the following grounds:- (/) That the procedure adopted in acquiring the petitioners' land under the purported exercise of authority within the contemplation of Sections 23 and 24 of the Act culminating in the final orders of respondent No.2 dated 7.3.1985 and 28.3.1985 being malafide and arbitrary are without lawful authority; (/'/) that respondent No.4, had no locus standi to prefer any application under Section 23 of the Act, in that the transfer of an existing watercourse from the petitioners to respondent No.4 could only be made in the interest of irrigation, or to be more precise, for what has been laid tkwJti in Section 23 as "better management of irrigation from such a wateredurse", whereas the consideration that weighed with the respondents No.2 and 3 for passing the impugned orders was quite different which was not recognized by law; that under Section 23 of the Act, it is only the Superintending Canal Officer who can confirm or modify the decision in the matter taken by the Divisional Canal Officer for the transfer of existing watercourse in the interest of justice and, therefore, the final order passed by respondent No.2 purporting to transfer the disputed watercourse to respondent No.4 was without any lawful authority and of no legal effect and; (/v) that the learned Additional Commissioner (respondent No.l) had erred in -not entertaining and adjudicating upon the petitioners appeal on merits, because he being the next authority after the Collector was competent to entertain and adjudicate upon it. 3. In the commenls submitted by respondents 1,2 and 3, respondent No.l has stuck to his stand that there was no provision of appeal against the order, under Section 23 of the Act and, therefore, the appeal had been rightly dismissed. Respondent No.2 on his part maintained that the objections raised by the petitioners were duly heard by him and the decision rendered thereon was perfectly in accord with the provisions of the Act and the rules framed thereunder. Respondent No.3 denied in his comments that Section 23 ibid vested any authority in the Superintending Canal Officer and, therefore, the procedure adopted by respondent No.3 was perfectly in accord with Section 23 of the Act. It was also averred in the comments of respondent No,3 that on the request of respondent No.4, outlet No.6720/R, Nawab Minor was transferred for the better management of the watercourse. The impugned order was also defended on the ground that respondent No.4 being the talc irrigalor of the said outlet has a right to maintain the watercourse from head to tail and, therefore, he had a lot of interest in its maintenance which is contrary to other irrigators including the petitioners being the head-reach irrigators. 4. S.Zafar Abbas Zaidi, the learned counsel for the petitioners, did not press his objection that the Superintending Canal Officer could only confirm or modify the decision taken by the Divisional Canal Officer for the transfer of the existing watercourse, because the amendment in Section 23 of the Act which he relied upon in support of his contention was not applicable to N.W.F.P. In N.W.F.P., the only authority to whom the application for transferring an existing water-course from its present owners to the applicant has to be made is the Divisional Canal Officer. The learned counsel also conceded to this roposition of law and withdrew his petition accordingly. The learned counsel then reiterated his contention, which he had already taken up in the grounds of his petition, that there is not an iota of evidence on the file to show that the impugned order of transferring the existing watercourse from the petitioners to respondent No.4 had been passed for the better management of irrigation which was a sino qua non for such a transfer. In this context, he invited our attention to the statement of respondent No.4 recorded by respondent No.3, photo-copy Anncxure 'E'. 5. As against this, Mr. Allah Nawaz Khan Sadozai, Advocate, appearing on behalf of respondents 2 and 3 and Mr. Dost Mohammad Khan assisted by Malik Muhammad Bashir, counsel for respondent No.4 urged that the two grounds which found favour with respondents 2 and 3 for passing the impugned order: firstly, that the petitioners intended to dispose of their land covered by the impugned watercourse and, secondly, that claim of respondent No.4 being a big landlord, do fall within the purview of the better management of the irrigation form the watercourse in dispute. On legal plane, the learned counsel for the answering respondents cited Muhammad Sharif V. Miihammd Afzal Sohail (P L J 1981 Supreme Court 660) and Abditr Razzaq V. Saleem Hidayat (P L J 1987 Lahore 61) for the proposition that a Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that any other conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction. 6. The case of Abdur Razzaq, cited at the bar, was not, however, of writ jurisdiction. It was held in F.A.O. No.10 of 1985 by Gul Zareen Kiyani J. r of Lahore High Court, that 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. This case, we are afraid, is not on the point agitated before us. In so far as the case of Muhammad Sharif, cited at the bar, is concerned, the rule laid down in the case of Muhammad Hussain Mimcer v. Sikandcr (P L J 1974 Supreme Court 60) was followed. The following observations in Muhammad Hussain Munee/'s were held to lay down the proposition agitated by the learned counsel for the respondent in the case of Mohammad Slia/if:- "It is wholy wrong to consider that the above constitutional petition was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly in not the intention of the Constitution-makers." The dictum of the Supreme Court came up for consideration before their Lordships of the Supreme Court in Utility Stores-Corporation of Pakistan Limited V. Punjab Labour Appellate Tribunal and others, wherein his Lordship, Dr. Nasim Hasan Shah J., agreeing with his Lordship Muhammad Halecm, C.J., as his Lordship then was, and elaborating the rule laid down in the case of Muhammad Hussain Munir V. Sikandar (P L D 1974 S C 139) and Zulfiqar KJian Awan V. Secretary, Industries etc. (1974 S C M R 530), observed as undcr:- "that the judgments have not been read in their proper context. It is right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it rightly or wrongly", because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide it rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction." 7. We have perused the statement of respondent No.4 wherein he has sought the transfer of the watercourse to himself not for the better management of the irrigation, but was interested in its transfer because he was apprehending the sale of their lands by the petitioners to some unknown person which would hinder the maintenance of the watercourse and affect adversely the better management. Respondent No.3 has also recommended the transfer of the disputed watercourse to respondent No.4 on the ground of the said apprehension and further that respondent No.4, being a big owner of the Chak being irrigated by RD-6720/R, Nawab Minor, would be in a position to manage it in a better way. 8. A bare reading of clause (a) of sub-section 3 of Section 23 ibid would confirm that if the Divisional Canal Officer considers that the intended transfer of the disputed watercourse is necessary for the "better management of irrigation" (underlining is ours), he shall call upon the applicant to make such deposit as the Divisional Canal Officer considers necessary to defray the cost ......... Obviously, the factors of being a big owner in the land covered by a watercourse, or a mere apprehension of sale of the lands by the petitioners, do not come within the purview of "better management". The answering respondents No. 2 and 3 have, therefore, gone outside the jurisdiction conferred on them, in that they have not passed the impugned orders for the better management of the irrigation, but have been swayed by extraneous considerations, namely, respondent No.4 being a big landlord and the supposed apprehension of sale of the lands by the petitioners of the land covered by the disputed watercourse. This act of the answering respondents 2 and 3 thus goes outside the jurisdiction conferred on them, because they had the jurisdiction to transfer the disputed watercourse to respondent No. 4 for better management and not otherwise. We subscribe to the view of the learned counsel for the respondents that this Court, under its constitutional jurisdiction, would not review the findings of fact properly reached. It is, however, now well-settled that cases of errors of law, jurisdiction, decisions given in breach of rule of natural justice, as also cases of findings based on no evidence arc some of the instances where interference could legitimately be made. Besides, the cases of mis-reading/non-reading of evidence, failure to notice an act in accordance with the binding precedents of the Superior Courts and mis-application of statutory law arc also the instances where interference in constitutional jurisdiction can be made. In the instant case, therefore, the impugned orders dated 7.3.1985 and 2S.3.19S5, passed by respondent No.2, are based on no evidence. The consideration that merely because respondent No. 4 is a big landlord would be enough for depriving the petitioners of the management of the watercourse, is a daring example of breach of rule of natural justice. We are, therefore, of the considered view that the impugned orders have not only been passed on no evidence, but also offend the principles of natural justice. Respondents 2 and 3 have gone outside the jurisdiction vested in them and are shown to be erroneous on the point of law. 9. In the result, the impugned orders passed by respondent No. 2 on 7.3.1985 and 23.3.1985 arc declared to have been passed without lawful authority and are, therefore, of no legal effect. Consequently, this writ petition is allowed with no orders as to costs. (MBC) Petition accepted.

PLJ 1990 Peshawar 6& PLJ 1990 Peshawar 6& Present: WALI MUI1AMMAD KlIAN, J ARBAB JEHANG1R KHAN and 11 others-Petitioners versus ABDUR RAUF KHAN and anolher-Respondenls Civil Revision No. 504 of 1989, accepted on 14.4.1990 (i) Civil Procedure Code, 1908 (V of 1908)-- —S. US-Revision petition-Delay in filing of-Whether condonablc-Queslion of-Plainlil'fs/petitioners genuinely presumed that judgments of Supreme Court in Ahmad's case and others were final and in that belief, rightly did not consider it worthwhile and advisable to challenge impugned judgments before superior courls-In view of review of earlier judgments by Supreme Court, pctilioncrs had no other remedy open to them bul lo invoke rcvisional jurisdiction of High Court-Held: Petitioners had sufficient cause for not preferring this revision petition within period of 90 days and arc cnlillcd to extension of period under Section 5 of Limitation Act—Petition accepted and case remanded. , . [Pp.71 &72JQD&E PLD 1989 SC 771 = PLJ 1989 SC 574 rcf. PLD 1990 Lahore . 201 and- PLD 1990 Peshawar 21 rcl. (ii) Civil Procedure Code, 1908 (V of 1908)-- ——S. 115—Revision petition—Filing of—Whether any limitation is prescribed for and whether present revision is lime-barred—Question of—There is no statutory provision providing limitation for filing an application under Section 115 of C.P.C.—Held: There is no legal impediment in exercise of rcvisional powers by High Court under Section 115 to go into legality or otherwise of judgments and decrees of lower forums in view of changed circumstances and legal position. . |Pp.70&71|A&B PLD1975SC678/-C-/, Mr^4bdul Mahbood Klian KJwttak, Advocate for Petitioners. Haji Z. Mahfooz Khan, Advocate for Respondents. Dale of hearing: 14.4.1990. judgment Arhab Musafir Khan, plaintiff/prcdccessor-in-interest of Arbab Jehangir Khan and others, petitioners herein, filed suit for possession through preemption of land measuring 49 kanals 1 marla out of several khasra numbers mentioned in the heading of the plaint, situated in village Garhi Shcr Dad, Tehsil and District Peshawar, au-iinst Abdur Rauf Khan and Samar (nil Khan, defendants/respondents herein on the grounds of co-sharership, participator in immunities and appendages such as right of way and right to discharge water and ownership in the contiguous property. The same was contested by the defendants/respondents and they, in their written statement, controverted all the allegations of the plaintiffs/petitioners. Necessary issues in the case were framed and alter recording the statement of the Palwari Halqa as P.W.I the case lingered on for one reason or the other when the judgments of the Supreme Court reported as (PLD 1988 Supreme Court: 287) etc were pronounced. Consequently the learned trial Judge framed the following legal issue in the case on 6.3.1989:- "Whclhcr under the prevalent Islamic Law of Preemption and in the light of latest Authorities of the Supreme Court this suit is liable to dismissal?" After hearing the arguments of the learned counsel for the parties, the learned trial Judge, vide his judgment and decree dated 1.4.1989,. dismissed the suit of the plaintiffs/petitioners on account of the non-observance of the provisions of TALAB' as ordained in the Islamic Law of Preemption, in the light of the dictum of the August Supreme Court in cases reported as PLD 1988 Supreme Court: 287, PLD 1988 Supreme Court: 355, PLD 1988 Supreme Court: 730 etc. Dissatisfied with the same, the plaintiffs/petitioners preferred appeal before the learned District Judge, Peshawar who too had no option but to dismiss the appeal in view of the clear direction of the Supreme Court in the aforementioned judgments, as per his judgment and decree dated 1.6.1989. Hence the instant revision petition. 2. I have heard Mr. Abdul Mahbood Khan Khatlak Advocate learned counsel for the plaintiffs/petitioners, Haji Z. Mafooz Khan Advocate learned counsel for the defendants/respondents and have perused the record of the case with their assistance. , 3. The learned counsel for the defendants/respondents raised a preliminary objection that the revision petition, having been filed beyond 90 days, was hopelessly barred by time and that the application filed by the plaintiffs/petitioners lor the condonation of delay under Section 5 of the Limitation Act is legally not entcrtainable. In reply to the same the learned counsel for the plaintiffs/petitioners strenuously argued that there is no statutory provision cither in the Limitation Act or in the High Court Rules and Orders providing lime for filing of revision petition under Section 115 of the Civil Procedure Code. He also submitted that even if the limitation prescribed for filing appeal is considered to be period for filing revision petition as well, even then the plaintiffs/petitioners had sufficient cause in not invoking the rcvisional jurisdiction of this Court within the said period. Both the learned counsel cited authorities in support of their respective arguments. 4. Admittedly the impugned judgments were pronounced after the judgment of the Appellate Shariat Bench of the Supreme Court in case 'Government of N.W.F.P. through Secretary, Law Department.... Vs .... Malik Said Kamal Shah 'reported as (PLD 1986 Supreme Court: 360 = PLJ 1986 SC 576) and the subsequent judgments of the August Supreme Court relied upon by the lower two forums and if the August Supreme Court had not reviewed the view expressed in these judgments, the impugned judgments were perfectly legal and unassailable and if the Revision Petition had been filed in time and had come up for consideration before this Court, it too would have been dismissed. To the good luck of the precmplors the matter was reconsidered by the Supreme Court in case, " Ahmad vs .................................................................. Abdul Aziz (PLD 1989 SC 77l = PL! 1989 SC 574) through the.exercise of their review powers and it was observed that the Appellate Shariat Bench in Malik Said Kamal Shah's case had only declared certain provisions of .the preemption law as repugnant to the injunctions of Quran and Sunnali and never intended to engraft or import anything else into it which were neither in issue before them nor adjudicated upon, with the result that the requirement of 'TALAB' could not be deemed to have been engrafted in the text of the Preemption Laws prelcvant prior to the pronouncement of the said judgmcnt.i Since the Provincial legislature of N.W.F.P. had passed a new law of Preemption known as N.W.F.P. Preemption Act, 1987 which repealed the previous law of Preemption (N.W.F.P. Preemption Act, 1950) and Section 13 of the new Act had specifically provided that the right of preemption of a prccmplor shall be extinguished if the demands of preemption, according to Islamic Law of Preemption, were not made. Its effect on the pending cases required consideration for which a Division Bench of this Court was constituted which gave its decision in a case 'Kundal Khan.. vs..Agha Jan' reported as (PLD 1990 Peshawar 21) whereby neither the new Preemption Act nor Section 13 thereof was held to be retrospective in nature. The conjoint reading of the Judgment of the August Supreme Court as well as of this Court referred to above make it clear that all the pending preemption cases, instituted prior to 2S/4/1987, the date of enforcement of the new Act, could not be hit by the non-observance of the provision of 'TALAB' and in consequence the impugned judgments and decrees arc liable to be annulled. 5. There is no statutory provision providing limitation for filing an application under Section 115 of the Civil Procedure Code by the aggrieved person nor there is any Rule or Order to this effect under the High Court Rules and Orders. In this respect the dictum of the Supreme Court in case," Manager, Jammu & Kashmir, Stale Properly in Pakistan ...V. ..Khuda Yar and another" reported as (PLD 1975 Supreme Court 078) is illuminating, the relevant paragraph ol which is being reproduced for ready reference as follows"- "S. 115-Limitation—No limitation prescribed by Limitation Act, 1908 nor by any rule in High Court Rules and Orders (Lahore) for filing'petition under S. 115—High Court could entertain petition even beyond normal unprescribed period of 90 days if satisfied as regards delay in filing petition. Under Section 115 C.P.C. the principle laid down in the various authorities is that revision petition filed beyond- the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay. It may also be relevantly mentioned in this context that no rule has been framed by any High Court under its rule-making powers prescribing limitation lor revision." Consequently there is no legal impediment in the exercise of revisional powers by this Court under Section 115 C.P.C. .to go into the legality or otherwise of the judgments and decrees of the lower two forums in view of the changed circumstances and legal position. 6. Nevertheless, assuming without conceding that the revision petition has not been instituted within 90 days according to the practice in vogue since time immemorial even then there is substantial cause for the condonation of delay inasmuch as the plaintiffs/petitioners genuinely presumed that the judgment of the Supreme Court in Ahmad's case (PLJ 1989 SC 574) and others were final and in that belief rightly did not consider it worthwhile and advisable to challenge the impugned judgments before the superior Courts as it would have amounted to much ado about nothing. However, in view of the review of (he earlier judgments by the Supreme Court and the pronouncement of the judgment of this Court in 'Kundal Khan..Vs...Agha Jan' the plaintiffs/petitioners had no other remedy open to them but to invoke the revisional jurisdiction of this Court through the instant petition. After the pronouncement of the said judgments there is no abnormal delay in filing of the instant petition after allowing allowance for obtaining certified copies of the necessary documents. Exactly a similar point came up for consideration before the Lahore High Court in case, "Fazal Muhammad alias Fu7la...Vs...Ghu!am AH and 2 others", reported as (PLD 1990 Lahore 201) wherein HLs Lordship N'fuhammad llyas, J. made the following obscrvalions:- 'S. 21-Limitation Act (IX of 1908), S. 5-CiyiI Procedure Code (V of 1908), S. 110—Preemption suit-Making of Talabs-Necessity--Second appeal filed beyond limitation—Condonation of delay—Justification— Plaintiffs suit for preemption was dismissed for the reason that necessary Talabs had not been made by him before filing the suit-Plaintiffs first appeal having been dismissed, he filed second appeal beyond the prescribed period-Plaintiffs application for condonation of delay stated therein that after dismissal of his first appeal his counsel advised him not to go in for second appeal in view of the law then holding the field-Held, Law of Preemption remained in fluctuating state till the pronouncement of Supreme Court in Ahmad...V...Abdul Aziz reported as PLD 1989 SC 771 = PLJ 1989 SC 574, which enabled a co-sharer to claim right of preemption without making Talabs—Plaintiff thus could not be blamed for not coining to High Court in second appeal, immediately after dismissal of his first appeal—Plaintiff was not wrong in adopting the policy of "wait -"T4>see"—After coming to know of the latest verdict of Supreme Court rcg..; Jing "Talabs" plaintiff did not delay the matter unnecessarily and came to High Court as people normally do-Delay in filing Second Appeal was thus condoned". 7. In this view of the matter I am of the considered opinion that the plaintiffs/petitioners had sufficient cause for not preferrii^ the instant revision petition within the aforesaid period and are entitled to extension of period under Section 5 of the Limitation Act which is hereby allowed. As regards the merits of the case, it has already been discussed above that the judgments relied upon by the lower two forums have already been reviewed by the very Court \hich passed them and, therefore, the judgments of the subordinate Courts based-lhercon have to be reconsidered in the exercise of fche revisional powers of this Court. Since the lower forums have not given their decision on the issues framed in the case, therefore, the matter has to be sent back to the trial Court for decision on all the issues according to law. 8. Resullanily 1 accept this revision petition, set aside the impugned judgments and decrees of the lower two forums and remand the case back to the trial Court (Civil Judge 1st Class, Peshawar) lor proceeding with the same Irom the stage at which it was at the time of its impugned judgment. There is no order as to costs. C.M.No.711/89 is accordingly accepted. (MBC) Petition accepted.

PLJ 1990 Peshawar 72 PLJ 1990 Peshawar 72 Present: WAL1 MUHAMMAD kuan, J SHER ALI--Appellant '" versus Mst. HASHMAT AZIZ--Respondent F.A.O. No. 37 of 1989, dismissed on 16.5.1990 Cantonment Rent Restriction Act, 1963 (XI ol 1963)-- —-S. 17(9)"Tenant~Ejectment of-Appcal against-Whether defence of tenant was rightly struck off-Question of-Reasoning that appellant (tenant) could tender rent for May, 1989 within 60 days upto 31st July, 1989, is not available to him as his defence was struck off due to non-compliance of order of Rent Controller for deposit of tentative rent-Provisions of Section 17( 1 )) are man­ datory in nature and Rent Controller was bound to give effect to same unless tenant could satisfy him that default was not wilful but was due to circumstances beyond his control-Held: Appellant failed to submit any application to Rent Controller showing substantial cause for non-deposit of arrears of rent with result that Rent Controller had to strike off his defence- Appeal dismissed. [Pp.73&74]A Mr. Dost Muhammad KJian Durrani, Advocate for Appellant. Mr. Muhammad Taimoor KJian, Advocate for Respondent. Date of hearing: 16.5.1990. judgment Mst. Hashmat Aziz, landlady/respondent herein (hereinafter to be called as the landlady) submitted application u/s 17 of the Cantonment Rent Restriction Act, 1963 against Sher Ali, tenant/appellant herein (hereinafter to be called as the tenant) for his eviction from the suit house No.1325/3, situated in Aziz Building Tipu Sultan Road, Peshawar Cantt: on the grounds of default in the payment of rent for the month of May, 1989 and bonafide personal need. The tenant contested the application and denied the allegations of the landlady in toto. The learned Additional Rent Controller, Peshawar Cantt: vide his order dated 7.9.1989, in compliance to the provisions of Section 17 sub-section (8) of the Act ibid, directed the tenant to deposit Rs.2000/-, the outstanding amount of rent at the rate of Rs.400/- per month for the months of May, 1989 to September, 1989 before 5th of October, 1989 and also to deposit future rent at the same rate before the 5th of each succeeding month. On 7.10.1989, the date fixed for further proceedings in the case, it came to light that the tenant had failed to comply with the aforesaid order and when the Rent Controller asked him about the reason for the non-compliance with the orders, the tenant replied that he had no funds. Consequently the learned Rent Controller struck off the defence of the tenant under sub-section (9) of Section 17 of the Cantonment Rent Restriction Act, 1963 and directed him to hand over vacant possession of the property in dispute to the landlady forthwith. Hence the instant appeal against the said order by the tenant Sher Ah. 2. I have heard learned counsel for the parties and have perused the record of the case with their assistance. 3. The learned counsel for the tenant argued with vehemence that the tenant could pay or tender the rent for the month within sixty days of the month for which the rent was due and, therefore, he had still time to pay the rent for the month of May, 1989 upto 31st of July, 1989 and that in this view of the matter he was not a defaulter of rent. I am afraid this reasoning is not available to the tenant in the instant appeal which is directed against the order for non-compliance of the order of the learned Rent Controller requiring the tenant to deposit the tentative rent due from him for the months May, 1989 to September, 1989. The provisions of sub-section (9) of section 17 of the Act ibid are mandatory in nature and the learned Rent Controller was bound to give effect to it. unless the tenant could satisfy him that the default was not wilful but was due to causes beyond his control or un-avoidable circumstances. There was no dispute between the parties regarding the rate of rent. The tenant, no doubt, had alleged tender of rent for the month of May, 1989 but it was never asserted by him that the landlady had in fact received the same. Apparently the amount of rent amounting to Rs.2000/- for the months of May, 1989 to September, 1989 was outstanding against the tenant and there could be no legal justification for the tenant not to deposit the same under the order of the court before the stipulated time. Additionally he failed to submit any application to the Rent Controller showing substantial cause for the nondeposit of the arrears of rent referred to above, with the result that the learned Rent Controller had to strike of the defence of the tenant and passed the impugned order. 4. Resultantly there is no merit in the instant appeal, the same is hereby dismissed. (MBC) Appeal dismissed.

PLJ 1990 Peshawar 74 PLJ 1990 Peshawar 74 (DB) [Dera Ismail Khan Bench] Present: muhammad ISHAQ khan and m.b.k.jehangiri, JJ KHALILUR REHMAN-Petitioner Versus GOVERNMENT OF PAKISTAN, THROUGH SECRETARY, CENTRAL BOARD OF REVENUE efc-Respondents Writ Petition No. 7 of 1988, dismissed on 13.5.1990 (i) Customs Act, 1969 (IV of 1969)-- —-Ss. 156(1)(8) & (89) and 171-Foreign cloth-Recovery of-Confiscation of~ Challenge to-Whether notice under Section 171 was not given-Question of- It is a common ground between parties that a notice was served on petitioner although section cited therein was 168 instead of 171--Ground that no notice under Section 171 was given, was never agitated before forums below and has been pressed into service for first time (in High Court) which could not be of any legal consequence-In memorandum of appeal before C.B.R., petitioner had admitted that "in show cause notice", appellant was called upon to show cause as to why penal action should not be taken under clause 8 or 89 of Section 156(1) of Act and seized articles be not confiscated—Held: This was sufficient compliance of Section 171 of Act. [P.76]A (ii) Customs Act, 1969 (IV of 1969)-- —-Ss. 156(1) (8) & (89) & 169-Foreign cloth-Recovery of-Confiscation of- Challenge to—Whether there was no material before respondents to hold offending cloth to be of foreign origin—Question of—In impugned order of respondent No.3, it has been specifically observed that petitioner has not been able to produce evidence that cloth was country made-Manager C.S.D. had accepted cloth to be of foreign origin and disposed it of-Held: Contention urged on behalf of petitioner is not tenable-Held further: Under Section 169(4) of Act, when anything liable to be confiscated is,seized, it can be sold in accordance with Section 201 of Act-Petition dismissed. [Pp.76&77]B,C&D Mi'. Kliawaja Nawaz KJian, Advocate for Petitioner. Mr. Muhammad Saleem Klian Gandapur, Advocate for Respondents 1&4. Haji Saadullah KJian, Advocate for Respondent No. 3. Date of hearing: 13.5.1990. judgment M.B.KJehangiri 'J.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the orders dated 7.10.1985, 18.1.1986 and 19.5.1987 passed by Superintendent, Customs Prevention, Bannu; Collector Central Excise and Land Customs (Appeals), Lahore, and; Central Board of Revenue in Federal Government, respondents 3,2 and 1 respectively. 2. The brief facts leading to the filing of the above petition are that on 28.4.1985 at 0930 hours, Nazir Shah, the then A.S.H.O.City Police Station, Bannu, while on patrol duty alongwith the police party, intercepted at Chowk Tehsil Bazar Bannu, a Tonga on suspicion and search thereof led to the recovery of cloth of foreign origin measuring 1232 yards duly packed in gunny bags. Khalil-ul- Rehman, petitioner herein, who occupied the seat in Tonga claimed it to be his cloth, on demand failed to produce any documents in support of legal possession or import of the offending cloth. The cloth alongwith its Tonga and mare were accordingly seized under clause (8) and (89) of Section 156(1) of the Customs Act, 1969 (IV of 1969) (hereinafter called as the Act). The seized cloth was deposited in the Customs State Ware House, Bannu. A notice purporting to be in pursuance of section 168 of the Act was served upon the petitioner to show cause within ten days as to why penal action under clause 8(89) of Section 156(1) of the Act should not be taken against him. The defence of the petitioner before respondent No.2 was that the cloth seized was country made, as such no provision of the Act or Rules framed thereunder had been violated and, therefore, it was not liable to confiscation. The examination report of a Deputy Superintendent Land Customs revealed that the seized cloth had already been issued to C.S.D. Canteen, Bannu, therefore, the question of examination/verification did not arise. Conversely it was the case of the respondents that the petitioner could not produce any documentary evidence in support of his claim that the seized cloth was country made. In consequence, respondent No.3, by his impugned judgment dated 5.10.1985, ordered outright confiscation of the cloth in favour of the State under clause (8)and (89) of Section 156(1) of the Act and further imposed a fine of Rs.100/- in lieu of the confiscation of Tonga and the mare. Aggrieved by the order of respondent No.3, the petitioner preferred an appeal which was also dismissed by the impugned order of respondent No.2 dated 18.1.1986. Feeling still dis-satisfied, the petitioner filed a revision petition to respondent No.l which too was dismissed on 9.5.1987 by the Member (Judicial) Central Board of Revenue in the Federal Government. Hence this constitutional petition. 3. In support of this petition, Mr. Khawaja Nawaz Khan, the learned counsel for the petitioner, has urged as follows:- (/) That notice under Section 171 of the Act having not been served upon the petitioner, the impugned order of out right confiscation of the goods and the subsequent orders being in breach of the mandatory provisions of Section 171 were, void ah initio. (ii) that the confiscation order of the cloth passed by respondent No.3 was illegal, in that the cloth was disposed of prior to the issuance of the show cause notice and; (Hi) that the seized cloth was of country made and that the illegal seizure of the cloth thereof by respondent No.4 and subsequent outright confiscation by respondent No.3 and its disposal to C.S.D. Canteen on the charge of its being of foreign origin was void and of no legal authority. 4. On the other hand, Mr. Mohammad Salim Khan Gandapur, learned counsel for the respondents, has contended as follows:- (i) That the seizure of the cloth was quite legal, in that it was not found by the Seizing Officer but also by the C.S.D. Manager, Bannu to be of foreign origin; (if) that under sub-section (4) read with sub-section (5) of Section 169 of the Act, the respondents were entitled to dispose of the offending cloth through the C.S.D. and; (Hi) that a notice was admittedly issued to the petitioner which was sufficient compliance of the mandatory provisions of Section 171 of the Act. 5. It is a common ground between the parties that a notice was served upon the petitioner although the section cited therein was 168 rather than 171 of the Act. We have given our anxious consideration to the respective stands taken up by the learned counsel for the parties and are of the view that this ground was never agitated before the forums below and had been pressed into service for the first time which could not be of any legal consequence. Obviously, the petitioner cannot be allowed to convass a plea in the writ jurisdiction which he had not pleaded before the authorities concerned. The presumption would be that had the requisite notice not been served upon the petitioner, he would have taken up this plea and the authorities concerned would have considered and disposed it of. Nonetheless, in para-2 of his memorandum of appeal before the Member (Judicial) Central Board of Revenue, the petitioner had admitted in terms un­ equivocal that in "show cause notice" dated 26.5.1985, the appellant was called upon to show cause as to why penal action should not be taken under clause 8 or 89 of Section 156(1) of the Act and the seized articles be confiscated". This, to our mind, was sufficient compliance of Section 171 of the Act. Nonetheless, the petitioner having not urged this ground before the respondents, the objection as to the violation of requirements of Section 171 ibid, in the circumstances, is without substance. 6. The principal attack to the impugned orders was that there was no material before the respondents to hold the offending cloth to be of foreign origin. This plea was consistently raised before the respondents and was not found to carry weight. In the impugned order dated 5.11.1985, passed by respondent No.3, it has been specifically observed that the petitioner has not been also to produce evidence that the cloth was country made. The cloth was held to be (of) foreign origin, not only on the ground that no documentary evidence was produced, but also that the Manager C.S.D. had accepted the cloth to be of foreign origin and then disposed it of. Now this requirement could be called to be insufficient or defective but we could not be convinced that it was without jurisdiction or that it was in violation of any law or rule for the time being in force. This contention urged on behalf of the petitioner is, also not tenable. 7. As regards the second contention convassed at the bar on behalf of the petitioner, suffice it to say that under sub-section (4) of Section 169 of the Act when anything liable to confiscation is seized under Section 168 of the Act, the Collector of Customs or any other Officer (in the instant case respondent No.3) may. notwithstanding the fact that adjudication of the case under Section 179 or an appeal under Section 193 or revision under Section 196, cause the thing to be sold in accordance with Section 201. of the Act ibid and have the proceeds kept in deposit pending adjudication of the case. It would thus be seen that such a hasty disposal of the seized goods may look to be quite unjustified and strange, still it does prima facie, fall within the purview of sub-section (4) of Section 169 of the Act. 8. For the aforesaid reasons, we find no substance in this petition which is dismissed accordingly. The parties are. however, left to bear their own costs. (MBC) Petition dismissed.

PLJ 1990 Peshawar 77 (DB) PLJ 1990 Peshawar 77 (DB) Present: muhammad IsiiAQ khan and qazi muhammad jamil, JJ KHAWAJA (INTERNATIONAL) INDUSTRIES (PVT.) LTD-Pelitioner versus ASSISTANT COLLECTOR, CENTRAL EXCISE & SALES T.AX DIVISION, MARDAN and 2 others—Respondents Writ Petition No. 46 of 1990, accepted on 11.6.1990 Custom Duty-- —-Custom Duty and Sales Tax-Exemption from-Claim of-Whether raw material imported by petitioner is exempt from Custom Duty and Sales Tax under Notification No. SRO 517(l)/89 dated 3.6.1989-Question of-A poppy producing area namely Gadoon Amazai was declared as Industrial Estate and material and components imported for manufacture of goods by recognized Industrial Units were exempted from whole of customs duty and sales tax leviable thereon—Petitioner established an industrial unit in said Industrial Estate for purpose of manufacture of "Synthetic Tops" for which it required import of raw material known as Acrylic Tow-It is admitted by Deputy Attorney General that goods to be produced by petitioner are Acrylic Tops which are commercially known as such—Held: By aforesaid notification, that raw material shall be exempted from customs duty and sales tax which is exclusively used for manufacture of goods in Industrial Estate of Gadoon Amazai-Petition accepted. [Pp.77,78,80&81]A,B&C Mr. Zahccr Ahmad KJian, Advocate for Petitioner. Mr. Saifur Rchman Kiyani, Deputy Attorney General for Respondents. Dale of hearing: 11.6.1990. judgment Qazi Mohammad Jamil, J.—Gadoon Amazai is an area^jn District Swabi where poppy growing was the cash crop for the local cultivators. With the spread of deadly menace of heroin not only the standing crops were destroyed but the inhabitants were persuaded to give up the future cultivation on the undertaking that the area shall be developed to provide livelihood to them. One of such measures to develop the area was the establishment of an Industrial Estate there. The Federal Government extended helping hand by issuing a Notification No.SRO. 517(l)/89 dated 3.6.89, subject matter of this petition, whereby raw material and components "as are imported for the exclusive manufacture of goods by recognised industrial units located in the approved Industrial Estate of Gadoon Amazai in the Province of N.W.F.P. shall be exempted from whole of the customs duties and sales tax leviable thereon" subject to certain conditions given therein. Thousands of Industrialists from all over the Country applied for a space in the afore-said Industrial Estate. The petitioner was one of them. After having been allotted a plot in the said Estate for the purpose of manufacture of 'Synthetic Tops' he established an Industrial Unit with the capacity of producing the said Tops at about 1200 Tons. According to the petitioner he spent a huge sum of money on the afore-said Establishment. The petitioner was also granted Central Excise License by respondent No.l. The production of the said synthetic tops requiicd the import of raw material known as Acrylic Tow. He, therefore, imported on the basis of three License Certificates a certain quantity of the said material. When the first consignment of the afore-said material arrived at Karachi in November. 1989, the petitioner requested respondent No.2, the Chief Survey and Rebate. Central Board of Revenue, Islamabad , to issue him the requisite certificate to enable him to avail the benefit of afore-said Notification. Finding no response, he approached the higher authorities for the release of the said material without any success. According to the petitioner he was under strain and heavy losses both on account of demurrage and other charges and also fear of the damage of second consignment at Peshawar Dry Port. Apart from making an application he made a personal call on respondent No.2 requesting him to allow the petitioner to release the consignment already in store at Bonded Warehouse, Karachi and shift it to the factory premises at Gadoon Amazai against Bank Guarantee and similarly allow him to release the consignment from Peshawar Dry Port. The said respondent made no response. The petitioner, therefore, has approached this Court for an appropriate direction under Article 199 of the Constitution. 2. The respondents in their written statement have given reasons for not allowing exemption to the petitioner under the afore-said Notification. In para 4 of their written comments they claim, "the goods stated to be produced in the instant case are Acrylic Tops from the Acrylic Tow which by no means can be termed as an exclusive manufacturing process". To-day, the learned Deputy Attorney General has also produced before us a telex from a Second Secretary of Federal Government to the Collector Customs and Central Excise, Peshawar wherein he requested the latter to bring to the notice of the Deputy Attorney (jeneral that the "conversion of Acrylic Tow into Acrylic Tops is not an exclusive manufacture". No direct reply has yet been received by the petitioner. 3. The learned counsel for the petitioner has demonstrated before this court the raw material known as Acrylic Tow which is then processed into Acrylic Tops. The Acrylic Top is admittedly a marketable product. It is also admitted that the raw material undergoes change through skilled labour and machinery and transformed into a different shape. Mr.Saif-ur-Rehman Kiyani, the learned Deputy Attorney General, appearing for the the respondents relied on the interpretation of the term manufaclure of goods used in the afore-said Notification by the respondents. He argued that the exemption from customs duties and sale tax is to be granted only to that raw material which is used for the exclusive manufacture of goods. Mr. Saif-ur-Rehman Kiyani, however, has not controverted that the raw material is known as Acrylic Tow and it is transformed into what is called Acrylic Tops which is marketed as a product under that name. He has also not questioned that the said product goes through a mechanical process by skilled and unskilled labour. He, however, laid great stress on the import of the phrase used in the Notification, exclusive manufacture of goods. His view is that the definition of manufacture cannot be borrowed from other Statutes and judicial precedents as is done by learned counsel for the petitioner but it has to be seen in the context of the Notification itself. The Notification has used the word exclusive with the manufacture of goods. According to the learned Deputy Attorney General exclusive means the ultimate manufactured goods and not any intermediary product. 4. The entire controversy revolves around the question whether the raw material imported by the petitioner shall be used exclusively for the manufacturing process or manufacturing goods in order to be exempted from the customs duties and sale tax under the afore-said Notification. The word manufacture is neither defined in the Customs Act nor in the Sale Tax Act, 1951, under which the afore-said Notification of exemption was issued. However, sub- Section (11) of the Section 2 of the Sale Tax Act gives the meaning of 'manufacturer' or producer as "a person who engages, whether exclusively or not, in the production or manufacture of goods, and includes a printer, publisher, lithographer or engraver, or a person engaged in the ginning of cotton, and also any person (not being an employee) who manufactures goods, whether or not the materials of which the goods are manufactured are owned by him; provided that where one person, other than a person engaged in the ginning of cotton, manufactures goods for another, wholly or in part out of materials supplied by that other, and the goods are not for the use of, but are for sale by, that other, the person supplying the materials shall be deemed to be the manufacturer, and the person who so manufactures the goods shall be deemed not to be the manufacturer' (the under-lining is ours). The above definition of manufacturer shall be useful atleast for the purpose of determining what is meant by exclusive as used in the Notification. The learned counsel for the petitioner also referred to Section 2(f) of the Central Excise and Salt Act, 1944, which defines the word 'manufacture' as follows;" manufacture includes any process incidental or ancillary to the completion of a manufactured product and any process of re-manufacture, remaking, reconditioning or repair and the process of packing or repacking such produce". In Superintendent of Central Excise, Lyallpur Vs. Ch: Faqir Mohammad (P.L.D. 1959 S.C. 103), the Supreme Court of Pakistan interpreted the word manufacturing while dealing with a case under the afore-said Central Excise and Salt Act. Relying on Encyclopaedia Britannica (1953 Edition, Vol.5, page 846), the Supreme Court held that calendering of cloth is a process ancillary to the completion of the manufacturing product which is the calendered cloth. Again in Here in italics. Messers Noorani Cotton Corporation's case (P.L.D. 1965 S.C. 161), the Supreme Court found that the cotton seed manufactured by the asscssec and kept for manufacturing of cotton seed oil were exempt from sale lax as a final product i.e. the cotton seed oil itself was taxable. The Lahore High Court in a case reported as Malak Shams Din and others Vs. Income Tax and Sale Tax Officer (P.L.D. 1959 Lahore 955) held that cutting of forest trees into pieces of timber for sale was a process of manufacture. This Court in an un-reported Tax Reference No.6 of 1986 (Commissioner of Income Tax;, Peshawar . Vs. M/S Saif Nadeem Kawasaki Motors Ltd) decided on 26.5.90 agreed with the Income Tax Appellate Tribunal Peshawar Bench, Peshawar that the production of Motor-cycle from the knocked down parts of the same was a manufacturing process. Different cases from Indian jurisdiction were cited before us in this respect by the learned counsel for the petitioner reported in 1967 Sale Tax Cases 430, (oil seed and oil cake were held to be two different articles), 1975 Sales Tax Cases 493, (mixing and blending of coffee with chicon was found to be manufacturing process) and 1976 Sales Tax Cases 319 (the transformation of steel into steel rod considered as manufacturing process). 5. The sum total of opinions expressed in the judgments quoted before us as well as the definition given in the Dictionary and Encyclopaedia, leads us to the following conclusions with regard to the word 'manufacture' in the context of the present case. The word manufacture would imply that the labour, both skilled and un-skilled, is used through machinery for making of a product commercially known as such, distinct in character than the one which has been used in its transformation and capable of being sold as such product. The definition of the word given in the Central Excise and Salt Act, 1944 as interpretted in different judgments of the Supreme Court of Pakistan is exhaustive and includes varied remifications of the process of manufacturing, but it also indicates the afore-said conclusion drawn by us. In the case in hand, as admitted by the learned Deputy Attorney General, the goods to be produced by the petitioner are Acrylic Tops which are commercially known as such. The material which is used in the production of the said Tops is called Acrylic Tow. This artificial material like the natural fabric material, silk, wool and cotton can be thus manufactured into definite shapes. The fact that the Tops can be used for the production of different goods shall not take it out of the manufacturing process which it has itself undergone. The learned Deputy Attorney General's meaning of the word 'exclusive' cannot be accepted as 'conclusive'. The word exclusive does not mean some ultimate goods which can be made out of another product. Apart from the fact that no substance has its ultimate shape, the word exclusive is used in the afore-said Notification in its ordinary meaning as well as in the context of its application in the Sales Tax Act itself. The manufacturer as defined in the afore­ said Act and as re-produced above, could be exclusive manufacturer or otherwise. There is another kind of relationship mentioned therein between the person who simply sells the raw material but is not concerned with the manufacture of the product made from it. Hence by the afore-said. Notification that raw material shall be exempted from the customs duties and sale tax which is exclusively used for the manufacture of goods in the Industrial Estate of Gadoon Amazai. Such raw material if sold otherwise than for being used in the Industrial Unit shall not be so exempted. There can be no other meaning of the word exclusive and we cannot accept the interpretation placed on it by the learned Deputy Attorney General. Such an interpretation may also lead to arbitrary selection of products to he exempted from customs duties and sale tax. It is for the Federal Government to lay down further guide-lines with clear definition of the words used therein for the afore-said purpose, if so advised. But the Notification already issued, as it stands to-day, has a clear meaning and connotation of the phrase 'exclusive manufacture of goods' as stated by us above. 6. In the light of the above discussion, this petition is accepted, the respondents are directed to act in accordance with the Notification dated 3.6.89 issued by the Federal Government by granting exemption as provided therein to the petitioner in the matter of Acrylic Tow imported by the petitioner for the purpose of manufacturing of Acrylic Tops in Gadoon Ama/ai Industrial Estate. There shall be no order as to costs. (MBC) Petition accepted.

PLJ 1990 Peshawar 81 PLJ 1990 Peshawar 81 [Dera Ismail Khun Bench] Present: wai.i MUIIAMMAD KllA.X, J IMAM BAKHSH and others-Petitioners versus Mst. AMIRAN-Respondenl Review Petition No. 128 of 1987 in Civil Revision No. 49-D of 1981, accepted on 2(> A1990. (i) Limitation-- —-Review petition-Delay in filing of-Condonation of delay-Prayer for- Reuew petitioners filed petition for leave to appeal in Supreme Court (which was withdrawn with permission to file review petition)—Held: After excluding period spent in prosecuting petition in Supreme Court, petition for review is within statutory period of limitation prescribed under law—Delay condoned. [P.84JA <iii Review-- —High Court—Judgment of—Review of—Prayer for—Main ground on which review of impugned judgment is sought, is order of Collector, Consolidation whereby order of Revenue Officer on Mutation No. 210 was reviewed and attestation of mutation in favour of predeccssor-in-interest of petitioners was ordered—All courts including High Court, have not taken into consideration this material aspect of case—After review of Mutation No. 210, facts in issue had undergone ;i material change—Held: Even if it is held that Mutation No. 210 embodied an independent transaction, review petitioners would be deemed to be co-sharers in suit land on date of sale on basis of acquisition of alleged rights of Ghulam Hussain and Khadim Hussain and they having equal riizht of pre-emption, Mst. Amiran's pre-emption suit was liable to dismissal- Review petition accepted. [Pp.84,85&86]B,C&D Haji Saadullah Klian Miankhel, Advocate, assisted by Mr. Mazhar Alam Klian, Advocate for Petitioners. Mr. Muhammad Ayaz Khan Qasuria, Advocate for Respondent. Date of hearing: 23.6.1990. judgment Through the instant review petition, Imam Bakhsh and others, seek review of the judgment and decree dated 27.10.1984, passed by my learned brother Mr. Abdul Karim Khan Kundi, J, in Civil Revision No.49-D of 1981, whereby he accepted the revision petition filed by Mst. Amiran, respondent herein, set aside the judgment and decree of the Appellate Court dated 15.7.1981 and restored that of the trial Court dated 28.11.1979. Alongwith the review petition, an application bearing C.M.No.145/87 for condonation of delay in filing the review petition, has also been filed. This judgment will dispose of both the petitions. 2. The chequered history of the case culminating in the judgment and decree under review is that Qadir Bakhsh and Murad were owners of the disputed property measuring 13 kanals.12 majlas comprising in khasra No.211 situate in mouza Ara, Tehsil and District, D.I.Khan. They entered into an oral transaction of sale of the suit land in favour of Abdul Haleem for a sum of Rs.5500/- and delivered possession to him on the spot. A receipt dated 12.3.1973 regarding the payment of sale consideration was also executed. Abdul Haleem filed a suit for declaration of title in respect of the suit land which was registered as suit No.433/1. Qadir Bakhsh and Murad, defendants in the said suit, filed written statement wherein they admitted the sale of the suit land by them to Abdul Haleem and also acknowledged the receipt of sale consideration of Rs.5500/- as well as the execution of the receipt dated 12.3.1973 and delivery of possession under the sale to Abdul Haleem. Their statement was also recorded by the Court on the order sheet dated 9.6.1973 wherein they admitted the contents of the written statement and expressed their willingness to the passing of the decree prayed for in favour of Abdul Haleem against them. Their thumb impressions and signatures were obtained by the Court on their statements, on the basis whereof the learned Judge, who was seized for the case, vide his judgment dated 9.6.1973 passed the decree as prayed for. Ghulam Hussain, predecessor-in-interest of Imam Bakhsh and others, review petitioners, filed suit No.336/1 of 1974 for possession through pre-emption of the suit land against Abdul Haleem who had been adjudged as owner on the basis of the consent decree passed in suit No.443/1 on 9.6.1973. Abdul Haleem, in his written statement filed on 2.7.1974, admitted the sale transaction in his favour, but denied the superior right of pre­ emption of Ghulam Hussain, prc-emptor, and also raised the plea of limitation, besides raising other technical objections. However, ultimately, the suit was decreed in favour of Ghulam Hussain on the basis of compromise in lieu of Rs.4408/- vide judgment and decree dated 6.1.1975 of the learned trial Judge. Out of the sale consideration, Rs.1850/- were already in deposit and. the balance of Rs.2558/- were paid to Abdul Haleem in Court. 3. It appears that on the basis of the original decree in suit No.433/1, mutation No.140 (Ex.P.W.2/1) was entered but the same was rejected, presumeably because it was in violation of Martial Law Regulation No.115. The original owners, namely, Qadir Bakhsh and Murad, continued to be recorded as owners in the revenue record and on the strength of these entries, a fresh mutation of sale, bearing No.210, copy Ex.P.W 2/2, was entered on behalf of Ghulam Sadiq, Sadiq Hussain, sons and Mst. Amiran, daughter of Qadir Bakhsh, half share and Murad half share in favour of Ghulam Hussain purporting to be a sale in respect of the suit land for sale consideration of Rs.1,000/-. The same was, however, attested to the" extent of only half share on behalf of Murad in favour of Ghulam Hussain, vide order of the Revenue Officer dated 20.8.1975. Nevertheless, the said order is silent about the other half. Mst. Aroiran, daughter of Qadir Bakhsh, alone filed a suit for possession through pre-emption against Ghulam Hussain (since dead and represented by the review petitioners) in respect of half of the suit land mutated in name of Ghulam Hussain, vide mutation No.210, referred to above, on the ground that she was a co-sharer in the suit land, participator in the amenities and appendages and ownership of contiguous property. 4. Ghulam Hussain. predecessor-in-interest of the review petitioners, contested the suit and in his written statement specifically alleged that he had become full-fledged owner of the suit property through decree in suit No.336/1 decided on 6.1.1975 for a sum of Rs.4408/- and that no fresh sale transaction was finalized through mutation No.210 to give rise to the present pre-emption suit. The alleged right of pre-emption of Mst. Amiran was also denied. Necessary issues, keeping in view the pleadings of the parties, were framed and after recording evidence pro and contra, the learned trial Judge, vide his judgment and decree dated 28.11.1979, decreed the suit to the extent of half of die suit,khasra number in the sum of Rs.500/-. Not Contented with the same, Imam Bakhsh and others, heirs of Ghulam Hussain. preferred an appeal before the learned District Judge, who vide his judgment and decree dated 15.7.1981 accepted he same and while setting aside the judgment and decree of the trial Court, dismissed the suit ofMsl. Amiran. Dissatisfied with the same, Mst. Amiran approached this Court in revision which was accepted as discussed in the earlier part of this judgment. 5. Under the rules and orders of this Court, review is normally fixed and disposed of by the same Judge against whose order review is being sought. But when the same learned Judge is not available for more then six months for some reasons, there is no embargo on any Judge of the same Court to decide the review petition. Similar is the situation in the case in hand, as my learned brother, Abdul Karim Khan Kundi J, has since been posted as a Judge of the Federal Shariat Court for two years and, as such, the present review petition is being disposed of by me. 6. Arguments of the learned counsel for the parties have been heard and record of the case thoroughly scrutinized. 7. It is worthwhile to mention here that the review-petitioners had gone to the august Supreme Court against the impugned judgment under review, but on coming to know that the order of the Revenue Officer on mutation No.210 had specifically been reviewed by the Collector, vide his order dated 17.5.1978, they sought the permission of the august Supreme Court for withdrawal of C.P.No.16- P of 1985 in order to file the instant review petition. Consequently, their request was allowed and their Lordships of the august Supreme Court were pleased to pass the following order States that on discovery of new facts, the petitioners would file a review. The may be allowed to withdraw with permission to file again if their review fails. Request is fair and, therefore, allowed. Disposed of accordingly". Sd/- Muhammad Af/al Zullah, J. Sd.- Saad Saood Jan, J. Peshawar , Sd /- 17th November, 1987, Mian Burhanuddin Khan J. 7. The instant review petition was submitted soon thereafter and the same was placed before my learned brother Abdul Karim Khan Kundi, .1, in motion, who, vide his order dated 28-1-1989, while admitting the review petition to full hearing and issuing notice to the respondents in C.M.No.145 of 1987 seeking condonation of delay in filing the review pctition,ordered maintenance of status quo. 8. Dealing with the application for condonation of delay,the review petitioners, at the very out-sel,filed C.P.No.l6-P of 1985, seeking leave to appeal and after excluding the period spent in prosecuting the same, the petition for review is held to be within the statutory period of limitation prescribed therefore under the law. 1, therefore, allow C.M.No. 145 of 1985 and condone the delay occasioned in filing the review petition in hand. 9. The main ground.on which the review of the impugned judgment is soughtis the order of the Collector,Consolidation dated 31-3-1978. whereby the order ol the Revenue Officer dated 1-8-1975 on mutation .No.2H), referred to above, was reviewed and attestation of mutation in the name of Ghulam Hussain, on behalf of Ghulam Sadiq, Khadim Hussain and Mst.- Amiran(heirs of Qadir Bakhsh deceased, hall share) was ordered, in compliance of which the Assistant- Consolidation officer exercising the powers of Revenue Officer, attested the said mutation on 17-5-1978 in favour of Ghulam Hussain, predecessor-in-interest of the review-petitioners. The scaning of the original file shows that no reference whatsoever, of the review proceedings or the orders of the Collector Consolidation and the Assistant Consolidation Officer was made, either by the Palwari Halqa or any other person.All the courts, including this court, has (?)not taken into consideration this material aspect of the case while delivering their judgments in the present case.The plea of the petitioners that they had no knowledge of the review proceedings by the Consolidation Staff or reversal of the original order dated 1-8-1975 on mutation No.210 and its attestation, by the Assistant Consolidation Officer, -vide his order dated 17-5-1978, on the strength of the order of review passed by the Consolidation Officer, appears to be plausible and stands to reasons. The august Supreme Court loo having been influenced by the aforementioned circumstance, permitted the petitioners for filing the instant review petition and allowed them a right to file fresh civil petition if their prayer for review is declined. As such, I deem it just and proper to reconsider the main Civil Revision No. 49-D of 1981.. 10. As fully explained in the earlier part of this judgment, Oadir Bakhsh and Murad had already alienated the suit land measuring 133 Kanals and 12 marlas in favour of Abdul Haleem, which ultimately came in the ownership of Ghulam Hussain, the review petitioner, on the basis of consent decree. It is not understandable as to why Ghulam Hussain who had already acquired indefeasible title in the suit land through a decree of the court agreed to purchase the suit land from the heirs of Qadir Bakash and Murad who were left with no interest in the suit land. Considering mutation No. 140 which was rejected on account of M.L.R.No.115 and mutation No. 210, conjointly one is apt to conclude that mutation No. 210 was a device to correct the revenue record according to the decrees of the Court and not an independent sale transaction in favour of Ghulam Hussain on behalf of Ghulam Sadiq and others named above. Ghulam Hussain, deceased in his written statement denied the existence of any fresh transaction of sale and it was, therefore, the responsibility of the plaintiff, Mst, Amiran, to have led independent evidence to establish that the earlier decrees passed in the suit land had been set aside or abandoned and that Ghulam Hussain had entered into a fresh agreement of sale for a paltry sum of Rs.1000/- inspite of the fact that the earlier decrees had been passed in lieu of much-more consideration. The learned Appellate Court, taking these important factors into consideration, arrived at the conclusion that through the suit mutation No.210, that no fresh transaction of sale had been finalized and, in consequence, by setting aside the decree of the trial Court dismissed the suit of Mst. Amiran, plaintiff. 11. After the review of mutation No.210, the facts in issue had undergone a material change. On review of the original order passed on mutation No.210 and its attestation in favour of Ghulam Hassain on behalf of Ghulam Sadiq and, others including Mst. Amiran, she too is left with no tittle in the suit land and, as such, the basis, on which she claimed her superior right of pre-emtion, had vanished prior to the passing of the decree by the trial Court on 28-11-1979. Additionally, the share of her brothers and co-heirs namely, Ghulam Sadiq and Khadim Hussain in the suit land allegedly inherited by them from Qadir Bakhsh(though in fact he had no heritable right at the time of his death) also stood transferred in the name of Ghulam Hussain on the review of mutation by the Collector Consolidation. They have not challenged the correctness of the order of Collector Consolidation so far with the result that the same had attained finality. The present suit was filed only with regard to half share of Murad incorrectly mentioned in his name (in) the revenue record. Even if it is held that mutation No 210 embodied an independent transaction even then the review petitioner would be deemed to be co-sharer in the suit land on the date of sale on the basis of acquisition of alleged rights of Ghulam Hussain and Khadim Hussain and they having equal right of pre-emption, the pre-emption suit filed by Mst. Amiran was liable to dismissal on this score too. 12. Nevertheless, learned counsel for the plaintiff respondent herein stressed that the original transaction in favour of Abdul Haleem, being in violation of M.L.R.No.115 was void ab initio and the pre-emption decree passed in favour of Ghulam Hussain against the void transaction did not confer any right upon the petitioners and that Myf.Amiran being the daughter of Qadir Bakhsh, had a preferential right of pre-emption against the fresh transaction of sale vide mutation No. 210. I am afraid, this submission of the learned counsel has no substance. There is nothing on the record to show that the original transaction offended against the provisions of M.L.R.No.115. The mere fact that the Revenue officer has refused to attest the said mutation on the basis of the Court decree would not, per se, nullify the decree of the competent Court of Law. The only forum, which have the power to declare certain transaction in violation of M.L.R.No.115 is the Land commission, or. the Officer exercising powers under the Regulation itself. It is neither alleged nor proved that any such effort was made by the original vendors, Qadir Buksh and Murad. Even if it is presumed that Abdul Haleem was not an owner in the village and could not acquire,property, still when he was substituted by Ghulam Hussain through a legal exercise of right of pre-emption, an owner in the village, hindrence in the incorporation of the consent decrees in the revenue record no longer remained. This objection of the learned counsel for the petitioners, being without any meritable consideration, is, therefore, over-ruled. 13. The upshot of the above discussion is that I accept the instant review petition and by receiving (?) the impugned judgment dismiss the civil revision with the result that the suit of Mst. Amiran, respondent herein, stands dismissed witfc-no order as to costs. (MBC) Review Petition accepted.

PLJ 1990 Peshawar 86 PLJ 1990 Peshawar 86 [Dera Ismail Khan Bench] Present: MUHAMMAD BASHIR KHAN JEHANGIRI J SUBEDAR MAJOR SOHBAT KHAN-Petitioner versus GULAB (DECEASED) THROUGH HIS LEGAL REPRESENTATIVES AND OTHERS-Respondents. Civil Revision No.126 of 1987, dismissed on 23.5.1990. (i) Findings of fact- ~Pre-emption-Suit for-Finding of fact-Whether interference is called for-- Question of~There are findings of fact that actual and physical possession over suit land had been transferred prior to attestation of mutation-Held: These findings of fact based on correct appreciation of evidence, call for no interference in exercise of revisional powers-Revision dismissed. [P.90JC (ii) Pre-emption- --Pre-emption-Suit for~Transfer of possession prior to mutation—Contention that entries in Khassa Girdawari show only two of respondents to be hi possession of some Khasra numbers-Documents relied upon by respondents undisputedly prove delivery of possession of suit land to respondents much prior to attestation of mutation-Held: Physical ossession of any part of suit land by any one or more of vendees prior to attestation of mutation under pre emption would be enough to non-suit pre-emptor. [P.89]A PLD 1961 (WP) BJ.l and PLD 1974 Pesh. 51 rel. (Hi) Pre-cmpfion-- ~Pre-emptioii--Suit for--Whether pre-emptor was co-sharer--Question of- Contention of respondents that specific Kliasra numbers were sold and therefore, pre-emptor does not become co-sharer in kliata-Held: Contention has every force in that admitted position is that petitioner has not been able to prove on record that land in dispute formed part of one KIiata-Held further: Claim of contiguity and participation in amenities and appendages is also not proved. [Pp.89&90]B PLJ 1987 Lahore 381 and 1987 SCMR 207 rel. S. Bashir Hussain Shah Zaidi, Advocate assisted by KJiawaja Nawaz KJwn, Advocate for Petitioner. Mr. Saadullah Khan Miankhel, Advocate for Respondents. Date of hearing: 20.2.1990. judgment A suit for possession by pre-emption was brought by Subedar Major, (Retired), Sohbat Khan, plaintiff-petitioner herein, against Gulab etc, defendantsrespondents herein. The suit was decreed by a judgment dated 12.11.1986 of Sahibzada Khurshid Ahmad, Civil Judge 1st Class, Tank, Camp D.I.Khan. The appeal filed by the vendees was accepted by Mr. Salim Khan Miankhel, District Judge, D.I.Khan, by his judgment and decree dated 29.9.1987. 2. The plaintiff-petitioner has come up in revision to this Court. 3. The brief facts giving rise to this petition in revision are that Square No.N/3 was originally the property of the Government of N.W.F.P. Out of it, 100 kanals representing half of the Square was transferred to the petitioner on the basis of Mutation No.267 attested on 13.2.1980. The remaining half of the Square, bearing specified Khasra Nos., was transferred, by mutation No.271 attested on 1.3.1980, to Mst. Daryai Khanum, widow of (Late) Amir Afzal Khan, Sitara-e- Basalat, a retired Non-Commissioned Officer. On the 7th of March, 1980, Mst. Dayai Khanum, by an agreement, agreed to sell the land aforesaid in favour of the vendees-respondents. The parties to the transaction fixed Rs.1,30,000/- as sale consideration. The respondents paid Rs.90,000/- as earnest money. The balance of sale consideration viz: Rs.40,000/- was to be paid at the time of attestation of mutation. It was further recited in the agreement to sell that the vendor had put the respondents into physical possession of the land on 7.3.1980. Haji Ahmad Nawaz, one of the vendees-respondents, went to Patwari and reported the sale of the disputed land on the basis of agreement to sell dated 7.3.1980 and asserted that they have been put in physical possession, thereof. On 30.4.1980, the respondents instituted suit No. 175/1 against the vendor through her general attorney Mohammad Ayub for declaration of their title to and confirmation of their possession over the land in dispute on the strength of the agreement to sell. On 22.6.1980, the learned Senior Civil Judge, D.I.Khan, who was seized of the case, passed "a consent decree for specific performance of the agreement to sell of the land as claimed in the plaint". 3. In pursuance of this decree, mutation No.295 was entered and attested on 13.8.1981. Meanwhile, Gulab, one of the vendees-respondents, through mutation No.336 attested on 24.1.1982, sold 9 kanals and 5 marlas of land to Haq Nawaz, Mohammad Salim, Mohammad Jan and Shah Jehan, respondents. 4. The sale aforesaid was sought to be pre-empted by the petitioner by means of this suit for Rs.5,000/- on the plea that he was co-sharer in the Khata, Khewat, Square and Khasra Nos. of which the land formed a part; he owned land lying contiguous to that in dispute and that he was participator in appendages and amenities of the land sold. The petitioner also attacked the sale of 9 kanals and 5 marlas of land by Gulab to Haq Nawaz, Mohammad Salim, Mohammad Jan and Shah Jehan as void and ineffective qua his pre-emptive rights. 5. The respondents in their written statement while denying the superiority of pre-emptive rights of the petitioner, contested the suit, inter alia, on the plea that the suit was barred by limitation. 6. In this petition, the findings of the learned Appellate Court on the point of limitation and the claim of superiority of pre-emptive rights by the petitioner have been challenged. 7. The impugned Mutation No.295 was attested on 13.8.1980. The respondents have claimed that they have been put into physical possession of the suit land since the execution of agreement to sell, Ex.D.W.1/1 dated 7.3.1980 which fact got further affirmance in the Daily Diary, Ex.P.W.l/D.l of Patwari dated 21.3.1980, the statement of the attorney of vendor, copy of the consent decree etc; Ex.D.W.2/32 and entries of Khasra Girdawri, Ex.P.W.1/3. It has, therefore, been vehemently argued by the learned counsel for the petitioner that the cause of action had accrued to the petitioner from 13.8.1980 when Mutation No.295 was attested. It was additionally argued that in any case the presumption of truth to all these documents is not attached, particularly to the entires in the Khasra Girdawari. In support of this last contention, the case of Faklinmissa v. Mohammadullah KJian (P L D 1984 Peshawar 94) was cited at the bar. It was further urged that only two of the respondents have been-recorded only in few Khasra Nos. in dispute which would not be of any avail to them. 8. On the other hand, learned counsel for the respondents strenuously argued that although Mutation No.295 was attested on 13.8.1980, but the respondents were actually in physical possession of the suit land since 7.3.1980 when the agreement to sell was executed between the vendor and the respondents which fact stands affirmed in the extract, Ex.P.W.1/1 of the Daily Diary dated 21.3.1980 and the statement of the General Attorney of the vendor-respondent in the consent decree Ex.D.W.2/3. Reference was also made to the entries in Khasra Girdawari Ex.P.W.1/3. 9. In case of sale of agricultural land or village immovable property, the cause of action to pre-empt it arises within a year from the date of attestation of mutation or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date is earlier. The crucial question is whether the respondents have been able to prove their actual possession of the suit land prior to 13.8.1980 when the mutation No.295 was attested in their favour. The old view, that transfer of physical possession of the land being pre-empted must be under the sale would only be hit by the bar of limitation and that possession under an agreement to sell would not bar this right, has not been approved by the august Supreme Court in Barkhwdar VsMitliammad Razzaq (P L D 1989 S C 749), wherein the following observations are note worthy:- "It is no doubt true that an agreement to sell simpliciter is not a sale for purposes of pre-emption, but when that very agreement to sell is followed by delivery of physical possession of the land sold, it cannot, by any stretch of imagination, be said that the delivery of prossession was not under the sale." 10. The finding of the learned District Judge on this point is that the recital in the agreement to sell, photo copy Ex.D.W:l/l and the receipt, Ex.P.W.1/2, towards the delivery of actual and physical possession to the respondents, the statement of General Attorney, namely, Muhammad Ayub, photo copy Ex.D.W. 2/3 in suit No. 175/1 between the respondents and the vendor, and the report Roinamcha. Ex.D.W. 1/D.l, would prove that the vendees-respondents have been put in actual possession of the land in the month of March, 1980 and the suit brought on 1.9.1982 was barred by limitation. 11. The documents relied upon by the learned counsel for the respondents when taken together undisputably prove the delivery of possession of the suit land to the respondents much prior to the attestation of mutation on 13.8.1980. The contention that ihc entries in the Khasra Girdavvri showing only two of the aJii'Ajrinsi respondents to be in possession of some of the khasra numbers in dispute i> ot no help to them. The physical possession of any part of the suit land tn an\ one or more of the vendees prior to the attestation of mutation under pre­ emption would be enoimh to non-suit the pre-emptor. Reliance, in this context, can be placed on:-(l) NUiz Ahmad Vs. Abdur Rchman (P L D 1961 (W.P) B.J.I) jad. '' 21 Muhammad Akbar Vs. Allah Ditto (P L D 1974 Peshawar 51). 12. It was also argued on behalf of the respondents that the dictum laid down in the case of Mst. Fakhnmissa, referred to by the learned counsel for the petitioner qua the presumption of correctness to the Khasra Girdawari, has not be-en approved by the Supreme Court in Muhammad Aslam Vs. KJruda Dad (PLJ i'^2 n C 452). Reference was particularly made to the following paragraph in the report:- "As regards the presumption of correctness attaching to the entries of the Khasra Girdawari no doubt it is not of the same degree and statutory force as exists for the entries of annual revenue record under Section 44 of i he Punjab Land Revenue Act or under Section 52 of the West Pakistan Land Revenue Act. The fact, however, remains that if the entries of the Khasra Girdawari are shown to have been made by the officials charged with a duly in the matter, in the ordinary course of their business, a presumption of their correctness and regularity will arise under Section 114 of the Evidence Act. It was such a presumption which was recognised in Ghulam Hassan and others Vs. Saifaraz Klian (P L D 1956 SC (Pak.) 306) limiting it to the actual date when Girdawari was done." 13. The learned counsel for the respondents placed reliance on: (1) Nawab Din and 2 others Vs. Hassan Muhammad (Deceased) Represented by Legal Heirs and another (PLJ 1987 Lahore 381) and, (2) All Muhammad Vs. Shera and another (1987 SCMR 207), in support of his contention that specific khasra numbers have been sold out of square No.N/3, both to the petitioner and Msl. Daryai Khanum respectively and, therefore, the pre-emplor does not become cosharer in the Khata. This contention has every force, in that the admitted position is that the petitioner has not been able to prove on the record that the land which was transferred to him and that in dispute formed part of one Khata. In mutation No.267, copy Ex.P.W.2/3, the Provincial Government of N.W.F.P is shown to have transferred 100 kanals of land out of Square No.N/3 measuring in all 152 kanals, whereas Msl. Daryai Khanum vendor, from whom the respondents had purchased land, was transferred specific khasra numbers out of Square No.N/3. Consequently, on the authority of All Muhammad Vs. Shera and another (1987 S C M R 207) cited above, the petitioner cannot be held to be a co-sharer in the suit land. In so far as the claim of contiguity is concerned, it is negatived by the evidence of Sardar Khan Patwari, P.W.5. The claim of the vendor that he was participator in the amenities and appendages of the suit land, is also far from proved. 14. As stated earlier, the learned Appellate Court had given findings of fact that the respondents had been able to prove tbek actual and physical possession over the suit land prior to the attestation of mutation under the agreement to sell. These findings of fact based on the correct appreciation of evidence, as they arc, call for no interference in exercise of re\ isional powers by this Court. Additionally, the two Courts belov, ha\c also erred in holding the petitioner to be a co-sharer in the disputed kind, 15. In view of the aforediscussed reasons, this petition has no merit and is accordingly dismissed with costs. (MBC) Petition dismissed. THE END

Baluchistan High Court Quetta Baluchistan High Court Quetta PLJ 1990 Quetta 1 (DB) Present: ABDUL QADEER CHAUDHARY, CJ AND AMIRUL MULK MENGAL, J NASEEM AHMAD-Petitioner Versus BALUCHISTAN DEVELOPMENT AUTHORITY and others-Respondents Constitutional Petitions Nos. 188 to 194 of 1988, dismissed on 4-9-1989. (i) Baluchistan Development Authority Act, 1974 (X of 1974)- —S.9(l) read with clause d(/«) of E&D Rules, 1987-Dismissal of petitioners -Competency of Chairman to initiate proceedings-Challenge to--There are two caiegories of employees in BDA, i.e. officials employed by Government but whose services are transferred to BDA and second category is of those employees who are appointed by Chairman-In case of first category, it is Government which can take action but in respect of second category, Board of Directors or Chairman would be competent authority to initiate proceedings-Held: In view of clause d(//7) Chairman is competent authority in respect of employees in BPS 16 to 20-Held further: Proceedings initiated against petitioners were taken by competent authority under Rules. [P.14]F,G&H (ii) Baluchistan Development Act, 1974 (X of 1974)- —S30(l)--Baluchistan Development Authority—Employees of-Dismissal from service of-ChaUenge to~A/a/a/?de-Allegation of—Contention that action of Chairman was malafide and arbitrary-Charman noticed huge misappropriation by employees and informed Board of Directors-Chairman being competent authority, could initiate proceedings under Rule 5(1) of 1987 Rules-To prove malafide, onus is always on party alleging malafide— Asking Government to frame rules by itself does not constitute any act to be termed as malafide—Held: Mere contention that since copies of numerous official documents were not supplied hence same may be termed as malafide act on part of Chairman, is devoid offeree. [Pp. 14,15&16]J,K&L (iii) Baluchistan Development Authority Act, 1974 (X of 1974)- — S. 30(1)--E&D Rules of 1987--Whether ultra vires to Act-Questioa of Contention that all powers having been concentrated in Chairman and no power having been left with Government, E&D Rules of 1987 are ultra vires to Act— There are provisions in Act which empower Government to control working of BDA--Held: To say thai Government has lost control over BDA because under Rules of 1987 certain powers have been given to Chairman or Board, is fallacious and untenable and would not be sufficient to declare Rules as ultra vires of BDA Act. [Pp. 12&13JD&E (iv) Baluchistan Development Authority Act, 1974 (X of 1974)- — S. 30 (l)--Rules under Section 30(1) of Act-Framing of-Rules not notified in official Gazette-Effect of— There are two legal requirements for framing of rules, firstly that Government is competent to frame rules and secondly that such rules are to be notified in official Gazette-E&D Rules of 1974 and 1984 were never notified in official Gazette whereas E&D Rules of 1987 were notified-Held: Rules which require notification under Act but which are not so notified in official Gazette, generally carry no proper legal sanction and are not binding-Held further: Rules of 1974 and 1984 were mere instructions having no statutory sanction and were not applicable. (v) Bias- — Baluchistan Development Authority-Employees of—Embezzlement by- Action against- Whether Chairman was biased—Question of—In judicial arlance, bias in a judge may mean when he acts without having regard to sound judicial principles or when he is paralysed of his judicial faculties-­ Held: Chairman did not act -in bias by bringing misconduct and misappropriations by petitioners to notice of Board and thereafter by proceeding against them under rules of 1987. [Pp.l6&17]-M&N (vi) Constitution of Pakistan , 1973- — Art. 199-Baluchistan Development Authority—Employees of— Embezzlement by-Dismissal from service of-Challenge to~Whether writ be issued-Question of-It is to be seen whether issuing of a writ will foster ends of justice or it would perpetuate wrongs— Held: Even if there are certain procedural or technical defects in conduct of proceedings but substantial justice has been done, discretion under Art. 199 of Constitution is not generally exercised-Petitions dismissed. [P.18]R&S (vii) Natural Justice- — Baluchistan Development Authority-Employees of-Embezzlement by- Dismissal from service of-Challenge to-Contention that petitioners were not given proper opportunity of being heard— Chairman acted in compliance with rules and petitioners were given 14 days time to explain their position and were also allowed to have access to record to find out documents which they wanted to rely-Held: Sufficient opportunity was given-Held further: Petitioners having been heard in person, contention that they were not properly heard, has no force. [P.17JO.P&Q M/s. M. Aslam Chishti and K.N. Kohli, Advocates for Petitioners. Mr. Iftikhar Muhammad, Advocate General and Mr. Basharat Uilah, Advocate for Respondents. Dates of hearing: 21,22 and 29-6-1989 and 10 & 11-7-1989. judgment Amir-ul-Mulk Mengal, J.-By this common judgment we intend to dispose of C.P.NO. 188 of 1988 C.P. No. 189 of 1988 C.P. No. 190/88 and C.P. No. 191 of 1988 filed by Naseem Ahmad C.P. No. 192 of 1988 and C.P No. 193 of 1988 filed by Waqar Alam and C.P No. 194 of 1988 filed by Nishat Nabi Qureshi, since the facts involved and the legal points raised in all these petitions are identical. There were allegations of misconduct and misappropriation of huge quantity of material and money to the tune of several lacs of rupees against the three petitioners who were all Employees of B.DA. Facts if succinctly stated reveal as under:- 2. Petitioner Naseem Ahmad was appointed on 3-3-1976 in NPS-19 as General Manager (Operation) Baluchistan Development Authority (hereinafter referred to as the "BDA") under the provisions of Baluchistan Development Authority Act (Act X of 1974) (hereinafter referred to as the "Act of 1974") and as General Manager (Operations) the petitioner was Incharge of the affairs of the following projects namely:- INDUSTRIES SECTOR (a) Brick Plant, Quetta (b) Tiles Factory, Quetta (c) Marble Processing Plant, Quetta (d) Khuda-e-Dad Glass Factory, Quetta MINING SECTOR (a) Flourite Mining Industries, Kalat (b) Quartzite Mining in Lasbella District. (c) Building Stone Project in Lasbella District Besides as General Manager Operations, the petitioner also held extra charge of Managing Director of Pakistan also held extra charge of Managing Director of Pakistan Chrome Mines Limited for years 1980 to 1984. In addition to the aforesaid, the petitioner was also assigned the Secretary-ship of Board of Directors for Baluchistan Sulpher (Private) Limited (a joint venture of BDA with private section). 3. Petitioner Waqar Alam was appointed as Deputy Manager (Research) BDA on 16-10-1975 in BPS-16. He was promoted in B.P.S. 17 in June, 1976 and later to B.P.S. 18 in February, 1985. During the aforesaid period the petitioner worked as Deputy Manager, Manager (I&M) Plant Manager and Additional General Manager. While posted as Manager Bricks Plants, the petitioner was also directed to hold additional charge of Tiles Factory Quetta until further orders vide order of General Manager (Industries) dated 8-1-1978 and the said charge was held by him from 9-1-1978 to 25-1-1978. 4. Petitioner Nishat Nabi Qureshi was offered the post of Exploration Geologist, on 18-4-1982 in Grade-17. He was appointed as Manager Flourite Project in 1983 where he remained uptil 1985. Thereafter he was appointed and posted as Manager (in office) BDA. 5. On 2-6-1985 a report was lodged by one Mr. Irfau Mehmood Durrani of BDA with Anti-Corruption Establishment Quetta wherein allegations of shortage of Tiles in Tiles Factory and other acts of omissions and commissions against certain officers of BDA were levelled. Thereupon F.I.R. No. 10-Q of 1985 was registered under section 409/467/471 PPC read with section 5(2) of Act II of 1947. 6. Agha Aman Shah, the present Chairman of the BDA took over the charge of BDA in January, 1987 and noted certain misconduct and mis­ appropriation on the part of officials of BDA. He informed the Board of Directors that some enquiries are pending against the said officials to which the Board decided as unden- "the above enquiry should be conducted by a neutral body, such as Chief Minister's Inspection Team, co-opting such members who are technically qualified to find negligence, alleged misappropriation and mis­ management on the part of the officers of BDA." The Chairman further requested the Secretary Finance who is also the Chairman Governor's Inspection Team to help B.DA. for nominating neutral enquiry officer for pending enquiries of B.DA.". Seven officers including the present petitioners were placed under suspension. In subsequent meeting held on 31-3-1987 four more officers were suspended. On 1- 10-1987 petitioner Naseem Ahmad was served with an explanation order in respect of the allegations detailed therein (ANNEXURE 'E'). Subsequent thereto a show cause notice dated 26-11-1987 was issued (ANNEXURE J). The same was replied on 20-12-1987 (ANNEXURE M). It was mentioned in reply that the petitioner had been handi-capped in his defence because despite applications, he was not supplied with copies of certain documents. 7. Regarding supply of copies it may be pointed out that a Record Committee was constituted for taking over and showing relevant record of the documents which would be required by the petitioners, under the Rules so as to enable them to submit their replies in the stipulated period of 14 days. 8. All the three petitioners were placed under suspension. They made representations to the Board of Directors for recalling orders of suspension. This was followed by appeals submitted to Chief Secretary of Baluchistan for similar action. Thereafter the Chairman on 1-7-1987 constituted a Fact Finding Enquiry and one Major (Retd) Ali Muhammad General Manager (Ship Breaking) was appointed as Enquiry Officer. He submitted his inquiry report on 10-10-1987. Ultimately petitioner Naseem Ahmad was found guilty and punished as under:- C.P. No. 188 of 1988. CHARGEPUNISHMENT No. 1 No. 2 No. 3 No. 5&6 No. 10 Nos.l5&16 C.P. No. 189/1988 Demotion to next lower rank and recovery of Rs. 6,49,1377- Demotion to next lower rank. Stoppage of one increment. Removal from service and recovery of Rs. 35,000/- Demotion to next lower rank. Severe reprimand. (i) "Both the accused officials namely (Naseem Ahmad) petitioner and Waqar Alam are dismissed from BDA Service with immediate effect: (ii) The cost of loss due to shown a excessive consumption of coal amounting to Rs. 508832/89 is apportioned equally between the two officials and shall be recovered from their P-Fund and graduity: (iii) The cost of recycling and over burning amounting to Rs. 70,OQQ/- is apportioned equally amongst the two accused officers and shall be recovered from their pay, P-Fund and gratuity: (vi) The cost of shortage of 1451530 bricks amounting to Rs. 5,73,545/- is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (v) Cost of over payment of workers amounting to Rs. 20,300/- is apportioned equally amongst the two accused officers and shall be recovered from their pay provident fund and gratuity. (vi) Cost of donation of 30000 bricks (unauthorisedly donation) amounting to Rs. I5,000/- shall be recovered from the provident fund and gratuity of the accused Naseem Ahmad." C.P. No, 190 of 1988 CHARGE 1. Purchases of Imported/Local Machinery. 2. Shortage of Fiourite ore at Site. PUNISHMENT Dismissal from Service. Dismissal from Service and recovery of Rs. 30,14,853/- as 50% cost of 5207 tons of flourite from his salary P- Fund and Gratuity. 3. Irregularities/Misappropriation in the sale of Flourite to private parties. 4. Mis-Management of the account of Flourite Project. Demotion to next lower rank. Severe reprimand. Demotion to next lower rank Demotion to next lower rank with recovery of Rs. 25,000/- stoppage of one increment. C.P. No.191/1988 (a) Stoppage of three increments: (b) Cost of 7652 tiles amounting to Rs. 20,405/- may be recovered from the Pay-P.Fund-Gratuity of the Officer. Allegations made regarding petitioner Waqar Alam were in respect of shortage of Tiles in Tiles Factory and other acts of omissions and commissions. It is further evident from record that case was initially processed by Martial Law Authorities and then by Anti-Corruption Establishment. In its report the Anti-Corruption Establishment concluded as under: - "In view of the above it is very difficult to fix responsibility of shortage of tiles on any one or some of the officers as no proper record has been maintained in the Tiles Factory or BDA Office. This Establishment is therefore left with no alternative but to state:- "That all those who remained Incharge of the Factory from June, 1975 to October 1978 and the Supervisory Officers of the Factory may be held responsible for the loss as well as negligence of duty." However the Fact Finding Enquiry submitted the report and the said petitioner vide office order dated 4-2-J988 was found guilty and punished as Under:- C.P.No.l92ofl988 (i) Both the accused officials namely Mr. Naseem Ahmad and Mr. Waqar Alam are dismissed from BDA service with immediate effect; (ii) The Cost of loss due to shown as excessive consumption of coal amounting to Rs. 508832.89 is apportioned equally between the two officials and shall be recovered from their pay, provident fund and gratuity; (iii) The cost of recycling and over burning amounting to Rs. 70,000/- is apportioned amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (iv) The cost of shortage of 1451530 bricks amounting to Rs. 5,73,545/- is apportioned (between) the two accused officers and shall be recovered from their pay provident fund and gratuity. (v) Cost of over payment of workers amounting to Rs. 20.300/- is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (vi) Cost of donation of 30,000 bricks (unauthorised donation) amounting to Rs 15000/- shall be recovered from their provident fund and gratuity of the accused officer Mr. Waqar Alam." C.P. No. 193/88 CHARGE PUNISHMENT "Mr Waqar Alam Malik and Mr. Mir The petitioner was demoted Ahmad Khajjak are two Off-cc.s mainly to next lower rank; whereas responsible for tampering with the record and making second register in order to cover their misdeeds. It may be submitted that this was not the allegation either in the Explanation letter or the SHOW CAUSE NOTICE. 2ND CHARGE Loss of 53737 tiles-relatable to period 20-3-1977 to June, 1978. The petitioner and two other officers were declared responsible for the loss of tiles and penalty to the extent of total cost of tiles was imposed on all the three officers amounting to Rs. 1,07,474/- to be borne in equal share. The other two officers were M/S Mir Ahmad Khajjak and Musa Khan Khajjak. The share of each of three officers came to Rs. 35,834/67 "to be recovered from pay P. Fund and gratuity." Petitioner Nishat Nabi in C.P. No. 194 of 1988 was found guilty and punished as under:- PUNISHMENT Severe reprimand. Dismissal from Service and recovery of Rs. 30,14583/- as 50% cost of 5207 tones of flourites from his salary, P- Fund and Gratuity. 3. Irregularities/Mis-appropriation in the Demotion to next lower rank. sale of flourite to private parties. No recovery to be effected since it is already included in the recovery made in case of total shortages of flourites. 4. Mis-Management in the account of Severe reprimand. Flourite Project. Demotion to lower rank. Inview of the fact that the accused officer has fraudulently made payment to a company/Firm jointly owned by him this case may be referred for criminal proceedings. Stoppage of three increments. 9. Being aggrieved of the order of the Chairman, the petitioners filed separate appeals to the Board of Directors of BDA. The Board of Directors was presided over by the Chairman BDA. With certain modifications in punishments substantially the appeals were dismissed by the Board on 12-6-1988. 10. Representations were made by the petitioners to the Additional Chief Secretary (Dev:) Planning and Development Department, Government of Baluchistan , but no decision thereon had been made or communicated to the petitioners. In such circumstances the petitioners have moved this Court by filing these Constitution Petitions. 11. Heard Mr. Muhammad Aslam Chishti, for petitioners Naseem Ahmad (in four petitions) Waqar Alam in (two petitions) and Nishat Nabi Qureshi and Mr. Basharatullah for respondents No. 1 and 2 and learned Advocate General Baluchistan for respondent No.3 . 12. Mr. Muhammad Aslam Chishti, learned counsel for the petitioners urged the following points in support of these petitions:- (a) That Board of Directors was alone competent authority to have initiated proceedings against the petitioners and action initiated by Chairman was in fact without lawful authority. In this respect the learned counsel contended that hearing of appeal by Board of Directors could not cure this illegality. (b) That while passing the impugned order dated 21-2-1988, Chairman BDA acted solely on the report of Fact Finding Inquiry and no reasonable opportunity was afforded to the petitioners by the said Fact Finding Inquiry therefore, the petitioners have been condemned unheard. (c) That Chairman BDA right from the initiation of action against the petitioners till the passing of final order acted in an arbitrary and mala fide manner, in that he tried his utmost to change the Rules of 1974 and to bring fresh Rules by introducing the Baluchistan Development Authority (Efficiency and Discipline) Rules, 1987. (d) That even under the aforesaid Rules, the petitioners had a right of reasonable opportunity which was denied to them. (e) That being punishing authority, the Chairman could not preside over the meeting of Board of Directors while sitting in appeal against his own order. (f) That the Baluchistan Development Authority (E&D) Rules of 1987 are ultra-vires and are in contravention of the BDA Act of 1974 and of Rules of Business. It was alternately submitted that even if these rules be held as intra-vires, the discretion exercised by the Chairman was arbitrary, being against the direction of Board of Directors regarding initiation of independent inquiry and no just decisions could be arrived at except by an un-biased official. (g) That appellate order passed by the Board of Directors is not a speaking order. (h) That no hearing was afforded to the petitioners while deciding appeals. (i) That the petitioners have a good case on merits as no reasonable man could come to the same conclusion on the basis of material as was inferred by the Chairman. 13. While controverting the aforesaid pleas Mr. Basharatullah, learned counsel for the BDA submitted:- (a) That the Chairman is the competent Authority under the Rules as such he was competent to initiate action against the BDA employees. (b) That in the show cause notice the petitioners have failed to challenge the appointment of competent authority being in violation of section 2(a) and 3 of the Act of 1974. In the appeal also the petitioners did not raise the plea that the competent authority was Board of Directors but according to their plea it was the Government who was competent Authority. In this respect another objection raised by Mr. Basharatullah was that in these petitions filed on 31-8-1988 question regarding Chairman as authority has not been raised although the same was raised by a separate application dated 19-6-1989. So much so that even in appeal before the Board of Directors this plea was not taken. (c) That Chairman neither acted mala fide nor was biased since a bar is created only when there is pecuniary interest or proprietary interest and both of these are missing in the present case. (d) That as far as hearing of appeal by the Board of Directors including the Chairman, is concerned according to the counsel there is positive intention of legislature that the Chairman shall preside over every meeting. As no contravention of legislative intent has been made, therefore no injustice has been done. It was additionally submitted that section 13 of Act of 1974 has been complied with which provides that services of an employee may be terminated by giving one month's notice from either side etc. without assigning any reason. (e) That Rules of 1987 are intra-vires and that the Government retained the powers under section 30(1) of Act of 1974 to make Rules. (f) That as per Rule 11 all the pending cases have to be dealt with according to Rules of 1987. (g) Adoption of Summary Procedure was not mandatory but was discretionary. The authority was competent to forego to adopt the other course. 14. The learned Advocate General Baluchistan while supporting the respondents urged as under:— (a) That it is authority of BDA which is competent to appoint or remove the officials of BDA and not Government. In this respect the learned A.G. submitted that there are two categories of employees of BDA:- (i) Employees appointed by the Government i.e. The Chairman and the Board of Directors; (ii) Employees appointed by the Chairman. The first category consists of public servants who can be transferred to any other Department and vice versa, but Government is not appointing authority regardingthe second category. The second category is of Employees of BDA, appointed by Chairman. (b) That BDA Rules of 1974 were not notified and therefore were nonexistence until the BDA Rules of 1987 were framed. Mention of said Rules in Section 11 was in order to remove the doubts. (c) That Chairman was delegated powers as competent authority and since this point was not raised at preliminary stage, therefore documents with that effect could not be produced. (d) That the petitioners committed misconduct and were involved in misappropriation of huge BDA funds and further more question of terms and conditions of their service is involved therefore, writ may not be issued in their favour. 15. Before dilating upon the points so raised we would like to refer to the laws applicable in determining the points which are:— (1) Baluchistan Development Authority Act of 1974. (2) Baluchistan Development Authority Employees Service Rules, 1974. (3) Baluchistan Development Authority Employees (Efficiency & Discipline) Rules, 1974. (4) Baluchistan Development Authority (Efficiency & Discipline) Rules, 1984. (5) Baluchistan Development Authority (Efficiency & Discipline) Rules, 1987. (6) Rules of Business of 1976. 16. It would be expedient to firstly determine question about the Rules which are applicable to the employees of BDA. The learned counsel for the petitioners strenuously urged that BDA Employees (E&D) Rules, 1974 are applicable on all fours and 'BDA (E&D) Rules 1987 were introduced by the efforts of the new Chairman Mr. Aman Shah in order to victimise the present petitioners. It was further averred that these Rules in fact are ultra vires of BDA Act of 1974. 17. In order to resolve the issue we have to divert to the Act of 1974. Section 30 of the Act of 1974 is relevant for the purpose which reads as under:- "30(1) The Government may by notification in the Official Gazatte make Rules for carrying out the purposes of this Act." 18. From the plain reading of Section 30(1) of the Act, it becomes crystal clear that there are two legal requirements which give sanctity to Rules, viz; Firstly that it is the Government who is the competent Authority to frame Rules and secondly that such Rules are to be notified in the Official Gazette. There is no dispute that E&D Rules of 1987 were framed by the Government of Baluchistan and were notified in the Official Gazette of November, 4, 1987 whereas E&D Rules of 1974 though framed by the Government but were never notified in the Official Gazette. Similarly E&D Rules of 1984 were never notified in the Official Gazette, thus when Rules of 1987 were framed and notified in the official Gazette there existed E&D Rules of 1974 and E&D Rules of 1984 in the field although the same were not notified. 19. Rules which require notification in the Official Gazette under a relevant Act but which are not so notified generally carry no proper legal sanction and are not binding on the principle that if law requires some thing to be done in a particular manner then the thing must be done in the said manner and in no other manner. There is no cavil to the proposition that E&D Rules of 1974 as well as E&D Rules of 1984 were not notified as required by section 30(1) of Act of 1974. Same therefore may be held as mere instructions giving guide lines but can not be treated as Rules having a binding force. We therefore find substantial force in the contention of learned Advocate General Baluchistan that E&D Rules of 1974 had no statutory sanction because these were not notified in the official Gazette and were in \io!ation of section 30(1) of Act of 1974. This perhaps was the reason why the Chairman felt it necessasry to bring to the notice of the Government to frame Rules. The Government therefore, framed Rules of 1987 and got the same notified in the official Gazette on November 4,1987. 20. Mr. M. Aslam Chishti. in support of his contention relied on Rule 11 of Rules of 1987 and submitted that in the said Rules it was clearly mentioned that E&D Rules of 1974 are hereby repealed, meaning thereby that these Rules were applicable prior to the framing of Rules of 1987. Rule 11 of Rules of 1987 is hereby reproduced:- "11. Repeal. The Baluchistan Development Authority (Efficiency & Discipline) Rules 1974 are hereby repealed. Pending cases if any shall be deemed to be pending under these Rules." The counsel for the respondents attempted to rebut this argument in two ways. Mr. Basharatullah the learned counsel for BDA urged that Rule 11 must be read as it is, which clearly shows that pending cases if any shall be deemed to be pending under these Rules which clearly means that even if Rules of 1974 were enforced prior to the promulgation of Rules of 1987, the same can not be made applicable in pending cases as Rule 11 lays down that all pending cases shall be deemed pending under these Rules (Rules of 1987) and the cases of present petitioners were pending. 21. Pending cases means cases which are undecided or which are awaiting decision or settlement. Reliance was placed on Fa jar All and others vs. Mst. Jamila and others as reported in PLD 1969 Lahore Page 545. Mr. Aslam Chishti argued that the effect of repeal would be that previous operation of any enactment so repealed shall not be distrubed and the repeal would not affect in any manner the operation of law/rules which were repealed. But the said argument is devoid of any force because in section 6 of the General Clauses Act it is clearly mentioned that "unless a different intention appears", the repeal shall not affect the operation of previous enactments. Here in the cases in hand, it is clearly mentioned in Rule 11 that pending cases shall be deemed to be pending under these Rules, thus the Government made its intention quite clear that pending the issue differently that the words "that rules of 1974 are hereby repealed" were used in order to remove the doubts because those Rules were framed by the Government but were never notified in the official Gazette as provided under the Act of 1974. These therefore were mere instructions. Reliance was placed on the cases of Muhammad Usman Ghani vs. M. Ahmad, C.S.P. Election Tribunal and others (PLD 1967 Dacca 786). A George vs. Pakistan International Airlines Corporation (PLD 1971 Lahore 748) and the Principal Cadet College Kohat and another vs. Muhammad Shoab Qureshi (PLD 1984 S.C. 170). 23. As we have already observed in the preceding paras that Rules of 1974 were not notified in the official Gazzete, therefore, the same were mere instructions having no statutory sanction as such the Rules of 1974 or Rules of 1984 are not applicable in the cases of petitioners. 24. From the above discussion we are inclined to conclude that the cases of present petitioners are governed under the Rules of 1987. 25. This would bring us to the second limb of the argument advanced by the learned counsel for the petitioners that E&D Rules of 1987 are ultra vires to the BDA Act and Business Rules. It was argued that E&D Rules of 1987 are ultra vires of the Act of 1974 becauase BDA is controlled by the Government of Baluchistan through its Planning and Development Department which is headed by Additional Chief Secretary (Dev.) But no powers under the Rules have been reserved for the Government either as competent authority or as appellate or even revisional authority, thereby all powers have been concentrated in the Chairman and as no powers have been left under these Rules with the Government therefore, these rules are ultra vires to the BDA Act. 26. This argument is devoid of any force as it has got intrinsic contradictions because it is the Government itself which has framed these Rules. BDA Act of 1974 was passed by the Provincial Assembly Baluchistan on 4th of June, 1974 and assented to by the Governor to provide for the establishment of a Development Authority for the promotion of economic and industrial Development of the province. It was felt by the Government that such authority shall be a body corporate having perpetuate (succession) and common seal with powers subject to the provisions of the Act to acquire and hold property both movable and immovable and shall by the said name be sued or sue. Thus as a corporate body BDA was allowed to act freely in order to achieve that goal subject to the provisions of the Act of 1974 and Rules framed in a manner to oust the control of the Government would be a misnomer because the Government retains its over all control through the Act over BDA. As for instance the Authority shall establish regional offices at such places as Government may direct (Section 3(4) of the Act). Under Section 4(2) of the Act the Board in discharging its functions shall act on sound principles of development and economic plannings and shall be guided on the following and other matters of policy by such directions as the Government may from time to time give...."Sub-Section (3) of Section 4 provides that if any quesion arises as to whether any matter is a matter of policy or not the decision of the Government thereon shall be final. Likewise section 4(4) lays down that if the Board fails to comply with any direction given to it under subsection (2) the Government may remove the Directors including the Chairman from office and appoint a person or body of persons to perform functions of the Board until a new Board is constituted under section 5. The Constitution of Board of Directors and appointment of the Chairman is also retained by the Government. Thus it is clear that there are provisions in the Act which empower the Government to control the working of BDA and therefore to say that the Government has lost control over BDA merely because under the Rules of 1987 certain powers have been given to the Chairman or Board is fallacious and untenable. Undisputedly the Government is competent authority to frame Rules under the Act and such Rules have been framed by the Government with a view to provide sufficient powers to BDA a corporate body to function smoothly and freely, to achieve its object. This in our opinion would not be sufficient to declare the Rules as ultra vires of the BDA Act. 27. The next contention that the Rules of 1987 are ultra vires of the Business Rules of 1976 also carries hardly any legal weight for the reasons that though the Business Rules are framed by the Governor under Article 139(3) of the Constitution of Islamic Republic of Pakistan, 1973 for the allocation and transaction of the business of the Provincial Government, but such rules are primarily intended to regulate the transaction of the Business of the Government. Virtually Rules of Business were framed in this Province in the year 1976 and as per Rule 21(1) of Rules of Business (as amended) cases of disciplinary action pertaining to the officers holding posts in Grade-17 and above and officers of equivalent status including Chairman and Members of statutory Corporation under the control of the Government shall be submitted by the concerned Department to the S&GAD except where exemptions are allowed by the Government in this behalf. It was contended that petitioners being officials of the aforesaid category, therefore, their cases should have been channelised through S&GAD. The only question therefore in this regard would be whether Rules of 1987 on this score would be ultra vires. We can not subscribe to such view firstly because Rules of 1987 were framed for a particular set of officials i.e. B.D.A employees and while these Rules were framed the Government had in mind the Business Rules. Business Rules were framed in 1976 and Rules of 1987 are subsequent thereto. Another factor is that from the materials on record it transpired that the cases of the petitioners and question of mis-appropriation was also taken in the Provincial Assembly of Baluchistan where it was declared by the then Chief Minister that persons responsible shall be dealt with severely. Thus the cases of the petitioners were already in the notice of the Government and it hardly matters whether the same were channelised through S&GAD or otherwise. 28. It would not be sufficient to render Rules as ultra-vires merely because the same Rule Making Body had prescribed a different procedure not akin to similar rules as framed in a different context. 29. We now proceed to dispose of the first objection raised in respect of the competency of the Chairman for initiating action against the petitioners. According to section 9(1) of BDA Act of 1974 the Authority may subject to such general or special orders as Government may from time to time give, appoint such officers, experts, advisers, consultants and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may determine. 30. In the definition of Rules of 1987 clause d(iii) is relevant which after defining the competent authority lays down as under:- "In respect of employees in time scale corresponding to PBS 16 to 20 the Chairman". As stated in the paras hereinabove the Advocate Genera! Baluchistan urged that there are two categories of employees in BDA i.e., officials appointed by the Government but whose services are transferred to BDA e.g. Chairman and Board of Directors. The second category consists of those employees which are appointed by the Authority or the Chairman. In respect of the first category it is the Government which can take action but in respect of the second category the Board of Directors or the Chairman, as the case may be would be competent authority to initiate proceedings. 31. As we have already held that Rules of 1987 are applicable, therefore, there remains no doubt in view of clause d(iii) that the Chairman is the competent authority in respect of employees corresponding to BPS 16 to 20. The proceedings initiated against the petitioners were, therefore taken by the competent authority under the Rules. 32. Learned counsel for the petitioners then urged that the action of the Chairman was mala fide and arbitrary. It was averred that the Chairman misreported lisa matter to the Board of Directors by contending that enquiries were pending against the petitioners although in fact such inquiries were completed. Thus on [his misrepresentation, the Board of Directors decided to constitute an independent fact finding inquiry to probe into the cases of misconduct/misappropriation of the petitioners but despite that an official of the BDA (one Major (Retd) Ali Muhammad) was appointed as Enquiry Officer. Furthermore the Chairman attempted to change the Rules and to bring fresh Rules so that the petitioners are punished according to the whims of the Chairman, The Chairman, after passing orders of suspension and dismissal etc. heard the appeal against his own order although according to the provisions of Acs. of 1974 he could easily have abstained to hear appeal against his own orders. This all, according to the counsel would go to show that action taken by the Chairman was mala fide. 3"'. Ir wrts admitted in the counter-affidavit fhat inquiries in respect of the i.)uv- r.-rcjt'cts were completed prior to the taking over of the Chairman. However, u was s jted ihat ihese facts were concealed by the petitioners and Chairman was ik,; informed as he had recently taken charge. It was also replied that Board of Directors allowed suspension of the petitioners for a due cause as they were involved in cases of misconduct and misappropriation of huge amount/material. As far as the constitution of fact finding inquiry is concerned one Major (Retd) All Muhammad was appointed against whom no partiality has been alleged. 34. It mav be pointed out that when the Chairman noticed that huge mis­ appropriation has been committed by the employees of BDA he informed the Board of Directors. The fact that enquiries were completed or were yet pending was immaterial. Chairman being competent authority under Rules of 1987 could initiate proceedings as per Rule 5(1) on the basis of his own knowledge or information placed before it provided sufficient grounds for proceeding against an employee existed. Therefore the plea that had the Chairman not mis-reported that enquiries \vere pending, Board would not have recommended for suspension of the petitioners, is totally irrelevant and unsustainable. Although the Board in the instant m,-tiers also decided to direct for conducting of enquiries against the c-fficiali .">ho were responsible for mis-appropriation of huge quantity of material ana money belonging to BDA. The main attack that the Chairman acted mala fide was that he got new Rules approved by the Government. We have already observed that under section 30(1) of the Act the Government is competent to frame Rules and if at all Rules were framed on the pointation of the Chairman then it can not be safely concluded that this action was mala fide, because anything done in accordance with the provisions of any statute or law validly enacted can not be held as mala fide. To prove mala fide onus is always on the party alleging mala fides. It is now well settled that a presumption of regularity with regard to official acts is always attached unless the same is rebutted clearly and conclusively but of course not with vague allegations. The question of bad faith is always a question of fact and there appear no reasons why Chairman acted in bad faith against the present petitioners against whom he had no grudge prior to taking of charge as Chairman except that he noticed mis-appropriation and misconduct. 35. It is not for the courts sitting in Constitutional jurisdiction to dig out facts from different files to prove mala fides. Malafides should be apparent from the record as also from the conduct of the officials against whom the same is alleged. In the instant case admittedly the Chairman started inquiries soon-after taking of his charge. The officials had never been under his control and there was no question of personal grudge against them. Asking the Government to frame Rules by itself does not constitute any act to be termed as mala fides. The Chairman has apparently not violated any mandatory provisions of the Act of 1974 or the Rules made thereunder. Mr. Chishti, vehemently urged that the petitioners were not supplied with the copies they required for replying the show cause notice but it is clear from the record that a record committee was constituted by the Chairman and petitioners were accordingly informed that they have access to any document they required in order to submit their replies. Petitioners have not alleged that they were not shown any record by the said Board. Mere contention that since copies of numerous official documents were not supplied hence the same may be termed as mala fide act on the part of Chairman is devoid of any force. 36. The second limb of the argument was that the Chairman was biased against the petitioners. He presided over the meeting of the Board while hearing the appeals against his own orders. It was submitted that section 13(4) of the Act of 1974 contains a provision where in absence of the Chairman the meeting of the Board shall be presided over by a Director authorised by the Chairman and where no such authorisation has been made by the Chairman a Director among the Board of Directors be elected to preside over such meetings. Under Rule 10(iii) of the Rules of 1987 the order passed by Chairman punishing any official is appealable to the Board of the Authority and Director means according to section 2(d) of Act of 1974, a Director of the Authority including the Chairman. Thus the Board consists of the Directors presided over by the Chairman. Mr. Aslam Chishti in view of the aforesaid provision submitted that as per Section 13(4) the meeting of the Board could be presided over in absence of the Chairman, by a Director authorised by him or by a Director elected for the purpose by other Directors, therefore, it would have been expedient and proper in the circumstances if the Chairman would have chosen not to preside over meeting of the Board while hearing the appeal against his own orders. By not adopting this option, according to the learned counsel the Chairman wanted to influence the Directors at the time of hearing of the appeal. This according to the counsel violated the principles of natural justice and this fact constitutes bias and mala fide. Mr. Basharatullah on the other hand challenged this plea on the ground that there is a mandatory provision of law requiring that the meeting of the Board of Directors shall be presided over by the Chairman. The word 'shall' has been intentionally used by the legislature and therefore by presiding over the meeting of the Board while hearing appeal the Chairman has acted in compliance of the provisions of the Act of 1974. 37. Mr. Basharatullah canvassed that under section 13(4) of the Act of 1974 any Director may preside over such meetings only when the Chairman is absent. Since during the hearing of the appeals the Chairman was not absent, therefore, he was under legal obligation to preside over the meeting. Thus the Chairman acted according to law and there arises no occasion to say that by doing so he showed his bias or was acting mala fide or that principles of natural justice wereviolated. In support of his contention he relied on the cases of Mukhtar Hussain vs. District Manager Road Transport Authority as reported in PLD 1966 (W.P) Lahore 258. Asim Iqbal vs. President Summary Military Court No.l Quetta and 3 others (PLD 1978 Quetta 97), and the President of Pakistan vs. Mr. Justice Shaukat Ali (PLD 1971 S.C. 585). 38. Dictionary meaning of bias is when a person is influenced unfairly or is inspired with prejudice. In judicial parlance bias in a Judge may mean when he acts without having regard to sound judicial principles or when he is paralysed of his Judicial faculties. It in fact means a disqualification for a judge to proceed or try a person. Applying these principles to the present cases we are unable to find that the Chairman has acted in bias because he after noticing certain misconducts and mis-appropriations brought these facts to the notice of the Board and thereafter proceeded under the Rules of 1987. Imputing a judge with bias is most unreasonable unless it is proved that he acted one sidedly or in a manner which can not be termed as judicial. 39. Under the Act of 1974 it was incumbent upon the Chairman to preside over the meeting of the Board. The alternate arrangements as envisaged under section 13(4) come into play only in absence of the Chairman but the Chairman admittedly was present and he presided over the meeting of the Board hearing the appeal. Besides the Board there was no other alternate forum therefore, the Chairman had to preside it. Since the Chairman acted in accordance with the provisions of the Rules of 1987 hence it can not be held that he was biased. 40. This takes us to the plea raised by the counsel for the petitioners that the petitioners have not been given proper opportunity of being heard. It is revealed from the record that explanation notice was given to the petitioners on 1st of October, 1987 wherein the action proposed to be taken was intimated and charges in detail were given to the petitioners. In replies thereto, petitioner Nasim as well as other petitioners submitted a very long list of documents which they required for submitting their replies. As stated earlier a Record Committee was constituted for the purpose. The Chairman then issued a show cause notice while proceeding under Rule 5 of the BDA (E&D) Rules of 1987. Once again the allegations of misconduct and mis-appropriation were given in detail and 14 days time was allowed to the petitioners to submit their replies. The action proposed was also mentioned as dismissal and recovery of mis-appropriated amount. It was also intimated that the petitioners may see relevant documents in working hours from 10 a.m. to 3.00 p.m. After this the Chairman proceeded under Rule 5 and found the petitioners guilty and awarded punishments as stated in the facts. This amounts that the Chairman acted in compliance with the Rules and petitioners were given 14 days time to explain their position and were also allowed to have access to the record to find out the documents which they wanted to rely. This in our view was sufficient opportunity. 41. It was next contended by Mr. Chishti that the Chairman intentionally did not proceed under Rule 6 which provided a thorough inquiry and a procedure whereupon the petitioners would have earned sufficient time to effectively submit their replies. But it may be pointed out that under Rules the discretion is always with the Chairman either to adopt summary procedure under Rule 5 or to have resort to Rule 6. We find no reason to interfere in the discretion so exercised by the Chairman for disposal of cases pertaining to misconduct and misappropriated amount to the tune of lacs of rupees. 42. Even otherwise the petitioners were heard in person as is evident from the impugned order passed by the Chairman, therefore, contention that the petitioners were not properly heard has no force. 43. The next contention that the order of the appellate forum was not a speaking order is also of no consequence. Firstly because the Board has not differed with the original impugned order passed by the Chairman which in fact was a detailed and lengthy order and secondly because the Board was a quasi judicial forum and it can not be expected of it to write a detailed and argumentative judicial order, particularly so when they agreed with the finding of the Chairman. 44. It may further be observed that while sitting in Constitutional Jurisdiction we are not supposed to appreciate the evidence and to draw conclusions as to whether the petitioners have factually been involved or not in misappropriation and misconduct, moreso when the two forums below have drawn such conclusions. 45. Lastly while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, we have to see whether issuing of a writ will foster the ends of justice or it would perpetuate wrongs. Even if there are certain procedural or technical defects in the conduct of proceedings, but substantial justice has been done, the discretion under Article 199 of the Constitution is not generally exercised. For the above stated facts and reasons we find no force in these petitions which are hereby dismissed. However, we leave the parties to bear their own costs. (MBC) Petitions dismissed.

PLJ 1990 Quetta 18 (DB) PLJ 1990 Quetta 18 (DB) Present: ABDUL QADEER ClIAUDIIARY CJ AND MUNAWAR AHMAD MlRZA, J USMAN LTD.-Petitioner versus COLLECTOR OF CUSTOMS (APPRAISEMENT), Quetta and another- Respondents Const. Petition No. 4 of 1989 (aslo C.P. No. 5 of 1989) dismissed on 12.9.1989 (i) Constitution of Pakistan, 1973-- —Art. 89--Finance Ordinance, 1982~Not placed before National Assembly within four months-Whether lapsed-Question of~This Ordinance was promulgated by virtue of powers derived under CMLA's Order I of 1977 and same, under law, could not be subject to procedure prescribed under Article 89 of Constituion-Held: Ordinance stood validated under Article 270-A,of Constitution and objection being fallacious, must fail—Held further: Demand regarding levy of surcharge and Iqra Surcharge under respective enactments is quite proper-Petitions dismissed. [Pp.22&23] B&C (ii) Constitution of Pakistan, 1973- —Art. 199-Surcharge and Iqra Surcharge-Levy of--Vires of Finance Ordinance, 1982 and Finance /\ct, 1985-Challenge to-Surcharge and Iqra Surcharge have been levied as additional custom duty-Undoubtedly new duty has been added up besides other existing custom duties in respect of commodities which are imported into Pakistan—Held: Bare reading of Finance Ordinance, 1982 and Finance Act 1985 would show that both were promulgated to secure additional custom duty which is undisputedly sanctioned by Part I of Federal Legislative list attached to fourth Schedule under Constitution. [P.21]A PLD 1975 SC 506 and PLD 1988 Lahore 461 rel. Mr. Anwar Mansoor KJian, Advocate for Petitioner (in both petitions). Mr. fflikliar Muhammad, Advocate General, Baluchistan for Respondents (in both petitions). Date of hearing: 12-9-1989. judgment Munawar Ahmed Mirza, .[.--Constitution Petitions No. 4 and 5 of 1989 involve identical facts and law, therefore, same are being decided by common judgment. 2. Facts are very simple and brief. Petitioner is Public Company incorporated under the Companies Ordinance, 1984 having registered office at Karachi. Each of the petitioner proposes to install textile industry at Hub, District Lasbella ( Baluchistan ) for manufacturing cotton/blended yarn and allied products. Petitioner in petition No. 4 of 1989 imported machinery from leading Firm of Germany, namely Luwa. AG. Ltd. Zurich; whereas petitioner of petition No. 5 has imported Swiss Machinery from its agents at Hong Kong M/s C.IHO. Co. Limited. At the time of clearance of respective consignments, petitioners claimed exemption from payment of custom duty, sale tax etc. on the basis of Notification No. SRO-500(I)84, dated 14.6.1984 and SRO-480(I)88, dated 26.6.1988, on the ground that said machinery was not manufactured locally. It is an admitted position that petitioners were granted benefit provided by aforementioned Notifications; but they were asked to pay "surcharge" under the Finance Ordinance, 1982 and "Iqra surcharge under Finance Act, 1985 being 'additional duty' not covered by exemption clause. Petitioners aggrieved from demand of custom appraisement authorities regarding payment of 'surcharge' and 'Iqra surcharge' under respective Finance enactments have filed present petitions challenging validity of levy and vires of said legislations. 3. Mr. Anwar Mansoor Khan, learned counsel for petitioners strenuously urged following points; (i) legislation relating to levy of 'surcharge' and 'Iqra surcharge' by way of "additional custom duty' is in excess of law making powers of Federal legislature; becuase same falls beyond the purview of items 43 to 45 of Federal Legislative List Part-I and items 38, 39 and 44 of Concurrent Legislative List Part-II of Fourth Schedule under Article 70(4) of the Constitution. Following judgments were also relied:- (i) A.I.R. 1945 Privy Council-98; (ii) A.I.R. 1970 S.C 1771; (iii) A.I.R. 1963 S.C.-703; (iv) P.L.D 1983 SC 451 (v) A.I.R. 1965 Supreme Court 1379 and (vi) N.L.R 1983 (Tax) 46. (ii) Section 2 of the Finance Ordinance, 1982, and section 5 of the Finance Act, 1985 imposing "surcharge" and 'Iqra surcharge' respectively contain merely provision for charging taxes without providing machinery for collection and recovery; whereby for all intents and purposes provisions of Customs Act became factum of duties leviable on the goods which are imported or exported. Section 18(1) manifestly suggests that rate of levy on the goods imported into or exported from Pakistan can also be specified through other laws. Evidently section 2 of Finanace Ordinance 1982 further amended by Finance Ordinance 1983 impose additional custom duty of 'surcharge'; whereas section 5 of Finance Act 1985 prescribes 'Iqra surcharge' by way of additional custom duty on the importation of goods, at the rate specified in said statutes. Both the enactments specifically exclude applicability of any notification allowing exemption of custom duty. Therefore by virute of express provisions in aforesaid special enactments exemption in respect of imported goods granted under section 19 of the Customs Act, would be completely in-effective and inoperative for purposes of additional customs duty under said laws. Similarly when express provision of special enactment supersedes and excludes provisions of general law, the latter in that behalf and to the extent of inconsistency must yield. For authority, reference can be made to cases; (i) Muhammadi Steamship Co. Ltd. vs. Tlie Commissioner of Income Tax (Central) Karachi (PLD 1966 SC 828) (ii) Rahmatiillah & Sons vs. Commissioner of Income Tax (1974 SCMR 127) and. (iii) State vs. Syed Mir Ahmed Shah (PLD 1970 Quetta 49) 5. Now considering objections about vires of Finance Ordinance 1982 and Finance Act 1985 on the ground of being beyond legislative competence of Federal Legislature; it may be examined, that 'surcharge' and 'Iqra surcharge' have been levied as additional custom duty. It undoubtedly discloses that new duty has been added up besides other existing custom duties in respect of commodities which are imported into Pakistan. Therefore factually character of enactment coupled with consequences sought to be achieved through impugned legislation would be most relevant factor for ascertaining its true nature, rather than incidental obejct vaguely discussed or the nomenclature. For better appreciation of the principle of law, reference also be made to the observation in case F.B. All vs. State (1975 S.C.506 at 524). Bare reading of both the aforementioned enactments, it is quite apparent that same were promulgated to secure "additional custom duty" which is undisputedly sanctioned by Part-I of the Federal Legislative List, attached to Fourth Schedule under the Constitution. In an identical set of circumstances dealing with mainly same objection in the light of principle covered by "pith and substance" Mr. Justice Rustam S. Sidhwa of Lahore High Court in case Lahore Textile. & General Mills Ltd. versus Islamic Republic of Pakistan (PLD 1983 Lah: 461) made following observation: "It is well-settled law that the validity of an Act is not affected if it incidentally trenches upon matters outside the authorised field, if otherwise, by the rule of "pith and substance", it substantially falls within the powers expressly conferred upon the legislature which enacted it. If the basic object of section 2 of the Finance Ordinane, 1982 and section 5 of the Finance Act, 1985, was to levy nothing more than additional custom duty, the fact that incidentally the whole of the customs duty under the latter Act was to be or still is diverted to education, the legislation can not be held to be invalid merely because funds from the common pool have been specifically earmarked by the legislature for particular purpose. It cannot be denied that all customs duties fall into the common pool and from there can be diverted into various channels to meet expenditure regarding a host of subjects and activities. The fact that the legislature has diverted the income of one particular item of additional customs duty for a specific purpose, does not alter the "pith and substance" of the legislation, which is taxation. Once legislation, which specifically deals with taxation, is within the express powers, then it is not invalidated if incidentally the total income diverted from such taxation is directed to meet the expenditure on a particular subject. The legislature has powers to divert the income falling in the common pool into various activities and if the income of one source, which normally falls in the common pool, is channelized specifically to a particular purpose, the true object of the legislation, which initially was taxation, is not lost." Thereafter an abortive attempt was made by learned counsel for petitioners to make distinction between levy of taxes, and mere right for recovering educational fees, thus challenging validity of impugned legislations. As already discussed mere form, or nomenclature of the enactment by itself is not material. Actually basic requirement, and anxiety of legislature appeared to be procuring additional custom duty for enhancing Federal consolidated revenue, which obviously could be conveniently diverted to any of the useful purpose urgently needed for the nation. It may also be seen that except objection about Finance Ordinance 1982 having been lapsed for not placing it before National Assembly, all other aspects have been elaborately and exhaustively dealt with and determined by single Judge of Lahore High Court in case, Lahore Textile & General Mills Ltd. vs. Islamic Republic of Pakistan (PLD 1988 Lahore 641). We respectfully endorse on all the points, view taken by the worthy Judge in aforementioned report. 6. Now therefore, we proceed to decide last objection raised by learned counsel for petitioner, that Article 89 of the Constitution was revived with effect from 10.3.1985. Therefore Finance Ordinance 1982 as amended by Finance Ordinance 1983 ought to have been placed before National Assembly within four months of its commencement from 23.3.1985 and on the failure to do the same, above enactment is deemed to have lapsed. It is not disputed that impugned Finance Ordinance, 1982 was promulgated by virtue of powers derived under C.M.LA.'s Order-I of 1977 (Laws Continuance In Force Order). Whereas Article 89(1) of the Constitution provides powers of president to promulgate Ordinance, under the Constitution; consequently sub-clause (2) of Article 89 expressly refers to Ordinance promulgated under Article 89(1) and in that behalf specifies performance of subsequent formalities. Therefore on the revival of the Constitution and creation of Assembly, only such Ordinance which under the Constitution were to be promulgated by the President, would stand repealed if not laid before National Assembly within four months or before expiration of said period resolution disapproving it, is passed. Obvisously sub-clause (2) and (3) are restricted to Ordinance under Sub-clause (1) of Article 89 of the Constitution. Admittedly, the impugned Finance Ordinance 1982 was not issued under Article 89, rather it derives authority from Laws Continuance In Force Ordcr-I, of 1977, therefore, same under the law could not be subject to procedure prescribed under Article 89. Additionally Article 270(a) relating to Validation of President's Orders, enactments and laws promulgated from 5th July onward was enforced with effect from 29th December, 1985 whereby the impugned Ordinance which was clearly an existing law, thus stood validated and protected by the Constitution. In the circumstances objection raised by leared counsel for petitioner is fallacious, therefore, must fail. For the foregoing reasons we are satisfied that impugned legislations do not suffer from any infirmity, defect or incompetency. Accordingly demand regarding levy of 'surcharge' and 'Iqra surcharge' made by Custom authorities under respective enacrtments is quite proper. Resultantly petitions have no merit which are thus directed to be dismissed. Since important constitutional points were raised, therefore, we do not feel inclined to impose costs. (MBC) Petitions dismissed.

PLJ 1990 Quetta 23 PLJ 1990 Quetta 23 Present: MIR HAZAR KHAN KHOSO, J ABDUL KARIM BUTT--Petitioner versus GOVERNMENT OF BALUCHISTAN and 2 others-Respondents Civil Revision Nos. 44 to 51 of 1989, dismissed on 25-4-1989. (i) Civil Procedure Code, 1908 (V of 1908)-- —- O.XXIII R.l-Suit "Withdrawal of-Whether fresh suit can be filed-Question of—Under sub-rule (1) Plaintiff can withdraw his suit at any time without permission of court—Under sub-rule (2) of Rule 1, Plaintiff can withdraw from suit with permission to file a fresh one-Held: If a plaintiff withdraws his suit under sub-rule (1), he cannot bring fresh suit on same cause of action. [P.25]A,B&C PLJ 1977 Lahore 530, PLD 1959 SC 287, PLD 1960 Lahore 261, AIR 1914 PC 249, AIR 1951 Allahabad 845, AIR 1922 Nagpur 84 and AIR 1918 Patna 452 rel. (ii) Limitation Act, 1908 (IX of 1908)-- —Ss. 14 & 52-Recovery suit-Limitation for-Whether suit was time barred- Question of-Cause of action for recoverises of dues has been shown to start from 14-12-1976--First suit was filed within period of limitation but subsequent suits were filed in 1980 whereas limitation is 3 years-Period spent in prosecuting first suit (which was withdrawn) cannot be condoned-Held: Trial courts had rightly come to conclusion that suits filed by Petitioner were timebarred-Petitions dismissed. [Pp.26&27]D,E&F Mr. W.N. Kohli, Advocate for Petitioner (in all Petitions). Date of hearing: 28-3-1989. judgment As the same points of law and facts are involved I intend to dispose of Revisions No. 44 of 1989 to 51 of 1989 by this single order. 2. The petitioner is Editor, Publisher and Proprietor of News-paper Weekly Pukkar, Quetta. On direction of respondent No. 2 he had supplied News-paper 'Weekly Pukkar' Quetta, to various Schools in Province of Baluchistan. For period 1974-1975 and 1975-1976 having not been paid, he approached the respondents for the payment of dues. By letter No. 40820/68 dated 14th December, 1976, the respondent No. 2 directed for clearance of the dues but of no avail.. On llth May he issued notice to the respondents for payment of the dues. Receiving no response from them he filed suit for recovery of the arrears on 12th September, in the court of Senior Civil Judge, Quetta. Various objections were raised by the respondents hence under Ordcr-23 Rule 1 C.P.C. the petitioner withdrew the suit with permission of the court to file a fresh one on 21st December, 1980 the petitioner filed several suits for the recovery of same amount against the respondents who vehemently resisted the same. Following issues were framed:- 1. Whether the suit is not maintainable in view of preliminary objection No.1 of the written statement? 2. Whether the suit is barred by limitation? 3. Whether this court has no territorial jurisdiction in the matter? 4. Whether the plaintiff is entitled to the decree prayed for? 5. Relief. On the controversial issues the parties led their evidence. Without touching the merits of the cases the learned Senior Civil Judge, Quetta on 30th June, 1988 dismissed the suits on the ground that they were filed beyond period of limitation. Appeals filed by the petitioner also received the same fate from the hands of learned Additional District Judge, Quetta on 3rd October, 1988. These Revision Petitions are directed against the above said judgments and decrees of the courts of Senior Civil Judge and Additional District Judge, Quetta. 3. In support of the petitions Mr. W.N.Kohli, the learned counsel for the petitioner contended that as the petitioner was allowed to withdraw the suits with permission to file a fresh one, the time would not run against him, besides benefit of Section 14 of Limitation Act had to be extended in favour of the petitioner. To appreciate the contentions raised by the learned counsel for the petitioner it would be advantageous to reproduce. Ordcr-23 rule 1 C.P.C. It reads as under:- "1. Withdrawal of suit or abandoment of part of claim. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants, withdraw his suit or abandon part of his claim. Where the Court is satisfied that a.suit must fail by reason of some formal defect; or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject mailer of a suit or part of a claim; it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others." Plain reading of sub-rule 1 shows that a plaintiff can withdraw his suit at any time without permission of the court. But under its Sub-rule (2) a plaintiff on application can withdraw from suit with permission of the court to file a fresh one. It may be observed that when plaintiff withdraws his suit under sub-rule (1) he can not bring a fresh suit on the same cause of action. Reliance ;s placed on: 1. P.L.D. 1959 S.C. 287. 2. P.L.D. 1977 Lah. 530. 3. P.L.D. 1960 Lah. 261. The object of this rule is to prevent plaintiff from filing a fresh suit after having; failed to conduct the first one with care and diligence. The view gets support from A.I.R. 1914 P.C. 249, A.I.R. 1951 Allahabad 845, A.I.R. 1922 Nagpur 84 and A.I.R. 1918 Patna 452. 5. In permitting to institute a fresh suit the sub-rule 2 seeks to prevent technicalities from defeating justice. The relevant authority is 48-1 C 1005. However for withdrawal of the suit with permission to file a fresh one, specific reasons are to be set out. The quotations relied upon are (1) P.L.D. 1966-Kar. 356, P.L.D. 1965 Pesh. 127. When permission is granted in absence of grounds mentioned in above clause the order is held to be defective. PLD 1967 L 531 PLD 1962 Lah. 476 and PLD 1957 Lah. 648 . 6. In the instant case it seems that the grounds are not set forth in the order dated 21st of December, 1980 by the learned Senior Civil Judge. For convenience sake the order is reproduced as under:-Whatever the case may be the petitioner withdrew his suit with permission to file a fresh one. It has to be seen whether the contentions raised by the learned counsel for the petitioner in support of his petition are well-founded. It may be noted that the object of the permission to file a fresh suit is that the technicalities of law may not stand in way of plaintiff to defeat ends of justice. But in no case the rule gives protection to plaintiff from running of limitation against him. On the contrary Sub-rule (3) catagorically puts specific bar. It reads as under:- "In any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the manner as if the first suit had not been instituted." The proposition has been elaborately discussed in P.L.D. 1959 S.C. 287 and A.I.R. 1935 Allahabad 381. However if a first court had no jurisdiction to entertain the suit and plaint is returned for presentation to the proper court, it is not withdrawal of the suit under Order-23 rule 1 C.P.C. and section 14 of Limitation Act operates. In A.I.R. 1940 Sind 125 it has seen observed that: "The suit fails for want of jurisdiction in the Court returned for presentation to the proper Court. We think therefore S 14 Limitation Act, applied and the suit was in time." Herein the admitted position is that the First Court had the jurisdiction over the lis and the subsequent suits have been filed in the same court hence there is no jurisdictional defect in the court. Reverting to facts it may be seen that the cause I of action for the recoveries of the dues has been shown to start from 14th jDecember, 1976. The first suit was filed within period of limitation. The j subsequent suits have been filed in the year 1980. The period fixed for recovery of [arrears is 3 years under Article 52 of Limitation Act. On face of it the claim has ! bcen brought by petitioner beyond period of limitation. Time spent in prosecuting the first suit can not be obviously condoned. My view gets support from A.I.R. 1938 Bombay 281 and A.I.R. 1934 All 688. When this proposition was put to the learned counsel for the petitioner he had no explanation to make but monoto nously urged for benefit of section 14 of Limitation Act which does not come to his rescue as petitioner's case indeed does not fullfil the essential condition laid therein. 7. As already observed herein above that return of plaint can not be equated with withdrawal of suit hence Section 14 of the Limitation Act has no relevancy at all. This relevant point has been discussed in A.I.R. Calcutta 625 and AIR 1938 Bombay 281. They read as under:- 1. A.I.R. 1939 Calcutta, 625: "It may be pointed out that the plaint here was actually returned to the plaintiff and the Court had definitely terminated the previous suit on the ground that it had no jurisdiction to entertain it. The order allowing the withdrawal of the suit must therefore, be deemed to be without jurisdiction and no such order could be passed after the plaint was returned on the ground that the Court had no jurisdiction to entertain it. I agree therefore, with the Courts below in holding that S. 14 Limitation Act, is not attracted to the facts of the present case and consequently the plaintiffs suit must be dismissed as being barred by limitation. The appeal accordingly fails and it is dismissed. There will be no order as to costs in this appeal." 2. A.I.R. 193S Bombay 281: "It had also jurisdiction to decide the question raised by the defendants that they were agriculturists that is it had jurisdiction to decide whether it could make a decree and we do not think that its jurisdiction was affected in any way by the action of the plaintiff. The order made by it under O.23 R. 1 was an order of a Court which had jurisdiction and this case therefore comes under O.23 R.2, and the plaintiff was bound by the Law of limitation." There is no cavi! on ihc proposition laid down in the above said aulhorities. In such view of the facts the learned trial court had rightly come to the conclusion that I he suits fileti by the petitioner were time-barred and it seems that there is nothing wrong with the order of appellate court confirming the same judgments! and decrees. Obviously the suits filed by the petitioner are time barred hence I see no] reason to interfere with the decisions of the two subordinate courts in theseJF revision petitions which arc dismissed in limine accordingly with no order as to, costs. 8. This is the reasoning of my short order dated 28-3-1989. (MBC) Petitions dismissed.

PLJ 1990 Quetta 27 PLJ 1990 Quetta 27 Present: MUNAWAR AHMAD MlRZA, J Prof. SHAUKAT HUSSAIN-Appellant versus SARFRAZ HUSSAIN and 10 others-Respondents Civil Misc. Appeal No. 36 of 1988, accepted on 15-6-1989. (i) Arbitration-- —Arbitrator-Appointment of-Whethcr umpire could be treated as arbitrator- Question of-Evidently, agreement for arbitration executed by parlies as well as order of trial court expressly indicate that Mr. Moquim Ansari was appointed as umpire-Held: Contention that he should be deemed as third arbitrator is clearly contrary to record and patently misconceived. [P.3()]A (ii) Arbitration— —Umpire—Functions of—Active participation of umpire in proceedings— Whether constitutes illegality-Question of-Umpire acts only when there exists difference between arbitrators themselves-Jurisdiction of umpire commences only after difference of opinion appears between arbitrators and not before-Held: If umpire acts and takes part in deliberations before difference arises between arbitrators, it would certainly constitute illegality. [P.31]B AIR 1955 Nagpur 126 followed. (iii) Arbitration Act, 1940 (X of 1940)-- —S. 16(l)(c)~Award—Proceedings of—Irregularity in—Effect of—It is obligatory for arbitrators to entertain evidence adduced by parties relevant for determination of dispute-In this case, statement of mother of parties was placed before umpire without allowing any opportunity of cross-examination— Apparently proceedings have been drawn by arbitrators as well as umpire in an irregular manner-Held: Award has been improperly procured and objections about its illegality are quite apparent on face of record-Held further: On account of patent illegalities and glaring defects, awards of arbitrators and umpire were liable to be remitted to them-Appeal accepted and case remanded for fresh award. [Pp.31&32]C,D&E AIR 1957 Calcutta 23 & PLD 1960 Karachi 455 distinguished Mr. Klialid Malik, Advocate for Appellant. M/s. Basharatullah and S-A.M. Quadri, Advocates for Respondents. Date of hearing: 15-6-1989. judgment Both these appeals involve identical points of facts and law, therefore same are being decided by common judgment. 2. Relevant facts briefly stated are, that on 6-4-1986 appellant Professor Shaukat Hussain filed a civil suit in the Court of Senior Civil Judge, Quetta seeking rendition of acconunts declaration of his share in the estate left over by his father late Rehmat Hussain Qureshi, partition and possession. Alongwith the suit an application under Order 40 Rule 1 C.P.C. for appointment of Receiver was also filed. Respondents No. 1, 2, 5, 7 and 10 filed rejoinder to said application, on 14-5-1986 squarely denying existance of joint business. It was however explained that only two immovable properties were left over by their deceased father. Similarly respondents No. 6 and 8 filed rejoinder on 23-7-1986 whereas respondents 3, 9 and 12 filed their rejoinder on 20-8-1986 denying the claim put forth by appellants. Another application under Order 39 Rule 1 and 2 C.P.C. seeking interim injunction restraining respondents from alienating or transferring the property was also submitted. Said application was equally opposed by the respondents. Subsequently on 21-9-1986 aforementioned respondents jointly filed written statement repudiating claim of appellant as regards share in the business. Ownership of late Rahmat Ali Qureshi was admitted only in respect of two properties i.e. one shop and another house. Later on case was transferred to the Court of Additional District Judge, Quetta. It may be seen that trial court by means of order dated 4-10-1986 directed appointment of care-taker/receiver for looking after business in sweets shop styled 'New Pak Sweet House Liaqat Bazar, Quetta.' The order was challenged by respondents in Civil Misc. Appeal No. 13, of 1986. During the pendency of said appeal parties agreed for settlement of their dispute through arbitration. Therefore, with the consent of parties order for appointment of receiver/care-taker was suspended subject to furnishing one surety in the sum of Rupees fifty thousand and duplicate signed copy of arrangement arrived at between the parties was forwarded to the trial court for making reference as prescribed by law. Learned trial court on 3-11-1986 referred the matter for adjudication, through arbitration. Said order is reproduced below for ready reference:- Sd/- Additional District Judge, Quetla The award of arbitrators namely MA. Rashid dated 21-6-1987 and Mian Abdul Hameed dated 30-6-1987 as well as of the umpire Mr. Moquim Ansari dated 22-7-1987 were filed in the Court. Whereafter both the appellants i.e. Professor Shaukat Hussain and Sharafat Hussain filed objections on 20-8-1987. Respondents filed reply to said objections on 20-9-1987. Neither any issue was framed nor any evidence was led by the parties. However application for summoning the arbitrators moved by appellants was dismissed by trial Court on 20-12-1987. Subsequently on 2nd August, 1988 statement of respondent Mst. Raisa Begum was recorded purporting to be under Order XIV Rule 4 C.P.C. Admittedly appellants were not provided opportunity of cross-examination. Ultimately learned Addtional District Judge, Quetta by means of judgment dated 29-10-1988 over ruled the objections making majority award as rule of the Court. Both these appeals have assailed aforementioned judgment. 3. Mr. Khalid Malik learned counsel for appellant vehemently urged that umpire could not participate in the proceedings drawn by the arbitrators. According to him function of umpire commences only when difference of opinion arises between nominated arbitrators. According to him interference of umpire despite objections raised by appellant was patently illegal vitiating the whole proceedings. Reliance has been placed on the observation in case Chouthmal Jivraj Jee v. Ramchandra Jivrajjee Poddar 1 & others (AIR 1955 Nagpur 126). Learned counsel further argued that arbitrators have also seriously erred in failing to record statements of parties or evidence intended to be adduced before them. It was also canvassed that though Mst. Raisa Begum was not examined by the arbitrators but statement allegedly delivered by her to Umpire Mr. Moquim Ansari was considered by the arbitrator Mian Abdul Hameed, causing serious prejudice to appellants. Whereas Mr. Basharatullah learned counsel for respondents attempted to argue that Mr. Muhammad Moquim Ansari was the third arbitrator and not umpire therefore, the objection raised by appellants be ignored. However, alternately it was argued that mere presence or participation of umpire in the early stage of proceedings does not materially affect validity of award. He tried to emphasise that non recording of evidence or consideration of any writing by the arbitrators is not detrimental to the propriety of award. Learned Advocate General assisting the court on the point of law argued, that participation of Umpire in the proceedings was apparently improper. He maintained that position of Umpire was that of judge between the arbitrators therefore his function would commence only in the event of difference among them. I have carefully gone through record of the case and considered arguments addressed by learned counsel for parties. Evidently agreement for arbitration executed by the parties as well as order of trial court dated 3-11-1986 expressly indicate that Mr. Moquim Ansari was appointed as Umpire, therefore, emphasis of Mr. Basharatullah Advocate that Mr. Moquim Ansari should be deemed as third arbitrator is clearly contrary to record and patently misconceived. Now turning to next submission the question for determination would be stage of proceedings when 'Umpire' can participate. To understand this aspect it would be appropriate to refer the meanings of word 'Umpire', (i) Black's Law Dictionary revised fourth edition Page (1692) defines Umpire as under: - "UMPIRE. One clothed with authority to act alone in rendering a decision where arbitrators have disagreed. Hughes v. National Fuel Co. 121 W. Vs. 392, 3 S.E. 2nd 621.626. When matters in dispute are submitted to two or more arbitrators, and they do not agree in their decision, it is usual for another person to be called in as "Umpire" to whose sole judgment it is then referred. Brown. And sec Ingruham . Wliilmore. 75 III 30 Tyler . Webb, 10 B Mon (Ky) 123: Loyn v. Blossom. 4 Duer (NY.) 325. An "Umpire" strictly speaking, makes his award independently of that of the arbitrators. Dennis v. Standard Fire Ins. Co. 90 N J. Eq. 419,107 A 161.163." (ii) Ballentines's Law Dictionary, third Edition P-1310 explains it as follows:- "Umpire. A person selected by arbitrators, pursuant to the authority of the submission to decide the matter in controversy when the arbitrators are unable to agree, and standing by virtue of his selection as the sole arbitrator of the issue originally submitted to the arbitrators. 5 Am J 2nd Arb & A 82. One chosen to decide the issue or issues in an Arbitration when the arbirators are in deadlock, and having the power to settle the matter by his sole award. Chandos V, American Fire Ins. Co. 84 Wis 184. 54 NW 390. A person selected by referees to participate in the decision on the inability of the referees to come to agreement on the decision. 45 Am Jlst Ref 27. An official in a game or sport such as baseball, who applies the rules of the game and settles disputes. (iii) Wharton's Law Lexicon, fourteenth Edition P-1021 describes it, "Umpire. A submission to arbitration usually provides that in case of arbitrators not agreeing in an award the matters in dispute shall be decided by a third person who is called an umpire. The umpire's authority commences when arbitrators are unable to agree, but if there be a time limited for the award, his authority absolutely commences from such time. The umpire when called upon to act, is generally invested with the same powers as the arbitrators, and bound by the same rules and has to perform the same duties. See Arbitration and Arbitrator, and consult Russell on Arbitration." Perusal of these definitions clearly indicates that Umpire acts only when there exist differences between arbitrators themselves. Therefore, jurisdiction of 'umpire' commences only, after difference of opinion appears between the arbitrators and not before. Accordingly if 'umpire', acts and takes part in the deliberations before difference arises between the arbitrators, he may even unconsciously influence their conclusion, thus his active participation at earlier stage would certainly constitute illegality. In this view broad principle of law discussed in case A.I.R. 1955 Nagpur-126, is followed. 4. Additionally it is obligatory for the arbitrators to entertain evidence adduced by parties which is relevant for the determination of dispute referred to them. Besides in my opinion, none of the arbitrators or 'umpire' is at all vested Appeal accepted. Appeals disposed of accordingly, with no order as to costs.

PLJ 1990 Quetta 33 PLJ 1990 Quetta 33 Present: munawar Al IMAD MlKZA, J MOHAMMAD SHAFI-AppelianI versus GHULAM RASOOL-Respondent F.A.O. No. 96 of 1989, dismissed on 26.3,1990 U) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13—Tenant—Ejectment of—Appeal against—Reconstruction of building- Ground of—Respondent has obtained necessary sanction for construction of new building on basis of approved plan—Nothing substantial has been brought on record to negate propriety and genuineness about demolition and reconstruction— Held: Conclusions of Controller concerning reconstruction of building and bonafide personal requirement of suit premises by respondent, are unexceptional. [P. 34,35&36]A,B&C 1964 CLC 1083 and 1984 CLC 3011 distinguished. PLD 1972 Quetta 39 and 1980 SCMR 41 rei. (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13-Tenant—Ejectment of—Appeal against—Reconstruction of building- Ground of--Restoration of possession to tenant after reconstruction-Prayer for—Objection about restoration of either basement or upper storey to tenant after reconstruction, was not taken by appellant during trial of case—Proposed building is a compact unit, whole of which was required by respondent/landlord—Held: Objection has been raised for first time during arguments and absolutely no material is brought on record to substantiate his claim in that behalf by tenant/appellant-Appeal dismissed. [P.36]JD 1983 CLC 1451 followed. Mr. Muhammad Riaz Ahmad, Advocate for Appellant. Mr. Elisanul Haq, Advocate for Respondent. Date of hearing: 15.3.1990. . judgment This appeal is directed against judgment dated 30.9:1989 passed by learned Civil Judge-I, cum-Controller, Quetta whereby application for ejectment of appellant from shop No.3-14/29 Masjid Road, Quetta has been granted. 2. Facts briefly stated are that on 1.3.1986 respondent filed an application under Section 13 of Baluchistan Urban Rent Restriction Ordinance VI of 1959, seeking eviction of appellant from shop No.3-14/29 Masjid Road, Quetta mainly on the ground of demolition, reconstruction, bonafide use, and occupation bf newly constructed premises. Appellant contested the proceedings and filed detailed written statement on 19.5.1986 denying the claim. It was pleaded that no cause of action had accrued to the applicant, besides rate of rent was also disputed. Trial court on 20.5.1986 framed following 4 issues:- 1. What is the actual rate of rent? 2. Whether the applicant requires the shop in dispute in good faith for demolition and reconstruction? 3. Whether the applicant requires tKc shop in dispute in good faith for his personal bonafidc use and occupation? 4. Relief. Record reveals that respondent/landlord examined four witnesses namely (i) Haji Jamil Ahmed (ii) Noor Hussain (iii) Shaukat Hussain and (iv) Ishtiaq Hussuin besides his own statement to substantiate claim regarding reconstruction and personal bonafide requirement. Whereas appellant in rebuttal examined 7 witnesses apart from himself. It may be seen that during the pendency of proceedings defence of appellant was struck of on account of default in payment of rent for the month of May 1986, but on appeal the order was set aside by the High Court-in F-A.O.Bo. 2/87 vide judgment dated 21.4.1987. However after completion of proceedings the trial court on appraisement of evidence adduced by parlies, accepted claim of respondent/landlord relating to ejectment of appellant by means of judgment dated 30.9.1989. Being dissatisfied, present appeal was filed on 11.5.1989. Mr. Muhammad Riaz Ahmed, learned counsel for appellant mainly urged that evidence docs not substantially establish ground of personal requirement of the premises. It was alternately argued that even if assertions of landlord are accepted only bonafides in respect of shop have been proved whereas on the basis of site plan proposed building consists of basement, shop on the ground floor, and second storey. Therefore appellant would be entitled to at least a portion comprising of basement or second storey. Whereas on the other hand Mr. Ehsanul Haq,. learned counsel for respondent argued that appellant is jobless and evidence adduced on record fully establishes reasonable requirement for raising construction and bonafide personal need of landlord in respect of newly constructed building. He submitted that provisions of Section 15(4) of the Rent Restriction Ordinance provide adequate protection by the respondent/landlord for his own use. I have given due consideration to the above respective contentions of learned counsel for parties in the fact and circumstances as well as the law applicable to it. Thorough evaluation of evidence on record discloses that shop in dispute is an old VII type building constructed towards year 1935. Respondent has obtained necessary sanction for construction of new building on the basis of approved plan. Nothing substantial has been brought on record to negate propriety and genuineness about demolition and construction of building on the site. Factually, unless otherwise rebutted by strong circumstances; very intention of landlord to improve the old building, which is undispulcdly of temporary nature, being VII type, clearly supports element of reasonableness. However learned counsel for appellant to meet this situation has relied upon reported judgments in cases; (i) Muhammad Hafeez and another (1984 C.L.C. 1083) and (ii) M/s Service Industries Lahore and another V/s Munawar Sultana and others (1984 C.L.C. 3011). In the first mentioned report, it has been held that requirement of landlord for demolition and reconstruction was not reasonable. Besides nature of new construction was not found to be in consonance with bonafides of claim for ejectment. In the second quoted case court observed that mere desire to throw out tenant, from rented premises did not meet requirements of law. Landlord therefore has additional obligation to establish his reasonable requirements j independent of protection clause. Both these reports do not aptly apply to facts in j hand. It may be seen that circumstances of petitioner's genuineness for construction, coupled with nature of existing building structure, supported by landlord's resources and completion of necessary formalities; besides appellant's failure to effectively rebut above stated factors justifiably helped the Controller in recording satisfaction concerning reasonableness of claim for demolition and reconstruction. Additionally it is profitable to refer observation in case Haji Mania Dad. Vs. Haji Syed Sardar Klian (PLD 1972 Quetta-39) Relevant portion is reproduced below: - "11. I may explain here that this elaborate classification of structures is a peculiarity of this province, and was the consequence of the 1935 earthquake. This province is an earthquake/zone and permanent buildings, strong enough to resist earthquakes, are very expensive because they have to be made of cement and sleel. When Quetta was rebuilt after the earthquake, all permanent buildings had to conform to the standards for resisting earthquakes. But, as a temporary measure, the Government permitted katcha structures to be built. The class VII type of structure is the cheapest of these temporary structures, and its main characteristics are that it is cheap and ugly. However, it was never meant to be permanent. That is also the impression of the citizen in Quetta and that is why the deceased respondent admitted in his evidence that the shop was a katcha structure. This admission corroborates the appellant's evidence, and is sufficient to prove the reasonableness of his claim. But the Courts below rejected his claim by ignoring the respondent's admission, therefore, I drew Mr. Munawar's attention to it. Learned counsel candidly admitted that the shop was a katcha structure, but he feebly submitted that the appellant's requirement for reconstructing it was not reasonable because it was not dilapidated, or dangerous. For the reasons which I have given earlier, I cannot accept this submission, and I have no doubt that the courts below erred in rejecting the appellant's plea that his claim for construction was reasonable.- On the other hand even if stand of respondent about nature of building is entertained same by itself cannot deprive landlord from possible improvement of his property. Reference may be made to Allah Dilta V/6 Mst. Shahxadi Bilquis (1980 S.C.M.R. 41). "It is not necessary that a building must be so old and dilapidated that it is about to fall down before that landlord can be considered justified in wanting to demolish and reconstruct it. Every person has th&iright to improve his property; utilize the land on which the building is constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habilatcd or sufficiently strong to last for another few years. The mere fact that the landlord is willing to demolish the old building and invest a large amount of mon^y in constructing a new one, notwithstanding, the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building or to reconstruct it within a specified period is sufficient to establish his bona fides." From the above discussion. I am inclined to hold that conclusions of Controller concerning reconstruction of new building and bonafide persona! requirement oi suit premises by the appelianl are unexceptional. 6. Now considering objection about restoration of either basemen! or upper storey to tenant, after reconstruction of new building, it may be seen that appellant has not set up this stand during trial of the case. However evidence pertaining to personal bonafide need suggests that proposed building is a compact unit, whole of which was required by respondent/landlord. Even otherwise objection has been raised for the first time during arguments, and absolutely no material is brought on record to substantiate his claim in that behalf. It has been observed in case~/i/;</;</ Qudir Vs. Ms'.Pcirvccn and others (1983 C.L.C. 1451) that new pleas cannot be permitted at appellate stage. In the given circumstances of this case I am respectfully inclined to follow said view. Respondent/landlord lias proved his bonafidc requirement of suit premises for personal use after reconstruction, whereas appellant could not appropriately rebut the same. More­ over provisions of Section 13(4) and (5) of Rent Restriction Ordinance itself provide sufficient safeguards, if appellant violated requirements of law. For the foregoing reasons I do not find any merits in this appeal which is accordingly directed to be dismissed. Parties are however left to bear their own costs. (MBC) Appeal dismissed.

PLJ 1990 Quetta 36 (DB) PLJ 1990 Quetta 36 (DB) Present: mir K-v/AR kuan khoso CJ and munawar ahmad mir/a, .1 BHAGAN-Pctitioncr versus STATE and 6 others—Respondents Const, petition No. 168 of 1989, accepted on S.I. 1990 (i) Constitution <>f Pakistan, 1973- —Art. 199 read with Criminal Law (Special Provisions) Ordinance, 1968, Section 6(2)--Trihunal—Constitution of—Challenge to—Whether constitutional petition is maintainable—Question of—Ordinarily constitution petitions are not directly entertained unless aggrieved party has exhausted alternate remedies specified in statute—Held: When circumstances depict total lack of authority, exercise of jurisdiction otherwise not vested, flagrant disregard of statutory requirement, capricious, arbitrary, whimsical or despotic action, in such circumstances, judging facium of adequacy in relation to speed, expense, inconvenience, oppression, quantum of injury or injustice, writ jurisdiction can be directly invoked—Held further: Present petition is ce lainly maintainable-­ Petition accepted. ' [Pp.42,43,44&45]E.F£G PLD 1963 SC 322, PLD 1972 SC 287, PLD 1975 SC 4?0 and PLD 1981 Qiietta 1 rel. (ii) Criminal Law (Special Provisions) Ordinance 1968, (WP Ord. II of 1968)-- —-Ss. 2(1), 6&8-Tribunal-Conslilutional of-Challcnge to-Whelher award of Tribunal was unlawful and incompelenl—Question of—Tribunal is constituted under Sections 2(1) and 6 of Ordinance—Section 8 while defining quorum, presupposes presence of Chairman besides at least 2 members for validly conducting proceedings—If Tribunal is not validly constituted or does not fulfil minimum requirement of quorum, proceedings would be coruin-non-jiidicc and nullity in eye of law—Chairman, in this case, had not given his opinion but mechanically forwarded award to respondent No. 1 without affirming or disapproving recommendation made by four members of Tribunal—Held: Award (recommendation of Tribunal) is, ex-fade devoid of lawful authority and incompetent. ' JP.41JC (iii) Criminal Law (Speciul Provisions) Ordinance, 1968 (WP Ord. II of 1968)-- —S. 6(2) Tribunal—Constitution of—Challenge to—Whether Tribunal was rightly constituted—Question of—Two of members of Tribunal re undisputedly in service of Levies—Section 6(2) lays down that besides Chairman, other four members must be private persons—Held: Nomination of those two members of Tribunal was contrary to law and Tribunal was improperly and unlawfully constituted—Held further: Proceedings drawn by incompetent tribunal and impugned conviction recorded by respondent No.l were totally comm-non-judicc and of no legal effect. [P.41JD PLD 1958 SC 104, PLD 1971 SC 197, PLD 1975 SC 450 and PLD 1976 SC 208 rel. (iv) Criminal Law (Special Provisions) Ordinance, 1968 (WP Ord. II of 1968)-- —S. 6(3) Tribunal—Constitution of—Challenge to—Whether Tribunal was properlv constituted—Question of—Plea concerning petitioner's absence or procedural defects for constituting tribunals on 28.1(3.1985 and 2.12.1985 is not supported Irom record-Reconslitution of Tribunal on 28.11.1987 behind back of petitioner was clearly repugnant to requirement of Section 6(3) of Ordinance-Held: Reconstitution of Tribunal was thus patently defective. |Pp.40&4i|A&B Mr. Azizidlah Mcinon, Advocate for Petitioner. Mr. S.A.M. Quadri, Advocate and Mr. M.S. Ruklishtiiii, A.A.G. for Respondents. Date of hearing: 5.12.1989. judgment Munawar Ahmad Mirza J.-- This Constitution Petition is directed against order dated 19.06.1989, passed by learned Political Agent/Deputy Commissioner, Dera Bugti, whereby petitioner Bhaggan was convicted under Section 302 P.P.C. and sentenced to undergo imprisonment for 14 years besides fine of Rs.20,000/-subjcct to confirmation by Commissioner, Sibi. He was further required to furnish surely bond for keeping good behaviour/conduct. 1. Respondent No.7 (Baghi son of Manghcy) on 20lh August, 1979, filed a complaint before Additional Political Agent Dera Bugti, alleging that about fortnight ago, certain accused persons including petitioner made an attempt to take away their camels, but they were followed whereupon accused had opened fire. One of the fire shots, hit Meharban, the brother of complainant and caused his death. Towards 02.11.1983 challan was submitted by Tehsildar Dcra Bugli against accused (i) Gulab son of Shambo (ii) Imam Din son of Laghari 2. (iii) Kaifce son of Ha/oor Bakhsh and (iv) Bhagan (petitioner). Initially accused Gulab son of Shambo was arrested, whereas remaining three accused persons including petitioner absconded. It may be seen that learned Political Agent, Dera Bugti, in exercise of powers contained in Sections 4 and 5 of Criminal Law (Special Provisions) Ordinancc-Il of 1968 (hereinafter referred lo as "The Ordinance") lor the first time constituted a Tribunal on 10.03.1984 and referred the mailer to it for determining, 'guilt' or 'innocence' of accused. During ihe proceedings, pclilioner was apprehended. Later learned Assistant Commissioncr-cum-Sub Divisional Magistrate, Sui, towards 28.05.1985, recommended his release on bail; which was eventually allowed by the Political Agent, Dcra -Bugti on 13.6.1985. In presence of petitioner; fresh tribunal was constituted on 28.10.1985. This time, Assistant Commissioncr-cum-Sub Divisional Magistrate. Sui, was nominated as Chairman,.- whereas (i) Wadera Taj Mohammad Khan Holkani; (ii) Wadera Pir Mohammad Kalpar, (iii) Wadcra Khan Mohammad Khan Mukadam Kalpar and (iv) Wadera Mohammad Khan Donrani were its members.' Complainant Baghi however submitted an application seeking substitution of Tribunal on the plea thai incident related to Dera Bugli, therefore, members of tribunal should belong lo said area. Anyhow, with the consent of petitioner, co-accused Gulab and complainant, the tribunal was changed and following persons were nominated/appointed on 20.12.1985 (i) Assistant Political Agcnt-cum-Sub Divisional Magistrate, Dera Bugti, Chairman, (ii) Haji Mian Khan Masoori, (iii) Wadera Dalil Khan Saidani, (iv) Allah Bakhsh Kheiazai and (v) Wadcra Moria Khan Bahi. Wilhout there being effective progress, in the absence of petitioner, towards, 28.11.1987, one of the members namely Haji Mian Khan Masoori was substituted for Ghulam Hyder Khan Masoori. Record reveals that during enquiry before tribunal; prosecution has examined (i) complainant Baghi, (ii) Bakhsh Ali, (iii) Salar and (iv) Scwa, to substantiate accusation against pctilioncr and co-accused. Whereas pclilioner in his statement expressly denied all ihe allegalions, however no defence, was led by him. Whereas, co-accused 'Gulab' adduced Iwo defence wilnesscs namely Phulihan and Sobbani. 3. On ihe completion of enquiry, all the four members vide Award daled 11.04.1989 unanimously recommended for the conviction of petitioner and demanded heavy sureties from him. Simultaneously tribunal proposed acquittal lor co-accused Gulab. ll is pcrlinent lo note that respondent No.l, who was Chairman of tribunal made no recommendations, and merely forwarded the award of four members to Political Agent-cum-Dcputy Commissioner (respondent No.2). 4. Eventually respondent No.2, exercising powers within the purview of Section-ll(4) of "The Ordinance" vide order dated 19.06;1989 convicted the petitioner and sentenced him to undergo Rigorous Imprisonment for 14 years in addition to fine of Rupees twenty thousand or in default to suffer further R.I. for one year, subject to confirmation by the Commissioner, Sibi. Petitioner was also directed to furnish surety-bond for good conduct to the tune of Rs. one lac and P.R. bond of the like amount during next three years. However, co-accused Gulab was ordered to be acquitted. Surprisingly release warrants of co-accused Gulab based on this acquittal were issued more than 1 and 1/2 months prior to passing of actual order, vide No.471 dated 4th May, 1989, addressed by respondent No.l to Tehsildar-cum-Incharge Judicial Lock-up, Dcra Bugti. Evidently issuance of acquittal warrants, when judgment is not yet announced, indicates preconceived conduct and impropriety of highest order which certainly calls for the explanation of concerned Presiding Officer. Contents of release warrants are reproduced below for ready reference. 5. Present petition was filed on 30.8.1989, challenging aforesaid conviction and sentence of petitioner. 6. Mr. Azizullah Memon, learned counsel for petitioner emphatically raised following contentions:- (;') Tribunal was appointed and re-constituted by respondent No.l, behind the back of petitioner without providing opportunity ior raising objections. (//) Trial was conducted in an arbitrary manner. Right of cross examining the prosecution witnesses was denied. Numerous interpolations were made in the record. Even statement of accused/petitioner was modified, to his disadvantage. (Hi) Out of four atleast two members namely Wadera Dalilhan Khan and Wadera Allah Bakhsh were Levies personal under direct control of respondent No.l;. therefore they being under official influence could not act impartially. Besides they are not eligible for appointment as Member of Tribunal under the provisions of Ordinance-II of 1968. (/v) Absolutely no evidence is available on record, implicating petitioner for the commission of any offence. Even otherwise accusations against petitioner and co-accused Gulab are of identical nature. Since co-accused Gulab was acquitted therefore, conviction of petitioner is highly discriminatory and unjust. All proceedings were hastily drawn by Tribunal and respondent No.l, with muhifidcs; for political victim'r/aiion of pciitioner. 7. On .the other hand, learned Assistant Advocate General opposing the petition strenuously canvassed that:- ((') Tribunal %vas constituted in accordance with law, so that petitioner had even affixed his thumb mark indicating no objection in that behalf. (//') Levies personnel are Noteable of the area, and Levies service in certain cases is bestowed on them by inheritance, therefore, appointment of Tribunal members is not challengeable. (Hi) Sufficient material exists on record; connecting the petitioner with commission of offence, therefore, impugned conviction was justified. O'v) Petitioner, has alternate remedy provided by the Statute, therefore, wilhout availing it, constitutional petition is not competent. 8. Attending to fir.st question 'Whether tribunal was properly constituted?, we may refer to relevant orders passed by respondent No.l at different occasion^ Perusal of orders dated. 2R.10.1 1

S5 and 02.12.iyS5. regarding constitution ol tribunal indicates petitioner's presence and thumb marks suggesting 'No Objection' to the appointment of members. Therefore, plea concerning petitioner's absence, or procedural defects for constiiut'mg tribunals on above mentioned two dates is not supported from record. It hardly needs elucidation that normally presumption of correctness is attached to record of judicial or quasijudicial proceedings regularly maintained, unless circumstances independently dispel or disapprove the same. But rcconstitution of Tribunal on 28.11.1987 by deleting Haji Mian Khan Musoori and making appointment of Ghulam Hyder Masoori, behind the bank of petitioner was ciearly repugnant to requirement of Section 6(3)- of "The Ordinance". Relevant provisions are reproduced below for appreciating requirements of law:- "Seclion-5.- QUESTION OF GUILT OR INNOCENCE TO BE REFERRED TO TRIBUNAL. (1) The Deputy Commissioner taking cognizance ol a scheduled oiLnce shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal. (2) A tribunal shall hold its sittings at such place as the Deputy Commissioner may fix, having regard to the safety of the accused and the witnesses and availability of adequate legal assistance to the accused: and such place may also be a place situated in an area in which this Ordinance is not for the time being in torcc. (3 1 ) The power of the Deputy Commissioner under sub-section (2) shall. in respect of a place situated beyond the jurisdiction of a Deputy Commissioner by whom the Tribunal has been constituted, be exerciscable by the Provincial Government. Section-6.- CONSTITUTION OF TRIBUNAL, (1) A tribunal constituted for the purpose of scclion-5 shall consisi of a Government official, not below the rank of Naib TeliMklar, who shall be its President and four other members, all to be appointed by the Deputy Commissioner. (2) In appointing a person as a member, other than the President the Deputy Commissioner shall have regard to the integrity, education, special status and representative character of such person. (3) No person shall be appointed as a member of the tribunal, other than the president, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person." Record reveals that petitioner was neither present when Ghulam Hyder Khan Masoori was appointed as member by respondent, nor any necessity tor such, change existed nor opportunity for raising objections was ut all provided. Reconstitution of a tribunal was thus patently defective. 9. Next it may be seen that tribunal under Section 2() and Section-6 of "The Ordinance" comprises of Chairman being Government official not below the rank of Naib TeliMldar and four members having regards to their integrity, education, social status and representative character, \hercas Section-, 1 -! while defining 'quorum" prc-supposes presence of Chairman besides atleast two <nher members for valid!}- conducting the proceedings. Bate perusal of above mentioned proviM.'H- ::i:.:?.e- u cr. <.:! clear that, if tribunal is not validly constituted or does not :'.;!,;! :r.:r,;nu;;r: requirement of 'quorum' the proceedings would be coram- Jio : ;- : '.:.;.cc and nullity in the eye of law. Learned counsel for petitioner by relerring to original award of Tribunal dated 11.4.1989, pointed out that Chairman had not given his opinion, therefore same could not (be) deemed valid or lawful. On careful examination of original record, we are persuaded to observe that mere ; i^r,:r.g f,!>: I'.vo ra^< of the award dated 11.6.1989 by Chairman of Tribunal and rnjchar.ically iVru^rding the same to respondent No.l without affirming or disapproving the recommendation made by other four members by constituting blatant disregard of mandatory requirements of law; accordingly on the available facts, we have no hesitation in holding that said Award (recommendation of the Tribunal • i,- c.v-'i/r/t. devoid of lawful authority and incompetent. U). B^iuc-. uncii^putedly two of the tribunal members namely (i) Wadcra Daiilhan Khan Saidani and (ii) Allah Bakhsh Kiazai are in the service of Levies. Division Bench of this Court in Constitutional Petition No. 124 of 1989 (Mumtaz Ali versus Assistant Political Agent, Dcra Biigti) has already held (hat; besides Chairman other four members of the Tribunal must be private persons qualified within the meaning of section 6(2) of "The Ordinance". Thus following the dictum laid down in said judgment we arc inclined to declare that nomination of aforementioned two persons namely Wadera Daiilhan Khan and Allah Bakhsh as members of the Tribunal-in the instant case was contrary to law. Additionally as observed earlier, Wadera Ghulam Hydcr Masoori was also improperly and unlawfully substituted. Thus proceedings drawn by said incompetent Tribunal, as well as impugned conviction recorded by respondent No.l, were totally coram-non-judice, accordingly, of no legal effect. For the said conclusion there is plathcra of reported judgments, some of which are mentioned here (i) Yousaf All Vs. Mohammad Aslam Zia and others (P.L.D. 1958 Supreme Court Page-104). (ii) Cliiltaranjan Cotton Mills Limited Vs. Staff Union (P.L.D. 1971 Supreme Conn Page-197), (iii) Rashid Ahmad v. The State (P.L.D. (?) Supreme Court Pagc-2~l). (iv) Sind Employees Social Security Institution Vs. Dr. Mttmiaz All Taj and another (P.L.D. 1975 Supreme Court Pagc-450) and (v) Khuda Bakhsh Vs. Khiishi Mohammad and others (P.L.D. 1976 Supreme Court Page-208). 11. Next question raised by learned Assistant Advocate General, pertains to maintainability oi petition without availing alternate remedy, l! may be seen [hat ordinarily constitution petitions are not directly entertained unless aggrieved party has exhausted alternate remedies specified in the Statute. However, when circumstances depict total lack of authority; exercise of jurisdiction otherwise not vested; flagrant disregard of statutory requirement, caprious, arbitrary, whimsical or despotic action; in such circumstances judging I'actum of adequacy in relation to speed, expense, inconvenience, oppression, quantum of injury or injustice; writ jurisdiction can -be directly invoked. Some of such aspects which can also be profitable lor clinchintj this issue in the instant case, have been considered in iollowing reported judmnents:- (i) Na«ina Silk Mills.Lyallpur Vs. Tlie Ineon:e Tu:< O nicer. A-11'nn! L^aHmtr andam.it/icr (P.L.D. 1963 Supreme Court Page-322:.- "In the present two cases, writs, of cniorari had been pra\ej for in ihe High Court for quashing the impugned orders which were alleged to sutler from lack of jurisdiction. The circumstances in which certioiwi may issue to quash the orders of administrative Tribunals that the required to act judicially, fell for consideration in two recent cases decided by this Court and reported as S.A. Haroom Vs. Collector of Customs, Karachi (2) and Pakistan Vs. Ziuuddin. In both the cases certain orders passed by Customs authorities had been challenged by means of writ petitions in the High Court. It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right oi statutory appeal had not been availed of." (ii)Thc Mwrce Breweiy Co. Limited. Vs. Pakistan through Secretaiy to Government of Pakistan , Works Division and others (P.L.D. 1972 Supreme Court Pagc-287). Similar principle has been enunciated. "It is thus evident that the appellant challenged the very jurisdiction of the .. Capital Development Authority (hereinafter referred to as ("the C.D.A.") 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 exercise in futility. It was held by the Supreme Court in Lt. Col. Nawabzada Mohammad Amir Kltan Vs. Controller of Estate Duly and others (1), that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the court regulates ils jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. The appellant has also alleged malafide in law against the C.D.A. a statutory functionary. In the case of East and West Steamship Co. Vs. Pakistan (2) this Court has held that where a statutory functionary acts malafide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." (iii) Sind Employees' Social Security Institution Vs. Mumtaz All Taj and another (P.L.D. 1975 Supreme Court Page-450). "The defects of jurisdiction are apparent on the face of the record which in my opinion wouid at once attract ceitloraii jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and therefore a nullity. In somewhat similar circumstances in the hlitrree Brewery Company Limited. Vs. Pakistan (1), this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated." (iv) Saleeka Steels Limited. Vs. Director General Coast Guards of Pakistan (P.L.D. 1981 Quetta Page-l_. "16. One of the objection taken, through not argued is that the petition is not maintainable because of the alternate remedy available to the petitioners. In cases where the very jurisdiction of a tribunal is challenged the aggrieved parties can always directly approach this Court, in its constitutional jurisdiction. In this behalf I may refer to the authorities of the Supreme Court reported as Murrce Brewery Vs. Pakistan (1) and Sind Employees 'Social Security Institution Vs. Dr. Mitmiaz AH Taj and others (2) wherein their lordships ha%'c held that one of the well recognized exception lo the general rule of availing the alternate remedy, is where an order is attacked on the grounds that it was wholly without authority, or the statutory functionary acted malafide or in a partial, unjust and oppressive manner." We have already concluded that proceedings recorded by the Tribunal and subsequent decision taken by respondent No.l were patently without lawful authority. These lorums had obviously acted in an arbitrary manner. Thus keeping in view peculiar circumstances and principle of law enunciated in aforcquoted judgments, present position is certainly maintainable. 11. Lastly, adverting to merits, it may be seen that evidence against petitioner as well as co-accused Ghulab who has been acquitted by respondent No.l through impugned judgment Ls exactly (he same. Factually no overt act has been ascribed lo Uic petitioner. Admittedly prosecution had not adduced any direct c\idoncc. Version of prosecution witnesses is based on the information received from injured Gul/ar who also is dead. It is pertinent to mention that Division Bench of this Court in case Nazar Mohammad and another Vs. Abdul Ghcifoor and others (P.L.D. 1987 Quctla Page-141) had held that Qanoon-e-Shahadat Order, 1984 is applicable in respect of proceedings 'under Ordinancc-II of 1963. Relevant observations are reproduced below:- "Being a law, promulgated later and having overriding provisions over all the other laws'on the subject, it would prevail over relevant provisions of the Ordinance, There is no ouster clause regarding application of the Qanoon-e-Shahadat to proceedings under the Ordinance, but on the other hand, Section, 165 of Qanoon-e-Shahadat expressly describes its overriding effect to other laws. Reliance may be placed on PLD 1980 Quclta Page-73, the case of Maqsood Ahmad Vs. Snmmaiy Military Court , Pis/iin, where the question before D.B. was as to which of the two laws would hold field i.e. the Dangerous Drugs Act. 1930 or Prohibition (Enforcement of Hadd) Order, 1979, it was observed:- "In that view of the matter, and because the Order is a later law having overriding provisions over all the other laws on the subject it would prevail over the relevant provisions of Dangerous (Drugs) Act. In fact it has an effect of implicdly repealing such provisions of Dangerous Drugs Act." Reliance was placed in the aforesaid case of AIR 1930 Mad. Page-963:- "From the above discussion we are inclined to hold that the provisions of Qanoon-c-Shahadat shall apply to the proceedings under the Ordinance. Section 3(2) of the Ordinance shall ha\e no • effect to (?) applicability of provisions of Qanoon-e-Shahadat to proceedings under the Ordinance." However when sketchy statements of prosecution witnesses are tested on the ami! of Qanoon-c-Shahadat their version is evidently hearsay and wholly in-admissible. Besides co-accused Ghulab on the identical evidence has been acquitted. Therefore any different approach, on it would not only adversely effect co-accused Ghulab who is not party before us, but may cause apparent conflict in the impugned judgment. 12. Apart from this "The Constitution" guarantees" equal protection and equal treatment of law. to all the citizens. Simultaneously it prohibits discrimination and safeguards the 'Right' to be dealt only in accordance with law. which has been obviously denied to the petitioner in the instant case. Considering all relevant lacts we are satisfied that factually it is a case of 'No evidence' against ihe petitioner. Consequently relying on the broad principle discussed in case (i) lihiyntiilltih Vs. Member, Board of Revenue and others (P.L.D. 1972 Quetla Page-22) and tii) Mir Dost Muhammad Vs. Government of Balochlsiuii and others (P.L.D. joso Quclta Page-1), we arc inclined to accept the petition, declare the impugned order to be illegal, void and without lawful authority. Resultantly we are inclined lo set aside the impugned conviction and direct acquittal of petitioner. He should therefore, be released forthwith if not required in any other case. There shall be no order as regards costs. (MBC) Petition accepted.

PLJ 1990 Quetta 45 PLJ 1990 Quetta 45 Present: MANAWAR AlIMAD MlR/A, J MUHAMMAD YAQOOB and 3 others-Appellants versus Alst. B1BI KHOR JAN and 3 others-Respondents F.A.O. No. 13 of 1990, decided on 23.4.1990 (i) Urban Rent Restriction Ordinance. 1959 (W.P. Ord. VI of 1959)-- —Ss. 1 lit 13--Tenani"Ejoctmonl of—Appeal against—Contention that joint application seeking ejectment of shop and portion of house lor commercial purposes without prior permission of conversion under Scclion 11, was inconipelenl--Buikliim, of which suit property forms a part,is primarily of commercial nature—Silo plan showing proposed building consisting of shops, restaurant and hotel, is duly approved by competent Municipal Auihorilies— Trial court has considered faetum oi reasonableness and bonafides regarding demolition and reconstruction of building—Scclion 11 applies merely to existing buiklinu when intended to be ulili/cd without change in structure-­ Held: Scclion H would not directly apply where absolutely new building is proposed to be constructed. [P.48,fc49|B&C NLR 1980 Civil, Lahore 366. PLD 1982 Lah. 295, 1985 CLC 2S41 and 1988 MLD2S34//. (ii) Urban Rent Restriction Ordinance, 1959 (W.P. Orel. VI of 1959)-- —S. 13"Tcnanl-Ejeclment of-Appeal against-Rcconslruclion of building- Ground of—Contention thai deposition of witnesses examined by respondents having been transferred to other cases without passing any order of consolidation, whole proceedings are vitiated—Order sheet clearly shows that evidence on hehali of landlords in all eviction cases was of common nature, therefore, with express consent of counsel lor parlies, it was transferred in said cases—ll is well settled that provisions of CPC do not strictly apply in proceedings before Rent Controller—Neither prejudice is shown lo have been caused to appellants nor any objection was ever raised till final decision ol cases before trial court-Held: Objection raised at this belated stage is palpably misconceived. [P.4SJA PLD 19(,5 SC 459, 1979 SCMR 288 and PLD 1981 Lahore 52 rcl. (ill) llrban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —S. 13—Tenant—Ejectment of—Appeal against—Whether reasonableness of landlords lor reconstruction was established—Question ol—It is admitted even by R\Vs thai building was VII type—Evidence has been brought on record to show adequate linance for raising proposed building—Necessary formality regarding approval of plan has also been duly complied with—Held: Intention to improve VII type temporary structure, presupposes existence of bonafiilcs, reasonableness and genuine requirement for raising new building—Held further: Choice of landlords for making further investment to improve their properly, cannot be thwarted unless malafides arc proved. (P.49&50]D PLD 1972 Quctta 39 and PLD 1981 Lahore 52 rcl. (iv) Urban Kent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)- —S. 13(3)(i)(a)—Tenant—Ejectment of—Challenge to-Personal need—Ground of-Contenlion lhat respondents are not entitled to seek ejectment for benefit of son and husband of respondent No. 2—Evidence suggests that restaurant and hotel business was mainly designed to be set up for establishing Abdul Jabbar (son of respondent No. 2) under supervision of his father—Suit properly is jointly owned by all respondents who arc keen to establish business for benefit of Abdul Jabbar who in normal course of events would be successor-in-intcrcsl of whole property—Held: It is well settled that any one co- owner can institute proceedings lor eviction without im pleading other and maintainability thereof cannot be questioned—Held further: Conclusion of Controller determining issue of personal requirement in affirmative does not suffer from any defect or impropriety. [P.5Uv54jE&F 1983 SCMR 180. PLD 1979 Lahore 366, PLD 1973 SC 214. 1984 MLD 249, 1980 CLC 8,87, 1983 SCMR 715, NLR 1980 (Civil) SC 787, NLR 1980 (Civil) Lah. 695. NLR 1980 (Civil) Lahore 366, 1980 CLC (Kar.) 1332,1986 CLC 1556, PLD l'AS2 SC 278. PLD 3982 Quetta 49 and 1988 CLC 802 rcl. (v) Urban Rent Restriction Ordinance, 1959 (W.P. Ord. VI of 1959)-- —-S. 13(5). B--Tenant--Ejeclmcnt of-Challengc lo-Safcguard to tenanl- Availabilily of—Attorney of respondents unambiguously deposed in his statement lhat respondents were prepared to accommodate tenants in basemen! as demanded by ihcm in written statement—Held: Benefits covered by Seclion 13(5)B of Ordinance arc fulfilled—Held further: Subject to direction for accommodating tenants in basement, impugned order of Controller is maintained. [P.54JG A/;\ Iftikliar Muliuinniiiil, Advocate for Appellants. Mr. Tui'i([ Mchniooil, Advocate for Respondents. Date of hearing: 23.4.1990. JL'IXJMLNT This appeal is directed against order dated 29.11.19^9 passed by learned Civil Judgc-lI-ea/H-Controller, Ouelta. 2. Relevant lads briefly staled are, thai on 30.1U.S8 respondents filed an application claiminiz eviction ol appellant Irom shops bearing Municipal No.l- 13/22,1-13/23 and part of house No. 1-13/6 situated at Suraj Gunj Ba/ar Queita (hereinafter referred as suit-property). It may be mentioned lhat adjacent to suil-property there are also other shops etc of respondents for which separate eviction proceedings have been instituted. 3. Respondent Msl. Khor Jan is mother of respondents 2 to 4. Respondent No.2 is married lo Haji Abdul Ghuliur who is attorney of all the respondents. Respondents No.3 and 4 are unmarried. Respondent No.2 has a son named Abdul Jabbar. It is noteworthy that said child of respondent No.2 is ultimate succcssorin-interest of respondents. Undispuiedly respondents No.!, 3 and 4 are residing alongwUh respondent No.2 (Mst. Sabira and her family. 4. Evietion of appellant has been souuht on the ground of demolition and reconstruction of suit property and adjoining area with two fold purposes; firstly to improve upon building, whieh presently is old VII type temporary structure constructed alter earthquake ol 19.15, and secondly to build a Restaurant as well as hotel on the first ami second floor for bonalide requirement of new building by the husband and son Mst. Sabira. Jt was pleaded that neither respondents/landladies nor husband or son of second respondent were occupying an other building in the urban area suitable for their needs. Appellants filed written statement on 1.12.1988 wherein objection wa.-. raised that joint-application for house and shop, could not be combined, because basis for eviction in two types of buildings are difieient. Though respondents' ownership and their status of being landlord in suit-property was not challenged yet reasonable requiiemen!, intention for reconstruction and personal boiuifide needs etc. were seriously disputed. According lo appellants, tiie respondents had no intention of improving the building. It was also explained that respondents had starlet! Proceedings against appellant as well as tenants of adjoining shops etc. mere!;, lo cause them harassment and with sole lualufidc object of securing vacant possession and unjustifiably ousting tenants to get undue gains. It may be mentioned that appellant without prejudice to stand taken in written statement, asserted right for the restoration of proportionate area in the 'basement'. For ready reference relevant portion of written statement is reproduced below: - "Without prejudice to the pleas as herein above, it is to add that a basement is also proposed to be constructed as indicated in the site plan. The applicants would be liable to restore possession of the shops in the basement to the tenant-respondents and tenants of other adjoining shops, equal to the area which is already in possession of the respective tenants." Keeping in view the pleadings, trial court on 12.12.1988 framed following 4 issucs:- 1. Whether the application is not maintainable in view of P/O 'B' of written statement? 2. Whether applicants require the shop in question and house for demolition and reconstruction? 3. Whether applicants require the disputed premises after reconstruction for their personal use and occupation? 4. Relief. Respondents to substantiate their claim adduced 5 witnesses including son of respondent No.2 and attorney; who are (AW-1) Mohammad Anwar Patwari (AW-ii) Shaukat Hussain Draftsman Municipal Corporation (AW-iii) Akhtar Muhammad (AW-iv) Abdul Jabbar son of respondent No.2 and (AW-1) attorney Haji Abdul Ghaffar. Whereas appellants in rebuttal have examined eight witnesses namely (RW-i) Aurangzcb (RW-ii) Haji-Abdul Wahid (RW-iii) Imran Baig (RW-iv) Muhammad Anwar Palwari (RW-v) Fazal Ahmad (RW-vi) Ehsan Ellahi (RW-vii) Tariq Parvcz and (RW-viii) Abdul Hafiz Palwari besides appellant No.2 (Muhammad Ayub) for himself and attorney for others. Documentary evidence in the shape of site-plan, revenue record, and copies of PT-I Form of Excise and Taxation Department etc, were also brought on record. 5. Learned Controller however considering oral as well as documentary evidence granted the relief of eviction by means of judgment dated 29.11.I9S9 impugned in this appeal. Firstly learned counsel for appellants attempted to argue, that deposition of witnesses examined by respondents were transferred to other cases without passing any order of consolidation, therefore, whole proceedings are vitiated. Learned counsel for respondents drew my attention to order sheet dated 24.12.1988 and thereafter which clearly shows that evidence on behalf of landladies in all the eviction matters instituted by them was of common nature therefore with express consent of counsel for parties it was transferred in said cases. It is well settled that provisions of Civil Procedure Code do not strictly apply in the proceedings before Controller exercising jurisdiction under the provisions of Buiochistan Urban Rent Restriction Ordinance VI 1959. In case of Kliawja Moliyttdilin and others Vs. Rulinun Aii .\agra and others (PLD 1965 SC- 459), it was opined that Controller acts in a quasi judicial capacity and not as a court. Therefore it can adopt suitable procedure oi convenience which otherwise does not violate or frustrate any law or broad principles of justice. Question of joint trial has been considered in case Ehsanii! Haq Vs. Abdul Rahim (1979 SCMR-228) wherein it was held that Controller could adopt procedure of his own, which is akin to the procedure of natural justice. Similarly in case Sheikh Muhammad Ashruf Vs. Sheikh Muliammad Almas (PLD 1981 Lahore 52), Rent Controller had recorded evidence in one case and placed copies; in the other cases with consent of parties, the procedure was validated. Evidently in the instant case parlies consciously consented for placing copies of depositions, in all otiier mailers in which eviction was sought on identical grounds. Neither prejudice is shown to have been caused to the appellants, nor any objection in that behalf was ever raised, till final decision of cases before the trial court. Plea raised at this belated stage is palpably misconceived. 6. It was next contended that joint application seeking ejcclment of shop and portion of house for commercial purposes specially without prior permission of conversion as contemplated under Section 11 of Ordinance VI of 1959 was incompetent. In the instant case it may be seen that the building of which suitproperly forms a part, is primarily of commercial nature. Small area which is styled as house according to learned counsel for respondents/landladies was not being used for residential purpose rather same is godown for the shops. Be as it may, it is quite evident that site plan showing proposed building consisting of 'shops in basement', 'restaurant' and 'hotel' in the first and second floor (is) duly approved by concerned competent Municipal authorities. Trial court has considered factum of reasonableness, and bonafidcs regarding demolition of existing superstructure and reconstruction of new building on the existing site. Obviously when Controller accepted the plea concerning reasonableness and new construction clearly indicated plan for exclusively commercial building. Oral version of witnesses also reaffirmed this factual aspect. Therefore, grant of relief on the ground of reconstruction in my opinion impliedly operates lo accord necessary sanction. In this view, I am also fortified by the observation in cases; (i) KJntshi Muhammad Vs. Anwar Begum etc. (N.L.R. 1980 Civil Lahore-366) (ii) Klnishi Muhammad Versus Anwar Bcgitm etc. (P.L.D. 1982 Lahore page-295) and (iii) Shabbir Versus Dr. Miss Shahnaz Sanjee (1985 C.L.C 2841). Additionally, bare perusal of Section 11 suggests that it applies merely to existing building, when intended to be utilized without change in the structure. Thus section 11 would not directly apply where absolutely new building is proposed to be constructed. Because in such matter landlord is otherwise required to independently establish his reasonable need of new building according to appro", cd plan. Obviously Rent Controller satisfies itself on all possible requirements of law before accepting the claim of landlady. In this behalf I am supported h. judgment reported as (i) Hakim Fazal Ahmed KJian versus .-u;,:<Y:V:i;; D.-t'i^i uiiu Sessions Judge, Jhang and others (1988 M.L.D. 2834). Relevant portion there.'! is also reproduced below:- "The ^econd argument that the landlord cannot covert the premises from r;<;^-!:0a; to non-residential has been considered by me. Law puts rc_-:: ; aion on conversion of residential building into non-residential except with the permission in writing of the Controller. Section 11 confines iis scope only to the use of an existing building and does not extend to its demolition and reconstruction. An existing building may, however, be demolished with full liberty to raise the new construction in the shape of residential or in the shape of commercial building provided the landlord has obtained necessary permission from the Municipal Committee concerned. As in the instant case the requisite permission has been obtained from the Municipal Committee for reconstruction no law (?) exception can be taken to it." From the above discussion I have no hesitation to conclude that this objection, also must fail. Learned counsel for appellant next contended that evidence led by the parties concerning reasonableness or genuine need for reconstruction of proposed building was misappreciated by trial court. It may be seen that appellant has produced AW-2 Shaukat Hussain Draftsman, Municipal Corporation who has proved sire Han Ex.A/3, The correctness thereof was not challenged. Besides A\V-? Akr.r.-V Nfuhamciad. AW-4 Abdul Jabbar and AW-5 their attorney Abdul Ghnffar have categorical!', deposed that existing building was old, V'JI typed made after earthquake and now respondents wanted to raise new construction on the site in accordance with approved plan, Only general vague questions were asked during cross examination, but nothing substantial was elicited. However even in rebuttal RWs Haji Abdul Wahid, Imran Baig (and) Ehsan Ellahi admitted that building was VII type but explained that same was in good condition. Evidence has been brought on record to show adequate finance for raising proposed building. Thus (on) thorough evaluation of evidence relating to reconstruction, I am convinced that genuineness ID and reasonableness of respondents/landlords in that behalf are duly established. Necessary formality regarding approval of plan has also been duly complied with. Undoubtedly intention to improve VII type temporary structure presupposes existence of bonafidcs, reasonableness, and genuine requirement for raising new building. Similarly landlords have choice for making furl her investment to improve their property (and it) cannot be thwarted unless inalafules arc proved. specially when statute also expressly provides limitation and protection by way of clause 13(5) of the Ordinance. In this behalf principle enunciated in following two judgments can be profitably relied (i) Haji Mania Dad Vs. Hujl Sycd Sardar Klian (P.L.D. 1972 Quctla-39). "11.1 may explain here that this elaborate classification of structures in a peculiarity of this province, and (?) was the consequence of the 1935 earthquake. This province is an earthquake zone and permanent buildings, strong enough to resist .earthquakes, are very expensive because they have to be made of cement and steel. When Quclla was rebuilt after the earthquake, all permanent buildings had to conform to the standards tor resisting earthquakes. But, as a temporary measure, the Government permitted Kacha structures to be built. The class VII type of structure is the cheapest of these temporary structures, and its main characteristics are thai it is cheap and ugly. However, it was never meant to be permanent. That is aiso the impression o! the citizen in Quclta and that is why the deceased respondent admi'.i^d in his e\idenre that the shop was a Katcha structure. This admission corroborate? the appellant's evidence, and is sufficient to prove the reasonableae^ -if h^ claim. But the Courts below rejected his claim by ignoring the respondent's admission, therefore I drew Mr. Munawar's attention to it. Learned counsel candidly admitted that the shop was a Katcha struciure, but he feebly submitted that the appellant's requirement for reconstructing it was not reasonable because it was not dilapidated or dangerous. For the reasons which I have given earlier, I cannot accept this submission, and 1 have no doubt that the courts bclo\v erred in rejecting the appellant's plea that his claim for construction was reasonable." and (ii) Sheikh Muhammad Axhraf Vs. Sheikh Muhammad Almas (P.L.D. 3981 Lahore 52). ". The proposition that re-construction made for the purpose of improvement and development of the property is sufficient proof of the bonafide and reasonableness of the requirement of the landlord is now an established one. In Mania Dad Vs. Sardar KJian (1), it was held that the word "reasonable" is a word of wide import and its meaning cannot be curtailed arbitrarily. The law invests the Rent Controller with a discretion and no hard and fast rule can, therefore, be laid down for the exercise of that discretion except that it has to be exercised judicially. In view of this any reconstruction which would enable the landlord substantially to develop or improve his property would be reasonable within the meaning of clause (vi) and the provision in clause (vi) that a landlord cannot rebuild his property unless he requires it reasonably and in good faith is not a novel provision in rent laws. For the above reason I am inclined to endorse conclusions of trial court in regard to issue of reconstruction. 7. Learned counsel for appellants, then seriously disputed the claim of respondents/landlords for personal bonafide requirement of the building. It was canvassed that need of husband was not covered by Ordinance VI of 1959, He submitted that right to claim eviction on personal requirement would not extend even to son of second respondent. Manifold attacks were launched on the entitlement of respondents to seek ejectment of premises for the benefit of Abdul Jabbar or Haji Abdul Ghafiar son and husband respectively of second respondent. Cumulative effect of pleadings and evidence sugucsts that restaurant and hotel business was mainly designed to be set up ior bonalidely establishing Abdul Jabbar under the supervision of Haji Abdul Ghaffar his real father. It was contended that law does not sanction cit'Ctment under Section 13(3) (i)(a) which primarily regulates landlord 's j own occupation" lor the actual benefit of 'grand-son 1 , 'nephew' brother-in-law or husband etc. Learned counsel lor appellant thus stressed that claim set up in the application regarding requirement in good faith of the new building is not maintainable. He attempted to argue that Abdul Jabbar could claim at best share belonging to Mst. babira (her mother). It may be seen that suit-property is jointly owned by all the respondents. Respondent No.l is an old lady and maternal grand-mother of Abdul Jabbar. Whereas respondent No.3 and 4, ladies ol'j advanced age are permanently livinc as family members of respondent No.2 who | is their sister. It appears as (':) that all the respondents are keen to establish I business for the benefit of Abdul Jabbar, \ho in nonvuil course of events would be ! iuccosor-in-i.'Hjr-SL ol whole property. It is well settled, that any one co-owner cau in.-tii.itj proceedings ior the eviction without impleading the other; and rna:r.;ainabiii;'.' thereof cannot be questioned. For authority reference may be ir.aacto some of the reported judgments mentioned be low:- (I) Nek Muhammad Vs. Muhammad Shaft and others (1983-S.C.M.R. 180) fii) Giuliani Sadie, Vs. Zainab Bibi (P.L.D. 1979 Lahorc : 366) (iii) Khaliquc Ahm:d \^.A-du! Chan a::d another (P.L.D. 1973 SC-214) (iv) Patch Muhammad and another Vs. All Muhammad Kassant (1984 M.L.D. 249), Similarly it has been held inAshiq Nawaz Klicin Baba Vs. Ch. ShafqatAli and others (1980 CLC-887) that in the event of more Shan one landlords, if they agree tc the u-.e of propertv by anv one of them; the tenant occupying the same can be ordereo to put me landlord in possession. In the instant case all ;he respondents undisputed!}- are expressing their concern and anxiety for obtaining vacant possession for the benefit of Abdul Jabbar son of a co-owner. 8. Additionally Haji Abdul Ghaffar attorney, the real father of Abdul Jabbar is obviously deeply interested for establishing suitable business for his son, It has come in evidence that in the vicinity of suit-property their exist numerous hotels. The area is well suited for said business. Now examining other aspect it may be seen that Haji Abdul Ghaffar (is) husband of Mst. Sabira one of the co-owners. Though Section 13(3) (ii) does not mention benefit for husband or wife but the provisions in that behalf have been liberally construed at many occasions. The superior courts keeping in view circumstances of each case and existing social structure have visualised need of the family or spouses to be bonafide, thus broadly construing the provisions of law. On this account ejectment in certain cases has also been ordered. It would be beneficial to mention here some of the reported cases; (i) Ghula/n Mohyuddin Vs Mst. NazirBibi (1983 SCMR 715). "2. Learned counsel for the petitioner has argued that the finding of the courts beiow on the bonafide requirement of the landlady (to be more precise of her husband) was not correct. The contention has no merit. All three courts on the subject have found against the petitioner on the evidence brought on record and on our part \ve feel no justification to interfere in this factual matter or to differ from them in any manner. It has come on the record that the husband of landlady is already doing business which shows tSiat plea of doing business on the part of the husband is not a new enterprise to be now embarked upon by him for the first time. Similarly the plea that the shop already in his occupation is a rented shop supports his case further when he says he wants to shift to the present shop. It has further been proved that the husband of the landlady had earlier another shop with him from whicli he was evicted and therefore started doing business in the rented shop presently in his occupation. If in order to (?) the present shop is required by him for personal use, his need is quite genuine and periectly bonafide.' (\) Masood Ahmed Vs. Mm. Anwar Berlin (1983 CLC 1139) equal to N.L.R. 1980 (Civil)'SC 787) "6. In the present case also, I am not inclined to differ with the concurrent findings of the two courts below. It has come on the record that the husband of the respondent was doing Pheri work and had become sick and was unable to undertake that vocation. The landlady therefore wanted her husband to carry on business in the shop and earn livelihood for the family. This in my view will be a good faith and bonafide requirement of the landlady and cannot be said to be a matter beyond the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance." (iii) Mahmood Hassan Vs. Muhammad Jameel (N.L.R. 1980 (Civil) Lahore 695) "6. In view of what has gone above, I am inclined to agree with the learned Rent Controller that the appellant personally needs the shop in dispute for the purpose of earning livelihood for the widow and children of his brother who have since become his dependents. He wanted to run the shop himself through an employee. Admittedly he is already running a shop in the like manner. It has been unanimously stated by all the witnesses of the appellant, including Muhammad Akbar, that it is the ! headache of the appellant to feed the widow and children of his deceased brother but being a petty financial he finds it difficult to provide maintenance to them. If it (?) not the respondent's case that they or any one of them is an earning hand, I, therefore, on the issue of personal need of the appellant, reverse the finding of the learned Additional District Judge and affirm that of the learned Rent Controller." (iv) Kliushi Muhammad Vs. Anwar Begum etc (N.L.R. 1980 (Civil) Lahore 366) (v) TahirAli Vs. Masoodi Bcgiun and others (1980 C.L.C. (Karachi) 1332) "Beside^ the expression "for his own occupation" as it occurs in section 13(3) Ci)(a) of I he Urban Rent Restriction Ordinance 1959 has received a liberal interpretation to include not only the need of the family of the landlord, dependents and persons, essential for such occupation, but also all oilier genuine requirements of the landlord including better and healthier accommodation \t\c, Adaniuli Hasunali Vs. Rubab Bui." (vj) Svcil ll'axim Alvncd Vs. Afst. Najal Kliaiwm and others (1986 C.L.C. 1556); "Before considering this argument it may be clarified that I am taking into consideration the requirement of the appellant, his wife and parent. The contention ol the learned counsel lor the respondent is based on a narrow interpretation of the words 'lor his own occupation and will restrict the requirement of the landlord only to his physical occupation and would not include the requirement ol such family members who are dependent on (he landlord. \n Abdul Salam Vs. Dr. Najniu Peivaiz 1976 S.C.M.R. 52 it .was held that personal need of the landlord includes need of those dependent on him including needs of family members. This view wa.s followed in Suha Vs. Sirajntltlin (PL.D. ' 1977 Lahore 1263, Muhammad A!-'!\i: V-. U\7. Kr.aiidu I\ ! ;>i!oi>". 19~9 CLC 660, TahirAli v. CLC' 2 In the last ease it was held v-.: u--..'.~i :,•;• h:> oun occupation" as it occurs in section 13(3) '-:. L::\;ii Rent Restriction Ordinance, 1959 has received a .rprctalion to include not only the need of the family of the dependents and the persons, essential lor such occupation, but her genuine requirements ol the landlord including better and accommodation vide Adam,i!i //</w// All Vs. Rabab Bai PLD --•^ ...i.! -ldi!"h,-!i Hf/'crmii \'-. Kuhah Bai PLD 1967 Kar. 437. i\ : .'-.-..hsuis th.il the cxptc-sjon 'own occupation' is to be ..•--•- ..i..d 1.1 include the requirement of the dependents and ipoer.- ol the landlord. orc. u'hal \va< alle;:jd \sas his () \vn persona! use which .: s;atcnii.:ni when read ,./, a whoie. He wanted his he hotel v.ilh the aid ol .•,cr\ant k)r his benefit as his father, who was running it earlier, had died and lie had himself small children to maintain. In the context of this assertion, the controversy in regard to (he interpretation of the word "children" has no efficacy. As the requirement was within the letter of the law. no iurlher question arises for examining the controversy in the light of the order granting leave." (viii) SyedIbrahim Vs. Dr. Mrs. Salima Firdiiuse (P.L.D. 1982 Qucila-49) "In this regard suffice it to say that the entire evidence led by the respondent is to establish her own requirement. Ft is only casually that her husband has said that he would also be helping her. There is thus no harm in it. Even if the husband practised with the wife that fact will not disentitle her from celling relief in anv case the fact of her own requirement remains undisturbed. Even otherwise the expression "foi his own occupation 1 ' is to be liberally construed so as to include all the family needs including the neea of a husband. Such view was also taken in Adaiiiali Huswiaii Vs. Rabab Bcii (I) and was affirmed by a Letters Patent Bench. (ix) Firdous Bcgiim Vs. M/s M. Siraj and brothers (1^8^ C.L.C. 802) "In fact, the sole question urged by the learned counsi.'l for the appellant that the present case fails under Section 15(2)(viii of the Ordinance, the learned Controller has not properly appreciated the scope of lha- section and has improperly declined to grant an order of eviction, what is necessary under thai clause is thai the appellant must satisfy the Controller that she bonafidely requires the premises for her husband's occupation." Thus respectfully following the dictum laid in the above quoted judgments and considering prepondeiair evidence sufficiently establishing respondent's requirement for reconstruction of nevs building and thereafter needing it. bonafide F and in good faith for bringing it to their use through AV.ui Jabbar and Haji Abdul Ghalfar their close relations described above; 1 an; inclined 10 observ.-:. ihat conclusions of Controller determining Issue oi personal requirement .;i the affirmative does not. suffer from any defect or impropriety. In the end it is pertinent to mention here that attorney ol respondents in his statement recorded on 4.-l.f'AS9 unambiguously deposed that respondents svcre prepared to accommodate tenants in basement ,;> demanded by them i'i written statement. This commitment not only lends support ;o bun^fi.'.'- •••! landladies but also affords reasonable protection to the tenants, and despite proof oi personal need of 1st and Ilnd Floor of new building, provides guarantee for accommodating them. Thus benefits covered by Section 13(5) B of Ordinance arc also fulfilled. Evidently, iandloul seeking ejectment of tenant on the ground of reconstruction while intending So raise :v.v building comprising ot. more tr.:in on; storey; and specifying his need for lionjiidc occupation merely in respect oi certain storey, in that eventuality to meet real intention of legislature it would be obligatory to organise new construction which should reasonably promote object ol accommodating the tenants. Irs the instant case obviously, basement is surplus Besides attorney on behalf of respondents has cemruu'ed himself to accommodate the tenants there. Accordingly be!e r e : necessary modification in the site plan to caier lor tenants in the basement arranged. Respondent u modification of site-plan so thai provisions of Section !?('>) B of the Ordinance are not frustrated. Thus for the above reasons, and subject 10 diiection of accommodating tenants in the basement, impugned order ol Controller is maintained. It is clarified that appellant in any eventuality would be entitled to invoke provisions of Section 13(5)B of the Ordinance for seeking restoration of possession in the basement. This appeal was decided by she:. <»der dated 11.4.1990 and here arc reasons Cor the same, (MBC) Order accordingly

PLJ 1990 SC (AJK) 1 PLJ 1990 SC (AJK) 1 [Appellate Jurisdiction] Present: raja muhammad KHURSHiD khan, CJ and basharat ahmad ALAM DIN alias ALAM SHER and 3 other-Appellants versus Z-Respondent Civil Appeal No.62/Mzd of 1986, dismissed on 22-11-1989. [On appeal from judgment of High Court, dated 17-10-1985 in Civil Revision No. 56 of 1985] (i) Adverse Possession- -—Adverse possession-Whether disturbed by decree of Supreme Court-- Question of-If possession at time of institution of suit is not permissive, nature of possession will continue to be so and limitation would not stop running against true owner-In previous suit, Supreme Court found that adverse possession started from 1969—Held: Adverse possession would start running against true owners and, prima facie, after twelve years it may mature into title [P. 8JE&F PLD 1958 (WP) Lahore 568 rel. (ii) Adverse Possession— —Adverse possession—Whether disturbed by decree of Supreme Court-­ Question of-It would be bad to hold that due to dismissal of respondent's suit of adverse possession by Supreme Court on ground of being premature, period of adverse possession would stop running against appellants-Neither any possessory decree in favour of appellants nor appellants have so far moved any suit for possession—Even if there was a decree for possession un­ executed within twelve years, adverse possession would be complete and start running against such decree-hoIder-Held: It cannot be said that assertion of adverse possession by respondent in previous suit was negatived by Supreme Court in saying that his possession was premature when suit was filed. [Pp. 4,5,7&8]A, B, C&D. [(1920) 44 Bom. 934], [(1914) 45 P.R. 1914], [(1920) 63 I.C. 881], [(1911) 1 M.W.N. 207], AIR 1930 Lahore 472, AIR 1920 Bom. 61, AIR 1921 Bom. 470, AIR 1923 Mad. 88(2), AIR 1930 Bom. 400, AIR 1936 All. 466. AIR 1937 Lahore 602, AIR 1967 J&K 149, [(1866-67) 11 Moo Ind. App. 345 (PC)], AIR 1943 Bom. 265, AIR 1973 SC 2537, AIR 1919 Pat. 447 and AIR 1943 Bom. 265 ref. (iii) Civil Procedure Code, 1908 (V of 1908)-- -—O.VI R.17--Plaint~Amendment of-Prayer for-Whether delay in applying for amendment is a ground for refusing it-Question of—Use of expression "at any stage of proceedings" in Rule 17 is not without significance-Once Court decides that amendment is necessary for purpose of determining real question in controversy, amendment is to be allowed-Held: Delay alone in applying for amendment after expiry of period of limitation, is not a ground for refusing amendment in plaint. [Pp. 9&10JG, H&J Kii.Muhanunad Saeed, Advocate for Appellants. Raja Muhammad Akram KSian, Advocate for Respondent. Date of hearing: 22-11-1989. judgment Raja Muhammad Khurshid Khan, CJ.--This appeal, through leave of this Court, is directed against the judgment dated 17-10-1986 of the Azad Jammu and Kashmir High Court, whereby the revision petition moved by the appellants, herein, namely, Alam Din and others, was refused. 2. Present case, carrying a chequered history, arises in the following way: Alam Din, respondent herein, (plaintiff in the original suit), brought a declaratory suit in respect of the suit land against the appellants herein (defendants in the original suit), on the basis of adverse possession, in the civil Court of original jurisdiction. The claim put forth by Alam Din was finally clinched by the Supreme Court in disallowing the appeal on 3-12-1983. In para 5 of the judgment, it was observed by the Supreme Court that the appellant (respondent herein) was shown as tenant upto 1969 and for the first time he was entered to be in adverse possession of the suit land in the year 1969. It was further observed that the aforesaid entry sufficiently proves that the appellant retained the possession in the capacity of a tenant throughout the period preceding 1969 and the nature of the possession of Alam Din as adverse to the true owner had firstly been recorded in the Kfiasra Girdawan pertaining to the year 1969, and since the suit had been filed in the year 1973, the prescribed period of twelve years to acquire title to the suit land by adverse possession was incomplete at the time the suit was fded. The decree for adverse possession, therefore, could not be passed in favour of Alam Din. It would appear that the decision precisely was that the possession of Alam Din at the time the suit was rolled in, being short of twelve years, had not matured into title. 3. After the decision made by the Supreme Court, Alam Din respondent, in respect of the same land, brought a second suit on the basis of adverse possession against the appellants (defendants) on 22-12-1983 before the learned Sub-Judge, Abbaspur Haveli (District Poonch). It was averred in the plaint that since adverse possession over the suit land had started from 1969, It had not matured into title and the title of the defendants (owners) had extinguished. He prayed to have a decree on the basis of adverse possession in his favour. 4. The suit was resisted by the defendants-appellants in their written statement, inter alia,on the grounds:- (i) that the suit had already been decided finally by the Supreme Court and, therefore, it was hit by the doctrine of res judtcaia. The issue of adverse possession, it was stated, had already got adjudication finally by the Supreme Court against the respondent; and (ii) that since the suit land is in their possession, the suit for adverse possession is not tenable. 5. Out of the pleadings of the parties, six issues were framed by the trial Court on 1-8-1984. During the pendency of the suit an application for amendment of the plaint was moved by Alam Din, respondent, on 11-5-1985 to the effect that since the appellants-defendants had forcibly taken possession of the suit land during the pendency of the suit, amendment in the plaint may be allowed to incorporate the prayer for possession of the suit land. 6 After having objections from the other side, the amendment was allowed on 15-6-1985. The amended plaint was also filed by the plaintiff on 14-7-1985. 7. Feeling aggrieved by the amendment allowing order, the appellantsdefendants, rolled in a revision petition before the High Court. The learned High Court, vide the impugned judgment dated 17-10-1985, disallowed the revision petition. Hence this appeal, by leave, to assail the said judgment of the High Court. 8. The above facts would show that Alam Din, respondent, rested his declaratory suit of adverse possession mainly on the basis of observation made by the Supreme Court to the effect that the adverse possession against the appellants, prima facie, started from 1969. The present suit was opposed by the appellantsdefendants with the plea that it was barred by the rule of res judicata inasmuch as the matter was finally decided by the Supreme Court and that the respondents' adverse possession, even if it commenced from the year 1969, was disturbed by the judgment of the Supreme Court. It may be stated here that the appellants have not so-far filed a suit for possession. 9. The sole question, therefore, which would need consideration is as to whether the institution of declaratory suit of adverse possession, without a cross suit of possession, would arrest running of the period of limitation or omission on the part of the appellants to file a suit for possession would be fatal for them and would not stop running of the period of adverse possession against them. 10. Before proceeding further for clarity sake, we would like to pause here to determine the true nature of the relevant controversy. The respondent had averred in his plaint that at the time the present suit was filed, the possession was with him. The appellants controverted the claim in their written statement with the averment that the possession was with them. However, para 4 of the judgment of the High Court runs counter and destructive to the stand taken by the appellants in their written statement inasmuch as it was conceded in the High Court by Mr. Muhammad Maqsood Khan, the learned Advocate appearing on behalf of the appellants, during the course of his arguments, that the appellants took possession of the land during the pendency of the suit, of course, with the consent of Alam Din, plaintiff. In view of this factum, prima facie, there seems to be substance in the plea of the respondent that he may have been dispossessed during the pendency of the suit whether he was forcibly dispossessed during the pendency of the suit, as alleged by him, or he handed over the possession with consent, as argued by the learned counsel for the appellants in the High Court, however, is a question which would be decided by the trial Court and we refrain to decide it one way or the other at this stage. But the fact remains and the parties are also in agreement that the respondent lost possession of the land by consent or otherwise during the pendency of the suit. 11. It has been argued on behalf of the appellants that this case is hit by the doctrine of res judicata under section 11 of the Code of Civil Procedure and so no question of amendment of the plaint arises. The precise argument of the learned counsel for the appellants is: that the suit is not maintainable as the question of adverse possession had finally been ch'nched by the Supreme Court and, therefore, the whole exercise of issuance of an injunction and allowing amendment of the plaint would be an exercise in futility. The learned counsel for the appellants placed reliance on the case law reported as Muhammad Tufail v Alia Shabir (P.L.D. 1977 S.C. 220); andAzad Government of the State ofJammu and Kashmir v Kashmir Timber Corporation [PLD 1979 S.C.(AJ&K) 139]. 12. We have gone through the above cases. The cases have different facts and so have no or very little application to the issue involved in the present case. , 13. In the circumstances, the principal question posed and to be resolved is jas to whether the respondent-plaintiffs adverse possession which, prima facie, started in the year 1969 has been disturbed by the decree of the Supreme Court ; and the new suit is barred by the rule of res judicata on the basis of the decree of the Supreme Court. No doubt, it has been held in Mir Akbarali v. Abdul Aziz [ •(1920) 44 Bom. 934 ] that such a decree may disturb adverse possession but a different view has been taken by a Division Bench of the Punjab Chief Court in \Akbar v.Tabu [ (1914) 45 P.R. 1914 ] wherein it was laid down:- "a decree, not accompanied by actual effective assertion of rights and taking of possession of these rights, does not help to stop adverse possession running." A Division Bench of the Lahore High Court has also taken the same view in Hans Raj v. Maulu [ (1920) 63 I.C. 881 ]. Identical view was taken by Madras High Court in Puthia Valappil Ayissa v. Lakshmana Prabhu [ (1911) l'M.W.N. 207 ]. Similar view prevailed in Jaimni Das v. Phulla KJian (A.I.R. 1930 Lah. 472). It was observed in that case:- "It follows that the fact that the plaintiffs suit was dismissed by the High Court in 1922 on the ground that adverse possession only commenced to run in 1913 cannot help the defendants as they took no effective steps to stop the adverse possession running." 14. In view of the abovf, it would be bad to hold that due to the dismissal of the respondent's suit of adverse possession by the Supreme Court on the ground! that the suit was prematire as it was filed only four years after starting of adverse' possession, the period of adverse possession would stop running against the appellants. 15. As said elsewhere, there is neither a possessory decree in favour of the' appellants nor the appellants have so far moved any suit for possession. But even if there would have been a decree for possession unexecuted within the period of twelve years, the adverse possession would be complete and start running against such a decree holder and no valid defence could be taken that the defendants have' a decree for possession. We say so because adverse possession is a question of fact and it cannot be said that a decree which remained unexecuted for twelve years would dislodge a person's claim of adverse possession. In our view, the nature of the decree passed in a case cannot tend to displace a person in adverse possession or change the nature of his possession. Where a decree is for declaration or possession, it just puts emphasis on the fact that a particular person is hi adverse possession and the real owner is out of possession. In fact in such circumstances the fact of adverse possession becomes more pronounced after a decree. The shape of things can only be changed by actually dislodging the person in adverse possession by seeking execution. In the absence of any such steps on the part of the decree-holder, whether the decree be for possession or declaration, the adverse possession will continue. Akbaralli Mir Inayatalli v Abdul Ajiz Mirsaheb Jahagirdar (A.I.R.1920 Bom. 61) and Rukhmabai v. Ramchandra Vasudev Rotithor (A.I.R. 1921 Bom. 470), arc distinguishable in ihis respect. In the first case, i.e.Akbaralli Mir Inayatuili v Abdul Ajiz Mirsahcb Jahagirdar (A.I.R. 1920 Bom.61) it has been held that the period of adverse possession is calculated for the benefit of the party setting up adverse possession, and if a decree is passed against him then there is an end of that period, and he must, if he wishes to acquire a good title by adverse possession, ;l;»r' ? fresh after the decree. In Rukhmabai v. Ramch^idra Vasudev Roiilhor (A.I.R. 1921 Bom. 470) in the first instance it has been observed:- "If a decree-holder obtains possession of property about which a decree has been passed in his favour, his possession would be ascribed to the decree and the other party can turn him out if he can show that he has acquired a good title thereto against the world before the decree-holder enters into possession." It was also observed in thai case:- "When a decree has been passed against a person in possession directing him to give up possession to the successful party, and the former remains in possession waiting for execution, then it cannot be said that that party is holding adversely to the world, although all the time the period of limitation is running out against the successful decree-holder.One must This view also prevailed in Gunga Gobind Mundul v Collector of the 24 Per&mnahs [ (1866-67) 11 Moo Ind App 345 (PC) ] wherein it was observed: - "The title to sue for dispossession of the lands belongs, in such a case, to the owner whose property is encroached upon, and if he suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession.,..As between private owners contesting inter se !he title to the lands, the law has established a limitation of 12 years, after that time, it declares not simply that the remedy is barred, but that the title is extinct in favour of the possessor." In Fakirappa Jotappa Malemani v Ningappa Shidlingappa Matti (A.I.R. 1943 Bom. 265) it has been held:- "Section 28 only extinguishes the right and does not provide in terms in whom that right is to vest. But the title to immovable property cannot be left in the air and on extinguishment of the true owner's title, title must follow possessioa and vest in the trespasser who has got a title by adverse possession." In Rajendar Singh v Santa Singh (A.I.R. 1973 S.C. 2537), it was observed that adverse possession for over twelve years during the pendency of the earlier suit which was finally dismissed by the High Court would not be arrested and the doctrine of Us pendens in section 52 of the Transfer of Property Act would not apply. 17. There are some other authorities too which cover the point that a suit for declaration by a person in adverse possession for more than twelve years, is maintainable if the other person (owner) fails to take possession on the basis of a decree or omits to sue for possession within the stipulated period of twelve years from the date the hostile possession is set up. Reference may be made to only two authorities; Badri Chaudhuri v Harbans Jha (A.I.R. 1919 Pat. 447) and Fakirappa Jotappa Malemanir v Ningappa Shidlingappa Matti (A.I.R. 1943 Bom. 265). In the Patna authority it was held that a fraudulent transferor, continuing in possession for more than twelve years is entitled to declaration or recovery of possession even if fraud is carried out. 18. We think that it is now practically a settled law that if a person with title fails to sue for possession or execute the decree for possession or declaration which he has in his favour for twelve years, the person holding such a property adversely to the true owner for more than twelve years, after the decree orj dispossession of the owner, becomes full owner in extinguishing the title of the true owner. Whether such circumstances are made out in the present case is a question which we leave to be decided by the trial Court as each case is to be I decided and adjudged on its own facts. Whether a mere assertion of ownership of] land 1 in a judicial proceedings, which ex hypothesi was unfounded at the date when^ it was made, can convert the nature of the possession which, prima facie, was that ' of tenant-at-will into that of adverse possession is a question alien to the' controversial issue of adverse possession involved in this case. Therefore, we; cannot subscribe to the argument advanced by the learned counsel for the; defendants (appellants) that such assertion would change the nature of thej possession into that of adverse possession. We feel that if a person is found toj hold the land as tenant at the time he institutes the suit for adverse possession, the pendency of the suit in the Court for more than twelve years would not change the character of the possession as adverse, which was premature when the suit was filed. Even otherwise as said elsewhere, this question is alien to the fact of the present case because in the instant case it has been held by the Supreme Court that the suit of the respondent was premature inasmuch as the adverse possession, prima facie, started from the year 1969. There are some cases, for instance, Singaravelu Mudaliar v Chokka Mudaliar (A.I.R.1923 Mad. 88). (2)Akbar v Tabu(45 PR 1914), Hamraj v. Maulu (963 1C 881) and Muhammad Ibrahim v Shaida Muhammad (AIR 1930 Lah. 297) which may possibly be quoted in support of the submissions made by Raja Muhammad Akram Khan, the learned counsel for the respondent. The perusal of the aforesaid rulings, however, shows that these cases are distinguishable having different facts. They have no or very little similarity with the facts of the present case. The case law cited would not assist the respondent in determining the point involved in the present case. In the present case it is nobody's case that the respondent held the land as tenant when he instituted the suit. It was observed by the Supreme Court that he held the land Adversely to the true owners from the year 1969 and the suit was premature by :eight years. It cannot, therefore, be said that the assertion of ownership by the ; respondent on the basis of adverse possession in the previous suit was negatived jby the Supreme Court in saying that his possession was premature when the suit was instituted. 19. Sn view of the above, we are of the considered view that in those cases only where a person's claim of ownership in a judicial proceedings on the basis of adverse possession is held to be unfounded from the very date of the institution of .the suit; such a person cannot be allowed later on to change the character of the possession. On the other hand if the possession at the time of the institution of the suit is not permissive, the nature of the possession will continue to be so and the •limitation would not stop running against the true owner. 20. In the present case, the previous suit was instituted in the year 1973 and it was found by the Supreme Court that adverse possession had only started from |the year 1969. Thus, the adverse possession would start running against the true [owners and, prima facie, after twelve years it may mature into title. This view also [prevailed in Sarwar v Malik Hakim tOwn [PLD 1958 (P.W.) Lah. 568]. 21 The learned counsel for the appellants. Kh. Muhammad Saeed, also contended that the amendment application moved was belated one and, therefore, it would be considered to have been made mala fide. His case is that in the written statement filed on 12-7-1984 it was made clear by the appellants that the possession of the suit land was with them and even in the amendment application it is claimed by the respondent that the appellants had taken the possession forcibly as long as on 25-12-1983. On the aforesaid face the learned counsel made us to believe that the application was made belated in the day and cannot be allowed. 22. There is a host of case law on the point. The critical survey of the case law makes it clear that leave to amend the pleadings should always be granted at any stage in the proceedings but such amendment can only be allowed for resolution of the real question in controversy. There is no other embargo. out of the possession of the respondent during the pendency of the suit. Whether the possession was delivered to the appellants by the respondent himself or it was forcibly taken by them is a question on which we refrain to say anything and leave it to be decided by the trial Court. It is the exclusive function of the trial Judge to decide it. No doubt, issue No. 4, which reads:-- covers the controversy but we think that it would be but fair to strike a specific issue to the effect:— "If issue No. 4 is proved in negative, whether the possession of the land was forcibly taken by the appellants during the pendency of the suit?" The trial Court will decide this issue on the basis of the observations made above. In Riiju Harlndar Singh v. Shiv Rain (A.I.R. 1937 Lah. 602) it is said:- 1 Where a person has instituted a suit under O.21, R.63, Civil P.C., for a declaration of his title to certain property on the ground that a cloud has been cast on his title by a certain act, and if during the pendency of such suit he is wrongly dispossessed of the property, then it is his duty to protect himself from adverse possession either by amendment of his orieinal suit for declaration or by institution of a fresh suit even though the fresh suit would be decided after the decision of the first suit. If he takes no such steps within twelve years from the date of dispossession, the possession would be adverse and a decision in the declaratory suit in his favour would not affect the adverse possession." 24. The learned counsel for the respondent, Raja Muhammad Akram, in reply to the argument of the appellants relied on some judgments of various Courts to show that the question of limitation will not under the Code create any hurdle in allowing amendment if the application otherwise is in accordance with the provisions contained in Rule 1 of Order VI, Code of Civil Procedure, and for the justice of a case. 25. After giving our dispassionate thought to the arguments advanced at the bar we feel that generally delay alone in applying for amendment after expiry of the period of limitation is not a ground for refusing an amendment in the plaint. Each case, however, depends upon the circumstances that it carries. Be that as it may, delay alone in applying for amendment cannot be a determining factor for deciding the application under Order VI rule 17, Code of Civil Procedure. Use of expression "at any stage of proceedings" in rule 17 is not without significance. The word, "proceeding" is to be interpreted in a liberal manner so as to give the proper scope to the rule in accord with its purpose, including the appellate stage and that too upto the Supreme Court. 26. We feel that the above interpretation is in accord with the mandatory language used in Order VI rule 17 to the effect that "all such amendments shall be as may be necessary for the purpose of determining the real question in controversy". Therefore, our view is that once the Court decides that the amendment is necessary for the said purpose of determining the real question in controversy, the amendment is to be allowed. What has been stated above, however, is subject to a very important condition that the nature of the suit in so far as its cause of action is concerned, is not changed by the amendment. 27. Coming to the merits of the present case, as said in the application for amendment, the facts on which the respondent-plaintiff relied in the amendment application would not make any substantial change in the plaint. If it is held that the adverse possession has matured into title in the year 1983, then possession of the land can be restored to the plaintiff because the doctrine of lis pendens would apply with all force to the present case. 28. On the general question of technicalities of the civil procedure when they are pressed into service to thwart the intention of the law, it would be, better here to reproduce the thoughts of an eminent Judge of the Supreme Court of Pakistan. He observed:— "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take for the system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." (See Imtiaz Ahmad v. Ghulam All PLD 1963 S.C. 382). In view of the above we hold: (/) that the amendment was rightly allowed: (if) that the doctrine of res judicata cannot be attacted to non suit the respondent; and (///) that the suit as drafted is tenable. The appeal, thus, fails. In view of the intricate question of law, no order as to costs. (MBC) Appeal dismissed.

PLJ1990SC(AJK)11 PLJ1990SC(AJK)11 [Appellate Jurisdiction] Present: raja muhammad KiiURSiiiD kiian, CJ and abdul majecd mallick, J SHER ALAM and another—Appellants versus MIR ALAM KHAN and 4 others-Respondents Civil Appeal No. 3 of 1986, dismissed on 9.1.1989 [On appeal from judgment and decree of High Court dated 7.1.1985 and Civil Appeal No. 12 of 1984] Right of Prior Purchase Act- —-S.29 read with Limitation Act, 1908, Articles 10 and 120-Pre-emption-Suit for—Limitation for—Whether Article 120 of Limitation Act is applicable-­ Question of—Article 10 provides a period of one year to enforce a right of pre-emption-Article 10 is not applicable in this case possession of whole property having been transferred much earlier than transaction of sale in shape of decree in dispute-Section 29 of Act prescribes limitation of one year-Mutation of sale was attested on 18.3.1966 and suit was instituted on 17.8.1971--HeId: Learned Judge in High Court failed to apply his mind to text of Section 29 and fell into error by adverting to Article 120 of Limitation Act which is a residuary article—Held further: Limitation is to be reckoned under Section 29 of Right of Prior Purchase Act and not under Article 120 of Limitation Act-Appeal dismissed.[Pp.l2&13]A,B,C,D&E Kli. Muhammad Saccd, Advocate for Appellants. Sh. Abdul Aziz, Advocate for Respondent No. 1 Date of hearing: 9-1-1989. judgment Abdul Majeed Mallick, J.--The appeal is addressed against the Order of the High Court passed on January 7, 1985, whereby the suit for possession by pre­emption filed by the appellants, on reversing the findings of subordinate Courts, was dismissed for want of limitation. 2. The suit land measuring 15 kanals out of 19 kanals comprising survey No. 293 is situated in village Jaglari, Tehsil Bagh. It was in the ownership of Jang Khan and others. Mir Alam Khan respondent No. 1 brought a suit for declaration claiming his ownership by virtue of oral sale in his favour. The suit was instituted on May 28, 1963, in the Court of Sub-Judge Bagh, against Jang Khan, Ali Ahmed Khan, Nika, Resham Khan, Balour Khan, Msl. Rahim Jan and Hussain Khan. It was averred that the land was purchased by Mir Alam Khan on June 15, 1950, by oral sale for a sum of Rs. 500/-. He took possession of the land at the time of sale and was enjoying the same continuously, in his own right and title. Balour Khan admitted the suit on Septemcbcr 30, 1963, by receiving additional price in the sum of Rs.400/-. Jang Khan and Nika Khan also admitted the suit on November 2, 1963, on receipt of Rs. 400/- each. The claim of the plaintiffs with respect to the share of other defendants namely Msl. Rahim Jan and Hussain Khan was withdrawn and ex pane, order was passed against All Muhammad and Resham Khan on August 17,1965, when the suit was decreed in favour of Mir Alam Khan. Mutation on the basis of the decree was attested by the Revenue Officer, in favour of Mir Alam on March 18, 1966. 3. Slier Alam and Bashir Hussain instituted a suit for possession by pre emption by alleging the decree passed on August 17, 1965, as sale. It was averred that decree was secured in disguise of declaration to defeat their prior right of purchase. The suit was instituted on August 17, 1971, i.e. 6 years after passing of the decree. Mir Alam repudiated the claim of prc-cmplors and pleaded limitation to defeat the suit. The trial Court decreed the suit on April 29, 1981. The finding of the trial court was upheld by the Additional District Judge Bagh by his order passed on March 3, 1984. In second appeal, however, the learned Judge in the High Court, dismissed the suit for want of limitation. It was held that in absence of registered deed of sale and passing of possession prior to the transaction of sale, the limitation would run from the date of admission of the suit and not from the dale of passing of the decree. In view of the learned Judge the limitation of 6 years described under Article 120 of the Limitation Act. was available to the precmptors. On this it was found that the suit was beyond time as it was instituted after more than 6 years from the dale of admission of the suil. The appellants and the respondents both disagreed with the finding of the learned Judge in ihe High Court as in view of the appellants limitation started running from the dale of decree as such the suit was within time, under the provisions of Article 120 of Ihe Limitation Act. The counter stand was that ihe period of limitalion was one year as contemplated under Section 29 of the Right of Prior Purchase Act and it commenced from the dale of attestation of mutation in the revenue register, maintained under law. 4. The proposition raised before us, has been reduced lo ihe point of limitalion applicable to pre-emption suil. 5. Seclion 29 of the Right of Prior Purchase Act, postulates thai in any case not porvidcd for by Article 10 of 2nd Schedule of ihe Limitation Act of the Stale, the period of limitation in a suit to enforce a right of prior purchase shall be one year in case of sale of agricultural land or village immovable propcrty:-- (/) from ihe date of attestation (if any) of the sale bv a Revenue Officer having jurisdiction in Ihe register of mutations maintained under the Land Revenue Act; (//) from the dale on which ihe vendee takes under sale physical possession of an}' part of such land or property whichever date shall be earlier. It is cvidcnl that Ihe provisions of Seclion 29 envisage limitation under Article 10 of ihe Limitation Act, failing which limitation is determined under its own provision. 6. Article 10 provides period of one year to enforce a right of pre-emption. The limitation runs from ihe lime when the purchaser takes, under the sale sought to be impeached, 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. The provisions of Article 10 are not attracted in the present case as the physical possession of whole of the propoerty, passed on much earlier from the time of the transaction of sale made in the shape of decree in dispute. This factual aspect is undisputed. It is also admitted that the sale of land was not, made through a registered instrument. 7. In absence of application of provisions of Article 10 we have to revert to the provisions of Section 29 of the Right of Prior Purchase Act. It prescribes the limitation as one year. The limitation would run from:— (/) the date of attestation of the sale by competent Revenue Officer in the Register of Mutations, maintained under law; or (//) the date on which the vendee takes under sale, physical possession of any part of the land or property, whichever is earlier. Here in this case it is already held that physical possession of land, preceded the transaction of sale. Therefore, the first qualification pertaining to date of attestation of mutation alone is enforceable to the case. It is on record that vide Ex. DG the mutation of sale of the suit land was attested in the Resgister of Mutations by the Revenue Officer Bagh, on March 18, 1966. Thus state of fact is unrebutted. This in the light of the provisions of Section 29 in present case limitation commenced from the date of attestation of mutation. The period of limitation was obviously one year. The suit was instituted on August 17, 1971. It was patently beyond time. 8. The learned Judge in the High Court failed to apply his mind to the text of Section 29 and fell in error by analysing the propositions of limitation by adverting to Article 120 of the Limitation Act. Article 120 is a residuary article. Its provisions can be invoked in aid of the proposition where no other definite provision of law is- attracted. 9. The qualification or conditions regulating commencement of time of limitation, as prescribed under Article 10 and Section 29 indicate that the legislature prescribed such conditions to afford adequate notice of sale to all concerned. The delivery of physical possession to the vendee, registration of deed and attestation of mutations are constructive notice to the concerned pre-emptors. Where these qualifications are found absent in that case it is permissible to resort to the residuary provisions of Article 120 of Limitation Act, wherein the limitation was 6 years from the time, when the cause of action accrued. In the present case the provisions of Section 29 of the Right of Prior Purchase Act, are attracted as the mutation on the basis of sale by a decree was duly attested by the Revenue Officer Bagh where the land is situate. Therefore, the limitation is to be reckoned under the provisions of Section 29 and not under Article 120 of the Limitation Act. The controversy is resolved accordingly. There is no force in the appeal, it is, therefore, dismissed with costs. (MCB) Appeal dismissed.

PLJ 1990 SC (AJK) 14 PLJ 1990 SC (AJK) 14 [Review Jurisdiction] Present: raja muhammad khurshid khan, CJ MUHAMMAD AKRAM and 3 others-Petitioners versus Mst. TAZEEM AKHTAR-Respondent Civil Review Petition No 3 of 1989, dismissed on 21-1-1990 [In the matter of review of judgment of Supreme Court, dated 1-4-1989 in Civil Appeal No. 22 of 1988] Supreme Court Rules— —O.XI R.l-Appeal to Supreme Court-Decision by single Judge-Whether no judgment in eye of law-Question of-Contention that a single Judge cannot be considered to be Supreme Court within meaning of definition of Court incorporated in Azad Jammu & Kashmir Interim Constitution Act, 1974—Point now agitated has neither been taken in appeal nor it is clearly mentioned in review petition-Held: Review, of impugned judgment cannot be allowed on basis of a point not agitated in appeal-Held further: Argument that judgment recorded by a single Judge cannot be considered to be a judgment of Supreme Court, has no substance and stands repelled. [P. 15]A,B&C 1978 SCMR 294,1978 SCMR 449 and 1979 SCMR 241 rel. M/s Muhammad Siddique, Noonil Amin and AH Muhammad, Advocates for Petitioners. M/s ImdadAli and Muhammad Taj, Advocates for Respondents. Date of hearing: 21-1-1990. order Relevant facts giving rise to this review against the judgment of this Court passed on 1.4.1989 are as under: Muhammad Akram and others, petitioners herein, purchased the suit land situate in the area of village Bhalote Tehsi Mirpur from one Abdul Majid by way of sale-deed executed and registered on January 7, 1984. Mst. Tazeem Akhter, non-petitioner herein, wife of vendor sought to pre-empt the sale. Muhammad Akram and others vendor-petitioners in their written statement repudiated the claim put forth by Mst. Tazeem Akhter. Amongst other grounds, they sought rejection of the suit on the plea that sale in their favour is exempted from the mischief of pre-emption by virtue of notification issued by the Government in exercise of its powers under section 6(2) of the Jammu and Kashmir Right of Prior Purchase Act. 2. The learned Sub-Judge as well as the learned District Judge on first appeal overruled the aforesaid objection of the petitioners as in their view they failed to prove the relevant issues satisfactorily. Resultantly Mst. Tazeem Akhter's suit was decreed in. her favour. In second appeal, however, the learned single Judge in the High Court vide judgment dated 11.4.1987, found that the suit land falls within the municipal limits of Mirpur town and is not hit by the mischief of pre-emption law. This judgment of the High Court was upset by me sitting alone on 1.4.1989. Resultantly the judgment of the District Judge dated 30.11.1986 and that of the trial Judge was restored. It may be observed that under Order XI rule 1 proviso (ii) of the Supreme Court Rules, I heard the appeal alone as none of the sitting Judges were competent to associate themselves as member of the Court. 3. Through this review petition the petitioners seek reconsideration of the aforesaid judgment of the Supreme Court mainly on the ground that a single Judge cannot be considered to be the Supreme Court within the meaning of the definition of the Court incorporated in Azad Jammu and Kashmir Interim Constitution Act 1974. On the above premises, he contended that the impugned judgment is no judgment in the eye of law and needs to be recalled by way of review. No other point was argued. 4. I have considered the arguments advanced at the bar and I am of the considered view that it has no substance to be accepted for regular hearing. In the instant case the point now agitated has neither been taken in the appeal nor I find j any clear mention of it in the review petition. In the circumstances the learned counsel cannot be allowed to have a review of the impugned judgment on the basis of a point not agitated in the appeal. 'Mehr KJiun v. Mst. Razia Begum etc.' (19~8 SCMR 294). Ri::-an Co-operative Society Ltd. v. Custodian of Evacuee Propcry and others (1978 SCMR 449) and 'Wahajuddin and another v. Razia Bcgiim Etc.' (1979 SCMR 241) contain identical statement of law. It has been observed in these cases that if a point has not been taken during the course of | arguments in appeal the same cannot be allowed to be agitated and argued in | support of the review petition. Since the above proposition is settled I see no J reason to have a different view. 5. Mr. Noor-ul-Amin, the learned counsel for the petitioners, was unable to cite any case law to contradict the aforesaid proposition of law. Even otherwise since the Supreme Court Rules are made under section 42-A of the Constitution Act and since these rules are not contrary to any provision of the Constitution, they have more or less the same force a constitutional provision has. Therefore, to me the argument that the judgment recorded by a single Judge cannot be considered to be a judgment of the Supreme Court has no substance and stands repelled. For the foregoing reasons, I disallow the review petition with costs. (MBC) Petition dismissed.

PLJ 1990 SC (AJK) 15 PLJ 1990 SC (AJK) 15 [Appellate Jurisdiction] Present: raja muhammad khurshid khan, CJ and sardar said muhammad khan, J MUHAMMAD IQBAL--Appellant versus THE STATE-Respondent Criminal Appeal No. 23 of 1989, dismissed on 6-12-1989. [On appeal from order of Shariat Court , dated 16-11-1989 in Criminal Revision No 88 of 1989.] Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —-Ss. 10 &18 read with Criminal Procedure Code, 1898, S. 497-Attcmpt to commit zina—Offence of—Bail petition—Rejection of—Challenge to—Each criminal case has its own peculiar circumstances and dictum given in one case does not necessarily constitute an authority for another—Appellant and Naseer Begum were found naked who were sharing same room when caught red-handed—Besides complainant, they were seen by another person-­Scrapings of bed-sheet were found stained with semen by Chemical Examiner-Held: Discretion exercised by Shariat Court cannot be regarded as violative of any settled principle of law on subject-Appeal dismissed. [P. 19JA&B Ch. Muhammad Sharif Ta/iq, Advocate for Appellant. Mr Manzoor Hussain Gillani, Advocate General for State. Date of hearing: 6-12-1989. judgment Sardar Said Muhammad khan, J.-This appeal has been directed against the order of the Shariat Court dated 16.11.1989, whereby the revision petition filed by the appellant, herein, was dismissed and he was refused bail. The brief facts giving rise to the present appeal are that a case was registered against the appellant, herein, and some others, under Section 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter shall be referred to as Ordinance) at Police Station Fatehpur Thakyal. The allegation against the appellant is that he had developed illicit relations with Mst. Naseer Begum, who was a married woman and had six children. Some time prior to the incident in question she had left the house of her husband and was putting up with her father. During the night falling between 18/19-10-1989, Muhammad Ashraf, complainant, who is closely related to Mst. Naseer Begum saw Pick-up No.CH- 2118 parked near the house of the father of Mst. Naseer Begum and apprehended some foul-play; two persons, Fazal Karim and Muhammad Gulzar, were standing near the said Pick-up. Consequently, Muhammad Ashraf, complainant, along with one Mahboob Alain went to the house of the father of Mst. Naseer Begum, who is related to the complainant as uncle and father-in-law. He inquired from his uncle, the father of Mst. Naseer Begum about the whereabouts of Mst. Naseer Begum and was told that she was sleeping alone in the room. The complainant went to the said room and asked Mst. Naseer Begum to open the door, but when she did not oblige him, he forcibly opened the door and on entering the room saw the appellant and Mst. Naseer Begum in naked state and sharing a common bed. He lodged F.I.R. at the Police Station and a case was registered against the appellant, and two others who were standing near the Pick-up. The appellant sought bail first from the Tehsil Criminal Court, Kotli, and then from the District Criminal Court, but he was refused bail. Consequently, he filed a revision petition in the Shariat Court against the order of the District Criminal Court but the same was also dismissed. We have heard the arguments advanced at the Bar. Mr. Sharif Tariq, the learned counsel for the appellant, has vehemently argued that a false case has been fabricated against the appellant because the complainant was inimical to him due to the fact that the younger sister of Mst. Naseer Begum was betrothed to Muhammad Iqbal, appellant, and the complainant was against the marriage of the younger sister of Mst. Naseer Begum with the appellant. He has argued that the prosecution story is unnatural because it is improbable that the father of Mst. Naseer Begum was sleeping in verandah of the house and the appellant was committing adultery with his connivance and in his presence. He has further contended that the medical report negatived the stand of the prosecution that in fact any adultery was committed by the appellant with Mst. Naseer Begum. His contention is that medical report shows that no sexual intercourse was committed with Mst. Naseer Begum, three days prior to the date when medical opinion was given by the medical officer. The learned counsel has further submitted that in any case maximum punishment prescribed under Section 10 of the Ordinance is ten years and in case of attempt to commit the said offence, it is further reduced to a period of five years. Thus, the quantum of punishment, according to the learned counsel, constitute a valid reason for releasing the accused/appellant on bail. The learned counsel for the appellant has cited some authorities in support of his contention that in identical cases the accused persons were allowed bail. In a case Tariq Mahmood v. TJie State (1985 P.Cr.L.C 1335), the bail was allowed in a case of rape on the ground that the girl was of easy virtue and there were circumstances which tended to show that implication of the accused persons was not free from doubt. It was observed in the case that although the zina was most delestible offence in Muslim Society yet there were no hard and fast rules that bail should be refused in all cases. In Sarkar v. Muhammad Yimus (1981 P.Cr.L.J. 971), the appeal filed by the State against the acquittal of the accused was dismissed in li/nine on the ground that there was no evidence on the record that the accused had either enticed away the woman with the intent to have illicit intercourse or committed adultery with her. In Muhammad Nawaz v. Tlie State (P.L.D. 1983 F.S.C. 522), the accused was acquitted of an offence under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that although the accused and the woman were living in the same house together, yet there was no evidence that they were living as husband and wife. Therefore, it was opined that conviction and sentence cannot be sustained merely on suspicion. In Riaz v. Vie State (1986 P.Cr.L.J. 2878), the bail under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance was allowed to an accused of 17 years old who was charged for attempting to commit zina with woman of 45 years. It was opined that as the offence was bailable, the accused was being released on bail. No reference was made to any provision of law under which the offence falling under Section 18 of the said Ordinance was bailable. In Liaqat All v. Vie State (1988 P.Cr.L.J. 1789), the bail was allowed in offence under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that there was no explanation for lodging first information report after delay and the allegation that zina was committed after breaking string of the shalwar was not reliable because no such broken string and shalwar were produced. There were no eye-witnesses of the occurrence. In Mst. Nur Bakhat v. Tlie State (1988 P.Cr.L.J.1968), the lady accused was granted bail in case under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that she had a suckling baby of one year. In Tabarak Ullah v. Tlie State (1988 P.Cr.L.J. 2168), bail was granted in a case falling under the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that originally no first information report was received against the accused, but only a co-accused allegedly disclosed about the incident. The statement of the co-accused was held to be unreliable as being a statement of an accomplice. In Ali Muhammad v. Tlie State (1987 P.Cr.L.J. 1021), the accused was released on bail under the offence falling under Section 10(2) 13,14 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, on the ground that the wife had left the house of the husband four months prior to the registration of the case and started living with her father, who was running a brothel in his house. It was opined that there existed circumstances that the case was result of enmity between the parties. Controverting the arguments advanced by the counsel for the appellant Mr. Manzoor Hussain Gillani, the learned Advocate General, has submitted that the authorities cited by the learned counsel for the appellant have no bearing on the facts of the case in hand. He has argued that in bail matters each case is to be decided in view of its peculiar circumstances. He has submitted that the offence falling under Sections 10/18 of the Ordinance or an attempt to commit the said offence is not bailable and as such the appellant is not entitled to bail as of right. He has further contended that the medical report does not negative the case because the Lady Doctor, who had examined Mst. Naseer Begum gave the medical opinion about 10/12 days after the examination of Mst. Naseer Begum and it is recorded in the said report that no sexual intercourse was committed with Mst. Naseer Begum atleast within three days, before preparing the medical report. The learned Advocate General maintained that it is not the prosecution case that there was any sexual intercourse with Mst. Naseer Begum after the registration of the case. He has further contended that the opinion of the Chemical Examiner shows that scrapings from the bed-sheet, on which the accused persons were found in compromising position, were found to have stained with semen. This, according to the learned Advocate General, supports the prosecution case. He has submitted that probably the report of the Chemical Examiner was not on the file when the Shariat Court dismissed the revision petition and it was for this reason that the order passed by the Shariat Court makes no reference to the report of the Chemical Examiner. The learned Advocate General has argued that the appellant and Mst. Naseer Begum were found naked in the room where there was only one bed. Thus, there is strong presumption that he was committing adultery. The complainant is very close relative of Mst. Naseer Begum and it cannot be believed that he stigmatised the honour of his uncle and father-in-law along with the honour of Mst. Naseer Begum. A report which tends to bring a bad name to the Lmily of the complainant cannot be regarded as false on the preposterous suggestion that the case might have been concocted merely because the appellant was given the hand of the younger sister of Mst. Naseer Begum against the wishes of the complainant. He has further contended that in an offence of zina in a Muslim society, particularly when we are taking steps for promulgating the Shariat Laws in the State, is a very detestible offence and strict view should be taken in the matter. A lenient view, the learned Advocate General maintained, is tantamount to encourage the repetition of the offence of zina. He has also argued that a case under the provisions of Offence of Zina (Enforcement of Hudood) Ordinance had already been registered against the appellant when the occurrence in question took place. Thus, the gravity of the offence has been aggravated. We have given our due consideration to the arguments advanced at the Bar. The authorities cited by the learned counsel for the appellant are not applicable to the facts of the case in hand. Each criminal case has its own peculiar circumstances and the dictum given in one case does not necessarily constitute an authority for another. In the instant case the appellant and Mst. Naseer Begum both were found naked who were sharing the same room when they were caught red handed. Apart from the complainant they were seen in the room by Mahboob Alam. The scrapings of the bed-sheet sent to the Chemical Examiner were found stained with semen. The complainant and Mst. Naseer Begum are closely related. Therefore, we are not impressed by the argument that the complainant stigmatised his family honour by concocting a false case against the appellant. As has already been pointed out, the complainant is not only nephew of the father of Mst. Naseer Begum but he is also married to the sister of Mst. Naseer Begum. Therefore, taking into consideration the overall circumstances of the case we are of the view that the discretion exercised by the Shariat Court cannot be regarded as violative of any settled principle of law on the subject. Thus, finding no force in this appeal it is hereby dismissed. It may be observed that this order will not debar the appellant from approaching the trial B Court, if so advised, at a later stage for his bail. (MBC) Appeal dismissed

PLJ 1990 SC (AJK) 19 PLJ 1990 SC (AJK) 19 [Appellate Jurisdiction] Present: raja muhammad KnuRSHio khan CJ and basharat ahmad shaikh, J MEHTAB KHAN-Appellant versus THE STATE-Respondent Criminal Appeal No. 26 of 1989, dismissed on, 12.3.1990 [On appeal from order of Azad Jammu and Kashmir High Court, dated 7.4.1989 in Writ Petition No. 4 of 1988.] Death Sentence— —Death sentence—Non-execution of—Effect of—Contention that machinery of State having failed to put into effect sentence of death imposed by Supreme Court and appellant having undergone imprisonment for life (14 years), death sentence cannot be executed—No law has been cited in support of this contention—Held: There is no law which lays down that if sentence of death is not executed within a specified time, it becomes un-enforceable-Appeal dismissed. [P. ]A,B&C. PLJ 1985 SC (AJK) 7, PLD 1952 Lah. 587 and PLD 1951 FC 142 ref. Kli. Muhammad Saeed, Advocate for Appellant. Syed Manzoor Hussain Gillani, Advocate General for the State. Raja Muhammad HanifKlwn, Advocate for the Complainant. judgment Basharat Ahmad Shaikh, J.--This appeal which is of an unusual nature has been filed by a convict who was sentenced to death more than ten years ago but the sentence has not so far been executed. The convict now claims that he has been in imprisonment for a long time and the sentence of death awarded to him has become un-executable in law. A writ petition filed by him in the High Court has been dismissed and he has now come up in appeal with leave of the Court. The facts necessary for disposal of this appeal are that Mehtab Khan, the appellant before us, and four others were tried by 'Zilaee Adalat' Poonch under sections 5 and 15 of the Islami Tazeerati Qawaneen Nafaz Act read with sections 302, 307, 326, 341 and 148/149 of the Penal Code. On 17-2-1976 the trial Court found all of them guilty under different sections and Mehtab Khan was awarded the sentence of death under section 5 of the Islami Tazeerati Qawaneen Nafaz Act (hereinafter to be called the Islamic Act) and a fine of Rs. 500/= under section 15 of the same Act. On an appeal taken to the High Court the four other accused were acquitted while the sentence of death awarded to the appellant was converted into transportation for life. The fine was however increased from Rs. 500/= to Rs. 5,000/ = . This Court, on 17-9-1978, accepted the appeal-Hied by the State and restored the sentence of death awarded to the appellant by the 'Zilaee Adalat'. This sentence, as mentioned elsewhere, has not been so far executed. The appellant filed a writ petition in the Azad Jammu and Kashmir High Court on 31-1-1988. He prayed that writ of prohibition may be issued against the State to refrain it from taking any action in connection with the execution of the death sentence at such a belated stage. He attached with this writ petition a certificate issued by the Superintendent Central Jail Muzaffarabad on 27th January 1988 to the effect that Mehtab Khan had undergone actual imprisonment of 11 years 10 months and 13 days and if to it are added the remissions earned by him during his imprisonment the total imprisonment undergone by him comes to 18 years 6 months and 24 days. It may be mentioned here that in Azad Jammu and Kashmir transportation for life for the purposes of computation is fixed at 14 years under section 57 of the Penal Code. Based on this certificate it was urged by MelHab Khan that he had already undergone the sentence of transportation for life and since these two punishments cannot be imposed for one offence, it would be against the demands of justice if the death sentence is executed on him. He also submitted in the writ petition that due to inordinate delay in execution of the sentence and also in the light of sentence passed by the High Court, he gained the expectation of life and as such sentence of death could not be executed now. He also pleaded the fact the he had been undergoing the agony of the fear of death for a long time as a ground in support of his prayer. A learned single Judge in the High Court dismissed the writ petition in limine on 17th of April, 1939. The learned Judge found no substance in the writ petition because he was of the view that to issue directions prayed for would tantamount to sitting in appeal on the judgment of the Supreme Court. The learned Judge also observed that the learned counsel appearing for Mehtab Khan could not satisfy him that in cases of conviction awarded under the Islamic Act sentences could be commuted by the State. Kh. Muhammad Saeed, the learned counsel appearing for Mehtab Khan, appellant, contended that the view taken by the learned Judge in the High Court that the acceptance of the writ petition would tantamount to sitting in appeal on the judgment of the Supreme Court is not correct because ihe grounds urged in the petition filed in the Hitzh Court had not been considered by this Court and the factor? on v.hieh the writ was based came in existence many years subsequent to the decision of this C'ourt passed in 1978. The learned counsel contended that deia\ in execution of sentence is usually disapproved by the Superior Courts. In this connection he referred Intizam Hussain v. The Crown (PLD 1952 bah. 587) and Eid Mali . The Stale [PLJ 1985 S.C. (AJK) 7J. Mr. Man/oor Hussain Gillani, the learned Advocate General, submitted that the High Court was not authorised to issue a writ in the case because a writ petition cannot be based on the mere ground of interest of justice when support could not be drawn from a legal provision. He submitted that a mercy petition filed by the appellant had been dismissed on 16th of April, 1979. The appellant also moved a Shariat petition which was rejected by the Shariat Court and an appeal brought to this Court against the order of the Shariat Court was also dismissed. He submitted that about two years have also been consumed in the disposal of the writ petition in the High Court and hearing of the appeal in this Court. The learned Advocate General contended that the frivolous proceedings initiated from time to time by the appellant were mainly responsible for the delay in execution of his sentence. Raja Muhammad Hanif Khan, the learned counsel on behalf of the complainant, brought to our notice the fact that his client, Muhammad Arif, a son of the deceased in the case, had filed a writ petition in the High Court seeking a direction to the State that the sentence of death in respect of Mehtab Khan may be executed. We cannot but regret that a situation has arisen in which machinery of the State has failed to put into effect the sentence imposed by this Court with the result that the convict now raises the point that he has undergone imprisonment for life which was not awarded to him while the sentence awarded by the Court still remains un-executed. However, we have no doubt- that the writ petition filed by the appellant has been rightly dismissed by the High Court. Under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act a writ of prohibition. which has been prayed for by the appellant, can only be issued to a person performing functions in connection with the affairs of Azad Jammu and Kashmir to refrain him from doing that which he is not permitted by law to do. The contention of the appellant is that it will be neither legal nor just to execute the sentence of death at this belated stage but no law has been cited in support of this contention. In order to succeed the appellant had to show that if not forbidden the State would be doing an act without jurisdiction or in violation of law. But there is no law which lays down that if a sentence of death is not executed within a specified time it becomes un-enforceable. In fact if the sentence of death is i carried out it would be in obedience to law and not violative of it. We are of the view that what the appellant is attempting to seek cannot be given to him by a Court of law. That comes within the ambit of mercy with which Courts have nothing to do. Mercy is the prerogative of the executive which alone can consider the grounds urged by the appellant in the light of the law, If approached. So far as this Court is concerned, no case has been made out for interference in the order of the High Court. With the above observations, the appeal is dismissed. (MBC) Appeal dismissed.

PLJ 1990 SC (AJK) 22 PLJ 1990 SC (AJK) 22 [Appellate Jurisdiction] Present: raja muhammad khurshid kjian CJ, sardar said muhammad khan, sardar muhammad ashraf khan, and basharat ahmad shaikh, JJ NOOR HUSSAIN-Appellant versus ALI GOHAR and another-Respondents Civil Appeal No 17/MZD of 1989, dismissed on 3-3-1990 Right of Prior Purchase Act— —S. 21(4)-Security bond of Zar-i-Panjum-Non-filing of-Extension of time-­ Security bond filed within extended period-Whether suit was liable to dismissal—Question of--Order of trial Court did not require plaintiff to file security bond before next date but it said that he could do so uptil or on next date-Time when order was recorded in 26th April is not known but possibility cannot be ruled out that case might have been called in morning-In any case, there was still time for filing security bond on that day—Court could not have passed order for rejection of plaint on 26th April when it extended time—Held: High Court was right in observing that if order granting extension is set aside, it would amount to penalising plaintiff for an act of Court—Appeal dismissed. [P.26&27JA&B PLJ 1981 Lahore 478 and AIR 1923 Lahore 643 dlst. PLD 1982 SC (AJ&K) 65, PLD 1972 SC 69, PLD 1974 SC 134 and 19S6 SCMR 687 ref. Mr. Giuliani Mustafa Mughal, Advocate for Appellant. Kh. Shahad Ahmad, Advocate for Respondent No 1. judgment Basharat Ahmad Shaikh, J.— Respondent Ali Gohar instituted a pre­ emption suit to pre-empt the sale of land in dispute made by proformarespondent Punoo in favour of appellant Noor Hussain. On 25th of March 1986 plaintiff Ali Gohar was directed to file security bond equal to the sale price on or uptill the next date of hearing which was set down for 26th of April 1986. When the case was called on for hearing on 26th April no security bond was shown to have been filed. The learned Addl. Sub-Judge Muzaflarabad passed (he order thai i[ may be done wnhm one week otherwise proper order would be passed. The time of movinu the application is not known but on the same day defendanl Noor Hussain moved an application that since the Court order had not been complied wi;h the suit rnav be dismissed. This application was placed on the file but no order w ti s passed. The security bond was thereafter filed on 30th of April 1986, within the extended time allowed by the Court. The order passed on 26th of April 1986 by which further time was allowed for filing of the bond was challenged by defendanl Noor Hussain through a revision petition filed in the High Court. He complained that the order granting extension in time was not passed by the Presiding Officer himself as it was recorded in the hand of a clerk and was subsequently signed mechanically by the learned Add!. Sub-Judge. His other and more formidable objection was that period was extended without a request by the pre-emptor and that also without any cause. The order was worded as follows:-- A learned ludiiL 1 m ihe Hiizh Court took note oi the aforementioned objections and came to the conclusion that the discretion vested in the Court had not been exercised in "]udicial lashion" as the order of 26th April had been passed without applying mind lo the facts of the case. The learned Judge also took note of a submission made by the learned counsel for the pre-emplor that his client \as out of the country and it was due to this reason that he could not furnish the security bond within the time fixed by the Court and observed that this fact .should have been brought to the notice of the trial Court and if sufficiently established the trial Court could have been in a position lo uphold the explanation. The learned Judge, therefore, thought that the only reasonable and just solution was to remand the case for fresh decision which was accordingly ordered. After receiving the file from the High Court the trial Court did not ask the parties it) lead evidence and proceeded to decide ihe matter alter hearing arguments of the two sides. When arguments were heard on 22nd of November 1986 an application was moved on behalf of Ali Gohar plaintiff which was accompanied by an affidavit sworn by Ali Gohar himself. This application does not find mention in the interlocutory order recorded on 22-11-1986 and it appears that it was filed after the conclusion of arguments. In this application as well as the affidavit it is stated that the security bond could not be filed because the plaintiff had gone out of the country. The Learned Addl. Sub-Judge Muzaffarabad by his order passed on 29-11-1986 held that there was no sufficient cause for granting extension for filing of the security bond. He observed that the mere statement that the plaintiff had gone out of the country did not constitute a valid reason for granting extension unless it was established that from 25th of March, the date on which order for furnishing of security was recorded, to 22nd of Novcmber(?), the date on which application for extension was made, the plaintiff had been out of the country. Consequently the suit was dismissed for non-filing of the security bond within lime. Ali Gohar filed an appeal before the learned District Judge Muzaffarabad who accepted the appeal and held that the plaintiff had not been guilty of any negligence for which he could be penalised. The learned District Judge also observed that verbal prayer for extension had been made and accepted on 26th of April and the security bond had been furnished within the extended time. It may at once be noted here that the observation made by the learned District Judge that prayer had been made for extension of time is not borne out from the record as no such event is incorporated in the order of 26th of April. Moor Hussain, the vendee, filed appeal in the High Court of Azad Jammu and Kashmir wherein it was submitted that there was neither an oral nor a written prayer for extension of time and in fact there was no valid reason for which extension could be granted in the case. He raised the plea that the failure of the plaintiff to file security bond within time had created a valuable right in the defendant which should not have been taken away as the provisions of Right of the Prior Purchase Act have to be strictly complied with. The appeal was heard by a learned single Judge who dismissed the appeal by a detailed order recorded on 30th of October and upheld the order of the learned District Judge. The learned Judge formed the view that from the plain reading of the order passed on 25th of March it became clear that the plaintiff-pre-emptor had the whole of 26th day of April available to him for filing the requisite bond. Therefore, according to the learned Judge, the Trial Court could not have dismissed the suit as no failure had taken place and the course open for the trial Court was to fix the case on the following day or to any other dale without extending the period and then on that day the case could have been dismissed. The trial Court instead extended the date for filing of the security bond and fixed the case for hearing on llth of May. The learned Judge in the High Court was of the view that an irregularity had been committed by the trial Court by not allowing the plainliff-pre-emptor the full lime which had been fixed earlier and the plaintiff could not therefore be penalised for the act of the Court or any of its staff members. It was also noted that under sub­ section (4) of section 21 of the Right of Prior Purchase Act the Court is vested with the jurisdiction to extend the period even without a prayer from the plaintiff. Seen in light of the facts of the case the learned Judge in the High Court held that the refusal lo condone I he delay of 3/4 days was not a proper exercise of discretion vested in the trial Court. Sub-section (4) mentioned above runs as follows:- "If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under sub-section (1) or (2) his plaint shall be rejected or his appeal dismissed as the case may be". Leave was granted to Noor Hussain, the vendee-defendant, to examine the correctness of the view taken by the High Court. Appearing for him Mr. Ghulam Mustafa Mughal, Advocate, pleaded with vehemence that even if it is accepted that the whole of 26th day of April was available to the plaintiff default even then stood committed because the security bond was not filed on that date but was filed on 30th of April. His contention was that the plaintiff did not avail of the lime made available to him and the order passed on 26th April has to be adjudged by keeping in view the principle thai when a discretion is vested in a Court of law it has to be exercised judicially. He submitled thai Ihe powers of extension available to a civil Court could be exercised with or without an application but that did not mean that when the legislature \ested this power in the civil Court it visualised thai il would be open for the Court to exercise this power without a cogent reason. He relied on a judgment of this Court reported as 'Faqir Muhammad vs. Mulwali' (PLD 1982 SC A.J&K 55) to contend that a Court cannot act mechanically while extending time fixed for filing of security bond and time can be extended if strong circumstances arc shown to entitle the plaintiff to such indulgence. He also placed reliance on a case reported as \ici: Muhammad KJian vs. Mian Fa:al Raqib' (PLD 1974 SC 134) in support of his submission thai extension of time has to be made by an express order after application of the mind to the circumstances necessitating extension. The learned counsel also submitted in light of this decision that failure of the plaintiff to comply with the order for filing of security bond a right accrues in favour ol the vendee to have the plaint rejected. The learned counsel submitted that the order ol the Court passed on 26th of April was a cryptic order which did not contain any reason for extension. The learned counsel also contended that after the order of 26th April was set aside by the High Court in the previous round no ground was disclosed on the basis of which extension could be granted. The application and the affidavit mentioned elsewhere were filed after hearing of the arguments and therefore could not be made use because the same were filed behind the back of Ihe defendant. Mr. Ghulam Mustafa Mughal also submitted that in any case the reason that the plaintiff had gone abroad was a bare siatcment which could not have the effect of proving the fact of absence from Pakistan during the total period under consideration. Mr. Ghulam Mustafa Mughal also relied on 'Hadayat U/lali vs. Murad All' (PLD 1972 SC 69) in support of his contention that lime for filing of security bond can be extended only where justice so demands. It was held in that case that power of extension is a discretionary power but it was to be exercised upon sound judicial principles. The learned counsel also relied on 'AJirza Ghulam Hussain vs. Muhammad Bashir' (PLJ 1981 Lahore 478) and 'Ram Rattan vs. Rajaram' (A.I.R. 1923 Lahore 643). The learned counsel for the respondent, Kh. Shahad Ahmad submitted that the learned Judge in the High Court has rightly analysed the facts of the case and particularly the fact that the whole of 26th of April being available to the plaintiff, the Court itself was responsible for interrupting this period. The learned counsel contended that the act of the Court itself constituted a valid reason why extension should have been granted. He submitted that although the reasons for granting extension are not recorded in the order of the trial Court but the justification could be gathered from the record, as has been rightly done by the High Court. The learned counsel also contended that recording of reasons was not a requirement of the relevant provision of law. Kh. Shahad Ahmad took the position that no right had accrued to the defendant when the trial Court passed the order on 26th April because the time was extended before original time had expired. According to him a right can only be said to have accrued to the defendant if no extension had been granted by the Court within time. Kh. Shahad Ahmad relied on the following cases:— 1. 'Muhammad Ha\at vs. Ahmad Yar' (PLD 1986 Lahore 270). 2. '//. Raza Khan \s.Awal Klian etc' (PLJ 1983 Peshawar 8). 3. 'Khnda Bakhsh vs. Sultan Muhammad and another' (1985 SCMR 192). 4. 'Inayalullah and others vs. Khurshid Akhtar' (1986 SCMR 687). 5. 'Malik Beirkal Aii Dogur vs. Muhammad Shaft and others' (PLJ 1990 SC 49). In our view the learned Judge in the High Court was riuht in holding that the whole of 26th of April was available to the plaintiff foi filing the security bond. The order of the trial Court did not require the plaintiff to file the security bond before the next date of hearing but the order said that he was supposed to do so up-till or on the next date. Although, as held by the learned Judge in the High Court, the order is clear but in our view if there is any vagueness or inexactness in the order the plaintiff cannot be penalised for it. It is the duty of the Courts to record orders in clear terms and in cases of ambiguity it is not proper to penalise a party. Since the whole of 26th of April was available to the plaintiff for filing of the security bond the ordinary course for the Court would have been to pass no order and adjourn the case to the next day or any other appropriate date and if on that subsequent dale it was found that the plaintiff had no! filed the security on 26th April the plaint should have been rejected. But as it is. the Court adopted a different course. The time when the order was recorded on 26th April is not known and the possibility cannot be ruled out that the case might have been called in the morning. In any case there was still time for filing of the security bond on that day. It is therefore clear that the Court could not have passed order lor rejection of the plaint when the case was called on for hearing. Once we reach the conclusion that the Court could not reject the plaint when the case was called on 26th April it follows that the Court had to fix another date when it could be seen whether the requisite bond had been filed on 26th April but the course adopted by the Court was that while fixing another date period was also extended. In view of this extension it was no longer necessary for the plaintiff to file the security bond on that date. In these circumstances our view is that the learned Judge of the High Court was right in observing that if order granting extension is now se! aMde it would amount to penalising the plaintiff for an act of the Court. Since the d. iaull in filing the bond on 26lh April occurred, at least, partly due to the extension granted by the Court it constitutes sufficient reason for granting extension. We may also observe that after the case was remanded by the High Court no material was brought on record in order to show some justification for grant of extension existed but the reason which weighed with the High Court was available on the record and we are satisfied that the High Court acted in the interests of justice while taking note of the circumstances favouring the pre-emptor in the case. The order passed by the High Court does not run counter to any of the principles enunciated in the case law relied upon by Mr. Ghulam Mustafa Mughal, counsel for the appellant. The rule laid down in this Court's judgment reported as 'Faqir Muhammad vs. Mutwali' (PLD 1982 SC AJ&K 65) is that period for furnishing security could only be extended for good or sufficient reasons. The facts of the case were that the trial Court ordered the plaintiff to deposit l/5th of the sale consideration in cash or in the alternative to file a security bond to the extent of sale price which was Rs. 1500/-. The plaintiff filed a security bond only to the extent of l/5ih of the sale consideration and not for Rs. 1500/- as had been ordered by the Court. At the time of final arguments the rejection of the plaint was claimed on the ground that the plaintiff had failed to file the required security bond to the extent of full sale price. The objection prevailed and the plaint was rejected. An appeal taken to the District Judge also failed but the High Court accepted the second appeal filed by the pre-emptor by holding that the preemptor had not been guilty of wilful default because he was not represented by any counsel and a mistake was possible due to the very nature of the order wherein alternative directions had been given. The learned Judge of the High Court was of the view that the order had in a sense been complied with because the security bond though deficient, was filed within the stipulated period, therefore, default could be interpreted as an error. Feeling aggrieved the defendant in the case brought an appeal, through leave of the Court, which was accepted and order of the High Court was vacated. The judgment of this Court laid down that:— (a) the provisions of sub-section (4) of section 21 of the Right of Prior Purchase Act are mandatory in nature and a Court is bound to reject the plaint if there is non-compliance of the direction for furnishing the security; and (b) power of the Court to extend the period for furnishing security can only be done for good and sufficient reasons following the general principle that a Court should be slow in extending the period. It is clear that this Court has expressed the view in the aforementioned case that there has to be some cogent reasons for granting extension under reference. Since in the circumstances of the present case we have formed the view that the very fact that default had been occasioned due to an act of the Court constitutes a valid reason for extension of time, we think that the High Court did not in any way fail to follow the ratio of that case. The other case cited by the learned counsel for the appellant is 'Hadayat- Ullah vs. MuradAli' (PLD 1972 SC 69). His reliance is on the observations of the Court that there was no doubt that the power to extend the time for furnishing security was a discretionary power but, like all other judicial discretions, it must be exercised upon sound judicial principles. We say so with great respect that this is the correct rule on the subject. However the facts of the case and the decision given by the Supreme Court of Pakistan lend support to the view which we have taken in the case. The facts of the precedent case were that a learned Civil Judge passed an order in a pre-emption suit that 'zar-i-Panjum', i.e. l/5th of the pre­ emption money, should be deposited by the 6th of January 1968. On the 5th of December 1967 the pre-emptor applied to the learned Civil Judge for permission to furnish security instead of depositing the amount in cash, as directed by the Court. On the 6th of December instead of disposing of this application the Civil Judge directed that it should come up for hearing alongwith the pre-emption suit on 6th of January 1968. On that date the Court first took up the application and rejected the same. Thereafter the Court suo moto extended the time for making the deposit to 6th of February 1968. This order was complied with but on the 5th of March 1968 the vendee applied for rejection of the plaint on the ground that the deposit of the 'zar-i-panjum' was not made by the 6th of January, 1968, the date originally fixed by the Court, and, therefore, the suit was no longer maintainable. The learned Civil Judge rejected this application but upon a revision taken to the High Court this order was set aside as the High Court was of the view that in the absence of any prayer or application for extension of time the Court had no jurisdiction to extend the time on its own. The High Court also held that extension of time could only be granted where there was sufficient cause for the purpose, and that plea for sufficient cause must first be raised and then put to proof. The learned Judge in the High Court was of the opinion that there was no cogent grounds upon which the Court could have extended the time suo moto or otherwise. This order of the Court was set aside by the Supreme Court of Pakistan by holding that the Court had made it practically impossible for the appellant to comply with its original order by adjourning the application for furnishing security to the 6th of January 1968 and that this constituted a very good and substantial reason for the extension of time. Since in the present case the trial Court contributed to the default, the principle laid down in the precedent case is applicable with full force. In 'Mirza Ghulam Hmsain vs. Muhammad Bashir' (PLJ 1981 Lahore 478) the pre-emptor who had been called upon to deposit 'zar-i-panjum' submitted an application for extension of time at the llth hour which was dismissed. Having this default in depositing 'zar-i-panjum' it was pleaded by the pre-emptor that it was an act of the Court for which he had not been able to do the needful. This plea was rejected and the High Court also affirmed the orders of the learned Civil Judge as well as the learned District Judge. As is apparent from the facts of the case there was no act of the Court which was responsible, wholly or partly, for the default and the plea was rightly rejected. Another case referred to by Mr. Ghulam Mustafa Mughal is 'Ram Rattan vs. Rajaram' (A.I.R. 1923 Lahore 643). In this case a Division Bench of the Lahore High Court held that the Trial Court acted illegally in rejecting the plaint as a consequence of a default in deposit of 'zar-i-panjum' under the impression that no order could be passed where default had been committed. The Lahore High Court expressed the view that the phrase "his plaint shall be rejected" read with the provision as to an extension of time meant that the plaint would be rejected if the Court did not deem it proper to allow further time. This judgment does not help the learned counsel for the appellant. The last case relied upon on behalf of the appellant is "Niaz Muhammad Klian vs. Mian Fazal Raqib" (PLD 1974 SC 134) wherein it is laid down that since non-compliance with the order for furnishing security in pre-emption cases entails dismissal of the suit the provision is mandatory. This is the same view as has been expressed by this Court in Taqir Muhammad's case. Before parting with this judgment we may also take note of the fact that although this Court has in Faqir Muhammad's case laid down the law that extension of time can only be granted for sufficient cause, the Supreme Court of Pakistan took a different view in "Tnayat Ullah vs. KJiurshid Akhtar" (1986 SCMR 687) which has been cited by Kh. Shahad Ahmad learned counsel for the respondent. In that case the Supreme Court of Pakistan saw no merit in the submissions that extension of time in favour of the pre-emptor could not be granted automatically and could be ordered if sufficient and reasonable cause was shown. Finding no force in the appeal.-it is dismissed with no order as to costs. (MBC) Appeal dismissed.

PLJ 1990 SC (AJK) 29 PLJ 1990 SC (AJK) 29 [Appellate Jurisdiction] RAJA ML 1 LAM MAD Kl IURSHID KHAN, CJ AND SARDAR SAID muhammad khan, J Professor Dr. Raja MUHAMMAD AYUB KHAN-Appellant versus | AZAD JAMMU & KASHMIR GOVERNMENT and 4 others-Respondents Civil Appeal No 13 of 1989, dismissed on 17-1-1990 [On appeal from judgment of Service Tribunal, Azad Jammu & Kashmir, dated 27-11-1988, in Service Appeal No. 365 of 1987.] Azad J&K. Civil Servants Act, 1976 —S. 22 read with Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rule 9--Seniority--Claim of—Whether promotion of respondents could be given retrospective effect-Question of-Under section 23 of Act, all laws and rules which are not inconsistent with provisions of Act, would be deemed to have been made under Act—Expression "continuous appointment" is used both in Civil Service Rules and Departmental Rules—It means that appointment by promotion must have been continuous and shall be unbroken- -However date of continuous appointment, whether notional or otherwise, is relevant factor for fixing seniority—Held: Section 22 of Act read with rule 9 empowers Government to give retrospective effect to a promotion if circumstances of case so warrant—Held further: There is no force in contention that vacancies against which respondents were promoted, were not in existence in 1984-Appeal dismissed. [P.35,36,37&38]B,C,D,E,F&G 1971 PLC (CS.) 47,1982 P.S.C. 1007 and 1985 SCMR 1158 rel. (ii) Civi! Services— —Seniority-Claim ot'-Whether in case of direct recruitment, ante date appointment can be made—Question of—Claim that appellant should be declared senior to respondents after giving retrospective effect to his appointment from dale when vacancy against which he was appointed, fell vacant-Case of appellant is that Government was not empowered to give retrospective effect to promotion of respondents—Even according to Departmental Rules, relevant date for determining seniority would be actual date of appointment of person concerned—Held: it is settled law that in absence of any rule or law to contrary, appointment by way of direct recruitment cannot be given retrospective effect. [Pp.34&35]A 1986 SCMR 898 and 1986 SCMR 1953 rel. Agha Ashiq Hussain, Advocate for Appellant, M/s Muhammad Siddique Klian and Abdul Rashid Abbasi, Advocates for Respondents. Date of hearing: 17-1-1990. judgment Sardar Said Muhammad Khan, J.~This appeal has been directed against the order of the Service Tribunal dated 27.11.1988, whereby the appeal filed by the appellant, herein, was dismissed. 2. The brief facts giving rise to the present appeal are that the appellant and the respondents Nos.2 to 5 were serving in the Collegiate Branch of the Education Department of the A/ad Jammu and Kashmir Government. They were inducted in service in various grades and were subsequently promoted as Lecturers and afterwards as Professors and Principals of the Intermediate Colleges. A seniority list was circulated in year 1977, in which the respondents were shown senior to the appellant, but the said list was not disputed. It maytie observed that even now the appellant does not dispute the position that the respondents were senior to him as Professors aad subsequently as Principals; the respondents were promoted as Professors in year 1972-73, whereas the appellant was promoted as Professor in year 1.9.1976 and similarly when the appellant was appointed as Principal Intermediate College on 26.2.1978, the respondents had already been promoted to the said posts. In year 1984 ten posts of Professors in Basic Pay Scale No. 19 were to be filled up by direct recruitment and by promotion in ratio 55: 45, as was laid down in the relevant rules. The appellant who was junior to the respondents applied for his appointment against the quota reserved for direct recruitment, whereas the respondents were considered for promotion to Basic Pay Scale No.19, However, the matter was not finalised by the Government and the same remained pending till 4.1.1987 when the orders of promotion of the respondents were issued with retrospective effect from 29.10.1984. The appellant, who was appointed by direct recruitment, was selected by the Public Service .Commission on 23.2.1985 and was appointed against the said post on 16.4.1985. The appellant made a representation to the Azad Jammu and Kashmir Government praying that his appointment should also be given retrospective effect from March, 1984, the date on which the vacancies in Basic Pay Scale No. 19 were available. The grievance of the appellant was not redressed and consequently he filed an appeal before the Service Tribunal praying for the relief in terms that his appointment might be given retrospective effect from March 1984 and he- should be declared senior to the respondents. The Service Tribunal dismissed the appeal, 3. We have heard the arguments and gone through the file, It has been contended by Agha Ashiq Hussain, the learned counsel for the appellant, that the respondents have brought nothing on the record to show that respondents were approved by the Selection Board on 29-10-1984; they have agitated this point for the first time in the Supreme Court which is not permissible under rales. He hos also contended that there is nothing on the record to show thai the vacancies for promotion were in existence on the date from which the promotion of (he respondents was given retrospective effect. He has also maintained that under rule 10 of the Azad Jammu and Kashmir Education Service Ciass-I (Colleeiatc Branch) (Men's Section) Rules 1973, (hereinafter shall be referred as Departmental Rules), the seniority in case of appointees by direct recruitment and by promotion is to be determined with reference to the elate of iheir 'continuous appointment' against the vacancies as envisaged in para 2 of sub-rule 2 of rule 10 of she Departmental Rules. The learned counsel contended that the phrase ! '(o the date of continuous appointment against such vacancy" in the said rules implies the date on which a person assumes the charge of the post and actually functions and thus it does not cover a notional or ante-dated promotion. The learned counsel has also submitted that any relaxalion in the Departmental Rules could b-:'- made only in writing alter recording reasons, a» has been stipulated under rule 13 of the Departmental Ruies. But in the instant case no such relaxation has been made, He has further argued that all hough the Government is empowered (o relax any rule or l : v» under Section 22 of the Civil Servants Aci, 1976, vei day such relaxation should not be arbitrary and must be based on valid grounds. The learned counsel has referred to the cases reported as Raja Miinainniad Igbal & others v, Tlie Additional Chief Secretary Government of Punjab ri'JK2 S.C.M.R, 971 i and Govcninc.ni of .W.F.P. v. Muhammad Ajmal and others (1986 S.C.M.R, 2007) in support ot his contention that retrospective effect to the promoiion is not permissible under law. The facts of the case reported as Raja Muhammad Iqbal & others v. TJie Additional Chief Secrelaiy Government of Punjab (1982 S C.M.R. 971), were that some Naib Tehsildars were considered along with Tehsildars for bringing their names on the Select List 'A' in terms of rule 5 (5) of the West Pakistan Civil Servants (Executive Branch) Rules, 1964, for iheir appointment to the P.C.S. Their case was sent to the Public Service Commission and received its approval. The Tehsildars were appointed to the P.S.C. in July, 1973, In rcspec! of the Naib Tehsildars so approved there was a reconsideration of the policy of I heir promotion and rccruilment and in (he process their promotion was delayed bv about 14 months. Thus, they were promoted in July 1974. In the meantime the Government had recruited 32 persons as direct recruits in the P.C.S. The Naib Tehsildars, who were promoted, were shown junior to the direct recruits. T heir case before the Tribunal was that they like the Tehsildars should have 1-e-cn appointed to the P.C.S. as and when the Public Service Commission approved of their being put on the Seleci List 'A' and the Tehsildars were appoinied to the service. .The delay in their appointment was not on account of any conduct on their part but on account of ihe failure of the Government to decide about (Im­ policy in the matter. The Tribunal examined the rules applicable to the case of ihc petitioners and held that (heir appointment could not be taken back u> a date earlier than their appointment and from thai date the rules of seniority applicable justified their being placed below direct recruits. Hence, the appeal was dismissed. It was held that the rules of seniority being not in dispute nor the date of actual appointment of the Naib Tehsildars, the application of rules presents no problem. It was opined that the claim of the petitioners to have their appointments ante­ dated to the time when the Tehsildars were appointed or when their names were approved by the Public Service Commission is based on no provision of law or rules applicable to their cases. Thus, in absence of any provision of law or rules governing the matter, it was held, they could not claim nor the Service Tribunal was within its powers to ante-date their appointment for the purpose of seniority. Consequently, the petition for leave to appeal was dismissed. In Government of N.W.F.P. v. Muhammad Ajmal and others (1986 S.C.M.R. 2007), the Supreme Court refused to grant leave against the judgment of the Provincial Service Tribunal observing that as no violation of the rules was committed, the case was not fit for appeal because the antedated promotion of the petitioners was not based on any rule, but was merely based on administrative letter. As the facts of the case have not been recorded in the order of the Supreme Court, as to which were the rules applicable to the case of the petitioners in that case. 4. The learned counsel for the appellant has also referred to rule 24 of the K.S.R. and argued that seniority of the person who was subject to that rule was to be determined with reference to the date of his first appointment to such service, class, category or grade as the case may be. The learned counsel has also submitted that the authorities cited by the learned counsel for the respondents arc irrelevant and have no bearing to the case in hand. 5. In reply it has been contended by Mr. Abdul Rashid Abbasi, Advocate, appearing on behalf of the respondents, that the case of the appellant was that his appointment should be given a retrospective effect as was done in case of the respondents. The appellant reiterated his plea again before the Service Tribunal, as is evident from Para 8 (I) and from the relief clause contained in the memorandum of appeal filed before the Service Tribunal; but the appellant, after the dismissal of his appeal by the Service Tribunal, has come up with altogether a contradictory case in terms that the Government was not competent to give retrospective effect to the promotion of the respondents. The learned counsel has maintained that a party cannot be permitted to vary its case at the appellate stage. Thus, according to the learned counsel, the appellant was estopped to contend that the respondents could not be legally promoted retrospectively from 29-10- 1984, the date on which their selection was made by the Selection Board. The learned counsel has also contended that retrospective effect could not be given to the order of appointment of the appellant because the was appointed by direct recruitment and not by promotion, as was done in case of the respondents whose appointment in Basic Pay Scale No. 19 was made by promotion. The learned counsel for the respondents has contended that in view of Section 22 of the Civil Servants Act, 1976, read with rule 8 of the Rules known as The A/ad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, an appointment by promotion can be given retrospective effect but not an appointment by direct recruitment. His contention was that Section 22 of the Civil Servants Act would not apply to a direct appointee because he could not be termed as a civil servant at the time of his appointment, whereas (he same is fully applicable to an appointment to be made by promotion as was done in the case of the respondents. The learned counsel for the respondents has also cited the following authorities in support of his contention: In Muhammad Naseem & others v, Azra Fcroz Bakht & others (P.L.D. 1968 S.C. 37), it was held that confirmation of probationer was discretion of the employer and new incumbent can only be made where a permanent posts exists. It was further observed that the probationer has no right to be confirmed from the date of his original appointment. When the conditions are prescribed for confirmation that an officer remains a probationer until he has fulfilled those conditions and cannot be treated as a person substantively appointed to a permanent post. Il was further observed that the Rules, governing the conditions of service of persons employed, made by the competent authority and having all characteristics of statutory rules are effective as any other statutory provisions on the subject. In Ch. Kabir Ahmad etc. . The Government of the Punjab (1982 P.S.C. 1007), it was contended that the Notification under Section 25 of the Punjab Civil Servants Ordinance, 1974, was ultra vires of the Ordinance because the principle of seniority prescribed by the notification was in conflict with the principle prescribed by Section 8 of the Ordinance. It was held that as the notification itself had been issued under Section 25, which enabled the Government to make such rules as appeared to him to be necessary or expedient for carrying out the purpose of Ordinance, the seniority of the respondent would be governed by the Notification. In Government of N.W.F.P. and others v. Buner Khan and others (1985 S.C.M.R. 1158), the petition for leave to appeal was converted into appeal and disposed of as such. The facts of the case were that seventy-five per cent of the posts in Grade-18 in the Provincial Education Department were to be filled in by promotion from among the Gradc-17 Officers of that department and 25 per cent by direct recruitment. However, no proper rotation of the vacancies for the purpose appears to have been maintained. The five persons were directly recruited. But no joining seniority list in Grade-18 was thereafter notified, with the result that some of the direct recruits were promoted to Grade—19 without the promotees being considered for their promotion. The promotccs represented that their promotion be given retrospective effect from a date earlier that of the direct recruits. But after failing to succeed, they preferred an appeal before the Service Tribunal. The Tribunal held that maintenance of separate seniority lists, one of the promotees and the other of the direct recruits, was not proper and that promotion of the promotees with immediate effect on 12-5-1984 was also not proper as they should have been promoted with effect from the date when the vacancies in their quota became available. The Tribunal further found that even on 30-12-1980 when the first three direct recruits were appointed, there were 12 vacancies, of which 9 could have been filled in by promotion with effect from that date. The Tribunal accordingly allowed the appeal and directed 'the Government to promote the appellants (promotees) to Grade-19 posts w.e.f. the dates the vacancies were available and thereafter a joint seniority list of the Officers directly recruited and those promoted be issued according to the rules'. In Syed Sultan Shah vs. Government of Baluchistan and another (1985 S.C.M.R. 1394), the concerned Government employee was serving as Tehsildar when he was subjected to disciplinary action taken against him and he was punished. He challenged his punishment in civil Court and succeeded in quashment of order passed against him. Thereafter, he was restored to the office. His claim of promotion was also recognised retrospectively from 26-10-1968. However, it was maintained that he would not be entitled to the arrears of pay as a result of proforma promotion under F.R. 17. On the interpretation of fundamental rule 17 his appeal was accepted that he was also entitled to his arrears of pay as a consequence of his proforma promotion. In Islamic Republic of Pakistan vs. Muhammad Zafar and others (1986 S.C.M.R. 898), the order of appointment of direct recruits was delayed. However, the delay in issuing order was explained by the authority. The Tribunal failed to consider the relevant law governing the delay in such cases and upheld the contention of the civil servants who were appointed by direct recruitment and ante-dated their appointments from the date of their posts were advertised. On appeal to the Supreme Court the order of the Tribunal was set aside on the ground that the offer of appointment issued to the direct recruits contained the condition that tiie effective date lor the purpose of seniority would be the date of their assumption of charge. Thus, after accepting the condition the concerned civil servants, who were appointed by direct recruitment had no right to claim an ante-date appointment. In Muhammad Arshad Saecd vs. Pakistan and others (1986 S.C.M.R. 1953), the concerned civil servant belonged to Police service. He was pre-sclectcd in 1969 and got admitted to the Government College Lahore for his graduation in pursuance of the policy adopted for recruitment to the police service of Pakistan formulated in the year 1968. Finally he was graduated and was selected by the Public Service Commission on 26-12-1972 and consequently started service in grade 17. Later on he was called upon to perform the duties in the higher grade in N.P.S. No. 18 on 28-6-1976 in his own pay and grade and was regularly promoted to that grade on 27-12-1977. on completion of five years' service in Grade 17. A provisional seniority list of the Police Officers was circulated on 28-10-1980, wherein the petitioner was shown at a lower position than he considered to be his due place. He brought the matter before the Service Tribunal and subsequently to the Supreme Court. The Supreme Court of Pakistan held that in case of initial recruitment seniority or induction into service cannot be taken to a date earlier to actual selection or taking over the post. Thus, his appeal was dismissed. 5. The first point which needs to be resolved is as to whether (in) the case of direct recruitment the appointment can be made ante-date. The learned counsel for the appellant has argued that the case of the appellant before the Service Tribunal was that he should be declared senior to the respondents after giving retrospective effect to his appointment from the date when the vacancy against which his appointment was made fell vacant. It has not been pressed by the learned counsel for the appellant that in case of a direct recruitment, a retrospective effect can be given to the appointment. The case of She appellant in this Court has been that the Government was not empowered to give retrospective effect to the promotion of the respondents. Even the Departmental Rules, which have been relied upon by the learned counsel for the appellant, stipulate that in case of direct recruitment the relevant date for determining the seniority would be the actual date of appointment of the person concerned. Even otherwise, it is settled law that in absence of any rule or law to the contrary the appointment by way of direct recruitment cannot be given retrospective effect. A reference my be made to the cases reported as Islamic Republic of Pakistan vs. Muhammad Zafar and others (1986 S.C.M.R. 898) and Muhammad Arshad Saeed vs. Pakistan and others (1986 S.C.M.R. 1953), referred to above. 6. Now the sole point which need to be resolved is as to whether the promotion of the respondents could be given retrospective effect and if so under what law. The learned counsel referred to Section 22 of the Civil Servants Act, 1976, (hereinafter shall be called the Act) and rule 9 of the Civil Servants (Appointment and Conditions of Service) Rules, 1977, (hereinafter shall be called as Civil Service Rules) in support of his contention that a retrospective promotion is permissible under the aforesaid provisions of law. For the sake of convenience Section 22 of the Act and rule 9 of the Civil Service Rules are reproduced: "22. Saving.-Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule". Rule 9 of the Civil Service Rules is as unden- "9. (1) Appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. (2) Promotion including proforma promotion shall not be claimed as of right by any Civil servant." 7. The question arises whether the aforesaid provisions of the Act and the Civil Service Rules would be applicable to the cases of the parties or their cases are to be governed by the Departmental Rules of 1973. It may be observed that under Section 23 of the Civil Servants Act all laws and rules etc. which are not £ inconsistent with the provisions of the Act would be deemed to have been made under this Act. For the sake of convenience Section 23 of the Act is reproduced as under:— '23. (1) The Government, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, regulations, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in orce immediately before the commencement of this act shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, and be deemed to be made under this Act." 8. It is evident that in view of the above provisions, any law inconsistent with the provisions of Civil Servants Act would be inoperative. Thus even if it is assumed for the sake of argument that a retrospective promotion, is not permissible under the Departmental Rules that would be deemed to have been repealed by the operation of provisions contained in Section 22 of the Act and the rules framed thereunder. The contention of the learned counsel for the appellant that expression " to the date of continuous appointment" appearing in rule 10 of the Departmental Rules would mean the date on which a promotee actually starts functioning against the relevant post or assumes the charge of the post as a result of promotion is not supported by any authority. An identical expression also occurrs in rule 8(2) of the Civil Service Rules, which is reproduced as under: "8. The Seniority interse of persons appointed to post in the same grade in a Functional Unit shall be determined:— 1) xxx xxx xxxxx (a) xxx xxx xxxxx (b) xxx xxx xxxxx (2) The seniority of the persons appointed by initial recruitment to the grade vis-a-vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; Provided that if two dates are the same, the persons appointed otherwise shall rank senior to the person appointed by initial recruitment; Provided further that inter se seniority of persons belonging to same category will not be altered." 9. It is obvious that the expression "continuous appointment" is used both in Civil Service Rules and in the Departmental Rules. The word "continuous" has not been defined either in the Departmental Rules or in the Civil Service Rules. The dictionary meanings of word "continuous" are 'without any break'. Thus, we cannot subscribe to the view that the dale of "continuous appointment" appearing in the aforesaid rules would be the date on which the relevant civil servant actually assumes the charge of the post to which he is promoted or appointed. The aforesaid expression has been used in altogether different context. It means that appointment by' promotion must have been continuous and shall be unbroken. For instance if a civil servant is demoted to his original grade or in case of appointment by transfer, he ceases to enjoy the higher grade, his previous date of promotion shall not be considered for the purpose of seniority. However, the date of continuous appointment, whether notional or otherwise, is relevant factor for fixing the seniority. We arc supported in our view by case reported as Klian Ziaud-Din Klian vs. I.G.P. West Pakistan, Lahore and 3 others (1971 P.L.C. 47 (C.S.T.)), in which it was held as unden- "When rule 9(1) (b) provides a rule of seniority with reference to the date of 'continuous appointment', the question, which must be considered is whether the date need not be confined to the date of actual appointment. It may well include a supposed or presumptive date of appointment or in very exceptional cases a date even prior to that from which a civil servant has functioned in the high rank. We are not inclined to rigidly confine the date of appointment to actual dates of functioning in a grade alone as date of continuous appointment. We arc inclined to interpret those words in the rule in their wider meaning so as to include the dates of appointment as notified by the appointing authority and not necessarily the actual date of promotion to a higher grade. It may be the actual date or it may be an assumed date, which may presumptively be fixed to the discretion of the Government with a view to restore seniority or to avoid tin 1 causing of hardship or injustice to a civil servant. Thus we are inclined to hold as valid the dates of appointment presumptively fixed with retrospective effect in the case of the two respondents and see no invalidity in them. Even if our interpretation be not correct, we consider that this was a fit case for the Government to exercise its power of relaxation under rule 12, and to make appropriate order under rule 14 of the ]962 Rules in order to safeguard the rights of the two respondents, which were threatened by reason of ignoring the advice of the Public-Service Commission, and to avoid a hardship and injustice, which may well seriously effect the official career of the two respondents." 10. It may be observed that sub-rule (2) of rule 9 envisages that proforma promotion cannot be claimed as of rit;ht by a civil servant. It implies that a proforma or notional promotion is not foreign to the Civil Servants Act or the Rules. Section 22 of '.':c Civil Servants Act read with rule 9 empowers thcj i ii ^i;- •:'.:•; u civc, retrospective effect to a promotion if the circumstances of the c..-. - p .v a,.-.i~;. x :'.-.r us the Departmental Rules are concerned, even in these r^e- ;:.efe ino provision prohibiting a notional promotion. As has already been ; ,,•:. J . u; in view of Section 22 of the Civil Servants Act and Rule 9 of Civil .Ser'.ice Rule.-, any inconsistent provisions of the Departmental Rules would have no legal effect. 11. In case reported as. Lli. Kahir Ahmad etc. vs. The Government Pi-.njab etc. ( 19.S2 C.S.C. 1007) as referred to above, it was held that the ol .seniority prescribed by the Notification cannot be said to be ultra Ordinance because under Section 25 of the .said Ordinance the '.r •. -.'..red :o mal.e rules which were necessary or expedient lor carryiii 1 ; Thus, in the instant case rule 13 of ihi. fX p a mi. dal! requires to record reasons for relaxing a>u of the luie wouldi .~.a-e in.' application .r, vk w ol the provisions contained in Section 2 : - oi ihe Civil 1 VMaii's Ae;. 19~(>. Rule 13 ol the Departmental rules afso eaimoi override thej pr-,.iv:.Mon> contained in Section 22 of the Civil Servants Act. Thus, the contentions ol '-'.; Larr.-d counsel lor the appellant that the Government was obliged to, record reasons in wiiting for giving retrospective effect to the promotion of the respondent.-) or it was not competent to ante-date the promotion of the respondents are not (enable and are hereby repelled. 12. There is no dispute that the respondents were senior to the appellant in the lower grades and the vacancies were in existence against the departmental quota on the dale Irom which the promotion of the respondents were given retrospective ellcct. It has not been the case of the appellant before the Service Tribunal that the vacancies against the quota reserved for departmental promotions were not available on the date from which the respondents have been given retrospective promotion. Even otherwise, for our satisfaction, we sent for the relevant record from the Services and General Administration Department which shows that • acancies in B.P.S. No. 19 which were to be filled by departmental promotion had been in existence since 29-10-1984. Therefore, there is no force in the contention of the learned counsel for the appellant that vacancies against which the respondents were promoted were not in existence in year 1984. However, the record shows that the selection of the respondents for promotion was made by the Board on 14-10-1986, but this would not affect the merits of the impugned order. 13. In case reported as Raja Muhammad Iqbal and others vs. The Additional Chief Secretary Govt. of Pakistan (1982 S.C.M.R 971) it was held that there were no provisions to claim ante-date promotion under any law. Thus, the petition for leave to appeal was dismissed. The perusal of the aforesaid authority does not show the facts of the case and makes no reference to the rules nor it shows thai the petitioners in thai case were governed by the provisions identical to those contained in the Civil Servants Act, 1976, and the rules framed thereunder. Besides, in case reported as Government of \'.IV.F.P. and others vs. Buner Khan ami others (1985 S.C.M.R. 1158), referred to earlier, the Supreme Court while converting the petition for leave to appeal into appeal confirmed the view ol the Service Tribunal that the appcllants/promotees should have been promoted Ironi the date when the vacancies in their quota had come into existence. We are in respectful agreement with views expressed in the aforesaid authority and hold that the Government is fully competent to give retrospective effect to an appointment by promotion. In the light of what has been stated above finding no force in this appeal it is dismissed. In the circumstances of the case no order is made as to the costs. Appeal dismissed.

PLJ 1990 SC(AJK) 38 PLJ 1990 SC(AJK) 38 [Appellate Jurisdiction] Present: BAS} 1ARAT Al l.MAD SHAIKI l, J MUHAMMAD RESHAM KHAN-Appellant versus CHAIRMAN, INSPECTION TEAM and 3 others-Respondents Civil Appeal No. 20/Mzd of 1989, dismissed on 21.4.1990 [On appeal from order of High Court, dated 13.10.1988, in W.P. No. 95 of 1983) (i) A/ad Jaininu & Kashmir Interim Constitution Act, 1974- —S.44-Wril Petition-Parties in-Non-implcadment of party-Effect of- Inspection Team was not impleaded as party in writ petition—It is elementary requirement that in a writ petition, Government or person performing functions in connection with affairs of Slate whose order is challenged, should be made a parly—Under section 44 of Acl, Inspection Team is a "person"— The President of A/ad Jammu and Kashmir promulgated an Ordinance known as The Irregular and Un-authorised Allotment (Cancellation) Ordinance, 1978, which in contents was repeated in successive Ordinances for a number of years. By virtue of section 3 of the aforesaid Ordinance any allotment of. inter alia, evacuee property could be cancelled by an Inspection Team appointed by the Government for that purpose by Notification in the official gazette. Section 3 runs as under:— "3. Cancellation of allolmcnt.--(l) Any allotment of Evacuee Properly, Demarcated Forests, Crown Land (Khalsa-Sarkar) or Common Land (Shamlat Dch/Khalsa Maqbuza Assamina Deh) made at any time before the 11th day of August, 1977. which is not covered by any regular scheme or which has been obtained by using official position or political influence or by means ol fraud or mis-representation of facts in violation or relaxation of law, rules, conditions, policy instructions or orders, may, notwithstanding anything contained to the contrary in any law for the linu' hcinu in lorce, or.any order or decree of a Court, Tribunal or Autlniritv. be. cancelled by an Inspection Team appointed by the Goxeimne;; 1 in ihis Khali or its Chairman, by notification in the official via/elk'. Provided that no order of cancellation shall be [Kissed without givitm the allottee a reasonable opportunity of being heard". Inspection Team issued notice to the present appellant and alter the necessary formalities ordered the cancellation ol the land mentioned above on 2.7.1M78. Muhammad Resham Khan filed a writ petition in the High Court, being Writ Petition No. 73 of 197 l

on 18.11.1979 challengini; the aforementioned order of cancellation. A learned single Judge accepted the writ petition on the short ground that the appointment of the Inspection Team had not been notified in the official Ga/ette as was required by Section 3 reproduced above. Fresh proceedings were taken by the Inspection Team which resulted in the passing of the order which was impugned before the High Court and K Annexure 'D' in the Supreme Court file and was passed on 1.2.19X1. The order of cancellation is based on the ground that Muhammad Resham Khan, appellant, is not a destitute within the meaning of the Government Order 25/60 which contains a definition of who is a destitute. The Team has held that the appellant possessed more land than is specified in the aloresaid order and also that he is otherwise a man ol means. The first point raised by Raja Sher Muhammad Khan, appearing on behalf of the appellant, was that the judgment of the High Court was vitiated on the ground that the same had been recorded alter more than three months from the dale when the arguments were heard and it is the law laid down by this Court in a large number ol cases that a judgment written alter three months is not a judgment m the eye of law. Raja Sher Muhammad, therefore, prayed that the judgment of the (High Court may be set aside on this short ground and the case be remanded for i fresh adjudication. 1 have looked into the High Court file and find that the learned counsel is in mistake about the factual aspect of the matter. According to him arguments were heard in the case on 6th of July 1988 while the judgment was announced on 13lh of October, 1988. However the file shows that the judgment had been signed many days earlier on 5th of October which comes within three months. The learned Judge after signing the judgment on 5th of October ordered that the Registrar shall summon the parties and announce the judgment to them. According to the record separate notices were sent to Raja Sher Muhammad Khan, Advocate, Mr. Abdul Khaliq Khan, Advocate, and Sardar Rafique Mahmood Khan, Advocate. All the Notices were signed by the Deputy Registrar of the High Court on the 5th of October, the date on which the judgment was recorded. The notice sent to Sardar Rafique Mahmood Khan Advocate was served on 9th of October. The Registrar then announced the judgment on 13th of October when Muhammad Resham Khan, petitioner, himself in person and Sardar Rafique Mahmood Khan, Advocate for respondent No. 3 Mst. Fatima Bi, were present. The contention therefore fails. Raja Sher Muhammad then complained that the learned Judge in the High Court did not advert to an important legal aspect of the case which went to its root. He d v ew my attention to ground No. (/;') contained in para 4 of the writ petition that the allotment in favour of the petitioner before the High Court had been made under Government Order 25/60 which had the force of law and, therefore, was a regular scheme within the meaning of the aforesaid Section 3. Based on this assumption it is stated in the ground that the Inspection Team had no jurisdiction to cancel an allotment of evacuee land which has been made under a regular scheme. The learned counsel submitted that the learned Judge in the High Court has not disposed of this legal objection. Therefore, he prayed that the judgment of the High Court may be set aside and the case be remanded on that ground. In this connection the learned counsel relied on 'Muhammad Hussain Klwn v. Said Muhammad Klian' (P.L.D. 1988 S.C. (AJ&K) 184). In that case the important issue relating to adverse possession had not been decided by the trial Court, therefore, the case was remanded to the High Court. When asked whether this point had been urged before the High Court, the learned counsel for the appellant replied in affirmative but there is no proof in support of this claim. The normal practice in such situations is that an affidavit is filed in this Court stating that a point was argued but had not been dealt with by the High Court. This is a practice which meets the ends of justice and should be followed. The learned counsel has not filed any such affidavit in this Court, therefore, I am unable to hold that this point was raised. Raja Sher Muhammad Khan alternatively submitted that the point mentioned above is of far-reaching importance and he may be allowed to raise the point. Being satisfied that it is a pure question of law which relates to the jurisdiction of the Inspection Team and since it is settled practice of this Court to allow raising of a legal objection which relates to the jurisdiction of a Court or Tribunal irrespective of the fact whether that point has been raised in the High Court or not, I allowed Raja Sher Muhammad Khan to argue the point. Sardar Rafique Mahmood Khan, counsel for Mst. Fatima Bi, respondent No. 3, did not seriously object to the point being raised. Arguing the point so allowed, Raja Sher Muhammad Khan submitted that the power of the Tribunal is restricted to certain specified matters which do not include allotments which have been made under a regular scheme. On the other D hand Sardar Rafique Mahmood Khan rightly submitted that the argument was misconceived inasmuch as the phraseology used in Section 3 shows that the purview of the Inspection Team has not been restricted to allotments made otherwise than under any regular scheme but also includes the allotments which have been obtained by means of fraud of mis-representation of facts or in violation or relaxation of law, rules, conditions, policy instructions or orders, A plain reading of Section 3 would show that the words 'not covered by any regular scheme' are followed by word 'or'. The word 'or' when used between two statements is only used to denote that both the things are intended to be included by the law-maker. It, therefore, follows that the jurisdiction of the Ins-pection Team is not restricted, as claimed by Raja Shcr Muhammad Khan, to allotments covered by a regular scheme. It is provided in clear terms that allotments which are in violation or relaxation of law, rules, conditions, policy instructions or orders were also to be examined by the Inspection Team. The phraseology of Section 3 in fact shows that the very purpose of legislating this law is to examine the legality and propriety of allotments and the Inspection Team is clothed with the necessary authority to see whether an allotment is in accordance with law or any other instrument having the force of law. I have, therefore, no hesitation in holding that the Inspection Team was within its powers to examine the question whether the allotment in favour of the present appellant was in accordance with the relevant Government Order or not. The learned counsel for the appellant then pleaded that the allotment in favour of his client could have been challenged before the Deputy Rehabilitation Commissioner or Rehabilitation Commissioner when the allotment order was issued, but it was not challenged. He, therefore, claimed that the allotment had become final. He contended that even a Multiple Judge was clothed with the power to set aside any allotment which was not in accordance with law. I see no force in the argument. If an order passed by an Assistant Rehabilitation Commissioner can be challenged before the Deputy Rehabilitation Commissioner and subsequently before the Rehabilitation Commissioner, it is because law provides that remedy. The power of cancellation which has been exercised by the Inspection Team has also been vested in it by law. It is not too late in the day to contest the proposition that the legislature has the power to make or un-make laws prospectively and retrospectively. 1! the law-maker has provided a machinery to scrutinize allotments of evacuee and other lands in order to find out whether they have been ordered in accordance with law or order having the force of law, there is no illegality which can be ascribed to the legislature. However, if a law touches a right which is guaranteed by the Constitution it can be challenged on that ground, but no such situation exists in the present case. So far as the facts of the case are concerned the High Court has rightly held that it is a finding of fact which cannot be disturbed in exercise of writ jurisdiction. Of course recognised exception to this rule is formed by cases in which finding of facts is based on no evidence but this is not so in the present case. I have gone through the order of the Inspection Team and find that the Team has not only held on the basis of record that the appellant was not a destitute but also held that he employed illegal means to secure the allotment in question. The Team has also in its order reproduced the application moved by the appellant for allotment of the disputed land and has observed that in the application he did not even claim that he was a destitute and also there was no proof available on the file in which the proceedings for allotment were conducted that the appellant qualified for allotment of land under Government Order 25/60 (as amended). The learned counsel for the appellant relied on 'Muhammad Ayub v. Chainnan Inspection Team" PLJ 1989 S.C. (AJ&K) 20), in support of his submission. I have gone through the report and I am of the view that it does not help the. learned counsel. It was a case in which evacuee property allotted under Government Order 25/60 had been cancelled and a writ petition was filed to challenge it. The writ petition was dismissed in limine and on appeal this court formed the view that the writ should not have been dismissed in limine and the High Court was directed to admit the writ petition for regular hearing. There are certain observations which are sought to be pressed into service in support of his submission by the learned counsel for the appellant but they are of tentative nature. In that judgment the case had not been decided on merits one way or the other but the case was remanded to consider some legal questions which had been raised including the point that the power of the Inspection Team did not extend to allotments made under regular schemes, e.g., Government Order No. 25/60. This Court only desired that this point, along with other points, may be considered by the High Court. It did not record its opinion on the points involved. Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parlies in the writ petition were (/) the Chainnan of the Inspection Team, (»') Azad Jammu and Kashmir Government, (///) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word "person" is.defined in Section 44 of the A/ad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below:— "44. (1) xx xx xx I I i XX XX XX (3) xx xx xx (4) xx xx xx (5) In this section, unless the context otherwise requires, 'Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence . Services." It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone. Finding no force in this appeal it stands dismissed with costs. (MBC) Appeal dismissed.

PLJ 1990 SC (AJK) 44 PLJ 1990 SC (AJK) 44 [Appellate Jurisdiction] Present: RAJA MUHAMMAD KHURSHID KHAN, CJ AND BASHARAT AHMAD shaikh, J NIA'Z MUHAMMAD alias NAJA and another-Appellants versus THE STATE-Rcspondent Criminal Appeal No. 9 of 1988, dismissed on 12.3.1990 [On appeal from the Judgments and orders of the Shariat Court dated 15.8.1988 and 17.8.1988 in shariat petitions Nos 11,12,13 and 202 of of 1983] (i) Evidence Act, 1872 (lof 1872)- —-Ss. 118 and 134-Provisions of Sections 118 and 134 of Act-Whether repugnant to injunctions of Islam—Question of—Evidence Act as enforced in Azad Jammu and Kashmir has since been repealed and its place has been taken by "Qanoon-e-Shahadat" about which it is claimed that it conforms to injunctions of Islam—Held: It will be futile exercise to decide question whether these provisions of repealed Evidence Act were repugnant to injunctions of Islam. [P.47|C (ii) Island Tazeerati Qawaneen Nafaz Act- —S. 26(2)—Witness—Purgation of—Provisions of—Whether Section 26(2) is repugnant to injunctions of Islam-Question of-Objection regarding this section is that it does not provide that when Qazi reaches conclusion that a witness is "Aadal", this fact should be recorded and acted upon and also that grounds on which his findings are based, be disclosed-Held: Purgation of witnesses is part of procedure of Courts and laws relating to procedure of any court have been kept out of operation of Shariat Court Ordinance—Appeal dismissed. [P.47)D PLD 1988 SC(AJK) 191 and PLD 1984 SC(AJK) 1 rel. (iii) Islami Tazeerati Qawaneen Nafaz Act— —S. 29-Death sentence-Execution of-Mode of-Whcther Section 29 is repugnant to injunctions of Islam—Question of—Contention that mode of execution of sentence of Qasas has not been specified and has been left to be decided by Jail Authorities—It was pleaded that sentence of Qasas, according to Quran and Sunnah, should be executed by use of sword or by other mode similar to mode by which offence was committed—No reason could be advanced as to how Shariat Court disregarded dictum of Supreme Court in Mchtak Khan's case wherein this question has been specifically decided-Held: Section 29, rather than being against injunctions of Islam, is aimed at ensuring that injunctions of Islam shall be followed while executing sentences awarded under Islami Act. [P.4o|A&B PLD 1979 SC(AJK) 23 reiterated. Mr Abdul RushidAbbasi, Advocate for Appellants. Syed Manzoor Hiissain Gillani, Advocate General for Respondent. judgment Basharat Ahmad Shaikh, J.--The two appellants were awarded death sentence under Section 5 of the Islami Ta/cerati Oawaneen Nafa/ Act by the Zilaee Adalat Muzaffarabad on 19th of June 1979. Their appeals to the High Court and subsequently lo this Court were dismissed but the sentences imposed on them have not so far been put into effect. They filed four Sharial petitions under Section 6 of the Shariat Court Ordinance in the Azad Jammu and Kashmir Shariat Court on different dates in October 1983 seeking declarations that certain sections of the Islami Ta/eerali Oawaneen Nafaz Act (hereinafter also referred to as the Islami Act), the Criminal Procedure Code and the Evidence Act 1872, ihe details of which would follow al ihe appropriate place, were repugnant to injunctions of Islam. For a long time the petitions could not be disposed of by the Sharial Court due lo the failure of the Government to appoint a panel of L'lma out of which one Aliin could be drawn by the Chief Justice of ihe Sharial Court to attend the sitting of the Shariat Court. Ultimately the petitions were dismissed, three of them on 16th of August and the 4th on 17th of August, 1988. The appellants filed a single appeal against all the four judgments under Section 9 of the Shariat Court Ordinance which provides an appeal as of right to this Court against the decisions of the Shariat Court. In their appeal the appellants have prayed that if any irregularity has been committed in filing a joint appeal the same may be condoned on the ground that all the points, agitaled in the petitions arose out of a single case. The learned Advocate General appearing for the Slate did not raise any objection in this regard. In view of the ground that the appellants are condemned prisoners we relax the relevant rules in the interest of justice. Even otherwise in Shariat petitions strict compliance of the procedural requirements is not necessary. Since tour decisions ol the Shariat Court have been challenged in the appeal, the petitions in \hich these decisions have been recorded will be taken up one by one. SIUKI \T PETITION No.13 OK 19X3. The petition relating to this section in the Shai iat Court \as that the mode of execution of sentence of Qasas has not been specified and lias been lelt to be decided, by the Jail Authorities. It was pleaded that in accordance with the Quran and Sunnah the sentence of Oasas has to be carried om by use ol sword or some other mode which should Iv similar to !he mod, b 1 . ^hicfi ihc offence had been epugnant lo liu ini^'UK---. o! h-iani and di.-o thai it ni.iv luithei be deckn\d ili.i! no tiihor auiiionK' .\,:vf.; the coir.iciing CVuirt had the po\er lo decide a.- to v.luit mode -Jiould he a'.i-jp'^J !oi carrving into cTiccl the sentence of Qasas. The Shariat Court was of the view that Section 29 of the Act clearly provides that the sentences under the Act shall be implemented in accordance with the injunctions of Quran and Sunnah. Therefore the question of this section being repugnant to the injunctions of Islam did not arise. The Court formed the view that it was not within the purview of the Shariat Court to grant a declaration that it was necessary that mode of execution of the sentence, be provided for in the section. The Shariat Court was also of the view that the points raised in the petition stood resolved, among others, in a judgment of this Court titled 'Mehtab Klian vs. State' (PLD 1979 SC AJK 23). Kh. Mohammad Saeed Advocate could not advance a valid reason how the Shariat Court could disregard the dictum of this Court in Mehtab Khan's case in which this question has been specifically decided in the following words:- "It may also b'e stated that it is not necessary that the death should be inflicted by chopping off the head of an accused (Mehtab Khan) wilh a sword as directed by the trial Court because the main purpose in cases of 'Qasas' is to take life for life as commented by Maulana Maududi in 'Tafheem-ul-Qur'an Vol.1, Sura II, Ayats Nos.176, 178,179,page 167, foot­ note 176 and not that the murderer should be done to death by chopping off his head with a sword. Therefore, we direct that Mehtab Khan shall suffer punishment in the normal way i.e. by being hanged by neck till he is found dead besides the payment of 'Hakoomat-e-Addal' as ordered by the trial Court". We agree with the Shariat Court that Section 29, rather than being against the injunctions of Islam, is aimed at ensuring that injunctions of Islam shall be followed while executing sentences awarded under the Islami Act. We are also satisfied that the dictum of Mehtab Khan's case reproduced above should be followed. (1) Shariat Petition No.202 of 1983. (2) Shariat Petition No. 11 of 1983. It is convenient to dispose of these two petitions together because their contents overlay each other. These petitions relate to the following provisions of law:- (/) Section 118 of the Evidence Act. (if) Section 134 of the Evidence Act. (//'/) Section 26(2) of the Islami Tazeerati Qawancen Nafaz Act. (/v) Section 29 of the Islami Qawaneen Nafa/, Act. (v) Section 368 of the Criminal Procedure Code. The Shariat Court dismissed both the petitions as already noted. Among other reasons recorded by the Shariat Court, one of the reasons for dismissal of these two petitions is that the provisions of Islami Tazeerati Qawaneen Nafaz Act cannot be examined by the Shariat Court as the Act forms part of personal law which stands exempted from the operation of the Shariat Ordinance. Kh. Muhammad Saeed Advocate submitted that the Shariat Court was wrong in holding that the Islami Act is a personal law. He submitted that the aforementioned Act is a penal law which contains the definition of certain offences and also prescribes the punishment thereof. He also attacked the view of the Shariat Court that the point raised by him stood concluded by judgments of this Court mentioned above. So far as Sections 118 and 134 of the Evidence Act are concerned the ; challenge against them has become infructuous because Evidence Act 1872 as enforced in Azad Jammu and Kashmir has since been repealed and its place has been taken by the "Qanoon-e-Shahadat", an Act about which it has been claimed that it conforms to the injunctions of Islam. Whether it is so or not we leave it to be decided when this question comes before us. Evidence Act was replaced by 'Qanoon-e-Shahadat' in Azad Jammu and Kashmir on 4th of January 1988 which is many months before the impugned decision of the Shariat Court was recorded. It will be futile exercise to decide the question whether these provisions of the repealed Evidence Act were repugnant to injunctions of Islam. Section 26(2) of the Islami Act lays down that the Qazi would conduct purgation of witnesses. The objection regarding this .section is that it does not provide that when the Qazi reaches the conclusion that a witness is 'AadaP this j fact should be recorded and acted upon and also that the grounds on which his! findings are based be disclosed. The Shariat Court has in its order passed in Shariat application No.ll of 1983 held that matters relating to the procedure of any Court do not fall within the purview of the Shariat Court Ordinance and also ! that how purgation has to be conducted has been settled in the light of Islamic j injunction by this Court in 'Abdul Razzaq vs. State (PLD 19S8 SC AJK 191) and \ D 'State vs. Pi'mno KJwn' (PLD 1984 SC AJK 1). We find that the reason recorded J by the Shariat Court is unexceptionable. Purgation of witnesses is part of the [ procedure of the Courts set up under the Islami Act while the laws relating to the f procedure of any Court have been kept out of the operation of the Shariat Court Ordinance. In any case, nothing has been brought to our notice that the procedure laid down by this Court in the two cases just mentioned is not in consonance with the injunctions of Islam. Section 29 of the Islami Act has already been reproduced above. This section is linked to Section 368 of the Criminal Procedure Code which lays down that when any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead. The objection with regard to these provisions of law is that this is not in accordance with the mode prescribed by the Islami Shariah. It is not stated in the application as to how, according to the appellants, sentence of Qasas has to be carried out but it appears that the contention is that it has to be done by chopping off the head by sword. As already noted this question has been settled by this Court in 'Mehtab KJian's case and the relevant part of the judgment has been reproduced in earlier part of this judgment. Before parting with the cases we have to take note of the view taken by the Shariat Court that Islami Tazecrati Qawaneen Nafaz Act is a personal law and is therefore outside the purview of the Shariat Court Ordinance. The Shariat Court has only dealt with this point briefly and has not recorded any reason which led it to the conclusion that the aforementioned Act is a part of personal law. Personal law has been defined in Black's Law Dictionary as follows:- "Personal Law opposed to territorial law is the law applicable to persons not subject to the law of territory in which they reside." In light of this definition the view taken by the Shariat Court docs not seem free from doubt but since the points involved in these cases have already been decided on different grounds it no longer is necessary to decide the question whether Islami Tazeerali Qawaneen Nafaz Act is personal law and we leave this question open to be decided in a case where it may be necessary to decide the question. Meanwhile it shall be deemed as if this point has not been decided by the Shariat Court. Shariat Petition No.12 of 1983. The learned counsel for the appellant has not pressed the part of the appeal relating to the decision of the Shariat Court in respect of Shariat Petition No.12 of 1983. This petition relates to Sections 118 and 138 of the Evidence Act which stands repealed, as already noted. As a result the appeal fails and is hereby dismissed. (MBC) Appeal dismissed.

PLJ 1990 SC (AJK) 48 PLJ 1990 SC (AJK) 48 [Appellate Jurisdiction] Present: raja muhammad kiiurshid kiian, CJ, sardarsaid muhammad khan and sardar muhammad ash raf khan, JJ Raja MUHAMMAD NIAZ KHAN-Appellant versus AZAD GOVERNMENT OF JAMMU & KASHMIR-Respondent Civil Appeal No. 36 of 1988, accepted on 17.3.1990. [On appeal from judgment and order of Service Tribunal, dated 20.4.1988 in Service Appeal No. 296 of 1986] (i) Azad Jammu & Kashmir Civil Servants Act, 1976-- —S. 12(ii) Government servant—Compulsory retirement of—Challenge to- Alleged incident of 15,9.1985 wherein appellant is said to have offered Rs. 5000/- to Prime Minister as bribe or Nazruna, was immediate cause of his retirement in estimation of Service Tribunal-Held: Same having been owned by Additional Advocate General, during course of arguments, there remains no alternative for court to hold that immediate cause of appellant's retirement was alleged incident. [P.53]A (ii) Azad Jammu & Kashmir Civil Servants Act, 1976-- —S. 12(ii)-Governmcnt servant-Compulsory retirement of-Challenge to- Annual Confidential Reports relate to a remote period and would not be relevant for determining whether appellant should be retired compulsorily or not-Most of ACRs which are in favour of appellant, have not been taken into consideration by tribunal—Held: Order of retirement of appellant is only passed being influenced by incident of 15.9.1985 and ACRs have been read into evidence-Held further: Action against appellant under Section 12(ii) is a pure and simple incorrect and illegal exercise of jurisdiction. [Pp.55&56]H,.I&K AIR 1984 SC 630 rel. (ill) Azad Jununu & Kashmir Civil Servants Act, 1976-- —S. 12(ii)—Government servant—Compulsory retirement of—Challenge lo— Consideralion ol suitability of an officer for his being kept in service in public interest, must necessarily be left to satisfaction of employing authority, but unfettered authority cannot be given to Government to do whatever it likes even disregarding provisions of law and rules—Held: Power of courts lo look into causes to determine real intention of Government, cannot be taken away and in fact, such a power is inherent in courts—Held further: If order of compulsory retirement is arbitrary, it is liable lo be interfered with by courts. '[P.54JC&D AIR 1971 SC 40 rel. (iv) Azad Jammu & Kashmir Civil Servants Act, 1976— —S. I2(ii)-Government servant-Compulsory retirement of-Challcngc to- Ordinarily. it is for Government or competent authority to see as to whether public in!crest demands retirement of a public servant, but there must exist circumstances to suggest that action was taken in public interest—In this case, Government has taken into consideration incident of 19.5.1985 for retiring appellant compulsority—Held: Government has not exercised ils discretion properly and in a judicial spirit-Appeal accepted. f Pp.56,57<fc5')]L,M,N&Q PLD 1956 Lahore 129, PLD 1960 SC (Pak.) 113, PLD 1960 SC (Pak.) 313, PLD 1969 SC 14 and PLD 1970 SC 98 rcl. (v) Azad Jamimi & Kashmir Civil Servants Act, 1976— —S. !2(ii)-Governmcnl servant—Compulsory retirement of—Challenge lo-- Whether Courts are competent lo look into desirability or otherwise of order— Question of—Compulsory retirement is different from removal or dismissal— Removal and dismissal can be made under Disciplinary Rules wherein elaborate inquiry is needed—In eases of compulsory retirement, order must be based on material suggesting that order was in fact passed within spirit of Section 12(ii) in public interest—Held: It is correct that courts have no competence to look into desirability or otherwise of order passed, but courts positively have authority lo determine whether order is passed under a certain Act or it is only disguised as such and proper course was to proceed under some other law or rules. [P.53JB (vi) Azad Jammu and Kashmir Civil Servants Act, 1976- —S. 12(ii)—Government servant—Compulsory retirement of—Challenge lo— Whether Section 12(ii) was correctly applied—Question of—Appellant is alleged to have offered bribe or Nazntnu to Prime Minister-He would have been considered guilty of gross misconduct and beneficial and less stringent provisions ol S. 12(ii) as compared lo Disciplinary Rules cannot be attracted in public interest—Held: Action under provisions of Civil Servants Act would be considered to be illegal exercise of powers and such an action cannot sustain. [P.:o|C; (xih Interpretation ot'Statutes- — Libeial and beneficial construction—Rule of—Law is well settled that statutes of type (Civil Servants Act) can only be interpreted liberally if a case can fairly be brought wiihin its scope and not othcrwise-Under general rule of construction of remedial statutes, duty to construe a statute liberally is subordinate to general purpose that all statutes should be construed and applied to accomplish legislative intent-Held: Beneficial construction should never be applied to extend application of statutes to cases like this case. [Pp.54&55]E&F Corpus Juris Sccondum Vol. 82, Page 919, (120 F. 2d.l), 52 F. Supp. 913,103 P. 2d 498, 187 Okl. 432,10NW 2d 406, 215 Minn. 394, 147 ALR 945 rel. M/S Rafiquc Mahmood KJian and Shahad Ahmad, Advocates for Appellant. Mirza Muhammad Nisar, Additional Advocate General for Respondent. Date of hearing: 17.3.1990. judgment Raja Muhammad Khurshid Khan, CJ.--This appeal, by leave, directed against the judgment of the Service Tribunal dated 20.4.1988 whereby the appeal filed by the appellant, Raja Muhammad Niaz Khan herein, a civil servant, was partially accepted, arises in the following background:- By virtue of Government Order No.27-71/85 dated 18.9.1985, under section 12(ii) of the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as Civil Servants Acl), Raja Muhammad Niaz Khan, appellant herein, a Secretary to the Government, was retired from service. At the time of his retirement, he was working as Chairman Azad Kashmir Mineral and Industrial Development Corporation and Managing Director, Logging and Saw Mills Corporation. 2. Raja Niaz questioned the validity of the aforesaid Government Order by way of a review petition before the Government. The petition was still pending when he felt advised to roll in an appeal before the Service Tribunal to challenge the validity of his retirement on various grounds. All the grounds need not be detailed here as most of them had already been disposed of vide judgment dated 10.2.1987. The review petition of the appellant, however, was dismissed during the pendency of appeal before the Service Tribunal vide order dated 4.5.1986. The order made in the review petition was also sought to be avoided and an amendment in the memorandum of appeal was accordingly effected. The learned Service Tribunal, however, could not be persuaded to vacate the retirement order and consequently the appeal was dismissed on 10.2.1987. This order of the Service Tribunal was earlier challenged in unal has drawn a wrong conclusion that llie retirement of the appellant was in public interest for his bad A.C.Rs. 5. As against this Mirza Muhammad Nisar, the learned Additional Advocate General, appearing on behalf of the Government, has controverted all the stands taken by the appellant and contended that the action taken by the Government under Section 12(ii) of the Civil Servants Ac! was in public interest and it was not necessary for the Government to proceed under the stringent provisions of the Disciplinary Rules. 6. We have considered the arguments advanced at the bar. In the first instance we deem it proper to take up points Nos. (iii), (iv), (v) and (vi) listed above. Let us look into the method and way in which the learned Sen-ice Tribunal has disposed of the question of colourable exercise of powers. This Court, vide its judgment dated 8.3.1°S8, remanded the case to decide, amongst others, the following two questions also:- (0) Whether the authority passed the order dated 18.°.1°85 influenced by the incident dated 15. ( ).1985? (h) In case the answer is given in affirmation, whether the ease of authority is colourable exercise of powers? 7. The Tribunal answered these issues in the following way:- "Keeping in view, the circumstances of this case, we are convinced that the authority passed the order influenced by the action of the appellant, evidenced in letter of the Secretary to the Prime Minister. The second aspect, whether the powers were exercised in colourable manner, we have to refer to the material, i.e., the service record as well as the document described hereinbefore." 8. In the circumstances, the question which would need consideration is as to whether the order of the Government would be considered as to have been passed in colourable exercise of the powers and jurisdiction or it would be said that it was correctly passed within the spirit of Section 12(ii) of the Civil Servants Act. If the order can be considered to have been rightly passed under Section 12(ii) of the Civil Servants Act, the order needs no interference, but if the order could not or ought not to have been passed under the provisions of Section 12(ii) of the Civil Servants Act and it only attracted the provisions of Disciplinary Rules, the order being bad in law is to be recalled. The appellant, it is held by the Service Tribunal, was retired under Section 12(ii) of the Civil Servants Act mainly influenced by' the incident of 15th September. I l

,s5. 9. What \as this incident? It is covered by a note made by Mr. A.R. Saleem. the Principal Secretary to the Prime Minister on IO.lu.lU;s5. This note v\,is endorsed to the Accountant General with a copy to the Chief Secretary. 10. Let us see what the note is. It reads as under:- The of 15.9. 19S5 under which the appellant is said to have .: Minister the bribe or 'naxrana' in the sum of Rs.50()0/-, in it : the Service Tribunal, was the immediate cause of the retirement 1 liu jpp^Kjnt. Though we do not find, neither we are shown any order or note made by the Government prior to the appellant's retirement order showing that it was decided to retire the appellant on the basis of the alleged incident of A i 5. 9. 1985, yet since the Government has not challenged the finding recorded by "he Service Tribunal which was also owned by the Additional Advocate General, appearing on behalf of the Government, during the course of arguments in this Court and before the Service Tribunal, there remains no alternative for us to hold 'hat the immediate cause of the appellant's retirement was the alleged incident of '.5 ''.l'.'^5 referred to above. 11. 1: ~.:v be o'N-r%cd here that the compulsory retirement is different from r^m«j'.al or di^^ni^^ai. Removal and dismissal can be made under the Disciplinary Rai^s wherein elaborate inquiry is needed. We are also alive to the fact that there n'.ay be '^:ruiy of reasons which may compel a Government to compulsorily retire _;-; o:.iccr having completed the period of service qualifying him for pension and ;he Government alone is the best judge of those reasons and it would neither be p>^ibL' nor admissible for the Courts to sit on the judgment over the action of ::'.e Government. But one thing is certain and settled that in such cases the order , t retirement must be on the basis of material which may suggest that the order •••••a- in tact passed within the spirit of Section I2(ii) of the Civil Servants Act in ; ul'hc interest. It is correct that the Courts have no competence to look into the desirability or otherwise of the order passed, but the Courts positively arc clothed v.i;h the authority to determine the fact as to whether, in the circumstances of a given case, the order is passed under a certain Act or it is only disguised as such i.r.J she proper course was to proceed under some other law or rules. Therefore, we are legally bound to dive deep to know as to whether the reasons and grounds which prompted the Government to retire the appellant, a public servant, under Section 12(ii) of the Civil Servants Act were in fact existed (?) to invoke the provisions of section 12(ii) of the Civil Servants Act or they are perfunctory or artificial to suggest that the retirement has in fact been influenced otherwise than in the interest of public. 12. We arc not oblivious of the fact that there may be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for his being kept in service in public interest. An intelligent and efficient public officer may not, in circumstances, be thought fit to be kept in service and in certain circumstances may be considered as unsuitable to be retained in service in public interest. On the other hand in some cases even an officer of average capability may be regarded to be a fit person to be kept in service. This is a matter which an employer can determine and, therefore, it must necessarily be left to the satisfaction of the employing authority. But in this age, when the fundamental rights and the rights of employees duly recognized in Islam are being respected throughout the World, we cannot give unfettered authority to the Government to do whatever it likes even disregarding the provisions of law and rules. Therelore, if the material against a Government servant leads to the conclusion that he is guilty of misconduct it would not be in the public interest to retire such an employee under Section 12(ii) of the Civil Servants Act: ruthu the public interest would be best served if he is proceeded against under the provisions of Disciplinary Rules. In such circumstances if action is taken under Section 12(ii) of the Civil Servants Act, it would be construed to be a disguised action not for the purposes stipulated under Section 12(ii) of the Civil Servants Act and naturally such an act cannot sustain as the same is to be construed to be an illegal action. Such an order naturally is to be termed as to have been passed not for the purposes of public interest stipulated under Section 12(ii) of the Civil Servants Act but for the purpose different from the one stipulated under Section 12(ii) of the Civil Servants Act. As said earlier, the power of the Courts to look into the causes to determine the real intention of the Government cannot be taken away and in fact such a power is inherent in the Courts. 13. In cases calling for action under the Disciplinary Rules, referred to above, another factor, i.e., the possibility that at times the Government may, for avoiding the notice and inquiry, choose to proceed against a Government servant under Section 12(ii) of the Civil Servants Act on grounds nol admitting the provisions of the Civil Servants Act. cannot be totally ignored and this aspect should always receive due consideration at the hands of the Courts. 14. There is another important aspect of the case to be looked into. Power to retire a Government servant compulsorily under Section 12(ii) of the Civil Servants Act in public interest is absolute provided the authority concerned forms the opinion objectively and comes to the conclusion that it is necessary to pass such an order in public interest. If such a decision is arbitrary, it is liable to be interfered with by the Courts. Our view is fully supported in Union of. India v. J.N. Sinha (A.I.R. 1971 S.C. 40). 15. The law is well settled and is consistently recognised all over the world that in statutes of the type (Civil Servants Act), regard should be had to the former law. the delects or evils to be cured or abolished, or the mischiefs to be remedied, and the remedy provided. They can only be interpreted liberally if a cas^ can tairly be brought within its scope and not otherwise. We are supported in our view In Corpus Juris Sccundum, Vol. 82, page 919. lo. Beside?, under the general rule of construction of remedial statutes, the 'uty to construe a statute liberally is subordinate to the general purpose that all ••atutes should be construed and applied in such a manner as to accomplish the ji'jy.aiive intent. Such a law should not be applied for the purposes and objects entirely bevond those mentioned therein. Likewise the rule of liberal and peneficial construction should never be applied so as to extend the application of statutes to cases (as the case is before us) not within the contemplation of the legislature as any attempt on the part of the Courts to do this would constitute judicial legislation. From foreign jurisdiction, we are fortified in our view in Kcvaune Mini/is Co. v. Grav, CCA3. (120 F.2d 1) Brown v. Click Bros. Lumber Co.. D.C.Cai. (52 F.Supp. 913). Watkinson v. Adams (103 P.2d 498,187 Okl. 432), c/;;h.v;v,>i v. He'Tumn Transp. Co:, (10 N 7 .W. 2d 406, 215 Minn. 394. 147 A.L.R. 945). 17. Therefore, on the above statement of law which admits of no doubt, if we say that even cases which fairly come within the scope of the Disciplinary Rules can be brouuht within the scope of Section 12(ii) of the Civil Servants Act, it would be an interpretation not warranted under law. The Service Tribunal, we are convince!, has mud,. ..n interpretation which amounts to a judicial legislation not justified under la«. \'hither a party pleads a law or rule is immaterial because as observed in Corpus Juris Secundum, Vol. 82, page 1019, the "Statutes are read into every pleadings". 18. Coming lo the instant case if the appellant, as alleged, had offered bribe or 'nazruna' to the Prime Minister, the appellant would be considered to be guilty of gross misconduct and beneficial and less stringent provisions of Section 12(ii) of the Civil Servants Act as compared to the provisions of the Disciplinary Rules cannot be attracted in public interest. If such a provision is made applicable it would be said that action has been taken under a law whose provisions were not applicable lo the case. In such cases, the public interest would be best served if he is proceeded against under the stringent provisions of Disciplinary Rules. In such a case acuoi'i under the provisions of Civil Servants Act would be considered to be illegal exercise ot the powers and such an action cannot sustain. 19. The Annual Confidential Reports of the appellant have also been taken into consideration by the Service Tribunal. The Service Tribunal is of the opinion that the Prime Minister also felt advised lo take action under Section 12(ii) of the Civii Servants Act on the basis of confidential reports. These confidential reports relate to a remote period and they would not be relevant for the purpose to determine the fact as to whether a person should be retired compulsorily or not. Even otherwise, most of the annual confidential reports which arc in favour of the appellant have not been taken into consideration by the Service Tribunal and thus ihe Annual confidential reports read against the appellant provide little rather no iiri'und to hold that the retirement of the appellant was cflected in public interest.! We are supported in our view in J.D. Shrivuslava v. Stale oj M.P. (A.I.R. 1984 S.C. o.Vn. The learned Additional Advocate General, during his arguments, has also. placed no reliance (in the annual confidential reports to support the finding of the Service Tribunal. 20. Besides, on perusal of the entries in the personal file and confidential reports of the appellant, there is nothing to show that suddenly there was such deterioration in the quality of the work of the appellant or integrity so as to necessitate his compulsory retirement. Therefore, we are convinced and it is also agreed by the Additional Advocate General that the order is only passed inlluenced by the incident of 15.9.1985 and the annual confidential reports have been illegally read into evidence. 21. What do we mean by colourable exercise. For the meaning of the w : ord "colourable" we may refer to Black's Law Dictionary. It says:- That which is in appearance only, and not in reality, what it purports to be, hence counterfeit, feighned, having the appearance of truth." In Webster's Dictionary, this word has been explained as under:- "1. Capable of bcinti colored. 2, designed to cover or conceal; apparently, valid or plausible, but actually specious; as a colorable pretense; a colorable excuse." It thus admits of no doubt that the action against the appellant under Section 12(ii) of the Civil Servants Act is a pure and simple incorrect and illegal exercise of jurisdiction. Such a recourse is in fact misuse of the statute or law because the appellant, for the alleged act of 15.9.1985, ought to have been proceeded against under the Disciplinary provisions of service rules. It appears that the Government was probably ill-advised to proceed under Civil Servants Act and not under Disciplinary Rules. 22. The Disciplinary Rules, it is to be noted, provide an opportunity and notice to the appellant to defend himself. Proceedings against the appellant under Section 12(ii) ol the Civil Servants Act. therefore, were neither desirable nor legal. The possibility of the appellant to emerge as innocent if proper inquiry would have been conducted under the Disciplinary Rules, cannot be excluded. Therefore, there can be no room for the argument that since the sole support for the accusation against the appellant consists in his alleged offer of bribery/na/rana to the Prime Minister, no inquiry was necessary as stipulated under the Disciplinary Rules. This is an argument which is to be discarded outright. 23. Therefore, our conclusion is that if from material disclosed it appears that the action taken against a Government servant was merely in illegal exercise of or in abuse of powers, such an order shall be considered as to have been passed not in public interest and is to be struck down. We are fortified in our view in Cli. Muhammad Ismail v. Tlic Punjab Province (PLD 1956 Lah. 129). Zafar-ul-Hasan v. The Republic of Pakistan (PLD 1960 S.C. (Pak.) 113), Joygim Bibi v. The State [PLD I960 S.C. (Pak.) 313] and Government of West Pakistan v. Begum Agliu Abdul Karim Shorish Kashmiri (PLD 1969 S.C. 14). All the above aulhorilies were considered by Justice Hamoodur Rahman, Chief Justice (as he then was), in Lt. Col. Far-ami All v. Province of West Pakistan (PLD 1970 S.C. 98) in which it was observed:- "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may compel a Government to eompulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power." 24. Therefore, we are of the considered view that ordinarily, it is for the Government or the competent authority to see as to whether public interest demands the retirement of a public servant. The Service Tribunal or this Court will not interfere with or revise the opinion of the Government, if there is anything on which the Government could reasonably proceed under Section f2(ii) of the Civil Servants Act in public interest. But there must exist circumstances to suggest that the action was taken in public interest. Thus, if circumstances show that the order was made in illegal exercise of powers for the purposes different from the M one stipulated under Section 12(ii) of the Civil Servants Act, the order will be struck down. In such event, the presumption attached under Section 12(ii) of the Civil Servants Act that the retirement has been effected in public interest stands rebutted: and it would be said that the removal was made not in public interest, rather was made in illegal exercise of powers not in accordance with law, i.e., Section I2(ii) of the Civil Servants Act. 25. In the case before us, in the estimation of the Service Tribunal, the Government in taking action has taken into consideration the incident of 15.9.1485 to retire the appellant under Section 12(ii) of the Civil Servants Act. This fact is even admitted by the Advocate of the Government (Additional Advocate General). In the circumstances, the Government failed to proceed in accordance with law, i.e., within the spirit of section 12(ii) of the Civil Servants Act. Therefore, we are of considered view that the contention that the Government has not exercised its discretion in a judicial spirit in the sense that the Government has ' allowed consideration to affect its decision which has no relevancy under the urms of Section I2(ii) of the Civil Servants Act, has substance. If the Government lias allowed itsJf I 1 take into consideration a matter which had no bearing upon the merits of the ca^e. it would be said that the Government has not exercised its discretion propcrlv. We are fortified in our view in Rex v. London Council [(1915) 2 KB 266], 26. Whether the order was urgently called has also importance. The Prime Minister (Government), it is the appellant's case which is also owned by the Service Tribunal, had passed the order mainly influenced by the incident of 15.9.1985. The alleged incident constitutes grave misconduct and the appellant was required to be proceeded against under Disciplinary Rules. The appellant could be suspended and there was hardly any need for immediate order of retirement. 27. We agree with the learned Service Tribunal that at the time the order was passed, no notice was visualised under section 12(ii) of the Civil Servants Act. Nevertheless, since we have come to the conclusion that the order was passed in illegal exercise of the power, the same needs to be recalled. The Government cannot he given unlettered powers to have its own ways in choosing the law or rules bcsl suited lo il. if we allow this, it would not only he unjust hut would also open door lor arbitrary actions. 28. !l is to be noticed that the Legislature which grants powers to an authority lo pass an order wants il to he exercised fairly, reasonably and cauiiously. It cannot he said thai the Legislature supports caprice, malice or wanton action. These are evils and evil the Legislature cannot intend. We believe that the Service Tribunal was also conscious of ihc fact that the order passed by the Government was not in public interest within the spirit of Section 12(ii) of the Civil Servants Act. We say so because the Service Tribunal allowed the appellant all benefits .\u<> molit upto 1.12.1987 without any request. '2'). We may not, however, be misunderstood to be savins: that in every case of exercise of executive powers the Court will itself determine what is the proper order lo be passed and so substitute its judgment for that of the executive. That would be usurping the functions of the executive. Therefore, where the order is passed within Ihe spirit and in conformity with the relevant law, it would be said thai the order is passed justly, fairly and reasonably and the Court will not disturb such an order. These are the only limits of the inquiry by the Court. But statutory powers must he exercised reasonably and with due care. A body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of the Courts if it can he shown that the action taken is otherwise tainted with some glaring defect even short of mala fide, as the circumstances of this case suggest. 30. Il is to he noted that a multitude of Acts, something is left to be done according lo the discretion of the authority on whom the power of doing il is conferred, the discretion must he exercised honestly and in the spirit of the statute olhcrwise ihe act done would not fall within the statute. In exeicise of discretion an act is lo be done according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised nol capriciously, but on solid grounds and for substantial reasons. It must also he exercised within the limits to which an honest man ought to confine himself, that is, within the limits and for the object intended by the Legislature. 31. Our conclusion, theretore. is that the Government has exercised the discretion to retire the appellant under ihe provisions of Section 12(ii) of the Civil Servants Act in an illegal fashion as in the circumstances, ihe provisions of Civil Servants Act had no application and the appellant could only be proceeded against under the Disciplinary Rules. Since we have come to the conclusion lhai ihe action taken hy the Government was nol in conformity with Section 12(ii) of the Civil Servants Act and needs to he recalled, the question whether the removal of the appellant constitutes a sligma necessitating a notice prior to his retirement. remains only of academic inleresl and so we leave it undecided to he looked into where its decision is necessary. 32. Before parting with the case, we deem it proper lo refer lo the case emit led, Ihdnl Ku/im \". The West Pakistan Province [P.L.D. !'>.% S.C. (Pak) 2'«|. This case was relied upon hy the learned Additional Advocate General in support of his argument that il was open lo ihe Government not to have recourse to tin. power til dismissal stipulated under the Disciplinary Rules. We have examined this case. It has no relevancy to the case in hand. In that case. Abdul Karim, a temporary Mechanical Overseer in the Pakistan Public Works Department was employed in the year 1946 temporarily with the condition that his service may be terminated on one month's notice. On 23rd October 1948 a list of charges of misconduct was served on him and he was asked to show cause whv he should not be dismissed. He answered the charges but no action was taken on the basis of that enquiry. He was, however, served on 8lh December 1948 with a notice by the Superintending Engineer terminating his services on the expiry of one month from 9th December 1948. In this background it was contended that the termination of the petitioner's service was mala fide one as earlier it was nol thought advisable to take action against him on the basis of the inquiry held. The Court repelled the contention with the observation that it is easy to conceive of casei- where the authority competent to dismiss a public servant employed on the same conditions and ii would hardly make any difference lhal after due inquiry no drastic step of dismissal was taken. 33. ObviousK this case has no similarity wilh the lads ol the present case. AHJ'jl fvir:m in that case was employed on the condition that he could be removed on one month's notice as stipulated in his appointment order. No douhi. uk inquirv was held against him earlier lo his removal but no action was taken against him. Therelore. the law laid down in thai case, we believe, has no applicabililv lo the laits of the present case. The up-hot oi the wholi. discussion is that for the above staled reasons, we a.^pt this .ippc.iL s_i aside the order of Service Tribunal dated 20.4.1988 and rs.cail LfK ri.tircp.iuu order of the appellant made by the Government on I s.si.lsixs. However, ihe Government, if feels advised, may proceed against the appellant under the relevant rules. The appeal, thus, succeeds with costs. fMBCi Appeal accepted.

PLJ 1990 SC(AJK) 59 PLJ 1990 SC(AJK) 59 [Appellate Jurisdiction] R SAID MUHAMMAD KHAN. AC.I AND BASHARAT AHMAD SHAIKH..! ABDUL AZIZ-Appeiiant versus A/.vf. BABU .IAN and 9 others-Respondent Civil Appeal No. 39 of 1987. dismissed on 2('>.<>.lWO [On appeal from judgment of High Court, dated 22.lU.l98o. in Civil Appeal No. 72 of 1986) Civil Procedure Code. 1908 (V of 1908)-- — O.XX1I, Rr. 3 & 4--Dcalh of plaintiff—Legal heirs of —Bringing on record in connected suit in superior court-Whethcr suit abatcd-Qucstion of-Two suits had been consolidated for hearing and in view of consolidation, two files had hcL'ii inler-linked and inseparable—It is clear that case of respondent No, 1 was also a part of record before Supreme Court when legal representatives of Muhammad Ashraf were brought on record—Held: Requirement of rules 1 and 4 of Order XXII CPC was complied with namely that legal representations were brought on record-Appeal dismissed. |Pp.62&63|A&B 1970 SCMR 554/ Kli. Shaliatl Ahmad. Advocate lor Appellant. Raja Slier Muhammad. Advocate for Respondent No. 1 Dales of hearing: 0 and 12.5.1000 and 10.6.1000. judgment Basharat Ahmad Shaikh, J.--On 25th July, 1967, one Afriq Khan transferred a piece of land to Abdul Karim, Sain Muhammad Ali and Sher Ahmad through a registered sale-deed. The sale was sought to be pre-empted by Muhammad Ashral and Mst. Balm Jan in two separate suits which were instituted in the Court of Sub-judge Bagh, respectively, on 2nd July 1068 and 2nd August 1068. As required by Section 27 of the Right of Prior Purchase Act, both the plaintiffs were joined in the cross suits as defendants. The two suits u.ere also consolidated for hearing by order passed on 30th of April I960. It appears from the record that alter the order of consolidation on 30th of April 1060 the proceedings in the consolidated cases were taken in the suit filed by Muhammad Ashral. The common issues, which were framed on 2.6.1060. were recorded in.this file and the order for production of evidence was also recorded in the same file. In the other file relating to the suit filed by Mxt. Babu Jan the learned Sub-Judge only recorded the interim orders that the file would com^ up on the rvxt date along with the other file. On 20th of January, 1060, one of vendees, Sain Muhammad Ali, passed away and Mst. Babu Jan plaintiff filed an application that the legal heirs of the deceased defendant may be brought on the record. This application was moved on 27th of March, 1060, in the suit filed by Mst. Babu Jan and was, after having been kept pending for some time, accepted on 18th of March. 1070. It may be noted here that Sain Muhammad Ali died before consolidation of the suits and the application for bringing on record his legal representatives was also moved on a elate prior to the ilale on which the two suits were consolidated. An application having been moved on 12.2.1070 in the other suit the learned Sub-Judge ordered on 18th of March 1070 that the suit filed bv Muhammad Ashral had abated to the extent of Muhammad Ali. When the order was announced on 18th of March an application was moved on the same day on behalf of the other vendees that since the transaction was indivisible the whole suit should be dismissed. While this application was awaiting decision, Muhammad Ashral applied on 28lh of March 1970 for setting aside of the abatement order and for bringing on record the legal representatives of Muhammad Ali. He listed many reasons in support of the application including the fact that he had all along been living in Karachi and also the protracted illness of his counsel at Bagh. The application was accepted on 21sl of December and the abatement was set aside. However, the name of one of the heirs, Mst. Ansari Begum daughter of Muhammad Ali, was left out and was not included amonij the heirs ol the A r.vision was taken against this order to the High Court which was _ Division Bench on 8th June, 1975. It was held that the suit had cx;cnt of Muhammad Ali. A certificated appeal initially filed in the decided by this Court on 15th January, 1984, and it was held suit filed b Muhammad Ashraf had abated insofar as it related to V/hii;- the aforementioned appeal was pending in this Court Muhammad A 5 :::;;[ died. An application was made for bringing on record his legal representatives. The application was accepted on 30th December, 1982. When the file went back to the learned Sub-Judge at Dhirket an application was made in the suit filed by Mst. Babu Jan that Muhammad Ashraf had died but Mst. Babu Jan

.j j not applied for impleading the legal representatives of Muhammad Ashraf, tlu:;:ore. her suit had abated. It was prayed that the suit may be dismissed. The learned Sub-Judge dismissed the application on 29th July 1986 on the ground that ieeal representatives of Muhammad Ashraf had already been validly brought on :vco; \ when the matter was before the Supreme Court; as such the question of .-.':• :.:ement did not arise. A revision petition was filed in the High Court by Abdul A, i/ son of Muhammad Ali in which he challenged the order of the learned Sub- JuJec. Ii was contended that the legal representatives of Muhammad Ashraf had been brought on the record in the suit filed by Muhammad Ashraf and not in the suit filed b\ M-:. Ba:m Jjn ,::~.d it v,as necessary for Mst. Babu Jan to formally ir.o 1 . . .::' arrii.... rcrpo^ of impleading the legal representatives of M .:;•..: :v.:v. ad A- [ fi'.cd bv her and she could not take advantage of the ore.: -cd :a the Supreme court because that order was confined (• i.v. ^.t :: ; jj h\ Muhammad Ashraf. The revision application was dismissed by a .earned Judge in chambers on 22nd of October 1987 which gave rise to the present appeal filed with the leave of the court. Kh. Shahad Ahmad, the learned counsel for the appellant, vehemently contended that the reasoning adopted by the learned Judge in chambers was not legally sustainable. He .submitted the view taken by the learned Judge in the High Court that the requirement of Order 22, rule 4 of the Civil Procedure Code had K.:'. -. 'niH^d with by impleading the legal representatives of Muhammad Ashraf ..'. ./-. s --~:.:"- l. :::'. •'• .^ noi ^ncct. Kh. Shahad Ahmad submitted that the ,;: v/.^.;",. .'. : : ,..';re .. .'i r.^.'rd the leizal representatives ol Muhammad Ashraf :',.;j r.'ji b^ j;: ;",',„.. :". '.,'.•;. Babu Jan and she, theretore, could not take advantage ot the proceeding.-, la^r. on the application moved by the heirs of Muhammad Ashral because they were confined to the suit filed by Muhammad Ashraf. He vab:";iteJ that the dispute which had been brought to this court arose out of the suit filed b\ Muhammad Ashraf and not in the suit filed by Mst. Babu Jan. The suit filed by Mst. Babu Jan was, therefore, not before the Supreme Court and there is no justification lor applying the principle that if a person is brought on record in the superior court he will be deemed to have been impleaded in the trial Court file. Kh. Shahad Ahmad also pointed out that in the previous order of this Court abatement was ordered to the extent of Muhammad Ali inspite of the fact that in the cross suit all the legal representatives of Muhammad Ali had been impleaded by Mst. Babu Jan. His argument was that if it was the correct principle of law that legal representatives impleaded in one case would be deemed to have been impleaded in the other case then there should have been no abatement in the, previous round of litigation which ended with the Judgement of this court passed on 15th oi January, 1984, Raja Sher Muhammad on the other hand submitted that it was now well settled that if in the superior forum legal representatives of the deceased person are brought on record that dispenses with the necessity of filing an application for that purpose in the suit pending before the trial Court. He also contended that in the light of this principle where there are two suits which have been consolidated for hearing and both are before the superior forum only one application moved in the superior forum shall be sufficient and the legal representatives thus brought on record would be deemed to have been impleaded in both the files. He placed reliance on Zakira Berlin v. Azi: Ahmad [N.L.R 1979 Civil Lah. 861], Haq Nawaz V. Msl. Nur Bhiiri (1970 SCMR 554) and Inum Nabi Pardesi v. Dr. Ma>. Sycd Ahmad Hasan JP.L.D. 1975 Kar. 530].' The proposition that impleadment ol legal representatives of a deceased party in the superior Court is sufficient and enures in the suit as w ; ell is well settled. The learned counsel For the appellant, Kh. Shahad Ahmad, also does not dispute this proposition ^rii'ibK. The question which arises tor determination is whether impleadmcni oi legal rcpre^ntaihcs i;i the appeal previously disposed of by this Court would be sullicient to brim; the leuai reprc?c!Hali\es ol Muhammad Ashraf on the record ol both the suits. As already noted the two suits had been consolidated for hearing and in view of the consolidation the two hies had become inter-linked and inseparable. The file relating to the suit filed by Ms>. Babu Jan had also been sent to this Court when the previous appeal arising out of the >uit filed by Muhammad Ashraf was decided and the file shows that it was received ba^k bv the trial ,.ourt on 15th of April 1984. Although it is coirect that the dispute whkh was the ^ibjcc; matter oi the previous round of litigation arose out of the suit filed by Muhammad Ashraf but the fact remains that the file relating to the suit filed by My/.Babu Jan was also in the Supreme Court when Muhammad Ashraf died and his legal representatives were brought on ihe record. It is, therefore, clear that Mst. Babu jan's case was also a part of the record before this Court when the lesal representatives of Muhammad Ashraf were brought on record. It, therefore, follows that the requirement of rules 3 and 4 of Order XXII Of the C.P.C.was complied with namely, that the legal representatives were brought on the record. Following the settled principle that legal representatives impleaded in the superior Court will be deemed to have been impleaded in the suit file, the position that emerges is that when the legal representatives of Muhammad Ashraf were impleaded in the Supreme Court they shall be deemed to have become part of the whole record. We have already noted that the proceedings in the trial court were being taken in Muhammad Ashrafs case and all orders which were passed in Muhammad Ashrai's case were also being treated to have been passed in Mst. Babu Jan's case. In A/it.Babu Jan's case the only order which was passed from time to time was that file would come up for hearing with the other file, namely, the file of the suit filed by Muhammad Ashraf. When the suits were consolidated for hearing the same had become inseparable from the very fact that the legal representatives of Muhammad Ashraf were brought on the record while the record was in the Supreme Court it would follow that the legal representatives would automatically be brought on the record of the other file also. case Hihi ^awaz v. Nur Bhaii [1970 S.C.MR. 554J cited by Raja Slier Khan it was held by the Supreme Court of Pakistan that there was no .-<:v , : ::.m application if in a connected proceeding legal representatives of .:• . .••:,. ••:• '.'.dil on record. In this case although there was only one suit but „ --.r^ .'.--> didcrent proceedings emanating out of the same suit which were .:: \r. J;!.;-^r,t C'ourls when a party died. One proceeding was in the High .:; .-.;-..'., :h. other was in the Court of District Judge. An application was made ., H:^:: C. •.''.::! lor brinuiiiii the legal representatives oi deceased party on the Jv ' Appeal dismissed.

PLJ 1990 SC (AJK) 63 PLJ 1990 SC (AJK) 63 [Appellate Jurisdiction] Present: BASIIAR.-VI AHMAD SHAIKH, J HAFEEZ TEXTILE MILLS LTD.--Applicant versus T^" COLLECTOR, EXCISE & TAXATION, Mirpur and 2 others-­ Respondents Civil Misc. Nos. 18, 19 and 20 of 1990, dismissed on 30.7.1990. [Applications for stay of operation of the judgment of High Court dated 9.7.1990] Stay of operation— —Operation of judgment of High Court--Stay of—Prayer for—Question of validation is to be decided not in light of law as it originally stood but in light of law which had been subsequently enforced retrospectively-Realisation of tax cannot be stayed except in exceptional circumstances—No such circumstances exist in these cases—There is no force in contention that Petitioner Companies would suffer irreparable loss if realisation of arrears of excise duty is not stayed—Held: Balance of convenience demands that recovery of Stale Revenue may not be stayed—Applications dismissed. [Pp.65&66]A,B,C Kh. Noontl Amin, Advocate for Applicant (in C.M. 18/90). Ch. Muhammad Aj'zal, Advocate for Applicants (in C.M. 19 & 20/90). Mr. Manzoor Hussain Gillani, Advocate for non-Applicants ( in all applications). Date of hearing: 29.7.1WO. order In these three petitions for interim relief petitioner Companies pray that the non-applicants may be restrained from recovering excise duty in respect of Textile Mills being run by them. The amount of the excise duty which non-applicants Nos.l and 2, the Deputy Collector Excise and Taxation and Collector Excise and Taxation, are recovering from them includes some arrears of this duty which were not recovered from the petitioners on account of a stay order issued by the High Court during the pendency of the writ petitions out of which the present petitions for leave to appeal arise. Circumstances in which the writ petitions were filed are that excise duty was being recovered by the Excise and Taxation Department under authority of Azad Jammu and Kashmir Council which was challenged by filing petitions. It is now admitted that the excise duty was not in the Council Legislative List and the law under which the Azad Jammu and Kashmir Council levied the duty and all the acts in connection with its recovery were void ab inilio. During the pendency of the writ petitions an Ordinance was promulgated by the President on the advice of the Prime Minister of Azad Jammu and Kashmir by which the excise duty was levied and retrospective effect was given to the Ordinance effective from 1979. Under the Ordinance the Excise and Taxation Department was authorised to collect the duty. A validation clause was also inserted in the Ordinance which laid down that all actions taken and things done by the relevant functionaries during the period beginning from the date on which the Ordinance was made effective to the date of promulgation of the Ordinance were to be deemed to have been validly taken and done under the Ordinance. This Ordinance was duly followed by an Act of the Assembly which contained similar provisions. When arguments were heard in the High Court the aforesaid Ordinance and the Act of the Assembly were brought to the notice of the High Court and it was argued on behalf of the respondents that in viesv of the retrospectively of ihe Act as well as the validation clause all acts done since 1979 were valid. It was conceded thai Azad Jam mil and Kashmir Council did not have the authority to legislate or to act in respect of the excise duty. Before the High Court the petitioner Companies did not contest the validity of the Act of the Assembly passed during the pendency of the writ petitions but vehemently contended that tlic validation clause could not be given effect to because in law corani non judiee acts could not be validated with retrospective effect. The High Court rejected this plea and dismissed the writ pelilions. When the High Court \as seized of the writ petitions mentioned above the Act of the Assembly referred to above came under consideration in Qweslii Vegetable Ghee Mills v. Tlic D-cpui\ Collector Income Tux and others [Civil Appeal No.8 of 1990, decided on >'.5.l"^0] and this Court recorded the verdict thai the retrospectivitv tiiven to uk Act of the Assembly referred lo above and the validation grained under Section 3 of that Act were non-exceptionable. Il rejected the submissions that acls done before ihe coming into force of the Act could not have been validated. Before me the learned counsel appearing for the petitioner Companies submitted that the Hieh Court lias wrongly held that the "actions taken by the Deputy Collector and the orders passed before coming into force ol the Act of the Assembly siand validated b\ virtue ol Section 3 oi the aloresaid Act. It was also contended that the relrospcciivity given to the Act of the Assembly offends against the fundamental riszhi No.4 [no retrospective punishment]. Alter going ihroimh the judgment ol this Court in Qnrcshi Vegetable Ghee Mills v. Dcpuiv Collector Excise and Taxation and others I may observe lhal ihe Act of the AsscinbK under reference has been thoroughly brought under consideration hv thi.-, Court and it has been clearly laid clown that acts done, orders passed and taxes collected etc. before coming into force the aforesaid Act stand validated. This Court rejected the contention lhal acls which were corani non jiiclice when they were performed could nol be validated subsequenlly and il was held that ihe question of validation was to be decided not in light of the law as it originally stood but in light of the law which had been subsequenlly enforced retrospectively. The conclusion drawn by this Court is clear thai acts which were without jurisdiction \heii performed were no longer without jurisdiction because they stand validated bv the Act of ihe Assembly. In my view realisation of lax cannot be stayed except in exceptional circumstances and I have no hesitation in saying thai no such circumstances exist in these cases. I note that when the writ petitions were filed in the High Court a stay order was issued in favour of ihe petitioner Companies because interference by the High Court was |iislilied in view of the lacl that even a cursory glance at the Council Legislative List was sufficient to show ex facie thai excise duty was not included in thai list. 1 do not find any force in submissions of the learned counsel for the petitioners thai the petitioner Companies would suffer irreparable loss if realisation of arrears of excise duty is not slaved. If ihe petitioners ultimately succeed in (his Court the amounts recovered from them will be refunded and loss, if any, shall thus be made up. The balance of convenience also, in my view, demands that recovery of State Revenue may not be staved in the absence of special circumstances, In this view of the matter ! see no force in the applications and consequently dismiss them. (MBC) Applications dismissed.

PU 1990 SC (AJK) 66 PU 1990 SC (AJK) 66 [Appellate Jurisdiction] Present: sardar said muhammad kuan ACM and BASI IARAT AHMAD Si IAIKI I, .1 MCBASHERULHAOUE-Appellant AZAD GOVERNMENT OFJAMML a. KASHMIR and 2 others-Respondents Civil Appeal No. 3 of 1990, accepted on 15.s [On appeal from judgment of Services Tribunal, dated 19.9. 1989, in Service Appeal No.s -438 & 439|. Azad Jammu & Kashmir Chi! Sen ants Act. 1976— — S.5— Government Servants--Promoiion of'-Challensie lo-'-Dismissal of appeal by service Tribunal in ///m'/K'--Appcal against—Government order does not show that appointment of respondents 2 and 3 as Executive Engineers, was a stop-gap arranuemenl— Olher ground on which order of Service Tribunal proceeds is that no additional benefit had been conferred on two respondents-- This ground is equally untenable—Held: Appeal filed by present appellant bclore Service Tribunal, raised important points and should not have been dismissed [Pp.6S^69]A,B,C,D&E Sardar Rdjiijitc Mcilimood, Advocate lor Appellant. M/s. Muhammad Htinif, Abdul Rashid Abhasi and Kli. Shahad AJinuid. Advocates for Respondents. Dale of hearing: KS.9. 1 990 judgment Biisliarat Ahmad Shaikh, J.—This appeal arises out of an order of the Service Tribunal passed on 19.9.1989. The Tribunal dismissed //; liinine an appeal tiled before it by the present appellant. The dispute in the case relates to the service rights in respect ol promotion between graduate engineers and engineers who hold diploma in engineering. The appellant falls in the first category while respondents Nos.2. to 3, Ali Muhammad and Riaz Ahmad, belong to the other category. Respondents Ali Muhammad and Ria/ Ahmad, so far as length of service is concerned, are far senior to appellant Mubusher-ul-Haq. who became a Sub-Divisional Officer in the Public Works Department in 1982 when the two respondents bad already put in man) years in that capacity. On 25lh of January, 1989, the A/ad Government of the Stale of Jammu and Kashmir issued an order whereby it transferred respondents Ali Muhammad and Riaz Ahmad. S.D.Os. and appointed/posted(-^>U»3)lhem as Executive Engineers in their own pay and scale. Mubushcr-ul-Haq tiled an appeal before the Service Tr.bunai on 5lh of January. 1989, against the order mentioned above contending that Ali Muhammad and Ria/ Ahmad had been promoted as Executive Engineers which v.as i'La'a', He claimed that he was senior most Tne appeal wa-, dismissed in liiuinc by the Service rnbunal on the ground that the appeal 'a a-, no-l competent in view ol the fact that the order appealed from •a as in the opinion a! ihe Tribunal not a final order within the meaning of Section 4 of the A/ad Jammu and Kashmir Service Tribunal Act. Sardar Rafique Mahmood Khan, the learned counsel for appellant Mubasher-ul-Haq, submitted that the status of the two respondents had been raised by the impumu'd order and the powers being now exercised by them also were higher than t:',e p.i\ver> which they exercised as Sub-Divisional Officers. It is only pay oi t;ie seaie 'a inch has not been allowed to them and contended that it is only to deprive him thai the order had been worded in that way. He pleaded that it was in fact a promotion order. He also vehemently argued that there was :;o:h;r;g ;:i I ik order which could indicate thai it was a tentative arrangement. The learned counsel referred to the A/.ad Jammu and Kashmir Civil Servants [Appointment and Conditions of Service] Rules, 1977, and submitted that Rule 3 of the said Rules provides only three modes by which a person can be appointed to a post, namely: (a) by promotion; (b) by transfer; or (c) by initial recruitment. He submitted that transfer is between two posts which are of equal status and grade, therefore, a Sub-Divisional Officer cannot be transferred as Executive Engineer. Since it was not a case of initial recruitment the only mode left was by promotion. On the merits of the case he submitted that under Part II of the Rules an appointment could only be made on the recommendation of the appropriate Selection Committee or Board and only those persons who possessed necessary qualifications and fulfilled the conditions laid down for promotion could be considered by the Selection Authority, but in accordance with the Engineering Council Act the two respondents did not fulfil the qualifications for promotion as Executive Engineers. M/S Muhammad Hanif Khan, Abdul Rashid Abbasi and Kh. Shahad Ahmad, the learned counsel for All Muhammad and Riaz Ahmad . contended that their clients had not been promoted and the order was only of temporary nature and the Tribunal has rightly held that it was not appealable. They also contested the submissions that any provision of the Engineering Council Act as adapted in A/ad Jamnui and Kashmir debarred a diploma engineer from holding the post of Executive Engineer. They equally repudiated the claim that the appointment ol their clients was over and above the quota reserved for promotion from amongst the diploma engineers. The Service Tribunal expressed the view that: "From the perusal of these orders it is evident that the appointments of respondents against higher posts are purely meant as stop-gap arrangement conlcrrini: no additional benefit to them. They have been kept in their oymi grade and pav scale and the} 1 might be reverted to the posts actually held by them at any time in future. In reaching this conclusion the Tribunal drew support trom a case reported as Safia Rash'ul Malik v. Secreki/y to the Government of West Pakistan [1974 P.L.C. (C.S.')5|. A perusal of the order of the Service Tribunal shows that the Tribunal has based its conclusions on the lolloping two crounds:- (/) the appointments of the respondents were purely stop-gap arrangements: and (//) these appointments did not coler any additional benefit on them. We do not find anything in the Government order which may show that it was a stop-gap arrangement. Since the appeal has been dismissed by the Tribunal at the primary stage there was no occasion for the Government to put its view­ point before the Tribunal. The result is that it cannot even be said that the appointing authority pleaded or proved that it was a tefnporary arrangement. The other ground on which the order of the Service Tribunal proceeds is that no additional benefit had been conferred on the two respondents. We find this ground equally untenable. The two respondents are functioning as Executive Engineers which posts carry higher responsibilities and. therefore, enhanced powers and status. Under an Executive Engineer many S.D.Os. work as their subordinates and the possibility cannot be ruled out that even the appellant himself could have been posted under one of the respondents. Mere fact that they have not been allowed salary in the high scale does not lead to the conclusion thai there is no additional benefit to them. In the Civil Servants Act 'promotion' is dealt with in Section 8 which runs as follows:- "(•' Promotion.- A civil Servant possessing such minimum qualification as ma\ be prescribed shall be eligible lor promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs. i 2) xxx xxx xxx xxx" Section 8 reproduced above clearly demonstrates that by "promotion' a person is elevated to a post carrying a higher grade. 'Promotion' is basically no! to a higher grade but to a higher post. That is why there are many cadres in which civil servants keep on working against the same posts but are given higher grades by way ol selection sjjdde or by move-over. Jn such cases the concerned civil servant^ are mi ^aia to have been promoted although they move in the higher tirade. It ma', he observed ;ha: :he vjue-tion whether the order appealed from was a final order oheu in liirht ol the circumstances of each case. Tlie content;: oi ihc present appellant is that the respondents were not legally qualified to hold the post ol Executive Engineer in view of the provisions of (he Engineering Council Act. The other contention is that the reserved quota had been already filled up and. therefore, the respondents could not be appointed as Executive Engineers. If anv ol the-, two contentions as well as the claim that he is the senior most izraduak- en-rin.er can be proved by the present appellant, he would be clear!;. fr>i.:;J ro ha', e been adversely affected by the order. In that case it could be contended that the order by which the respondents were appointed as Executive Eniznieet^ linally decided the rights of the appellant qua the respondents. From the foregoing, vw conclude iii.u the appeal filed by the present appellant in the Service frK'imai ra>eci important points and should not have been di.Mnivec! aside the order ol the Service Tribunal and direct that the appeal ma\ be admitted tor regular hearing. We may observe that we are remanding the case mainly because it is not possible for us to decide the ca.se on merits ourselves for the reason the appeal has been uVrni.^ed b'- the Tribunal //; liniuie and the record does not contain uk objection.- o; the ,-^pondent^ before the Service Tribunal. (MBC) Case remanded.

PLJ 1989 SC 1 PLJ 1989 SC 1 [Appellate Jurisdiction] Present MuHAMMAd haleem, CJ, shafiur rahman, zaffar hussain mirza, saad saood jan, and Au hussain QjZILBASH, JJ MOUNDAR and others—Appellants Versus STATE-Respondent Criminal Appeals Nos. 20-K of 1978 and 9 of 1989, accepted on 1-7-1989. [On appeal from judgment of High Court of Sind, dated 12-11-1987, in criminal Bail Application No. 1217 of 1987 and that of Lahore High Court, dated 6-12-1988, in Cr, Misc. No. 3792-B of 1988] (i) Criminal Procedure Code, 1898 (V of 1898) — ——S. 497 (I) -Fourth proviso -Expression "hardened, desperate or dangerous"—Interpretation of—Whether facts and circumstances of case in which accused person, seeking release on bail, is facing trial, cannot be taken into consideration Question of-Held : Court can take into consideration and indeed in most of cases, it will take into consideration other materials produced by prosecu­ tion in order to show that case falls within prohibition contained in 4th proviso. [Pp. 6 & 7]A PLD 1986 Karachi 437 approved (ii) Criminal Procedure Code, 1898 (V of 1898) — S. 497 (1)—Murder case—Bail-Grant of—Whether there was sufficient material to come to conclusion that case of appellants falls within prohibitions contained in 4th proviso to Section 497(1) -Question of-In Appeal No. 20-K of 1987, it has been pointed out that most important injured eye-witness has not implicated appellants—Even in FIR, no specific role is assigned lo appellants except general allegation -Held : There was not sufficient material to support opinion of learned Judge (of High Court) that appellants were dangerious and desperate criminals. [P. 7]B (iii) Criminal Procedure Code, 1898 (V of 1898)-

S. 497(1)—Murder case - Bail—Grant of-Whether there was sufficient material to come to conclusion that case of appellants falls within prohibition contained in 4th proviso to Section 497(1) — Question of—In Criminal Appeal No. 9 of I9s9, learned Judge of High Court held on basis of list of 7/8 cases registered against appellants that bail was rightly refused to them on ground that they were hardened criminals—In all those cases, appellants had been acquitted—Held : It appears that learned Judge in High Court did not fully examine nature of cases, facts involved and result thereof to arrive at conclusion that their case fell within prohibition contained in 4th proviso to Section 497(1)-Both [Pp. 7&8]C, D&E appeals allowed and bail granted. Mr. Muhammad Hayat Junejo, Senior Advocate. Supreme Court for appellants (in e rl. Appeal No. 20-K/I987). Sh. Ijaz AH, Advocate-on-Record for Appellants (in Crl. Appeal No. 9 of 1989). Mr. M. Nawaz Abbasi, A.A.G. (Punjab) for Respondent (in both Appeals). Date of hearing : 1-7-1989. judgment Zaffar Hussain Mirza, J.—In these two appeals the common question of law which required determination is the true interpretation and meaning! of the expression "hardened, desperate or dangerous criminal" as it occurs in the 4th proviso to subsection (1) of section 497 of Crimi­ nal Procedure Code. In both these appeals the appellants are facing trial on charges, inter alia, under section 302 PPC, in connection with which they had been put under arrest and had sought release on bail on the statutory ground of delay in the conclusion of their trial beyond the prescribed period of two years. In both these cases, although the court found that each appellant in the respective appeal had been detained for a continuous period exceeding two years without the trial concluding, bail was refused on the ground that the appellants were desparate and dangerous criminals or they were hardened criminals.It will be pertinent now to briefly state the facts of each appeal : CRIMINAL APPEAL NO. 20-K/1987The four appellants in this appeal were taken into custody in con­ nection with an occurrence which took place on 20th June, 1985, in which four persons are said to have been killed and one seriously injured. The appellants were sent up for trial before the learned Additional Sessions Judge, Larkana, under sections 302, 307, 404, 148 and 149 PPC, as well as section 13-D of Arms Ordinance. They moved the trial court for bail on the ground that they were detained for a continuous period exceeding two years without trial being concluded. This bail applica­ tion was dismis;ed as the learned Additional Sessions Judge came to the conclusion that the trial was delayed on account of the accused (appel­ lants themselves). The appellants then went before the High Court of Sind and the learned Judge who heard the application did not agree with the learned Additional Sessions Judge that the delay could be attributed to the accused themselves. However, he held that the appellants wera dangerous and desperate persons and consequently their case fell within the prohibition contained in the 4th provi&o to subsection (I) of section 497 Cr. PC and accordingly they were not entitled to bail. This conclu­ sion was patently reached by the learned Judge upon consideration of allegations of the prosecution case under trial against the appellants.In this connection learned Judge observed as under : "The applicants were members of an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of that unlawful assembly as many as 4 persons were killed and an attempt was made to kill the 5th person causing him grievous injuries. As such the applicants were not entitled to the benefit of the above proviso. The contention of the learned A.A.G. is correct. There can be no doubt about the fact that the alleged offence was most heinous and was committed in such a way that the only conclusion that can be drawn from the same is that the applicants were dangerous and desperate persons" In this view of the matter the learned Single Judge of tne Sind High Court by his order dated 12th November, 19.^7, dismissed the application of the appellents for grant of bail.Leave was granted to consider the contention that the question whether an accused person is a dangerous desperate and hardened criminal cannot be determined merely on the allegations which are the subject matter of the trial which is yet to be concluded, as that would violate _. the cardinal principle of criminal jurisprudence that an accused person is~" presumed to be innocent until found guilty. The further question forexamination was that evan on merits there was sufficient evidence on record that the allegations of the prosecution were not sustainable on the material relied upon. CRIMINAL APPEAL. No. 9/1989. The two appellants in this appeal alongwith three others are facing trial on charges under sections 302, 30?, 148 read with section 149 PPC in the court of learned Additional Sessions Judge, Multan. The three co-accused were allowed bail but the request of the appellants was reject­ ed by the trial court. The appellants thereupon moved the Lahore High Court and a learned Single Judge vide order dated 6th December, 1988, rejected the plea of the appellants for release on bail on the ground of statutory delay, as he was of the opinion that the appellants were harden­ ed criminals which fact was borne out from the number of criminal cases under section 307 PPC and under the Arms Ordinance pending against them. A list of 8 cases was referred to as being pending against Mushtaq appellant and 7 cases pending against Ashfaq appellant Accordingly by order dated 23rd November.. 1988, the learned Single Judge dismissed the application of the appellants. Upon a petition for leave to appeal, this court granted leave to the appellants in view of the fact that similar question of law was pending for decision in the first mentioned appeal (Criminal Appeal No. 20-K/ 1987). The provision of law which requires interpretation is contained in subsection (1) of section 497 Cr. PC which reads as follows : "Section 497.—({) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of (an offence punishable with death or imprisonment for life or imprisonment for ten years) : Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause whey he should not be so released. Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be releas­ ed on bail— (a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded ; or (b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period ex­ ceeding two years and whose trial for such offence has not concluded : Provided further that the" provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal." So far as Criminal Appeal No. 20-K/1987 is concerned, it will be observed from the reasoning part of the judgment of the High Court as reproduced above, that the learned Judge formed an opinion that the appellants in that appeal were "dangerous and desperate" persons on a consideration of the facts and allegations of the prosecution case for which the appellants were being tried. Mr. Muhammad Hayat Junejo learned counsel for the appellants, therefore, contended that the learned Judge in the High Court erred in basing his opinion on the allegations against the appellants in the case which was being tried, contrary to the well established rule of criminal justice that an accused person is presumed to be innocent until proved guilty. In other words the submission was that the material upon which such opinion can be formed must be extra­ neous to the case which is the subject matter of trial, in that the court can reach a finding in a criminal trial only on the assessment of entire evidence produced before the court at the conclusion of the trial. We have been informed that there is conflict of opinion amongst the-various learned Judges of the Sind High Court on the interpretation of the 4th Proviso to subsection (1) of section 497 Cr. PC. In Rahim Sux. and others v. The State (PLD 1986 Karachi 224), Saeeduzzaman Siddiqui, J, expressed the view that the words "dangerous, desperate or hardened criminal" have no reference to the accusation or allegation in the FIR or complaint in a pending trial but referred to a person who has been found guilty and has been convicted because the word "criminal" means "a person who has been convicted or adjudged to be guilty of an offence." This view supports the contention of the learned counsel. However, reference may be made to Muhammad Hanif v. The State (PLD 1986 Karacni 437), in which Sajjad Ali Shah, J, dissented from the opinion of Saeeduzzaman Siddiqui, J, in holding that the word "crimi­ nal" cannot be given a special meaning as a person already convicted of a crime for in that case, the category of previous convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the words under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be rendered completely redundant and meaningless. According to the learned Judge, therefore, opinion on this question can be based upon the materials available in the case under trial as well as any other mate­rial which may be produced by the prosecution to help the court in formation of such opinion. Somewhat similar view was expressed by another learned Judga of the Sind High Court in Gul Khan and others v. The State (PLD 1986 Karachi 629), in which the word "criminal" was construed in the context of provision under consideration, to mean a person "accused of criminal offence or who is known to be or reputed to committing crime " A learned Judge of the Peshawar High Court was faced with a similar problem as under consideration. Before him reliance was placed upon a number of criminal cases for which the accused had been tried and in some found guilty but was finally acquited in appeal. He was also pro­ ceeded under the Goonda Ordinance but was discharged by the appellate authority. Learned Judge, in the circumstances, took the view that this material cannot sustain the requisite opinion that the accused before him was a hardened, desperate or dangerous criminal Abdul Halim v. The State (PLD 1986 Peshawar 92), The reasons that prevailed with the learned Judge may be stated in his own words : "If a bare charge is allowed to be a proof for a person declaring him a hardened criminal and desperate character, there can be no end to such allegations and there will be no way for a person innocently charged in certain cases. The levy of a charge is somewhat different than to prove it. Unless a person ib proved to be guilty and he is convicted thereunder and all the superior forums keep the verdict of conviction intact it can be said that the person is a previous convict. If, however, there is nothing against a person except the bare allegation or a mere charge for all intents and purposes he is presumed to be as much a respon­ sible citizen as others of soft character." What is to be noted in the above reasoning is that the learned Judge considered even for the clause relating to hardened desperate or dangerous criminal conviction in a court of law to be necessary. Therefore, the clause under interpretation and the words "previous convict" were used interchangeably and construed to refer to the same class of persons. The objection that such interpretation renders the words of the statute re­ dundant is, therefore, also attracted to this iew f the law. t is quite plain that the normal rule stipulated in the Third proviso to section 497 was that an under trial prisoner shall be released after expiry of the espective period, without the trial concluding. The Fourth proviso is in substance an exception to the aforesaid general rule contain­ ed in the Third proviso. Before the ourt applies the exceptional pro­ visions of the fourth proviso, it has to form an opinion that the accused was a previous convict or a criminal of one of the categories escribed therein. The words are "in the opinion of the court". Such opinion cannot be obviously subjective but must be based upon materials placed before the ourt, reasonably supporting the conclusion that the person concerned is a criminal of the classes described. Ths word "criminal" has not been denned. It will ot be proper and indeed would be difficult to define it or give it a specific meaning. However, it is a common word of the English language. According to the horter Oxford English Dictionary the word carries several meanings, including the meaning—a person accused of a crime. In the context of the provisions under con­ struction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a court of law. It appears to have been used in the sense of a person who violates the law of he land. The three adjectives qualifying the word "criminal" may also be examined. According to the same dictionary the word '-harden" has been defin­ed to mean, inter alia, (I) to render or make hard; to indurate, {2) to embolden, confirm, (?) to make callous or unfeeling and (4) to make persistent, or obdurate in a course of action or state of mind, The word "hardened" has also been defined to mean "made hard, indurated; render­ ed callous; hard-hearted; obdurately determined in a course". The same dictionary gives the meaning of the word "desperate" inter alia, in relation to person : driven to desperation hence reckless, > violent, ready to risk or do anything. The same dictionary gives the meaning of the word "dangerous", inter alia, as fraught with danger or risk ; perilous, hazardous, unsafe. These appear to be the meanings intended to be conveyed by the ( legislature by using the words 'hardened, desperate or dangerous crimi­ nal "Accordingly the view taken by Sajjad, Ali Shah, J, appears to be correct and the construction placed by him is in consonance svith the intention of the legislature underlying the provision in question in the context of the whole section. In the circumstances we are unable to accept the contention of Mr. Muhammad Hayat Junejo that the facts and circumstances of the prosec tion case in which the accused person seeking release on bail is facing trial cannot be taken into consideration. The proposition relied upon in support of the contention to the elt'ect that finding in a criminal trial can only be reached upon the assessment of entire evidence produced in the court, is inapplicable, in so far as the opinion reached by the court for purposes of the 4th proviso has nothing to do with the findings of the court at the trial. Indeed the conclusions drawn for the purpose of disposal of a bail application cannot be used to the prejudice of the accused as the same are tentative in nature. However, there is no justification for the argument that such an exercise under taken by the court, violates the principle that an accused person is pre­sumed innocent until proved otherwise. In subsection (1) of section 497 the legislature has already empowered the court even before the com­ mencement of the trial to make a tentative assessment of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach ths conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 years. The provision under consideration here is a proviso to the same sub­section, and therefore it will be reasonable to construe it in the same manner authorizing a court to take into consideration the evidence collec ted by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the 4th proviso. We may now consider the question whether there was sufficient material before the court in each appeal to come to the conclusion that the respective cases of the appellants fall within the prohibitions contain­ed in the 4th proviso to section 497 (1) Cr. PC. So far as criminal appeal No. 20-K/19S7 is concerned the learned Judge in the High Court as already observed, declined to grant bail on the ground that "nature of the o.lence alleged to have been committed by them was such that it appeared therefrom that they were desperate and dangerous". It has been pointed out to us that the most important eye witness Rafiq Ahmad who is said to have been injured during the occurrence, in his version has not implicated the present appellants. It was also submitted that even in the FIR no specific role has been assigned to the appellants except a general allegation. In these circumstances learned counsel urged that this was not a case in which the courts below were justified in holding that the present appellants were dangerous and desperate persons. Even if the rule of tentative assessment is appl'ed to the prosecution case, we are inclined to agree with the submission of the learned counsel that there was insufficient material to support the opinion of the learned Judge that the appellants in criminal appeal No. 2J-K/ 987 were dangerous and desperate criminals and were accordingly disentitled to bail on the ground of statutory delay. So far as criminal appeal No. 9/1989 is concerned, learned counsel submitted that on the basis of lists of 7/8 cases registered against the appellants during the last about 10 years, the learned Judge in the High Court held that bail was rightly refused to them on the ground that they were hardened criminals. Learned counsel contended that mere regis­ tration of cases was not, in the circumstances of the case, sufficient to sustain the opinion formed by the court below that the appellants were criminals of the categories mentioned, because the state counsel failed to apprise the court the result of these cases. According to the learned counsel in all these cases the appellants were honourably acquitted and n some they were acquitted under section 249-A Cr. PC as no prima facie case was made out. Learned counsel, therefore, emphatically contended hat the court had failed to investigate and analyse the material placed >efore it by the prosecution. Before us the appellants have produced he certified copies of the orders of the court in each case to substantiate he submission that these cases were false and instituted on account of enmity. All thsse cases have been dispased of except the cases in which he present bail application was submitted and the off shoots thereof which were cases under the Arms Ordinance fegistered by the police although the arms are licensed. In support of his argument learned counsel has also placed reliance on Gul Muhammad v. State (1987 Pakistan Cr. LJ 737), in which in similar circumstances the court declined to form an opinion that the accused persons were hardened criminals on account of inadequate mate­ rial. We find considerable force in the submission of Sh. Ijaz AH learned ounsel for the appellants. It appears that the learned- Judge in the High Court did not fully examine the nature of the cases, the facts involv­ ed and the result thereof, before placing reliance on the mere factum of registration of cases as sufficient for the purpose of the requisite opinion under the 4th proviso to section 497 (1) Cr. PC. We accordingly allow the appeals and consequently the appellants in • Criminal Appeal No. 20-K of 198 / and Criminal Appeal No. 9 of 1989 glare allowed bail in the sum of Rs. 100,030 (rupees one lac) in each case jvvith two sureties in the like amount to the satisfaction of, in the former, (Sessions Judge, Larkana ; and, in the latter, trial court, Multan. (MBC) Both appeals allowed.

PLJ 1989 SC 8 PLJ 1989 SC 8 [Appellate Jurisdiction] Present : muhammad afzal zullah and S. usman alt shah, JJ MUHAMMAD SADIQ—Petitioner versus MUHAMMAD SAKHI, deceased, through FATEH MUHAMMAD —Respondent C.P.L.A. No. 271-R of 1989, dismissed on 24-6-1989 [On appeal from judgment and ord^r of Lahore High Court, Rawalpindi Bench, dated 30-4-1989, passed in RSA No. 1337 ef 1970]. Ci?il Procedure Code, 1908 (V of 1908)- — O. XXII R. 3-Deceased appellant—Legal representatives of— Non-impleadment of-Whether appeal abates-Question of— Contention that proceedings were rendered void and of no legal force for non-impleadment of legal representatives of deceased appellant within limitation period after his death—There is noth­ing on record to show that legal heirs of deceased plaintiff were aware that appeal of latter was pending in High Court—Nothing on record to show that legal representatives, despite knowledge, did not care to apply for their impleadment—Held : High Court proceeded with hearing of appeal on merits and judgment made will have same effect as if it had been made before death of plaintiff. [Pp. iO& 11]A & B Afaulvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. Ejaz Muhammad Khan, AOR for Petitioner. Respondent : N.R. Date of hearing : 24-6-1989. order S. Usman All Shah, J.—Leave to appeal has been sought by the petitioner in a pre-emption matter, against the acceptance of the regular second appeal of the respondent by the learned High Court. The suit land measuring 11 kanals 1 marlas was owned by Muhammad alias Mandu and Muhammad Hussain. They sold the same to Muhammad Sadiq petitioner for an ostensible sale consideration of Rs. 12,000/- vide mutations dated 28-10-67 and 28-5-68, although according to Sakhi Muhammad plaintiff, Rs. 6,GOO/- was actually fixed and paid to the vendors. The plaintiff/respondent pre-empted the sal; claiming his superior right on the ground of collateral of the vendors. The defend­ ant petitioner contested the suit. The learned trial Judge framed contesting issues on the pleadings of the parties and after recording evidence decreed the suit of Muhammad Sakhi plaintiff in his favour on payment of Rs. 7434/-. Muhammad Sadiq defendant filed appeal before the District Judge Jhelum who, vide his judgment dated 21-10-70, accepted his appeal, set aside the judgment and decree of the trial Court and dismissed the suit of Muhammad Sakhi respondent herein. Being aggrieved he went in regular second appeal before the High Court. A learned Single Judge, "ide his judgment dated 30-4-1989, accepted the second appeal, reversed the judgment dated 21-10-70 of the District Judge and restored that of the trial Judge dated 21-7-69. The learned counsel for the petitioner urged that the plaintiff died issueless on 23-7-1978 during the pendency of .the appeal before the High Court and no application by any one claiming to be his legal heir was submitted, therefore, the proceedings in this case before the High Court became void and of no legal force. In order to appreciate the point raised by the learned counsel, we may make reference to the amendment introduced in Order XXII of CPCby Ordinance XII of 1972. Sub-rule (2) of Rule 3 of Order XXJ1 CPC before and after amendment may be reproduced ;— Previous Sub-rule (2) —Where within the time allowed by law no application is made given under Sub-rule (1), the suit shall abate so far as e deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. Present Sub-ru'e (2). Where within the time allowed by law no application is made or intimation given under Sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place. A look at the unamended Sub-rule (2) will show that if no applica­ tion is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff isconcerned. But this condition is not enunciated in the amending Sub-rule (2). Now as the appeal in the present case was pending in the High Court when Order XXII CPC was amended and as the plaintiff had already died, it cannot be argued that the appeal of the plaintiff abated in view of the fact that no application was made under Sub-rule (1) for the impleadment of his heirs within the period of limitation. Thus in view of the amending Sub-rule (2) of Rule 3 of Order XXU CPC, the question is whether the appeal of the deceased plaintiff in the present case was rendered infructuous because his legal heirs failed to apply for their impleadment in place of the plaintiff. We have given our earnest consideration to this question, but we have not been able to subscribe to the contention of the learned counsel for the petitioner that the proceedings in the case were rendered void and of no legal force as the legal heirs of the plaintiff did not apply for their impleadment within the period of limitation after the death of the plaintiff. Correct that according to She amending Sub rule (2) of Rule 3 of Order XXII CPC, an application for the impleadment of the heirs of the deceased is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, we do not understand as to how they should be made to suffer and the Court straightaway give decision against them. Now when the L.Rs. of the plaintiff were not impleaded within time allowed by the law i.e. 90 days, the suit will not be dismissed as abated and the Court may proceed with the suit notwithstanding the failure to implead the L.Rs. of the plaintiff. To similar effect is the case of death of defendant as laid down in Order XXII Rule 4 Sub-rule (2). The amending rule which provides that even in the absence of application having been made for impleading the L.Rs. within the prescribed time, order or judgment in the case may be pronounced in the suit or appeal and it will have the same force and effect as if it has been pronounced before the death. It is to be seen that when there is no intimation or application made as required under Sub-rule (1) of Rule 3, the Court shall continue with the adjudication of the suit and the decree so passed will be valid and shall have the same effect as if the death has not taken place. However, if it is brought to the notice of the Court that the plaintiff died and no body made application under Sub-rule (1), the Court can implead L.Rs. suo moto according to the list given under Order VII Rule 26, of the plaintiff accompanied with the plaint and similarly under Order VIII Rule 13 the list of the L.Rs. of the defendant attached with the written statement. The order to be made the decree is to be passed which will be binding on them unless set aside under Sub-rule (9). Hence no question of abatement could arise in view of the Law Reform Ordinance XII of 1972. The amending rule also applies to appeals and for the word plaintiff shall be held to include the appellant and the word defend­ ant to respondent and the word suit to appeal. Prior to the 1972 amendment when the sole appellant or respondent died, the appeal abated unless substitution was effected and decree so obtained was a nullity. In the Limitation Act Article of 1972 which is as follows : - Article 171 171 is also amended by Ordinance XII By the legal representative of a deceased plaintiff or defendant for setting aside an order or judgment made or pronounced in his absence. Sixty days The date of the order or judgmentWhen the death has taken place before 14th April, 1972 i.e. coming into force of Ordinance XII of 1972, the application in the case is to b» decided in the light of the old provision of Order XXII. Article 176- 177 of the Limitation Act for impleading the L.Rs. shall apply. There is nothing on the record to show that the legal heirs of the deceased plaintiff in this case were aware that the appeal of the latter was pending in the High Court. By going through the judgment of the High Court, there is nothing to show that an objection was raised on behalf of the petitioner that the legal heirs of the deceased plaintiff despite the fact that they had the knowledge that the appeal of their deceased predecessor plaintiff was pending in the High Court, they did not care to apply for their impleadment as his legal heirs in the pro­ ceedings and on that score the proceedings before the High Court were rendered void and of no legal effect. The petitioner was bound to establish this fact. For that purpose he was to apply before the High Court. The High Court was to issue notice to the heirs. The heirs were to rebut the stand of the petitioner and after hearing both the sides, the High Court was to give decision one wiy or the other. In the absence of such thing available on the record the question of bar of limitation agitated by the learned counsel before us will not arise. The moreso as this question was not raised even before the High Court. The High Court, therefore proceeded with the hearing of the appeal on merit, anc notwithstanding the death of the plaintiff/appellant the judgment made and pronounced will have the same force and effect as if it had been made or pronounced before the death of the plaintiff/appellant took place. No other point was seriously urged. Leave to appeal is, therefore, refused and this petition is accordingly, dismissed. (MBC) Petition dismissed. 2. Civil Appeal No. 1 of 1987 The brief facts are that on 13.2.1978 one Mangta Khan agreed to sell land measuring 5 Kanals 18 marlas situate in Mauza Darkali Mamoori, Tehsil Kahuta, District Rawalpindi to the appellant for a sum of Rs.25,000.00. Later on it transpired that the aforementioned agreement also included 3/4th share of the other co-sharers who had already sold it to Muhammad Rafique and others. Mangta Khan pre-empted this sale successfully and obtained a decree on 1.6.1978. Mangta Khan then showed his reluctance to honour the agreement to sell dated 13.2.1978, whereupon the appellant instituted a suit for specific performance which was decreed in his favour on 17.4.1980 and a mutation to this effect was sanctioned on 21.6.1980. This sale was pre-empted by the respondent alleging that the price shown in the impugned mutation was fictitious and that the land was sold for Rs. 12,000.00 and that he being the collateral of the vendor and being a co-sharer in the Khata had a superior right of pre-emption. The suit was defended wherein objections as to the limitation, valuation and misdescription were raised and on facts all allegations were refuted. The pleadings of the parties resulted in the framing of as many as eight issues, of which issue No.l is presently relevant and is to the effect: "Whether the suit is time-barred?" After recording the evidence produced by the parties, the learned trial Court, after examining issue No.l in detail, held the suit to be barred by time and dismissed the same on 27.3.1983. The appeal filed by the respondent was accepted by the learned Additional District Judge, Rawalpindi, on 15.9.1985 and he decreed the suit of the respondent on payment of Rs.25,000.00. Barkhurdar appellant then filed a revision petition in the High Court which was dismissed through the impugned order. Civil Appeal No. 2 of 1987 Muhammad Anwar and others, appellants/vendees, purchased land measuring 505 kanals 5 marlas, situate in Mauza Hayat Bochra, Tehsil and District D.I.Khan, as per agreement to sell executed on 24.12.1976 and a sum of Rs.6,000.00 was paid to the vendor as earnest money and possession of the suit land taken over. Under the terms of the agreement it was stipulated that the remaining amount shall be paid to the vendor after he got permission from the Commissioner, D.I.Khan, and at the time of attestation of sale mutation. Later on, the vendor failed to honour the agreement and, therefore, the appellants were compelled to file a suit for possession through specific performance of the agreement to sell. The suit was compromised on 23.10.1977 and a decree was passed in favour of the appellants on payment of a sum of Rs.14,313.00 and a sale mutation was attested on 11.1.1981. This sale was pre-empted by the respondents through a suit brought on 7.1.1982 and after the contest the Civil Judge, D.I.Khan, decreed the suit of the respondents on 10.11.1984. The appeal and the revision of the respondents in the Court of the District Judge, DJ.Khan, and in the High Court were dismissed on 8.5.1986 and 7.10.1986, respectively. 3. Leave in both the cases was granted to consider the question whether in a suit for pre-emption, delivery of possession of the suit land if established to have been made under the agreement to sell is as good a delivery of possession as made under the sale and that limitation to file a suit for pre-emption will commence from the date of delivery of such possession. 4. We have heard the learned counsel for the parties at some length and perused the record. 5. In Civil Appeal No. 1 of 1987, the learned Additional District Judge, Rawalpindi, reversed the finding of the trial Court on the issue of limitation and decreed the suit of the respondent. This finding has been concurred with by the learned Single Judge. In Civil Appeal No. 2 of 1987, the suit of the respondents in respect of certain Khasra numbers was decreed by the trial Court. The appellants' plea that they were in possession of the suit land prior to attestation of mutation (issue No.5) was decided in the negative for lack of evidence. This finding has been upheld in appeal by the District Judge, D.I.Khan, and by the High Court in revision. 6. In both the cases, as the record stands, the sales of the suit land were struck through sale agreements. These agreements did not materialise for one reason or the other, as a result of which the vendees moved the Courts of competent jurisdiction in suits for specific performance and got decrees on 17.4.1980 and 3.10.1977, respectively. Pursuant to the decrees, mutations were attested in Civil Appeal No.l of 1987 on 21.6.1980 and in Civil Appeal No.2 of 1987 on 11.1.1981. The present suits for pre-emption have been filed in Civil Appeal No.l of 1987 on 21.6.1981 and in Civil Appeal No.2 of 1987 on 7.1.1982. ! 8. The main controversy in both the appeals is whether the suits brought by ! the pre-emptors were within the time prescribed under sections 30 of the Punjab . and 31 of the N.W.F.P. Pre-emption Act 1913 and 1950, respectively. 9. The contention of the learned counsel for the appellant (in C.A.1 of 1987) is that both the appellate and the revisional Court in this case have misread the evidence and have thus wrongly held that the suit of the respondent was within time. In support of his contention he submitted that limitation to bring a suit for pre-emption would not run from the date of attestation of mutation (21.6.1980) but from the date of delivery of possession of the suit land which in the case in hand was 13,2.1978. Reference in this regard was made to the receipt Ex.D.2 through which certain amount was received by Mangta Khan vendor towards the sale consideration of the suit land and it was averred therein that the possession of the suit land had been delivered to the vendee/appellant. Reference was also made to the other two receipts which are Exs.D.3 and D.4. Besides the above, our attention was also invited to the statement made by Mangta Khan vendor at the trial wherein he admitted the delivery of the possession of the suit land to the vendee/appellant and also to the statement made by Muhammad Razzaq respondent in the trial Court wherein he admitted that the delivery of possession of the suit land was made to the appellant in 1979. In view of the above evidence, the learned counsel for the appellant submitted that the possession of the suit land was delivered to the appellant under the agreement to sell long before the date of attestation of mutation and thus the suit brought by the respondent was barred by time. As against the above, the learned counsel for the respondent supported the findings of the appellate and the revisional Court. The main thrust of his argument was that no right under the law, whatsoever, has been created in favour of the appellant because he has based his claim over the suit land on the strength of the agreement to sell only. He further submitted that even if the possession of the suit land had been delivered to the appellant, that delivery of possession was not 'under the sale' as provided for under section 30 of the Punjab Pre-emption Act, 1913, and, therefore, the date of limitation to bring a suit for pre-emption shall not run from the date of delivery of possession under the agreement to sell. Reliance was placed by him on two Indian authorities, viz., Tola Ram v. Lorinda Ram (I.L.R.1922 Lahore 261) and Madho versus Mt.Mehro (A.I.R. 1930 Lahore 33), and Muhammad Murad versus Pir Bakhsh and another (1984 C.L.C. 1274 (Lahore)). He further submitted that in- any case in the matter in hand the appellant has miserably failed to establish that possession of the suit land was delivered to him under the agreement to sell. !B 10. In Civil Appeal No.2 of 1987, Syed Safdar Hassain, the learned counsel for the appellants, submitted that the appellants had entered in physical possession of the land in dispute through a sale agreement executed on 24.12.1976 on payment of earnest money prior to the attestation of mutation. He submitted that the mutation could not be attested earlier because in the area in which the land in suit is situate, Chashma Right Bank Canal N.W.F.P. Ordinance is in force and permission of sale of land was required to be obtained from the Commissioner, D.I.Khan. Since the possession of the suit land was delivered to the appellants on 24.12.1976, the suit was barred by time. 11. The case has been examined by us as a whole. Under section 21 of the ' Punjab Pre-emption Act, a right to sue accrues to a person when the sale or j foreclosure as been completed. Under section 30 ibid, a period of one year has < been prescribed to bring a suit for pre-emption. It shall either start from the date [ of attestation of sale Mutation or rom the date on which the vendee takes under | the sale the physical possession of the land sold. The attestation of mutation or the delivery of physical possession is thus a notice to all persons to the effect that the former owner has relinquished all his ownership rights in favour of another person. It is no doubt true that an agreement to sell simpliciter is not a sale for purposes of pre-emption, but when that very agreement to sell is followed by delivery of physical possession of the land sold, it cannot, by any stretch of imagination, be said that the delivery of possession was not under the sale.j Therefore, the first part of the argument of the learned counsel for the respondent j is untenable. The authorities relied upon are distinguishable. 12. We have now to examine whether in the two appeals the appellants have established that they had obtained possession of the suit lands under the agreements to sell. In Civil Appeal No. 1 of 1987, the learned Single Judge while agreeing with the finding of the appellate Court, recorded his finding against the appellant in the following terms: "Learned counsel for the petitioner has contended that transfer of possession of l/4th share in the land, which was owned by Mangta Khan had been delivered to the petitioner on 13.2.1978 when the agreement to sell was executed by him after receiving the total price of the land amounting to Rs. 25,000/-. According to the learned counsel, respondent's suit for pre-emption was not within time insofar as the aforementioned l/4th share of the land was concerned. There is, however, no force in the above contention because the learned counsel has failed to show any evidence on the record that possession of any part of the suit land was delivered by Mangta Khan in 1978. According to the agreement to sell entered into by Mangta Khan, the entire land comprising the joint Khata was agreed to be sold to the petitioner. Out of this land 3/4th share had already been sold by his co-sharers. The bargain of sale being indivisible, it was inconceivable that possession of a part of the land could be delivered to the prospective vendee. It is not possible to accept the petitioner's contention that the sale of the suit land had in fact been completed in 1978 because 3/4th share in it was not available for transfer to the petitioner, as'it had already been sold to some other person. The fact that the respondent was obliged to institute a suit for specific performance of the agreement to sell dated 13.2.1978 also disproves the petitioner's contention that the sale of the disputed land had been completed when the agreement to sell in respect thereof was executed by Mangta Khan. The transaction of sale was completed after the passing of the decree in the suit for specific performance of agreement to sell on attestation of the mutation of sale on 21.6.1980. Respondent's suit to pre-empt the aforementioned sale instituted on 20.6.1981 was well within time. The finding of the learned Additional District Judge in favour of the respondent on the point of limitation is, therefore, unexceptionable." The various pieces of evidence relied upon by the learned counsel for the appellant when looked into in the light of the above have led us to the conclusion that the suit filed by the respondent was within time. Though in the document marked Ex.D.2 executed by Mangta Khan vendor in favour of the appellant on 13.2.1978, which is the first in series of documents executed by Mangta Khan, it has been mentioned that the possession of the land in dispute has been delivered to the appellant, but then in the iqramama executed by Mangta Khan on 31.7.1979 marked Ex.D.l has made a significant departure from the document Ex.D.2. Its perusal shows that Mangta Khan himself was not in possession of the suit land, therefore, the question of its delivery to the appellant did not arise. The fact that the possession of the suit land was not delivered to the appellant under the agreement to sell is further supported by a suit brought by the appellant against Mangta Khan vendor for possession of the suit land by specific performance in February 1980. In the proceedings, which culminated in a decree in favour of the appellant, Mangta Khan, on 15.3.1980, has stated: and on the same day Farzand Ali, the attorney of the appellant, deposed in the Court of Civil Judge, Kahuta, that: 25000/- gi 14000/- The only piece of evidence of which capital has been made by the learned counsel for the appellant in this case was the admission made by the respondent in the present suit that the delivery of possession of the suit land was made to the appellant in 1979. But then in view of the over-whelming evidence brought on the record to the contrary, we are clear in our mind that this admission which is wrong on a point of fact or is made in ignorance of a legal right has no binding effect oh the person making it. Reliance in this respect has been rightly placed by the learned Additional District Judge on the authority of this Court reported as Ahmad KJian versus Rasul Shah (P.L.D. 1975 S.C.311). 13 As for Civil Appeal No.2 of 1987, there is consistent evidence on the record that the possession of the suit land was with the tenants. The appellants have miserably failed to bring on the record that after the alleged agreement to sell, the tenants had attorned to them. The above factual position has not been controverted by the learned counsel for the appellants. 14. As a result of the above, we hold that in both the cases the possession of' the lands in dispute had not been delivered to the appellants/vendees under the j c agreements to sell and that the suits brought by the respondents/pre-emptorsj have rightly been held to be within time. The appeals are dismissed with costs. ! (MBC) Appeals dismissed

PLJ1990SC21 PLJ1990SC21 [Appellate Jurisdiction] Present: muhammad afzal zullah, javid iqbal, S. usman ali siiah and naimuddin, JJ NASIR ABBAS-Appellant versus MANZOOR HAIDER SHAH-Respondcnt Civil Appeal No. 680 of 1984 (also Civil Appeals Nos. 681, 682 and 683 of 1984) accepted on 26-4-1989. [On appeal from judgment dated 29-4-1984, of Lahore Court, Rawalpindi Bench, in Civil Revision No. 132 of 1981.] (i) Civil Procedure Code, 1908 (V of 1908)-- —-S. 115 read with O.XLI R.31~Evidence on record-Non-consideration of- Effect of-First appellate court did not consider entire evidence on record which was referred to and discussed by trial court-Held: It is settled that if evidence on record has not been fully weighed and considered, that does not fulfil requirements of O.XLI Rule 31 and is liable to be set aside in revision- Held further: It is also settled that if lower court misreads evidence on record and fails to lake notice of a vital fact appearing therein and comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by High Court. [P. 25]B AIR 1915 Lahore 242, AIR 1939 Rangoon 413 and AIR 1929 Rangoon 145 relied. (ii) Pre-emption-- —Pre-emption-Suit for--Whether properly in dispute is within urban area so as to be non-pre-emptible-Qucstion of-Additional District Judge ignored evidence of DW2 and DW3 as well as findings of trial court—High Court also fell into error—Held: Taking overall view of evidence produced by parties, finding of trial court was correct that disputed property is urban immovable properly—Appeals allowed, impugned judgments of Addl. District Judge and High Court set aside and that of trial court restored. [Pp. 23&27]A,C,D & E Mr. M. Kowkab Iqbal, Advocatc-on-Record for Appellants. Malik Muhammad Jaffar, Advocate, Supreme Court and Mr. Imtiaz Muhammad KJian, AOR for Respondents. Rao Muhammad Yousaf, AOR for AG Punjab. Date of hearing: 26-4-1989. judgment Nuimuddin, J.-Thc facts giving rise to these appeals, by leave, are as follows:— 1. One Sajjad Haider Shah sold the disputed 'haveli' built on 18 marlas of land situate at Talagang through four registered sale deeds all dated 2-10-1979 to the four appellants in the above mentioned four appeals, namely, Nasir Abbas, Nazar Abbas, Muhammad Ibrahim and Mst. Sahib Moor. The respondent who is the brother of the vendor filed against the appellants four separate preemption suits for possession on the basis of'yak jaddi' of Sajjad Haider Shah in the Court of Civil Judge, 1st Class, alagang, claiming that consideration for each sale was Rs. 3UOO/- though in each sale deed it was shown Rs. lfl,(M)0/. The appellants contested the suits and claimed that the property lies within the urban limits of Talagang Town and was not, therefore, preemptible. 2. The trial court framed necessary issues one of them being "Whether the suit property lies within the urban limits of Talagang Town and, thus, this property is not reemptible? OPD" and the decision thereof resulted in the dismissal of all the suits. 3. Aggrieved by the judgment and decree respondent filed four appeals with the Additional District Judge, Attock, who allowed the same by a common judgment dated 9-6-1981 and consequently decreed the suits. Against it the appcllanls filed separate revision petitions in the Lahore High Court but failed. 5. Leave to appeal was granted in all the four appeals to consider the question whether the disputed properly is within the urban area so as to be non-preemptible. 6. In deciding the above issue in favour of the appellants the learned Civil Judge relied on the following pieces of evidence:-- (/) the evidence of appellant who deposed that the suit 'haveli' is situated in Ward No. 15 within the Town Committee Talagang and that (a) locality has been provided with water supply from Town Committee; (b) situated at a distance of one furlong from the Court; and (c) the houses of the respondents Nawazish Ali Shah and Muhammad Khan are situated in the same Ward i.e. No.15; (ii) a Certificate from the Chairman, Town Committee, Talagang (Ex.D.8) to the effect that 'haveli' was situated in Ward No. 15 within the Town Committee Talagang; (///') copy of Punjab Gazette (Extraordinary) dated 5-11-1979 (Ex.D.7) declaring the names of the persons securing the highest number of votes as Members of Talagang Town Committee and in the list at Serial No.15 one Syed Azhar Ali Shah son of Syed Patch Ali Shah was declared elected uncontested from Ward No.15; (/v) the said Member was then the Vice-Chairman of Town Committee, Talagang, and is an Advocate of Talagang Bar as deposed to by the respondent; (v) receipts of payment of tax (Ex.D.9 to D.12) which were levied by the Town Committee for getting the sale deeds registered with the Sub Registrar, Talagang; (w) copies of Forms PTI (Ex.D.13 to Ex.D.16); (v/V) statement of the appellant that the suit 'haveli' and that of the respondent have a common wall; (nii) admission of the respondent that he had only one 'haveli' in the Town and that haveli has been described vide Ex.D.15, and (ir) the evidence of Khalid Mahmud Malik, Secretary, Town Committee, Talagang (D.W.2) who deposed that in the Local Bodies Elections of 1979 Syed Azhar Ali Shah was lected as Member of the Town Committee Talagang from Ward No.15 wherein in 1965 street light of the ommittee was provided and still continuing in the said area and a tender had been pened with the contractors for laying 'pucca' streets in the said Ward. He further deposed that only for the purposes of Local Bodies Elections 1975 the disputed Ward No.15 was made part of the own Committee but in 1975 on the basis of Election Rules this was excluded from the limits of the Town Committee vide notification dated 10-1-1975 _ (Ex.D.5). The learned trial Court also relied on the evidence of Khan Zaman (D.W.3) who was an independent witness and who was resident of Ward No.15 and got ration quota from Talagang as the urban quota and who deposed that there were two 'pucca' streets laid by the Committee and that the locality was adjacent to Talagang Town. The trial Court also relied on the Notification issued by the Local Government and Social Welfare Department (No.S.O.1. (BD)-I-37/64 (Campbellpur) dated 30-12-1965) declaring the area as urban area. The trial Court also took note of the subsequent Notification dated 10-1-1975 whereby the Governor delimited the boundaries of Talagang Town Committee and excluded Ward No. 15 from it for the purposes of Basic Democracies Order. After hearing the evidence of the respondent who was his own sole witness the trial Court dismissed the suit as stated before. 7. The trial Court also relied on Lai and Others vs. Muhammad Sharif (PLD 1961 (W.P) Lah 47) wherein it was held that the character of the property is to be decided in the circumstances of each case having the overall picture in view as to whether the site retained its rural character or has been absorbed in town. 8. The learned Additional District Judge after noting the respective submissions of the learned counsel for the parties and the case of Salamat Rai vs. Kanshi Ram (30 P.L.R. 1918) observed as follows:- "In the present case it has not come on record that the disputed property is surrounded by the roads factories having Government buildings occupied by Government employees and other buildings in occupation of different classes of people. There are no metal roads near the disputed property and electric poles have not been installed by the municipal committee and even the Tehsil Courts are not near the disputed property." And taking the above factors into account expressed the opinion that the property does not have the character of urban immovable property and therefore found that the property in dispute is village immovable property which is preemptible. 9. The High Court in the impugned judgment after noting the contentions of the learned counsel for the appellants and the cases of Lai and others (supra) and Sh. bdur ahman and another vs. Khan Sahib Haji Rashid Ahmed (A.I.R. 1937 Lah 182) cited by him and also the submissions of the learned counsel for the respondent while onfirming the finding of the learned Additional District Judge bserved as follows:-- "The learned Additional District Judge appeared right in taking note of the fact that the absence of the factories and artisans/labourers creeping in as new inhabitants was quite material and that the society's continuing original homogeneity clearly suggested that it was not an urban area. Although this was a finding contrary to that of the trial Court, yet on legal plane, no fault could be found with it." The High Court referring to the notification (Ex.D.5) and the evidence of the Secretary of the Municipal Committee further observed as follows:"7. Notification Exh.D-5 and the evidence of the Secretary of the Municipal Committee showed that this area had been lately taken out of the Municipal limits and hence the arguments that it was once within these limits, did not appear much inspiring. Conversely, it may well mean that its original position as a village was restored."However, the main reason which weighed with the High Court for dismissing the revision was that the revisional powers under Section 115 C.P.C. are primarily intended for correcting the errors made by the subordinate Courts in the exercise of their jurisdiction but erroneous decision of facts is not revisable except in case where it was based on no evidence or inadmissible evidence or is so perverse that injustice would result therefrom and in support relied upon Muhammad Umar Beg vs. Sultan Mahmood KJwn (PLD 1970 S.C. 139) and Kanwal Nain and 3 others vs. Fateh KJian and others (PLD 1983 S.C. 53). 10. We have heard the learned counsel for the parties. The learned counsel for the appellants submitted that if the material evidence has not been considered or omitted from consideration that would be a procedural or jurisdictional defect. He pointed out that the learned Additional District Judge failed to consider many pieces of evidence and their effect while upsetting the decree. He further submitted that the High Court has not considered this error of the Additional District Judge which is a jurisdictional defect. He submitted that the learned Additional District Judge and the High Court have only noted the respective submissions of the counsel for the parties and have not discussed the entire e%idence. He also submitted that the learned Additional District Judge and the learned Judge in chamber misdirected themselves when they considered only some of the factors on which character of the property could be determined. On the other hand the learned counsel for the respondent submitted that the finding arr ved at by the learned Additional District Judge that the property was village mmovable property was a finding of fact and therefore it could not be interfered with. 11. The submission of the learned counsel for the appellants is correct that' except noting the submissions of the learned counsel for the parties and referring the certain ieces of evidence which have been mentioned hereinbefore the first appellate Court has not considered the entire evidence which was referred to and, discussed by the trial Court in its judgment. Nowhere the first appellate Court has referred to or discussed the evidence of Khan Zaman (D.W.3) which has been mentioned above and the evidence of Khalid Mahmud Malik fully. It is settled that if the evidence on the record has not been fully weighed and considered, that B does not fulfil the requirements of O.41, R.31, and is liable to be set aside on revision. See Mathra Dass and others vs. Muharram Din and others (AIR 1915 Lah 242). It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material regularity and its decision is open to revision by the High Court. See Dwarika vs. Bagawati (A.I.R. 1939 Rangoon 413) and Put Chong vs. Maung Po Cho (A.I.R. 1929 n 145). J he test for deciding the question whether a property is a village immovable property or urban immovable property was laid down by a Division Bench of Lahore High Court in Lai and others vs. Muhammad Sharif (PLD 1961 (W.P.) Lah 47) to which reference has been made by the learned counsel for the appellants and it is: "What is required is to have an overall picture and then to assess whether the locality retains its rural area or has been absorbed in the town." Examining the facts in the light of the above test we find that the following factors are in favour of holding the disputed property as urban immovable property:-- ) the locality has been provided with water supply from Town Committee; (ii) It situates at a distance of 1 furlong from the Court; (Hi) many houses including the houses of different persons are adjacent to the disputed property; (jv) the house of Syed Azhar Ah" Shah who was declared elected unopposed to the Town Committee from Ward No. 15 is in the locality; (v) the houses of respondents Nawazish Ali Shah and Muhammad Khan are in the same locality; (vi) the Town Committee has provided street lights in the locality; (v/i) Town Committee treated the property as urban property and charged tax on its transfer to the appellants. (viif) At the relevant time the Committee had given contract for construction of metalled lane in the ward.The locality was included in the Town Committee in 1965 though it was done under the Basic Democracies Order. (ix) Khan Zaman (D.W.3) was getting his ration quota from Talagang as the urban quota. According to his deposition there were two 'pucca' streets laid by the Committee and the locality was adjacent to the Town Committee. 13. As against the above evidence the fact that subsequently in 1975 the area was excluded again for the purposes of elections would not change the character of the property once the locality in which the property situates was considered and declared by the Court itself as part of Town Committee because the character of the property does not depend on government declaration. It is correct that there are no houses adjacent in occupation of government employees or artisans or factories in the locality nonetheless the houses are occupied by persons one of whom was member and the Vice Chairman of the Town Committee and then it is not the necessary or the only factor in determining the character of the property that there must be factories or buildings occupied by government employees in the locality. Further, there is no evidence except respondent's own words that the area in dispute was still a village occupied by a body of men mainly dependant upon agriculture or occupation subservient thereto. 14. There are cases wherein rural areas in the vicinity of a town which have ceased to be rural and have grown into a suburb of the town have been held to be governed by rules applying to urban properties. However, reference may be made to a short judgment of a Division Bench of Lahore High Court reported as Diwan Chand vs. Nizam Din and Others (78 I.C. 991), the main part whereof reads as follows:- "The question, upon which we are invited to express our opinion, is whether the property in dispute is to be deemed to be village immovable property as contemplated by the Punjab Pre-emption Act. There can be no doubt that the land now occupied by the Machine Mohalla, including the property in dispute, was at one time a part of the village Pira Ghaib, but the facts found by the Courts below justify the inference that it has ceased to be a part of the village and must now be regarded as urban property. The expression "village" connotes ordinarily an area occupied by a body of men mainly dependant upon agriculture or occupation subservient thereto. Now, the Mohalla in question is within the limits of Municipality of Jhelum and is occupied by persons who are engaged mainly in commercial pursuits. The reported cases contain many instances of rural areas in the vicinity of a town which have ceased to be rural and have grown into a suburb of the town. Such areas have been held to be governed by rules applying to urban properties. The learned Additional District Judge ignored the evidence of D.W.2 and' D.W.3 when he held that there are no metalled roads or electric poles near the disputed property or even the Tehsil Courts. The learned Additional District Judge completely ignored the evidence on record as mentioned hereinbefore as well as the findings of the trial Court. Similarly the High Court fell into error. 15. Taking an overall view of the evidence that has been produced by the' parties we are satisfied that the finding of trial Court was correct that disputed is urban immovable property. 16. Accordingly we allow these appeals and set aside the impugne judgments of the learned Additional District Judge and the High Court and restore the judgments and decrees of the trial Court whereby the respondent's suits were dismissed. We, however, in the circumstances of the case leave the parties to bear their own costs. (MBC) Appeals accepted

PLJ 1990 SC 27 PLJ 1990 SC 27 [Appellate Jurisdiction] Present: muhammad haleem Cj, dr. nasim hasan shah, shafiur rahman and ali hussain qazilbash, JJ FALAK SHER KHAN and another-Appellants versus SECRETARY TO GOVERNMENT OF PUNJAB, AGRICULTURE DEPARTMENT and others-Respondents Civil Appeals Nos. 80 & 81 of 1987, allowed on 14-5-1989. [On appeal from judgment dated 19-5-1985 of Punjab Service Tribunal, in Case No. 565/950 of 1984] (i) Punjab CivU Servants Act, 1974 (VIII of 1974)- —S. 21 (2)-Seniority list-Challenge to-Appeal to Service Tribunal- Whether incompetent-Question of-Representations were filed shortly after impugned seniority list was circulated and appeal to Tribunal was filed much before expiry of 90 days after filing of representations-Held: This aspect of matter has not been dealt with by Service Tribunal on erroneous view that representations were not necessary—Appeals accepted, order of Service Tribunal set aside and case remanded for decision afresh. [Pp. 32&33]D, E&F. 1982 SCMR 582 and PLD 1981 SC 612 ref. (ii) Punjab Civil Servants Act, 1974 (VIII of 1974)-- —S. 21 (2)—Seniority list—Challenge to—Appeal to Service Tribunal— Whether representation to next higher authority was not necessary—Question of—Impugned seniority list was prepared by Secretary to Government- Appointing Authority is Governor—Any civil servant who felt aggrieved by said seniority list, could make representation to Governor-Held: View of Service Tribunal that respondents herein were under no obligation to make representation before coming to Tribunal, is erroneous. [Pp. 30.31&32] A,B&C 1986 PLC (CS) 789 over-ruled. Mr. S.M. Zafar, Senior Advocate, Supreme Court, Sycd Zahid Hussain, Advocate, Supreme Court and Ch. Akhtar All, AOR for appellants (in both appeals). Mr..Abid Hassan Minto, Advocate, Supreme Court and Ch. Muhammad Aslam, AOR(absent) for respondents 2, 3, 5 and 6 (in CA. No. 80 of 1987). Mr. M. Ismail Qureshi, Advocate Supreme Court and Mian Ataur Rchman, AOR (absent) for impleading party (in both appeals). Mr. M. Nawaz Abbasi, Asstt: A.G. Punjab and Rao Muhammad Yousaf KJian, AOR for respondent No. 1 (in both appeals). Mr. D.M. Awan, Advocate, Supreme Court and Ch. M. Aslam, AOR (absent) for respondents No. 2 & 3 (in CA. No. 81 of 1987) Dates of hearing: 13 & 14-5-1989. judgment Nasim Hasan Shah, J.--This judgment will dispose of the above noted two appeals as the question of law and facts arising therein are similar. The appellants are graduate engineers and became members of a Class-II service under West Pakistan Agriculture Engineering Service (Class-II) Rules, 1963. Respondents No.2 to 6 were not when they entered into service in Class-II graduate engineers. However, they had entered the said service (in Class-II) prior to the appellants. Respondents No.7 & 8 belong to the same category as the appellants viz. they are graduate engineers and have been impleaded only as proforma respondents. The admitted facts are that the Government of Pakistan by its decision dated 17-5-1971 granted Class-I status to the graduate engineers (appellants). This course was followed by the Government of the Punjab vide notification dated 22-7-1971. Two other notifications were issued regarding upgrading of the status of similar employees; one on 28-8-1972 and the other on 25-6-1973. In the lastmentioned notification, the status of all Class-II employees of the Agriculture Department was raised to Class-I (Junior) in the pay scale of 450-50-1000 with effect from 28-8-1972. Accordingly, all the Assistant Agriculture Engineers got covered by this notification. The circumstances giving rise to the present dispute are that the Punjab Government in partial modification of its notification dated 25-6-1973 issued a notification on 14-1-1982 granting pay scale of Class-I (Junior) (Rs. 450-50-1000) with effect from 22-7-1971 to Graduate Agriculture Engineers. According to the appellants, the effect and purpose of the aforesaid notification was to upgrade the appellants to Class-I with effect from 22-7-1971, whereas the respondent Nos. 2 to 6 were to be similarly upgraded but with effect from 28-8-1972. The upgradation of the appellants and respondents Nos. 7 to 9 before that of respondents Nos. 2 to 6, according to the appellants, was on account of their better qualifications i.e.Graduate Engineers. On 7-7-1982, a seniority list was issued of Grade-17 Officers as it stood on 1- 7-1982. Herein, the contention of the appellants appears to have been accepted in that in this list both the appellants were shown at Serial Nos. 1 & 2 respectively, whereas the respondents were shown below them at Serial Nos. 6 to 10. Representations were made against the said seniority list but on 31-5-1984 in the final seniority list issued with a covering letter dated 2-6-1984 to all concerned both the appellants were again shown senior to the respondents and the previous position as reflected in the provisional seniority list was maintained. Respondents Nos. 2 to 6 felt aggrieved by the seniority list and filed an appeal before the Punjab Service Tribunal on 12-7-1984 which was allowed whereupon the appellants moved this Court seeking leave to appeal. During the hearing of petition for leave to appeal a question arose whether the Tribunal was right in entertaining the appeal on its view that "as this final list has been circulated under the orders of the Government of Punjab, therefore, the appellants were under no obligation to make representation against the same and have come before the Tribunal". The Bench considering the leave petition, after hearing both the sides with regard to the question, observed:-"It is an admitted position that the final list was not challenged by respondents Nos. 2 to 6 before any departmental authority prior to the filing of the appeal before the Tribunal. Section 4 of the Punjab Service Tribunals Act (No.IX) of 1974 provides that an appeal thereunder would not be competent if an appeal, review or representation to a departmental authority available under the Civil Servants Act, 1974, has not been filed. Under sub-section (2) of Section 21 of the Punjab Civil Servants Act, 1974, a representation to the next higher authority can be made if no remedy of appeal or review as provided in sub-section (1) of Section 21 is available. It has been stated at the bar that the rules do not provide the remedy of appeal or review against final seniority list Prima facie, therefore, the respondents Nos. 2 to 6 could file a representation before the Governor as the next higher authority under sub-section (2) of Section 21; and not having done so, their appeal before the Tribunal was not competent-It was barred by proviso (a) to sub-section (1) of Section 4 of the Punjab Service Tribunals Act, 1974. Learned counsel for the respondents, inter-alia, contended that the seniority list having been issued by the Provincial Government, a representation could be made only to a higher forum and under the Constitution the Governor was not the higher forum. That being so, no representation was competent. It has also been contended that the petitioners not having raised this point before the Tribunal or in the petition for leave to appeal, it should not be taken into consideration for grant of leave to appeal. They also relied upon some Tribunal's decisions in this behalf. Learned counsel for the petitioners, on the other hand, relied on two judgements of this Coml-S.M.H. Rizvi & 5 others vs. Maqsood Alvnad & 6 others (PLD 1981 S.C. 612) and Haji Kadir Bux vs. Province of Bind and another (1982 S.C. M.R. 582). The above noted question not only goes to the very root of the jurisdiction of the Service Tribunal to entertain, hear, adjudicate and decide the appeal filed by respondents Nos. 2 to 6, but also is of great general public importance. We accordingly permit the petitioners to amend their petition and also grant leave to appeal to examine this and other questions raised in the petitions for leave to appeal." It appears that pursuant to the above order of this Court the appellants submitted amended petitions raising an objection to the maintainability of the appeals before the Service Tribunal. The respondents, in reply thereto, submitted that at least four of them (respondents Nos. 2, 3, 5 & 6) had, in fact, filed representation before the Governor against the final seniority list circulated on 2- 6-1984, but since the view of the law taken by the Service Tribunal was that such a representation was not necessary [ see Tribunal's judgement in Ch. Muhammad Sharif and others vs. Secretary to Government of Punjab, S & G~A. Department and others (1986 P.L.C. (C.S) 789], the applicants' counsel before the Tribunal did not mention this fact in the memo of appeal. It was in this background that at the time of the hearing of the leave petition, it was assumed that no representation was made to the Governor under Section 21 of the Punjab Civil Servants Act, 1973 and that the respondents-applicants shall submit at the time of final hearing that the appeal before the Tribunal was competent even without the aforesaid representations. But if the view that a representation was necessary as pre­ condition for going in appeal before the Tribunal, then the applicants shall rely on the documents now being filed. In our opinion, the view taken by the Service Tribunal that a representation was not necessary in such cases is not correct and its decision in Ch. Muhammad A ! Sharif and others, vs. Secretary to Government of Punjab, S & G^A. Department and , others [1986 P.L.C. (S.C.) 789] is erroneous. It is an admitted position that the impugned seniority list has been issued by the Secretary to the Government and' even if matters such as the orders relating to causing the preparation of a seniority list are not to be placed before the Governor for approval it does not mean that the Secretary to the Government becomes the Governor in the relevant regard. Because the Governor has his own independent position and, no doubt, remains the next higher authority before whom the necessary representation can be submitted. Section 4 of the Punjab Service Tribunals Act 1974 to the extent pertinent lays down as follows :- "(4) Appeals to Tribunals - Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or, within six months of establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that - (a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred." Now, according to Section 21 (2) of the Punjab Civil Servants Act 1974, it is prescribed: "21 Right of appeal or representation. (1) ........................................ (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order." Since no provision exists in the rules in respect of an appeal or review against the impugned order of the Secretary to the Government causing the preparation of the seniority list circulated on 2-6-1984, a representation against it to the authority next above the said authority was necessary. The question is whether the Governor can be regarded as such an authority? A reference to the provisions of Punjab Civil Servants Act, 1974, assists in answering this question. In this Act, clause (c) of Section 2 defines the term "Government of thePunjab." While Section 4 thereof deals with the matter of appointments and provides - "S. 4. j4/>/>o//ifme/ite-Appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf." Thus, the appointing authority of the parties is the Governor. Coming to the matter of preparation of seniority lists, the same is dealt with in sub-section (3) of Section 7, as follows:- "(3) For proper administration of service or cadre, the appointing authority shall from time to time cause a seniority list of the members of such service or cadre to be prepared." B

PIJ 1990 SC 33 [Appellate Jurisdiction] PIJ 1990 SC 33 [Appellate Jurisdiction] Present: DR. NASIM HASAN SHAH, GHULAM MUJADDID AND ALI HUSSAIN qazilbash, JJ GOVERNMENT OF PAKISTAN etc-Appellants versus M/s. HASHWANI HOTEL Ltd-Respondent Civil Appeal No. 186 of 1982, dismissed on 11-2-1989. [On appeal from judgment of Lahore High Court, dated 3-5-1982, in Writ Petition.] (i) Central Excise and Salt Act, 1944 (I of 1944)- —S.4(3)(a)—Hotel Management-Creation of different categories of customers by—Whether made with ulterior motive to avoid duty—Question of—No provision of law which either expressly or even by implication prohibited hotel management to create different categories of different customers-Held: Categorisation was lawful and was not done with any ulterior motive or to avoid paying duty.[Pp. 36&39JA&D PLJ 1982 Karachi 306 relied. (ii) General Clauses Act, 1897 (X of 1897)- —S.13 read with Central Excise and Salt Act, 1944, Section 4(3)(a)- Expression "in any case" used in Section 4(3)(a)--Whether exempts respondent from paying maximum duty—Question of-Expression "in any case" is to be read conjunctively and not disjunctively-Held: Having held that categorisation does not amount to any concession, Section 13 of General Clauses Act is not applicable in this case. [Pp. 36&39]B&E (iii) Interpretation of Statutes- —Statutes-Interpretation of-Principles of—First and foremost principle of interpretation is that words are to be taken in their literal meaning—There have to be special circumstances where this principle is to be deviated and certain words have to be interpreted differently than their plain meaning with reference to Context. [P. 37]C PLD 1963 SC 137, 1971 SCMR 128, (1921) 1 K.B 65 and Statutory Construction (Crawford Edition)Page 270 ref. Mr. M. Bilal, Deputy Attorney General and Mr. Imtiaz Muhammad KJian, AOR for Appellants. Mr. Muhammad Zaman, Advocate, Supreme Court and Ch. Akhtar All, AOR for Respondent. Date of hearing: 11-2-1989. judgment Ghulam Mujaddid, J.-This appeal by Government of Pakistan and two others is by leave of this Court. The judgment impugned is that of the Lahore High Court dated 3-5-1982 passed in the Constitution petition filed by Messrs Hashwani Hotel Limited (hereinafter to be referred as the hotel), the respondent in this appeal.The respondent is a public limited company. It owns Holiday Inn, a four star hotel, in Islamabad, the capital of Pakistan.Three show cause notices dated 6-1-81, 27-1-81 and 27-1-81, respectively, were served on the respondent from the office of Deputy Collector, Central Excise and Land Customs under the signatures of the Deputy Collector.By means of notice dated 6-1-81, the respondent was required to show cause why central excise duty short deposited amounting to Rs. 1,75,680.60 should not be recovered from them under Rule 10 of the Central Excise Rules, 1944 and why penal action should not be taken against them under Rules 226 and 210 of the Central Excise Rules. By means of the notice dated 27-1-81, the respondent was called upon to show cause why the central excise duty evaded amounting to Rs. 60,794.94 and additional duty amounting to Rs. 30,397.97 should not be recovered from them under Rule 10 and 96 of Central Excise Rules, 1944 and why action should not be taken against them under rules 210 and 226 of these rules. By means of the third notice dated 27-1-81, the respondent was required to show cause why the central excise duty amounting to Rs. 777867.90 and additional duty of Rs. 388933.95 be not recovered from them under rules 10 and 96W and they should not be penalised under rules 218 and 226 of the Central Excise Rules, 1944. The respondent was given option to be heard "in person through representative or a counsel." The respondent availed of this facility, filed representation before the Chairman, Central Board of Revenue. On 29-1-81 the representation was rejected. Messrs Hashwani Hotel Limited then invoked the Constitution Jurisdiction of the Lahore High Court in which they impugned the show cause notices and the order dated 29-1-81 passed by the Central Board of Revenue whereby the representation was rejected on the ground that those were without lawful authority and of no legal effect. The Constitution petition was accepted by means of the impugned judgement. Government of Pakistan felt aggrieved. A petition for leave to appeal was filed in this Court. Leave was granted to consider "whether the charging provision Section 4(3) Clause (a) of the Central Excise and Salt Act, 1944 applies to a concessional exception within the respective categories of customers prescribed in advance or to the category itself considered with the category of customers charged at the highest rate." Before dealing with the contentions of the learned counsel for the parties, it is important to mention the set up/arrangement of the hotel. According to the averments in the Constitution petition before the High Court, there are 150 single and double bed rooms hi the hotel. They have the usual facilities of service and other amenities. The customers are categorised in different categories and the following rates have been prescribed:- Single Twin Suit Presidential suite (Rs) (Rs) (Rs) (Rs) Airlines Personnel & Bonafide Travel Agents 225.00 300.00 500.00 900.00 Quarterly & monthly 300.00 350.00 500.00 rates seminers & conven­ tions for 15 rooms or more. 250.00 300.00 International Trouist group for 10 persons or more. 300.00 350.00 Commercial accounts Diplomatic/UN & officials 400.00 480.00 800.00 1500.00 British Airways Crew 320.00 F.I.T. Single Twin Standard 480.00 570.00 Deluxe 510.00 600.00 Deluxe Suite 1000.00 Presidential suite 1800.00 The services and facilities provided to the guests are subject to duty under the Central Excise and Salt Act of 1944. The rate is 15% of charges for the services. The rate of duty is not disputed. It is with regard to the charges for the services facilities and other amenities. The hotel has been paying duty on the actual income from the different categories of customers as referred to above. Learned counsel for the appellant contended that the duty was not being demanded on the basis of any notional rent but was in accordance with the provisions of subsection (3) of section 4 of the Central Excise and Salt Act of 1944 (hereinafter to be referred as the Act) which provisions did not exempt from the levy of the central excise duty. It was further submitted that the violation of the aforesaid provisions exposed the respondent to penal liability. | The main emphasis of the learned counsel was on the word "concession" i mentioned in subsection (3) of section 4 of the Act. It was contended that the 'Aj respondent was debarred by law to create categories of customers. According to 1 the learned counsel, it was a mere pretext to come out of the ambit of the word J "concession". j Learned counsel then pressed into service section 13 of the General Clauses j Act in order to explain the scope of the expression, "in any case" used in clause (a) ! of subsection (3) of the Act. It was argued that the expression not only applied to • the cases of particular individuals but was applicable in any case that is to say to B | the cases of number of individuals and classes of individuals. What the learned j counsel meant was that categorisation did not exempt the respondent from paying ! the maximum duty. Learned counsel could only cite one decided case which is that jof Atlas Battery Ltd. Vs. Suptd. Central Excise and Land Customs, Karachi (PLD i 1984 Supreme Court 86). The learned counsel for the respondent supported the impugned judgment and submitted that the word, "concession" cannot be legally extended so as to cover the categorisation done by the respondent. According to the learned counsel, the categorisation was nothing new in the hotel business and the management is fully authorised to do so without violating any legal provision. It is the privilege of the management to do so. Learned counsel relied upon the case of Sky Rooms Limited Vs. Assistant Collector, Central Excise and Land Customs, Karachi (PLJ 1982 Karachi 306). In this case the Court observed that:- "Now, it is well known practice in the field of trade and commerce that various merchandise or commodities are sold to different classes of customers of different rates, for example a mill sells cloth produced by it in wholesale at a rate different from the one charged by it at its retail shop and in such a case the rate charge from a whole seller cannot be termed as a concessional rate, for the term "concession" in our view imports reduction of prices already fixed for a class of customers or for a quantity, and if different rates are fixed for different classes or customers or for different quantities, then the difference in rate cannot be said to be a "concession". Further, according to dictionary meaning the term, in the present context, means, rebate or reduction in fixed rate or price as a favour but when the rates or prices are already fixed and known and the services, facilities, and utilities could be obtained by any person or that class then the question of favour would not arise." It was further observed by the High Court that: "It is, therefore, apparent that the rates charged from different Airlines or from P.I.A. on account of their crew members and transit passengers are not in the nature of concession and they could conveniently be termed as, or compared with the rates for bulk sale, quantity-wise or numberwise. In our view the convenient and safe criteria for judging whether a concession has been allowed or not would be that if two customers of the same class are sold the same goods in the name or similar quantity at different rates, then in the absence of some other good reason, the one who purchases the same at lower rate can be said to have been granted a concession." The other case relied upon by the learned counsel was Pakistan through the Secretary, Ministry of Finance, Govt. of Pakistan, Karachi vs. Popular Tobacco Co. Karachi (PLD 1961 SC 66) where it was observed that:- "The intention of the law is that excise duty should be paid by the manufacturers on the amount which they actually receive and it is on such amount that excise duty was being originally levied. In agreement with the learned Judges of the High Court we find that the demand for additional duty made by the Excise Department was unjustified and we dismiss the appeal with costs." Before examining the wording of section 4(3) of clause (a) of the Act to which reference shall be made later on, it is essential to advert to the accepted principles for the construction of statute with special reference to the Taxing statute. The first and the foremost principle of interpretation is that words are to be' taken in their literal meaning. The plain ordinary meaning of the word is to be adopted in construing a document. There have to be special circumstances where. this principle is to be deviated and certain words have to be interpreted differently than their plain meanings with reference to the context. In the case of Pakistan Textile Mill-Owners' Association Karachi vs. Administrator of Karachi (PLD 1963 Supreme Court 137), it was observed that:-- "In a taxing statute, as in any other statute, there is no reason to depart from the general rule that words used in a statute must first be given their ordinary and natural meaning. It is only when such an ordinary meaning does not make sense resort can be made to discovering other appropriate meanings." This Court in the case of Messrs Hirjina and Co. (Pakistan) Ltd., Karachi vs. Commissioner of Sales Tax Central, Karachi (1971 SCMR 128) made it quiteclear by making the following observation:-- "We may here observe that interpreting the taxing statue the Courts must look to the words of the statutes and interpret it in the light of what is clearly expressed. It cannot import provisions in the statute so as to support assumed deficiency." While dealing with the question of interpreting a taxing Act in the case of Cape Brandy Syndicate vs. Inland Revenue Commissioners (1921) 1 K.B. 5 at page 71, Rowlatt, J observed as follows:— "It simply means that in taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." This is an excellent guideline and can be safely utilized for interpreting a taxing statute. In this very sequence it is important to refer to the following paragraph from the Statutory Construction (Crawford Edition page 270):-- "Where the statute's meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute." Section 4(3) (a) of the Act is to the following effect:-- "(a) any such services, facilities or utilities are, in any case, rendered or provided free of the charge or at a concessional rate, the duty shall be levied and collected on the amount which would have been charged for such services, facilities and utilities had they not been rendered or provided free of charge or at a concessional rate." The word "concession" was thoroughly examined by the learned Judges of the Sind High Court in the case referred to above. We are fully in agreement with the reasoning of the learned Judges while determining as to what is meant by the word "concession" its scope and interpretation.We have not found anything hi the foresaid provision which either expressly' or even by implication prohibited the hotel management to create different I categories of different customers. There being no egal bar we are of the view that! categorisation was lawful and was not done with any ulterior motive or to avoid; paying the duty. 1 We are further of the view that the learned Judge of the Lahore High Court, therefore, rightly observed:-- "While subscribing to the conclusion reached by the Sind High Court I will like to add that according to sub section (3) of section 4 of the said Act, undoubtedly the charges for service facilities and utilities are to be fixed by the management of the hotel and not by the law of the excise authorities. It is only the rate of the duty which is to be prescribed by law. Fixation of different charges for different categories of customers is not forbidden by law. Perhaps such fixation has got to be done by the management for operational considerations. The law also does not insist that a single uniform charge shall be fixed for all categories of customers." This leaves us to examine as to whether section 13 of the General Clauses Act can be of some help to the learned counsel for the appellants so far as the expression "in any case" is concerned. The expression "in any case" is to be read conjunctively not disjunctively.! Having held that categorisation does not amount to any concession, we don't think that section 13 is applicable in the instant case. The result is that there is no merit in this appeal which is hereby dismissed. (MBC) Appeal dismissed.

PLJ1990 PLJ1990.SC 39 [Appellate Jurisdiction] Present: MUHAMMAD HALEEM, CJ, MUHAMMAD AFZAL ZULLAH, DR. NASIM hasan shah, abdul kadir shaikh, shafi-ur-rahman, ghulam mujaddid, saad saood jan, s.usman ali shah, ali hussain qazilbash and naimuddin, JJ Haji MUHAMMAD SAIFULLAH-Petitioner versus THE FEDERATION OF PAKISTAN & others-Respondents Civil Review Petition No. 30-R of 1989, dismissed on 15-10-1989. [On review from Judgment dated 5-10-1988 of Supreme Court of Pakistan in Civil Appeal No. 317 of 1988.] Constitution of Pakistan, 1973- —-Art. 58(2)(b) read with Art. 199-National Assembly-Dissolution of- Judgment of Supreme Court-Review of~Prayer for-Correct that Court found that order of dissolution passed by President on 29-5-1988 was not justified, but further declaration was refused and order for holding of elections for fresh National Assembly was endorsed and re-enforced-Held: This was a conscious and deliberate decision for which full reasons were given in impugned judgment-Held further: No ground exists on which impugned judgment of this Court might warrant review-Petition dismissed. [Pp. 40&41JA & B Sh. Shaukat All, Senior Advocate, Supreme Court and Mr. Manzoor Elahi, AOR for Petitioner. Respondents: Not represented. Date of hearing: 15-10-1989. order Nasim Hasan Shah, J.~This petition for review of the order passed by this Court on 5.10.1988 in Civil Appeal No. 317 of 1988 is barred by 143 days. However, for the reasons given in the application for condonation of delay we would condone the delay and proceed to dispose of this petition on merits. The main ground urged by Sh. Shaukat AH, learned counsel for the petitioner, in support of this petition for review, is that after this Court having held that the -National Assembly coming into existence pursuant to the General Elections of 1985 was illegally dissolved by the President on May 29,1988, the said National Assembly could not thereafter be restrained from continuing to function till the expiry of its normal term of 5 years, namely, until March 1990; and in so doing the Court has committed an error with regard to the nature of the orders it can pass under Article 199 of the Constitution. Accordingly, this is a fit case for review. We do not agree. It is correct that the Court did find that the order of ; dissolution passed by the President on May 29, 1988, was not justified in law I because "the pre-requisites prescribed for the exercise of the powers conferred by {Article 58(2)(b) did not exist" and, therefore, the order of dissolution did not fall I "within the four-corners of Article 58(2)(b) of the Constitution:, However, it refused the further declaration that the said order is of "no legal effect" and, accordingly, the order of dissolution was allowed to continue and the consequential order for holding of elections for a fresh National Assembly j endorsed and re-inforced. This was a conscious and deliberate decision for which [full reasons were given in the impugned judgment. The petitioner may or may not I agree with those reasons. But where a conscious and deliberate decision has been I made with regard to the nature of orders which it is empowered to pass under a I provision of law (Article 199 in this case) only because another view with regard .thereto is canvassed cannot and does not constitute a ground for review. Sh. Shaukat Ali, however, in this connection submitted that the main reason given for not restoring the dissolved National Assembly and for endorsing the order for fresh elections was the assumption that the holding of the new elections was in the "collective good". But this assumption was misconceived. In this connection, he submitted that under the Constitution persons elected to the National Assembly must be "sagacious, righteous and non-profligate and honest and ameen", [Article 62(f)], but the members who were now constituting the National Assembly besides being less representatives than the members of the dissolved assembly (insofar as the turn out of electors for elections to the previous Assembly was larger than the turn-out during the general elections of 1988) they are neither sagacious, righteous, non-profligate, honest and ameen but, on the other hand, totally irresponsible, dishonest and corrupt. We cannot accept this sweeping generalization. At the most, it is a matter of opinion and this can, in no way, affect the basis on which the Court acted while passing the impugned order. It was further submitted that the new National Assembly is not a legally constituted body because the delimitation of Constituencies (Amendment) Ordinance 1988 which was promulgated on 21-7-1988 by the President (late General Ziaul Haq) to enable the Election Commission to proceed with delimitation work in accordance with the 1981 population census was promulgated without the advice of the Prime Minister. Similarly, the Delimitation of Constituencies (Second Amendment) Ordinance, 1988 (Ordinance VIII of. 1988) promulgated on 5-10-1988 by President Ghulam Ishaque Khan was also issued without the advice of the Prime Minister and insofar as the advice of the Prime Minister is a pre-condition to the promulgation of an Ordinance the said two Ordinances were illegal, the delimitation of the constituencies taken in pursuance thereof was without lawful authority and the members elected to the National Assembly from the constituencies as delimited under the said Ordinance not lawfully elected members. Similarly, the amendment made in Section 33 of the Representation of the People Act 1976 through Ordinance XVI 1988 making production of identity cards by electors to be a condition precedent to their eligibility to cast their votes, disfranchised millions of voters. This Ordinance too was promulgated without the advice of the Prime Minister. Thus, the present National Assembly is neither a representative body nor is it lawfully elected. These questions, we are afraid, do not arise out of the impugned judgment. They were neither raised in Haji Saifullah Kian's Appeal (C.A.No. 317 of 1988) nor accordingly decided therein. It was then contended that the effect of the dissolution of the National Assembly having been found to be unjustified in law but the election allowed to be held in the "collective good" was that the National Assembly elected at the elections of 16th November, 1988 in place of the aforesaid National Assembly must be deemed to have been elected only for the remaining life of the earlier . National Assembly i.e. only for the period upto March, 1990. This plea is also one on which review of the earlier order of this Court cannot be granted. It is merely the petitioner's interpretation of the impugned order and not a ground on which the said order can be found to suffer from any error or defect. The upshot is that no ground exists on which the impugned judgment of this! court might warrant review. This petition must, therefore, fail and is, accordingly,! 8 dismissed hereby. . j (MBC) Petition dismissed

PLJ 1990 SC 42 [Appellate Jurisdiction] PLJ 1990 SC 42 [Appellate Jurisdiction] Present: muhammad haleem CJ, shafiur rahman, zafear hijssain mirza. and ali hussain qazilbash, IJ Mst. NIGAR BIBI and others-Appellants versus SALAHUDDIN KHAN and others-Respondents Civil Appeal No. 403 of 1987, dismissed on 22-10-1989. (i) Civil Procedure Code, 1908 (V of 1908)- —Ss.l2(2), 151 and O. XLVII R.5~Exparte order passed by one Judge-Review by other Judge-Whether competent-Question of~Earlier order passed by High Court was not only based on ignoring record and material circumstances, but was also without jurisdiction—Held: Another Judge was fully justified to recall and adjudicate upon matter and pass a correct and just, order under Section 12(2) read with Section 151 and O. XLVII R.5 of CPC as Judge who passed earlier order was not on Bench. [P. 44]B (ii) Exparte Proceedings— —Ex-parte proceedings—Setting aside of—Challenge to—Notices addressed by Deputy Registrar of High Court to Senior Civil Judge nowhere indicate that hearing of case was fixed for 4-5-1985~It is absolutely clear that respondents were not served for that date-They could not be proceeded exparte and order so made by High Court was without jurisdiction-Held: Latter Judge (Munir A. Shaikh J) was fully justified in recalling order dated 4-5-1985. [Pp. 43&44]A (iii) Limitation Act, 1908 (IX of 1908)-- —-Art.181 read with Civil Procedure Code, 1908, Section 151~Ex-parte order- -Application to set aside-Limitation for~Order against respondents was passed ex parte, therefore, application under Section 151 was fully competent-Held: Case would not be governed by Art.162 but Article 181 of Limitation Act for which period of limitation is 3 years-Appeal dismissed. [P.44]C Mr. Muhammad Ismail Qureshi, Senior Advocate, Supreme Court and Syed AbulAasim Jafari, AOR (absent) for Appellants. Mr. M. Asadullah Siddiqui, Advocate, Supreme Court and Mr. Manzoor Illahi, AOR for Respondents. Date of hearing: 22-10-1989. judgment AH Hussain Qazilbash, J.~This is an appeal by leave against the order of a learned Single Judge of the Lahore High Court, dated 26-9-1987. 2. The facts, briefly stated, are that the appellants instituted a suit for a declaration with relief for perpetual injunction against the respondents in the Court of Senior Civil Judge, Multan. Alongwith the plaint, the appellants also filed an application for grant of temporary injunction against the respondents for restraining them from alienating the suit property. This application was resisted but the relief prayed for was granted on 12-4-1984. This order was assailed by the respondents before the District Judge, Multan, who accepted the appeal of the respondents on 2-1-1985. 3. Feeling aggrieved, the appellants challenged the above order in the High Court where Gul Zarin Kiani J. granted temporary injunction on 31-3-1985 as prayed or subject to notice for 4-5-1985. The respondents did not appear on the said date and they were proceeded against ex parte on 4-5-1985, the revision was accepted and the order of the District Judge set aside. After about a year the respondents moved the High Court under section 151 C.P.C. with the request to recall the order ated 4-5-1985. This application for recalling the earlier order came up before Mr. Justice Munir A. Sheikh who after hearing the parties held that the notice was not erved upon the respondents, he, therefore, recalled the order dated 4-5-1985 and fixed the revision for final he ring on 10-10-1987. 4. Leave has been granted to consider the propriety of the impugned order. 5. We have heard the learned counsel for the parties. The learned Judge in his Chambers disposed of the matter with the following observation: "After considering the arguments of both the sides, I am of the considered view that even if no provision of C.P.C. is specifically made applicable the Court is duty bound to re-call an order if it is found that the same was passed on a date when all the parties were not duly served. The rulings cited by the learned counsel for the applicants/respondents fully support the contention of the learned counsel in that behalf and there can be no two opinions about this proposition. Since the applicants/respondents according to record were not served for 4-5-1985, therefore, I am duty bound to re-call the order dated 4-5-1985 and restore the Civil Revision to its original number for adjudication on merits after hearing both the parties." As the case stands, the learned counsel for the appellants has failed to! persuade us to come to a conclusion different from the one arrived at by the learned Single Judge as per the impugned order. We have perused the notices bearing No. 3991/g and 2989/g dated 15-4-1985 addressed by the Deputy! Registrar, High Court, Multan Bench, to the Senior Civil Judge, Dera Ismail Khan and Multan, in Civil Revision No. 186 of 1985. These notices nowhere indicate that the hearing of the case was fixed for 4-5-1985 and that the respondents were served for the said date, i.e., 4-5-1985. The learned counsel for the appellants did not dispute this position at all. So it has become absolutely clear; that the respondents were not served for appearance in the High Court on 4-5- 1985. The notice in C.M. No. 602/C-85 in Civil Revision No. 186 of 1985 titled Mst. Nigar Bibi v. Salah-ud-Din fOian was issued by the Deputy Registrar on 14-4-1985 but it conveyed the following order: DOTH ORDER that you be and are hereby restrained from alienating tne suit property," this notice too did not give a slightest indication that the respondents were to be served for 4-5-1985 for further hearing. Thus since the respondents were not served for appearance in the High Court on 4-5-1985, therefore, they could not be proceeded against exparte and the order so made by the Court was obviously one | without jurisdiction. As the error in passing the ex parte order against the ; respondents by the learned former Judge was apparent on the face of the record, i therefore, in our view, the latter Judge was fully justified hi recalling the order i dated 4th May 1985. ! 5. The contention of the learned counsel for the appellants that under the | law the learned Judge in the High Court was not competent to review the order .passed by another Judge and that too beyond the period of limitation has no j merit. Admittedly the earlier order, dated 4-5-1985 passed by the High Court was i one which was not only based on ignoring the record and material circumstances jbut was one without jurisdiction, therefore, another Judge was fully justified to

recall and adjudicate upon the matter and pass a correct and just order under the I provisions of Section 12(2) C.P.C. read with Section 151 C.P.C. Further, the i provision of Order XLVII rule 5 C.P.C. on the subject is quite clear. Since the ' learned Judge who passed the order on 4-5-1985 was not on the Bench and there j was no likelihood of his presiding over the Bench during the period mentioned ! therein, the other Judge under the law was, therefore, fully competent to hear and i decide the application. 6. As for the question of limitation, this case would not be governed by Article 162 of the Limitation Act. The order against the respondents was passed exparte, therefore, the application under section 151 C.P.C. was fully competent | for which period of limitation is three years as prescribed by Article 181 f the 1 Limitation Act. 7. Thus in view of the above, we do not find any merit in this appeal and the ame is dismissed, with no order as to costs. (MBC) Appeal dismissed.

PLJ 1990 SC 44 [Appellate Jurisdiction] PLJ 1990 SC 44 [Appellate Jurisdiction] Present: dr. nasim hasan shah, ghulam majaddid and maimuddin, JJ Ch NAZIR AHMAD-Appellani versus ABDUL KARIM and another-Respondents Civil Appeal No. 358 of 1985, accepted on 21-10-1989. [From judgment of Lahore High Court dated 12-10-1983, in RSA 261 of 1981] Civil Procedure Code, 1908 (V of 1908)- —Ss. 148, 149 & 151-Deficiency in Court-fee--Making up of~Extension of time for—Whether rightly allowed-Question of--It is well settled that Court is bound to ascertain deficiency in court fee and then give time to plaintiff to make up deficiency—Admitted fact that appellant had filed suit within time and was allowed time to make up deficiency-Time was again extended on his application and deficit court fee was paid within extended time—Court had accepted reasons given by appellant for extension of time and extended it, therefore, there was no mala fide on part of appellant-Held: It cannot be said that trial court had exercised discretion in an illegal, arbitrary or capricious manner-Appeal accepted. [Pp. 46,47,48&49]A, B, C&D PLD 1984 SC 289,1972 SCMR 179 and 1980 CLC 186 ref Malik Abdul Sattar, Advocate, Supreme Court and Mr. Manzoor Ilahi, AOR for Appellant. Respondents: Exparte. Date of hearing: 21-10-1989. judgment Naimuddin, J.~This appeal, by leave is from the judgment of the Lahore High Court dated 12-10-1983 whereby it rejected the appeal of the appellant. 2. Leave was granted to consider the contention of the learned counsel for the appellant that the order extending the time for payment of Court fee was one falling within the discretionary powers of the trial Court under section 148 CPC and once the time was extended, no issue was framed in the suit and the proceedings had resulted in a decree, the plaint was not liable to be rejected under Order VII rule 11 CPC. 3. It may be stated that the contention which had prevailed with the Additional District Judge and the High Court was that the appellant was guilty of contumacious disregard of the first order of the trial Court whereby he was initially permitted to pay the Court fee by a particular date. 4. The facts relevant for consideration of the above noted contention are that the appellant pre-empted the land measuring 122 kanals entered in khata No. 24/40 situated in chak No. 21/T.DA., tehsil and district Bhukkur mutated at No. 106 on 16-11-1973, by filing a suit in the Court of the Civil Judge, Bhukkur. The plaint was presented on 15-11-1974, i.e., one day before the expiry of the period of limitation with a Court fee stamp of Ri, 5/ thereon. The Court extended the time for making up the deficiency in the Court fee till 8-1-1975, but before the expiry of time given, the appellant on 6-1-1975 made an application under sections 148,149 and 151 CPC for further extension of time on the ground that in spite of best efforts he had not been able to obtain revenue papers obviously to fix the valuation of the suit for the purpose of court fee because the Patwari had been busy in connection with the distribution of fertilizer and there was no negligence on his part. The learned Civil Judge granted the application and extended the time within which the appellant made good the deficiency. Thereafter the suit was tried on merits and decreed. 5. However, before the trial Court no issue was raised regarding the non­ payment of proper court fee in time or questioning the grant of time. However, at the time of hearing the arguments, the learned counsel for the respondents submitted that an issue regarding making up the deficiency in the Court fee which was necessary d not been framed. Dealing with this objection, the trial Court observed as follows:-- "...At this stage I am not inclined to agree with the learned counsel for the defendants with regard to framing an issue. The issues were framed on 14-2-1975 and it was not objected on behalf of the defendants upto this time that an issue regarding the making up the deficiency of court fee within time had not been framed. It will imply that the learned counsel for the defendants has waived preliminary objection No3 because he did not stress upon it either when the issue was framed or upto the time when the case was fixed for final arguments." And after discussing all the issues raised, decreed the suit by the judgment and decree dated 30-7-1977. 6. Aggrieved by the judgment and decree of the trial Court passed on merits, the respondents preferred an appeal with Additional District Judge, Mianwali, who while upholding the judgment and decree of the Civil Judge on merits, allowed the appeal by the judgment dated 2-12-1981 and rejected the plaint under order VII rule 11 CPC holding that the order granting time for making good the deficiency in Court fee was not justified and it was a fit case where the plaint should have been rejected under Order VII rule 11 CPC. The main reasons which weighed with the Additional District Judge were as follows:-- "When a person puts ridiculously low Court fee he is guilty of contumacy and does not deserve indulgence. A Court is not justified to allow time for validating his plaint and destroy the plea of limitation which may have been perfected in favour of the defendant in the meantime. This shows his mala fide and contumacy." 7. Aggrieved by the order of the Additional District Judge, the appellant filed regular second appeal in the High Court which was dismissed by the judgment dated 12-10-1983 impugned in this appeal. In dismissing the appeal thereasons which weighed with the High Court were as follows:- "The plaintiff filed the suit on the last date of limitation and took no steps over a period of one year to obtain the statement of annual net profit. The record does not show when the appellant plaintiff approached the Patwari concerned in this regard. Furthermore, the appellant/plaintiff filed the plaint with a ridiculaously low court fee of Rs. 5/- against the court fee of Rs. 3,075.00. This could never be treated a bonafide act. The appellant was grossly careless of his duty in affixing proper court fee. In these circumstances, the trial Court was not justified to allow time and destroy the plea of limitation." The High Court relied on a judgment of this Court in the case of Mst. Walayat KJiatim v. KJialilKJian and another (PLD 1979 Supreme Court 821). I 8. We have heard the learned counsel for the appellant. The respondents ;are ex parie. It is well settled that the Court is bound to ascertain the deficiency in the court ee affixed on the plaint and then give time to the plaintiff to make up A the deficiency and if the plaintiff complies with the order within the time, thedefect in the plaint is eemed to have been removed from the date it had been originally filed in Court, Sultan v. Azhar All Shah and others (1985 SCMR 592). • Reference may also be made t SC47 (Naimuddin, J) and another (PLD 1984 Supreme Court 289) wherein at page 319 it was bserved as follows:— "It is further interesting to note what has often been ignored regarding the Full Bench decision of the Lahore High Court in the case of Jagat Ram (1938),namely, that the reference made on these questions through an elaborate order of reference was in reality not answered in the circumstances of that case. And only section 149, C.P.C. was interpreted by the Full Bench in the manner already indicated namely that the exercise of discretion thereunder is not controlled by or dependent upon the considerations which are relevant under the Limitation Act. This Full Bench case in this behalf, as noticed earlier was, approved by this Court in both the cases of Muhammad Nawaz Khan (1970) and Shah Nawaz (1972). The following weighty findings and observations in the case of Muhammad Nawaz Khan are to be clearly understood and reiterated:- (a) It would indeed be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint; therefore; (b) Time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court fee prescribed; and (c) Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, "he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance." Moreover, section 28 of the Court Fee Act also fully supports the proposition, which reads:- "28. Stamping documents inadvertently received. No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed or used in any court or office without bei g properly stamped, the presiding udge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance." 9. In the present case, it is admitted fact that the appellant had filed the suit 1 within time and he was allowed time upto 8-1-1975 to pay the deficit court fee andh before the expiry of this period, he applied u/s 148, 149 and 151 CPC for further! extension of time. The learned Civil Judge was satisfied with the reasons given by the appellant and he, therefore, in exercise of his discretion under section 149 CPC extended the time and the deficit court fee was paid within the extended time. It does not matter whether the deficit court fee was more or less. In the case of Shah Nawaz and 6 others v. Muhammad Yousufand 3 others (1972 SCMR 179), this Court had upheld the order of the trial court allowing time for paying the deficit court fee. It was observed therein that "it is thus evident that unless the plaintiff is guilty of contumacy or positive mala fide in putting in deficient court fees along with his plaint, the Court could in its discretion allow time to the .plaintiff to put in the deficient court fee." 10. In the case of Mst. Walayat Khatun (supra) relied upon by the High Court, this Court at page 825 of the report, observed as follows:-- "Similarly where a plaintiff puts ridiculously low court fee, or where the plaint appears to have been filed not for any bona fide object of its serious pursuit, but to tease or harass another or others concerned, then a Court will not be justified to allow time for validating such a plaint and destroy the plea of limitation which may have been perfected in favour of a defendant in the meantime sheerly due to no seriousness of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack of bona fides will not be entitled for any indulgence. In this respect similarly poverty or ignorance will also be no excuse." Therefore, the question for consideration is whether there was any contumacious disregard of the order of the Court or was there any positive mala fide on the part of the appellant in complying with the first order of the trial Court whereby time upto 8-1-1975 was allowed to the appellant to make good the deficiency in the court fee. The ordinary meaning of 'contumacious' as given in Chambers 20th Century Dictionary are as follows:-- "Opposing lawful authority with contempt, obstinate, stubborn." This word came up for consideration before a Division Bench of the Lahore High Court in the case of Malik Jan Muhammad v. Shukaruddin and 6 others (1980 CLC 186) and it was observed as follows:-- "Putting in plaint with deficient court fees would not fall id the category of contumaciousness. As regards positive mala fides, it may be noticed that generally in this part of the country on pre-emption suits tentative court fees is paid to be made good on obtaining mesne profits from the revenue officials generally through the Court because getting of statement of net profits prepared from the revenue record, all know, is not only too difficult but too expensive as well." | Same is the position in the present case. The appellant had applied for further j extension of time for payment of deficit court fee as he was unable to obtain the c j revenue papers obviously concerning mesne profits in order to fix the proper 'valuation and court fee accordingly because the revenue officer had gone in •connection with distribution of fertili/ation and the Court had accepted this treason and extended the time, therefore, there was no mala fide on the part of the appellant nor had he disregarded the order of the Court at any stage. Indeed,! before the expiry of the time allowed by the Court, for the first time he had made! the pplication for extension of time and when the time was extended he made • good the deficiency within the extended time. F 11. In these circumstances, it cannot be said that the trial Court had! exercised the discretion in an illegal, arbitrary or capricious manner and in the! absence of such exercise, the first appellate Court or the High Court could noti properly interfere with the exercise of discretion by the trial Court. Since the findings of the trial Court on merits were affirmed by the first appellate Court, we would, therefore, set aside the judgment of the High Court and the order of the] first appellate Court with regard to he payment of deficit court fee and the orderj of rejection of the plaint and restore the judgment and decree of the trial Court. I 12. However, in the circumstances of the case, we leave the parties to bear their own costs. (MBC) Appeal accepted.

PLJ 1990 SC 49 PLJ 1990 SC 49 Present: muhammad haleem, CJ, shafiur rehman, saad saood jan, and ali hussain qazilbash, JJ. Malik BARKAT ALI DOGAR-Appellant versus MUHAMMAD SHAFI and others-Respondents Civil Appeal No. 128 of 1988, accepted on 16-10-1989. [From judgment/order of Lahore High Court, Multan Bench, dated 10-2- 1988, passed in RSA No. 5 of 1987] Punjab Pre-emption Act, 1913 (I of 1913)-- —S.22~Pre-emption case-Zar-e-Punjam-Deposit of~Time for-Whether time can be extended without notice to defendants-Question of~It is clear that Section 22 deals with a power of court and relates to procedure in pre­ emption cases—In passing first order and in making alterations in it, no vested right of respondents comes into conflict-Held: No notice to defendants is necessary in fixing date for deposit or for extension of date or substitution of order of deposit where defendants are not served and have not put in appearance in proceedings-Held further: Discretion was rightly exercised because by postponing decision to last date and then confronting plaintiff with no alternative would have been unreasonable and oppressive- Appeal allowed. [Pp. 53,55&56]A, B&C 1985 SCMR 192, and PLD 1972 SC 69 ref. PLD 1978 Beghdadul Jadid 85 Distingished Ch. Khurshid Ahmad, Advocate, Supreme Court and Mr. Tanvir Ahmad, AOR (absent) for Appellant. Ch. Klialilur Rehman, Advocate, Supreme Court, Ch. M. Ashraf Wahla, Advocate, Supreme Court and Sh. Salahuddin, AOR for Respondents. Date of hearing 16-10-1989. /judgment Shafiur Rahman, J.--Leave. to appeal was granted to the plaintiff/pre­ empt or to examine whether the power conferred by section 22 of the Punjab Pre­ emption Act of calling upon the pre-emptor to deposit l/5th of the pre-emption money and extending time for making such deposit can be exercised without notice to the defendants at a stage when the defendants had not been served in the suit. 2. Mst. Ghulam Zohra sold on 27-5-1977 through a registered sale deed, the land measuring 228 kanals 2 marlas situate in Chak No. 577/EB, Tehsil and District Vehari, to Muhammad Shafi and others for a sum of Rs. 2,27,000/-. The appellant pre-empted the sale by instituting a civil suit on 27-5-1978 claiming to be a co-sharer in the estate. he suit was registered the same day and on the next day the court ordered that notices should issue to the defendants for 18-7-1978 and the pre-emptor was called upon to deposit Rs. 45,400/- by that date as l/5th of the pre-emption money. On 16th of July, 1978, the plaintiff submitted an application before he Court that for various reasons disclosed in the application he was not in a position to deposit the amount in cash and w s prepared to furnish security in like amount. He rayed that the Order for cash deposit be altered into that of furnishing the security. On that date the Court ordered that the application should come up with the file on the date already fixed in the suit. The pplication came up on 18-7-1978. The Court did not allow the substitution of cash deposit by security and treating the application for extension of time allowed it and ordered that the deposit in cash be made before the next date fixed which was given as 30- 0-1078. It was also noted on 18-7-1978 that the defendants had not been till then served. Fresh summons were ordered to issue. There is also an application on record dated 18-10-1978 (page 83 of Paper Book) in which again the prayer of alteration in the Order and its substitution by furnishing of the security was sought. It remained unattended. When the case came up on the date fixed i.e. 30 th of October, 1978, the Court noticed that the l/5th of the pre-emption money as ordered by the Court had already been deposited in Court in cash. The suit proceeded to trial. The only objection taken by the defendants on this aspect of the case in the Written Statement dated 20th of February, 1979 was that the l/5 th of the Pre-emption money was not deposited within time in terms of the Court's Order. The suit was contested on numerous other grounds and as many as twelve issues were framed in the case which it is not necessary to reproduce r examine. The controversy centres round the failure of the pre-emptors to deposit the l/5 th of pre-emption money as ordered by the Court by 18-7-1978 as ordered on 28-5- 1978 and the extension of the date of deposit to 30-10-1978 without hearing the defendants-respondents. The Objection of the defendants-respondents that the amount was ot deposited in time was not made the subject matter of any issue and there was, therefore, no determination by the trial court of th controversy. The suit was decreed by the trial court on 18-1-1981. 3. An appeal was filed which ultimately came to be disposed of by the District Judge, Vehari. In the grounds of appeal before the District Judge no grievance was made against the non-framing of the issue or the absence of a decision on that point or with regard to the extension in time granted to the plaintiff/pre-emptor, for depositing the l/5th of pre-emption money. At the argument stage, it appears, a grievance was made and the District Judge dealt with it in the following words:- "This suit was filed on 27-5-1978. On 28-5-1978 the learned trial court ordered that zar-e-panjum be deposited by 18-7rl978. The plaintiff could not deposit zar-e-panjum by that date. On his application the period for the deposit of zar-e-punjum was extended upto 30-10-1978. He deposited zar-e-punjum before that date. Learned Counsel for the appellants argues that extension in time originally fixed for the deposit of zar-e-punjum was granted without any notice to the vendees, therefore, the learned trial court while granting extension exercised its discretion arbitrarily. No revision petition was filed against the extension order and the same has not been challenged in the grounds of appeal, therefore, the appellants have no right to argue that the extension order was illegal." The appeal was dismissed. 4. A Regular Second Appeal was then taken to the High Court and a specific ground 'k' as hereunder was taken:-- "That the extension of time for the deposit of "Zar-e-Panjum" given by the learned trial Court is against law and is a nullity in the eyes of law." The High Court rejected the contentions of the appellant on merits and upheld the findings of the two courts below but the appeal was allowed and the case remanded recording a finding on this controversy in the following words:— "The appellants, in my view, are entitled to succeed on the third point, namely, that in making the order dated 18-7-1978 allowing the plaintiff to deposit Rs. 45,400/-before 30-10-1978 without notice to the appellants and without affording them hearing, the learned trial Judge had acted illegally. As has been seen above, the plaintiff had been directed by the learned trial Judge's order dated 28-5-1978 to deposit the l/5th of the probable value of the land by 18-7-1978. On 16-7-1978, the plaintiff made an application saying that he had not been able to arrange the money and praying that he should be allowed to give security. Without adverting to his prayer in the application, namely, that instead of depositing the sum of Rs. 45,400/-he should be allowed to give security, the learned trial Judge allowed the plaintiff to deposit the sum of Rs. 45,400/- before the next date viz. 30-10-1978. In fact, the learned trial Judge assumed, and obviously wrongly assumed, that the plaintiffs application was for extension in time. This shows, therefore, that in making the order dated 18-7-1978, the learned trial Judge failed to apply his conscious mind to the question whether it was a fit case for extension in time or not. Learned counsel for the appellants argued that failure to arrange money has never been considered to be a good ground for extension in time. As I propose to remit the case to the learned trial Judge, I do not think it advisable to express an opinion on whether the reason adduced by the plaintiff was a good reason. It suffices to say that the order dated 18-7- 1978 was made without notice to the appellants and without affording them hearing." 5. Ch. Khurshid Ahmad, Advocate, the learned counsel for the appellant has contended that the power of the Court to fix the time for depositing the amount and for extending the time is unqualified and a notice to the defendants is not necessary in dealing with any application of the plaintiff with regard to it at a stage when the defendants had not put in their appearance in the proceedings. The Court had considered the request of the plaintiff and while refusing substitution of cash by security and making the order on the last date which had not expired, extended the time for deposit of l/5th of pre-emption money, and in doing so it exercised the discretion judicially, correctly and in an appropriate manner. In support of this proposition he has relied on Niaz Muhammad KJian versus Mian Fazal Raqib (PLD 1974 S.C. 134), Malik Hadyat Ullah and 2 others versus Murad Ali Klwn (PLD 1972 S.C. 69), Ch. Zulfiqar Ali versus Mian Akhtar Islam and Mian Bashir Ahmad (PLD 1967 S.C. 418), Shah Wall versus Ghulam Din alias Gaman and another (PLD 1966 S.C. 983), Inayatullah and others versus Mst. Hiurshid Akhtar (1986 S.C.M.R. 687) and KJiuda Bakhsh versus Sultan Muhammad and another (1985 S.C.M.R. 192). 6. Ch Khalilur Rahman, Senior Advocate, the learned counsel for the respondent on the other hand contended that the Order passed by the trial court was not only without notice to the defendants but was misconceived on facts and uncalled for in the circumstances of the case. He has in support of the proposition relied upon Riaz Ahmad Kiian versus Faiz Muhammad KJian (PLD 1978 Baghdadul Jadid 85), Muhammad Azam KJian and another versus Ditto and others (PLD 1967 Lahore 1068), Abdul Wahid etc. versus Ibrahim etc. (PLD 1966 Baghdadul Jadid 8) and Sardar Ghulam Sarwar KJian and 2 others versus Sardar Muhammad Anwar KJian and 2 others (PLD 1971 Peshawar 170). 7. Section 22 of the Punjab Punjab Pre-emption Act, 1913, reads as hereunder:-- "22. Plaintiff may be called on to make deposit or to file security.— (1) In every suit for pre-emption the Court shall at or at 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 the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1). (3) Every sum deposited or secured under sub-section (1) or (2) shall be available for the discharge of costs. (4) 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 entioned in sub-section (1) or (2), his plaint shalll be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed. (6) The estimate of the probable value made for the purpose of sub section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property." 8. It is not contested by the learned counsel for the respondents and rightly so, that while making the first Order of deposit the defendants were not required to be given notice or served. In altering that date or granting an extension, a right is claimed because it is said it allows a benefit to the plaintiff and may work to the disadvantage of the defendants-respondents. An examination of section 22 of the Punjab Pre-emption Act makes it clear that the provision deals with a power of the Court and relates to the procedure in pre-emption cases. In passing the first Order and in making alterations in it, no vested right of the respondentsdefendants comes into conflict. It was a judicial power the benefit of which was claimed by one of the parties at a stage when the other party had not put in appearance and was neither present nor participating in the proceedings. Undoubtedly a vested right of the defendants-respondents will arise where non- A compliance of the Order takes place and the penal provisions take over. In that circumstance and at that stage the question whether the plaintiff should be relieved of the penalty is undoubtedly within the power of the Court but the defendants can claim a right to be heard and contest because their vested right comes into existence. This right, however, cannot be extended to a stage when the plaintiff has incurred no penalty, has committed no default or disobedience and is only claiming the exercise of power to his benefit without directly prejudicing the interest of the defendants-respondents. The vested right of the defendantsrespondents would arise only after default, disobedience, noncompliance with the order when the result laid down in section 22(4) of the Pre-emption Act will follow. 9. There is another aspect of the case, if a hearing at that stage be made necessary then the entire proceedings will get frustrated. Such an application made a few days earlier to the date fixed will necessarily go beyond the date fixed if notices are made mandatory and the forfeiture or default will automatically take place pending that application and new juristic relationship in the form of rights and liabilities will arise. This legal question was considered in the context of N.W.F.P. Law of Pre-emption similar in language and effect in a decision given on 28th October, 1959 but reported in 1985 SCMR at page 192. In that case 28th of December, 1953 an order about deposit of Rs. 1,000/- before 14-1-1954 was passed. The plaintiff by an application dated 11-1-1954 sought that the Order be altered and security be substituted. It was ordered to come up on the date fixed which was 14-1-1954 when the application was rejected but nevertheless the time for deposit of the cash amount was extended upto 30-1-1954. The judicial Commissioner in Revision set aside the Order of the trial Court extending the invoking that power. If the Court could we are clearly of opinion that it could under subsection (4) of section 22--extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded." The second aspect of the decision relates to the act of the Court in postponing the decision on such an application to the last day and rejecting the prayer then. It was dealt with as hereunder:- "In the present case, the learned Judge of the High Court thought that there was no ground at all for granting such an extension although it was argued before him that in the present case the Court had made it practically impossible for the appellants, who were plaintiffs in the pre­emption suit, to comply with the order for making the deposit within the time originally fixed by the Court by its own action, namely, the adjournment of the application for furnishing security instead of making the deposit in cash from the 6th of December, 1967, to the 6th of January, 1968, on which date the pre-emption suit itself was fixed for hearing. If the Court had not done so but had disposed of the application soon after it was filed the present difficulty would not have arisen. The pre-emptors would have had sufficient time to make the deposit in cash." 11. The High Court in the impugned judgment and earlier in the case of Riaz Ahmad Klian relied upon the decision of this Court in the case of Niaz Muhammad Khan. That case has no relevance because there the plaintiff had definitely not complied with the Order, had incurred the penalty and a right had come to vest in the defendant. It was held that the plaintiff could not be relieved of the consequences of his omission by implication in the absence of an express order and without notice to the defendants-respondents. 12. The conclusion at which we have arrived is that no notice to the' defendants is necessary in fixing the date for deposit or for extension of date or I substitution of order of deposit, where the defendants have not been served and j have not put in appearance in the proceedings. If the defendants have been served I and are present and participating in the proceedings, then they have to be served j with a notice not because any vested right accrues to them but because as parties present and participating in the proceedings they have to be associated with every B procedural order passed with regard to the conduct of the proceedings in the case. However, once a non-compliance of the deposit Order has taken place and forfeiture or penalty has been incurred by the plaintiff, a vested right comes to j accrue to the defendants and without notice to them the plaintiff cannot be relieved and even if relieved it must be subject to their objections and rights. 13. The learned counsel for the respondents has taken us through the Order, the circumstances in which it was passed. It is urged by him that it is not a judicial exercise of discretion. It contains no reason. It was treated as a request for extension of time when in fact the application was for alteration of the Order and substitution of security for cash deposit. We have attended to this aspect of the case and find no fault with the Order except that it is laconic as most of these Orders are. The application was clearly for alteration in the Order and its substitution by another. It was refused by the trial Court and while refusing on the last date fixed for deposit of the cash amount, the date was extended and this the trial court could do. This was done after the learned counsel for the plaintiff who was present had been heard. A discretion possessed was exercised and rightly so because by postponing the decision to the last date and then confronting the plaintiff with no alternative would have been unreasonable and oppressive. 14. This appeal is allowed with costs. The judgment of the High Court is set aside and that of the two courts below is restored. (MBC) Appeal accepted.

PLJ 1990 SC 56 PLJ 1990 SC 56 [Appellate Jurisdiction] Present: MUIIAMMAD HALEEM, CJ, ZAFFAR HUSSAIN MlRZA, SAAD SAOOD JAN and ali hussain qazilbash, JJ M/s. HABIB INSURANCE CO.LTD and another-Appellants versus COMMISSIONER OF INCOME TAX-Respondent Civil Appeal No. 28-K of 1978, dismissed on 7.8.1989 Income Tax Act, 1922 (XI of 1922)-- —S. 4(3) (xii)—Income from newly constructed property—Whether not chargeable to tax-Question of~So far as business of life insurance is concerned, ordinary methods of computing profits and gains have been done away with by Section 10(7) of Act and special rules for that purpose have been prescribed—Held: Company was not entitled to exemption created under clause (xii) of Section 4(3) in respect of income accruing to it from house property-Appeal dismissed. [Pp. 58&59JA, B, C&D (1966) 60, YTR 496 relied. Mr. Noorul Arifin, Advocate, Supreme Court and Mr. Nizam Ahmad, A.O.R. for Appellants. Mr. Sheikh Haider, Advocate, Supreme Court and Mr. Muzaffar Hassan, A.O.R. for Respondent. Date of hearing: 7.8.1989. judgment Saad Saood Jan, J.--This is an appeal by special leave from the judgment dated 16.5.1975 of the High Court of Sind and Baluchistan, Karachi, deciding a question formulated in a reference under Section 66(1), Income Tax Act, against the assessee. The facts giving rise to the appeal are as follows. 2. Appellant No. 1 is a public limited company and is engaged in the business of insurance. In 1972, consequent upon the promulgation of the Life Insurance (Nationalization) Order, its business insofar as it related to life insurance was taken over by appellant No. 2. The dispute in this appeal relates to r.e income of appellant No. 1 arising out of lii'e insurance business during the ssessment years 1960-61, 1961-62 and 1962-63. For the purpose of computing t. come tax. its income for these years was worked »ut in accordance with rule bi of the First Schedule to the Income Tax Act. The amount so calculated ncluded income arising out of house property. It claimed exemption from avme-t of income tax in respect cf this income on the basis of clause (xii) of ection -'?> of the Income Tax Act on the ground that the house property in ue>;k>n had been constructed within the period specified in the clause. Its claim - this regard was rejected by the Income Tax Officer who, relying on the -".iiorLTv of a decision of the Bembav Hieh Court in the case of Commissioner of '.:•::£ tjx \Y, Tne Asian Insurance Co. L:.i. ( 1962) 46 I.T.R. 560), held that as ..:,; ~c.:~e. rrofits and eains of an insurance company were chargeable to tax :.o,ir ire -:cc:.il provisions of the First Schedule the exemption created by the iiic ciaLse •"is not available to the a>sessec. 5. Az,rrieved bv the order of the Income Tax Officer, appellant No. 1 rred! an appeal before the Income Tax Appellate Tribunal. The learned ial by a majority accepted the appeal and held that such income of appellant as fell within the purview of the afore-mentioned clause was exempt from e rax. However, on the request of the Commissioner of Income Tax the <; i Tribunal made a reference to the High Court for its opinion along with . on trie following question:- "Whether the assessee insurance company whose income from life insurance business is computed under Rule 2(b) of the First Schedule read with section 10(7) of the Income Tax Act, 1922, is not entitled to exemption from tax in respect of income from newly constructed property eranted by section 4(3)(xii) of the said Act for the assessment years 1960- 61. 1961-62 and 1962-63." After considering the question at some length the High Court held that the ;-<emption claimed was not available to the assessee and expressed its opinion jeeor'dingly. From the judgment of the High Court the assessee has come in JT'pcal to this Court. 4. To appreciate the contentions raised in this appeal, it will be of advantage :o take notice of certain of the provisions of the Income Tax act, 1922. Section 3 ?tates that where any Central Act enacts that income-tax shall be charged for any year at any rate, tax at that rate shall be charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous years of every person. The expression "iota! income" has been defined in Section 2(15) to mean the total amount of income, profits and gains referred in Section 4(1) computed in the manner laid down in the Act. Section 4(1) identifies what is to be regarded as the total income of a person. However, subsection (3) of the same section excludes certain categories of incomings from the total income of a person. Thus, clause (xii) excludes from the "total income" of a person such income as is chargeable under the head "Income from property" which arises out of a building which has been erected within certain specified periods. For the purpose of computing taxable income Section 6 divides incomes, profits and gains under different heads. One of the heads relates to "Income from property". Sections 7, 8 9 and 10 prescribe the manner in which the taxable income falling under the various heads is to be worked out. However, subsection (7) of Section 10 makes an exception in respect of the profits and gains relating to business of insurance for it states that notwithstanding anything to the contrary contained in Sections 8, 9, 10, 12 or 18 profits and gains of business of insurance and the tax payable thereon shall be computed in accordance with the rules contained in the First Schedule to the Act. The First Schedule prescribes special rules for the computation of the profits and gains of insurance business. Rule 2 of the Schedule which deals with the business of life insurances lays down two alternative methods for determining the profits and gains. Thus, the profits and gains of life insurance business are to be taken either:- (i) the gross external incomings of the preceding year from that business less the management expenses of that year; or (ii) the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation made by the last intervaluation period ending before the year of which the assessment is to be made so as to exclude from it any surplus or deficit included therein which was made in any earlier intervaluation period and anv expenditure other than the expenditure which may under the provisions of Section 10 of the Act be allowed for computine the profits and siains of a business. The income of the appellant No. 1 during the assessment years in dispute was computed in accordance with the second mentioned method. 5. The question for consideration before us is whether the income which the appellant received from the newly constructed property was not chargeable to income tax in view of the provisions of clause (xii) Section 4(3) of the Income Tax Act. On behalf of the appellants it was contended that despite the special procedure laid down for computing the profits and gains arising out of life insurance business the appellants were entitled to the benefit of the clause as the income arising out of house property did not, by operation of the said clause, form part of the total income as defined in the Act. It was also pointed out that before the High Court the revenue had conceded that for the assessment year 1962-63 the income which the appellant No. 2 had received as dividends was not chargeable to income tax. It was argued that if the income flowing from dividends was not taxable there was no reason why the same view should not have been taken in respect of the income accruing from house property. 6. It is difficult to accept the contention of the learned counsel. As already noticed, so far as the business of life insurance is concerned, the ordinary methods of computing profits and gains have been done away with by Section 10(7) of the Act and special rules for that purpose have been prescribed. As held by this Court in Commissioner of Income Tax V. Alpha Insurance Co. Ltd. (Karachi (1981) 44 Tax 1), the rules set out in the First Schedule to the Income Tax Act completely, exhaustively and to the exclusion of every other provision not expressly r.;,:rporatcd, govern the compulation of profits and gains of the insurance -•-^iness. Thus, in computing profits and gains of the insurance business the .memorisation of heads as made in Section 6 and the manner of determining the :._cable income under the different heads as set out in Sections 7, 8, 9 and 10 are ..-relevant. No doubt, the rules laid down in the First Schedule would lead to only notional or artificial results but then that is how the Act states that the income of .: person engaged in the said business should be worked out for the purpose of novation. Now, clause (xii) of Section 4(3), in terms refers only to such incomes as :.:t chargeable under the head "Income from property". This clause would, -.herefore, only be attracted where the income of an assessee is being calculated in .meordance with the provisions of Section 9. Consequently, where the income of .in assessee is not being calculated in accordance with Section 9 the said clause aid not apply. On a plain construction of the clause it is not possible to extend -.he exemption created by it to a case where the income is to be calculated not -nder the head "Income from property" but on a notional or artificial basis on .-.ccount of the peculiar features of the business. For this reason, the judgment of :ne Calcutta High Court in North Br and Mercantile Insurance Co. (1937) 5 LT.R. 349 upon which the appellants rely had no relevance to the case before us. 7. The view which we take is similar to that which found favour with the I L'.Jian Supreme Court in Vanguard Fire and General Insurance Co. Ltd. v.J '. •••••'.niissioner of Income Tax (1966) 60, LT.R. 496. In that case too, the exemption made by Section 4(3)(xii) of the Income Tax Act in respect of income ::om house property was sought to be invoked by an insurance company whose :-refits and gains had been computed in accordance with the provisions of First x chedule. Although the insurance company was not engaged in the business of life .r.furance but the construction placed by the Court on clause (xii) is equally Applicable to life insurance. The Court held that it was impossible to apply the provisions of the said clause to an assessment made under Section 10(7) of the A;:, read with paragraph 6 of the Schedule for there was no income chargeable -r.!..r the head "Income from proper!y" so far as the business of insurance was : Turned: consequently, the company was not entitled to the exemption created __-;.: :'n; clause in respect of the income accruing to it from house property. There is also no merit in the contention that as the revenue had not : . r.tested the exemption granted to the assessees in respect of dividend income .;-.;.re was no reason why a similar exemplion with regard to income from house rroperty should have been denied to them. It is to be noticed that exemption in respect of dividend income was allowed to the appellants under an entirely ;iferent provision of the Income-tax Act, namely, sub-paragraph I(a) of paragraph B of Para ] of the Fourth Schedule. The exemplion envisaged by that provision is not before us for examination; all that we can say at this stage is that ihe said provision had no bearing whatsoever on the construction of clause (xii) :'?id. upon which alone the appellants have founded their case in this appeal. 9. For the reasons stated above, we find no merit in this appeal which is hereby dismissed with costs. BMC) Appeal dismissed.

PLJ 1990 SC 60 PLJ 1990 SC 60 [Appellate Jurisdiction] Present: siiafiur raiim \n, zaffar hussain mirza, saad saood jan and naimuddin, JJ ISMAIL (deceased) through his L.Rs. and others—Appellants versus REGISTRAR CO-OPERA'IIVE SOCIETIES and others-Respondents Civil Appeals Nos. 283-K to 287-K of 1980, dismissed on 23-1-1989. [From judgment of High Court of Sindh at Karachi, dated 23-10-1979, in C.P. Nos. D-932 to D-936 of "l 978.] Co-operative Societies Act, 1925 (VII of 1925)-- —Ss.54-A and 56—Majority decision of Board of Arbitrators—Appeal against --Whether application under Section 54-A could be converted into revision under Section 56 of Act—Question of—It cannot be laid down as a proposition of lav. of universal application that a statutory authority is bound to convert a proceeding incompetently filed before him so as to bring it within his compctencc-Howcver no justification in law for rejection by Deputy Registrar of revision under Section 54-A on sole ground that he had earlier dismissed appeal on same facts holding it to be incompetent—Held: Order of Deputy Registrar amounts to refusal to exercise a jurisdiction possessed by him—Held further: High Court was justified in refusing relief- Appeals dismissed. [P. 64]A Mr. Khalid M. Isliaquc, Advocate, Supreme Court and Mr. Nizam Ahmad, AOR for Appellants. Respondent: Expanc. Date of hearing: 23-1-1989. judgment Shafiur Rahman, J.—A common question of law arising in these five appeals has come up for consideration. Leave was granted to examine whether the High Court was justified in refusing relief to the appellants even after finding that the order whose avoidance was sought had been passed without jurisdiction. 2. The circumstances in which these appeals have arisen are that the contesting parties were members of Kokan Muslim Cooperative Housing Society, respondent No. 4. A dispute had arisen on the allotment of plots. The respondent No. 2 filed an arbitration case under section 54 of the Cooperative Societies Act, 1925 (hereinafter referred to as the Act). The matter was referred to a Board of three arbitrator:-, \iio by a majority decision dismissed the claim of respondent No, 2 by award date'd 1 1th of March, l')75. The respondent No. 2 challenged this award by filing an appeal which was expressed to be under section 56 of the Act. This appeal was dismissed by an order dated 27th of October, 1975 by a Deputy Registrar in terms as hercundcr:— "In terms of the decision, contained in PLD 1975 Kar. 12 case of Shaikh Rahmalullah v. Secrctaiy of West Pakistan Lahore and 3 others decided by the Division Bench High Court of Sind & Baluchistan at Karachi, the present appeal under section 56 of the Cooperative Societies Act 1925 against the majority Award of the Board of Arbitrators is therefore not maintainable and is dismissed accordingly." The respondent No. 2, thereafter filed an application under section 54-A of the Act before the same Deputy Registrar who dismissed it observing as hereunder:— "The Petitioners have now made fresh applications under section 54-A, of the Cooperative Societies Act 1925. The facts and grounds mentioned in the Memo of appeals already dismissed and in the fresh application u/s 54-A are the same. I had considered the arguments of the learned advocates for Petitioner- and Respondents Nos. 2 to 9 on 13-4-1975 and pronounced my order di-mi^ing the applications u/s 54-A. The prayer in the applications is not in accoi dance with Section 54-A of Cooperative Societies Act. 1925. The Petitioners have chosen to prefer appeal under Section 56 which was dismissed by me as stated hcreinabove. Now they cannot apply for the same matter under Section 54-A when their appeals already stand dismissed. Moreover, they cannot be allowed to take benefit by mis-using and mis-interpreting the law. They should have preferred appeals or revisions to the higher authorities against my order and should not have come under Section 54-A agitating the same point before me. 1 find no substance and no new grounds in the present applications urged before me. Hence the applications under section 54-A of the Petitioners are dismissed.' Finally, the respondent No. 2 filed a Revision Petition before the Registrar, Cooperative Societies. The claim ot the appellant.-, is that they were not informed of the proceedings before the Registrar who passed the following order on 7-8-1987:- "I have heard the parties and perused the contents of the order dated 20-6-1976 passed by the Deputy Registrar, Cooperative Societies, Karachi. It appears that the petitioner had preferred an appeal under section 56 of the Cooperative Societies Act before the Deputy Registrar against the Award passed by the Board of Arbitrators which was heard by him and rejected. Therefore the petitioner filed an application under S.54-A before the Deputy Registrar, Karachi which was also dismissed by him vide his order dated 20-6-76 on the same facts brought in an appeal filed u/s 56 of the Cooperative Societies Act and already dismissed. Perusal of the order passed by the Deputy Registrar reveals that he has neither discussed the legal issues nor touched the facts of the case. He has simply passed order on the basis of his past decision taken on the application filed u/s 56 of the Cooperative Societies Act, thus the Deputy Registrar has not applied his mind while deciding the matter. In view of the above position I set aside the order of the Deputy Registrar, Karachi dated 20-6-1976 and remand the case to him with the direction to hear the application afresh and dispose of the same keeping in view the legal aspects and merits of the case." 3. The appellants invoked the constitutional jurisdiction of the High Court and challenged the order of the Registrar on the ground that he had no jurisdiction to set aside the order as the Deputy Registrar had passed the order rejecting the application under section 54-A as Registrar and not as Deputy Registrar. They also attacked the merits of the claim and also on the ground that the decision adverse to them was given without notice to them. The High Court took notice of the submissions of the appellants and disposed them off as hereunder:-- "The argument was that the Deputy Registrar acts as nominee or delegatee of the Registrar while disposing of an application under section 54-A and, therefore, the Registrar cannot, what would in effect amount to revise his own order under section 64-A of the Act. There is substance in this argument. However, ihe larger question that arises for our consideration in this case is whether in the circumstances of the present case we will be justified in interfering with the impugned order though apparently made without jurisdiction. Mr. S.H. Rizvi rightly pointed out that in so far as the appeal of respondent No. 2 was concerned it was not maintainable under section 56 of the Act, under which appeal lies against decision of Registrar's nominee under section 54 and not against an award by a Board of Arbitrators made under section 54 of the Act. The learned counsel further pointed out that an award by a Board of Arbitrators, could be challenged by an application under section 54-A of the Act and the net effect of the impugned order is that the Deputy Registrar will hear on merits the application filed by respondent No. 2 under section 54-A against the majority award dated 11-3-1975. It was further argued that the Deputy Registrar instead of dismissing the appeal filed by respondent No. 2 under section 56 against majority award ought to have treated the appeal as an application under section 54-A and disposed it of on merits. Now, it is clear that the Deputy Registrar instead of hearing and deciding on merits the application made by respondent No. 2 in January 1976, under section 54-A of the Act, to set aside the majority award dated 11-3-1975 dismissed it on the short ground that earlier an appeal had been preferred against this award under section 56 which had been dismissed by him as not maintainable. As the application under section 54-A against the majority award was clearly maintainable the Deputy Registrar ought to have heard it on merits and disposed it of as such. The effect of the impugned order is that the Deputy Registrar will be enabled to exercise his jurisdiction under section 54-A of the Act and since this will serve both the ends of justice as well as the law, we will re justified in not exercising our discretionary jurisdiction under Article 199 of the Constitution. These petition are, therefore dismissed but in the circumstances there will be no order as to costs." 4. None has appeared to contest these appeals and therefore, the hearing :iken place ex-parte against the respondents. 5. Mr. Khalid M. Ishaque, Advocate., the learned counsel for the appellants •. :- contended before us that once the High Court found that a jurisdiction not ~:s;;ssed had been exercised, there was no equitable factor which could have ; ; :;fied it in denying the relief to the appellants. In any case, no such equitable :d:::T or principle has been mentioned or takcr> note of in the judgment to justify :r.e denial of the relief. On merits it has been contended that the Deputy Registrar '••-hile disposing of the application under section 54-A of the Act was acting as deiegatee or nominee of the Registrar and only the Provincial Government was competent under section 64-A to interfere with that order. The Registrar being an Officer of Coordinate jurisdiction, could not have set it aside. It is further Contended that the appellants who are the beneficiaries under the Award had ::-en adversely affected by the reopening of the question after such prolonged delay. Besides, according to the learned counsel for the appellants, the respondent No. 2 for whose benefit the reconsideration of the whole matter is taking place, '.vas guilty of gross laches and incompetence in the matter of pursuing the legal remedies available to him and an order without jurisdiction could not have been protected for his benefit. In any case, according to the learned counsel for the appellants, the equitable principles, if any, that weighed with the High Court, • hculd have been indicated or mentioned to justify the denial of the relief otherwise so eminently deserved by the appellants. In this context, he has referred :o the circumstances which were indicated or found established in the judgments v-.here such denial of relief had taken place. He has cited the cases of Pir _'.':,\;'!";aJ Farid Jan v. Colonization Officer, Sitkkitr Barrage, Hyderabad and - :•:••- PLD 1965 S.C. 399), Kliawaja Muhammad Sharif \: Federation of Pakistan :':-.:•..;:'; .slyvij/v Cabinet Division, Government of Pakistan, Islamabad and 18 •. :':c's (PLD 19SS Lahore 725), YousafAH v. Muhammad Aslam Zia and 2 others PLD 195S S.C. 104), Mansab All v. Amir and 3 others (PLD 1971 S.C. 124) S. Sharif Ahmad Hashtni v. Chairman, Screening Committee and another (1978 SCMR 367) and Pakistan Post Office v. Settlement Commissioner and others (1987 S.C.M.R. 1119). 6. We find that on the question of jurisdiction a very specific determinative finding has not been recorded. To demonstrate this, the operative part of the judgment of the High Court has been reproduced. While recording that there was substance in the argument, it was observed that the question posed was whether "we will be justified in interfering with the impugned order though apparently made without jurisdiction". The equitable factor mentioned after referring to the provisions was (hat the denial of relief will serve both the ends of justice as well as the law. a 7. As we have not in appeal before us the proper assistance on the jurisdictional aspect of the case and do not find the finding of the High Court to e recorded in clear words and after full discussion, we are not deciding that question. Our first impression, however, is that under section 4 of the Act the Provincial Government is authorised to "appoint a person to be Registrar of Co­ operative Societies for the Province or any portion of it, and may appoint a person or persons to assist such Registrar, and may, by general or special order, confer on any such person or persons all or any of the powers of a Registrar under this Act". The Registrar has been defined under section 3 clause (f) as "a person appointed to perform the duties of a Regis!tar of Co-operative Societies under this Act". Powers under section 64-A of the Act have been conferred on the Registrar to "examine the record of any inquiry or the proceedings of any officer, subordinate to them". In such a situation, whether a powder exercised and a duty performed as Registrar by an Gfikcr subordinate to Registrar will remain immune from the jurisdiction of the Registrar under section 64-A, will require further consideration and a raore authoritative pronouncement. It is probably in this background that further determinative finding was not given by the High Court itself, on the question of jurisdiction. The ends of justice and the ends of law were indicated by the High Court by going over the entire proceedings and holding thai the law provided a remedy against the Award given by Board of Arbitrators, that the remedy was competently sought before an officer who was designated and empowered to deal with the matter and the refusal of that authority or officer was on grounds technical and not fully justified. In the circumstances, the disposal oi the grievance required proper attention of the statutory authorities and had to be attended to and if the end result of the proceedings had been to provide an opportunity for proper disposal of the grievance, certainly it would be in furtherance of the ends of justice. 8." The learned counsel for the appellants is correct in saving that it cannot be laid down as a proposition of law of universal application that a statutory authority is bound to convert a proceeding incompetently filed before him so as to bring it within his competence by having recourse to ail the powers that may be a power in the statutory authority, that is the Deputy Registrar, not to entertain as revision an appeal under section 56 of the Act against the majority decision of the Board of Arbitrators. However, we do not find the slightest justification in law for the same Deputy Registrar to reject what was competently preferred before him as a revision under section 54-A of the Act op. she ground and the sole ground that he had earlier dismissed an appeal on She same facts holding it to be incompetent. That order of the Deputy Registrar amounts to a refusal to exercise a jurisdiction possessed by him on a ground not available to him. It the Constitution Petition had been allowed that illegal order of the Deputy Registrar would have been perpetuated on the record disallowing to the respondent No. 2 relief to which he was entitled in law, namely, to have his matter or grievance considered by the designated statutory authority. It is a recognized principle of the exercise of constitutional jurisdiction that this discretionary remedy shall not be exercised in a manner to perpetuate an illegality. To that extent High Court was justified in refusing relief. We find no merit in these appeals and dismiss them with no order as to costs. (MBC) Appeals dismissed.

PLJ 1990 SC 65 PLJ 1990 SC 65 [Appellate Jurisdiction] Present: dr. nasim hasan shah, pir muhammad karam shah and maulana muhammad taqi usmani, JJ MUHAMMAD AMIN-Appellant versus THE STATE-Respondent Criminal Appeal No 23(S) of 1986, allowed on 18-11-1989. [On appeal from judgment dated 6-3-1986 of Federal Shariat Court, in I nminal Appeal No. 194 of 1985.] Pakistan Penal Code, 1860 (XLV of 1860)- ----S.302 read with Offence of Zina (Enforcement of Hadood) Ordinance, 19 "?9, sections 10(3) & 11—Murder and Zina-Offences of-Conviction for~ Challenge to-Retracted confessional stafement-Whether can be made basis for conviction—Question of—True that conviction can be based on a statement made under Section 164 Cr.PC but retracted later on-Not a single piece of completely untarnished evidence in this case connecting appellant with crime-Held: It is not safe to uphold convictions and sentences on kind of evidence produced at trial-Held further: Appellant must be given benefit of doubt-Appeal accepted. [Pp. 67&75JA, B&.C Mr. Arif Iqbal Hussain Bhatti, Advocate, Supreme Court and Ch. Mehdi jv:j'i Mehtab, AOR (absent) for Appellant. Mr. Muhammad Nawaz Abbasi, AAG Punjab with Raja Abdul Ghafoor, Advocate, Supreme Court and Rao Muhammad YousufKJuin, AOR for State. Date of hearing: 24-6-1989. judgment Nasim Hasan Shah, J.--This appeal, by leave of this Court, is directed against the judgment passed by the Federal Shariat Court dated 6-3-1986 in Criminal Appeal No. 194 of 1985. The facts of the case briefly are that Mst. Rehmat Eibi, P.W.2, lodged an F.I.R. at Police Station Mozang, Lahore at 5.30 a.m. on 20-7-1983 to the effect that she had come to Lahore alongwith Ghulan Sughran, her daughter, aged about 6 years since a few days and that on 19-7-1983 the little girl went out to play in the street outside but did not return home for quite a long time and despite hectic search made to find her was not traceable. On the morning of 20-7-1983, the dead-body of the aforesaid Mst. Ghulam Sughran was found lying in the darbar of shrine of Baba Walayal Shah in Mohallah Mubarikpura. There were signs of violence on her dead-body and some cruel person had murdered her with the intention of removing her ear-rings, which she was wearing when she went out in the street. During the investigation, three persons including the petitioner were arrested by the police and remanded to the police custody; two of them, however, were later on released by the police, but the petitioner was not so released and on 27-7- 1983 allegedly made a confessional statement under section 164 Cr.P.C. before the Ilaqa Magistrate. The petitioner, however, soon thereafter challenged the authenticity of the said statement alleging that it had been procured under coercion. In the meanwhile, Dr. Mohammad Farooq Akmal conducted the post­ mortem examination on Mst. Sughran and found that the little girl had been strangulated to death and the cause of her death was asphyxia. He also reported the detection of blood and semen from the vaginal swabs of the dead-body. The prosecution rested its case on the confessional statement of the petitioner (which was later on retracted) wherein he admitted having kidnapped the girl and after taking her to various places committed rape on her and strangulated her to death for securing the ear rings. This statement, as already stated, was retracted subsequently and it was alleged that it had been procured by coercion. Two other witnesses namely Gulzar P.W.9 and Muhammad Yasin P.W.10 had supported the prosecution case in their statements made before the Magistrate under Section 164 Cr.P.C. which too where subsequently resiled from. These witnesses were declared hostile in the trial Court and cross-examined. The owner of the factory Muhammad Farooq P.W.6, in which the petitioner was working as a labourer, but he also did not support the prosecution case at the trial. There was no incriminating recovery from the petitioner. The learned trial Court relying on the statement of the petitioner made under Section 164 Cr.P.C. and the statements of Gulzar P.W.9 and Muhammad Yasin P.W.10 also under Section 164 Cr.P.C. (though they were declared hostile as they did not support the prosecution version before the trial Court) convicted the petitioner under Section 302 PPC and sentenced him to life imprisonment plus a fine of Rs. 10.000/-. He also convicted him under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and sentenced him to 25 years R.I. plus a fine of Rs. 5,000/- and 30 stripes. He also convicted him under Section 11 of the said Ordinance for kidnapping the little girl and sentenced him to life imprisonment plus a fine of Rs. 5,000/- in addition to the infliction of 30 stripes. Ail the substantive sentences were ordered to run concurrently. These convictions and sentences were upheld, on appeal, by the Federal Shariat Court. Admittedly the case of prosecution is based mainly on circumstantial . Uciice, there being no eye-witness of (he occurrence. The alleged confessional statement made by the appellant w-is denounced by him as having been procured by coercion and torture. The mother of the appellant almost immediately alter this alleged confessional statement was recorded, made an application to the same el feet. The appellant too after making the confession was not remanded to the judicial custody but handed back to the police custody on their request to the effect that certain further recoveries had to be made from him in regard to the ear-rings of the deceased girl. The factory owner Muhammad Farooq, in whose factory the appellant was working, did not support the prosecution at the trial. (iul/ar P.W.M. owner ol the hotel where the appellant had allegedly taken Msl. Stighran lor mcaix denied this fact in the trial Court, although he had so staled in his >ialement under Section 164 C'r.P.C. He was declared hostile and crossexamined where he explained the reason for making the earlier statement made h\ him under Section 164 Cr.P.C. namely that he was beaten by the police and before the Magistrate had stated whatever the police had asked him to say on account of fear. Similarly, Muhammad Yasin PAV.ll). an employee »>f the ho!cl, also resiled Irom his earlier statement made under Section 1(>4 Cr.P.C. He denied ever having seen the appellant before and also denied thai he had ever come to the hotel to take meals. It is true that it is not illegal to ki'-c the conviction of the accused on the; statement made by him under Section 164 Cr.P.C. which statement is later on: retracted, but nevertheless in the absence of a single piece of completely; untarnished evidence in this case conneciing the appellant with the crime we think' that it will not be safe to uphold his convictions and sentences on the kind of evidence produced at the trial. In these ciicumslanccs, the appellant must be giver, the benefit of doubt. Accordniiiiy, this appeal is allowed. The convictions and sentences passed a^.aMSt (he appellant are set aside. He shall be set at liberty iorlhwith if not v.anied in any other case. C)KD!:R OI'"T1IE COURT In view of die opinion of the majority this appeal is allowed. The convictions and sentences passed against the appellant are set-aside. He shall be set at liberty forthwith if not wanted in any other case. (MBC) Appeal accepted.

PLJ 1990 SC 76 PLJ 1990 SC 76 [Appellate Jurisdiction] Present: MUHAMMAD HALEEM, CJ, ZAFFAR HUSSAIN MlRZA, SAAD SAOOD JAN and ali hussain qazilbash, JJ BENGAL OIL MILLS LTD.--Appellants versus HUSSAINI CGMPANY-Respondent Civil Appeals Nos. K-309 and K-310 of 1980, accepted on 8-8-1989. [From judgment of High Court of Sindh, dated 20-5-1979, passed in LPA Nos. 184 of 1968 and 158 of 1969,] Damages- -—Damages—Suit for—Decree in—Challenge to—Only question to be considered is whether percentage of oii etc. in goods supplied, was guaranteed-Overwhelming evidence on record that percentage was not guarariteed--In sale notes which have not been disputed by respondents, it is given in unimbiguous terms that goods are "unpercentage guarantee"-- Broker who appeared as witness of respondents, has stated that percentage of oil etc. was not guaranteed by appellants at time of sale—No evidence to establish that goods were meant for export to U.K.--Held: Respondents have failed to establish their case-Appeals accepted. {Pp. 78&79]A,B,C&D Mr. Kialid M. Ishaque, Advocate Supreme Court and Mr. Nizam Ahmad, AOR for Appellants (in both appeals). S. Inayat AH, Advocate Supreme Court and Mr. M.S. Ghaurv, AOR for Respondent (in CA No. K-309 of 1980). Respondent: Exparte (in CA No. K-310 of 1980). Date of hearing: 8-8-1989. judgment Ali Hussain Qazilbash, J,~These two appeals, by leave, arise from the judgment of a learnsd Division Bench of the Karachi High Court, passed in Letters Patent Appeals No. 184 of 1968 and 158 of 1969. 2. Two suits bearing No. 150 of 1964 and 162 of 1964 were brought by M/s Hussaini Company, a registered partnership firm, 2nd Floor, Karachi Oil Mills Buildings. Murad Khan Road, Jodia Bazar, Karachi, and M/s Fairland Export Syndicate, a registered partnership firm. 88, Motan Building, Bunder Road, Karachi (hereinafter called the respondents) against M/s Bengal Oil Mills Limited, Veergi Street, Jodia Bazar, Karachi (hereinafter called the appellants), for recovery of a sum of Rs, 32,947/11.74 and Rs. 25,266.34 as damages. The respondents are exporters of oilcakes and the appellants are the manufacturers/producers and exporters of various kinds of oilcakes. 3. As per suit No. 150 of 1964, on 15th July 1961 the respondents purchased from the appellants 3000 bags weighing 5325 maunds net of "Decorticated Cottonseed Cake Expellers" for export to the United Kingdom at the rate of Rs. 11.50 per maund and a sum of Rs. 64,870.50 was paid to the appellants vide their bill No. 9273. Again, on 21st July 1961 the appellants sold at the hands of the respondents another lot of 3000 bags weighing 5325 maunds net, containing the goods described above for export to the United Kingdom at the rate of Rs. 12.00 per maund and received a sum of Rs. 67,470.00 in lieu of their bill No. 9315 dated 21.7.1961. 4. In suit No. 162 of 1964, on 24th July 1961 the appellants sold a lot of 2000 bags weighing 3550 maunds of the goods described above at the rate of Rs. 12.00 per maund and thus received a sum of Rs. 1,09,787.50 towards the price of the goods including bardana and empty bags price. 5. Both the above sales were made to the respondents through M/s. Shakoor Zakaria and Company who acted as brokers. 6. As per practice and usage of the trade, the above said "decorticated cottonseed cake expellers" contained 43 to 45% of oil and albuminoid and it was on this basis that the goods were being traded in the local and international markets and the appellants had also given an assurance to the respondents to this effect through the brokers. The payment of the price was also made on the basis of the goods of this quality and description. At the time of the sale the appellants had assured that the said goods were 100 per cent upto the mark so far as their quality, fitness as to the contents of oil and albuminoid were concerned and that they were fit for export as they were of the international standard. 7. On export of the goods to the United Kindgom, they were analysed as was practice of the trade for oil and albuminoid and as per certificates sent to the respondents it was found that the contents of oil and albuminoid were highly deficient and did not conform to the standard and specification at which they were purchased on the assurance of the appellants. The defects in the goods supplied by the appellants were immediately brought to their notice through the brokers and in this connection Haji Abdur Rehman. Director of the appellants, was met. The said Haji Abdur Rehman, however, expressed his surprise and requested the respondents for a second analysis. This was accordingly done but the goods were found more deficient in their contents. 8. On receipt of the second analysis reports, the respondents accompanied by the brokers approached the appellants and informed one Hasham that in view of the two analysts reports the goods which were sold by the appellants by prescription under its patent and trade name "decorticated cottonseed cake expellers" were in fact "un-decorticated cottonseed cake expellers" or in the alternative were not the goods which conformed to the standard of the "decorticated cottonseed cake expellers" being highly deficient in their oil and albuminoid contents. 9. On the basis of the analysis reports and practice of the trade, the buyers of the respondents in the United Kingdom claimed damages from the respondents in suit No. 150 of 1964 to the extent of £.1,851.10.6 which was equivalent to Rs. 24,773/1.74. Besides the above, the respondents also suffered an actual loss of Rs. 8,174.10 on bonus vouchers, thus bringing the total loss to Rs. 32,947/11.74. In suit No. 162 of 1964, the respondents paid damages to their buyers in the United Kingdom a claim of £.1,384.17.9 which was equivalent to Rs. 18,369.44. The respondents were also deprived of their bonus vouchers entitlement of the value of Rs. 3,774.00, which came to Rs.6,896.90. The total loss thus suffered by the respondents was Rs. 25,266.34 (Rs.l8,369.44 + Rs.6,896.90). 10. The demands of the respondents as to their claims having not been met by the appellants, they were compelled to approach the Court through the present suits. The appellants contested the suits and the stand taken by them in their written statements mainly was that the sales were made through a broker who gave a sale note as to the transaction without any guarantee as to the percentage or analysis and that there was no stipulation about the export of the goods; that the sale was made for the ready delivery as per sample and further that there was no practice or usage as alleged nor that the goods sold contained 43 to 45% oil and albuminoid. 11. The suits were tried by the High Court in the exercise of its original jurisdiction and after framing the necessary issues recorded the evidence produced by the parties and vide judgments dated 14-10-1968 and 16-10-1969 decreed the suits with costs and running interest at 6%. 12. The appellants' Letters Patent Appeals bearing No. 184 of 1968 and 158 of 1969 were dismissed on 20-5-1979. 13. Leave in both the cases was granted to consider the legality and propriety of the judgments of the Courts below. 14. The learned counsel for the appellants contended before us that the findings of the Courts below about the percentage of the contents of the goods were erroneous because the contract was specifically to the contrary, in express terms, to the effect thai the percentage of oil was not guaranteed and, therefore, the requirement as to the quality could not be insisicd upon by the Court. It was further submitted that no evidence worth the name was produced by the respondents to establish that the appellants were made to know that the goods were to be exported to a foreign country and that they were not sold within the country. 15. The only question to be considered in this case is whether the percentage of oil, etc., in the goods supplied was guaranteed. The answer obviously is in the negative in that there is overwhelming evidence on the record, which most probably escaped the notice of the learned Judges of the High Court, that the percentage was unguaranteed. The contracts to supply the goods were entered through a broker, the parties having not met each other at all. The contract was concluded through sale notes dated 14/15.7.1961. These sale notes have not been disputed by the respondents. In these sale notes it has been given out in most unambiguous terms that the goods are "unpcrccntage guarantee". The fact that the commodity was not guaranteed has been admitted in the case of Civil Appeal No. K-309 of 1980 by the respondents who in reply to a letter to the appellants have stated: "In reply to your letter of 2ist instant, we have to state that though the contract was for (torn) delivery and without any analysed guarantee, the goods were lifted by us on the assurance of the broker that your goods would be of the standard quality. Price was paid on the basis of the goods being of 43%, and your statement that we examined samples has no vveipht because samples do noi show the percentage of the goods. You Lad eoannuecl to the broker on telephone that your goods will not be of low quality but you will not give any written guarantee. \our present suilenietiL therefore, is contrary !o ftcts and wiii be (torn) by the broker H tha proper time ?.i\d place." it;; other a;ateriai piece oi evidence in this case is the statement of Abdul; SacikoiK, the broker, who ar,peare--j! as ?. "v'iness of the respondents. The perusal fo his statement S"ows iiiat the percentage of oil, etc,, in the goods sold was not guaranteed by the ar^eHant^ tit the lime of sale. He also deposed that the Bengal ;J)i Mills Ltd, had i:•.,•( sent him any sample of these goods. Thus it has wrongly been held that the percentage was guaranteed. 16. As for the question that the goods were meant for export to United Kingdom, no evidence has been made available by the respondents to establish rliut the goods purchased by them were for export, to United Kingdom. Similarly, there is no evidence worth the name that the goods were not sold within the country. 17. The view that we take in the matter is that the respondents have failed to establish their case. Both the appeals are, therefore, allowed, she judgments and decrees of the High Court are set aside, both the suits stand dismissed but there is no order as to costs. (MBC) Appeals accepted.

PLJ 1990 SC 79 PLJ 1990 SC 79 [Appellate Jurisdiction] Pteseni: SllAFIUR RAHMAN, ZAFFAR.HUSSAIN MlRZA AND NAIMUDDIN, JJ MUHAMMAD YOUNUS KHAN and another-Appellants versus SETTLEMENT COMMISSIONER, Karachi and three others-Respondents Civil Appeal No. K-80 of 1982, dismissed on 3.9.1989. [From judgment of High Court of Sindh. Karachi, dated 9.5.1982, in C.P. No. S-98 of 1978] Settlement and Rehabilitation Matters-- —Property-Transfer of~Occupant of property-Whether has preferential right-­ Question of—Fact that appellants sought property in dispute stands negatived by a positive finding recorded by High Court in Writ Petition No. 109 of 1962— Thcrcuile 1 " they wanted property to be declared as evacuee trust property—In third round of litigation dealing with verified claims, they sought to get re-opened their own earlier effort to obtain this property-Held: Question whether they were prior applicants, stands concluded-Held further: Similarly, transfer of property in favour of respondent No. 4 stands upheld as at time of placing of property in earmarking, no application was pending or was under consideration-Appeal dismissed. [P. 83]A&B Mr. Klialid M. Ishaque, Senior Advocate, Supreme Court and Mr. Nizam Ahmad, AOR for Appellants. Respondents Nos. 1 to 3: Exparte. Mr. Hassan A. Shaikli, Advocate, Supreme Court and Mr. Shabbir Ghaury, AOR (Absent) for Respondent No. 4. Date of hearing: 30-8-1989. judgment Shafiur Rahman, J.~Leave to appeal was granted to the two brothers to examine whether their entitlement as claimant occupants of property II-A 152 Shahpurchakar Taluka Shahdadpur District Sanghar, was not better than that of respondent No. 4. 2. The appellants were admittedly in possession of this property till'recently when they were got ejected by the respondent No. 4, transferee through tht? Rent Controller. This property was placed in ear-marking and the respondent No. 4 was successful in obtaining it. P.T.O. was issued to him on 6-12-1959. On the. 9th of January. 1961, Sher Muhammad filed an application complaining that he had despatched by registered post a C.H. Form aad had always been told that this was a trust property not transferable to him but the same was published for ear­ marking and was transferred to respondent No. 4. This application was examined by the Deputy Settlement Commissioner who on 1st of June, 1961 made a report to the Additional Settlement Commissioner that either he be permitted to review this Order of placing the house in ear-marking or the matter may be taken up in revision by the Additional Settlement Commissioner. The Additional Settlement Commissioner considered it as a suo motu revision, remanded the case to the Deputy Settlement Commissioner Nawabshah to decide whether the property in dispute was a trust property or not and also to determine the entitlement of the parties after hearing them and permitted him to review the Order of the predecessor if it was considered necessary. The Report of the Deputy Settlement Commissioner was thereafter submitted to the Additional Settlement Commissioner who held that the property was not a trust property and that Sher Muhammad was not entitled to its transfer and that the right of respondent No. 4 had a priority over that of appellant No.2. A Constitution Petition (Writ Petition No. 109 of 1962) was filed challenging the refusal of the Settlement authorities to hold the claim of Sher Muhammad preferential and prior. This Constitution Petition was dismissed with costs on 15-2-1963 observing as hereunder:- "I am therefore, satisfied that the petitioner did not submit any C.H. form on the 19th of November, 1959. This fact is further supported by the conduct of the Petitioner in the application submitted by him before the Additional Settlement Commissioner for the acceptance of his belated C.H.Form. He did not mention in it the fact of submitting an earlier application for the house in dispute. Besides throughout the proceedings before the Settlement Authorities he contended only on the plea that the house in dispute was a Dharamsala. In such circumstances the probability is that the petitioner did not submit any C.H. Form as alleged by him in November, 1959 because he considered the property in dispute as a Dharamshala." 3. The second round of litigation was taken up by the appellant No. 1 who approached the Additional District Judge exercising his powers of the Settlement Commissioner for declaration under section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 claiming that the property in his possession was an evacuee trust property and not transferable to the respondent. The Settlement Commissioner held that the property was not proved to be a trust property and the application was rejected. 4. The third round of litigation was started by Haji Abdul Shakoor before the Claims Commissioner Lahore with regard to the verified claim of respondent No. 4. A copy of that order of the Claims Commissioner passed on Abdul Shakoor's application was sent to the Settlement Commissioner, Sind. At that stage the two appellants put an application dated 30-12-1976 disputing and objecting to the verified claim of respondent No. 4 with a view to disturb his basic entitlement to the property obtained by him in ear-marking. The Order finally passed by the Settlement Commissioner on 6-8-1977 had the effect of partially reducing the verified claim of respondent No. 4 but not disturbing his status as regards the abandoned property in India. He was asked to make certain payments in cash which he did. 5. In this background the appellants invoked the constitutional jurisdiction of the High Court praying as hercunder:-- "(0 to declare that the impugned order dated 6-8-1977 of the Respondent No. 1 is illegal, without lawful authority and without jurisdiction and of no legal effect and liable to be set aside. to direct Respondent No. 1 to adjust house No. II-A-152 situated in Shahpur Chakar, Taluka Shahdadpur district Sanghar against the claims of the petitioners and issue joint P.T.O. and P.T.D. in favour of the petitioners who have been in possession of the said house since 1947 in accordance with law. (Hi) to direct Respondent No. 2 to refrain from interfering with the peaceful possession of the petitioners over house No. II-A-152 in Shahpur Chakar pending the final disposal of this Petition. (/v) to grant such other and further relief that this Honourable Court may deem proper in the circumstances of the case. (v) to award costs of the Petition." 6. The High Court held as hereunder:- (/) "there is a clear finding in Writ Petition No. 109/62 by the West Pakistan High Court Karachi Bench by an order dated 15-2-1963 to the effect that the petitioner did not submit any CH Form on 19-11-1959." (if) "this court in this Writ jurisdiction cannot give findings on questions of fact and cannot reopen the question as to whether the petitioner No. 2 had filed the CH Form or not and as to whether the house in dispute was an evacuee property or an evacuee trust property." (/»") "The petitioners have made very bold statements in the petition itself, which are clearly belied by the documentary evidence produced by the petitioners alongwith the Writ Petition. Therefore, they do not seem to have come in this petition with clean hands." (/v) "the impugned order was passed by the Settlement Commissioner Sind on 6-8-1977 when this Writ Petition was filed on 4-10-1978 after a period of about 14 months, and this undue delay in filing this petition, when the matter had reached finality long back, has not at all been explained on behalf of the petitioners In fact no explanation has been offered in that respect at all." 7. Mr. Khalid M. Ishaque, Senior Advocate, the learned counsel for the appellants contended that the scheme of the settlement law is that the first priority in the matter of transfer of property in occupation of the claimants or the displaced persons is that it should be offered to them and only when they are not desirous of obtaining it the property can be disposed of by other methods including earmarking and auction. As the appellants were keen from the very beginning to obtain it, the very act of placing the property in ear-marking was without jurisdiction and unsupportable in Saw. Besides, the appellants had filed a CH Form at the appropriate time prior to the earmarking of the house and it was misplaced and a grievance had been made of it. As the PTD was issued in February, 1965 and long before that date, the appellants had asserted their claim, it was the duty of the Settlement Authority to have reopened the matter and adjudicated on it in accordance with iaw applicable to the case. There was a failure and on that account the appellants could not be deprived of the priority to which they were entitled. 8. Mr. Hassan A. Shaikh, Advocate the learned counsel for the respondent has seriously objected to the order of the Settlement Commissioner dated 6-8- 1977 which deals with a claim matter and modifies the verified claim. According to him in 1977 and long before it the iurisdiction of the Claims Commissioner to review or revise the claim had been taken away. No interference could have taken place on an application of Abdul Shakoor or appellants who had no locus standi in the matter of verified claim of the respondent. It has also been contended that the status of the respondent No. 4 as a verified claimant was never disturbed. It is only the amount verified which was readjusied. As the earmarking had taken place at a time when there was no other claim to this house pending and due publicity of earmarking taken place, the appellants could not intervene at a subsequent stage to dislodge the entitlement of the respondent No. 4 alter the PTO had issued to him. According to the learned counsel the judgment in the earlier Writ Petition (No. 109 of 62) given in 1963 is conclusive and by repeating a similar claim before the Settlement Authorities the appellants cannot revive the claim which had been finally adjudicated upon. 9. After hearing the learned counsel for the parties at length, we find that the claim of the appellants cannot prevail over that of the respondent No. 4 at this stage. In the first place Sher Muhammad had been acting on behalf of Muhammad Younas Khan as well, and being brothers, it was natural for him to do so because they had no competing claims against each other. The fact that they had sought the property stands negated by a positive finding recorded by the High Court in Writ Petition No. 109 of 1962, the relevant portions of the judgment having been reproduced above. Besides, thereafter the effort of the appellants was not so much to insist on their prior claim but that the property be declared to be evacuee trust property. In that effort also they failed. It was the third round dealing with the verified claims which they brought under challenge in the Constitution Petition and through it they sought to get reopened their own earlier effort to obtain this property, their preferential entitlement to it and what they considered to be illegal, transfer of the property to respondent No. 4. The question whether they were the prior applicants, stands concluded. Similarly the transfer in favour of respondent No. 4 stands upheld as at the time when the property was placed in the earmarking, no application in respect of it, was pending or was under consideration. 10. About the verification of the claim we find that there is not much which can be said so as to benefit the appellants in the matter of transfer of property or to the detriment of the respondent No. 4 in respect of the property in dispute. We, therefore, find that in view of the previous litigation between the parties, the findings recorded, and their conciusiveness, no case is made out for our interference at this stage and the appeal is dismissed leaving the parties to bear their own costs. (MBC) Appeal dismissed

PLJ 1990 SC 83 PLJ 1990 SC 83 [Appellate Jurisdiction] Present: MUHAMMAD AFZAL ZULLAII AND S. USMAN ALI SHAH, JJ Malik ABDUL QAYYUM-Petitioner versus Z-Respondents Civil Petition for Leave to Appeal No. 196-R of 1988, dismissed on 24-5-1989. (On appeal from the Judgment dated 2-5-1988, of the Lahore High Court, Rawalpindi Bench, in Writ Petition No. 190 of 1988) Urban Rent Restriction Ordinance, 1959 (WP Ord.VI of 1959)-- —S.13—Tenant—Ejectment of—Challange to—Londlord and tenant—Relation­ ship of—Denial of—Contention that petitioner's evidence was closed without affording fair opportunity and that there was no relationship of landlord and tenant as petitioner was described as illegal occupant/trespasser in earlier civil suit-Suffice to mention that at least four opportunities were allowed but petitioner failed to produce evidence-Held: Grounds which prevailed with High Court in dismissing petitioner's writ petition are un-exceptionable-- Held further: Plea that petitioner being unauthorised occupant/trespasser, could not be ejected by recourse to Rent Controller, is based on illegality and borders on immoral claim for undeserved gain-Petition dismissed. [P.84]A&B. Maulvi Sirajul Haq, Senior Advocate, Supreme Court. Mr. Muhammad Munir Paracha, Advocate, Superme Court and Ch. AkhtarAH, A.O.R for Petitioner. Respondents: Not represented. Date of hearing: 24-5-1989. order Muhammad Afzal Zuliah, J. —Leave to appeal has been sought by a tenant; against the dismissal by the High Court, of his writ petition wherein an order for his ejectment under the Urban Rent Restriction Law, was challenged. Learned counsel has contended that the petitioner's evidence was closed without affording him enough opportunity of hearing. And secondly that in an earlier civil suit the respondent /landlord has described the petitioner as an illegal occupant/trespasser. That being so there was no relationship of landlord and tenant. Regarding the first point it could have sufficed to mention that according to impugned judgment, "atleast four opportunities", were allowed to the petitioner to produce his evidence but he failed to do so. The learned Judge in the High Court was satisfied that the plea of lack of opportunity was untenable. However we may add that the petitioner had no evidence in rebuttal to support his denial of tenancy, therefore, he did not avail all the opportunities. Be that as it may, the only material which the petitioner wanted to produce—copy of the earlier suit filed, by the respondent (annexure-'A' to the Writ Petition), was taken note of by the High Court. It was observed that when the respondent entered the witness-box he was not confronted with "Annexure-A". And we may add that it was deliberate omission on the part of the petitioner so as to avoid explanation on the part of the respondent. Accordingly the grounds which prevailed with the High Court in the dismissal of petitioner's writ petition arc un-exceptionable. We, however, would dismiss this petition for a discretionary relief; namely, grant of leave to appeal on an additional ground. Learned counsel when questioned to state the petitioner's defence against the respondent's claim for his ejectment, stated that the petitioner being unauthorised occupant/trespasser could not be ejected by recourse to the Rent Controller. This plea on its face is based on illegality and to say the least, borders on immoral claim for un-deserved gain. The exercise of discretion for grant of leave to appeal to the petitioner, therefore, is refused and this petition, accordingly, is dismissed. (MBC) Petition dismissed

PLJ 1990 SC 85 PLJ 1990 SC 85 [Appellate Jurisdiction] Present: muhammad haleem, CJ, aslam riaz hussain, muhammad afzal zullah, dr. nasim hasan shah, abdul kadir shaikh, shafiur rehman, javid iqbal, ghulam mujaddid, saad saood jan, S. usman ali shah, An hussain qazilbash & naimuddin, JJ FEDERATION OF PAKISTAN-Petitioner Versus MUHAMMAD AKRAM SHEIKH-Respondent Civil Misc. Petition No. 196-R of 1989 in Civil Review Petition No. 30-R and 33-R of 1989, dismissed on 6.8.1989. (i) Natural Justice- —Natural justice-Principles of-No one shall be judge in his own cause-­ Applicability of—Federal Government by repeating such an application, has manifested an attitude of intransigence insisting that its Press Release should be respected, implemented and honoured first by reconstituting Bench to hear matter and a decision should be given thereafter under its umbrella-­ Held: This defeats very object which learned Attorney General, in his arguments and applications, taken pains to sustain namely that justice should not only be done but should manifestly and undoubtedly appear to have been done—Application for reconstituting Bench rejected. (Per Shaflur Rehman, J). [Pp. 96,97,99&100]D&E (ii) Natural Justice- —Natural justice-Principles of-No one shall be a judge in his own cause- Applicability of-Haji Muhammad Saifullah Khan had sought a declaration that all steps taken, appointmens made, laws framed including issuance of Ordinance by President after 29.5.1988 are without lawful authority-All Judges then available, participated in decision-Very Judges who are now being termed as "Judges in their own cause" fully participated in decision making—Held: General questions regarding legitimacy of meta legal order or of de-facto regimes are decided by those very Judges whose purses and privileges are controlled by such regimes and that does not make them judges in their own cause (Per Shafiur Rehman, J). [Pp.95&96]B PLD 1989 SC 166 ref. (iii) Natural Justice- —Natural justice-Principles of-No one shall be a judge in his own cause- Applicability of-Learned Attorney General has indeed invoked a very salutory, non-controversial and fully entrenched juridical principle of high standing relating to Administration of Justice and quasi-judicial adjudication- -Held: But principle is not attracted to case and its invocation and application to these proceedings will seriously impair and subvert that very principle rather than advance it (Per Shafiur Rehman, J). [P.91JA (iv) Natural Justice-- —Natural Justice—Principles of—No one shall be judge in his own cause-­ Applicability of—Prayer is founded on glorious traditions of Supreme Court which have always been hallmark of administration of justice in this country- Observation of Shafiur Rehman J that "Federation of Pakistan, by repeating such an applicatiion has manifested an attitude of intransigence insisting that its Press Release should be respected, implemented and honoured first and reconstituting Bench which is to hear matter and a decision should be given thereafter under its umbrella," not agreed with, (Per Abdul Kadir Shaikh, J). [P.127]F (v) Natural Justice— —Natural Justice-Principle of-No one shall be a judge in his own cause- Applicability of-Prayer in Misc. Petition is indeed for a direction being issued by nine Judges of this Bench to rest of three Hon'ble Judges of Bench not to deal with and hear main Review Petition-Each Judge of Supreme Court is vested with judicial powers equal to any other Judge even Chief Justice—Held: One set of Judges of this Bench, constituted by Chief Justice, cannot issue a direction to other set of Judges of this Bench not to associate themselves or himself in hearing Review Petition-Held further: It is for three Hon'ble Judges of this Bench concerned and not rest nine Judges of Bench to decide in their judicious segacity and wisdom whether they may participate in proceedings of Review Petition. (Per Abdul Kadir Shaikh, J). [Pp.l27,130&131]G,H,J&K PLD 1966 SC 1 and PLD 1976 SC 315 ref. (vi) Natural Justice-- —Natural Justice-Principles of-No one shall be a judge in his own cause- Applicability of-Where whole legal order is being challenged, and Judges functioning under that legal order are called upon to render judgment, question of there being a personal bias, of being a judge in his own cause, of having a legal or pecuniary interest in matter does not arise—One of parties to decision in Saifullah Khan's case, i.e. Federation wants some of Judges who decided that case, to be declared as Judges in their own cause having a pecuniary interest—Held: These Judges do not become Judges in their own cause simply because respondent has become now petitioner (Per Shafiur Rehman, J). [P.96]C PLD 1970 SC 98, PLD 1972 SC 139 and PLD 1977 SC 657 rel. Mr. Yahya Bakhtiar, Attorney General for Pakistan, Mr. Muhammad Asif Jan and Mr. Muhammad Afzal Siddiqui, Deputy Attorneys General, Mr. P.M. KJiokhar, Standing Counsel and Mr. Fazal-e-Hmsain, AOR for Petitioner (in CRP No. 33-R of 1989). Mr. Zakiuddin Pal, Senior Advocate, Supreme Court, Mr. Asghar Hameed, Advocate, Supreme Court, Mr. Abdul Kaiim Kundi, Advocate, Supreme Court, and A//-. Ghulam Dastgir, AOR for Respondent (in CRP No. 33-R of 1989). 5/i. Shaukat All, Senior Advocate, Supreme Court and Mr. Manzoor Ilahi, AOR for Petitioner (in CRP No. 30-R of 1989). Mr. Yahya Bakhtiar, Attorney General for Pakistan, Mr. Muhammad Asif Jan and Mr. Muhammad Afzal Siddiqui, Deputy Attorneys General, Mr. P.M. Knokhar, Standing Counsel and Mr. Fazcl-e-Hussain, AOR for Respondent (in CRP No. 30-R of 1989). Date of hearing: 27-6-1989. order Shafiur Rahman, J.--The Federation of Pakistan has moved a Petition (C.M.P-No. 196-R/1989) on 23-5-89 expressed to be under Order XXXIII Rule 6 of the Supreme Court Rules, and all other enabling provisions in this behalf. The prayer made is that "three Honourable Judges who had been affected by the judgment dated 10-3-1989 of this Hon'ble Court and by the judgment under review, one way or the other; may not participate in the adjudication of the matter." 2. This petition has a background. It requires mention. Immediately on the release of the detailed judgment on 9-34989 in Civil Appeals No. 314 to 317/88 and Civil Petitions No. 392-R/88 and 393-R/88, ihe Federal Government issued a Press Release published through the media and also sent to the various offices. It reads as hereunder:— "GOVERNMENT OF PAKAISTAN MINISTRY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS ISLAMABAD Press Release March 10,1989. The Supreme Court of Pakistan on 5-10-1988 by a Short Order upheld the judgment dated 27-9-1988 of the Full Bench of the Lahore High Court. The Lahore High Court inter alia had held that the appointment of the Prime Minister after the dissolution of the National Assembly by General Zia-ul-Haq on 29th May, 1988 was necessary under the Constitution to head the caretaker Government. In this regard the Supreme Court while giving the detailed reasons in support of their Short Order dated 5-10-1988 haslnter alia held:- "The reference to the provisions of the Constitution made above show that the Office of the Prime Minister is necessary at all times for running ihe affairs of the country and that he should have been appointed to head a care-taker cabinet." The Supreme Court has farther observed: ~ "In this background the Constitution does not visualise a caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a caretaker cabinet alters for the period under discussion the very Character of the Constitution from a Parliamentary democracy to a Presidential system of government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us. "Finally, the breach concerning the alteration in the Oath of Ministers, the learned Attorney-General had no explanation for it. We do not find any mention of it even in the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional Provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution". The Judgment is given by 11 Judges of the Supreme Court and all of them have unanimously agreed with High Court that the caretaker Government appointed by the President from 29-5-1988 to 2-12-1988 was in violation of the Constitutional provisions. Conequently the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High courts and Supreme Court are requested immediately to contact the Ministery of Law and Justice with regard to such acjions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularised or reaffirmed by the President on the advice of the Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court." 3. An application (C.M.P.No. 68-R of 1989) was then filed by Mr. Muhammad Akram Sheikh, Advocate on 13-3-1989 seeking the following reliefs:— (i) to clarify the full and correct implications of our own detailed judgment in Civil Appeal Nos. 314, 315, 316, 317/88 and C.Ps Nos. 392-R and 393- R/1988; (if) to proceed in contempt against those who are deliberately misinterpreting it to deprive political advantage out of it; (Hi) to end the legal chaos and constitutional crises into which the country has been plunged. It was disposed of by a Bench of four Judges, on 18-3-1989 directing that the specified disputed portion "should stand deleted and be taken not to have been issued at all". 4. A Petition (Civil Review Petition No. 33-R/19S9) was thereupon filed by the Federation seeking review of the Judgment dated 18-3-1989. Before that review could be taken up the Federation filed an application (C.M.P.No. 149-R of 19S9) praying as hereunder:-- "On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e. that no person shall be a Judge in his own cause, it is submitted that the three Judges of this Honourable Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this Hon'ble Court under review one way or the other, are requested that they may not sit on the Bench on 27th May, or on any date thereafter when the matter is heard as that will set a very bad precedent as Judges personally interested in the matter do not sit as Judges to decide a case." 5. It was disposed of by my lord the Chief Justice in Chamber on 16-5-1989 with the following Order:— "I have heard the learned Attorney General but I am afraid it will not be possible for me to disturb the constitution of the Full Court when it is seized of the case, and the case has already been partly argued and is now fixed for further hearing. It is also of significance to mention that in the case under review, the jurisdictional defect in the constitution of the Bench which decided the case is also involved, as a result of the ground taken in the review petition that the case should have been heard by the Full court which heard and decided Saifullah's case, I have consulted the Judges who have signed the main judgment and they have stated that they will not feel embarrassed to hear the case." 6. It was thereafter that this application (C.M.P.No. 196-R/1989) was moved explaining why the earlier application was moved, and praying as hereunden- (/) "This application was filed keeping in view the high traditions and principles of natural justice universally accpeted that no one should act as Judge in his own cause." (if) "The rule that the Review Petition may be heard by the same Judges has exceptions. One of these is based upon the principle, that 'no one should be a judge in his own cause'. (///) "The clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10-3-1989 and also by any other Judge that might be available." 7. When this Petition/Application came up for hearing before the Full Court the learned Attorney General explained that when a general challenge was thrown to the dissolution of the National Assembly and the Provincial Assemblies, to the legitimacy of the governmental set up that ensued and to the validity of its acts and deeds, that sort of bias was not at all involved as after the decision, some of those very issues were once gain before the Court with the reasonings and the findings of the Court having become known through the detailed judgment. The learned Attorney-General drew our attention to the case of Miss Asma Jilani (PLD 1972 S.C. 139) wherein the legitimacy of the usurper's rule was in issue, the Judges appointed by such usurper participated in the decision but that would not have been possible in any other/subsequent case if the principle of condonation of certain acts of the usurper including the appointment of the Judges had not been condoned as was done in that very judgment. 8. In order to further clarify the point of law invoked by him the learned Attorney General has referred to decisions of this Court in Anwar and another v. Tlie Crown (PLD 1955 Federal Court 185) emphasising every word of the observation made in that case and reproduced hereunder:-- "There is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus no Judge can be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved parly will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. Hie Grand Junction Canal (No. 1) and others [(1982) H .L.C. 759-794] and to v. Susex Justices [(1924) I.K.B. 256]." 9. The learned Attonrey General also relied on the decision in Fazle Haq v. Tlie State (PLD 1960 SC 295) wherein suo inotu proceedings for a writ of mandamus were initiated and the Supreme Court held "the entire proceeding in this case is misconceived and void and there has been violation of two important juridical principles (1) that the extraordinary jurisdiction relating to a writ can only be exercised by the High Court when moved by a party whose legal rights have been denied; and if in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant General in taking the action, it has violated (2) the principle that nobody should sit as a Judge of his own cause". 10. The learned Attorney General has also referred to the decision given in Mirza Akbar All v. Mirza Iftikhar AH and others (PLD 1956 Federal Court 50) in order to distinguish that particular bias which paralyses the mind of a Judge in rightly adjudicating the cause and from every other bias. The observation of the Court in that case was as hereunder:— "Friendship is too vague and general a term to be judicially recognised as a factor disqualifying a Judge to hear a cause to which one of the parties is his friend. Such relationship, in the case of a Court like the Federal Court or the High Court, should never create any apprehension in the mind of a party that his cause will not be impartially heard and determined; nor can it ever be urged that friendship with a party creates in the mind of the Judge such bias as to paralyse his mind from rightly adjudicating on the merits of the dispute or that for that reason the Judge becomes a party interested in the cause and therefore disqualified to be a Judge in that cause. The matter is essentially one of propriety and good sense, and though Judges are always alive to the susceptibilities of the parties in this respect, the situation is entirely outside the principle that justice should not only be done but should manifestly appear to be done." 11. The learned Attorney General has also referred to Para 67 Volume I of Halsbury's Laws of England (Fourth Edition) to the following effect on the subject that none can be Judge in his own cause:— "Where persons having a direct interest in the subject matter of an inquiry before an inferior tribunal take part in adjudicating upon it, the tribunal is improperly constituted and the court will grant an order of prohibition to prevent it from adjudicating, or an order of certiorari to quash a determination arrived at by it, or such other remedy (for instance, an injunction or a declaration) as may be appropriate. The principle extends not only to courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals," He extensively referred to commentaries from Second Edition of De-smith's Administrative Law' page 239 and 'Natural Justice' by Marshal, 1959 pages 27 to 29 to contend that even small pecuniary interest acts as a disqualification vitiating the entire proceedings in which adjudicators suffering from such qualification participate. 12. The learned Attorney General has indeed invoked a very salutory, noncontroversial, and fully entrenched juridical principle of high standing relating to Administration of Justice and to quasi judicial adjudications. But the principle is not attracted to the case and its invocation and application to these proceedings will seriously impair and subvert that very principle rather than advance it. 13. A few words about the principle itself on which the submissions are based. It has been noted in the following words in Flick's "Natural Justice" (1979 Edition at page 113):-- 'Although the days have long since passed in which such exalted judges as Lords Bacon and Macclesfied willingly accepted bribes and sold offices, there is no more firmly established principle of law today than that no man is qualified to adjudicate upon a matter with regard to which he stands to gain or lose financially as a direct result of his decision: de Smith at 225-27; Davis 12.03; Cooper at 343-44. In such cases the mere existence of the pecuniary interest is sufficient to disqualify and an aggrieved parly need not go to prove a real likelihood of bias. Nor need one prove that the decision was influenced in any way by the interest. Thus, in yet another decision involving an English Lord Chancellor, the House of Lords has held that Lord Cotlcnham could not pronounce a decree in favour of a canal company in which he held shares worth several thousand pounds. During I he course of his judgment, Lord Campbell observed: No-one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause he held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest....This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence." 14. Three criteria, identified by the author on the basis of decisions, place some limitations upon the operation of general rule just stated and these find mention has hcreunder:— (a) "The first limitation to the general rule is that a decision maker must stand to gain or lose personally as a result of his decision and, unless this can be shown, any disqualification must be founded upon the existence of a real likelihood of bias having regard to all the circumstances of the case. Consistent with this view, it has been held that justices who were trustees of funds invested with local corporation could decide a matter involving that corporation and an argument that the trustees' partiality may have been affected by their tendency to favour a decision which would improve the security of their ccxtui quc trusts was classifed as an objection "not in the nature of interest, but of a challenge to the favour". ((';) "a second limitation is that this interest will not be objectionable if it is remote or arises upon a purely speculative series of events." (c) "Substantiality of interest may provide a third limitation to the pecuniary interest rule. Such a proposition has the support of Professor Davis (Davis S 12.03 at 154), and the Supreme Court decision in Tumey v. Ohio (273 US at 523); although the value of this precedent is somewhat diminished by the modification of the conventional meaning of the word "substantial" to the effect that due process requires disqualification if the interest is more than de minimis. 15. Marshall in 'Natural Justice' (1959 Edition) defines 'interest' as "a legal interest or a pecuniary interest and is to be distinguished from 'favour'." Distinguishing one from the other the author at page 32 stales as hcrcunder:- "favour should not be presumed in a judge. Herein lies the distinction between a pecuniary or "legal" interest and a non-pecuniary bias. In the former case the smallest interest immediately disqualifies; in the latter case disqualification is not automatic. On the contrary, in order to have that effect the bias must be shown at least to be real. Blackburn J. said in R. v. Rand in 1866: [(1866) L.R.I.Q.B. 230, 232] "But the only way in which the facts could affect their impartiality would be that they might have a tendency to favour those for whom they were trustees; and that is an objection not in the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act: and we are not to be understood to say that where there is a real bias of this sort, this court would not interfere." And in R. v. Meyer in 1875 [(1875) 1 Q.B.D. 173] the same judge said: "....(hough disqualifying interest is not confined to pecuniary interest, (he interest if not pecuniary, must be substantial." He then goes on to refer to the court's decision in R. v. Rand, and says: "The effect of our judgment in that case was that, though pecuniary interest in the subject-matter of dispute, however small, disqualifies the justices, yet the mere possibility of bias did not ipso facto avoid the justices' decision; and we thought that, though there was a possibility of bias in that case, yet it was not real." 16. Taking up the subject of pecuniary interest the author thereafter summarises the facts of the leading authority on the subject, Dimes v. Grand Junction Canal [(1852) 3 H.L. Cas 759] in the following words (at page 25):-- "It is a case of the highest possible authority because it was a decision of the House of Lords, presided over by the Lord Chancellor of the day (Lord St. Leonards), as to the effect of the conduct of a previous Lord Chancellor (Lord Cottenham). The facts were that a public company, which was incorporated, filed a bill in equity against a landowner, in a matter largely involving the interests of the company. The Lord Chancellor (Cottenham) had an interest as a shareholder in the company to the amount of several thousand pounds, a fact which was unknown to the defendant in the suit. The cause was heard before the Vice- Chancellor, who granted the relief sought by the company. The Lord Chancellor, on appeal, affirmed the order of the Vice-Chancellor. It was held on appeal to the House of Lords that the Lord Chancellor (who had by then ceased to hold office as such) was disqualified, on the ground of interest, from sitting as a judge in the cause and that his decree was therefore voidable and must consequently be reversed. It was also held that the Vice-Chancellor was under the Administration of Justice Act, 1813, a judge subordinate to, but not dependent on the Lord Chancellor and that consequently the disqualification of the Lord Chancellor did not affect him; but that his decree might be made the subject of appeal to the House of Lords." 17. The underlying principle has been explained in the judgment of Lord Campbell C.J. in that case in the following words:— "No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high court ot last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law. and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest but to avoid the appearance of labouring under such an influence." The principle emerging from various decisions have been summarized by the author at page 27 in the following words:— "This rule has been stated many times but the following dicta may be quoted: "There is no doubt that any direct pecuniary interest however small in the subject of inquiry does disqualify a person from action as a judge in the matter". [Blackburn J. in R. v. Rand (1866) L.R. 1 Q.B. 230. 232]. "If he has any legal interest in the decision of the question one way he is disqualified no matter how small the interest may be" [Lush J. in Serjeant v. Dale (1877) 2 Q.B.D. 558. 567). "....the least pecuniary interest in the subject matter of the litigation will disquahly any person from acting as a judge." [Stephen J. in R. v. Fan-am (1887) 20 Q.B.D. ^. M)]. " a person who has a judicial duty to perlorm disqualifies himself from performing it if he has a pecuniary interest in the decision which he is about to give or a bias which renders him otherwise than an impartial judge. If he has a pecuniary interest in the success of the accusation he must not be a judge." [Bowen L..1. in Leeson v. General Council of Medical Education. (1889) 43 Ch.D. 366, 384]." The strictness of the principle has been explained by Lush J in Serjeant v. Dale ( 1877 2 Q.B.D. 558 at 567] in the following words:- "The law is laying down this strict rule, has regard, not so much perhaps to the motives which might be supposed to bias the judge, as to the susceptibilities of the lilitgant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the Icchng of confidence in the administration of justice which is so essential to social order and security." 18. This has been done bv Lord L>hcr aiso in Eekemley v. Mersey Docks & Harbour Board [(1894) 2 Q.B, 677 at (>71| in ihe following words:- " the doctrine which is applied l'i judues. not merely of the Superior Courts, but to all judges, that, not only must they be not biased, but that, even though it be demonstrated lhal they would not be biased, they ought not to act as judges in a matter where the circumstances are such that people—not necessarily reasonable people, but many people—would suspect them of being biased." 19. Pecunairy interest has been conlrusted with non-pecuniary interest in the following words in an Article by Francis Alexis under the heading "Reasonableness in the Establishing of Bias" appearing in 1979 Volume of 'Public Law' at page 14. The author has contrasted it as hereunder at page 159:- "By contrast, once there is a direct and certain pecuniary interest, not merely remote, speculative, or contingent, [See R. v. Rand (1866) L.R. 1 Q.B. 230, D.C.; R. v. Deal Justices (1881)] an adjudicator is disqualified. He is disqualified by "even the slightest pecuniary interest," as applied in R. v. Gaisford [(1892) 1 Q.B. 381 at p.384 (Mathcw J.)], no matter "however small," be it less than a farthing," as the English Judge, Blackburn J., put it. \R. v. Rand (1866) L.R. 1 Q.B. 230 at p.232; R. vJfammond (1863) 9 Law Reporter 423 at p. 423 respectively.]." 20. In an Article appearing in Harward Law Review Volume 86 (1972-73) on the subject of 'Disqualification of Judges and Justices in the Federal Courts", the following conclusions have been recorded (at page 751):- "Whcn the judge has financial interests which may be directly affected by the outcome of the litigation-i.c., an interest in a party or in the subject matter in controversy—his impartiality clearly can be questioned by reasonable men, and therefore disqualification should follow [See, e.g. Tumcy v. Ohio, 273 U.S.510 (1927)]. Supreme Court Justices beginning with Justice Livingston [Livingston & Gilchrist v. Maryland Ins. Col, II U.S (7 Crunch) 506 (1813).] and Chief Justice Marshall [Fairfax's Devisee v. Hunter Lessee, II U.S. (7 Cranch) 603 (1813)] have consistently disqualified themselves under such circumstances (See Frank, supra note 14 at 615) whether or not they consciously applied the strict appearance lest. Indeed, even under the early English Common Law, which rarely required disqualification because, as Blackslone explained, "the law will not suppose a possibility of bias or favour in a judge who is already sworn to administer impartial justice," (3 VV.Blackstone, Commentaries361) disqualification was required when the judge had a direct pecuniary stake in the outcome, [E.g., Dr. Bonham's Case.^77 Eng. Rep. 646 (K.B. 1609); see Frank Supra Note 14, at 609-12; Note, Disqualification of Judges for Prejudice or Bias-Common Law Evolution, Current Status, and the Oregon Experience, 48 ORE. L. REV. 311, 315, 315-20 (1969).]." 21. Haji Muhammad Saifullah Khan had sought a declaration in identical terms that "All the steps taken,appointments made, laws framed including the issuance of the Ordinance by the President after 29-5-1988 are without lawful authority", [item (iii) page 196 of PLD 1989 S.C. 166J. The Federation was the respondent. All the Judges who were then available, participated in the decision of this and other legal and constitutional issues arising in the case. A detailed judgment dealing with every aspect of the case was rendered. These very judges, who are now being termed as 'Judges in their own cause' by the learned Attorney General, fully participated in the decision making. To contend now that while dealing with and deciding the same legal question when the Federal Government is the petitioner some of the Judges became Judges in their own cause and that while deciding the same question on the appeal or application of Haji Muhammad Saifullah Khan they were not so is highly unreasonable self-contradictory and \ palpably untenable proposition. As rightly pointed out by the learned Attorney ! General the general questions regarding the legitimacy of a meta legal order or of j the de-facto regimes in power and the validity of their deeds can be decided and | are decided by those very Judges whose purses and privileges are controlled by i such regimes. That does not make them Judges in their own cause. 22. A review of decided cases by courts of our own country amply demonstrates this. In the case of Farzand All (PLD 1970 S.C. 98) the very competence of the Legislature as then constituted to make constitutional amendments was questioned and one such amendment was the Fourth Amendment to the Constititution by Act XV of 1965 whereby the disability of the Judges of the High Court to be appointed Judges of the Supreme Court [Article 126 clause (1) para (a)] was removed. The Judges of the Supreme Court who, but for this amendment, would have suffered from the disability participated in the decision and upheld the amendment. 23. In the case of Asma Jeelani (PLD 1972 S.C. 139) the legality of the powers exercised by General Muhammad Yahya Khan during the period 25.3.1969 to 21.12.1971 was questioned and the Judges appointed by him participated in decision making and declared him to be usurper and then proceeded to condone certain categories of the actions taken by the usurper including those of the appointment of Judges. 24. In the case of Begum \usrat Bhutto (PLD 1977 S.C. 657) the Chief Justice appointed as Chief Justice after constitutional amendment (C.M.L.A. Order No. 6 of 1977 dated 22.9.1977) by General Muhammad Ziaul Haq participated in the judgment questioning the authority of General Muhammad Ziaui Haq to assume power and to make amendments in the Constitution. Some of the Judges rendering judgment in that case were also appointed by General Muhammad Ziaul Haq. 25. These are but only a few of the cases illustrative of the point and more can be found and cited. Where the whole legal order is being challenged and the Judges functioning within the framework of the legal order under challenge are called upon to render judgment, the question of there being a personal bias, of being a Judge in his own cause, of having a legal or pecuniary interest in the matter does not arise. The same happened in the appeal of Haji Muhammad Saifullah and other connected matters. The vires of the legal Order after 29-5- 1988 was questioned and also the legality of appointments made after 29-5-1988, in the absence of the Acting Prime Minister was pointedly raised in the proceedings and considered by the Court and finally dealt with in a decision inter paries. Now one of the parties to that decision, the Federation, while seeking 'review of another matter arising thereunder by reference to that decision, wants some of the Judges who decided that case, to be declared as Judges in their own cause having a pecuniary interest. This does not happen. Those judges do not become Judges in their own cause simply because the respondent has become the petitioner. 26. Secondly, and this has disillusioned us greatly, the Federal Government by repeating such an application, has manifested an attitude of instransigence insisting that its Press Release should be respected, implemented and honoured first, by reconstituting the Bench which is to hear the matter and a decision should be given thereafter under its umbrella. This as we have remarked, defeats the very object which the learned Attorney General has, in has arguments and the applications taken pains to sustain and which all the decisions and commentaries referred have emphasized, namely that justice should not only be done but should manifestly and undoubtedly appear to have been done. 27. Thirdly, there is an obvious inconsistency in the stand of the Government. In the Petition for Review the very first ground taken up was as hereunder:-- "That 12 Hon'ble Judges of this Hon'ble Court constituted the Full Bench which passed the short order on 5-10-1989 as well as the detailed judgment recorded and issued later on. The Government of Pakistan interpreted the judgment in the light of observations made therein and issued a Press Note on 12-3-1989. The Press Note in fact became the subject matter of Civil Misc. No. 68-R/89. The Civil Mis. was heard by 4 Hon'ble Judges of this Hon'ble Court and disposed of by an order dated 18-3-1989. It is respectfully submitted that the interpretation, clarification or any order relating to the detailed judgment could be passed by the same Hon'ble Bench consistiluting of 12 Judges of this Hon'ble Court. All the Hon'ble Judges were still available. 4 Hon'ble Judges could not pass any order in respect of the Full Court judgment." In the application under consideration, the ground was materially altered to read as hereundcr:- "th.e clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10-3-1989 arid also by any other Judge that might be available. Needless to point out that justice should not only be done but must also appear to be done." 28. The ground initially taken up in the Petition for review and reproduced above embodies an accepted principle attracted to all sufh cases. It finds recognitions and approval in the following wcrds-(underlining is ours):- (/) "it is a fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be judge in his own cause." (Halsbury Law of England—Fourth Edition Volume para 67); (//') "A judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. That the 'necessity' rule is a part of the common law is undoubted." (Natural Justice by Marshall 1959 Edition, page 38); (///') "The rule of disqualification must yield to the demands of necessity, and a Judge or an officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a termination of the "Here in Italics. proceeding" (vide American Jurisprudence Vol. 30, page 770)" (Quoted in the President . Mr. Justice Shaukat Ali-PLD 1971 SC 585 at page 606); (h>) "An adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior judges, they would have to sit as Judges in their own cause. Similarly, a judge may be obliged to hear a case in which he has a pecuniary interest." [De-Smith's Judicial Review of Administrative Action (Fourth Edition) 1980 Volume page 276]. 29. Initially, the learned Attorney General in his application for review invoked this very principle for inviting all the judges who participated in decisionmaking in Haji Saifullah's appeal to sit and resolve the question of interpretation of that judgment, if at all any interpretation was called for. It was only in the subsequent application that the ground of bias was brought in to get over this principle of necessity by departing from the rule applicable to review of judgments by a reduced number. 30. While this judgment was under preparation and had almost been finalized, a further application dated 1st July, 1989 was received from the learned Attorney General and it is reproduced in extenso hereunder:-- "The above Review Petition was heard by the Supreme Court on 27th of this month and the orders are reserved. In addition to my submissions, I would respectfully like to draw the attention of the Hon'ble Chief Justice and other Judges of the Supreme Court who heard the Review Petition to the Code of Conduct framed by the Supreme Judicial Council which reads: "FRAMED BY THE SUPREME JUDICIAL COUNCIL UNDER ARTICLE 128(4) OF THE CONSTITUTION FOR JUDGES OF THE SUPREME COURT AND THE HIGH COURTS IN PAKISTAN". (PLD 1967-Journal p.97) I will particularly draw the attention of the Judges to Article 4 of the Code of Conduct which reads: "A Judge must decline resolutely to acf in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends". "A Judge must rigidly refrain from entering into or continuing any business, howsoever unimportant it may be, with any party to a case before him. Should the dealing be unavoidable, he must continue his connection with the case forthwith." "A Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers." "To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion in any case being swayed by any consideration of personal advantage, either direct or indirect." Copy of this note may kindly be placed before the Chief Justice and every other Judge who heard the case. Fourteen copies are herewith submitted." 31. No suggestion was at any earlier stage made either in writing or orally by the learned Attorney General that any interest of a close friend or near relative of any of the Judges was involved or any preferential connection with any lawyer engaged in the proceedings of any one of the Judges existed. These are the grounds invoked now by reference to Code of Conduct. The bias attributed pertained and was confined to the fact of the appointment of some of the Judges during the period under discussion. It was adequately taken care of in the submissions already made by the learned Attorney General, alleging bias on account of such pecuniary or professional stakes. This has already been dealt with and no further discussion of it seems necessary or called for. 32. The ground of general unspecified bias now put forward cannot be allowed to prevail. The learned Chief Justice had while passing the order dated 16-5-1989 (reproduced) consulted the concerned Judges and noted that "they have stated that they will not feel embarassed to hear the case." In the case of Islamic Republic of Pakistan v. Abdul Wall KJian (PLD 1976 S.C. 57) a passage, as reproduced hereunder was quoted with approval from American Jurisprudence Volume 30 page 774, paragraph 74:- "at common law bias or prejudice on the part of a Judge, not the result of interest or relationship, is not supposed to exist, and generally it does not incapacitate or disqualify a Judge to try a case unless the Constitution or statute so provides". 33. The law on the subject of general bias attributed to Judges of Superior Courts has been fully dealt with in the case of Islamic Republic of Pakistan v. Mr. Abdul Walt KJwn [(1975) 2 Pakistan Supreme Court Reports page 1 at page 214) in the following words:— "As regards the objection taken to the constitution of the Bench, learned counsel were informed on the very first day that no party to a litigation can claim the right to be tried by a particular judge or judges of his choice. In the case of superior Courts, it is entirely a matter for the judge or judges concerned to decide as to whether they will or will not sit in that particular case. Mr. Wali Khan has been informed that both the learned judges, against whom the objection has been raised, on the record minutes in writing have now recorded on these proceedings to say that they do not feel embarassed in sitting to hear this proceeding. The objection based purely on conjectures is, therefore, in our view, unawarranted. Judges concerned are full conscious of their own responsibilities. There is nothing to show that they are in any way disqualified from sitting to hear this reference." 34. In the circumstances and for the foregoing reasons none of grounds |g advanced can prevail and the application (C.M.P.No. 196-R of 1989) objecting to the constitution of the Bench is rejected. The Review Petitions shall come up for hearing at Karachi on the 6th of August, 1989. Aslam Riaz Hussain, J.--I have had the privilege and advantage of going through the draft order recorded by my learned brother Mr. Justice Shafi-ur- Rehman, rejecting the application (CMP No. 196-R/89). In this petition the learned Attorney General has invoked the principle of Natural Justice that "No one should be a judge in his own cause", and prayed that if possible, clarification of the Full Court Judgment datd 9-3-1989 be made by a Bench of which the three learned Judges, who are likely to be directly affected, one way or the other, by the interpretation of the said judgment, are not members. 2. While I, most respectfully, -agree with the portion of his lordship's observations in paragraph No. 12 of his order with respect to the rule of Natural Justice invoked by the Attorney General that "no one -:an be a Judge in his own cause", which reads as follows:— "The learned Attorney Genera! has indeed invoked a very salutory, non-controversial, and fully entrenched juridical principle of high standing relating to Administration of Justice and to quasi judicial adjudication." Yet, with utmost respect, I am unable to agree with the conclusion arrived at by his lordship in the later portion of that paragraph, namely that the said "principle is not attracted to the case" in hand. I feel compelled to write this separate order because the principle involved in this case and its application, is of extreme importance for the maintenance of the dignity and image of impartiality of the judicial system in Pakistan, and what-ever is laid down by this Court today, shall provide the guide-line for the subordinate judiciary for a very long time to come. I may add at the outset that the case law and the books that I am relying upon, are the same as referred to by Mr. Justice Shafi-ur-Rehman in his order. I have only altered the sequence to highlight the angle from which these may be seen in order to apply it to the facts of this case. 3. The facts leading to this petition by the Federal Government, briefly stated, are that on 20-9-1988. Haji Saifullah, a Member of the dissolved National Assembly filed a Constitution Petition in the Lahore High Court, praying inter alia that the dissolution of the National Assembly by General Zia ul Haq, the then President of Pakistan, be declared illegal and ultra-vires of the Constitution; and the National Assembly be restored and that the appointment of a Prime Minister in the Care-Taker Cabinet was necessary under Article 48 (5)(b) of the Constitution, therefore all steps taken, appointments made and law framed by the President/Acting President between 29-5-1988 and 2-12-1988, which could be made or done by him only on the advice of the Prime Minister, be declared as invalid and without lawful authority and should consequently be reversed. The petition was allowed by the Lahore High Court, but reliefs prayed for were not granted. 4. The Federal Government came up in appeal against the said order before this Court. A short order dismissing the appeal and upholding the judgment of the High Court was delivered by this Court on 5-10-1988. But the question regarding the appointment of a Prime Minister in the Care Taker Cabinet was not dealt with therein. Subsequently the detailed judgment giving reasons for the said short order was recorded by Mr. Justice Dr. Nasim Hasan Shah on 9-3-1988 with which the learned Chief Justice and 8 other learned Judges concurred. The question regarding the appointment of a Prime Minister has been dealt with in it. Mr. Justice Shall ur Rehman recorded a separate judgment giving further reasons for reaching the same conclusion. Mr. Justice S. Usman Ali Shah concurred with him. Mr. Justice Shafi ur Rehman has also dealt with this question as also the question of condonation and the manner in which condonation would be granted if at all. 5. The portion of the judgment recorded by Mr. Justice Dr, Nasim Hasan Shah, relevant for the purpose of this case, reads as follows:— "The reference to the provisions of the Constitution made above show that the Office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a Care-Taker Cabinet." Whereas the portion of the judgment of Mr Justice Shafi ur Rehman, relevant for the purpose of this order, reads as follows:- "In this background the Constitution does not visualise a Care-taker Cabinet without a Prime Minister. The absence of Prime Minister from a Care-taker Cabinet alters for the period under discussion the very Character of the Constitution from a Parliamentary democracy to a Presidential system of government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us." "Finally, the breach concerning the alteration in the Oath of Ministers, the learned Attorney-General had no explanation for it. We do not find any mention of it even in the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional Provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution." 6. From the afore-mentioned portions of the said judgments, specially the one recorded by Mr. Justice Shafi ur Rehman, wherein it was observed that the Constitution had been violated in a manner which could not be countenanced by the Court and which the court could not condone "at this state and in the proceedings", and the observation that the "legal consequences of all the individual acts done or actions already taken and suffered" during that period were to be decided as and when brought before the Court for that purpose individually, through proceedings more appropriately brought before it, the Federal Government felt justified in coming to the conclusion that till such time as these were condoned, as indicated by the Court, all actions taken, appointments made or laws framed by the President/Acting President during the period between 29-5- 1988 and 2.12.1988 were illegal and invalid till such time as they were condoned. 1. It therefore issued a Press Release, inter alia, requesting the Registrars of the Supreme Court and the four High Courts to immediately contact the ministry of Law and Justice with regard to such actions, orders or appointments made or laws framed by or in the name of the President during the said period so that these are regularised by taking appropriate steps in accordance with the Constitution, in the light of the judgment of the Supreme Court. It further advised that all such appointees may suspend the performance of their official dnties till their appointments were regularised or reaffirmed in an appropriate manner. 8. In response to this Press Release, Registrars of the Supreme Court and all the four High Courts sent lists of Judges so appointed during this period, and all the Chief Justices of the High Courts, as well as the H'ble Chief Justice of Pakistan, requested the Judges of their respective Courts, who had been appointed duringh these dates, to suspend their work, which they did. According to the Federal Government this demonstrated that the interpretation placed by.it on the detailed Full Court judgment of the Supreme Court dated 9-3-1989 through its Press Release, was considered to be correct by the H'ble Chief Justice of Pakistan himself and the three learned Judges of this H'ble Court appointed during the above said period actually stopped functioning. But later, on 13-3-1989 Mr. Muhammad Akram Sheikh, an Advocate from Multan filed CMP No. 68- R/88, seeking the following relief:— (/) to clarify the full and correct implications of our own detailed judgment in Civil Appeals Nos. 314, 315, 316 and 317/88 and C.Ps. Nos. 302-R and 303-R of 1988; (//') to proceed in contempt against those who are deliberately misinterpretting it to derive political advantage out of it; and (///) to end the legal chaos and constitutional crisis into which the country has been plunged. It was disposed of by a Bench of four Judges, on 18-3-1989 directing that the specified disputed portion "should stand deleted and be taken not to have been issued at all". 9. On this the Federation of Pakistan filed a Review petition (Civil Review Petition No. 33-R/89 on 22-4-1989, praying that the detailed judgment dated 10-3- 1989 should be interpreted by a Bench consisting of all the Judges who had heard the appeal. This review petition came up for hearing at Rawalpindi on 29-4-1989 and was adjourned to be heard at Quetta on the 27th of May, 1989. The Court however, sat at Karachi. In the meanwhile the Federal Government had filed CMP. No. 149-R/89, praying that:- "On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e, that no person shall be a Judge in his own cause, it is submitted that the three Judges of this H'ble Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this H'ble Court, under review one way or the other, are requested that they may not sit on the Bench on 27th May, 1989 or on any date thereafter when the matter is heard as that will set a very bad precedent as Judges personally interested in the matter to do not sit as Judges to decide the case." The learned Chief Justice, dismissed this application in Chamber on 16-5-1989, with the following observation, inter alia That:— I have consulted Judges who have signed the main judgment and they have stated that they will not feel embarassed to hear the case." 10. The Federal Government thereafter moved another application (CMP. No. 196-R/89) explaining as to why the earlier application was moved, and prayed as under:— (j) "This application was filed keeping in view the high traditions and principles of natural justice universally accpeted that no one should act as judge in his own cause." (//) "the rule that the Review Petition may be heard by the same Judges has exceptions. One of these is based upon the principle, that 'no one should be a judge in his own cause'." (hi) "the clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10-3-1989 and also by any other judge that might be available." 11. This application was taken up at Karachi on 27-5-1989 but was adjourned to be heard at Rawalpindi on 27-6-1989. CMP No. 196-R/89 (in Civil Review Petition No. 33-R/89) was then heard by the Full court on 27-6-1989 at Rawalpindi and the judgment was reserved. My learned brother Mr. Justice Shafi ur Rehman has sent me a well considered draft of his order whereby he proposes to dismiss the said Misc, Petition. It is on this matter that I am recording my separate opinion. 12. In this Order my learned brother has cited and quoted from almost all the important judgments on the subject, from Pakistani, British and American Courts and has also made reference to the relevent portions of books written on the subject by well known jurists e.g. Dr. Smith, Marshall, Flicks and Davis, as well as Halsbur/s Laws of England. He has also quoted important and relevant portions from the said judgments and books. I may profitably reproduce quotations from some of the judgments and books referred to and relied upon by my learned brother in his order, because it is primarily these which have led me to form the opinion and reach the conclusion which I propose to record. 13. While explaining the principle of natural justice in question, namely "no man shall be a Judge in his own cause", my learned brother started with quoting, in paragraph No. 13 of his order, from a book by Flicks, called 'Natural Justice'. In the portion relied upon and quoted, Flicks says that:- " There is no more firmly established principle of law today than that no man is qualified to adjudicate upon a matter with regard to which he stands to gain or lose financially as a direct result of his decision. He says further that:— " In such cases the mere existence of pecuniary interest is sufficient to disqualify (the Judge) and an aggrieved party need not go to prove a real likelihood of bias." 14. Similarly, in Dimes, v. Grand Junction Canal, which is considered to be "a case of the highest possible authority", Lord St. Leonard, the Lord Chancellor of England in 1852, set aside a judgment recorded by a former Lord Chancellor, (namely Lord Cottenhem), in a case, beacuse he (i.e. Lord Cottenhem) was shown to have had an interest, as a share-holder, in the company which was one of the parties in that case. The case was first heard by the Vice Chancellor, who granted the relief sought by the company. On appeal the Lord Chancellor (Lord Cottenhem) affirmed the order of Vice Chancellor. This was subsequently challenged and it was held, on appeal to the House of Lords, that the former Lord Chancellor (i.e. Lord Cottenhem who had by then ceased to hold office as such), was disqualified, on the ground of interest, from silting as a Judge in the case and that "his decree was therefore voidable and must consequently be reversed." 15. The underlying principle in the above noted judgment was explained by Lord Campbell CJ. in his judgment, in the following words;— "No one can suppose that Lord Cottenhem could be, in the remotest degree, influenced by the interest that he had in this concern but it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred." His lordship went on to observe that:— "(Ever) since I have had the honour to be Chief Justice of the Court of Queens Bench we have, again and again, set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it will have a most salutory influence on these tribunals when it is known that this high court of lost resort, in a case in which the Lord Chancellor of England had an interest considered that his decree not according to law and was set aside." His lordship then went on to make the following pertinent observation:— "This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence". Marshall in his book "Natural Justice" defines 'interest' as legal or pecuniary interest which is to be distinguished from 'favour'. In the former case, i.e., in the case of legal or pecuniary (i.e. financial interest), the smallest interest immediately disqualifies the Judge. In the latter case (i.e. in case of alleged bias, which does not involve pecuniary interest), disqualification is not automatic. On the contrary, in order to have effect such bias must be shown, at least, to be real 16. In the case of Rex v. Meyer (1875-1 Q.b. 173), Blackburn J. referred to the decision in R. v. Rand (1866 L.R.-l Q.B.D.-230), and observed that :-- " The effect of our judgment in that case was that though pecuniary interest in the subject mailer of She dispute, however small, disqualifies the Justices, yet the mere possibility of bias did not ipso facto, avoid Justices' decision, and we thought that though there was possibility of bias in that case, yet il was not real.' 1 My learned brother 1 has also referred lo the view of Francis Alexis on this aspect of the rule of natural justice under discussion and observed, that:— "Pecuniary interest has been contrasted with non-pecuniary interest in the following words in an Article by Francis Alexis under the heading "Reasonableness in the Establishing of Bias" appearing in 1979 Volume of 'Public Law' al page 143, The author has contrasted it as hcreunder at page 159":-- "By contrast, once there is a direct and certain pecuniary interest, not merely remote, speculative, or contingent, [See R. v. Rand (1866) L.R, IQ.B. 230. D.C.;' R. v. Deal Justices (1881)] an adjudicator is disqualified. He is disqualified by "even the slightest pecuniary inicres:, " as applied in R. v. Gaisford [(1892) 1 Q,B. 381 at p. 384 (Malhew J.)], no mailer "however small," be it "less than a farthing", as the English Judge, Blackburn J., put up. [R. v. Rand (1866) L.R. J Q.B. 230 at p7 232; R. v. Hammond (1863) 9 Law reporter 423 at p. 423 respectively.]." 17. The same principle has also been sum ma sized in Harvard Law Review Volume 86 (1972-73) which has been reproduced in paragraph No. 20 of his lordship's judgment and reads as follows:-- "When the judge has financial interests which may be directly affected by the outcome of the litigation--i.e., an interest in a party or in the subject matter in controversy—his impartiality clearly can be questioned by reasonable men, and therefore disqualification should follow [See, e.g., Tunny v. Ohio, 273 U.S. 5JO (192.7)], Supreme Court Justices beginning with Justice Livingston /Livingston & Gilchnst v. Maryland Ins. Col, II U.S. 17 Crancli) 506 /'/§/..?)/ and Chief Justice Marshall [Fairfax's Devisee v. Hunter's Lessee. // (J.S, (7 Crunch) 603 11813)j have consistently disqualified iiicima-,;:s under such circumstances (See Frank, supra note 14 at page 615) whether or not they consciously applied the strict ap; .•'• :<nce test. Indeed, even under the early English Common Law, '< fireiy required disqualification because, as Blackstone explained, '.ac lav: will not suppose a possibility of bias or favour in a judge who is :ready sworn to administer impartial justice," (3 W.Blackstone, ''.ommeJHaries--361) disqualification was required when the judge had a ..irect pecuniary stake in ihe outcome. [E.g., Dr. Bonham's Case, 77 Eng. .-••>. 646 (K.B. 1609); see Frank supra Note 14, at 609-12; Note, Disqualification of Judges for prejudice or Bias—Common Law Ew'rr'on, Current Status, and the Oregon Experience, 48 ORE. L. REV. 31-, •1.5-20(1969)]" IS. The principle that emerges from various judgments and treatise referred to by my learned brother, sorae of which have been quoted above is that where the pecuniary or financial interest of a Judge, no matter how small, is likely to be affected as a direct result of the decision in any case, he is ipso facto disqualified from hearing it, and has no option left but to decline to sit on the Bench deciding it. 19. My learned brother has himself referred to the summing up of the principle emerging from various decisions in paragraph 17 of his order, as under:- "The principles emerging from various decisions have been summarized by the author at page-27 in the following words":-- "This rule has been stated many times but the following dicta may be quoted":-- "There is no doubt that any direct pecuniary interest however small in the subject of inquiry does disqualify a person from acting as a judge in the matter". [Blackburn J. in R. v. Rand (1866 L.R. 1 Q.B. 230, 232]" "If he has any legal interest in the decision of the question one way he is disqualified no matter how small the interest may be." [Lush J. in Serjeant v. Dale (1877) 2 Q.B.D. 558, 567]. " ... the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a judge.: [Stephen J. in R. v. Farrant (1887) 20 Q.D.B. 58, 60]." " ... a person who has a judicial duty to perform disqualifies himself from performing it if he has a pecuniary interest in the decision which he is about to give or a bias which renders him otherwise than an impartial judge. // he has a pecuniary interest in the success of the accusation he must not be a judge." [Bowen L.J. in Leeson v. General Council of Medical Education (1889) 43 Ch. D. 366, 384]." 20.1 am of the view that the reason for this extraordinary caution in matters where a Judge has a financial or pecuniary interest in the outcome of the decision of a case, is obvious. While Judges are passing judgments in the cases that come before them, they are themselves being constantly judged by the public in general. The dignity and respect of the Courts is neither engendered nor protected by the Law of Contempt, but by the conduct and impartiality of the Judges themselves. It is because of their reputation of impartiality and neutrality that Session Judges in remotest districts like Mianwali & Dera Ismail Khan, who routinely sentence accused persons to death or acquit them, can go out alone for a walk in the evening, without the least fear or apprehension of being assaulted, attacked or injured. It is not that while deciding cases, judges are in any way partial or subject to any external influence, but they have always to be very mindful of the impression that the public in general may form about them. Judges have to be extremely careful about their image of impartiality; neutrality, and disinterestedness in the result of any case before them. One slip, giving the public a reason to believe that the judge is motivated, and the lofty image of the Superior Courts in public-mind, built so carefully during the last 150 years, would fall to the ground and shatter to pieces. 21. The importance of the opinion that people in general may form about Judges and the necessity to maintain the confidence in the public mind with respect to the neutrality and impartiality of the Judges, by ensuring that justice is not only done but is seen to be dome, has been summarized by Justice Esher in Eckersley v. Hersey Docks &. Harbour Board (1894 2 Q.B. 667 at 671) in the following words:— "....the doctrine which is applied to judges, not merely of the Superior Courts, but to all judges, that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased, they ought not to act as judges in a matter where the circumstances are such that people-not necessarily reasonable people, but many people-would suspect them of being biased." The same principle has been enunciated by Mr. Justice Lush J. in Serjeant v. Dale as follows:-- "The law in laying down this strict rule, has regard, not so much perhaps to the motives which might be supposed to bias the judge, as to the susceptibilities of the litigant parties. One important object, at aft events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security." 22. The plea of the counsel for the Federal Government was that while hearing the appeals against the judgment of Lahore High Court in the petition filed by Haji Saifullah wherein he had challenged the validity and legality of actions taken and laws framed or appointments made by the President between the period 29-5-1988 to 2-12-1988, the learned members of the Bench hearing the appeal were concerned merely with considering the consitutional question as to whether or not the Prime Minister was necessary for the formation of a "Care- Taker Cabinet" under Article 48 (5)(b) of the Constitution. At that stage the proposition was merely-a legal one and no pecuniary interest of any kind was involved. But later, bytf.e time federal Government filed CMP No. 149-R/89 and 196-R/89, the position had materially altered. The Government brought out a Press Release on 10th of March, 1989, requesting inter-alia that "all such appointees may suspend performance of their official duties till their appointments are regulated or reaffirmed by the President on the advice of the Prime Minister" and the Honourable Chief Justice of Pakistan actually asked the three learned Judges of this Court who were appointed during the relevant period to suspend work and they actually discontinued functioning, the position altered materially. According to the Federal Government, from that stage onward those learned Judges, whose career would be affected, one way or the other, by any decision taken with respect to the interpretation of the Full Court Judgment dated 5-10-1988, would obviously have a pecuniary interest in the outcome of the proceedings. At the time when the Federal Government filed CRP No. 33-R/89, the fact that had agitated it was that a judgment in which very serious constitutional questions had been decided on the l

tb of March by .12 Judges, had within a few days been given an absolutely different 'o'.eaairig than what, according to it, the plain language used in the judgment clearly indicated. It therefore rushed, in a flush, to pray that the very same 12 Judges should assemble to interpret and explain it. It is only later tha. other consideration started weighing with it. Henc the subsequent application (CMP No. 149-R/89) praying thai or,-ly 9 learned Judges may interpret the judgment. As such the "inconsistency", thai. i ! sc Fedeuu Government had first asked that all the 12 Judges who heard the appeal should hear the petition, but it is now asking for only 9 out of them to hear it, is more apparent than real 23. As for the question whether Ihe principle of necessity over-rides the rule of Natural Justice, "that no one should be a Judge in his own cause", the law has been stated by my learned brother Mr, Justice Shatlur Rehman in the following summary in paragraph No. 28 o! his order:-- (i) "It is a fundamental principle that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause." (Halsbury Law of England-Fourth Edition Volume—para 67); (ii) "A judge who would ofhcnvi;u be disqualified may act in a case of . That the 'necessity' rule is (Natural Justice by Marshall 1959 Edition, page 38); (Hi) "the rule of disqualification must yield to the demands of necessity, and a Judge or an officer exercising judicial functions may act in a proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destory the only tribunal in which relief could be had and thus prevent a termination of the proceeding" (vide American Jurispurdence Vol. 30, page 770)" (Quoted in the President v. Mr. Justice Shaukat Ali-PLD 1971 SC 585 at page 606); (/v) "An adjudicator who is subject to disqualification at common law may be required to sit if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice. So, if proceedings were brought against all the superior judges, they would have to sit as judges in their own cause. Similarly, (i.e. in similar circumstances) a judge may be obliged to hear a case in which he has a pecuniary interest." [De-Smith's Judicial Review of Administrative Action (Fourth Edition) 1980 Volume page 276]. 24. I would like to re-summarise this principle for the sake of brevity and clarity. As re-summarised, the rule of exception due to "necessity" would read as follows:- No man can sit as a judge in his own cause; (a) Unless there is (/) statutory authority; or (it) consensual agreement; or (Hi) it becomes necessary to do so; (b) A judge who would otherwise be disqualified, may act in a case of necessity, when no other judge has jurisdiction to hear the case: (c) A judge who is otherwise disqualified because of having interest in the case may justifiably be required to sit:— (/') if there is no other competent tribunal or forum, to hear the case; or (it) a quorum cannot be formed without him. (d) Similarly, if proceedings were brought against all the superior judges they would be obliged to sit as judges in their own cause, because in such a case no judge will be left to form a Bench. It is obvious that none of the situations evisagcd in the above «n- mary of the principle of "Necessity" has arisen in the present case. The same is ..hcrefore not applicable to this case. 24-A. As for the argument that this principle does not apply to the suj nor courts, at the apex, I would respectfully refer to the following portion ol the extract reproduced from Harvard Law Review in paragraph No. 15, above:-- "Supreme Court Justices beginning with Justice Livingston [Livingston & Gilchrist v. Maryland Ins. Col, II U.S. (7 Cranch) 506 (1813)] and Chief Justice Marshall [Fairfax's Devisee v. Hunter's Lessee, II U.S. (7 Cranch) 603 (1813)] have consistently disqualified themselves under such circumstances". The following portion of the Judgment of Lord Esher in Eckersley v. Hersey Docks & Harbour Board (1894 2 Q.B. 667 at 671) reproduced in para No. 21 above is also relevant in this connection and may be usefully reproduced again:— " the doctrine which is applied to judges, not merely of the Superior Courts, but to all judges, that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased, they ought not to act as judges in a matter where the circumstances are such that people not necessarily reasonable people, but many people—would suspect them of being biased." The judgment in Dimes v. Grand Junction Canal, is also relevant as it relates to the disqualification of the Lord Chancellor of England himself, when he was found to have had pecuniary interest in the case decided by him. Moreover, it is well known that Judges of Superior Courts in Pakistan itself have always refrained from sitting on the Bench deciding cases in which there is even the slightest apprehension that they may be considered to be 'biased' (not to speak of being financially interested) in the matter and transfer the cases with the observations like:— "I would not like to hear this case for personal reasons", or simply "may be placed before another Bench" This practice has been followed so rigidly that some Judges (e.g. Justice Douglas Young C.J.), even refrained from reading newspaper reports with respect to the cases before them. It may however be mentioned here that there can be exceptions to this practice. A Judge can always distinguish cases where any of the parties is resorting to a device, with an ulterior motive, so as to prevent him from sitting on the Bench dealing with a particular case, for example by engaging a Counsel who is barred from appearing before him. He may not disqualify himself in such cases. 27. Again, as pointed out by my learned brother, after referring to Islamic Republic of Pakistan v. KJian Wall KJian (1975-2. PSCR-1 at 214) it is true that in the case of Superior Courts it is entirely a matter for the Judge or the Judge concerned to decide as to whether or not he will sit in that particular case, and if he decides to sit, whether or not he would feel embarrassed. In Wall Khan's case the learned Judges, against whom bias (but not pecuniary interest) had been alleged, did not feel that they stood disqualified from sitting by such an allegation and did not feel any embarrassment in hearing the case. As such, in the present case also, it would ultimately depend upon the view taken by the learned Judges concerned, in the light of the precedent case law laid • down and cited above, as also the longstanding practice of the judges of the superior courts in this respect. 28. It may be mentioned that after hearing of this petition had concluded and the judgment was under preparation, the learned Attorney General made a further application on 1-7-1989 wherein he stated that in addition to his submissions made at the Bar he would respectfully like to draw the attention of the H'ble Chief Justice of Pakistan and other Judges of this Court, to the Code of Conduct framed by the Supreme Judicial Council. The portion of this Code which is relevant for the purpose of this order is clause (1) of Article 4 which reads as under:- "A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relative or close friends." To decide whether or not any act on the part of the learned Judge falls within, or is outside, the smbit of this Article of the Code of Conduct, is in the exclusive jurisdiction of the Supreme Judicial Council. Therefore any observations on this aspect, which may tend to indicate whether or not an action of any learned Judge was in consonance with or was against rules of conduct prescribed in the said Code, would constitute an infringment on the jurisdiction of the Supreme Judicial Council. I, therefore, refrain from making any observation or comment whatsoever on this aspect of the matter. With these observations, the CMP No. 196-R/89 (in Civil Review Petition No. 33-R/89), stands disposed of. Muhammad Afzal Zullah, J.--I agree that on examination of the Common Law principles and the relevant rule of natural justice prevailing in that system invoked by the learned Attorney-General, this Civil miscellaneous Petition should fail. As he has chosen not to argue and rely aupon the relevant principles of Islamic Law on the subject, despite a brief reference to it during the arguments, it is not necessary in this case, to discuss that aspect. It may, however, be mentioned that in a recent judgment of this Court by a Bench of five Judges including three of us (Muhammad Afzal Zullah, Dr. Nasim Hasan Shah and Shafiur Rahman, JJ) we dealt with one of Islamic Law principles relevant to a similar situation. See Mujeeb-ur-Rehman and 3 others v. Fcdeial Government of Pakistan through the Attorney General of Pakistan (1988 S.C.M.R. 897). Regarding the Additional submission made by the learned Attorney-General after the arguments, in a written application wherein reliance was placed on Clause I of Article IV of the Code of Conduct, suffices it to observe that the expression "a case involving his own interest" means the direct involvement in the case which is being determined by the Court of which the Judge is a Member. The interest should not be contingent and dependent upon other cases or matters which are yet to be decided. Prima-facie, therefore the said Clause is not attracted. Looked at from what-ever angle this Civil Miscellaneous Petition is liable to be dismissed. Nasim Hasan Shah, J.--I agree with the views expressed by my learned Brother S. Rehman, J. in the very valuable judgment proposed to be delivered by him, but being one of the authors in the Dissolution of National & Provincial Assemblies case it is only appropriate that I should also express my views in my own words: On 9-3-1989, the detailed reasons for the short order announced on 5-10- 1988 in the Dissolution of National and Provincial Assemblies cases (Civil Appeals Nos. 314 to 317 of 1988 and Civil Petitions Nos. 392-R & 393-R of 1988) (hereinafter called the Dissolution Cases) were released. On the very next day, the Federal Government issued a press release wherein it was, inter-alia, averred:-- "The Supreme Court of Pakistan on 5-10-1988 by a Short Order upheld the judgment dated 27-9-1988 of the Full Bench of the Lahore High Court. The Lahore High Court inter-alia had held that the appointment of the Prime Minister after the dissolution of the National Assembly by General Zia-ul-Haq on 29th May, 1988 was necessary under the Constitution to head the caretaker Government". and "That the caretaker Government appointed by the President from 29-5- 1988 to 2-12-1988 was in violation of the Constitutional provisions. Consequently, the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime 1, Minister were illegal. Such actions, orders and appointments have to 6e regufan'sed in accordance with (he provisions or" fne Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29lh May to 2nd December, 1988, so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regualrised or re-affirmed by the President on the advice of the Prime Minsiter. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme. Court." Mr, Muhammad Akram Shaikh, Advocate and President of the Multan Bar Association filed an application (C.M.P.No. 68-R of 1989) on 13-3-1989 seeking the following reliefs:— (/) to clarify the full and correct implications of our own detailed judgment in Civil Appeals Nos. 314, 315, 316, 317/88 and C.Ps. Nos. 392-R and 393-R of 1988: (//) to proceed in contempt against those who are deliberately misinterpreting it to derive political advantage out of it; (hi) to end the legal chaos and constitutional crises into which the country has been plunged." This application was disposed of on 18-3-1989 by a Bench of 4 Judges (consisting of the learned Chief Justice, Nasim Hasan Shah, S. Rehman and All Hussain Qazilbash, JJ) wherein it was, inter-alia, observed:-- . "The portion of the Press Note reproduced above does not appear tu correctly reflect our judgment in so far as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May 1988 upto 2nd December, 1988 by the Treat'..nt which were required to bw taken, passed or made on the advice of the Prime Minister were illegal and required regularisation and re-affirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was • not granted. The findings on ai! the matters in controversy were recorded to remove ail doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in the future". It was, therefore, directed that the portion of the press note re-produced above should "stand deleted and be taken not to have been issued at a i: . Feeling dissatisfied with this order, the Federation of Pakistan filed a review petition (C.R.P.No. 33-R of 1989) seeking the review of the order dated 18-3-1989 passed in C.M.P. No. 68-R of 1989. In this petition, the first ground taken was:- That 12 Hon'ble Judges of this Hon'ble Court constituted the full Bench which passed the short order on 5-10-1988 as well as the detailed • -dgment recorded and issued later on. The Government of Pakistan interpreted the judgment in the light of the observations made therein and issued a Press Note on 12-3-1989. The Press Note in fact became the subject matter of Civil Misc. No. 68-R of 1989. The Civil Miscellaneous was heard by 4 Hon'ble Judges of this Hon'ble Court and disposed of by an order dated 18-3-1989. It is respectfully submitted that the interpretation, clarification or any order relating to the detailed judgment could be passed by the same Hon'ble Bench constituting of 12 Judges of this Hon'ble Court. All the Hon'ble Judges were still available. Four Hon'ble Judges could not pass any order in respect of the Full Court judgment." Application came up for hearing on 29-4-1989 before the Bench of 12 Judges :..: had heard the original appeal and was partly argued on that date, when it was a:i : ourned for further arguments on 27-5-1989. In the meanwhile however, the Federation of Pakistan submitted an application (No. CMP 149-R of 1989 in C.R.P. No. 33-R of 1989) requesting that 3 Judges of this Court namely Mr. Justice S. Usman Ali Shah, Mr. Justice Ali Hussain Qazilbash and Mr. Justice Naimuddin who had been appointed by the President without the advice of the Prime Minister and stood effected by the judgment of this court under review may r.oi sit on the Bench when the matter is heard on 27-5-1989 as these Judges were personally interested in the matter and that Judges in such circumstances do not sit as Judges to decide a case. This request was declined by the learned Chief Justice in Chambers on 16-5-1989 observing, intcr-alia:— "I have consulted the Judges who have signed the main judgment and they have stated that they will not feel embarrassed to hear the case." Undeterred the learned Attorney General moved another application (C.M.P.No. 196-R of 1989) on 23-5-1989 re-iterating his earlier prayer that the 3 learned Judges likely to be effected should not sit on the Bench in view of the high traditions and principles of natural justice universally accepted that no one should :-.c; as Judge in his own cause and the matter be disposed of by the remaining 9 Judges who were parties to the earlier judgment in Dissolution Cases and also by any other Judge that might be available. This application alongwith Civil Review Petition (C.R.P. No. 33-R of 1989) and other connected matters ultimately came up for hearing on 27-6-1989 again before the Full Court consisting of 12 Judges who had earlier disposed of Civil Appeals Nos. 314 to 317 of 1988 and Civil Petitions Nos. 392-R/88 & 393-R/88. At this hearing, the learned Attorney ("jeneral presented an elaborate argument in support of his prayer that the three learned Judges appointed between 29-5-1988 and 2-12-1988 should not participate in the proceedings. However, when asked to explain the error committed in the order dated 18-3-1989 whose review was being sought, he declined to do so on the plea that he would come to the matter only after the prayer made in his application seeking withdrawal of the three Judges (C.M.P.No 196-R of 1989) was granted. The stand taken by the learned Attorney General in his miscellaneous applications is not easy to comprehend. It will be observed that the foremost ground taken by him in the petition seeking review of this Court's order dated 18- 3-1989 (C.R.P. No. 33-R of 1989) was that insofar as the judgment in the Dissolution Cases was rendered by 12 Judges any clarification etc. thereof could be made only by the same Bench consisting of 12 Judges (who had passed the original order) and that the bench of 4 Judges (who had passed the subsequent order dated 18-3-1989) could not pass any order in respect of the Full Court judgment. This plea was manifestly untenable as the order dated 18-3-1989 was passed in connection with the press note dated 10-3-1989 issued by the Ministry of Law, Justice & Parliamentary Affairs purporting to implement and interpret this Court's detailed judgment passed by the Bench of 12 Judges. The question raised before the Bench of 4 Judges passing the order dated 18-3-1989 was whether the interpretation placed in the Press Note issued by the Ministry of Law, Justice & Parliamentary Affairs on the said judgment of the Court was correct? This matter could be decided by any Bench of this Court. It was a normal case coming before the Court wherein one party claimed that it was purporting to follow and implementing a decision of this Court while some other party was disputing this claim and the question before the Court was to ascertain as to which of them was actually right. In these circumstances, no occasion arose for constituting a Bench consisting of all the Judges who had delivered the earlier judgment for deciding this question. Be that as it may the review petition (C.R.P. No. 33-R of 1989) was, as requested, ordered to be placed before a Bench of the same 12 Judges who heard the earlier cases and the matter was thereafter partly heard by it on 29-4-1989 when it was adjourned to 27-5-1989 for further hearing. However, before the matter came up for further hearing on the adjourned date, one application followed by another was submitted raising a totally new issue namely that 3 of the Judges of the Bench of 12 Judges, who were parties to the earlier judgment rendered in the Dissolution Cases should not now sit on the Bench which was constituted on its own request, to interpret the said judgment. It is noteworthy that no objection was raised by the learned Attorney General to this effect when he appeared before the Bench of 4 Judges on 18-3-1989, where one of such Judges (Mr. Justice All Hussain Qazilbash) was also sitting. Again, no such plea was raised when the main petition for review (C.R.P. No. 33-R of 1989) came up for hearing on 29-4-1989. It was only after the matter was adjourned on 29-4-1989 for further hearing that this new issue was raised [first by the application .(C.M.P. No. 149-R of 1989 in C.R.P. No. 33-R of 1989)] and after its rejection on 16-5-1989 by the learned Chief Justice in Chambers, by a further application (C.M.P. No. 196-R of 1989). In the last mentioned application it was again requested that the prayer made in the earlier application (C.M.P.No. 149-R of 1989) be accepted but it went on to add that in case "this prayer is not acceded to by this Hon'ble Court, the Federal Government has instructed that the review petition may be allowed to be withdrawn without prejudice to the contentions raised in the Review Petition." Notwithstanding this unhappy prospect and however desirous we may be to see the learned Attorney General complete his submissions on the review petition, being duty bound to do right, in all circumstances, no other course, but to do what '•ac conceive is the right, is open to us. The very foundation of the learned Attorney General's submission that the Appointment, inter-alia, of a Judge of the Supreme Court not made on the advice :' the Prime Minister is illegal, is itself debateable. The question whether a Judge a ho has been appointed by the competent authority (the President), after consultation with the specified authority (Chief Justice of Pakistan) can be said to have been appointed illegally because his appointment was not made on the advice of the Prime Minister or Cabinet is not free from difficulty and a serious Argument would be necessary to resolve it. Since, however, arguments on this j 10 replace them were upheld. Again despite the fact that no Prime Minister \vas appointed to head the Care-taker Government and although it was found that it was necessary that he must head the Government at all times under '.:-•; Constitution, the Ordinances promulgated on its advice, inter-alia, the 3 limitation of the Constituencies (Amendment) Ordinance 1988, were not only rr.c!J but found to have paved the way for the General Elections held on 16th No-ember and 19th November, 1988. But the Federation of Pakistan is now questioning the view at least insofar as acts done, actions taken, orders passed and appointments made by the President during the said period is concerned and in '."is connection the following passage occurring in the judgment of my learned :: S. Rchman. J. is mainly being relied upon- 3". :his background the Constitution does not visualise a caretaker Ca-'ir.c! '-viihout ,i Prime Minister. The absence of Prime Minister from a caretaker Cabinet alters for the period under discussion the very Character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violation and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us". Apart from the fact that this passage occurs in the judgment of my learned brother to which only one of my learned brothers concurred, while nothing in support of these observations has been said in the main judgment delivered by the remaining 10 Judges; even my learned brother S. Rehman, J. in his aforesaid judgment has himself clarified the purport of his above observations by observing:— "The mere transitory continuance of such a pre-existing state of affairs, with an eye on the immediate and prime objective of holding a timely and fair General Election prompts us not to interfere in these proceedings with those matters, and the prevailing of affairs". Accordingly, unless the main judgment in the Dissolution Cases is reviewed it is not possible to accede to the prayers made in the miscellaneous applications. Indeed this is all the more necessary because Haji Saifullah (the petitioner in the Dissolution Cases) has also sought review of the judgment passed in the aforesaid Dissolution Cases by another review peition (C.R.P. No. 30-R of 1989) praying that full effect be given to all the findings recorded by the Court including the finding that the Assemblies were illegally dissolved (by restoring the said Assemblies and allowing them to function); declaring the Ordinances promulagted after the unlawful dissolution of the National Assembly to be illegal and ultra-vires, holding the appointments etc. made in this period to be null and void. This review petition (C.R.P. No. 30-R/1989) has been fixed for hearing alongwith Civil Review Petition No. 33-R of 1989 filed by the Federation of Pakistan. In short, while in the review petition filed by the Federation of Pakistan (C.R.P. No. 33-R of 1989), the interpretation placed on the judgment in the dissolution cases is being questioned only so far as appointments etc. made between 29-5-1988 and 2-12-1988 is concerned; and in the miscellaneous applications submitted thereafter (C.M.P. No. 149-R of 1989 & C.M.P. No. 196-R of 1989) the prayer made is that the Judges appointed during this period should not sit to hear the review petition (C.R.P. No. 33-R of 1989) this prayer cannot be granted unless it is held that the interpretation placed on the order dated 18-3- 1989 by the Bench of 4 Judges that the findings in the judgment in the Dissolution Cases were intended only to apply in the future and not to past transactions, is reversed. And so far as the question of the interpretation and proper effect of the judgment in the Dissolution Cases is concerned, this is also desired by Haji Saifullah in his review petition (C.R.P. No. 30-R of 1989). But he has raised no objection to all the 12 Judges sitting in his review petition who were party to the said judgment. Indeed this course was favoured even by the Federation of Pakistan in the main review petition (C.R.P. No. 33-R of 1989) and in my humble opinion this, in fact, is the only appropriate course. I would, with these observations, agree with the order proposed by my learned brother S. Rehman, J. Abdul Kadir Shaikh, J.—We are dealing with a very unusual prayer made by Federation of Pakistan in this Civil Miscellaneous Petition which has arisen out of an important judgment of this Court on the Constitutional empasse that arose following dissolution of National Assembly of Pakistan on 29-5-1988 by the then President of Pakistan, in purported exercise of power under Article 58(2)(b) of the Constitution, and almost simultaneously, dissolutions of all Provincial Assemblies by the respective Provincial Governors. The dissolutions of National Assembly of Pakistan and the Provincial Assembly of Punjab and the appointment of a care-taker Cabinet, without a Prime Minister, were successfully challenged in Constitutional Petitions filed in Lahore High Court. Learned Judges of the Full Bench who dealt with the Constitution Petition held that "the grounds given for dissolution of National Assembly and the Provincial Assembly of Punjab are so vague, general or non-existent that the orders are not sustainable in law". Learned Judges, however, took the view for the reasons elaborately stated in the judgment that "the discretionary jurisdiction under Article 199 of the Constitution will not permit restoration of the dissolved Assemblies, Rather it will call for that no interference is made in the process of bringing about democratic polity". As regards the prayer for grant of direction for appointment of a properly constituted care-taker Cabinet with a Prime Minister, learned Chief Justice held that " it would appear to be that the office of Prime Minister is necessary for running the affairs of the State at all times. However, in exercise of discretionary jurisdiction under Article 199(l)(b)(ii) of the Constitution we pass no order as the matter can be set right sooner or later and to avoid any confusion, crisis or collapse. Restraint is part of judicial discretion". In this connection, learned Chief Justice agreed with the learned Attorney General, who appeared for the Federation of Pakistan, that Caretaker Cabinets have to take care of the day-to-day administration "of the State. There may be no bar to take policy decisions if so required by the circumstances. He is right. Caretaker Cabinets have to confine themselves to take care of the day-to-day administration of the State. They can take all decisions requiring attention or action, may be having far-reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being Caretaker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of Caretaker Government at the expense of other political forces or people at large. Neutrality, impartiality, detactmcnt and devotion to duty to carry on day-to-day affairs of the State without keeping in view one's own interest or of one's party are the sine qua non of a Caretaker Cabinet". Rustam S. Sidhwa, J. and Muhammad Afzal Lone, J., agreed with the views of the learned Chief Justice although for the reasons recorded separately by them. Lehrasap Khan, J. also concurred with these views, however he added a separate note on the position of Caretaker Cabinet impressing the fact that "the Caretaker Cabinet, envisaged in Article 48 (5) (b) of the Constitution of Islamic Republic of Pakistan has to be headed by the Prime Minister, as is evident from the provisions of Article 91 (8) ibid, which reads: "Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period." In this behalf, Gui Zarin Kinai. J., another member of the Full Bench, emphasised as under: "In my view, a Care-taker Cabinet is a Cabinet to be headed by a Prime Minister and without it, it may not appear to be complete. A living body without a head is unthinkable, As regards the role of such a Care-taker Cabinet, it was observed by Sabyasachi Mukharji, J. in Madan Murari Venna v. Choudhuri Charan Singh and another (AIR 1980 Cal.95) "There is no mention of any Care-taker Government as such in our Constitution or in the Constitutional law, though Sir Ivor Jennings has described in his book Cabinet Government, Third Edition, page 85 the ministry that was formed by Mr. Churchill in England after the war before and pending the General Election in 1945 as Care-taker Government. But an extraordinary situation like the present, in my opinion, calls for a Care-taker Government and, therefore, the respondent No. 1 and his Council of Ministers can only carry on day-to­ day administration in office which are necessary for carrying on "for making alternative arrangements". In effect the President in my opinion is, therefore, not obliged to accept the advice that the respondent No. 1 and his Council of Ministers tender to him except for day-to-day administration and the Council of Ministers and the respondent No. 1 should not make any decisions which are not necessary except for the purpose of carrying on the administration until other arrangements arc made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent No. 1 and his Council of Ministers. With this limitation the respondent No. 1 and the Council of Ministers can only function. And in case whether such advice is necessary to carry on the day-to-day administration till 'other arrangements are made' or beyond that, the President, in my opinion, is free to judge. It is true again that this gives the President powers which have not been expressly conferred by the Constitution but. in my opinion, having regard to the basic principle behind this Constitution under Article 75 (3) read with Article 74 (1), in the peculiar facts and circumstances of this case is the only legitimate, legal and workable conclusion that can be made.' Beyond this statement, I do not propose to go further." This Court on appeal against the impugned judgment of the High Court also took the view that the orders of the President of Pakistan and the Provincial Governors dissolving the National Assembly of Pakistan and the Provincial Assemblies respectively were without lawful authority, and also that the formation and the functioning of a Care-taker Government without a Prime Minister is in violation of the Constitutional requirement under Article 48 (5) (b). The opinion of the Court was expressed by two Judges. Mr Justice Dr. Nasim Hasan Shah and Mr Justice Shafiur Rahman. The former summarised it as under: "The reference to the provisions of the Constitution made above shows that the office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a Care-taker Cabinet."Mr. Justice Shafiur Rahman observed: ' Yc\ another breach of Constitutional provision was the non-compliance ~ ill- the requirement of clause (5) (b) of Article 48. It requires the airointment of a Care-taker Cabinet immediately on dissolution of the National Assembly. The Cabinet has been described in clause (1) of Article 91 of the Constitution as hereunden- Thcrc shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions.' Clu^ v-S) of Article 91 provides as follows:- Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period.' Clause (2) of Article 92 provides as hcreunden-'Before entering upon office, a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule. T:e relevant portion of the Oath of Federal Minister or a Minister of State prescribed in Third Schedule of the Constitution reads as here-under:- 'I, , do solemnly swear that I will bear true faith and allegiance to Pakistan: That, as Federal Minister (or Minister of State), I will discharge my duties, as Federal Minister (or Minister of State), or as may be specially permitted by the Prime Minister. May Allah Almighty help and guide me (A' meen).' In this background the Constitution does not visualise a care-taker Cabinet without a Prime Minister. The absence of Prime Minister from a Care-taker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and Breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us." Subsequent to the announcement of the judgment of this Court, the Federation of Pakistan issued a Press Release which reads as under: "GOVERNMENT OF PAKISTAN MINISTERY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS ISLAMABAD PRESS RELEASE March 10,1989. The Supreme Court of Pakistan on 5-10-1988 by a Short Order upheld the judgment dated 27-9-1988 of the Full Bench of the Lahore High Court. The Lahore High Court inter alia had held that the appointment of the Prime Minister after the dissolution of the National Assembly by- General Zia-ul-Haq on 29th May, 1988 was necessary under the Constitution to head the caretaker Government. In this regard the Supreme Court while giving the detailed reasons in support of their Short Order dated 5-10-1988 ha&lnler alia held:- "The reference to the provisions of the Constitution made above show that the Office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a care-taker cabinet." The Supreme Coun has further observed:- "In this background the Constitution does not visualise a caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a caretaker cabinet alters for the period under discussion the very Character of the Constitution from a Parliamentary democracy to a Presidential system of government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us. "Finally, the breach concerning the alteration in the Oath of Ministers, the learned Attorney General had no explanation for it. We do not find any mention of it even in the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional Provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution." The judgment is given by II Judges of the Supreme Court and all of them have unanimously agreed with High Court that the caretaker Government appointed by the President from 29-5-1988 So 2-12-1988 was in violation of the Constitutional provisions. Consequently the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President <• inch were required lo be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. Ii is further advised that all such appointees may suspend the performance of their official duties tiil their appointments are regularised or reaffirmed by the President on the advice of the Prime Minister. gislativc measures may also be required to be taken after carefully the implications of the judgment of the Supreme Court." After the Press Release, Mr Muhammad Akram Sheikh, Advocate and '-jiident of Multan Bar Association field a Miscellaneous Petition in this Court - 13-3-1989 praying that "action for contempt of this Hon'ble Court/clarification ::' ihe order be made by this Hon'ble Court so that the Constitutional chaos into v-hich the country has been plunged may be ended." The Constitutional crises, According to Mr. Muhammad Akram Sheikh had arisen due to the fact that "the Hon'bel Judges appointed during this period (between 29-5-1988 and 2-12-1983) have been asked to suspend their work and, in particular, since Judges who had ?cen deputed to work at the Multan Bench have been asked not to work with the result that the Bench of the High Court at Multan has come to a stand still". The Miscellaneous Petition was disposed of by a Bench of 4 Judges on 18-3-1989 with •.h j following observations and directions: "The portion of the Press Note reproduced above does not appear to correctly reflect our judgment in so far as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May 1988 up to 2nd of December 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal and required regularisaiion and re-affirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was not granted. The findings on all the matters in controversy were recorded to remove all doubts and ambiguties with regard to distribution of functions and powers under the Constitution for guidance in the future.In case the Federation of Pakistan wants to seek a different conclusion, it is open to it to bring appropriate proceedings before this Court which will be considered on merits. We, therefore, direct that the portion of the Press Note reproduced above should stand deleted and be taken not to have been issued at all." Agcri; bv this order the Federation of Pakistan field a Petition for Review on several grounds, inter alia: 1. That 12 Hon'ble Judges of this Hon'ble Court constituted the Full Bench which passed the short order on 5-10-1988 as well as the detailed judgment recorded and issued later on. The Government of Pakistan interpreted the judgment in the light of observations made therein and issued a Press Note on 12-3-1989. The Press Note in fact became the subject matter of Civil Misc. No. 68-R/89. The Civil Misc was heard by 4 Hon'ble judges of this Hon'ble Court and disposed of by an order dated 18-3-1989. It is respectfully submit! ed that the interpretation, clarification or any order relating to I he detailed judgment could be passed by the same Hon'ble Bench constituting of 12 Judges of this Hon'ble Court. All the Hon'ble Judges were still available. 4 Hon'ble Judges could not pass any order in respect of the Full Court judgment. 2. That the High Court in its judgment had inter alia held that the office of the Prime Minister is necessary at all times for running the affairs of the country remained without a Prime Minister from 29-5-1988 to 2-12-1988. 3, It is the contention of the petitioner that no specific declaration to this point was required and the result of the judgment of this Hon'ble Court is that "all such acts performed during the relevant period in the absence of the Prime Minister are rendered illegal and need to be legalised or regularised". In fact, Mr. Justice Shafi-ur-Rehman in a separate note while elaborating the legal consequences held that the legal consequences on individual acts done or actions already taken and suffered shall be decided in individual cases, more appropriately brought before this Hon'ble Court. It is, therefore, absolutely clear that such violations and breaches which arise because of absence of the Prime Minister during the relevant period were neither 10 be condoned nor ratified by the Courts but the legality of such acts were left to be decided afterwards. It is the submission raised by the petitioner that by passing order dated 18-3-1989 this important finding has been made vague which is bound to create extremely serious repercussions. Before this Review Petition could be taken up the Federation of Pakistan field a Miscellaneous Petition (being C.M.P. No. 149-R of 1989) praying as under: "On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e. that no person shall be a judge in his own cause, it is submitted that the three Judges of this Honourable Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this Hon'ble Court under review one way or the other, are requested that they may not sit on the Bench on 27th May, or on any date thereafter when the matter is heard as that will set a very bad precedent as judges personally interested in the matter do not sit as Judges to decide a case." This Miscellaneous Petition was disposed of by My Lord the Chief Justice in Chamber on 16-5-1989 with the following order: "I have heard the learned Attorney General but I am afraid it will not be possible for me to disturb the constitution of the Full Court when it is seized of the case, and the case has already been partly argued and is now fixed for further hearing. It is also of significance to mention that in the case under review, the jurisdictional defect in the constitution of the Bench which decided the case is also involved, as a result of the ground taken in the review petition that the case should have been heard by the Full Court which heard and decided Saifullah's case. I have consulted the Judges who have signed the main judgment and they have stated that they will not feel embarrassed to hear the case." It was thereafter that the present Miscellaneous Petition (C.M.P. No. 196-R of 1989) was moved explaining the reasons why the earlier Miscellaneous Application was moved and it is submitted as under: (1) This application (CMP No.l49-R of 1989) was filed keeping in view the high traditions and principles of natural justice universally accepted that no one should act as Judge in his own cause. It is respectfully submitted that this order (dated 16-5-1989) has been passed on misunderstanding that the case had already been partly argued and now fixed for further hearing. As submitted above, the Review Petitions arc always heard at the preliminary stage and thereafter if a case is made out for full hearing, then the petitions are fixed for final disposal. That Rule 8 Order XXVI of the Supreme Court Rules also provides that 'as far as practicable' the application for Review shall be posted before the same Bench that delivers the judgment or Order sought to be reviewed. The contentions raised in the Review Petition inter alia relate to the incompetcncy of the 3 Honourable Judges to hold their office and as such it is the demand of justice that these Honourable Judges may not participate in the adjudication of the matter. The rule that the Review Petition may be heard by the same Judges has exceptions. One of these is based upon the principle, that 'no one should be a judge in his own cause'. Secondly a larger Bench can hear a Review which includes those Judges who did not pass the order/judgment under review as was done by this Hon'ble Court in Mr. Zulfikar AH Bhutto's Review Petition. Therefore the clarification, if permissible, should be made by the remaining 9 Judges who were party to (he judgment of 10-3-1989 and also by any other Judge that might be available. Needless to point out that justice should not only be done but must also appear to be done. In the end it is prayed as under:— "That under the circumstances detailed above, it is again respectfully prayed that this Honourable Court may be pleased to accept the prayer made in C.M.P. No. 149-R/1989 as Rule 8 of Order XXVI is also prefixed with "as far as practicable". If however this prayer is not accepted to by this Honourable Court, the Federal Government has instructed that the Review Petition may be allowed to be withdrawn without prejudice to the contention raised in the Review Petition." At the hearing of the application, Mr. Yahya Bakhtiar, learned Attorney iencral submitted that it is an established principle that no Judge can be a Judge 1 his own cause or in a case in which he is personally interested, not because his tusion may be in his favour, but on the principle that justice must not only be .one but seen to be done. Although this principle is very well established, yet in >rder to highlight it, learned Attorney General referred to Chapter 3 in "Natural Justice" by H.H. Marshall (1959 Edition) in which reference is made to Bowen L.J's famous quotation in "Lesson v. General Council of Medical Education etc.," (1889) 43 Ch. D. 366, 385, that "Judges, like Caesar's wife, should be above suspicion". The principle that "no man shall be Judge in his own cause" is not confined merely to the cases where the Judge is an actual party to a cause, but applies to a cause in which he has an interest. Such interest (or bias) which disqualifies must be one in the matter to be litigated, and per Field J. in "R. v. Mayor and Justices of Deal", (1881) 45 L.T. 439 "the interest or bias which disqualifies is an interest in the particular case, something reasonable likely to bias or influence the minds of the magistrates in the particular case". Lush J., in "Sergeant v. Dale" (1877) 2 Q.B.D, 558, 567 observed, "the reason for the strictness of the rule can be traced more to considerations of public policy than to the actuality of the bias affecting the judge". The leading judgment on this principle is "Dimes v. Grand Junction Canal" (1852) 3 H.L. Cas. 750 quoted by Marshall in "Natural Justice" is in the following words:— "It is a case of the highest possible authority because it was a decision of the House of Lords, presided over by the Lord Chancellor of the day (Lord St. Leonards), as to the effect of the conduct of a previous Lord Chancellor (Lord Coltcnham). The facts were that a public compnay, which was incorporated, filed a bill in equity against a landowner, in a matter largely involving the interests of the company. The Lord Chancellor (Collenharn) had an interest as a shareholder in the company to the amount of several thousand pounds, a fact which was unknown to the defendant in the suit. The cause was heard before the Vice- Chancellor, who granted the relief sought by the company. The Lord Chancellor, on appeal, affirmed the order of the Vice-Chancellor. It was held on appeal to the House of Lords that the Lord Chancellor (who had by then ceased to hold office as such) was disqualified, on the ground of interest, from silting as a judge in the cause and that his decree was therefore voidable and must consequently be reversed. It was also held that the Vice-Chancellor v.as under the Administration of Justice Act, 1813, a judge subordinate to, but not dependent on the Lord Chancellor and that consequently the disqualification of the Lord Chancellor did not affect him; but that his decree might be made the subject of appeal to the House of Lords. Lord Campbell C.J. said:- No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but it is of the last importance (hat the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest but to avoid the appearance of labouring under such an influence. And it was said by Lord Cave L.C. in the modern case of Frame United Breweries Co. . Bath Justices (1926) A.C. 586, 590:- If there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be held lo act judicially, and il has been held ever anil above again that, if a member of such a body is subject to a bias, whether financial or other, in favour of or against either party to the dispute or is in such a position that a bias must be assumed he ought no! to take part in the decision or even to sit upon the tribunal." Learned Attorney General also referred to paragraphs 67 and 70, Volume-I of Halsbury's Laws of England (Fourth Edition) which are to the following effect: "67. Interest and Likelihood of bias. It is fundamental principle that, in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. Hence, where persons having a direct interest in the subject matter of an inquiry before an inferior tribunal take part in adjudicating upon it, the tribunal is improperly constituted and the court will grant an order of prohibition to prevent it from adjudicating, or an order of ccrtiorari to quash a determination arrived at by it, or such other remedy (for instance, an injuncl'on or a declaration) as may be appropriate. The principle extends not only to courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals. At common law. a broad distinction is drawn, for the purpose of applying this principle, between situations where an adjudicator has a direct pecuniary or proprietory interest in a matter before him. and those where he has a different form of interest which may lead to an appearance or likelihood of bias on his part, disqualification being incurred more readily in the former class of situation. If, however, the disqualifying effect of a pecuniary interest has been removed by statute, it is still material lo consider whether the nature of that interest gives rise to a likelihood of bias." "70. Effect of participation by disqualified adjudicator. If one of the adjudicators has a direct pecuniary interest in the issue, the proceedings will be set aside even though none of his fellow adjudicators was thus disqualified; and it appears thai the same principle applies where one adjudicator is subject to disqualification for likelihood of bias. In such cases the court will not consider whether the disqualified person did in fact influence the decision. Where a person subject lo disqualification leaves ihe impression that he is participating in ihc proceedings, ihe general rule is that the proceedings may be set aside even though he has not in fact taken an actual part in them. If he is present during the proceedings, they will not be immune from challenge unless he has made it clear that he is not present as a participant." Learned Attorney General also extensively referred lo the commentaries ifom Judicial Review of Administrative Action by S.A. de Smith, lo highlighl the principle lhat "no man is qualified to adjudicate in any judicial proceedings in the 'iilcoiT of which he has a personal interest and this rule applies no mailer how exalted the tribunal or how trivial the interest may be". Learned Attorney General submitted that these Softy principles of justice have all along been followed by the Superior Courts of Pakistan, and referred to the case of Anwar and another v. Tlie Crown (PLD 1955 F.C. 185) in which the following observations were made:-- "There is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of She result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus no Judge can be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. Hie Grand Junction Canal (1852) H.L.C. 759-794 and Rex v. Sussex Justices (1924) J.K.B. 256." Learned Attorney General also relied on the decision of this Court in Fazl-e- Haq, Accountant-Gencral, West Pakistan v. The Slate (PLD 1960 S.C. (Pak) 295) wherein suo-motu proceedings for a writ of mandamus were initiated by the High Court and the Supreme Court held that "the entire proceeding in this case is misconceived and void and there has been violation of two important juridical principles (1) that the extracdinary jurisdiction relating to a writ can only be exercised by the High Court when moved by a party whose legal rights have been denied; and if in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant-General in taking the action, it has violated (2) the principle that nobody should sit as a Judge of his own cause." Learned Attorney General, however, explained that when a general challenge is made against the dissolutions of the National Assembly of Pakistan and the Provincial Assemblies and to the legilimacy of the governmental set up and to the validity of its acts and deeds, the principle of interest and bias would not be attracted, but after the decision of the Court, if some of those very issues are once again before the Court with the reasons and the findings of the Court having become known through a detailed judgment, the implication of bias and interest would surely be attracted. In this regard, learned Attorney General drew our attention to the case of Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 S.C. 139) wherein legilimacy of usurper was an issue, and the judges appointed by the usurper participated in the decision. Learned Attorney General emphasized that if the principle of condonation of certain acts of the usurper, including appointment of the Judges, had not been applied in that case, the principle of interest and bias was certainly attracted. Learned Attorney General has indeed referred to a very well-settled and salutary principle of high standing relating to administration of justice and to the cause of judicial adjudication. The Superior Courts of Pakistan have always maintained and applied these lofty principles, and as an established practice, if even a simple mention is made on behalf of a party to the litigation that an interest or bias of even the slightest magnitude may perhaps be involved, the Presiding Judge or a member of the Bench, unless satisfied that it is a mala fide plea, unhesitenlly withdraws himself from the cause for the reason of public policy and adherence to the above principles, rather than the actuality of the personal interest or a bias affecting him. The request made in the Miscellaneous Petition under consideration is founded on these principles, for, the central issue involved in the main Review Petition is the validity of the appointments made between 29-5-1988 and 2-12-1988 by the President which were required to be made on the advice of the Prime Minister and, it is urged on the basis of the dictum laid down by this Court in the main judgment in Federation of Pakistan ,, Muhammad Saifullah Klian (PLD 1988 S.C. 166) that the formation and the functioning of a care-taker Cabinet without a Prime Minister was in violation of the Constitutional requirement under Article 48(5)(b). It is for this reason that is is submitted that the participation of three Hon'ble Judges of this Bench who are likely to be affected by the aforesaid judgment of this Court, and by the decision in the Review Petition, one way or the other, may not participate in the adjudication of the matter, "in view of the high traditions and principles of natural justice universally accepted that no one should act as a judge in his own cause." The prayer is founded on the glorious traditions of this Court which have always been the hallmark of the administration of justice in this country. It is in that sense that I have understood (he pravcr and I cannot pursuadc myself to ao;rec with the observations made by my brother Shafiur Rahman, J. that "the Federation of Pakistan by repealing such an application has manifested an attitude of instransigcncc insisting that its Press Release should be respected, implemented and honoured first and re-constituting the Bench which is to hear 'he matter and a decision should be given thereafter under its umbrella." However, I feel that reference is necessary to certain judicial principles •^j-ich have agitated my mind. As I read the prayer made in the Miscellaneous K tiuon under consideration, it is indeed for a direction being issued by nine Judges of this Court constituting the Bench, to the rest three Hon'ble Judges of she Bench not to deal with and hear the main Review Petition on the ground that ihey would virtually be Judges in their own cause. The question therefore is whether it is proper for the Bench of this Court to deal with an application •'vnercin such a direction is prayed for. Now it may be noticed that ihe Supreme Court, as a body under the C restitution, consists of a Chief Justice and the Judges of that Court, and each Judge is vested with the judicial powers equal to any other Judge, even for that matter, the Chief Justice. There is therefore equal distribution of judicial power among the Judges. According to the Rules of the Court, the cases before the Court are heard and decided by a Bench consisiting of not less than three Judges, 10 be nominated by the Chief Justice except for certain categories of cases which may be heard and decided by a Bench of two Judges nominated by the Chief Justice. The question that has agitated my mind is whether nine out of twelve Judges of this Bench constituted by My Lord the Chief Justice should deal with jthc prayer that nine Judges of the Bench should direct the remaining three Judges jof the Bench not to participate in the hearing of the Review Petition. I may refer to a well-settled position in law that a writ under the Constitutional jurisdiction cannot be issued by a High Court to itself, or a Judge of that Court, on the principle of necessity of maintaining a high degree of comity among the Judges of the Superior Court. This Court highlighted this principle in the case of Mian Jamal Shah v. Election Commission (PLD 1966 S.C.I). That case arose out of the judgment of a Full Bench of former High Court of West Pakistan (Lahore Bench), and one of the questions raised before he Full Bench was whether a writ under the Constitutional jurisdiction could be issued against the Election Commission which constituted of persons having the status of Superior Judges, and as in particular the Member, whose order was placed before the Full Bench for Judicial Review was himself ;i Judge of that High Court. Learned Judges of the Full Bench agreed that no writ could issue to a superior Court and this was clearly in accordance with the direction derivable from the definitive provision of Article 98 of the Constitution of 1962 that no order under that Article shall issue to the Supreme Court or High Court But they found that the Member was persona designate in the case and did not act as the Judge of the High Court and relying on two cases from the English Jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion (hat the Member was 'subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article'. Dealing with this situation, Cornelius, C.J. referred to an observation in one of the judgments cited by the Full Bench with reference to the idea of a superior Court issuing a writ to itself v/;, "the process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves' why their orders should not be queried". In this behalf Cornelius, C.J. observed as under:— "In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In -a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision." This principle was further highlighted by Muhammad Yaqub Ali, C.J., in Abrar Hassan v. Government of Pakistan (PLD 1976 S.C. 315) with these observations at pages 330 and 331 as undcr:-- "It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of Judges sitting singly or in Benches. In this context each Judge is a High Court. That explains why orders, judgments and decrees passed and summons and warrants issued under the direction of a Judge are expressed in the name of the High Court and not in the name of the individual Judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, is binding on all Courts subordinate to it. The decision rendered by the Judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an individual Judge. To my mind these provisions of the Constitution bring out clearly that the term high Courts and Supreme Court used in clause (5)>f Article 199 includes Judges of these respective Courts. The policy of law that no writ will issue to a High Court and Supreme Court is based on sound principles. If one Judge uf a High Court were to i»ue a writ b> another Judge under Article 199, the Judge to whom :he v.r;L L- i--u.J. mav in exercise of the same Jurisdiction tvllir- :he the k'gujl consequence of the fact that High J uieir individual groups ot Judges are invested with background and practice of British Court, from - borrowed. Muhammad Yaqub Ali, C.J. gave several ; .^h. writs do not lie against the Judges of Superior Courts, and finally ;. a> under at pages 332 and 333:- In consonance with this historical background, Judges of the Supreme Court and High Courts were, in the 3956 Constitution, excluded from the definition of 'service of Pakistan'. In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, docs not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citi/ens and Slate and exercise the power to strike down actions of the State as without lawful authority, they do not fall in the category of agents and servants of the State to whom writs may issue under Article 199. In my view, clause (5) of Article 199 is enacted to achieve this object. Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destory the traditional high degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observations to this effect will be found in the judgment delivered by the Court in Mian Janwl Shah v. Tlie Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other. Lastly, as I read the provisions of Article 199, they spelt out that a writ will not issue from one Judge of a High Court to another Judge of the same Court. Article 199(1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199(1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to ilself. It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the 'High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fide etc. In this connection one should bear in mind large number of decisions given by High Courts in the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation authorities, Custodian of Evacuee Property, Settlement authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Court to quash, under Article 199, Judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199. I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superiror Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not judgment delivered by the High Court or it may be challenged on the ground that the High Court is not properly constituted because a judgeship is vacant." The above views expressed by Cornelius, C.J. and Muhammad Yaqub Ali, C.J. are weighty principles of law, and I am clearly of the opinion that one set of Judges of this Bench, which has been constituted by my Lord the Chief Justice, cannot issue a direction to the other set of Judges or any of the Judges of this Bench, not to associate themselves or himself in the hearing of the Review Petition. I cannot conceive of a situation where one Judge of a Division Bench constituted by My Lord the Chief Justice to hear a case can direct the other Judge of the Bench not to hear the case on the ground that he has a bias or an interest in the case, or for that matter on any other ground whatsoever. If this bar were not :o exist, then it would amount to permitting the Judges to destroy or take away the judicial function or power of each other , which position is neither conceived nor permitted by the Constitution. As already held by me the prayer made in the Miscellaneous Petition under consideration is indeed for issue of a direction by nine Judges of this Bench to the remaining three Judges of the Bench which has been constituted by My Lord the Chief Justice, not to hear the main Review Petition on the ground that they would be acting as Judges in their own cause. I have also remarked earlier that this is a very unusual prayer—in fact a unique of its kind, with no precedent as I know of wherein some of the Judges hearing a cause or dealing with a question whether the judgment rendered by this Court to which they were the parties, has resulted in the invalidity of their own appointment to the office as Judges, and it is submitted that since this question touches upon the legality of their own appointment, they should not associate themselves with the case for the reason that they would virtually be the Judges in their own cause. The prayer is not founded on any ground of legal disqualification or incapacity attached to the three Hon'blc Judges themselves, but is based on the judicial propriety and glorious traditions of this Court to which reference has already been made, and which also incl place in Article 4 of the Code of Conduct framed by the Supreme Judicial 1 oiincil that "a Judge must decline resolutely to act in a case involving his own ink-rest". I am therefore clearly of the view that it is for the three Hon'ble Judges l (his Bench concerned, and not the rest nine Judges of the Bench, to decide in •i-.eir judicious scgacily and wisdom whether they may participate in the •i i 'ceedings of the Review Petition. I am conscious of the fact that the three Hon'ble Judges have alreadypressed themselves in regard to the same prayer that "they will not feel mharrasscd to hear the case, "which is recorded in the order f y Lord the 'hief Justice dated 16-5-1989. However, since the prayer has been repeated in theMiscellaneous Petition, with the additional prayer that "if the (first) prayer is not .m pied by this Hon'ble Court, the "Federal Government has instructed that the ;'. .\ie\v Petition may be allowed to be withdrawn, without prejudice to the iKeniu'iis m d in the Review Petition", the consideration thereof has become ' <- svir ,in, for the decision of the Miscellaneous Petition. 1 I here of the Miscellaneous Petition with these observations. ORDER OF THE COURT In accordaii ; ith the views of the majority of the Judges the application (C.M.P.No. 196-k -'v't is dismissed. Let the review matters be taken up for hearing. i MBC) Petition dismissed.

PLJ 1990 SC 131 PLJ 1990 SC 131 [Appellate Jurisdiction] Present: SlIAI 1UR REHMAN, ZAFEAR HL'SSAIN MlRZA, SAAD SAOOD JAN AND naimuddin, JJ MUHAMMAD RIFATULLAH ALVI--Appellant versus IMRAN ANSARI-Rcspondent Civil Appeal No. 76-K of 1988, accepted on 13.4.1989 [On appeal from judgment and Order of Sindh High Court at Karachi, in FRA No. 158 of 1988, dated 26.6.1988] (i) Interpretation of Statutes— — Term "occupation"— Used in Sind Rented Premises Ordinance, 1979— Connotation of— In order to understand meaning of term "occupation" in law, it is first necessary generally to know what the word "possession" connotes— Held: It will be a question of fact in each case whether in given facts, landlord is in occupation of other building in question to disentitle him of benefit extended by sub-section(l) of Section 14. [Pp.134,l35&l37]A&B (1877) 2 Q.B.D. 581 ref. (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- — S.14(2)~ Tenant— Ejectment of— Personal requirement— Ground of— Whether landlord was in occupation of first floor tenement— Question of— Case of landlord right at stage of pleading was that said portion of building was occupied by his sister with her family, a handicapped brother and unmarried sister— Since tenant was pleading a special plea of disqualification, it was for him to produce positive evidence to show that landlord was in occupation of first floor— Held: In view of fact that landlord's relations w : cre in occupation, view taken by learned Judge in High Court that they were holding occupation till landlord's return on his behalf, cannot be agreed with— Appeal accepted and order of Rent Controller directing eviction of respondent restored. [Pp.l37&138]C,D,E&F Mr. Akhlar Mahmud, AOR for Appellant. Respondent: Not represented. Date of hearing : 23.1.1989. judgment Zaffar husxmii Mirza, J—This is landlord's appeal against the judgment of the Sindh High Cn.irt dated 26th June 1988, whereby the order of the learned Rent Controller directing the ejectment of the tenant under Section 14 of the Sind Rented Premises Ordinance, 1979, was set aside and his application was rejected. The landlord sought the eviction of the tenant on the ground that he was attaining 60 years of age within the next six months of the institution of the application; that he was likely to retire from F.A.O. job in Rome where he was residing with his family and needed the accommodation for his personal occupation. The disputed premises consisted of the ground floor of a bungalow in P.E.C.H.S. Karachi. So far as first floor of the said bungalow is concerned, the landlord explained the said accommodation in para 6 of his petition for eviction which is as undcr:- "that the first floor of the bungalow from the very bcgnning is occupied by the family of a married sister of the Applicant, and another handicapped brother and unmarried sister of the applicant are also living with them. Thus there is little space left to accommodate the family of applicant comfortably even during their temporary visits, much less after moving permanently to Karachi with all their furniture and household effects from Rome." The tenant controverted the averments of the landlord and asserted that the landlord does not need the premises for personal use, as he has in his possession the entire first floor of the house which is big and spacious enough to satisfy his needs. The learned Rent Controller found that the landlord had attained the age of 60 years and had no other house in his occupation, therefore, he was entitled to possession of the premises under section 14 of the Sind Rented Premises Ordinance. Accordingly he passed the eviction order vide his order dated 27th -January, 1988. Being aggrieved by the order, the tenant appealed. Before the High Court .he main thrust of the argument assailina the eviction order by the tenant was on he question, whether in the circumstances of this case, the first floor of the •Hiilding was in the occupation of the landlord and if so. was he not disqualified to•htain po>session of the disputed premises on the ground floor, by virtue of the embargo contained in subsection (2) of section 14 of the Sind Rented Premises Ordinance, Learned Judge in the High Court, who decided the appeal, took the view that i> according to section 2 (g) of the Ordinance, the expression "personal use" means the use of the premises by the owner thereof or his wife (or husband), son or daughtci .lion 15 which uses the same expression would necessarily exclude the rcquiivii of ihe premises for the use of brother and sisters. Learned Judgelurlher held the landlord had permitted the use of the upper floor by his Brother gratis they would be deemed to hold the occupation thereof on cannot be heard to say that he is not in the occupation of within the meaning of subsection (2) of section 14. Li.. Consider the contention that since the provisions of -i-ction 1 -i obstumc clause and the said provisions, independently v l the randlord fixed the entitlement of specified class of landlord, the entitled to demand the premises in dispute for his personal use, u. ! i>e \,js not under an obligation to throw out his sisters and borlher from the !irM floor or o share the accommodation with them, and not seek independent accommodation. We have heard Mr. Akhtar Mahmood learned counsel for the appellant, but no one has appeared for the respondent. There seems to be no serious controversy on the question whether the upper floor of the house in question was in actual occupation of a crippled brother of the landlord and his two sisters, with the family of one of his sisters. We have, therefore, considered the question purely at the legal plane, whether the actual occupation on the part of the landlord's relations, without payment of rent or other remuneration, as no such case was set up by the landlord, would constitute his ccupation of the said accommodation. It has been contended by the learned counsel for the appellant that the landlord isnot in physical occupation of the first floor and at ny ate the landlord was not seeking possession of the disputed premises on the ground floor for the use of his brother and sisters, but for himself and his family. ccording to the learned counsel the word "occupation" as it occurs in sub-section (2) of section 14, is of narrower connotation as compared to the word possession". Occupation, he argued, constitutes actual physical possession. In support reference was made to the definition of the word "occupation" in the ictionaries and some judicial pronouncements in reported cases were also referred to. Counsel maintained that ill hough the landlord was in possession of the upper loor, in the facts of the ivscnl case he was not in occupation thereof. The argument of the learned o-.d was, therefore, that the disqualification ontained n subsection (2) of .-.hi 14 was not attracted in the present case and the landlord was entitled to be i : i possession of the disputed premises. !• may at the very out set e stated that the question is not whether the '••

rd has the right to demand the possession of the premises in dispute, for the I his brother and sisters, as considered y the High Court, since obviously his • Mini' did not set up such a case. His case was that the disputed premises were red lor his own family, the question, therefore, ecisely as, whether in view admitted fact that the upper floor is in occupation of his relations, that part i i buiiding can be said to be in his own occupation so as to disentitle him rom : ving the special privilege of summary eviction of his tenant from the ground' premises for his personal use. subsection (1) (if section 14 of the Ordinance onfers the right upon ",.\ il'ied category of landlords, including a landlord who is due to retire within the u'xl mx months as in th case, to obtain possession of the rented remises rum his tenant upon s. to that effect. Subsection (2) of section 14nivrporales a disqualil availing privilege conferred by subsection (1) uk! reads as under: "(2) The andlord ,,, , •; K entitled to avail the benefit of sub-section (1) if he is in occupation .<'• ,< : u .hnj owned by him in any locality." The term "occupation" has not K •., aJmcd in the Ordinance. However, the Ordinance uses the term -i, session" in .several sections including section 14, subjection (1) of which j> ,- oi the tenant being required to deliver "vacant possession" of the building hu landlord. Similarly the word "possession" has been used in subsection (2) t -ection 15. in connection with the power of the Controller to make an order dir^ 'ling the tenant to put the landlord in possession of the permises. Also the word "occupation" has been used besides subsection (2) of section 14, in the provisions of section 15. For instnacc subsection (2) (vii) of section 15 uses the term "occupation" and indeed the two terms "possession" and "occupation" apprcar in this section in juxtaposition. According to this provision the Controller can make an order directing the tenant to put the landlord in possession of the premises, if he is satisfied that "the landlord requires the premises in good faith for his own occupation or use or for the occupation of his spouse or any of his children." The perusal of the provision referred to clearly indicates that the law maker uses the two terms "possession" and "occupation" tocarry two different meanings and not interchangeably. Indeed the two words are used in contrast, rather than to refer to the same state of affairs. Now in order to understand the meaning of the term "occupation" in law, it is first necessary generally to know what the word "possession" connotes. The concept of "possession" has originally emanated from the idea of ownership, although historically possession in fact preceded the notion of ownership, which constitutes a legal right. As observed in Salmond on Jurisprudence by P.J. Fitzgerald (Twelfth Edition), the concept of posssession is as difficult to define as it is essential to protect. In the Law of Adverse Possession by M. Zafarullah Khan, the following passage of the meaning of possession would be found useful: "Possession originally expresses the simple notion of a physical capacity to deal with a thing as we like to the exclusion of every one else. The primary and mian object of ownership is (he protection of this physical capacity and as pointed oul by S'avigny,if this physical condition had alone to be considered all that could be said upon possession from juristical point i>f view would be contained in the following sentences: "The owner of a thing has the right to possess it. Every one has the same richt to whom the owner has given the possession. No. one else has that The legal notion of possession however is not confined to this simple physical condition. Possession is treated in law, not only as a physical condition which is protected by wnership but as a right in itself. From ['"Cession under certain conditions, important legal consequences are 11 !: in advanced systems of law the right of ossession is frequently 1 from the right of ownership. Moreover, the possession with !,iw thus deals is not that simple physical condition describedwhich for the sake of istinction, we may give the name of I rue that the physical element is never altogether lost •p'rnry, a physical element of some kind or other, is '<' possession in its idest legal sense." Hither analysed the concept of possessionand : l dea of possession resolves itself into two .'.m visual-corpuandanimus.Possessioinany sens. mply, first, some actual po ! 'K, some amount of will to avail oneself of that ,accompany the act, the will must realise or » .;i , xi . rn.tl fact or group of facts." The hoi-! also distinguish :n possession in fact and possession in law. Another division of the concept of possession is between mediate possession and immediate possession. This hu.s been explained lucidly in Salmond on Jurisprudence (supra) as under: "In law one person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The ssession thus held by one man through another may he termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate. Of mediate possession there are three kinds. The first is that which I acquire through an agent or servant; that is to say. through someone who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession: as. for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel K>r me. or when I deposit goods with a warehouseman who hniik them on my account, or when I send my boots to a ^hoemak^r :,> i>c r^pair^d. In all such cases, thouL'ji the immediate possession i.s ui tlu ser.ant, warehouseman, or artisan, the mediate possession is in ihl: for the immediate possession is held on my account. The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or tenant at well. I do not lose possession of a thing because I have lent il to someone who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks alter it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through 'he one. as well as through the other, I retain as regards all other pei v ins a due security for the use and enjoyment of my property. I rmself po .-•. •• •••-. whatever is possessed for me on those terms by another. There i wi a third form (if mediate possession, respecting! which more doubt m.;\ ,!si, bul which must be recognised by sound theory as true posscv-,i, <n, Il is the ca i -,_ in which the immediate possession is in a person whi im- it loi liinix ' until some time has elapsed or some condition h,.i^ • lulh!ii.i!. ' vvho anknowledgcs the title of another for whom he hoid.s . thing, and to whom he is prepared to deliver it when his own tempo 1 ;iv claim has come to an end: as for example when I lend a chattel to anou i r for a lixed time, or deliver it as a pledge to be returned on the payment < ; a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned." As pointed out above it is difficult to define the meaning of the word "possession" precisely and satisfactorily having a universal application in all systems of law. Indeed each system of law has given its own meaning to the concept of possession. Even in the same system of law different policies may be found to be at work, as regards the concept of possession in different areas of law. We are here concerned with the meaning of term in the context of the provisions of Sind Rented Premises Ordinance, 1979, which is a statute substituting the general law remedy of action for eviction by a landlord against his tenant. In the area of the law relating to landlord and tenant, the tenant as well as the landlord re both in possession of the demised premises, but their respective possession falls under different species of possession enunciated herein above. In the passage cited from Salmond on Jurisdiction, the possession of the landlord is "mediate possession" and that of the tenant what is described as "immediate possession". In the law with which we are concerned it is the second kind of mediate possession that the landlord holds through the tenant, namely, that the latter is directly in possession and holds on his own account qua his possessory right of enjoyment and on account of the landlord whose superior right he recognises to obtain direct possession from him by resorting to statutory remedy. It is in this sense that the tenant is required under subsection (1) of section 14, "to deliver vacant possession of the building". Here vacant possession would mean actual physical possession. The word "possession' in susection (2) of section 15 of the Ordinance is also used in the same sense. The word "occupation" has been defined in the Shorter Oxford English Dictionary, inter alia, to mean actual holding or possession, specially of a place or of land. In the context of subsection (2) of section 14 of the Ordinance, the word carries the meaning of actual physical possession of a building. This specie of possession is what has been described by Salmond as immediate or direct possession. I am tempted to quote the illuminating observation made by Lush, J, in the case of Tlie Queen vs. TIic Assessment Committee of St. Pancras |(18770) 2 Q.B.D. 581] which reads as follows: It is not easy to give an accurate and exhaustive definition of the word "occupier". Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, ' ay maintain trespass against any one who invades it, but as long as vcs it vacant he is not rateable for it as an occupoer. If, however, he s it, and keeps it eady for habitation whenever he pleased to go ' h\<. will, is the occupoer of it." .; Lipalion" carries the same meaning and import as in! ;i Therefore, it will be a question of fact in each! j: : L'jvcn facts the landlord is in occupation of the other i'uili riuiic him of the benefit extended by subsection (1) of H'CtiOfi 1 In the su of the Saw discussed above, the next question to consider is whether in the circumstnaccs of the present case the landlord was in occupation of the first floor tenement. It may be stated that right at the stage of pleading, the case ;•<(' the landlord was as appears from paragraph 6 of the application for eviction that the said portion of the building was occupied by his sister with her family, a handicapped brother and unmarried sister. This averment was supported on oath in the affidavit filed by the landlord. The respondent in his written statement had set up a plea that the entire first floor was in the possession of the appellant and was lying vacant. This plea was categorically denied in the affidavit of the appellant who also filed affidavits sworn by the occupants of the first floor along with other evidence, consisting of the National Identity Cards of his sistersand brother showing their address with reference to the first floor of the building. In the cross-examination of the landlord nothing material has been brought out to indicate that his aforesaid relations are not in the ccupation of the first floor or. that he is in any way in the occupation of the same. The respondent's attorney in his evidence has admitted that the brother of the andlord is mentally retarded and is residing in the first floor premises and that the landlord "occupies the first ! floor of the said house whenever he visits Karachi rom Italy". As regards his Sisters the respondent stated that they were residing elsewhere. It would, ; therefore, appear from the evidence that the case of he landlord was partly ' tilmitted to the extent that his handicapped and crippled brother was living on the lirst floor portion of the building. Obviously a crippled erson could not be living ; ;;!one and therefore there was no reason to doubt the assertion of the landlord Ui.it his other two sisters were also in occupation of the t floor. Be that as it !-v;iy. since the tenant was pleading a special plea of disqualification, it was for him io hove produced positive evidence to show that the lord was in occupation of i he first floor. In the state of evidence on record there is nothing to indicate that for all these years the landlord had kept the first floor remises ready for his own occupation whenever he returned to Pakistan. All that is indicated is that on short visits whenever he came he stayed with his other amily members in the first floor pi utilises. This hardly satisfies the rquirement of law with regard to occupation. | Evidence could have been brought to establish hat the first floor contained the furniture and other necessary household goods belonging to the landlord which could have led ' • 1 rence that he was keeping eady for his own habitation I whenever he p' m:-.c it. On the contrary it appears fairly certain that the | said premises . occupation of the crippled brother for his use. The !occasional act 'temporarily with his relations in the first floor on jtemporary visit.- ' by itself constitute occupation, unless other circumstances wcic m record. Therefore, while it can be said that the upper floor was in lc> session of the landlord, there is no clear evidence thathe was in occupation c>; >; sjme. It may be clarified that a landlord who is really in occupation of anoi!u:i injihting cannot, by bringing in his relations to stay in such premises, plead that he is not in occupation thereof. It will be for the court in such circumstances to rcjcd such pi u :is fraudulent. Once it is established hat person other thnv > iand!-^n occupation of a building, although gratuitously, the ; : <:,mm•> -1,1 [hat the person so occupying should be thrown ut nd n id that such building is in occupation of the landlord. Particularly in case she present one where a crippled brother and sisters are in ccupation of tht <. mises, it cannot be held that since the occupation is gratuitous, they could ta.-.iiy be displaced by the landlord and from that it can be infered hat he is in occupation thereof. The factum of occupation is to be determined on the evidence as it exists at the relavant time and not on the basis of what the andlord can do to obtain occupation from those who are for the time being in occupation of such premises. In view of the fact that the landlord's relations were in ccupation, we are unable to agree with the view taken by the learned Judge in the High Court that they were holding occupation till his return on his behalf. There is no evidence on the record to support this conclusion n the light of the aforesaid discussion, I would accept the appeal set aside -.;• judgment and order passed by the High Court. The result is that the order .:->cd by the learned Rent Controller directing eviction of the respondent stands . -tored. In the circumstnaces of this case there will be no order as to costs. 1. B C) Appeal accepted.